Helping a friend - against LTSB

[ambercain]

Maybe not that expensive for a "litigant in person". Anyway, if there's a fighting fund of £100 000 available to CAG and MSE for a specific related purpose maybe they would delegate/raise the amount for you.

 

I would certainly pledge a few quid for you if a few hundred others did the same and if it was properly administered by this site. A transcript would help you understand exactly what happened (you sound like you're a bit in shock) and would lay the issues out in black and white at leisure.

 

The more I think of this one, the more unjust, incompetent and contradictory the process has been.

 

Contact a moderator (GaryH, livelylad etc) and ask them to peruse your unique thread.

I'm sure they'll find this a delicious challenge!

[PeterAnderson]

Just subscribing

[ambercain]

Maybe find out how much a transcript would cost - hopefully some forum people will know - and take it from there. Maybe PeterAnderson could do a sponsored bagpipe for you and raise what you need!!! I hear he's very good!

[christinajanep]

notlam, that was totally unfair for u to have to go through that today, but i guess atleast you got a fair portion of it back plus 8% interest

[Pen]

Hi Notlam,

The mind boggles trying to figure out what happened today, ie the Judge awarding interest and costs yet determining that the chargers were fair. But in my opinion unless the banks ask for the chargers to be repaid which i don't see them doing i would consider your friends case as another win against LTSB ie chargers 8% interest and court costs. So well done you.

 

It would have been the icing on the cake if your friend had been awarded CI but we know that its becoming increasingly less likely that the courts will award this despite the unfairness of it so in saying that I think your friend should be really proud of what you have achieved today. Congratulations!!

 

Pen

[jansus]

Gosh arent things confusing ??!!

 

As other replies I think you are saying that if your friend had not had the payment the day before they would have ruled for the bank on all the charges? And they would have got nothing?

But as they had had paid the 8% was granted - but not contractural interest (which has always been a point of discussion on this site).

 

I dont understand what is going on, other banks are settling outside court.

 

So back to proving breach of contract and penalties. I am getting a little worried now.

 

Jansus:(

[SusyQ]

I am an intelligent person but all of a sudden having to learn law, even how to speak in a new language (with all of the jargon) and now judges not being on our side scares the s**t out of me (I am currently waiting for my AQ from my local court)

 

I am only claiming the 8% interest on my case but apart from that my case is pretty much for the same amount and now Im scared.

 

I agree with Pen on this notlam - You and your freind still won - maybe not the amount of interest but its still another win against LTSB.

You should be proud of being able to handle yourself in an ambush/barriser situation - I for one would not have been able to!

[amber_ellie]

Well I am with everyone else on this thread. You did remarkably well to get the payout from Lloyds. Under those circumstances in Court yesterday I am amazed at how much you remembered from what was supposed to be just a preliminary hearing. It would seem a case of one hand not knowing what the other hand is doing. Doesn't give some us a lot of confidence when we are just a few days away from our Court cases.

 

I hope you are feeling much brighter this morning. Possibly as said before to find out how much the transcript would cost would be a good thing to inquire about today.

 

Your friend is very lucky to have had you by their side! Give yourself a pat on the back................... .

[notlam]

Still haven't heard from any mod yet but I feel it is important to get this out there.

 

So, further to my earlier report, here follows a more detailed summary, which I hope will forewarn and be of help to others:

 

I have been helping my friend with his claim, which amounted to just over £5,700 (including contractual interest at 29.8%), using the information given on the CAG site.

 

Without meaning to sound dramatic, I am not sure if the following is exactly correct, or in the correct order it was said; there was an awful lot more that was said during the 90 minute proceedings, that I am sure I have probably missed, or I have mis-represented or mis-reported here.

 

I wasn't able to write everything down because I was also trying to listen, gather my thoughts and respond to the Judge's questions and comments. So these are just my own sketchy, personal notes and thoughts from this week and yesterday, in court, as best as I can remember them.

 

04th May 2007 - the court sends a Notice of Allocation to the Small track Claims Hearing, stating "Hearing of the claim will take place at 11:30 on 13 June 2007 ........ and should take no longer than 1 hour. PLEASE NOTE: This is a PROVISIONAL hearing date."

 

29th May 2007 - sent full court bundle (135 pages, including bank's T's & C's) and witness statement.

 

07th June 2007 - sent letter (by fax) to Court requesting application pursuant to Rule 3.4(2)© for defendent's case to be struck out on the grounds no defence documents received by the deadline given.

