Court claim from Lloyds TSB - Advice needed please.

[banker_rhymes_with]

Hello Joan!

 

If it were me, I'd Appeal.

 

This is yet another example of the Litigant in Person being at a severe disadvantage compared to a bank who can afford to instruct Counsel.

 

You did well, but the institutional odds were heavily stacked against you simply because you were not represented by a professional Barrister.

 

All of your points about the crabby copy agreement were, and remain, valid.

 

The cr*p about: this was standard industry practice and was accepted as such was just offensive.

 

This was just another example of how the banks can force the Court to accept 3rd rate evidence just because they have paid for a Barrister to make this rubbish sound 1st rate (backed up by a tame banker willing to swear himself senseless to convince the Judge that their evidence would've been perfect had they had the original copies of it).

 

This is a complete disgrace.

 

I would Appeal, but an Appeal would mean going through this all again. However, until more people challenge such Judgments, the situation will get worse and worse each time the banks get away with this.

 

However, one strong Appeal could turn the tables on them, as it could potentially set a precedent that will stop such nonsense. For such an Appeal to stand any chance, the Appellant must secure the services of a highly competent Barrister to handle it, as I think you will all now agree.

 

The Appellant must also be one mad, bad and determined b*gger not in the slightest bit phased about taking these bankers on.

 

 

Cheers,

BRW

[banker_rhymes_with]

Hello Folks!

 

Sadly, the Judiciary and the Court system favours the banks.

 

However, it is important that people do not give in just because the above is true.

 

There is no doubt in my mind that the banks are exploiting the way the system favour them, and are more than happy to rely on copy documents to cover up their many failings.

 

A copy is a copy, so it will always be near impossible to prove conclusively what was, or what was not, present.

 

The banks should have a problem with this. Unfortunately, the Courts can and do let them off the hook on a very regular basis.

 

Every time the banks get away with bringing in a copy, the harder it gets to break this stranglehold that is gradually starting to tighten.

 

Let's go back a few steps...

 

The Consumer Credit Act 1974 made it clear what lenders had to do, and made it clear that the Prescribed Terms were very important. That was because they represent the core cost of the proposed Debt.

 

An Agreement (pre-CCA 2006) just needed to be a piece of paper with the key details, the prescribed terms and a signature box or two. What could be hard about that?

 

Well, the lenders hated this, because they knew the Prescribed Terms were something they would rather people didn't see.

 

So, over the years, they have done their utmost to hide them from sight.

 

You name it, they've done it:

 

(1) They've left them off.

 

(2) They've made them small.

 

(3) They've pushed them to another Document.

 

(4) They've pushed them to the rear of Application Forms.

 

(5) They've buried them in amongst lots of insignificant Terms just to hide them.

 

Likewise, over the years, they have made almost constant changes to both the way Prescribed Terms have been stated, and to the myriad of insignificant other Terms that they have loaded to cover their backsides on almost any issue you can imagine.

 

I have folders full of letters from banks telling me about changes to Card/Loan Terms, confirming the Terms have been constantly and relentlessly changing over the years.

 

It is quite clear the banks did not come up with a single set of Terms in 1974, and then simply copied them again and again to the back of Application Forms.

 

Remember, the banks have also been keen to find ever more clever and productive ways to tout their nasty Cards and Loans, so have produced a myriad of cheap Application Forms and Flyers, many of which looked more like Adverts than Legal Documents.

 

How were these produced?

 

Well, they were all Printed on Commercial Printing Presses...millions and millions of them, in millions of different shapes, colours and styles.

 

Add the banker's desire to hide the Prescribed Terms to the enormous task of producing so many copies in so many styles, and it is inevitable that a significant percentage will be suspect.

 

Just to get an idea from someone's head onto paper can produce mistakes.

 

But once you follow the workflow from an idea to a Commercial Printing Run, and you will find there are dozens of opportunities for errors and omissions to appear. Getting the idea from head to Press is not automatic, and it is not problem free, quite the reverse. This is why Design Firms with a keen attention to detail are highly sought after...not to mention Printing Presses who maintain high standards.

 

When it comes to Design and Printing, the following applies:

 

Your can have any of the following...

 

(A) Fast.

 

(B) Good.

 

(C) Cheap.

 

...but you can only pick two!

 

Straight away, you can see a problem, because banks would always want bulk items at a low cost. Something has to give.

