Joint CAG and MSE news release

[BankFodder]

www.ConsumerActionGroup.c o.uk www.MoneySavingExpert.com

News Release: Tuesday 29 May
Warning to the banks! £100,000+ legal fighting fund pledged

Senior lawyers advise bank charges reclaims should succeed in court
Kevin Berwick aims to appeal to the Financial Ombudsman

Bank charges campaigners today fire a shot across the bows of the banks. The UK’s biggest money website MoneySavingExpert.com and the specialist bank charge reclaiming website ConsumerActionGroup.co.uk have pledged a new legal fighting fund for bank charges reclaiming. It’s part of a series of announcements following a Birmingham County Court judge’s decision on 15 May to turn down Kevin Berwick’s case against Lloyds TSB. The highlights include:

• Pledges of over £100,000 to support legal fighting fund. MoneySavingExpert.com and ConsumerActionGroup.co.uk , as well as private individuals, have pledged over £100,000 to a legal fund, which if activated will be held in trust by the Govan Law Centre. The fund will be activated if a suitable opportunity for a precedent setting bank charges claim arises.

• Kevin Berwick aims to go to the Financial Ombudsman not back to court. The senior QC engaged to give an opinion on the case says that Berwick v Lloyds TSB plc doesn’t deal with any principle of law and is of no legal importance. The decision fell solely on the failure to lodge evidence. Sadly, the rules don’t permit fresh evidence in civil appeals and therefore the case would need to be based upon the same inadequate evidence as considered by the trial judge. Therefore Mr Berwick is instead looking to continue his claim via the Financial Ombudsman (see Notes to Editors 2).
• Senior lawyers advise there’s little difficulty winning bank charges cases. After examining the QC’s view on Berwick v Lloyds TSB plc, the Govan Law Centre’s principal solicitor, Mike Dailly, advises there would be little difficulty in winning bank charges cases in court if claimants are properly prepared. Lloyds TSB is merely disguising its penalties by claiming that its charges are a fee for a service – UK courts have traditionally looked behind such ‘legal shams’.
  
  
• Reclaiming continues as before, with court awards ignoring Berwick case. The news of this one anomalous decision hasn’t stopped the flow of payouts: hundreds more people have received their money back since then, joining the thousands of successes across the country. This case has had no bearing in law and in practice sets no precedent; in fact even according to other judges it’s ‘irrelevant’ (quoted on BBC Radio 4 Moneybox).
  
  The ConsumerActionGroup also reports that since the Berwick decision there’s already been at least one Lloyds TSB case in Worcester in which a judgment was given to the claimant even though the judge was fully aware of the Berwick decision.
  
  

While the decision a fortnight ago was most unfortunate for Kevin Berwick, we look forward to seeing this consumer revolution continue, and many millions more pounds of unfair bank charges reclaimed from Lloyds TSB plc and other UK banks over the next few months. All the banks, including Lloyds, are continuing to pay out when they realise that the claimant is prepared to stand their ground.
Scandalously banks are trying to intimidate claimants erroneously citing Berwick.

Reports are coming in that some banks have taken this one anomaly, and both in letter and on the phone are trying to scare people away from reclaiming.

Martin Lewis, the creator of MoneySavingExpert.com, which has had over 3.3 million free template letters downloaded from it since November, says,

“It’s almost laughable. In football parlance the banks are crowing about the fact that they’re now only losing 100,000 to one not 100,000 to nil. This is a desperate attempt to scare people away and it’s important that we don’t allow their spin and spiel to put people off. I’d urge everyone who’s already had a payout to act as reclaiming ambassadors and persuade others to take up the gauntlet. Remember, most people get a settlement without ever getting close to needing court action, just by sending a couple of free template letters. Don’t let banks’ spin and spiel scare you off.”

What does this mean for those currently reclaiming charges?

Marc Gander, co-founder of the ConsumerActionGroup which has helped its members reclaim over £11 million, says,

“Most people get paid out without needing to go to court. Those who do go to court usually win by default. Yet for the rare few where the bank does put up a defence, the big lesson to learn is that even though they don’t show up in court it’s still worth doing proper preparation. Our aim is to ensure every bank customer who reaches this stage is perfectly prepared. We’re enhancing our detailed free guide even further to ensure no more of these anomalies slip through the net and urge people to use this resource.”

