First victory to Lloyds

[gws7033]

I agree entirely with the comments made here however, what i would be concerned about is if i had a claim going through in Birmingham allocated to DJ Cooke. He has now shown his hand and he is clearly Defendant friendly. He is the Bank Charge Judge in Birmingham and it is a fact that he is allocated all the Bank Charge claims and he block hears them........just like Kevs.....Therefore, we all now know what his Judgment is likely to be based on the Pleadings and Trial Bundle copied from this site. The question is how many will reach DJ Cooke's court room from now on and suffer the same fate..... I am NOT saying this is the death knell far from it but what about next weeks cases before JUDGE COOKE??????

[nettyg]

birmingham district court too - boy am i glad i got my 6.5k back a couple of months ago before they started with all this dispensing of the aq etc!! i've been reading the lloyds forum - lats, you think this one's on meltdown - i think that one's on fire!!! about 300 peeps viewing!!

[curlychic]

Oh dear ... this is a bit of a blow

 

 

After reading the entire thread though, it would seem that the Claimant was not very well prepared and clearly couldnt have followed the thorough directions offered by CAG.

 

I can only hope that people will understand the importance of good preparation and sticking to each and every step of the tried and tested route.

 

It's time to buckle up and not loose the path, which leads to a

successful claim.

 

[sash050677]

hi, i have received an allocation questionaire to fill in, as the bank hsbc has denied all charges and put a defence that there charges are all not default charges and is defending all...

 

now i need to pay another £100, for the allocation questionaire on top of my 120£ paid for filling the case... the bank stopped the £120 cheque and the case was frozen for 2 wks as i didnt know that and i had money in the bank.....

i dunno whats next they will be upto

[thetenter]

Oh dear ... this is a bit of a blow

 

 

 

After reading the entire thread though, it would seem that the Claimant was not very well prepared and clearly couldnt have followed the thorough directions offered by CAG.

 

I can only hope that people will understand the importance of good preparation and sticking to each and every step of the tried and tested route.

 

It's time to buckle up and not loose the path, which leads to a

successful claim.

 

 

Depends on which Claimant you are referring to.The CAG member Claimant was well prepared unfortunately the judge does not appear to live in the real world.

[H H Hrvatski]

well why did he loose then?

 

Having looked through the judgment, it appears that the contention is simple - that the charges cannot be penalty charges simply because there has been no breach of contract to be penalised in the first place. It then follows that the charges are simply agreed fees for extra services which the bank provides to its customers. This is a very poor attempt at cloaking penalties; the "services" are provided without the customer's consent, and furthermore their use is not encouraged by the bank. The judge makes a clear distinction between the OFT credit card ruling, an area where contracts routinely contain conditions prohibiting exceeding limits, missing payments etc (thus making the charges automatically penalty charges rather than agreed fees etc) and this bank case, where there is nothing in the terms and conditions of the contract with the bank to say "You must not go overdrawn! You must not allow DDs to bounce!" etc. This is nonsense, for the simple reason that almost all correspondence from banks after a breach (or, sorry, after a "use of an extra service which the bank provides on your behalf for a fee without notifying you") - the famous £30 letter - contains some kind of request not to do it again, rather than a sign-off along the lines of "We hope you found this service useful, please keep bouncing DDs and going overdrawn if it helps you out!" or somesuch. I would contend that just that wording alone would be enough to drop the cloak and show that there was indeed an implied term in the contract stating that going overdrawn without authority was indeed a breach, and *not* simply a pre-agreed extension of the bank's services and one which they were within their rights to charge for.