 

On CAG, we have seen Agreements with the Prescribed Terms missing, mistated or added later to make a copy look compliant.

 

In reality, I know of at least one case where the bankers have stated the Prescribed Terms were on the rear of an Application Form, and yet when the Original was finally produced in Court, they were not on the rear as the bank had been claiming.

 

If one such Agreement exists, there will be others. Many others.

 

From my own files, I have at least one Original Credit Card Carrier that has no Terms on it...which blows the Rankine Judgment straight out of the water that the Card Carrier is an Executed Copy of an Agreement.

 

If one such Card Carrier exists, there will be others. Many others. Thousands in fact, as it was Printed on a Press and in bulk.

 

The problem with copy documents is you can't inspect the original. The person presenting the copy should therefore be at a disadvantage.

 

Instead, we have a growing situation where the Courts' are actually putting banks into an advantageous situation because they have a copy and not the real thing.

 

A copy can be whatever a banker wants it to be.

 

Banks know and love this aspect, and are taking advantage of the Courts' absurd flexibility over what should be a very clear issue and weakness.

 

The opportunities for errors when printing documents are legion. The bank can make mistakes, accidental or intentional, the Design Firm can make mistakes, the Printing Press can make mistakes, the bank staff inspecting the completed Press Run can make mistakes. One Press Run can differ to the next if, say, the Press neglected to print anything on the reverse (or were told by the bank not to print something on the reverse for 80% of the Job...so long as they keep a copy of one with the Terms, who will be any the wiser?).

 

In my view, it is therefore wholly unacceptable for the Courts to accept the word of a banker without any supporting evidence to lend weight that what they say was the case, actually was the case.

 

The Litigant in Person (LiP) is at a severe disadvantage, as the Original Agreement would've been returned to the bank, so almost no LiPs will have an Original document.

 

The banks have them all...or should have them all.

 

The only thing a LiP may have is a copy of the Agreement that they made at the time (as I did). But how many people would copy the rear of a document if it was blank? Few would even copy the rear of it even when it did have a sea of tiny terms.

 

It's therefore hard to stand up as a LiP to swear that there was nothing on the back, as almost all of us just do not know.

 

Likewise, it should be hard for a banker to stand up and swear what was on the back, unless they can provide evidence that they kept a complete Audit Log to track the Document all the way from Production, to despatch, to return, to scanning, to destruction and to track the Archive.

 

Given that it is easier to keep the real thing than to destroy it and replace it with a Document Management System, it seems clear enough to me that no banker should be allowed to present a copy unless they can demonstrate that they took care of the copy and can show where it came from. Even then, it is not the original, so should not be given 100% weight as evidence.

 

Sadly, the Courts are all too quick to hear a banker wanting to swear something, and they accept it...without anything of merit to support that oath.

 

This is absurd when you pause to reflect on the catastrophic mess the banks have left this Country in, and the numerous reports of banking errors, lies and downright dishonesty that contributed towards the mess.

 

The point of writing this is to urge people not to give in, keep fighting back, and keep questioning the validity of copy documents presented by banks.

 

Cheers,

BRW

Edited April 16, 2009 by banker_rhymes_with
Can't Spell or Type

[banker_rhymes_with]

Hello Pete!

 

So, seriously, what do we do?

 

Firstly, sorry Joan if this is cluttering up your Thread, my Post was to try and help others to see that they must still fight on regardless.

 

What to do is an issue.

 

I think it needs a CAG Thread to discuss it, with the aim to create a short section that can be added to a Defence when faced with a copy Agreement that looks suspect.

 

Obviously the usual CPR PD 16 7.3 and The Civil Evidence Act 1995, but something that goes beyond that to explain why banks cannot simply be allowed to swear something was so, without backing that oath up.

 

I'll give that some thought, and may start a Thread.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Underdog13!

 

Could the original print company be called as a witness in cases such as these? If they have records from the time, that would prove what exactly was on the rear of the original application.

To be honest, it would not prove anything, and the banks won't ever produce this evidence unless it was in their own favour.

 

I suspect they do have some originals, but prefer to rely on copies otherwise if they produced some originals, Judges might get used to that and ask for them every time!

 

But a Printing Press can only show the Physical Evidence of the Job, such as the Artwork Brief, any Artwork Hard Copies, the Films and the Metal Printing Plates used to do the Press Run. Many Presses are not that organised and tend to concentrate on keeping the Presses rolling, not worrying about Jobs they did in 1998. Chances are they binned anything after a few years to make space, and any Accounting Records after 6 Years.

