Cant find it at the moment but there is another thread about contractual compound interest which quotes a high court case where the principle of mutuality and reciprocity argument failed in a contested hearing. Will try and find it and come back with a link soon.

Yep, as I thought they've sent me the last 6 years worth - AGAIN Yet another letter to Joyce Tudor on its way today.

Thanks for that Park. I have been refused my statements back to 1996 by J Tudor on the basis that they don't keep info beyond 6 years. I challenged this and mentioned the Nat West Archive and said that I would report them/issue proceedings etc. and I received a letter yesterday which appears to have "reset" my SAR back to the beginning as the letter says that I will be receiving my statements as soon as possible and thanks for the fee etc. Will not hold my breath and who knows they might send me the last 6 years statements (for the third time) although given my previous letter to them they might actually now mean the older ones! We will see

If its taste you want english always - Dijon? Pah! - may as well have custard

Yes - and if the bank doesnt produce a copy of the relevant T&Cs we should perhaps be saying in our POCs that we do not accept that the bank was entilted to charge these fees at all as we have not seen or been provided with any T&Cs which permit the levying of such charges. That will mean that the banks will have to produce the T&Cs to show that they were in fact provided for in the contract in the first place.

Congratulations. Does seem to be a bit of a lottery really. Some people are claiming much less and having to submit court bundles etc. Go figure

Why would we acept a £12 charge? If the chages are penalties they are unenforceable in their entirety. I would much rather hold out for the full amount - particularly since the A&L T&Cs are an absolute dead cert penalty clause - they say "You MUST" keep enough funds in your account to cover any payments. Incurring charges is definetely as a result of a breach of the agreement and in the penalty charge argument A&L customers have a very strong position. I'd tell them to bite me

Next step - electronic tags and passport confiscations.

And keep the letter for use in your court bundle - a clear acceptance by Halifax that the charges were levied because you failed to keep to the terms of the agreement with the bank - i.e. there is a breach of contract therefore the charges are penalties. That letter is as good as a cheque for the full amount !

Ideally you should include in your bundle T&Cs that cover the whole period over which charges were taken and the ones that were current when the account was opened.

Thats right Freaky - the wording on the site about complaining about someone else's solicitor is here: Complain about someone else's solicitor: How do I do this? We can't deal with your complaint if it is about the service provided by someone else's solicitor or about the impact on you of the actions of someone else's solicitor – for example, divorce proceedings. Action can only be taken if the solicitor has broken the rules of professional conduct – which all solicitors must follow. Breaking these rules, is called misconduct. Some examples of possible misconduct the solicitor lies to you or others the solicitor uses his or her position to gain unfair advantage of you the solicitor is holding money that belongs to you the solicitor fails to comply with an undertaking they have given to you or your solicitor the solicitor discriminates against you on the basis of race, religion, gender, sexual orientation, disability or age If the solicitor has engaged in misconduct, the Solicitors Regulation Authority can take action in the public interest. But the SRA can't pay you compensation.

The £80 solicitors fee is the fee for the solicitor's time and can only be added if the claim form is drawn up by a solicitor. It is recoverable as part of the debt in the same way as the court fee is.

Hi Memnoch, I dont think the case is relevant. It is dealing with circusmstances where a contract requires a single payment for any breach, whether it be trifling or serious. The point is that the payment cannot represent a proper estimate of damages when it applies where there is a trifling financial loss as a result as well as when there is a substantial financial loss.

