July 15, 2010
Banking and Finance
Comment
In the author’s personal opinion, it is time for the courts and, perhaps, government to stop sitting on the fence with legal argument that lends itself to squeaky clean judges’ desks. It is quite clear that the public has noted its concern. They realise, (or at least should realise by now!), that banks are businesses unlike any other. And, while the banks might enjoy the benefits of having large capital reserves, somewhat questionable following the recession, the Scottish and, indeed, the British public expect them to be treated as such in the legal systems of the UK. This effective immunity from suit should seriously be reconsidered and, the author hopes, soon.
How to Claim despite Walls being breached
Consumers may be best advised to take the recent shock wave of Allison Walls v Santander with a pinch of salt: there are certain steps, including those from moneysavingexpert.com, which are still worth considering:-
1. Send a style letter and send to the bank;
2. If unsuccessful and the bank continues to charge, send a different style letter to the Financial Ombudsman;
3. If still unsuccessful, consult a reputable solicitor and take the bank to court, but be prepared for considerable legal expenses and long, drawn out proceedings.
Banks would be best advised not to get complacent: a battle may have been won; but the war, most certainly, is not over.
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June 27, 2010
Case Notes
The relatively recent case of Education 4 Ayrshire Ltd v South Ayrshire Council [2009] CSOH 146, CA37/09, concerns the issue of what happens when a contract clearly provides how and when a notice of delay or claims should be given but the parties do not follow the precise form of the notice provisions.
A good theoretical decision in favour of pacta sunt servanda and adherence to what the parties have agreed strictly, it has to be wondered whether this is the right practical decision given that effectively notice, albeit in a different form, had been given. Certainly, I have seen this decision take effect on elements of a recent multimillion pound NPD project, which may have delayed the deal.
The case serves as an important lesson for contractors, not just those involved in PPP / PFI, to take special notice of notice requirements under contracts.
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