Lloyds victory in Birmingham - in perspective

[Kenny Haymes]

Chrisseio,

 

http://forums.moneysavingexpert. com/....html?t=466867

 

I have just seen the thread in MoneySavingExpert to which you referred.

For those that missed it, 3 persons (penniless, ??, daveglove) with court case upcoming in Hull court received today letters from the court that their cases are about to be struck out without a hearing due to the fact that (using my own approximate wording from memory) "following the Berwick verdict your claim has no realistic prospect of success".

 

It appears that at least 2 of the 3 bear a similarity with Kevin in that their bundles sent to court omitted T&C (probably the 3rd person too). Quite possibly CAG members due in Hull court will also receive similar letters from tomorrow onwards.

 

Martin Lewis of MoneySavingExpert has gone into overdrive as shown by the paste below. Unfortunate that just as I was making a second cut-and-paste that site went down for scheduled maintenance.

 

In another post soon after, Martin mentioned he was liaising with CAG leadership (also going into overdrive) to discuss countermeasures. CAG leadership will no doubt make an announcement soon to dispel uncertainties.

 

Post from Martin Lewis, MoneySavingExpert:

 

Specific answer to the penniless case.

 

This is quite a significant letter - I could churlishly suggest that the judge has seen Berwick but not actually read the judgement carefully. Unfortunately I think you may be one of those people at a significant junction in the whole thing.

 

There are a few things we could do with knowing.

 

1. Is this at the judges own discretion or is it at the behest of the bank's solicitors.

 

The main way to do that is to call the clerk of the court and ask. This really needs to be you or your legal representative. If you could call up and politely ask the clerk " Did the bank's solicitors ask for the judgement to be made or is it purely the judges decision - has there been any correspondence to the solicitors of the bank or would you send any copy to me."

 

It's also worth finding out if this happened to you or other cases are listed in a similar way on Tuesday. You could ask the clerk that.

 

2. What you need to do.

 

There are two options

 

a You need to appear in court on Tuesday properly prepared to argue the legality of this with the terms and conditions (the Consumeractiongroup.co.uk are putting together a pack on this).

 

b. You need to ask for more time to prepare as this is a substantial point of law. I am going to ask a solicitor friend to draft a wee 'more time to prepare note for you' in case you decide that option - which you can then send to the court - though as always there is no guarantee it will work (and no legal responsbility taken from it, it's just a suggested form of words).

 

In terms of a defence I am writing to other people involved in the fighting fund to see what the view is on whether this is something we can help provide a solicitor for and whether it is a good juncture to do that to stem the flow.

 

I am sorry I can't give you anything more concrete - and I can't make any promises whatsoever (alays plan for the worst and hope for the best), but your case seems to have gone to the Court at an 'interesting' time.

 

Martin

 

 

Martin Lewis, Money Saving Expert.

Please note, answers don't constitute financial advice, it is based on generalised journalistic research. Always ensure any decision is made with regards to your own individual circumstance.

 

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

 

I tried to PM Bankfodder, Dave, GaryH,

but all 3 mailboxes are overflowing.

I shall email [email protected].

Any Mods who see this, might like to pass on news if appropriate.

 

Anyone due in Hull court, please leave your name on this thread.

 

 

 

Surely, in compliance with Court rules, any such correspondence by the bank's solicitors (if any) with the Judge or the Court, should be automatically copied to the opposing side - and any such breach condemned accordingly - let alone complied with ?

 

" .....or is it at the behest of the bank's solicitors."

 

Did the bank's solicitors ask for the judgement to be made or is it purely the judges decision - has there been any correspondence to the solicitors of the bank or would you send any copy to me."

 

'If' any exists and hasn't been copied to the Claimant by the Defendant bank, then a point should be taken on this to assist in achieving a short delay to allow the Claimant to prepare.

[Castlebest]

There is another set of Judges directions in the HSBC forum but from Kingston County Court, (edit Kingston upon Hull ?)

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71343-when-you-have-filed.html

 

post 269

IT IS ORDERED THAT

 

THIS MATTER BE LISTED ON 4 JULY 2007 AT 3PM TO CONSIDER STRIKING OUT THE CLAIM AS DISCLOSING NO REASONABLE PROSPECT OF SUCCESS IN THE LIGHT OF THE RECENT DECISION OF BERWICK -V- LLOYD TSB

Is Kevin going to the appeal court?, if so this seems a little premature.

pete

[TideTurner]

This is premature at the very least.

