LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

[Kati]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

Good luck from me too x

[EXC]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

The result of the hearing yesterday in Bristol County Court was that Oliver Foster-Burnell was denied permission to appeal the part of the judgment from Taunton County Court that restricted the application of the finding that the price variation terms were unfair to just himself.

The reasons the judge gave for refusing permission were jurisdictional and are summarised below:

• The unfairness test for significant imbalance in the requirement of good faith provisions of section 5.1 of UTCCR can only be made between the particular parties to the contract in question. The test is subjective and not objective. Case law quoted was West and Finley http://www.bailii.org/ew/cases/EWCA/Civ/2014/316.html
• A declaration in a County Court that the terms are unfair generally could have no effect as County Court decisions do not carry any binding authority.
• Appeals to judgments at any level of the judiciary are restricted to the main findings of judgments and the orders that arise from them. Case law quoted was Lake & Lake and B & H Children.

[ncf355]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

This is a great shame

Is it intended to Appeal to the COA EXC?

Well done all for trying against such odds for the gain of many

[EXC]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

Is it intended to Appeal to the COA EXC?

It's obviously being considered but there are wider discussions going on about the way forward generally.

The good thing that came from yesterday was that although he made a point of saying it wasn't for him to do so he appeared to endorse the main finding of the Taunton judgment (that the terms were unfair) by describing it as ''exemplary'', ''well thought out'', ''considered'' and ''commendable'', which gives us confidence for other individual challenges.

[leclerc]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

The result of the hearing yesterday in Bristol County Court was that Oliver Foster-Burnell was denied permission to appeal the part of the judgment from Taunton County Court that restricted the application of the finding that the price variation terms were unfair to just himself.

The reasons the judge gave for refusing permission were jurisdictional and are summarised below:

• The unfairness test for significant imbalance in the requirement of good faith provisions of section 5.1 of UTCCR can only be made between the particular parties to the contract in question. The test is subjective and not objective. Case law quoted was West and Finley http://www.bailii.org/ew/cases/EWCA/Civ/2014/316.html
• A declaration in a County Court that the terms are unfair generally could have no effect as County Court decisions do not carry any binding authority.
• Appeals to judgments at any level of the judiciary are restricted to the main findings of judgments and the orders that arise from them. Case law quoted was Lake & Lake and B & H Children.

This does go against my principals but is there a way of effectively putting together a templated claim form, similar to bank charges sites, so that by swamping the court system it might have the effect of drawing the OFT back into this issue?

I kinda know the answer to the question but is there a way of having discussions with the OFT on the basis of case law since clearly the judgement itself was not necessarily questioned by the defence yesterday?

[Amethyst]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

Probably not the OFT, but the FCA & CMA are being kept informed.

[Amethyst]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

This does go against my principals but is there a way of effectively putting together a templated claim form, similar to bank charges sites

The judgment stands so it can be used as persuasive. The arguments used can be used in other cases but it isn't an auto win. It's not dependant on hardship.

We wouldn't want to send anyone into court on their own with this as it is a complex argument and a loss could be quite damaging at the moment. Will wait to hear Tom's views on going forwards with Oli's case but there are a few other irons in the fire.

What we could do with doing is looking at the terms for all the banks, primarily those terms which state they can change fees unilaterally and you have no right to close your account whilst overdrawn.

Remember ages back we were saying consumers should be able to close their bank account with an overdraft debt and repay it over a set period without incurring further charges ( just standard overdraft interest). I think that we should start pushing for that again so consumers have a right to say 'No More' and move to another bank without the fear of the overdraft debt increasing so rapidly.

Also a credit card style term that you can chose to close your account and repay over say six months if the bank decide to increase their charges, or change their charging structure, so consumers get 30 days notice of changes and have the right to close their account and repay the overdraft rather than face the new or increased fees.

The other idea we had was banks invoicing us each month and us chosing when to pay and where to pay from, and the OD charges end up as a separate debt that can have interest charged upon if not paid within 30 days but can't affect the overdraft, stops banks raiding your account to take their charges, and stop charges being incurred because last month you had a massive shortfall due to, well, charges. But we won't get that.

So rights for the consumer to close the account while overdrawn seems sensible to me.

[orfoster]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

It was suggested yesterday that I and maybe others (like a 38Degrees petition) write to FCA/CMA and call on them to take action.

I'll post up more from my perspective a little later on today.

[Nibbler]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

ML said anything? Thought he was meant to be trying to goad the FCA etc into some sort of action?

[Kafka]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

It's obviously being considered but there are wider discussions going on about the way forward generally.

