Lloyds win in court on 'No Breach' Argument

[Moog]

btw LOVE the avatar Moog...he's gotta be my fave!!!! well, him or evil edna I wanna change my user name!!!!tee hee

Wxxx

You are too nice and cuddly to be Evil Edna W


.......runs for cover

[Amethyst]

anyone got a copy of the transcript ?? cause that'd be really interesting.

[lioness]

I think it was the way the judge couched the questions though - he asked if Kev thought he would be in breach of contract if he gave a cheque to someone and they didnt present it for some time and then when they did there were insufficient funds. Why did he ask about an instance such as that - and not one where there wasn't such a delay?

I think it was couched in terms to get the answer he wanted to hear and so it was a bit of a trick question IMO, but I still think the correct answer would have been yes, because you're not supposed to forget about cheques you've issued - are you - and there are many means of checking your account, online banking being one of them, so not knowing the status of your account is not really plausible these days, I think.

[lioness]

A link to the Kevin Berwick v Lloyds Approved Judgement

http://news.bbc.co.uk/1/shared/bsp/h...ank_charge.pdf

[Simian]

I believe that a cheque becomes "stale" after a certain period of time, though, and the bank will not necessarily process it without further enquiry. So IMHO, the Judge's question was not specific enough to warrant any specific answer.

So there.

[willowb]

You are too nice and cuddly to be Evil Edna W


.......runs for cover

.....you better!!!.......


Wxxx

[Moog]

Oooh....has she gone yet? That was scary!

I forgot to post this up (from the OFT consultation doc)

5.8 Disguised penalties.

Objections under the Regulations to an unfair

financial penalty can apply to any term which requires excessive
payment in the event of early termination, or for doing anything else
that the supplier has an interest in deterring the consumer from
doing.21 The Regulations are concerned with the intention and effects
of terms, not just their mechanism. If a term has the effect of an
unfair penalty, it will be regarded as such, and not as a 'core term'.
Thus a penalty cannot be made fair by transforming it into provision
requiring payment of a fee for exercising a contractual option.

It doesn't get finalised until August but, this certainly shows intent and OFT consultation terms do not usually get changed much on finalisation. Here are the links (you may want to make them stickies)

http://www.oft.gov.uk/shared_oft/rep...oft311cons.pdf
http://www.oft.gov.uk/shared_oft/rep...ns-annexes.pdf

[Nattie]

I just wanted to add to the discussion two points. Mr Barwick stated in front of the judge that he felt that if a cheque was presented a few months after it had been written and there was insufficient funds and he was charged that it was not a breach by him of the contract. That was a mistake that he should have said Yes to. The second one is that LloydsTSB is not the FIRST winner but my very own NatWest who won a case in 2005, the so called HappyHenry case with exactly the same argument that lloyds TSB had. No precedent No worries and No chance of stopping claims, just a newer environment and more knowledgeable at that.

[SurlyBonds]

To sum it up VERY simply.... we don't need to drill into the detail of the order...

The case laws that we are quoting (and use of the UTCC Regs) are that "yes the contract was breached", BUT the bank should not be making money over and above their liquidated damages.

By denying that he broke the contract, he fell right into a big elephant trap so the judge had no alternative but to then question precisely how he was underpinning his claim.

Basically, he did not follow the procedure.

To anyone in Court... admit that the contract was broken, and then the rest of the precedents and the UTCC regs will kick into action and win you the case.
It really is THAT simple.

[lioness]

Kevin Berwick has taken the advice of a senior QC and will not be taking his court case to appeal, but will be appealing instead to the Financial Ombudsman BBC NEWS | Business | Lloyds wins second charges case

[willowb]

Hi hun

So, he's not appealing because the Courts won't allow new evidence in an appeal? What new evidence would he need? T&Cs wouldn't be new evidence as the Judge already relied on it, surely? Bear with me! lol

Wxxx

[lioness]

hi willow

seems the T&Cs would be new evidence because neither side produced them for the hearing and the judge couldn't find them on the website.

[strangewayofsavin]

Sorry I thought that an agreement between 2 parties, that contained terms and conditions was a contract, if you fail to comply with the terms and conditions you are in breach, breach's are punishable by termination of the agreement, or a penalty, perhaps Lloyds should read the contract law of England & Wales.