 

The later part of the judgment is pure fantasy stuff - the judge refused to allow the claimant to use any evidence whatsoever that the banks were charging vastly more than it actually cost them to carry out these "services" on their customers' behalf, and instead began working using a model of the banks' profitability in general, relying on a frankly misguided notion that not only was it perfectly acceptable for banks to subsidise wealthy customers by charging poorer ones, but that this is apparently in fact the only way banks can make money at all, and that this is how and why they are able to provide all those call centres, cash machines etc. At one point, the judge actually lays out what he understands to be the way which banks can break even - to get a balance of customers who pay (willingly) for being graciously allowed the use of extra services like unauthorised overdrafts, and customers who don't want all those extras and just keep their accounts in credit. On this basis, the banks are free to charge precisely whatever they like, because the charges cannot be unreasonable since they're the only thing keeping a beneficial business afloat. This is an entirely absurd and wholly indefensible position and would quickly have fallen apart under closer scrutiny. I refer back to the letter I mention above; surely, if these services were no more than a lifeline of income for the bank rather than any kind of penalty, they would positively be encouraging customers to take up these services, rather than warning them not to keep issuing cheques etc. ALL of this would stop being an issue as soon as the banks release information regarding how much it actually costs to do this stuff, and how much of their income was derived from these charges as opposed to interest on capital held, investments etc. That would be admissible as evidence of the charges' reasonableness (or lack of) and render this entire line of argument redundant.

 

I find the judges' reasoning extremely flawed on both of those grounds and, while I've no idea what would happen during an appeal, I think those would be good lines of argument for anyone stuck in that situation to fire back should a similarly loopy judge start giving the questions they gave Kev.

[dubliner10]

AAAAAAAGGGGHHHHH

 

 

Sorry...

People need to read the details of the news properly. I feel really sorry for Kev.

There were TWO claims judged in this case. The 1st 'Haughton' was NOT prepared.

The 2nd Kev WAS prepared and the judge called him a "model litigant'. I think the problems we need to address are further than making sure that we have the right paperwork in the right order. We need a rebuttle to the judges contention that the charges are not related to breach of contract and are proportionate.

 

Sorry for the shouting but the chinese whisper effect is driving me nuts.

[fifixx]

HELP...

Brain is full

will come back tomorrow to top up!

[BURDIE]

Hi

 

I am shocked by today's ruling and work as a direct debit co-ordinator for a large electrcity company. And know how much work is involved never mind the minimal cost implications. To deal with one account alone i would say that the process of "servicing" the account is approx a 20 minute job that includes bouncing the payment on the account, contacting a customer 3 times by phone, if you cannot get in touch a letter most of which is done in no time at all. That does not justify the cost for the administration and also any cost to the bank which correct me if i am wrong would be very little.

 

I too have a court case looming and eager to know anything to do with thoughts etc. i would also offer my time should they at some point need someone to explain how the process works, however they may not use the same finance system but the tasks involved would all be the same.

 

Good luck to you all kindest regards burdie

[WayneBrannan]

Guys,

 

Reading this judgment in full has really upset me. The Judge seems to have made a very careful observation and looking at his argument, I'm finding it difficult to disagree. Perhaps, in relation to HSBC and other defendants, it will rely entirely on whether those Banks' Terms & Conditions contractually obliged you to have sufficient funds in your account or contractually obliged you not go over your overdraft limit. Surely, if that was the case, then they charges can be construed as 'penalties' and therefore 'unfair' under the various Acts & Caselaw we've all been referring to?

[H H Hrvatski]

AAAAAAAGGGGHHHHH

 

 

Sorry...

People need to read the details of the news properly. I feel really sorry for Kev.

There were TWO claims judged in this case. The 1st 'Haughton' was NOT prepared.

The 2nd Kev WAS prepared and the judge called him a "model litigant'. I think the problems we need to address are further than making sure that we have the right paperwork in the right order. We need a rebuttle to the judges contention that the charges are not related to breach of contract and are proportionate.

 

Sorry for the shouting but the chinese whisper effect is driving me nuts.

 

I quite agree. The above are some suggested lines of rebuttal to the judge's arguments. Kev couldn't have been any better prepared in terms of his bundle and his homework, and it's really unfortunate that too many people are skim-reading the news report followed by the judgment and not distinguishing between the two claimants.

 

However (and this is in no way a dig at you Kev), he obviously wasn't completely prepared (and who would be?) for the grilling by the judge, because from reading the judgment it was his ready acceptance of the charges not being penalties for breach which set the judge off on this daffy train of thought. Kev was then backed into a bit of a corner, forced to try and argue about the charges being unreasonable rather than flat-out unlawful and the judge was having none of it, simply because there isn't any admissible hard evidence (other than common sense) that the charges ARE unreasonable.

