Lloyds victory in Birmingham - in perspective

[Mistermind]

"The man who lost in Birmingham county court on 15 May, Kevin Berwick, has decided not to appeal against the decision, but to go to the Financial Ombudsman Service instead.

A QC's opinion suggested that he had failed because he had not put forward some important evidence, such as the exact terms and conditions of his account with Lloyds TSB.

As a result of the lack of this evidence, the QC advised that the rest of the case was not important and did not deal with any legal principle.
As the rules for appeals in civil cases do not allow fresh evidence to be brought forward, Mr Berwick has been advised that there would be no benefit in appealing."

Marc Gander of the Consumer Action Group said: "These cases, in Lancaster and Birmingham, show that people have to be more careful about their preparation."

Google of "Rudd and Lloyds and judge"

Channel 4 - News - Lloyds TSB wins charges court fight
BBC NEWS | Business | Lloyds wins second charges case
Lloyds wins second reclaim case | This is Money
Second blow for bank customers | Metro.co.uk
Lloyds wins another overdraft case; more judges express ...
£100000 fund will help bank customers fight unfair charges ...
Lloyds wins second reclaim lawsuit - Banking Business Review

http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_05_07_bank_charge.pdf
(Berwick v Lloyds Approved Judgment issued on 15th May 2007)

[Pliny the Penuriosus]

Why oh why do people not prepare their claims properly. There's enough advice & info for them to.

Also it's essential that a claimant attend court on the day & if someone starts a claim not intending to do so its better they don't even start

[adamc6671]

Totally agree, Pliny.

Some of the questions asked on here make it very obvious that some people haven't taken the trouble to read and learn about what they are about to undertake. It is a VERY serious business going to Court, and even more so when taking on large and very successful businesses like the banks - they have huge resources available to them, and will, on ocaision, use them. Everyone taking a bank to Court must understand this, and be prepared for it. Do this properly, and you will almost certainly win. Cut corners and you may well not!

Certain sites give the impression that all you have to do is write a couple of letters and you'll get your money back - it is NEVER that simple, as experience shows and as is made very clear here on CAG. Those sites that over-simplify the issue are, in my opinion, doing more harm than good!

Oh well - having put the world to rights, better get back to work!!!

All the best - Adam.

[nevos]

Interesting read regarding Lloyds, it could be they are settling cases where customers normally have a healthy balance or have other business which they earn from like mortgage etc...Looking forward to the comments of BF and other mods on the T & C ?

I'm also interested in "acceptance by conduct" of T & C updates which, I notice in another thread no response to this point?

[Mistermind]

Acceptance by Conduct is pretty well entrenched in the real world. Even before the co-habitation change 40 years ago, a single woman who lives and sleeps with a man over a long period would have been deemed a common law wife, her status so accepted in law.

After two wins and no appeal to the referee, banks have their tail up now. Abuse and sarcasm on the telephone may be returning. The routine stalling stance might be lengthened and hardened now even for well-prepared claims. Almost certainly the number of cases allowed to end up in court will increase -- but quietly at the last minute, to ambush the least prepared, the most optimistic.

Loss of the psychological high ground does not cost nothing.

If the Brennan case is also dismissed, then the score would be 3-0 against claimants. This is not true. Success! Judgement AGAINST Egg... shows a case won in court against an Egg barrister, by a CAGger who is also a lawyer, a barrister I suspect.

This win came after proving (presumably with T&C in court) that contract breach penalty charge was not a commercial service fee. The Dunlop v Garage 1910 precedent then became applicable, namely that the charge had to reflect the cost price with no profit added. Claimant barcote got Egg's lastminute evidence on costings ruled inadmissible by the judge, and presented his own evidence based on US and Aus charge costing studies (he did not know about Dublin banks £3 evidence). Eventually all 3 settled for £5 as an estimated compromise price per charge. The test for "reasonableness of service fee" was not needed.

When eventually institutions decide to settle for what they can get rather than as much as they could get, I believe partial reclaims like this one would become the norm. All those who want full reclaims, hurry up while the going is good.

Strictly on penalty charge cases then, unless anyone knows different, the score from contested cases stands at:

Claimants 1 - Banks 2

[Pliny the Penuriosus]

Yes there is such a thing as tacit consent but I don't think it would apply to the acceptance of bank charges in that it would be seen that you had been left with no option but to accept them (an unfair bargain) or risk losing your account thereby causing considerable hardship in this day of electronic banking

Also just a point it's a well held perception but there is no such thing as a 'common law wife' An unmarried women has no rights in law not even if she is dependant on the other partner, unless they are of the same sex and have entered into a civil partnership. They can & are slung onto the streets all the time to fend for themselves. If they have children then it's they that receive payment

[Kenny Haymes]

Originally Posted by Mistermind

Acceptance by Conduct is pretty well entrenched in the real world. Even before the co-habitation change 40 years ago, a single woman who lives and sleeps with a man over a long period would have been deemed a common law wife, her status so accepted in law.