These are the only older Lloyds T&Cs I have been able to find. July 27 2003 http://web.archive.org/web/20030727101005/http://www.lloydstsb.com/rates_and_charges/current_account_charges.asp Oct 28 2004 Increase in charges amount http://web.archive.org/web/20041028105038/http://www.lloydstsb.com/rates_and_charges/current_account_charges.asp May 13 2005 Increase in charges amount The relevant text also changes from: 1. Any unauthorised borrowing means extra work for us, we cover this by charging you the following fees: to 2. Please make sure you have enough cleared funds in your account at the close of business the day before the payment is due to cover any payments that you wish to make. http://web.archive.org/web/20050513221428/http://www.lloydstsb.com/rates_and_charges/current_account_charges.asp Also note that these terms say, in respect of the Overdraft Excess Fee - “We will charge this when you go overdrawn by £10 or more above any agreed limit or £10 without any agreed limit. And in respect of the Unpaid Item Fee – “You’ll be charged this fee whenever there is not enough money in your account to make a payment…” The fee is incurred at the time the overdraft is created or the lack of funds exists – no mention of it being a fee for any service and no mention of anything actually done that could constitute a service of any sort. So it is a charge triggered by circumstances and not by anything doine by the bank. If the bank had to provide a service for this fee then the T&Cs should say so and they don't because there isn't one - and as I have said the "service defence" is the most artificial interpretation of what happens in reality without a doubt. Since the previous T&Cs referred to “extra work for us” and this has not been specifically rebutted in the amendment to the T&Cs on the basis that the fee is now for a service then isn’t it acceptable to presume that the charges still relate to “extra work” in 2005 as they did in 2003 and 2004?

Current conditoons for current accounts are here: Abbey - Abbey account - Legal details You will note that they expressly say that going overdrawn without agreement or over your o/d limit is a breach of the terms of the agreement. If you need t&Cs for other abbey current accounts go to the Product Directory here: http://www.abbeynational.co.uk/csgs/Satellite?c=GSAgrupAsset&cid=1113914743322&pagename=Abbey/GSAgrupAsset/GS_DirectorioProductosServiciosCategoria#Current%20Accounts and then click on the type of account, then "Legal details" in the right margin for the T&Cs.

Hi Gaz, The links are in post 1 above. Regards.

Hi Muggy Both are in the post above (as amended) - as I say although Lloyds take a softer approach in the personal terms and conditions, they are no different than saying, (using the polite "please"): "Please note that you should keep sufficient funds in your account to cover any payments and if you do not then you will be charged". Also note that on the bank's perspective the fee is for a service for personal customers but is a penalty default charge for business ones. There is merit in the comparison because it shows that in respect of personal account customers the bank is simply cloaking (whether by design or blind chance) what, in effect, is a charge for failing to have cleared funds in the account. I am convinced that the correct interpretation of the term is as a mandatory requirement, however worded, because the charge is only applied if you do not comply with the "usual" procedure of having cleared funds in the account. The fact that the bank says "Please MAKE SURE..." does not swing it with me. If you are required to "make sure" that you always do something then you are required always to do it. Of the arguments that they are penalty charges, disguised penalties or service fees, the service fee interpretation is the least credible. Hi Wayne, I agree that maybe we should be compiling a library of T&Cs although the space and the number of people accessing it would be a problem perhaps. Maybe people should offer to email them to each other or exchange them in some other way.

