BBC

Bank customers reclaiming overdraft charges in court will continue to face a lottery unless a test case is heard, a senior county court judge has said.

Stephen Gerlis, who speaks for all district judges in London, said the number of cases was "unprecedented".

He was speaking after a judge in Hull threatened to strike out 20 claims. Most previous rulings have gone in favour of customers.

The judge said all sides should let a case reach the Court of Appeal.

To date the banks have avoided contesting hearings to avoid a legal precedent being set that could potentially cost them millions.

Judges have therefore tended to automatically find in favour of the claimant without formally setting a precedent.

In the Hull case, District Judge Ian Besford cited a hearing won by Lloyds TSB in Birmingham. The ruling was not binding but other judges are entitled to follow it if they wish.

Judge Gerlis told BBC Radio 4's Money Box programme the legal system currently has no mechanism to quickly resolve the issues emerging from the "mass litigation".

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A county court judge has threatened to strike out claims by 20 bank customers who are suing for the refund of overdraft charges.

District Judge Ian Besford, in Hull, said the claimants were unlikely to succeed because Lloyds TSB had won a similar case recently in Birmingham.

It is the first time a judge in the UK has quoted this case as a precedent.

However, it leaves the legal position unclear as other judges have usually found in favour of claimants.

No prospect

Several people suing Lloyds TSB, Barclays and HSBC have contacted the BBC about Judge Besford's decision.

His order states that he plans to strike out their claims on 4 July, as they disclose "no reasonable prospect of success in the light of the recent decision" at Birmingham county court.

In that decision, revealed exclusively by the BBC news website, Kevin Berwick lost a claim for £2,545 against Lloyds TSB.

It was the first time that a judge had examined the legal issues involved.

Normally when claims get to court, judges find in favour of the claimants because the banks fail to turn up to defend themselves, and thus the legal issues go untested.

Marc Gander, a spokesman for bank charges campaign the Consumer Action Group, said:

"Kevin Berwick lost in his case in Birmingham because he didn't supply enough evidence.

"This judge in Hull seems to be striking out the claims before he has even seen the detailed evidence of each claimant."

Judicial decision

Judge Cooke in Birmingham took the view that the bank's charges were legitimate fees for a package of services and not penalty charges that might be deemed illegally high.

Although his ruling did not set a formal precedent, other judges are entitled to read it and decide, if they wish, that they agree with his arguments.

"It is a judicial decision," explained Barry Hunter - Kingston-upon-Hull court's manager, said of the latest order.

"It is entirely up to each judge to decide for himself if the Birmingham judgement is an interpretation of the law he agrees with," he said.

But one of the 20 Hull claimants, Mark Freer, queried Judge Besford's decision.

"Why not look at the judges who throw out the cases?" he asked.

"Some judges complain the banks don't turn up, or settle just before."

Strange

The inconsistency that is emerging in the way the judicial system is dealing with these cases suggests that the success of a claim may soon depend on which court, or even which individual judge, hears the case.

Another recent claimant in Hull, Nicole Haslam, said: "I have recently obtained £5,000 in charges from HSBC and my husband is in the process of taking action to recover around £3,000."

However her husband has now been told that his case may now be struck out next month.

The claimants in Hull have seven days in which to object.

If their objections are unsuccessful they can then appeal to the designated civil judge for the Humber area, Judge Thorn QC.

Another of the claimants, Dave Jeffrey, said he planned to continue with his claim for £1,294.

"It is a bit strange because the Birmingham case was not a precedent," he said.

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Webmasters Comments

Again, there is no cause for panic over this, it's a case of waiting to see what happens in this instance. The banks are still settling cases out of court, and you should carry on with your claims.

It seems a very unfair system in the Small Claims Court, in that its essentially down to luck which judge you get, and two judges can rule in two very different ways for the same case.

Although it's most likely a one off, if it does happen again it may be worth directing complaints to the Financial Ombudsman rather than the courts, so theres still a way to claim! It does not mean the end of bank charge claims...