After two wins and no appeal to the referee, banks have their tail up now. Abuse and sarcasm on the telephone may be returning. The routine stalling stance might be lengthened and hardened now even for well-prepared claims. Almost certainly the number of cases allowed to end up in court will increase -- but quietly at the last minute, to ambush the least prepared, the most optimistic.

Loss of the psychological high ground does not cost nothing.

If the Brennan case is also dismissed, then the score would be 3-0 against claimants. This is not true. Success! Judgement AGAINST Egg... shows a case won in court against an Egg barrister, by a CAGger who is also a lawyer, a barrister I suspect.

This win came after proving (presumably with T&C in court) that contract breach penalty charge was not a commercial service fee. The Dunlop v Garage 1910 precedent then became applicable, namely that the charge had to reflect the cost price with no profit added. Claimant barcote got Egg's lastminute evidence on costings ruled inadmissible by the judge, and presented his own evidence based on US and Aus charge costing studies (he did not know about Dublin banks £3 evidence). Eventually all 3 settled for £5 as an estimated compromise price per charge. The test for "reasonableness of service fee" was not needed.

When eventually institutions decide to settle for what they can get rather than as much as they could get, I believe partial reclaims like this one would become the norm. All those who want full reclaims, hurry up while the going is good.

Strictly on penalty charge cases then, unless anyone knows different, the score from contested cases stands at:

Claimants 1 - Banks 2

The two cases that give the 'appearance' (really nothing more in 'stone cold blood') of going the bank's way - probably qualify to go under a subheading entitled 'self-inflicted' ? They are not really successes for the opposition - they are still scared - they 'will' try and pick off the 'non-attending', 'poorly prepared', 'key documents missing' cases and seek to maximise any result in their favour.

It would be great to find a case maybe where a bank have got too cocky and sought to score a major victory - but have falsified their evidence or made some other majorly disastrous move - which would demonstrate they are aware that their charges truly constitute penalties - as we all know !

[Pliny the Penuriosus]

but have falsified their evidence or made some other majorly disastrous move Quote

May have already happened. Watch this space!

[Mistermind]

In the first instance Kevin failed to prove that what he was reclaiming were Dunlop-style penalty charges, rather than dentist-style service fees. Having been forced to concede service fees he failed to prove these were at an "unreasonable" level.

Armed with correct T&Cs, and avoiding grey-area charges I believe the first proof can be delivered in court. Having established Dunlop-style charges were legally capped at cost price though, the claimant now needs to establish what that price is. At Kevin's trial I understand opinion from the House of Commons was ruled as inadmissible, as was the Cynthesys costings evidence (photocopy or spy camera film?) obtained covertly by the BBC Whistleblower program revealing a price of £2.

The only alternative device that I can see is to make contrasts across space and time -- £38 charged in London, but £3 charged in Dublin. £38 charged in 2007, but £2 charged in 1970. WHY? A five-year-old will laugh at this.

Without a warrant or a subpoena to scrutinise bank files it will be impossible for outsiders to prove that NatWest, speaking hypothetically, have done top-secret inhouse costings year after year, that the audited figure is, speaking hypothetically, £3 not £38.

Banks and their barristers will guard this true figure with their lives, and I can see no circumstances in a Small Claims Court where they will reveal same. They could talk airily about "Pre-estimates" until the cows come home, but even then they would be wary about getting drawn to that most embarassing question -- "If £38 was your Pre-estimate, what figure came out of your end of year audit?" An answer not under oath in the Small Claims Court cannot incriminate the speaker with perjury, nevertheless as PLCs watched by a million claimants nationwide, banks cannot be seen to openly tell porkies. That is why they do not want to be cornered in court, least of all in front of an articulate claimant. They stood on their heads to avoid Tom Brennan.

If cornered on the ropes and questioned pointblank "What is your true cost price?" I think a bank barrister will simply ask the judge for a damage-limitation adjournment, during which he will offer the claimant everything claimed, and the latter will have no choice but to accept. And that will be that, a trial aborted by settlement without an Approved Judgment issued. Only Tom Brennan's action can force the true cost price out into open court -- if Tom's action were given leave to proceed.

Without a decisive battle claimants will have to continue walking on thin ice watching every step. This cloud seems to have one silver lining though. With one million claimants waiting in the wings judges are close to having had enough -- either banks settle well before the trial, or they are to show up in court. OR ELSE.

--------------------------------------------------------
Sticky: Northern Ireland Citi claimants read in 2

Originally Posted by MRMURPHY
Just for the record, i can recommend one judge who i get the impression from, 'doesn't take to kindly to the banks.'