Lloyds “Victory” – A VIEW OF THE JUDGMENT There is a massive amount of activity in relation to the recent judgment by District Judge Cooke at the Birmingham County Court in favour of Lloyds TSB. Much of what is being written now on these forums relates to concerns that do not seem to me to be justified based on the actual judgment and the circumstances that lead to it. I am posting this view of the judgement after reading it to try and help other users understand it better. Of course, the analysis is only my understanding and others may have different views which I welcome. It is my opinion that the judgement is of no legal relevance to the legal basis of claims for penalty charges and that its impact is being massively overstated by the media. My comments are related only to the Berwick case. The other case being heard, that of Mr Haughton, was inevitably dismissed because he had not complied with the court’s order to provide a schedule of his charges and the judge therefore had no information about the extent of the charges themselves, let alone whether they were unenforceable. The judgement can be found here: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_05_07_bank_charge.pdf Background: The judge sets out in some detail the basis of the claim, that it is for bank charges, that they are penalties, exceed the bank’s losses, etc. The bank defence is the service defence, i.e that the fees are for banking services. They say that there is no breach of contract and therefore the charges cannot be penalty charges. At paragraph 14 Mr Berwick accepts that the contract is governed by the bank’s standard terms and conditions and that they contain terms permitting the bank to levy these charges and, further, that the circumstances permitting the bank to levy those charges did, in fact, occur – i.e. that he went overdrawn, exceeding an overdraft or had items returned unpaid, etc. This is the crucial part of what starts the judge’s reasoning: At para 14: “I do not have in evidence a full set of terms and conditions applying to the account. The defence refers to a leaflet given to the customer when he opened his account, but does not attach that leaflet”. This is the first issue the judge should have considered. CPR Practice Direction 16 Para 13 states that a party MAY attach documents to his statement of case (Particulars of Claim or Defence) that he considers necessary for his claim or defence. And of course Part 27 (Small Claims) disclosure provisions really do require that we as claimant's provide this document. The fact that the very document central to the claim had not been submitted by either party should have been of much more weight to the judge than it was. I would have expected that he would, in dealing with a litigant in person on the one hand, and a bank on the other, have adjourned the matter and asked the bank to provide the relevant document. The judgment goes on at paras 15 and 16 to consider the text of the Current account charges pages taken from the bundle from Mr Berwick, which do not help much as the wording is couched in terms of fees rather than charges. At paragraph 17 the judge says: “ It is to be noted that none of the provisions I have been referred to contain any prohibition against the customer going overdrawn, or issuing a cheque or other payment instruction which, if honoured, would cause his account to go overdrawn or exceed an agreed overdraft limit.” He also mentions that the bank’s defence denies the existence of any such term. The judge was absolutely rightly highlighting the fact that this was a glaring omission in the papers before him. So much so that he searched the internet himself to see if he could find any such terms and conditions. It is a pity his search was not more successful. The current terms and conditions are here, for business accounts and below for personal ones (I now have copies on my HD just in case!! and will send them to BF if he wishes): http://www.lloydstsbcorporatemarkets.com/legal/tcaccounts.asp#4.%20Running%20your%20account Lloyds TSB - Current account charges The judge even goes onto say, having been unsuccessful in finding the current terms and conditions, that he would have given thought to including them in evidence and allowing Mr Berwick to make comments about them. This is a clear indication in judicial language that if he had seen them he would have included them as part of the evidence before him - in fact he did quote part of the personal terms but it is unclear whether this was from the documents already in the bundle or from the internet but failed in any event to take into account the most relevant passage. Para 18 “I find it therefore ON THE EVIDENCE BEFORE ME that there is no express term of the contract between Mr Berwick and the bank of the type referred to above.” (Emphasis added). This is the fatal blow to the claim that the charges are penalties. The judge then goes onto say that there is not sufficient necessity to imply such a term into the contract. Over the next paragraphs, from 19-23, the judge talks about the operation of bank accounts. At paragraph 24 he says: “It would nor doubt be possible to draw up a contract in which the customer was placed under an express obligation to ensure that there were at all times in his account sufficient cleared funds to meet any payment request authorised by him from that account on the day the payment fell to be made. Such a clause would be onerous for the customer…….” The judge has just identified the terms and conditions of almost all banks – certainly Nat West and many others have exactly this term. Looking at the Lloyds T&Cs (link above) re business accounts paragraph 6.2.1. appears to me to be exactly the same: “You should only overdraw your account with an overdraft limit agreed in advance with your Relationship Manager”. The words “ONLY” and “AGREED IN ADVANCE” constitute exactly the prohibition the judge was talking about. And in respect of personal accounts the judge missed this bit: "We use the balance on your account at the start of the day to make decisions on whether or not to pay cheques and other items presented for payment that day. Please make sure you have enough cleared money in your account at the close of business to cover any payments you have made (or cheques you have written) for the next day. We pay some cheques the same day as they are paid in". This is equally a term requiring that in the proper running of the account there be a cleared balance OR the result will be a charge. This is, although not in as strong terms as the business account terms, a clear provision of the account showing that the fee (charge) will be imposed if you break the requirement of having cleared funds in the account or sufficient left on your agreed overdraft. At the very least it is a sure fire introduction into the argument about cloaked penalties. The term itself sets out that the fee arises purely on the happening of the event, and as such is a penalty or default charge, rather than a "fee". Even if if it is arguable that there wouldnt be a breach of the personal terms and conditions there is a very strong argument to follow the line very firmly stated by the OFT regarding cloaking the charge to make it look like something else. Personally my view is that there is a breach of a requirement by the bank. Note the "Please make sure....." I am convinced that the correct interpretation of the term is as a mandatory requirement. If you are required to make sure that you always do something then you are required always to do it. The judge has specifically stated that such a term would be onerous for the customer. And there they are, in Lloyd’s own terms and conditions – the very sorts of term that Lloyds denied existed in their defence. Para 29 - UCTA 1977 UCTA is dismissed as an argument because the Judge has found that there is no breach of contract. Service Defence The judge then goes on up to para 39 to talk about the service argument and essentially makes points about the “whole range of services” provided by the bank and the fact that such an exercise is simply not possible on the information he has. His evaluation of how one would measure unreasonableness in section 15 is interesting although certainly open to argument. My view is, and has always been, that the penalty charge argument is the correct focus and that suggesting artificially, as the Judge does, that going overdrawn (even in error) is a “deemed request” for banking services, is too fanciful and inaccurate in terms of how banks actually deal with the circumstances leading up to a default charge – sorry, to use banking language – “fee”. Para 40. - UTCCR Here the judge goes onto discuss UTCCR but the discussion is meaningless in the context of the claim because the judge has found that there was no breach of contract leading to the imposition of charges. Conclusion The claim failed entirely because the judge found no breach of contract. In fact the terms and conditions imposed by Lloyds bank DO contain a prohibition about going overdrawn or exceeding an agreed overdraft limit and so, in reality, although not on the evidence before him, the judge would have found that there was a breach of the agreement. The judgment would have been entirely different had the terms and conditions been before the judge on the day. This case shows that it is for the Claimant to prove the claim. That means that you must have the terms and conditions in your court bundle. In fact, you really ought to have the terms and conditions that have applied to your account in various amended forms for the whole period for which you are claiming charges so that you can show that there has always been a contractual term that requires you not to go overdrawn or exceed an agreed overdraft limit. As to appealing – it seems to me that the fact that the bank’s defence denied the existence of this term when it clearly is included in their terms and conditions is a good starting point for the appeal. The judge really ought to have adjourned the hearing in my view and it is a great shame that he did not. As the judgement stands today it is of practically no relevance to the penalty charge argument by virtue of the fact that it was decided against the finding of fact that there was no breach of contract. As we have seen in reality bank’s terms and conditions are drafted such that the charges are imposed in circumstances of a breach of the agreement. So, don’t stop – just be prepared. All the best everyone.