 

11th June 2007 - on checking his account, Claimant finds that a sum of just over £3,700 has been paid in. No information given about it. Rang court to check that they received my fax and to confirm whether

Provisional Hearing was still scheduled for 13th June. (Told that it was). Also requested permission to accompany Claimant and speak on his behalf (told that I could, but that I could not say anything).

 

12th June 2007 - receive letter from court saying "Before THE PROPER

OFFICER......the hearing of the Small Claim is now priority listed on

Wednesday 13th June 2007 AT A REVISED TIME OF 12:00 NOON AT THIS COURT."

 

13th June 2007 - on arrival at Claimant's house, en route to go to

court, he gave me a letter he had received that morning from defendant's

solicitor, dated 08th June 2007, enclosing a Witness Statement. We

arrived at court at 11:15am. Court usher meets us, informs us the other

party's barrister was there and a "decision would be made today" (which

surprised me because I thought this was only a Provisional Hearing). I

request permission to speak on behalf of Claimant in the court (as already advised to the court office on the phone) . Usher said he had no record of that and, as I am not listed or named as a litigant, this was not normally allowed but that he would check with both the Barrister and the Judge first. He came back and said the Barrister had refused but the Judge had agreed I could speak as lay friend. Claimant could not say anything.

 

- Barrister then introduces herself. Explained that she had come from

London office (blimey!). She informed me that bank had agreed to pay the

charges back plus statutory interest and had already made payment to

Claimant's account. Claimant explained that he had received a payment,

tried to find out what it was for but could get no information from bank

about it. Barrister said she was only there to contest, part of the

claim concerning 29.8% contractual interest and would be citing Halliday

V HBoS plc appeal case which took place on 08 June 2007; gave me a copy

of the findings which showed the appeal would be dismissed. Court usher

then came over to explain how the hearing would go; only I could speak

to the judge, I was not allowed to argue with the judge, only to state

facts, or respond to his questions.

 

- Then we were called into court.

 

- Barrister explained to Judge that defendant had agreed to pay back the

charges plus 8% interest and had already done so, but it denied the

charges were penalties and that it was disputing part of the claim

concerning CI at 29.8%. She said we were arguing that the CI should be

charged on a reciprocal basis and that there was nothing in the contract

to say Claimant could do that. Judge agreed. She cited Halliday v HBoS.

I said I had not prior knowledge to this evidence only received 10

minutes before this hearing.

 

- Judge then calculated that 21.8% of compound interest was the issue

being contested today. Barrister and I agreed. My notes say "conceded

pursuant to contract" but I cant remember what the contex of that meant.

 

- Judge then asked me why Claimant felt he was entitled to CI rate. I

explained that the bank had imposed unlawful penalties contrary to UTCC

1999 and had charged the CI on those. Therefore we were asking for the

CI that the bank had charged on top of the unlawful charges should also

be repaid. This seemed to throw the Barrister, who was expecting us to

maintain the reciprocity argument, which the Judge had already he would

not agree to. I felt totally unpre-pared at that stage as I was not

expecting to be required to put questions to the other side at a

provisional hearing.

 

- Judge asked Barrister if she had a copy of the bank's terms and

conditions. She did not. I said I did and, I believe, I offered to show

them. Think he declined. I then read out clause "9.2 If you do use your

card to create an overdraft we have not agreed to or to exceed an agreed

overdraft limit, you will have broken the terms of the Account and you

must repay the unagreed amount immediately". Judge seemed to me to be dismissive in what I was saying and referred to the Lordsvale case again (I think). Or it might have been the Voller or Zambia case (afraid I cant remember which one).

 

- Judge said since the bank were not disputing the charges he was not,

therefore, here to decide about that issue today but was only concerned

with the CI. I believe I said that since the CI was an integral part of Claimant claim and, therefore, we needed to establish whether the

charges were fair.

 

- I mentioned that we had requested the bank to explain how it's charges

were calculated so that it could be ascertained whether or not the

charges were fair, I mentioned Peter McNamara's interview where he

admitted the charges were penalties and funds generated subsidised free

banking for all it's other customers.