Its in N.Ireland, so if you wanna travel to a judge on your side, pm me.

Put it like this, i appeared in court today, with citi. There evidence was written by their account stating it cost £12.88 per default using the ofts method of charging but £27 odd using their own method of cakculation.

The judge asked citi, 'do you have your expert witnesses here today?'

of course not!

If you want me to rule on this i will require, expert witnesses etc etc.

Citi solicitor then said we are arguing a point of law.

Judge then again asked for witnesses..

CITI solicitor then met me outside to try to settle. Suspect a cheque will soon be on its way..

----------------------------------------------------------------------

As MrMurphy has not posted since, I infer the aforesaid settlement aborted the trial in mid-flight, probably with a confidentiality clause. This is one of just two incidents I have read, where the Dark Side quoted a cost price in court, but ran faster than Linford Christie when asked to witness it formally.

[Kenny Haymes]

Originally Posted by Mistermind

In the first instance Kevin failed to prove that what he was reclaiming were Dunlop-style penalty charges, rather than dentist-style service fees. Having been forced to concede service fees he failed to prove these were at an "unreasonable" level.

Armed with correct T&Cs, and avoiding grey-area charges I believe the first proof can be delivered in court. Having established Dunlop-style charges were legally capped at cost price though, the claimant now needs to establish what that price is. At Kevin's trial I understand opinion from the House of Commons was ruled as inadmissible, as was the Cynthesys costings evidence (photocopy or spy camera film?) obtained covertly by the BBC Whistleblower program revealing a price of £2.

The only alternative device that I can see is to make contrasts across space and time -- £38 charged in London, but £3 charged in Dublin. £38 charged in 2007, but £2 charged in 1970. WHY? A five-year-old will laugh at this.

Without a warrant to scrutinise bank files it will be impossible for outsiders to prove that NatWest, speaking hypothetically, have done top-secret inhouse costings year after year, that the audited figure is, speaking hypothetically, £3 not £38.

Banks and their barristers will guard this true figure with their lives, and I can see no circumstances in a Small Claims Court where they will reveal same. They could talk airily about "Pre-estimates" until the cows come home, but even then they would be wary about getting drawn to that most embarassing question -- "If £38 was your Pre-estimate, what figure came out of your end of year audit?" An answer not under oath in the Small Claims Court cannot incriminate the speaker with perjury, nevertheless as PLCs watched by a million claimants nationwide, banks cannot be seen to openly tell porkies. That is why they do not want to be cornered in court, least of all in front of an articulate claimant. They stood on their heads to avoid Tom Brennan.

If cornered on the ropes and questioned pointblank "What is your true cost price?" I think a bank barrister will simply ask the judge for a damage-limitation adjournment, during which he will offer the claimant everything claimed, and the latter will have no choice but to accept. And that will be that, a trial aborted by settlement without an Approved Judgment issued. Only Tom Brennan's action can force the true cost price out into open court -- if Tom's action were given leave to proceed.

Without a decisive battle claimants will have to continue walking on thin ice watching every step. This cloud seems to have one silver lining though. With one million claimants waiting in the wings judges are close to having had enough -- either banks settle well before the trial, or they are to show up in court. OR ELSE.

.

Great posting !

[Kenny Haymes]

Originally Posted by Pliny the Penuriosus

but have falsified their evidence or made some other majorly disastrous move Quote

May have already happened. Watch this space!

We is awatchin' !!!

Wishing you well !

[Pliny the Penuriosus]

Mistermind
Excellent very cogent post

[Falkirk1298]

Couldn't agree more. Very well presented,

[amber_ellie]

Originally Posted by Pliny the Penuriosus

Why oh why do people not prepare their claims properly. There's enough advice & info for them to.

Also it's essential that a claimant attend court on the day & if someone starts a claim not intending to do so its better they don't even start

I am most concerned about this statement. I have a Court date for my son late in June. He lives abroad and although he had every intention of coming home for this court date he now can't due to work commitments. I have done all the paperwork for him and got his signatures whenever needed. He has also advised the court he works abroad and if necessary I would act on his behalf.

Are you saying that he should now just pull out of everything and leave it?

Incidentally we first started our proceedings by asking for statements back in July 2006.

[Pliny the Penuriosus]

Originally Posted by amber_ellie

I am most concerned about this statement. I have a Court date for my son late in June. He lives abroad and although he had every intention of coming home for this court date he now can't due to work commitments. I have done all the paperwork for him and got his signatures whenever needed. He has also advised the court he works abroad and if necessary I would act on his behalf.

Are you saying that he should now just pull out of everything and leave it?

Incidentally we first started our proceedings by asking for statements back in July 2006.

Of course not. If the claimant or their representative is attending court then thats fine.

I'm clearly referring to claimants or any reps who don't show