 

The message is "don't be complacent", do your homework and make sure you read the forums relevant to you on this site before you make your claim.

 

Tide

[duncan_disorderly]

I have been following these threads closely as there seems to be a worrying development arising from the Birmingham case.

 

I think Lloyds are really trying it on thick with trying to cloak these penalties as service charges......but there might be a chink of light at the end of the tunnel.

 

From a recent template letter sent out by Lloyds TSB trying to justify their so called "service charges":

 

"Like any business, we do make a charge for some of our extra services. When customers don't have enough in their accounts to cover a payment, this always means extra work-abd it has to happen very quickly. We have to agree to make the payment by setting up or increasing an overdraft, or tell customers we can't agree it. We feel it's fair to charge for this service."

 

They are clearly trying to say that they are charging you a service fee as they have to decide whether or not to give you an overdraft or increase any agreed overdraft.

 

First point - surely they can only apply such a charge once. If they refuse the overdraft, surely the paying for that service means that any further payments due from the account will not be paid, as you have already been declined an overdraft. Is it really a service to deny an overdraft 3 times in 1 day and charge for each denial?

 

If they decide to extend your overdraft, will they only extend it by the amount of the 1 transaction and perhaps decide to extend it again later that day if a further item is presented for payment - charging a "service fee" for each decision.

 

Where is the manager's lending discretion? How much can a manager lend without head office involvement? If I appled for an overdraft of my own free accord and was denied, is it likely that I could apply the same day again and have it accepted? I think not. So how can they justify recking up these "service chagres" for basic lending decisions?

 

Anyway, let's assume these service charges are for decisons regarding setting up or increasing an overdraft. So I had a little look at their website again to substantiate how much they charge if I were to call at a branch to apply for and arrange an overdraft.

 

Lloyds TSB - Current Account charges page

 

Guess what?

 

Overdraft charges

 

When you borrow from us

If you decide you need an overdraft or think you might go over your agreed overdraft limit, please contact any Lloyds TSB branch or call us on 0845 3 000 000.

How much we lend depends on our assessment of your circumstances. You must be 18 or over. Overdrafts are repayable in full on demand.

We won't charge a fee for setting up an overdraft. All you pay is interest on the amount you borrow. (my emphasis).

 

So there we have it folks. They do not charge a service fee for arranging or extending an overdraft on request from the customer. Their compensation for such a transaction is the interest on the money you borrowed.

 

So can anyone explain how they can still call these service charges for making a decision regarding an overdraft?

 

And when we have the famous Clause 9.2 from old T's & C's:

 

9.2 If you do use your card to create an overdraft we have not agreed or to exceed an agreed overdraft limit, you have broken the terms of the Account, and you must repay the unagreed amount immediately.

 

If ever there was an example of the cloaking of charges that was frowned upon by the OFT last year - this is it.

 

I wonder has the Ombudsman been involved in any cases since this decision. It would be good to know thir take on this.

[Pliny the Penuriosus]

There is another set of Judges directions in the HSBC forum but from Kingston County Court, (edit Kingston upon Hull ?)

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71343-when-you-have-filed.html

 

post 269

 

IT IS ORDERED THAT

 

THIS MATTER BE LISTED ON 4 JULY 2007 AT 3PM TO CONSIDER STRIKING OUT THE CLAIM AS DISCLOSING NO REASONABLE PROSPECT OF SUCCESS IN THE LIGHT OF THE RECENT DECISION OF BERWICK -V- LLOYD TSB

 

Is Kevin going to the appeal court?, if so this seems a little premature.

 

pete

 

Whatever you do don't panic!

 

This is just a strike out hearing.

 

Now that the cats out of the bag re their previous T's & C's you can argue that you believe the Berwick v Lloyds was bad law in that court failed to examine the underlying reasons for the charges together with their impact. It also relied on Lloyds current T's & C's, obtained by the courts own admission from the internet! when we all know, as should the court, that Lloyds have surreptitiously since these claims started changed the wording on their T's & C's

 

Further that by agreeing to allow their charges to be described as service charges the court was also failing to recognise that companies have always attempted to disguise their penalty charges through the wording of their contracts & the higher courts have, for almost a century, seen beyond this practice & decreed them as an unlawful indemnity.

