Judge Cooke Mr Berwick

The bank is probably bricking it too - the last thing they want is a messy appeal resulting in them being brought to book.

Yes, Kevin reclaimed lawful debit interest on overdraft which was a no-no.

Kevin did not arrive in court with his Lloyds T&C's. On his own initiative the judge surfed the net for these without definitive success, so the entire trial turned on a document which was not present in court. It was not for the defendant to prove the charges had been lawful, it was for Kevin to prove that the charges had been unlawful, which Judge Cooke said he failed to do.

The judge wanted to be shown explicit Lloyds contract wording showing that going overdrawn was forbidden, this was not shown to him. Quite to the contrary, Kevin said it was ok to go overdrawn, and he did so 15 times. In which case the charge for such an ok activity was deemed a commercial service fee (on which making a profit was lawful), not a "Dunlop v Garage 1910" type punitive charge (on which profit was unlawful).

The other type of fee, straightforward cheque/DD bouncing, would in my view be de facto a pure punishment for the customer, with no semblance of a service or a benefit. It it not known if the next judgment will turn on hairsplitting analysis of Lloyds T&C wording, (for which there have been numerous variants over the years) or whether the penalty/service determination will turn on whether a component of service could be proven de facto to be present, justifying a lawfully profit-making service fee.

My opinion only -- honouring a bad cheque at a risk of bad debt to the bank and taking up bank manager time is likely to be presented by the bank barrister as a service. Personally I would be loath to go near reclaiming charges where a component of service could be plausibly argued. For this reasons I believe an itemised listing of individual charges should include the reason for each charge -- to demonstrate that every charge reclaimed was a pure penalty charge, not a penalty charge mixed in with a service fee.

ConsumerActionGroup.co.uk leadership are frantically collecting Lloyds T&Cs from their 140,000 membership, and could well assist in mounting Kevin's appeal, but I am not privy to the confidential latest, or to the timing of such an appeal. Do suggest that you also post on CAG, so we on the same side can pool info for mutual benefit.

What is her scheduled court date? Unless you are confident of succeeding on the legal points where Kevin failed after one hour grilling, your friend might consider a postponement in case current rapid developments might tip the balance in her favour ? Limitations of oral English would certainly not help in court. Here again CAG qualified lawyers might be able to help -- my opinion, I am not a CAG spokesman.

Everything I have read in ConsumerActionGroup forums says you should not artificially split a £5K+ claim into several sub-£5K claims to get into Small Claims, for example splitting by date. This would be viewed as an Abuse of Process, i.e. taking the mickey out of the court. It this practice were allowed, what stops a claimant from coming back 687 times?

It is perfectly OK to claim over £5K,. For pros and cons go on CAG and SEARCH, ADVANCED SEARCH for keyword "5000" in thread title, and you will see 52 threads all on the subject.

Now two weeks after Berwick defeat there is still no attempt on CAG, not sure about on MoneySavingExpert, to reach a co-ordinated consensus on why Kevin lost, and what should be done if Joe Bloggs were to show up in Judge Cooke's court tomorrow. Democracy and freedom of grassroots expression is all very well, but if 100 individuals form 100 different opinions on how to defuse that unexploded bomb lying in the courtyard, the position looks hairy.

The entire trial turned into a search whether Lloyds T&C contained an explicit clause forbidding going overdrawn. Cooke and Berwick never found such a clause in court or even at night by Justice Cooke surfing the web, the charge was ruled as, not from breach of contract but from a bank service fee.

If now armed with T&C, I suggest a claimant will find it easier to prove from wording and action de facto, that charges for straightforward bouncing of cheque and D/Ds were pure penalties unencumbered with anybenefit or favour rendered to the customer. Such punitive charges would therefore qualify for the Dunlop v Garage precedent, i.e. these charge must cover cost only, no bank profit allowed.

Personally I remain deeply uneasy if I were going into court to reclaim charges for bad cheques honoured (at a risk and cost of time to the bank, with a benefit to the customer.) If the bank claims this ambiguous operation to be a banking service deserving of a service fee, I simply cannot think of an answer.

Whereas an over-5K claim was split into 2 by date would risk a dismissal, I believe claiming pure bouncing charges now, and leaving claims for "exceeding overdraft" charges till later when the smoke clears, should be alright, as the charges have an arguably and demonstrably different (from the narrative on the statement) basis in law. If you were varying your claim this goes to the substance of the case, and would certainly require changing your submission, as your opponent needs to know what you are claiming so as to prepare a defence.

I used to have the URL link to the 14-page pdf for the Approved Judgment Lloyds v Berwick, but cannot find it now. Do you have it?

Only my opinion without legal training. Good luck to your friend.

mistermind, you'll find the links in Martin's thread here...

http://forums.moneysavingexpert.com/showthread.html?t=465002