New Bank Charges £100,000 Fighting Fund & Legal News (including the Berwick case)

richard99_2

picklesjsw wrote: »

I don't understand these posts. From my reading of the Judgement http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_05_07_bank_charge.pdf, it was Mr. Haughton that did not submit the right details. Mr. Berwick did. In fact District Judge Cooke wrote that he was a "model litigant".

I see the problem as Mr. Berwick writing in his claim that it was breach of contract, but not arguing out that point with District Judge Cooke. The basis of our arguments are based on the fact that these are penalty charges for breach of contract. The reason that they are breach of contract is because we are given no choice. A service is based on choice.

Would the banks write us a letter before they bounce the cheques or direct debits asking if we wish to pay the amount immediately or bounce it or let it clear, but in either of the 2 latter, we would be charged, then yes, it would be a service.

If I am wrong, I would be happy to be corrected, but I suggest that people read the Judgement first.

Hi,iv just has my court date through, its not until 16 november, plenty of time to get al my paper work ready for the day,if there is anyone who has already been to court, can they give us a helping hand,and tell us what to say. they say there is no breach of contract , the charge can not be a penalty,consequently there is no requirement that the charge be a pre-estimate of the banks loss

cjd_2

:money: Hi Matin,

Not sure how else to contact you, sorry if this is the wrong means.

I have been trying to reclaim my default bank charges from Barclays Bank since 27th Jan 07. In addition to the default charges I am also claiming for reimbursement for an 'Additions Plus' account fee which was applied to my account without consent.

I have been through the whole process, letters and refusals from the bank. Today I had to attend an Allocation and Case Management Conference at Southend County Court. Barclays Bank sent a Junior Barrister along, who had been informed he was not to settle any of the 50+ cases being heard today. Barclays failed to supply the Barrister with any information regarding any of the cases.

Subsequently my case along with another 50+ claiments has been ordered to allocate to the 'fast track'. All cases will be heard as one before HHJ Dedman on 4/12/07. Claiments if lose will have to pay Barclays court fees.

District Judge Dudley has informed us that he wishes to set a precedent, hearing all cases at once and deciding once and for all whether the banks should be repaying these fees. DJ Dudley has informed all claiments they will require legal representation.

Please can you give me your thoughts on this situation and whether you have heard of another situation such as this. If not would this case consitute help from the 'Bank Charges Fighting Fund'?

agnes_2

I have just read this. I am absolutely horrified by the fact that the law allows the judge to do this Surely taking a claim and paying the court fee to the small claims court entitles you to your individual hearing in that court ? you should not be forced into a mass hearing in a high court, and forced to hire an expensive solicitor?? with claims under £5,000. the solictor would not be a vialble proposition. Another point how can claimants lose? How can the banks prove that it cost £30 £35 when it is an automatic computer transaction we know costs less than £2.50 Even if they said it cost £15 they will still lose Another point how come its O K that the barrister was so ill prepared that he had NO information on any of the cases?? when Mr Berwicks case was dismissed on similar grounds, and on that case I will never understand why he did not win on default because the bank did not show up. and the next one to lose a case with Lloyds recently, lost because he did not show up?

Anyway as it happens now these cases are probably 'stayed' it isn't going to happen, but nevertheless this can not be right.

I have phoned the court today and found out my case on 14th August in Cardiff is 'stayed' So I am now preparing the 'Objection letter' What the OFT are doing is playing into the hands of these Banks.

hainesy01

Hi all

Is it possible for someone to email me how I can contact the fighting fund people as I have had my stay set aside and the Abbey are going to defend with all the weight of their legal team. which I am sure would make mincemeat of me.

hainesy01

sorry did not know I was not allowed to put my email address down. how will anyone be able to respond to my request without it.

JohnDinton

picklesjsw wrote: »

I don't understand these posts. From my reading of the Judgement http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_05_07_bank_charge.pdf, it was Mr. Haughton that did not submit the right details. Mr. Berwick did. In fact District Judge Cooke wrote that he was a "model litigant".

I see the problem as Mr. Berwick writing in his claim that it was breach of contract, but not arguing out that point with District Judge Cooke. The basis of our arguments are based on the fact that these are penalty charges for breach of contract. The reason that they are breach of contract is because we are given no choice. A service is based on choice.

Would the banks write us a letter before they bounce the cheques or direct debits asking if we wish to pay the amount immediately or bounce it or let it clear, but in either of the 2 latter, we would be charged, then yes, it would be a service.

If I am wrong, I would be happy to be corrected, but I suggest that people read the Judgement first.

Thank you for the link to the judgment; I hadn't seen it before. Sorry to be so late commenting. I was prompted to look through the thread by Martin's email about the song.

I don't agree with you entirely about the argument about breach of contract. As you say, the primary argument is that the customer is in breach of contract by taking an unauthorised overdraft, and that the liquidated damages sum specified in the banks' contracts is not a genuine pre-estimate of the banks' loss but a penalty and so unenforceable. Any argument about unfair contract terms is secondary.

The key is the word unauthorised. If it were in accordance with the contract it would be authorised. If it is not a breach of contract, on what basis do the banks claim to be entitled to return cheques or direct debits unpaid? Breaches of contract can be waived, so a breach is not a barrier to a continuation of the contractual relationship. In some EU countries it is a criminal offence to be overdrawn at all. The DJ may consider it onerous to keep precise track of his bank balance, but that is irrelevant. As you say, Mr Berwick didn't argue this properly.