People trying to reclaim overdraft charges from their banks have started using a new legal tactic - asking a judge to strike out a bank's defence as an "abuse of process".

In the past few months, tens of thousands of people have reclaimed millions of pounds after accusing their banks of levying illegal charges, going back up to six years.

In some cases, the banks have paid up quickly when presented with a detailed written demand for a refund.

In others, they have stalled, only to give in at the last moment - for instance, by paying up on the day of a court hearing, or by simply not bothering even to attend court to argue their defence.

This last tactic has started to irritate a growing number of judges around the country, who have begun making it known that they are not very happy at the way their time, and that of their courts, is being wasted.

But the example of Maria Dobson, from Newbury in Berkshire, highlights a way in which some claimants may be able to tap into this growing discontent among judges.

Abusing the system

In February, she lodged her claim against the Abbey, for £3,865.86, at Newbury county court.

She then reached what is known in the procedure as the allocation stage.

It is then that a judge, after reading the claim and the bank's defence, will typically set a date for a court hearing.

But knowing that the Abbey, in common with all other banks, was highly unlikely to turn up on the appointed day, she adopted a different tactic.

"I put in a draft order, asking him to say that the Abbey was abusing the system and to throw out the case as an abuse of process," she said.

"I put in a list of cases that the Abbey had settled, and said they had settled so many a few minutes before going into the court room, I felt the bank had no intention of defending itself," she added.

Struck out

The result was swift.

Judge Burgess agreed with Mrs Dobson. On 1 May, he struck out the Abbey's defence in a couple of brisk sentences and awarded her the money.

By this point, extra interest had pushed her claim up to £3,929.61.

This particular judge had, in fact, made a similar decision at Reading county court in March.

Meanwhile, Judge Thomas at Rhyl county court has made a similar order, against Lloyds TSB, without even being asked.

He has demanded that the bank supply, by 5 June, a list of all claims it has defended in court and all those not defended. Otherwise, the bank's defence will be struck out.

The claimant, Ben Manesh, said this was encouraging.

"The judge did this on his own initiative," he said.

"I can't see the bank complying with this request."

Vexatious defendants

The Abbey is one of the banks, along with the Yorkshire/Clydesdale and the Alliance & Leicester, which have been emboldened by two recent cases in which Lloyds TSB successfully defended two refund cases brought by customers.

Quite a few would-be claimants now say they are worried about pursuing their claims, believing that their chances of winning have been damaged.

But campaigners against bank charges believe that persistent, well-organised claimants are still very likely to win.

"You have heard of the concept of the vexatious litigant?" asked Marc Gander of the Consumer Action Group.

"Well the banks are the same, but in reverse - vexatious defendants, and on a massive scale," he said.

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Lloyds TSB has won a second county court case against a customer trying to reclaim overdraft charges.

A case was dismissed by a judge at Lancaster county court on 11 May, four days before a ruling in Birmingham against a claim from Kevin Berwick.

A builder from Lancaster, Julian Rudd, had tried to recoup £3,000 in overdraft charges and interest.

Lloyds TSB did not turn up to argue its case, but the judge decided Mr Rudd had failed to state an adequate claim.

Judge Forrester, who heard the case, said:

"It is ordered that the particulars of claim are struck out as disclosing no reasonable grounds for bringing the claim set out as a coherent set of facts, which if true, disclose a legally recognisable claim against the defendant."

Mr Rudd, who did not attend the hearing either, said afterwards that he thought his paperwork might have been inadequate.

"I have a feeling that if we had reworded it, we might have had a shout"

No appeal

The man who lost in Birmingham county court on 15 May, Kevin Berwick, has decided not to appeal against the decision, but to go to the Financial Ombudsman Service instead.

A QC's opinion suggested that he had failed because he had not put forward some important evidence, such as the exact terms and conditions of his account with Lloyds TSB.

As a result of the lack of this evidence, the QC advised that the rest of the case was not important and did not deal with any legal principle.

As the rules for appeals in civil cases do not allow fresh evidence to be brought forward, Mr Berwick has been advised that there would be no benefit in appealing.