 

- Judge seemed again to dismiss this and then mentioned the recent, well publicised, Birmingham case (which I knew of), and although not binding on him, was helpful. He said something like "we do talk to each other you know". He also mentioned and read out the transcript from another case, which I think was Lordsvale Finance PLC 1996. I said the Birmingham case was just one case compared with many hundreds, if not thousands, where the bank had conceded or lost. I had a two page list of many of these cases but the judge said he did not need to see it but that he was not aware of any cases that had actually been lost in court by the bank. He said he did not agree that the bank had any obligation to reveal how it's charges were calculated and did not need to reveal such commercially sensitive information for a small claims hearing. Bank's commercial affairs are very complicated. He was satisfied that LTSB charge a rate comparable with other banks and therefore these were not unfair.

 

- Judge said he did not see that there had been any breach. He did not

see why the bank had conceded and agreed to repay the charges. When Claimant went overdrawn outside the scope of the contract a new contract

was automatically implied by payment of the cheque or direct debit. (at

this point I was feeling unprepared and intimidated, especially as these

statements or counter-arguments to the Claimant's claim were not being

presented as defence by the barrister but seemed to me to be only by the judge. I was unsure of

my ground as to how far I could disagree with what the judge was saying.

When I did say anything he seemed to just scoff, change direction or counter it. Ocassionally he did ask the defence but seemed to answer his own question for her. Really wish I could hear the transcript to be certain of what I thought I was hearing.

 

- I asked if I, and the Claimant, could be allowed time to consider and discuss what was being said but the judge refused, on the grounds that the courts time was limited and probably the Barrister needed to get back. (Very odd, I thought).

 

- I said I could not see how it could be fair that the bank could impose

these charges then repay them, yet still keep the interest it had made

on them. Also, that Claimant would not have been in such endebtedness

had it not been for the aggregated build up of the charges. The judge

dismissed that argument out of hand. I was dumfounded at that point and

it was starting to feel like a stitch up.

 

- He mentioned the Voller case, I believe he read the date and name of

the case but by then I was starting to lose enthusiasm and I even

noticed how the Barrister looked surprised and I dont think she could

believe her luck. Gradually it seemed clear that no matter what

arguments I made the judge wasn't prepared to listen, or take them too

seriously, in my opinion.

 

- Finally it became clear there wasn't much point in saying any more.

The judge started his summary of the legal issues, which I tried to

scribble down, as follows; sorry if they dont make any sense to you.

They don't all to me either:

 

1. Is unauthorised borrowing a breach?

2. Penalty?

3. Charges unfair? UTCCR 1999.

4. If, breaches a contract, innocent party compensation for that breach.

amount may be provided for by the contract.

5. Innocent party is entitled to claim liquidated damages but not a

penalty. Genuine not to deter.

6. Unfair terms not individually negotiated seller 4(1) UTCC.

7. Application of law - was it a breach? Barrister concedes - did not

provide for unnauthorised borrowings.

8. Voller case.

9. Fatal to claimants case. Not the case that it constituted a breach.

When overdrawn without agreement. New contract (implied) came into

existence.

10. Argument that it is a penalty is incorrect. Not capable of being an

unfair term.

11. Claimant that defendant claims charges are unfair by demonstrating

how it's profits are made....banks commercial affairs are

complicated...banks provide free banking...retaining secondly by

customers who go overdrawn. Beyond scope of small claims court.

12. Do not agree with banks obligation...find that bank is not obliged

to make the kind of......rates bear comparison with that of other banks.

13. Charges are incapable of being penalties. Not a breach.

14. Both arguments fail.

15. Dismiss balance of claim.

16. Amount to be paid within 28 days.

17. Does Defence wish to claim any costs? (Why? Thought this was a small

claims court hearing?). Barrister says "no, she did not".

18. Without prejudice. Subject to right to appeal.

19. Court fees being claimed by Claimant £120 + £100. I said yes.

 

That was it.

 

I am not saying that what happened yesterday was improper in any way but I do feel that I wasn't given fair warning of what to expect from a "Provisional County Court Hearing", nor do I feel I was afforded the same opportunity to prepare for this hearing so that I knew which aspect the defence intended to defend and on which documents it intended to rely.

 

I would have preferred it to go to a full hearing later (as I had expected), so that I could prepare properly, but the judge didn't seem prepared or willing to allow that. Perhaps that's just my lack of understanding how the court process works and perhaps I didn't prepare well enough to argue my friend's case better, or to convince the judg. On reflection though I feel satisfied that my friend got most of his money back but that, what went on yesterday, wasn't fair and wasn't right. That's for others to decide and I just hope this is of help to someone else.