The DJ is completely wrong when he says it is for Mr Berwick to prove the charges are greater than the bank's costs. It is for the bank to show that its liquidated damages sums are genuine pre-estimates of loss. The DJ has also misunderstood regulation 6(2) of the UTCCR. It is talking about *assessment* of unfairness, not the unfairness itself. What it means is that the supplier cannot justify an unfair term by saying the customer paid very little.

I am baffled by the comments saying this case was lost because of poor preparation, and that there could not be an effective appeal because additional evidence would have been needed and the rule in Ladd v Marshall could not be satisfied to introduce it. As far as I can see Mr Berwick's preparation was as thorough as could reasonably be expected, and he did produce all the evidence including the bank's terms and conditions.

The decision of a DJ is not binding on any other court, and from what is said it does not seem any other judge is following it. Nevertheless this seems to me to be the perfect test case to take to appeal, with a leap-frog to the Court of Appeal under CPR52.14. It is the first time I have seen the banks' argument set out so comprehensively. It is a thorough judgment, and the questions of law are there for the Court of Appeal to consider. Perhaps the QC wanted evidence of the banks' costs to have been adduced but you are not going to get that in a small claim. If the Court of Appeal wants to decide the matter on that basis it can order the bank to disclose the documents, and remit the matter to the county court for consideration.

The way Mr Haughton was treated was appalling. However badly the DJ thought Mr Haughton had presented his case, the bank made an offer to settle the claim in full. If the DJ really thought he still had jurisdiction to dismiss the claim up to the time Mr Haughton heard about and accepted the offer, he ought to have adjourned the hearing to give Mr Haughton a chance to consider and accept the offer. Why should Mr Haughton be penalised because the bank made its offer so late?

hainesy01

I have been trying for months to get an answer on how we can get help from the fighting fund. I am going to court this Thursday 29th November and have lots of questions i need to ask.

JohnDinton

I had understood that all court proceedings had been stayed pending the outcome of the OFT's case. Is that not so? I can understand why it is not possible to give individual assistance to large numbers of cases, because it becomes very costly. It is rumoured that the legal aid costs in the ATM phantom withdrawal litigation reached £1.5 million. The approach here seems to be that most people will win on their own because the bank will not turn up, and judgment will then be entered in full for the claimant, and help will be offered in the few cases where things happen differently. Mr Haughton cannot be helped because although the DJ did not apply the over-riding objective which includes encouraging settlement, he cannot be said to have erred in law, so there can be no appeal.

Have you joined the CAG forum? There is said to be a free template library for those who register, but I couldn't see how to register. I was hoping to see a better Particulars of Claim template than the one on this site, which is not very good. CAG says it is helping in some cases in Hull, and one of the steps taken was to amend all the Particulars of Claim.

Has any help been offered in the Southend cases? As they have been assigned to the fast track there is a risk of having to pay the bank's costs. What it does mean though is that there can be disclosure of documents, so that if the cases are handled properly the bank can be made to disclose documents showing how it arrives at its charges and the cost of bouncing a cheque.

I have now read the speeches in the House of Lords in the case the DJ was referred to in Berwick. What I said about regulation 6(2) of the UTCCR was wrong, but the DJ was not right either. The law lords unanimously held that terms relating to default or breach of contract were outside the scope of what is now regulation 6(2), so they did have to consider whether they were fair. The DJ refers to the consumer having been held to be in breach of contract, but there was no consumer; the case was brought by the DGFT. If getting into arrears in a credit agreement is a default or breach of contract, it is difficult to see how exceeding an overdraft limit is not. One of the examples of an unfair term given in the UTCCR is requiring a consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

pjttlk

JohnDinton wrote: »

The DJ is completely wrong when he says it is for Mr Berwick to prove the charges are greater than the bank's costs. It is for the bank to show that its liquidated damages sums are genuine pre-estimates of loss. The DJ has also misunderstood regulation 6(2) of the UTCCR. It is talking about *assessment* of unfairness, not the unfairness itself. What it means is that the supplier cannot justify an unfair term by saying the customer paid very little.

I am baffled by the comments saying this case was lost because of poor preparation, and that there could not be an effective appeal because additional evidence would have been needed and the rule in Ladd v Marshall could not be satisfied to introduce it. As far as I can see Mr Berwick's preparation was as thorough as could reasonably be expected, and he did produce all the evidence including the bank's terms and conditions.

I don't have legal training beyond a business diploma, but I do regard myself as able to follow a considered and logical discussion in writing. The DJ's judgement and reasoning in the Berwick case seems at best flawed and at worst bizarre. It's a chewy judgement, but I find it difficult to see how the DJ can view the charges as fair simply because all the other banks charge at the same unfair level. How can he discount the claimants evidence, but at the same time accept no evidence by the defendant.

I agree with some of the comments earlier in this thread, regarding the issue of service. My Tesco Finance Credit Card online access will email me to remind me to make a payment, and if a payment threatens to exceed my overdraft. That is a Service, I am in control of the transaction. It is not a service to represent a cheque which has already been bounced, knowing full well that the bank at the other end will get another £35 plus in charges.....

Am I the only person who thinks someone gives the appearance of having been nobbled here? Who does he bank with? Does he have any directorships in the finance industry?

(The case also raises the question on whether a)the banks should be investigated by the competition commission for apparent collusion on a number of aspects of bank charging and b)whether an EU judgement should be sought in relation to the apparantly high and unfair charging system in operation in the UK relative to European banking, which appears to indicate strongly that neither GATTS nor the EU market are working effectively in the finance industry.)

general75

The OFT should simply put my recent charges forward.
I was recently £30 overdrawn, Lloyds TSB have just started ( how can they suddenly do this i don't know) charging £30 plus £15 a day. my £30 OD they recently take £165 out of my account, I was having money problems before i def am now.

How can that be fair.