Marc Gander of the Consumer Action Group said: "These cases, in Lancaster and Birmingham, show that people have to be more careful about their preparation."

'Fed up'

Despite these two victories for Lloyds TSB, some courts around the country are becoming more annoyed at the standard bank tactic of failing to turn up in court to defend a claim, even though a written defence has been submitted.

It has come to light that a district judge at Rhyl county court in Denbighshire has written to Lloyds TSB telling it to submit, by 5 June, a list of all the cases it has taken to trial and all the ones it has settled.

The order of Judge Thomas says that if it fails to do this, "the court... is considering striking out the defence as an abuse of process on the basis that the defendant has settled all previous claims of this nature."

At Worcester county court, a judge recently told one bank charges claimant, David Huckerby, in whose favour he had just ruled, that this was the 50th time that a bank - also Lloyds TSB - had failed to turn up before him and he was now getting "thoroughly fed up".

These are the latest among a growing number of judicial criticisms.

In recent months, similar comments have been made by judges in Lincoln, Leeds, Bristol and even the Mercantile Court in London, a branch of the High Court.

There, Judge Mackie openly accused some banks of behaving unreasonably, by procrastinating when customers tried to sue them for the return of overdraft charges.

Giving in?

Even though Lloyds TSB is, so far, the only bank to win such a case in any court, it is still continuing to settle cases against it.

The campaigning website Moneysavingexpert records 24 separate examples of the bank agreeing to demands for refunds.

All have come since 15 May, when news of the Birmingham judgement was revealed exclusively by the BBC News website.

A Lloyds TSB spokeswoman told the BBC on Tuesday: "We do settle some cases, because we don't like to see our customers in court."

Moneysavingexpert also records four cases in which the Clydesdale/Yorkshire bank has settled claims out of court since 15 May, even though it is telling claimants that from now on, it will rely on the Birmingham judgement in its own defence.

However, a spokesman for that bank refused to say whether or not it would now instruct its solicitors to turn up in court to argue its case in front of a judge, or merely continue to rely on a written defence, in the hope that this would be persuasive.

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Webmaster's Comment

It's worth nothing that again, although it's not the best of news, this isn't a cause for panic!

Like the previous case, because this claim is in the small claims court, it does not set a precedent, and so will not influence anyone elses claim.

Although I haven't seen the judgement for this case, it appears that the case was lost because the claimants Particulars of Claim weren't up to scratch.

One of the problems of the bank charge revolution is that claimants aren't doing enough research! Whilst you can make the claim yourself, you are taking the case to court, and so need to be professional and sure of what you are doing. Some of the statements of claims being used are lacking the correct details, and so these cases are practically doomed to fail before they even start!

Before you make your claim, read all the steps on this site to ensure you know about every stage of the process. Also, do not deviate widely from our suggested Particulars of Claim, which contains all the information you need to make a valid claim. The problem with many claims is that they are not including the necessary details, everything in our example claim should be present in your actual claim that you submit to the court.

Follow these procedures, and you still have a very good chance of winning your claim!

The Alliance & Leicester (A&L) bank has apologised for a letter sent to customers who are trying to reclaim overdraft charges.

The letter cited last week's favourable court ruling for Lloyds TSB in which that bank won a judgement in Birmingham county court.

The A&L also hinted that it might have to close the account of one customer if he did not accept an offer of £66.

Such a move could be against industry rules about treating customers fairly.

Precedent

The letter has been sent out to some customers by the A&L's legal firm, Wragge and Co.

In it, the bank's lawyers claim the Birmingham ruling in favour of Lloyds TSB was a precedent, although it also admitted that the ruling was not binding.

"It may be relevant to you....to consider also the decision which has recently been reached in Birmingham County Court on the first of the 'bank charges claims' to come before the court on an adjudicated basis.

"We are aware that the decision is not necessarily binding at first instance on other Judges in other courts around the country.

"That said, this case is a precedent and our client will rely upon it in the course of these proceedings."

Intimidation?

