Bringing Your Case To Court
Here are some notes which may help you form you ideas and assist you in preparing to go to court.
What Are The Issues?
Of course it depends on what the bank says in their defence. The banks two possible arguments are either that
- The charges levied are just enough to recover their losses in your actual case
- That they are providing you with a service which is contemplated by the contract and that they are merely charging you for this service and making a profit from it as would any other business.
They are likely to plead both of these arguments in the alternative.
Because you are the person making the challenge in the court, it is your responsibility to prove your case. You have the 'burden of proof'.
The standard of proof is not the criminal standard of 'beyond reasonable doubt'.
It is the civil standard of proof. The civil standard of proof is the balance of probabilities.
This means, in theory, 51%. This means that the judge must merely be persuaded that you are probably right. Then the burden shifts to the bank to move the balance of probabilities back against you. However, it is likely that a judge would want more certainty than that and it is likely that he would want your case proved so that he is fairly confident of the merits of your case. You might say that this is 65% sure at least. (These are just figures which I am using to convey a flavour of the ideas.)
How To Prove Your Case
You have to convince the court as to the facts and then you have to convince the court that when the Law is applied to those facts that it all adds up to an unenforceable charge being levied by the bank.
Step 1. The Facts.
This is the most important part of your case. The law is not really in doubt.
The problem is that you have no access to the bank's accounting information which will let you actually demonstrate to the court exactly what it does cost the bank to respond to your 'transgressions'.
This means that you can only offer circumstantial evidence and then encourage the court to draw its reasonable inferences.
Step 2. You must show court that:
If the charges are to pay for the cost of transgressions that they exceed that and are disproportionate contrary to common law and consumer legislation
If the charges are the price of a contractual service then the price exceeds what is reasonable as required by S.15, Supply of Goods and Services Act 1982
Are The Charges Proportionate?
What can you offer the court?
On the issue of whether or not the charges are proportionate:-
- That the process is an automated process.
- That the process operates many thousands of times each day and millions each year so that the cost of it is spread over a huge number of transactions and shared equally between them.
- That the bank has been invited to provide a proper breakdown of its costs and that it will not do so.
- That a senior and highly respected member of the banking industry, Peter McNamara, said on BBC Radio in 2004 that the charges were used to fund free banking for all personal customers. (This argument is especially useful for claims against Lloyds as he was head of personal banking at Lloyds). You should produce a CD of the interview along with a CD player. Give the bank an advance copy about 21 days before the hearing (recorded delivery) and warn them that you will be producing it in court. Warn the court as well.
- You can call in other documents such as minutes of select committees or letters to you or to others where the banks either expressly or impliedly admitted that the charges are more than is needed to cover their losses.
Are Charges A Fee For A Profitable Service
On the issue of that the charges are merely a profitable service:-
- You are arguing that under s.15 Supply of Goods Act the cost of the 'service' is required to be reasonable. S.15 says that where no price is agreed at the time the contract is made, that a reasonable price will be implied.
- The cost of blocking a DD and sending letter is most probably less than 50p (or whatever you think that you can argue). The bank is a High Street business. Normal mark-ups on the High Street are 100%. It would not be reasonable for the bank to mark up significantly higher than this without a full and detailed explanation.
- The actual cost cannot be very high because the service is highly automated and operates millions of times per year so that the cost is spread and shared widely.
- The bank has been invited to provide a detailed breakdown of it costs and it will not do so.
- You can bring in useful documents as well where for example the bank has argued that the charges do only allow then to recover their losses. If the bank argues this then it effectively destroys their case that the charges are he reasonable price of a service.
Read through this guidance. Practice the logic. You will find that it will suddenly 'click' with you and at that point you will be able to talk about it fluently and also develop upon it if you are called to do so in court.
Page Created By Me01273 05:05, 27 June 2007 (BST)