 

Also a reminder that it’s important to have the relevant case law to hand

I also thinks Tide's idea of notifying the press of each win is a great idea. Lets collect some media email addresses so we can sned them notification. They'll soon realise the banks are losing hand over fist

[Mistermind]

Hull court news update at bottom of posting #198, affecting 20 claimants.

 

Zootscoot on the case!

[Pliny the Penuriosus]

bump again

[jansus]

I agree entirely with the comment about publicity.It has often been said that Judges do not live in the real world - and this is not a critisism but as a layman the obvious question is- if the judge is so sure all the cases due to come up in his court are unlikely to succeed he is indicating that it is a simple point of law that the banks are in the right and all claimants are in the wrong. If this is the case why have there been XXXX cases known to this site alone where the banks have paid up without even defending when they can afford the best legal advice going?

 

Surely he must be aware of this from conversations with his peers?

 

If he feels the banks are correct then why does he not force them to appear in front of him with the proof just for one case to justify his views?

 

Publicity may make him re-think??

 

Jansus:?

 

SORRY DONT KNOW HOW I DID THAT THIS WAS A REPLY TO ANOTHER POST ABOUT PUBLISING WINS_ GOT ON TO WRONG THREAD_ BUT STILL RELEVANT:oops:

[TECHSPEC]

There is another set of Judges directions in the HSBC forum but from Kingston County Court, (edit Kingston upon Hull ?)

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71343-when-you-have-filed.html

 

post 269

 

IT IS ORDERED THAT

 

THIS MATTER BE LISTED ON 4 JULY 2007 AT 3PM TO CONSIDER STRIKING OUT THE CLAIM AS DISCLOSING NO REASONABLE PROSPECT OF SUCCESS IN THE LIGHT OF THE RECENT DECISION OF BERWICK -V- LLOYD TSB

 

Is Kevin going to the appeal court?, if so this seems a little premature.

 

pete

 

Kevin is not going to appeal.

[Mistermind]

New ammunition: http://www.consumeractiongroup.co.uk/forum/show-post/post-879505.html

[TideTurner]

If he feels the banks are correct then why does he not force them to appear in front of him with the proof just for one case to justify his views?

 

Publicity may make him re-think??

 

Jansus:?

 

We are a long way off the banks putting forward an actual argument in front of a Judge, if ever. If my memory serves me correctly, when Jo Bloggs has failed to appear in the past, judgement has gone to the gas company, landlord, bank or whoever has brought the action. I believe Tom Brennan is making a stand partly to put his name in lights. This Judge is doing the same. All publicity is good publicity. Not in this case M'Lud.

 

Kevin is not going to appeal.

 

Is this factual?

[TECHSPEC]

Yes.

 

He is to take is case to the FOS instead.

 

If he had appealed, he would not be allowed to submit new evidence, so the advice was that he was better going to the FOS instead.

[TideTurner]

Sounds like a good strategy,

 

The FOS have been known to drag their heels, but this may be a wake up call.

[TECHSPEC]

Not so sure now. Just read this on their website:-

 

" If you decide to go to court instead, you should be aware that if you lose you will not then be able to bring your complaint to us"

 

Here is where i heared he was not to appeal:-

 

New Bank Charges £100,000 Fighting Fund & Legal News - MoneySavingExpert.com Forums

[Kenny Haymes]

We are a long way off the banks putting forward an actual argument in front of a Judge, if ever. If my memory serves me correctly, when Jo Bloggs has failed to appear in the past, judgement has gone to the gas company, landlord, bank or whoever has brought the action. I believe Tom Brennan is making a stand partly to put his name in lights. This Judge is doing the same. All publicity is good publicity. Not in this case M'Lud.

 

 

Is this factual?

 

" We are a long way off the banks putting forward an actual argument in front of a Judge, if ever."