One man who received the letter, John Smith from Leicester, said he thought it was an attempt to put him off pursuing his claim for £3,000.

"It's disgraceful," he said.

"They are trying to intimidate me no doubt," he added.

The letter he received referred to the possibility of his account being closed if he did not accept A&L's offer of a £66 settlement.

"We would like to reassure you that if you do accept our offer of settlement we will continue to operate your account," it said.

"We would only do so on the basis that you accept the terms and conditions of your account previously notified to you and that charges will be applied in accordance with our current charging policy."

In February, the Financial Ombudsman Service criticised the A&L for closing the accounts of some customers who were suing the group for excessive overdraft charges.

The bank was ordered to pay compensation to one man whose account it had closed, with the Ombudsman ruling that the customer had the right to complain about the charges without the threat of punitive action.

Bank apology

The letter has been received by other A&L customers who have also complained to the BBC News website.

When asked about these letters by the BBC, an Alliance & Leicester spokesman said it had only been sent out to a small number of customers.

"We apologise if any customers were concerned by the tone of the letter as that was not the intention.

"As soon as we became aware of this, we instructed them (Wragge and Co) to remove any reference to the (Birmingham) case," he said.

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Banks are being accused of seizing on a recent court victory in Birmingham to persuade customers to drop their claims for repayment of overdraft charges.
A district judge in Birmingham county court unexpectedly found in favour of Lloyds TSB earlier in May when it defended a claim for a £2,545 refund.

Now other institutions are reported to be citing the case when fending off claims from their own customers.

But many of the banks complained of by customers deny the claims.

Consumer lobby group Which? advised people not to be put off, arguing that the Lloyds TSB case had no value as a precedent.

"This tactic may put the fear of God into people," said Which? lawyer Ingrid Gubbay. "It is treating them unfairly, and is a very aggressive attitude."

'No grounds in law'

One bank which appears to be capitalising on the Birmingham judgement is Abbey, several of whose customers have complained to the BBC News website.

Fiona Alton from Darlington has started a claim for nearly £10,000 against the bank, whose overdraft charges - she says - have crippled her and her husband's finances in the past three years.

The day after the Birmingham case, she says she received a letter from the Abbey which argued that the judgement meant there were "no grounds in law for recovering from the bank the amount of any charges he had paid to it".

Fiona was not impressed.

"They are trying to frighten the life out of everybody," she said. "They are relying on people's ignorance."

Another claimant, Graham Clarke, has received an even more brusque approach from the Abbey.

So much so that he accuses the bank of trying to bully him.

"On Friday I received a call from Abbey, the effect of which was that Abbey were quoting the judgment as a reason I should settle and offered me £90," said Graham.

"When I refused they tried to state this case means that now, I have no hope of being successful, and that the judge would look unfavourably on me continuing with the case and could award heavy costs against me for wasting Abbey's and the court's time."

'Full facts'

The Abbey denied it was acting improperly.

"The issue regarding bank charges isn't as clear-cut as customers and the media think," said a spokesman.

"Where we are faced with the threat of litigation we feel it is entirely appropriate to ensure that customers have the full facts to hand.

"We have not, nor will we, advise the claimants on the significance of these legal developments, and we leave them to draw their own conclusions," he added.

But Marc Gander of the Consumer Action Group, a leading bank charges campaign group, said any attempt by banks to suggest the Lloyds TSB judgement was a binding precedent would be wrong.

Relying on judgement

The Clydesdale is another bank that is now taking a new tack in the light of the Birmingham judgement.

It has written to a customer in Sheffield - who wants to remain anonymous - warning him about the potential costs of continuing with his case, saying that the bank is now confident that his claim will not succeed.

"This has left me very nervous and I do not know what to do now," he said.

One woman from Portsmouth, who also wishes to remain anonymous, has been told by the Clydesdale bank that it is now changing its defence to her claim.

"We will rely on this judgment in the claims you have brought against the bank when we present our defence in County Court," the bank said in a letter.

However, a Clydesdale spokesman said the Birmingham case was being presented to claimants in an entirely neutral manner.