Kevin Berwick still pleased to support the bank charges campaign

Kevin Berwick comments, “It’s important people understand that the bank had already offered me a settlement before going to court. I decided I wanted to go ahead as I believe that the banks are wrong to take this money from us and I’m proud that I stood up to them. I would continue to urge everyone who’s had bank charges to keep going.”

Web resources


Bank Charges Reclaiming Guide, Letters and Video: Bank charges: Reclaim them, they're unlawful, so you can get six years money back | MoneySavingExpert: Consumer Revenge, Credit Cards, Shopping, Bank Charges, Cheap Flights and more
Detailed legal explanation, case letters and case preparation: www.consumeractiongroup.c o.uk

**** END***

Notes to Editors
1. Why did the Berwick case happen? What caused the anomaly?
In similar cases most judges across the country have thrown the case out of court. In this one rare case the judge decided to hear the case and cross examine an ordinary member of the public, even though the bank, as is their custom, hadn’t turned up in court. On top of that, this decision was made even though a copy of the terms and conditions was unobtainable.

The evidence wasn’t sufficient

The judge advised that Mr Berwick had supplied insufficient evidence as to the bank’s terms and conditions and because Mr Berwick responded to a line of questioning by the judge in a way which undermined his own case.

Why no appeal in this case?


As the rules do not permit fresh evidence to be adduced in civil appeals, an appeal would have to be based merely upon the same inadequate evidence which had been considered by the trial judge.

This restriction on an appeal judge would mean firstly that it would be likely that a successful appeal would be on such limited grounds that it would have very little value to anyone else.

A properly prepared case should win

The legal advice now obtained suggests that a bank charges claimant, properly prepared and who had filed all the necessary evidence, would have comparatively little difficulty winning his case on the basis that Lloyds TSB is merely disguising their penalties by claiming that their charges are a fee for a service.
It’s important to note victims of unlawful bank charges should continue to reclaim their money but make sure that they are properly prepared when doing so.
A precedent has not been set
It should be pointed out to claimants and the banks that Kevin Berwick’s case does not create any kind of precedent. It seems that several banks are already attempting to persuade their customers to drop bank charges claims by claiming deceptively that the judgment shows that claims have no basis in law.
Banks have lost since the Berwick decision
Since the Berwick judgment thousands have successfully won claims including at least one case in Worcester in which the case against Lloyds TSB was dismissed and judgment given to the claimant even though the judge was fully aware of the Berwick decision. In similar cases most judges across the country have thrown the bank’s case out and awarded to the complainant.

2. Can Kevin Berwick still appeal to the ombudsman?

We understand that the ombudsman has discretionary jurisdiction to adjudicate on financial complaints from consumers after legal proceedings have been issued.


The following information is taken from Ombudsman news - issue 32 - October 2003
“Insurance firms occasionally try to insist that we cannot look at complaints about underwriting matters, or where legal proceedings have been issued. These misconceptions are a legacy from the past. The Terms of Reference of one of our predecessors, the Insurance Ombudsman Bureau, precluded such cases. However, the FSA rules give us wider powers and such cases are not outside our jurisdiction. They are, however, among the types of cases that we can, under the rules, decline to deal with”.


3. About the ConsumerActionGroup

The ConsumerActionGroup is a free-to-use, not-for-profit consumer rights organisation with over 146,000 members and staffed by a team of unpaid volunteers (this includes the founders of the group). It was launched in January 2006 by Marc Gander, the legal specialist, and Dave Smith for IT.

The group has been a leader in the campaign against bank charges and its style and materials have been a key influence on most other bank charges campaigns; and its campaigners have appeared as key players across the national broadcast and print media.

Its voluntary members survey indicates more than 7500 people have recovered over £11million so far. We believe that the survey represents only about 35% of the true figure recovered.