To most of the above posters I think your concerns are misplaced. This was NOT a judgment on the issues - at all. Therefore it is of absolutely NO relevance to us in terms of the legal issues. The bank won because the judge did not consider Lloyd's T&Cs because they weren't in the bundle of documents before him. If they had been he would have found without doubt that those T&Cs require the customer not to go overdrawn or exceed an o/d limit. Then he would have found that the charges arise in circumstances constituting a breach of contract and are, as we all know they are, penalty charges. The judgment ONLY says that the judge had not been persuaded that there was a breach. That consideration was not one of law, but based on the lack of evidence before the judge. Blimey the judge even had a good look for the T&Cs on the internet himself but couldn't find them. This was ENTIRELY down to an inadequate trial bundle and has nothing whatever to do with the actual issues betwen the banks and their customers. On the basis of the information available to him (or lack of it) the judgment was given in the terms that it was. I personally think the judge's reasoning on implied terms was inadequate. He should have found that the charges or fees only arise when a customer is going overdrawn or exceeds an overdraft limit and as such as a matter of logic that must mean that the charges/fees are imposed in circumstances contrary to a requirement that the customer does not do this. There is no other logical explanation for their imposition in the first place. The service argument is much less satisfactory academically since it envisages a "deemed request" by the customer for a puported service and on any examination of what happens in practice this is just too far fetched. In my view he should have recognised the punitive nature of the charges/fees and matched them with what must therefore be a breach of the bank's requirments about how we operate our accounts. Of course none of the above thought process would have been necessary if the T&Cs had been in the trial bundle. There is NO comfort for the banks in this judgment, except that they will try to sell it to the wider world as a vindication of their plundering of their customers' money. Don't let them. Carry on. The one salutory lesson we can all learn from this is that if you are claiming YOU have to prove every element of your claim, including that the charges are imposed because of a breach of the agreement with the bank. This means that you MUST have your bank's terms and conditions for the current account on which you are claiming in your trial bundle. Note from the judgement that in this case the bank (lloyds) denied in their defence that there was any term requiring a customer to keep in credit or within an agreed o/d limit. That must have been untrue and again the banks show themselves for what they are. Perhaps we could set up a library of T&Cs or at least amend any trial bundle FAQs to include advice to include the T&Cs in the trial bundle, or better, in the template LBA or Prelim to ask the bank to provide a copy at an early stage. In fact in taking this issue a little further we should really be demonstrating to the judges that this T&C imposing a requirement not to go o/d or to stay in an agreed o/d limit applied in respect of every charge. This means that we should have the T&Cs for our accounts that applied for the whole period for which we are claiming, so we may need earlier versions and in this respect we would definately need the banks to produce them.