"We don't claim it is binding, and we give them copies of the judgement," he said.

No new tactic

Other banks have been accused of adopting this more vigorous approach in trying to persuade claimants to settle.

Barry Mills, from High Wycombe, received a letter from HSBC citing the Birmingham case one day after the judgement.

"I think it's just another tactic to get out of paying all the money," said Barry.

HSBC said it had definitely not adopted a new policy of citing the Birmingham judgement in standard letters to claimants.

A spokesman explained that it had been mentioned in an exchange of letters about legal cases, which had been initiated by Mr Mills, and it was certainly not claiming that the Birmingham ruling was binding.

But a bank spokesman added: "It is not unreasonable to point out there has been a judgement."

Another BBC reader, Robert, from Altrincham, reports receiving a phone call from the Royal Bank of Scotland last week, offering him a partial refund of £1,150 on his claim of £3,300.

He was not impressed when the bank's employee told him the Birmingham case meant its charges were valid.

"She was really snotty," he said. "She was trumpeting the fact that someone had lost in court."

However, RBS said it was not the bank's policy to quote the Lloyds TSB court victory to customers.

"We have... found absolutely no evidence of staff referring to this judgement," a spokesman said.

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The Financial Ombudsman Service has seen a surge in complaints about bank charges, and is now investigating 1,000 new cases every week.

However, complaints about mortgage endowment policies are now beginning to tail off, it said in its annual report.

Meanwhile, the Ombudsman for Estate Agents, dealt with an 18% rise in complaints to it last year.

The number of investigations it carried out rose to 586, with just more than half of them being upheld.

Bank charges

The number of complaints about banking services investigated by the Financial Ombudsman rose by 47% in the past financial year to 20,000.

"This increase has been driven by the flood of enquiries and complaints about current account charges for customers who go overdrawn without prior authorisation," said its annual report.

By March this year, this barrage of initial complaints - at times running to 3,000 a day - was turning into 500 new formal investigations every week, since then shooting up to about 1,000 a week.

However, the Ombudsman said that in every case it has dealt with so far, the bank has refunded the disputed money, so the service has been unable to made a detailed investigation or decision.

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Tom Brennan's hearing against NatWest was supposed to last no more than a day and determine if he could take the bank to court to reclaim overdraft charges.

In the end it took three days, and struggled to get away from the issues at the heart of the controversy surrounding charges that many borrowers are calling unfair and illegal.

Rather than a dry legal hearing, it became a dress rehearsal for a trial - as both sides argued over whether it was fair that banks charged customers for running up unauthorised overdrafts.

"We effectively had a mini-trial," Mr Brennan said after the hearing.

"You are not supposed to have a mini-trial, but that is exactly what we did. At least it shows there are arguable issues."

Unfair or not?

The hearing itself was unusual, in that Mr Brennan was asking for permission to pursue NatWest Bank and its overdraft charges in a novel legal fashion.

Specifically, he wanted to sue NatWest for exemplary and aggravated damages, and also for unlawfully damaging him economically and for breaching its duty to him as a customer.

The key issue is that a full trial would force the bank to justify why it charges quite so much when people go overdrawn without permission - something the bank has refused to do so far.

At the heart of the argument were charges of £28 per month for being in the red without permission, and a further charge of £38 that the bank imposed for every bounced cheque or standing order.

"The charges are unfair because they do not reflect the actual loss to the defendant," said Mr Brennan.

He added that the trial should go to court because it "would have significant impact beyond the claimant and the defendant".

Consumer crusader

That is precisely why NatWest is fighting so hard to defeat the action.

The judge, Peter Simpson, did not appear very keen on the idea either.

He took a dim view that this claim should constitute a test case, and suggested to Mr Brennan that he was starting to look like a consumer crusader rather than someone with a genuine personal claim.

Mr Brennan, who was representing himself in court, battled hard to win him over.

"It is not a question of cash, it is a question of justice," he said.

"Lives are ruined by these kinds of charges - all I seek is some justice."