4. About MoneySavingExpert.com

Consumer revenge website MoneySavingExpert.com is a free to use consumer finance help resource. The aim of the site is simple: showing people how to save money on anything and everything and fight back against big companies’ profiteering. Set up four years ago, for just £100, its no advertising, free to use, ethical stance quickly made it the UK’s biggest independent money website according to internet ranking site Alexa.com and number 1 Business and finance site according to Hitwise.

It currently has over 1,300,000 people opted in to receive its weekly Martin’s money tips e-mail, and nearly 3,000,000 unique monthly users of the site who visit over 5,000,000 times a month and receives more than 900 million hits per month.

5. About Martin Lewis:
TV Money saving guru Martin Lewis is the creator of MoneySavingExpert.com. He is an ultra specialised journalist; the presenter of ITV1’s Make Me Rich (currently being repeated on ITV2) and regularly presents ITV1’s Tonight with Trevor McDonald. He’s author of the bestselling books The Money Diet & Thrifty Ways for Modern Days, and regular Money Saving Expert/presenter on BBC1’s The One Show, GM TV, ITV1’s Tonight with Trevor McDonald and Radio 2’s Jeremy Vine Show amongst others. Martin created and owns MoneySavingExpert.com (picture available on request).

6. About the Govan Law Centre

The Govan law centre is a Glasgow based independent, charitable community controlled law centre operating in Scotland.

...

[BankFodder]

Having said all that, here's one claimaint who didn't even turn up at court to get his own money.

He lost, of course.

Claimants must be properly prepared and must be bothered to go to court if it comes to a hearing.

BBC NEWS | Business | Lloyds wins second charges case

[jshtr3]

Will £100,000+ cover it all. How much does a trial in high court cost? Are you still looking for donations?

[nicsussex]

Powerful stuff and a great riposte to Lloyds in particular - let's hope this is everywhere in the morning

[carter56]

thats spurred me on and its blown away all my doubts so cant wait for my final showdown with barclays
well done for giving us the information in an easy to read format. not too much technical jargon - great stuff
linda

[elsinore]

A great, collaborative effort, which demonstrates what CAG, in a very short time, has been able to aspire to.

Already a big player in the field of consumer rights.

Els

[curlychic]

Excellent stuff !

Bring it on ....

XxXxX

[paulsuebank]

Originally Posted by BankFodder

Having said all that, here's one claimaint who didn't even turn up at court to get his own money.

He lost, of course.

Claimants must be properly prepared and must be bothered to go to court if it comes to a hearing.

BBC NEWS | Business | Lloyds wins second charges case

It would be helpful to members if could learn what was wrong in the particulars of claim (POC) for the judge to dismiss them? (Maybe I've got something similar in my particualrs of claim)

[GaryH]

The main reason was that he did'nt turn up, or presumably didn't submit a bundle either.

[glad]

God I hope so as both my cases are at Lancaster County Court!!!!!I'll need all the help I can get -let's hope I don't get that judge.
Glad

[Rhino69]

This is good news, but Walter Merricks, Chief Ombudsman needs to step in more forcefully against the banks.

Why have the banks, etc, not been charged with contempt for their deliberate procrastination and peremptory actions and continued failure to show up in courts, wasting the courts time?

[paulsuebank]

Originally Posted by GaryH

The main reason was that he did'nt turn up, or presumably didn't submit a bundle either.

excerpt form article by BBC news
(full article here) BBC NEWS | Business | Lloyds wins second charges case

"Judge Forrester, who heard the case, said: "It is ordered that the particulars of claim are struck out as disclosing no reasonable grounds for bringing the claim set out as a coherent set of facts, which if true, disclose a legally recognisable claim against the defendant."

This is what I understood to be the main reasons as this excerpt from article states. I'm just trying to find out what was wrong with his POC.
Cheers Paul

[GaryH]

Don't know - but at that stage if the claimant had turned up or even just submitted a decent witness statement then I doubt he would have been struck out. If the POC are not adequate then the court would usually order you to replace or elaberate on them at the time of transfer.

[pward33]

The ConsumerActionGroup also reports that since the Berwick decision there’s already been at least one Lloyds TSB case in Worcester in which a judgment was given to the claimant even though the judge was fully aware of the Berwick decision.

Interesting; is there a thread on this case? I'd not heard about it but it sounds like good news.