 

Disclaimer: I cannot say for certain that my above report is completely accurate, or perfect word-for-word (probably far from it), but it is, I believe, representative and fairly accurate of how I felt at the time, what I recall was said, or think I recall, during the hearing.

[GaryH]

Firstly, the date was a provisional date for the final hearing, not a date for a provisional hearing, if you get what I mean.

 

I can't see that this is massively significant to be honest.

 

The CI was dismissed which was never going to be too much of a surprise - and it seems to me that any reference to the lawfulness or not of the charges were simply the judges pre-conceived opinions.

 

She didn't actually hear any evidence or give judgement on the charges issue, is that correct?

 

This is why we need to get the T&C's in!

 

Have you got the judgement yet? It'd be useful if we could have a copy please.

[notlam]

Have you got the judgement yet? It'd be useful if we could have a copy please.

Not yet. It was only yesterday. So I expect it will take a few days.

 

Will let you have a copy. I'll send it to [email protected] unless requested to do otherwise.

 

She didn't actually hear any evidence or give judgement on the charges issue, is that correct?

The Judge was a "he". But I believe so.

[GaryH]

Cheers - I'll PM you.

[notlam]

Firstly, the date was a provisional date for the final hearing, not a date for a provisional hearing, if you get what I mean.

 

I do now. Still think it unfair to let the defence file their documents so late and hand one them to me just minutes before walking into the court room.

 

Never mind.

[fortyniner]

I do now. Still think it unfair to let the defence file their documents so late and hand one them to me just minutes before walking into the court room.

 

Never mind.

 

This seems to be a standard ploy by legal types - it happened to me the last time I claimed against someone (nothing to do with bank charges). I objected but the judge ignored me. They (solicitors and barristers) seem to have the complicity of certain judges to dispense with proper procedures, which doesn't seem to apply to us oiks.

[Vital Spark]

Are the Law court judges in this land (UK) not public servants? If so, surely we can do something about a judge who makes a judgement without being prepared to listen to, far less heed both sides of a case, in full. This seems especially unjust in this case as it spounds as though the judge was acting as defense for the bank.

 

I was not there so am going merely on what has been reported on CAG.

 

How does one go ab out finding out who has interests/shares in what company/ies? There must be a register somewhere.

 

Making no accusations here, merely wondering.

[brokenbybanks]

Hey all

 

Most disconserting to read all this!!! I'm new here so forgive if this is stupid question, but can we not demand the T & C we signed under the Data Protection Act? My brother's been with Lloyds since about 1992, surely they can't expect us to have kept our original copy for over a decade? I too am with Barclays, and signed in 1998, a year before the 1999 act.

 

Again, apologies if this is a silly question but as pointed out elsewhere, it's all a bit confusing!!!

 

Thanks alot

 

BrokenByBanks

[Vital Spark]

I can't help thinking about your ordeal in court Notlam. It must have been terrifying.

 

You didn't jist prove yourself as a friend but as an extremely able person. Many lawyers would have freaked out if subjected to what you experienced.

 

Well done.

[Vital Spark]

Hey all

 

Most disconserting to read all this!!! I'm new here so forgive if this is stupid question, but can we not demand the T & C we signed under the Data Protection Act? My brother's been with Lloyds since about 1992, surely they can't expect us to have kept our original copy for over a decade? I too am with Barclays, and signed in 1998, a year before the 1999 act.

 

Again, apologies if this is a silly question but as pointed out elsewhere, it's all a bit confusing!!!

 

Thanks alot

 

BrokenByBanks

 

Funny someone should come up with this today. While looking through paperwork in search of bank files, I was wondering why the bank didn't include the Ts & Cs when they sent the requested information in response to my S.A.R - (Subject Access Request). Mind you, they didn't send a complete set of documents anyway.

[Pen]

I somehow think a Lawyer would have requested a adjournment and got one.

[notlam]

Still mulling it over in my mind and thinking what else I could or should have said.

 

I was nervous but it certainly wasn't terrifying. Just a small room, the judge, the barrister, me and the claimant. SO DONT BE PUT OFF.

 

Just be prepared, especially if the bank try the same tricks. And keep sending those old T's & C's in to:

 

[email protected]

[Vital Spark]

My scanner's out of commision right now but I think I might have found something along the lines for which you're all looking.