 

In any event, that won't say for sure if they actually printed both sides! Only what rolled off the Press will confirm that and, even then, it would have to be the very bit that they sent you, not an example from, say, Printing Batch 87 from a run of 1,000 batches when yours was, say, Batch 847.

 

Who knows if Batch 847 had both sides Printed, who knows if the Bank told the Press to print 10 sheets with Terms on the back, and the rest with no Terms.

 

The banks are holding all the Aces, as they will usually end up with any Original Agreements that went ahead, so can destroy the Originals that don't happen to be compliant...and pluck a copy for the Court and say: "Oh yes, of course this is what would've been on the back, we're a bank and can do no wrong."

 

The fact that one bank at the very least has been caught out telling fibs, and we have seen Agreements with useless Prescribed Terms and/or no Prescribed Terms confirms the banks cannot say this never happens.

 

Even if someone finds a blank Agreement with no Terms on the bank, the bankers will just say that must be a mistake, we'd never send them out like that. They win every time. Only the Original would show what was really there, but the banks seem amazingly reluctant to produce them in Court.

 

Fair enough, if they want to produce copies, then at the very least, they should support them with independently audited Document Management Systems, with lots of Signatures tracking the whole process from from to back, something like this:

 

Document Management, Document Imaging, Document Scanning | Archival

 

The easy solution is to say they have destroyed the lot, as that's what banks do. Much better for them to say that, than to start pulling out the real things only for everyone to see that many are not quite what they claim.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Mr-JOA!

 

It all comes down to this 'balance of probability' thing. In civil cases, the judge can base his decision on what he thinks was 'probably' the case, ie. the Claimant does not have to conclusively prove their case, as would a prosecutor in a criminal trial.

That is the problem, but therein may lie the solution if we can craft a strategy to counter that. The key is to throw in doubt to upset the balance of probabilities.

 

I regret I don't have that solution yet, but that doesn't mean one cannot be found.

 

I think the key will be to find examples where banks have claimed something that was later found to be something else.

 

Mention the work that has gone into modern ISO rated Document Management Systems that have been set-up with the specific intention of allowing Electronic Copies to be legally admissible in Court. Why do responsible business go to all of this trouble? Because they know how vital it is to be able to prove a copy...unlike banks!

 

IOW, show what a modern system now has to achieve, and show what responsible groups are doing to ensure their Electronic Archives are admissible as valid Hearsay Evidence and fully compliant with The Civil Evidence Act 1995.

 

The overall aim being to show a Judge what others are doing to ensure their Hearsay Evidence is backed up by detailed and fully audited logs.

 

Then show the Judge how bankers can and do get it wrong, despite claiming something was watertight until the real evidence emerged.

 

Then compare all of that with a bankers sworn statement that a crabby copy of a set of terms copied god knows when, by god knows who, from god knows which original document is what would've been on the back of the crabby copy of an Application Form (copied god knows when, by god knows who!).

 

To ram the point home, a quick summary of the printing process would be useful, to show that it is not accurate and relies heavily on proof-reading and audit logs if a Print is to come out as required. Just because one example with Terms on the back exists, does not mean they were all like that. It is highly unlikely they were all printed at once, because the numbers they printed are so large.

 

For example, I have detailed experience of a design workflow that is fully audited. Any work that has been produced going back 15+ years is fully logged, and every step has been signed-off. Every brief, every amendment, every transmission via ISDN, FTP or email, everything, has been carefully logged and everything is backed up by signatures linked to Job Numbers and Revision Numbers.

 

This protects the business from any later accusation that an error that made it to Press was their fault. Clients and Printing Presses can and do make huge mistakes, and they will soon point fingers back if they can escape a wasted printing cost that could easily run into hundreds of thousands of pounds. For example, if a Press ran a job based on an earlier design by accident, or one of their staff made an unauthorised amendment without telling anyone, or their Print Production Staff only printed one side by accident etc.

 

By comparison, what have the banks got?

 

A crabby copy and a tame banker who is happy to stand up and say, under oath: "yep, that's what would've been there, I swear it."

 

Judges will accept that unless doubt can be thrown in. The key is to show that major doubts can be thrown into the mix.

 

I'm only sorry this wasn't discussed before Joan went into Court. I do appreciate it is now a fat lot of use!

 

Cheers,

BRW