 

Still, Kev did everything else right, including seeking proper help as soon as he got the judgment in draft and getting a proper response in. There was a failure to use the "that's utter [edit]" defence against the judge's claim that the only way banks stay in business is by charging some customers extra, but I don't think there's very much he or Tom Brennan could do to change a mistaken mind once it was made up, so it probably wouldn't have made any difference.

[thefuture]

Arrrrrrrrh, panic is setting in:o , my 28 days is up on 19th of this month, got to let off steam. So how many of us think this will make the sols offer less but earlier in the hope that we'll all be worried as hell that it'll be us next, afterall we've all been so confident that we'll get all our money back but no matter how many people say "don't worry" we were never completely cetain before but now!!!! omg what if i get nothing if i take it all the way?!!! Be interesting to see how many offers come in over the next few days loads or none, banks could play it either way, do i stand firm in my belief that i'll win, or take what i can get and run!!!! That's if they offer anything at all.

 

My account was opened years ago about 1989, then changed to joint account can't remember when I've got no idea type of account (except that it's a current acc with chq card) or terms and conditions, or conditions of overdraft, had mad clear out about a year ago and as had no overdraft facilty at that point i didn't keep any of the documentation so how do i go about finding out what the terms of the overdraft were, without the bank thinking i'm running scared?

 

ok some steam let off now but still really really worried. One small consolation i'm not with Lloyds TSB (sorry Lloyds TSB customers)

[Jess68]

I have just heard a broadcast on my local radio that a judge has found for the defense stating that bank charges are part of the service. It was a case in Birmingham. Has anyone else heard it?

 

Thanks for moving this here, was a flying visit and just wanted to see what had happened as i only caught the end of the radio news... good luck with the appeal

[scott150663]

LLoyds did fax the court with a offer of full payment

[BankFodder]

Lloyds victory in Birmingham

 

It is important to get this in perspective.

 

This judgment was produced by a District Judge in a County Court. This means that the judgment is not binding on any other court or on any other judge in the country. Of course there might be some judges who may be influenced by it and no doubt Lloyds will be encouraged.

 

May people and the press are saying that it is the first time that a case has actually gone before a judge and this first time, a judge has immediately come down in favour of the bank. This is not true. This is not the first case. Many cases have come before the courts in similar circumstances.

 

The bank - as on many occasions before - failed to submit its bundle. It appeared to lose interest. They didn't make the expected offer of settlement. On the day of the hearing, they didn't turn up.

 

This has happened many times before with many banks and credit card companies. In every case previously the judge dismissed the defence and found in favour of the claimant.

 

This case was different because the judge actually conducted a line of questioning. He secured admissions from Kevin on several points and eventually produced a judgment which was in favour of the bank.

 

There is no reason why other judges should follow this and conduct similar cases in a similar way.

 

 

In his judgment the judge admits that really has been provided with insufficient evidence by either of the parties. He agrees that he does not even have a copy of the current account contract.

 

He then goes on to say that, taking a relaxed view of the rules of evidence he decided to find out what the banks T&Cs were for himself. He did this by surfing the Internet. The Judge states that he was unable to discover any further information on the bank's website and was therefore obliged to make a decision based the scant information available to him and on the basis of certain assumptions and inferences which he made during his reasoning.

 

 

Very significantly the judge did not particularly seek to look behind the contract at what really happened in the real world of personal banking. The judge felt that this was not necessary as he felt that the contract worked perfectly well as stated. This means that when he made his decision, it was based purely on the written contractual terms as Lloyds bank claim them to be.

 

 

A particular problem with this in my view is that by accepting without question the bank's interpretation of the current account contract the judge opens the door to any organisation to get round the law of penalty charges merely be producing a document which describes them as a "service".

 

The judge did not discuss the fact that for over one hundred years many senior judges have recognised that parties do try do circumvent penalty charge law by cloaking their penalties as services. Even the OFT in their April 2006 report specifically warned banks against the practice of disguising penalties as services.

Despite this, many of the banks have done exactly this and this Birmingham Judge appears to condone the practice.