 

Mmmm, whilst I understand the comment/viewpoint - I would say, with the very greatest of respect - in fact one 'has' - and, if it had succeeded, it would have buried thousands of penalty charge cases - but their very high risk strategy failed - as did their attempt to 'force' a confidential settlement -and since then 'heaven & earth' has been moved by 'them' and various 'friends' within the system, to ensure it does 'not' come out !

 

By 'friends within the system' I mean the civil courts, the criminal courts, the FSA, the London Stock Exchange and the fraud squad ! 'Everything' is 'fully' and 'clearly' documented - please be in no doubt !

 

In all honesty, with your 'hand on your heart', given the potential dire financial repercussions for the banks - do you really expect them, and 'their friends', to fight cleanly ?

 

Hence, as I have posted before, the banks will undoubtedly have their legal minions sifting through all the cases, looking for an ill-prepared and poorly represented case, in the hope they can use that to achieve an eventual higher court success by way of a failed appeal or similar.

[nevos]

Well I wonder who is pulling who's strings especially in Hull. We as consumers must let the concrete continue to fall on our heads from anyone who sees us a revenue stream, be it the Banks ripping people off, the mobile phone companies, all using stealth tactics such as , free banking, free texts etc...Must be that our whole economy is now functioning on this basis. Just add this to all the economic influx of Eastern Europeans, cheap Chinese goods and yes, you got it, the country has gone or is fast going to the dogs.

[Juey]

Hi i am new to this forum, this morning LlTSB have acknowledged my claim i am panicking as i wouldn't know how to start with a court case. could someone please help, should i start to collect my information for my court case now:(

[nevos]

Juey: You need to start your own thread so people can help you. No need to panic at this point.

[Vital Spark]

I agree with you BF I have been prepared to go to court all along. yesterday, by coincidence, I had to go to a county court as a witness and actually saw a court bundle in use. This was a great help to me as a layperson. This was one of many cases heard yesterday and I think the judge must have had a bee in his bonnet about bank charges being reclaimend. I know a couple of other smug people who have never had money problems with the same attitude. We should just all carry on and be prepared to go to court and state our case clearly. I think this judge may rue the day he made this judgement, I think it will come back to haunt him for some time.Hilary

 

All very well for we who are still claiming but what about the poor soul who lost out to Lloyds? Have they any come back?

 

No point in the judge concerend rueing and being haunted, if the folk he judged against are still missing the money Lloyds owe them.

[legalpickle]

I wrote the below letter to District Judge Besford yesterday - regarding the Hull strike out orders - and sent it special delivery to the Court, BBC News & This Is Money.

 

I have read a few people's posts who have said that Kevin Berwick's claim was the one without all the particulars. I did not understand it that way from the Judgement located here - http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_05_07_bank_charge.pdf.

 

I'd appreciate it if any of the more experienced mods or admins can get back to me on this. The letter has been confirmed delivered according to Royal Mail's special delivery checker. The reference number for the one to the court is ZV505043911GB.

 

Dear Judge Besford,

I am writing as with regards to your decision last week to strike out several claims against banks for allegedly unlawful penalty charges. While I am not a legal expert, I am a trainee solicitor and do have some legal knowledge and have been looking into the bank charges for a while. I am also a Claimant against Lloyds TSB Bank PLC and assist others with their cases against banks and financial institutions.

I would much appreciate it if you would look into my arguments for the benefit of these Claimants, and hope you will reconsider your decision.

1. I notice that you refer to the recent judgement by District Judge Cooke in Birmingham Civil Justice Centre. While the case of Mr. Berwick against Lloyds TSB Bank PLC may be relevant to the cases, the case of Mr. Haughton vs. Lloyds TSB Bank PLC is irrelevant as he did not sufficiently particularise the claim.

2. I notice according to the BBC News article, a copy of which I attach, that you state that the Claimants are unlikely to win due to the cases in Birmingham. I feel that this is an unfair argument as the definition of a legal precedent as generally accepted as a ruling by the High Court or Court of Appeals, yet not a County Court claim.

3. Even if the case in Birmingham could be construed as a legal precedent, I feel that it is negligent not to consider other cases that may be able to be construed as legal precedents. I attach articles from the BBC News website about prior strike off orders.