The good thing that came from yesterday was that although he made a point of saying it wasn't for him to do so he appeared to endorse the main finding of the Taunton judgment (that the terms were unfair) by describing it as ''exemplary'', ''well thought out'', ''considered'' and ''commendable'', which gives us confidence for other individual challenges.

I just wanted to comment on this and to underscore the significance of this short post by EXC. This was raised at length by the judge both during the hearing and in the summing up, with fulsome praise for "My learned friend DDJ Stockdale". It's clear that the establishment isn't going to provide any opportunity for a challenge on the Taunton judgment, and it's hard to fault it in my view.

The corollary of this is that is the arguments are sound and therefore similar claims against Lloyds can be mounted by other victims. How that's done, of course, is a much more difficult issue.

[Guest]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

I just wanted to comment on this and to underscore the significance of this short post by EXC. This was raised at length by the judge both during the hearing and in the summing up, with fulsome praise for "My learned friend DDJ Stockdale". It's clear that the establishment isn't going to provide any opportunity for a challenge on the Taunton judgment, and it's hard to fault it in my view.

The corollary of this is that is the arguments are sound and therefore similar claims against Lloyds can be mounted by other victims. How that's done, of course, is a much more difficult issue.

Yes I think so, care must be taken though IMO in that the claim must make it clear that the argument does not cnallenge the supreme courts ruling, if not it is likely to be rejected out of hand.
The argument is about the variation and the fairness of the term which permits it.

[Kafka]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

Yes I think so, care must be taken though IMO in that the claim must make it clear that the argument does not cnallenge the supreme courts ruling, if not it is likely to be rejected out of hand.
The argument is about the variation and the fairness of the term which permits it.

That's right. One of the ironies of yesterday was that the judge kept stressing subsidiarity and that the SC ruling couldn't be challenged, while at the same time praising the Taunton judgment that made clear it saw Hatosag as supplementing the SC6, but not challenging it or replacing it. In a sense there was a tacit acknowledgement that there are valid grounds to challenge bank charges in some cases, but what they will block is any attempt to roll that out unless it's done by the regulatory bodies. It was a cheap shot to keep implying that Tom was seeking to overturn or override SC6, when that was clearly never the case.

[orfoster]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

It's obviously being considered but there are wider discussions going on about the way forward generally.

The good thing that came from yesterday was that although he made a point of saying it wasn't for him to do so he appeared to endorse the main finding of the Taunton judgment (that the terms were unfair) by describing it as ''exemplary'', ''well thought out'', ''considered'' and ''commendable'', which gives us confidence for other individual challenges.

Hi everyone,

Well what a day yesterday!

Firstly, Philippa Simmons (Head of Lloyds Legal) came up to me while Duffy was distracting Tom, to shake my hand and tell me "I'm here if you need anything at all".

Apart from the Judge's conduct it was interesting, the Judge was quite rude to Tom in Court, he called me a 'busy body' and was entirely on the banks side from the outset.

There was also a strong suggestion from the other side that I have been pressured into this action by my Legal Team.

So I thought I'd address this here, given I am well aware that this forum is monitored by the banks...

As some of you know, my day job is that I work for a trade union, I also volunteer with the CAB and come into contact with people who are struggling to put food on the table on a daily basis, in nearly every case those people have debts with massive amounts of charges and have been given a 6 year sentence for those charges and are having to turn to Food Banks to make ends meet.

Although I have no authority in law or otherwise, in answer to the Judges question "what business is it of Mr Foster-Burnell to challenge these terms on behalf of others?" I hope I've explained why actually I made the decision I did to attempt to give those people who have no clue about their rights, a voice.

It was great to meet EXC and Kafka yesterday and as EXC has said, the Judge commended DDJ Stockdale in his decision.

Obviously at the end Duffy threatened me with costs, should this matter go forward and they didn't apply for costs on this occasion because it was my legal team who wanted to pursue this issue and not me, frankly that's insane, it was absolutely my decision following the advice I was given.

We will know more in the next week or so about any potential next steps, which I'll reflect on of course but given their threat of costs against me I'll have to think long and hard about any potential implications.

It remains concerning that at the end of the day, there is no 'adequate or effective means' for consumers in this country to prevent the continued use of unfair terms, apart from bringing individual claims in the County Court.

Thanks to everyone for their continued support, this forum is a great place

[ncf355]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

Great comment there Oli,

I have nothing but admiration for you and the team and have the same view as you that it is utterly disgraceful that nobody is speaking up for those where their daily lives are ruined by these ridiculous charges.

I wish you all the best and hope you can find a way to either continue this struggle, or encourage the likes of the FCA to take the action they already should be.

:tinysmile_grin_t:

[mystery1]

Re: LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

http://www.law-lords.com/blog-detail...ourt-of-appeal

M1