 

A particular weakness of the judgment is that it ignores the intended effect of consumer legislation such as UTCCR 1999. Consumer legislation generally is intended to imply terms into contracts in order to redress the balance between greatly unequal bargain partners - the banks one hand, and the consumer on the other. The judge appears to have applied very strict business principles. He appears not at all to considered the inequality of the bargaining parties which is such an important aspect of modern Contract Law.

 

If this judge's ruling is allowed to stand or is followed by other County Court judges then it will render UTCCR and other consumer legislation completely useless because any powerful organisation will be able to avoid it simply by having the right wording in their T&Cs.

 

If for only this reason I do not think that the judgment in Berwick v lloyds will have any lasting effect.

 

What should you do right now?

 

I think that the clear lesson here is that claimants should start taking their claims rather more seriously then they have so far.

 

Claims need proper preparation and ordinary litigants in person need to let other know that their claims are going to court.

 

This victory by Lloyds is discouraging but there is no reason yet to suggest that people should not stop claiming their money back.

 

Just start taking it seriously and prepare in good time.

 

We've said it often before - now here's the proof.

[Ollie-Bollie]

Does this set the precedent we have all feared???

[dubliner10]

Truly HH you have spoken wisely.

Now I'm going to have a Jameson and forget about my court bundle until tomorrow, when I'm sure the pain will continue.

 

Take care all and keep your chins up:)

[jonni2bad]

Some explanation here....

 

http://www.consumeractiongroup.co.uk/forum/bank-charges-print/90386-banks-win-accident.html

[cala99]

Bankfodder - are you going to be making a comment on the details? What should we expect in the future......? Any ideas?

[nicsussex]

We've said it often before - now here's the proof.

 

Couldn't agree more

[Rameses]

Basically, they are not illegal charges, stop asking for them back. In a nutshell, they must now be paid.

 

Likely the Nat West hearing will reach a similar decision.

[m4rtin]

are we able to get hold of the terms and cinditions at all? ive spent ages now trying to find them online and there is simply nothing there. the "£30 letter" doesnt say the charges are a penalty, but in the wording it never actually says they are making charges its very well worded to get around the fact.

 

think i may go in the branch tomorrow and request the t&c's. surely they have to do this legally

[GuidoT]

Some perspective here:

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/90426-lloyds-victory-birmingham.html

[noobrider]

having read the actual judgement a lot of it centres around the fact that there was no breach of contract, however I think we are all missing a fundamental part of this claim....Lloyds never submitted a court bundle and the Litigant did.....surely he should have claimed for a judgement due to the breach of a court order.

 

Anyway Martin Lewis is offering his services financially etc for an appeal so he should win anyway in the end.

[Guest ChloeJane]

Paul,

 

In some ways yes Kevin was not fully prepared - 2 questions were clearly not ones expected.

 

Yes you are wrong if in fact you write a cheque with no known money in the account - however the judge has also contradicted himself in stating that at no stage are you to know what amounts are in your account....20 - 21.

 

Yes you are wrong if in fact you write a cheque on the basis of a third party cheque not being cleared funds - as these were not yours to yet promise to another.

 

A cheque for example or a Direct Debit or standing order is in fact an agreement or gaurantee as a promise to pay - the arguement was and should have been that this was not in dispute - the cost of the charges were.

 

The Judge has stated there is not contractual agreement - however this is flawed as judgement as there is. The arguement was always about the cost of the charges, not that A CHARGE - was in fact fair, merely it had to be proportionate. Point 31 - yet did not require the Bank in their defence or through the process, to have to disclose their fees, so Kevin did not stand a chance at this point as what did he have to refer to?

 

 

While I have no doubt that Kevin was well prepared, no one could have been prepared for a judge that was to have pre conceived the whole thing and done his own research with his own theory.To argue at the level with a high level of legal arguement that was sought, it was an unfair playing field.

 

The whole point is, that it is not arguable that a fee is due for a service or for the tasks, it is the amount of the fees that are being argued, which the judge failed to note.

 

I have written to Kevin and agreed he has a great appeal - however again it goes back to - this is a singular case and one judge.

 

CJ