4. In the specific case of Mr. Berwick vs. Lloyds TSB Bank PLC, Mr. Berwick stated that he did not feel he was in breach of contract. Why he did that I cannot say, as I am not Mr. Berwick, however that legal argument is the basis of these cases. I consider that it is breach of contract, as the result is either a bounced cheque / direct debit or overdraft excess fees. A service would be one where the customer had a choice. In these cases the customer has no choice.

5. Lloyds TSB Bank PLC also claim in their defence’s that;

a. The Claimant may at any time apply for an overdraft facility in branch, via telephone or internet banking.

b. The Defendant advises the Claimant in advance of charges being applied to his account.

I wish to argue with these statements which are false.

a. I am aware from personal experience that one may not apply for an overdraft facility if he has applied already within the previous month or his account is with the referrals department, usually in cases of such litigation or disputes.

b. In the event of bounced direct debits or cheques, quite often it is impossible to know when monies are cleared and to plan in advance for them to clear, thus the bank does not give advance notice to the Claimant before they have bounced a direct debit or cheque.

6. The Defendant never intends to show up at the hearings, thus is an abuse of process pursuant to Civil Procedure Rules 3.4(2)(a) as the Defendant is wasting the Judiciary’s time by filing a defence.

I therefore request that you reconsider these cases; this request is made in the public’s best interests. While I have no legal right to demand such as I am not party to these cases, I trust that you as a member of the Judiciary see it fit to act in the best interests of the public.

I am sending a copy of this letter and the attachments to BBC News and This Is Money. I feel that they have an interest in this due to their articles about your order.

I would also much appreciate it if you could kindly forward a copy my letter on to the designated Civil Judge for the Humberside Group – His Honour Judge Roger Thorn, QC.

[nevos]

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable although this could be waived in cases of financial hardship.

 

Posted this at the same time as legalpickle maybe this is not relevant ?

[Kenny Haymes]

Hull court news update at bottom of posting #198, affecting 20 claimants.

 

Zootscoot on the case!

 

From a tactical viewpoint - and downsizing any dangers to the Claimants involved - and in the interests of the 'movement' en bloc - would it not be preferable/advisable for them to 'withdraw' their court claims and in so doing pre-empt any unjust or misguided decision ?

 

Then they, 'very simply', refer their claims to the appropriate Ombudsman, where, I understand, there has been 100% no-quibble refunds todate - because when the refund claims are before the Ombudsman the banks do not want to attempt to explain their charges !

 

In the most highly unlikely event that the Ombudsman route did not prove successful - the claimants 'still' have the option of re-issuing their court actions, as nothing would have been before the court at that time.

 

In the intervening period from their cases being withdrawn from Hull County Court or wherever, and being referred to the Ombudsman, and any unlikely need to return to court - there may well have been some more interesting, and properly just, well publicised court rulings 'in favour of consumer claimants' to which any future Hull claimants can 'then' constructively refer.

 

It was 'inadvisable' for the Berwick case to be appealed - despite the 'permission' so to do - and, far more effectively, it is instead being referred to the Ombudsman.

 

It must be surely the best route 'for all concerned' in these uncertain, if not 'strange' circumstances, in which they find themselves, for them to follow suit ?

 

Good luck !

[Pliny the Penuriosus]

Its a good point Kenny & one that I have been contemplating but it should also be remembered that the Ombudsman has no remit when it comes to recovering interest even that interest which has been imposed directly as a result of the charges

 

This course of action will result in much lower settlement of claims

[Kenny Haymes]

Its a good point Kenny & one that I have been contemplating but it should also be remembered that the Ombudsman has no remit when it comes to recovering interest even that interest which has been imposed directly as a result of the charges

 

This course of action will result in much lower settlement of claims

 

Yes, duly noted - and unfair, in my view that claimants should lose out in that way - howsoever, in the overall game plan it may be worth it - and, when a 'suitable case sets the 'just' consumer precedent - then maybe a smaller claim within the small claims court for the lost interest ?

 

Tactically - I have to say I sincerely believe that a tactical withdrawal and redirect to the Ombudsman in the short term is the most favourable option - at least it would usurp being sucked into still waters - that may run very deep !

[nevos]

If one withdraws a claim can you get the court fee back especially on the grounds that there is no chance or little chance of a fair hearing in Hull for example?