 

It's for December 2006 and is on the back of a letter I recieved advising me that the b ank were not goign to pay a Standing Order (actually a transfer of money from one of my ac****s to the other).

 

What I believe may be a relevant section is titled:

 

"Our 'Guide to Banking Charges' leaflet explained".

 

* When you go overdrawn without agreeing it with us first, or when you go over the limit you agreed with us, we will charge you £30. We will charge you this amount each day your overdraft increases. We will do this to a maximum of £90 each month.

 

* When you borrow without our agreement we will charge you a higher rate of interest. We cahrge you at the Lloyds TSB Scotland Unauthorised Overdraft Rate. This is currently 2.20% per month. This works out at an equivalent annual rate (EAR) of 29.85%.

 

*When we are not able to pay cheques, direct debits or standing orders because there is not enough money in your account, we normally charge £35 for each item of £10 or more we have not paid.

 

It then goes on to tell me what they HAVEN 'T done and how much they are charging me for NOT doing it along with advising me that they'll continue to try to pay it for 28 days from the day it was due blah blah blah!.

 

Then:

* We will always tell you, on your statement, at least 14 days before we TAKE (notice it's not "by which we require payment" as with any other bill for charges from a company who don't have direct access to your money,) any of the charges we make from your account. We will also let you know the amount and the date on which we will do this.

 

While writing this, I no longer felt so sure that this will be of any help to anyone.

[Vital Spark]

As for my use of the word "terrifying". I imagined I would have been so but , perhaps, not under the circumstances you describe.

[McIavelli]

Subscribing.

[notlam]

The CI was dismissed which was never going to be too much of a surprise.

What makes you say that GaryH?

 

Surely;

 

If the bank has charged you, added interest to those charges, then agrees to pay the charges back, it should also pay back a sum equal to the interest it has charged (at the unauthorised CI rate).

 

Perhaps, we would have been successful if, instead of claiming reciprocal Contractual Interest, we had claimed back the "interest charged thereon", which would arguably be at the CI rate .

[Mistermind]

.....Barrister said she was only there to contest, part of the

claim concerning 29.8% contractual interest and would be citing Halliday

V HBoS plc appeal case which took place on 08 June 2007; ........

 

- Then we were called into court.

 

- Barrister explained to Judge that defendant had agreed to pay back the

charges plus 8% interest and had already done so, but it denied the

charges were penalties and that it was disputing part of the claim

concerning CI at 29.8%. She said we were arguing that the CI should be

charged on a reciprocal basis and that there was nothing in the contract

to say Claimant could do that. Judge agreed. She cited Halliday v HBoS.

I said I had not prior knowledge to this evidence only received 10

minutes before this hearing.

........

- Judge said since the bank were not disputing the charges he was not,

therefore, here to decide about that issue today but was only concerned

with the CI. I believe I said that since the CI was an integral part of Claimant claim and, therefore, we needed to establish whether the

charges were fair.

 

- I mentioned that we had requested the bank to explain how it's charges

were calculated so that it could be ascertained whether or not the

charges were fair, I mentioned Peter McNamara's interview where he

admitted the charges were penalties and funds generated subsidised free

banking for all it's other customers.

.......

- Judge said he did not see that there had been any breach. He did not

see why the bank had conceded and agreed to repay the charges. When Claimant went overdrawn outside the scope of the contract a new contract

was automatically implied by payment of the cheque or direct debit.........

 

I believe Lloyds barrister was there only partly to defend against CI. The ulterior motive was to check out the judge's latest thinking on the unlawfulness of charges, post Berwick-v-Lloyds. With no defence mounted against reclaim of penalty charges, the judge properly sidestepped the charges issue.

 

Here I believe the claimant's party fell into the trap, while thinking they stood on safe ground, of trying to obtain an unnecessary court affirmation of the unlawfulness of charges. This aspiration backfired when the judge came down full force for Lloyds, after which he had all arguments developed to dismiss CI on the basis of unproven charges reclaim, rather than unproven interest computation.

 

Ulterior Motive by Lloyds barrister

 

I suspect this was the original intention for the arrival of the Lloyds barrister, namely to test the judge's thinking, being a shot sideways for nothing. Had the judge, after invitation from the claimant, moved towards full affirmation of the unlawfulness of charges, Lloyds barrister would have hastily stepped in to say, "No more, no reason to argue a point I am not defending".