And now the time has come.

This will be my last entry on this blog.

Sadly i am leaving Watsons Solicitors in the near future.

I will be opening a new personal blog which i will link to this blog so others can follow me.

I will release details of the new firm where i will be working on my new blog also.

I just want to say thank you to all who have followed this blog, and have contributed to the discussions that have taken place.

Regards

Paul

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Bank-bashing by the Court of Appeal

informationrightsandwrongs

The conduct was…intimidatory and controlling…If that amounts to good banking practice, that is a very sorry misassessment by the banks of what commercial morality and indeed legality requires

The Court of Appeal has held that the Bank of Scotland is liable for harassment in making hundreds of calls to  someone who exceeded her overdaft limit.

With the Information Commissioner taking recent robust action we all know that the making of unwanted calls by commercial organisations can be a breach of The Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act 1998.

However, a recent Court of Appeal judgment has held that this practice can also constitute harassment, even when the calls are made by one’s own bank, in pursuit of a debt.

In Roberts v Bank of Scotland the claimant – a valiant litigant in person – had sought and was awarded damages in the County Court…

View original post 741 more words

Reflecting of Roberts- The recent Court of Appeal ruling on harassment.

I have been reflecting on the recent (and in my opinion, rather helpful ruling) in the case of Roberts v Bank of Scotland Plc.

Whenever anyone mentioned harassment under the Protection from Harassment Act 1997 before the Roberts ruling, the case of Conn v City of Sunderland [2007] EWCA Civ 1492 would crop up, normally along with the case of Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34.

The view coming from the Courts seemed to be that a civil claim could only arise as a remedy for conduct amounting
to a breach of s 1 of the Act, which by s 2 would also amount to a criminal offence. Certainly cases where a bank has telephoned its customer unreasonably it seemed an uphill struggle to get a claim for harassment off the ground. This was part of the reason why in Harrison v Link Financial Limited, the challenge surrounding the unfair telephone contact was based on the Unfair relationship provisions in the Consumer Credit Act 1974 as opposed to the PFHA 1997.

Of course there was the ruling in Ferguson v British Gas, however that was not so much about the conduct but the appeal centered on whether the case ought to have been struck out or not. The Court of Appeal finding that the case should go to trial and of course it settled very shortly afterwards.
However, the recent Court of Appeal ruling in Roberts seems to suggest that the Courts are willing to consider the issue of harassment when a creditor unreasonably pursues a debtor via the telephone. Its not a crime to be in debt, many people who are unfortunate to be faced with debts do not go out of their way to run up debts with the intention of never paying the money back. Most people who fall on hard times are honest genuine people, some with children, and some not, but nonetheless they do not deserve to be hounded and pressured by large corporations just because they cannot afford to pay what the bank demands. Lets not forget of course that much of the financial difficulties and economic issues which arose as a result of the banks. One only need look at the press reports to see that, yet the banks seem to think it is acceptable to hound people by telephone.

If your lender is making telephone calls to your home, place of work, mobile etc and you do not wish to discuss the matter by phone, something the Court of Appeal made clear was a debtors right, then you should write to the creditor and ask them to stop phoning you, if the calls are causing difficulties at work then make this clear in the letter too and if the calls are upsetting too, then make this clear too.

Make sure the letter is sent recorded delivery and most importantly, make notes of each and every call made to your phone and keep it safe.

If the creditor keeps calling then tell them you do not wish to discuss the matter over the phone, and if the calls are upsetting you then tell them this too. Many people find calls from creditors and debt collectors deeply upsetting, there is no shame to tell a bank that they are making you feel ill, or upsetting you by phoning or that they are placing your employment at risk by calling your work. Also i would suggest that if you are in a position where you simply cannot pay what the bank is asking you to pay, then tell them, make it clear to them both in writing and by phone, send them income expenditure details and make it clear to them that by phoning they are not going to get the funds they are seeking and all the calls with do is cause you more distress.

It is worth noting that in Roberts the bank rang 547 times in around 6 months, now that may seem a lot, but it equate to 3 calls per day based on 182 days in the 6 month period. In Harrison v Link, Mr Harrison was called more than 3 times some days, and in many of the cases i see, the debtors will get called three times per day per phone, sometimes there will be a call to the home, the work, the mobile etc so 547 calls some of which were unanswered, is not many when you break it down.

It is impossible to say whether a person will have a claim for harassment, as each case turns on its own facts. However, it does seem to me, if the facts and the circumstances are right, that a counterclaim could well be viable under the PFHA 1997 which will no doubt be seen as good news by many Defendants, but not so good news for the banks.

Roberts v Bank of Scotland plc and another appeal – [2013] All ER (D) 88

Whilst i was searching for a case on Lexis Nexis today, i came across the case report on Roberts v Bank of Scotland plc and another appeal – [2013] All ER (D) 88. This case was very interesting indeed, not least because the Bank of Scotland appealed having lost at the first instance and took the matter to the Court of Appeal and lost again.

The facts however are most interesting, it seems the Bank had called the Claimant over 500 times in the space of 12 months, and the Claimant for her part had told the Bank that she did not want to discuss the matter with the bank or its debt collectors.

The lower courts are often quick to frown on a debtor who doesnt communicate with his creditor, however quite helpfully the Court of Appeal seems to have clarified matters on this point.

 

This is an extract from the case report.

(1) The existence of a debt did not give a lender the right to bombard the debtor with calls. It was for the debtor to decide whether they wanted to discuss the matter with the creditor.

 

In respect of the harassment appeal, the claimant had made it perfectly clear that she had not wanted to speak to the bank, and she had been perfectly entitled to do so. Once the bank had phoned a few times, it had been clear that no progress was to be made. Further calls had been futile and should have been stopped. The judge had been right to characterise the calls as intimidation and they had been wholly unjustified. In respect of quantum, there was no possible ground for interfering with the judge’s assessment of damages.

While this claim was raised under the Tort of Harassment and the Protection from Harassment Act 1997, it confirms that much like in the case of Harrison v Link Financial Limited, the Courts are happy to step in and uphold consumers rights not to be harassed by Banks or debt collectors, and where such conduct occurs, the Courts will award damages against the Bank or debt collector.

 

This is a very helpful Judgment and one which i will happily keep in my locker when i deal with cases where creditors have been excessive with their telephone calls.