Two cases were being heard. First guy didnt even serve a schedule of charges as ordered by the court and his case was dismissed because of it. Second guy did not have in his bundle the Lloyds Terms and Conditions governing his account - you know, the bit that says you must have sufficient funds in your account to cover any payments - that bit that is in EVERY single bank's terms and conditions.............Well, the bank didnt provide a copy in its documents, just a template defence and the claimant hadn't requested the T&Cs from the bank or found a copy himself. As it turns out the judge did have a quick look on Lloyds website to see if he could see the terms and conditions - guess what? They're not on there - surprise surprise. So..... the judge decided that the claimant couldn't show that he was in breach of contract by going overdrawn or exceeding an overdraft limit - therefore no breach of contract, no penalty. Most unfortunate for the second claimant - the moral of the story is if you are going to a hearing and alleging that charges are penalties MAKE SURE you have the terms and conditions with you and make sure that they require you not to go overdrawn or exceed your overdraft limit. I hope he gets these documents and appeals, although the appeal might not be allowed on the basis that he should have had this documentation in the first place. The judgment is absolutely nothing to worry about - excpet that it is being reported everywhere as "bank wins judgment on penalty charge case" and that the judge found that they were appropriate fees - all totally incorrect. You can read the judgement on the BBC News website.

can i ask where this quote comes from? Might be useful as an attachment to the Allocation Questionnaires.

Dont worry. They have offered to pay and you have accepted that offer. That is, as BF says, an enforceable agreement. You should keep on at them for payment. Don't worry about the court order for directions. Do not withdraw the proceedings until you have been paid - and the cheque has cleared. If needs be you could always apply for any strike out to be set aside on the basis of all that you have posted so far. At this stage just press for the money. Did the letter offering payment state a date by when the money would be paid? If so and this has passed write to the solicitors and say that they are in breach of the agreement and you expect payment immediately. If that doesnt work then come back here and we'll sort it out.

and here's a more up to date thread too. http://www.consumeractiongroup.co.uk/forum/natwest-bank/35672-cobbetts-cpr-18-request.html

Hi - there are now quite a few threads with regard to how to deal with the guff you get sent by Cobbetts. Mine is quite old now but I think still covers the matters you are concerned about. You could also search under Cobbetts or Part 18 requests to find other threads, and of course have a look in the Nat West forum. http://www.consumeractiongroup.co.uk/forum/general/15172-reply-stock-defence-18-a.html Best of luck

Absolutely not - the £12 suggestion is laughable. The OFT only said that they would not take any action themselves against a c card company charging this much or less. It is NOT set out by the OFT as an acceptable level of charges. In addition the charges you are reclaiming are UNENFORCEABLE - that means just that - they cannot be enforced - in their entirety. Unenforceable does not mean "partly unenforceable, except some random amount of £12.00". A & L crack me up. I issued for my brother - they paid up over £5k without defending. I then issued for his joint account with his O/H for less than £1000 - Wragge & Co have entered a defence - ho hum. And to make their suggestion even worse if they have defended your claim they will have said that the cahrges are fair and reasonable, blah blah, so why do they now say that £12 is the correct figure - either the amount they charged was a correct estimate of their loss at the time they charged it or it is unenforceable. Wragge & Co have even said the charges are fair and represent administrative costs in thier defence mentioned above and in that defence have also said that £12 is a fair figure. What a bunch of dolts. Tell them where to get off adn don't be phased by their crass stupidity.