In fact, he also wanted "reparations for harm caused to me and other people".

Litigant in person

At times Judge Peter Simpson took a critical view of the fact that Mr Brennan was representing himself, a so-called "litigant in person".

He upbraided Mr Brennan for failing to submit full and proper documentation, and accused him of trying to plead his case by instalments.

"I do not accept you are an ordinary litigant in person," the judge said sternly, referring to the fact that Mr Brennan was a recently qualified lawyer - albeit specialising in another area entirely, planning law.

Speaking outside the court after the third day of argument, Mr Brennan conceded he had had a hard time before the judge.

"It's fair to say it was an uphill struggle," he said.

Expert witnesses

Judge Simpson reserved his most severe grilling for Mr Brennan' request to call two professors as expert witnesses, should the case proceed to trial.

"It is not clear they have the relevant expertise," said the judge in the course of an hour-long argument on that issue.

Should Judge Simpson allow Mr Brennan to proceed and the case go to court, on any of the numerous points he raised, then the eventual case probably would last for many weeks.

That could be very costly for Mr Brennan.

Ben Pilling, NatWest's barrister, pointed out that Mr Brennan "does not have the resources to pursue litigation", and questioned the quality of the evidence that he would be able to put forward on his own.

So far Mr Brennan's efforts have cost him, by his own estimation, more in lost work as a barrister than he has been claiming he is owed by NatWest.

And he reckons the publicity is damaging his developing career as a barrister.

Should his application to have a full trial be successful, he would be certain to get some financial backing from other bank charge campaigners to help him through.

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A legal attempt to force NatWest Bank to justify its overdraft charges has ended after three days in order for the judge to consider a verdict.

Newly-qualified barrister Tom Brennan has asked the court for permission to sue NatWest for damages, over what he claims are unfair bank charges.

Victory for Mr Brennan could open the way for other customers to claim extra damages in relation to bank charges.

NatWest's lawyers branded Mr Brennan's arguments as "madness and ridiculous".

The hearing took place at the City of London County Court, and the judge is due to give his decision in due course.

Damages claim

Mr Brennan accuses the bank of deliberately harming him by unlawful means, because the overdraft charges on his current account drove him into the red, thus damaging his credit rating.

Brennan is claiming a total of £3,393, including court fees and interest.

The NatWest has already refunded £2,548 and offered to pay him a further £1,600.

On Monday, arguing his own case before Judge Peter Simpson, Mr Brennan claimed these payments amounted to an abuse of power by the bank.

He said the bank had simply forced the money into his account before closing it, and argued that this should be seen as an attempt to circumvent consumer law.

"What the defendants have sought to do is buy their way out of this claim," Mr Brennan told the court.

He said that if this tactic by the bank was allowed then there was "no way to prevent the continued use of unfair terms" in its contacts with customers.

In response, Ben Pilling, acting for NatWest, replied that the "claim for causing loss by unlawful means was unsustainable" and that citing European legislation was of "no relevance".

Damaged hopes

If NatWest succeeds in seeing off Mr Brennan's claim, it would damage the hopes of thousands of bank customers currently suing their banks over charges.

Last week, Lloyds TSB became the first bank to defeat a court challenge by a customer for recovery of charges.

District Judge Cooke, at Birmingham County Court, dismissed a claim for £2,545 from Kevin Berwick.

Judge Cooke decided the bank's charges were not illegal contractual penalties but legitimate fees for servicing an overdrawn account.

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A legal attempt to force the NatWest bank to justify its overdraft charges will continue for a third day.
Barrister Tom Brennan told the resumed hearing on Monday that the charges left him so poor he could not even afford a pint of beer on his 30th birthday.

But Ben Pilling, the barrister for the NatWest, dismissed Brennan's legal arguments as "unsustainable, madness, and ridiculous".

The hearing at the City of London County Court will continue on Tuesday.

Circumventing the law?

Newly-qualified barrister Tom Brennan is asking the court for permission to sue the NatWest for exemplary and aggravated damages, over what he claims are its unfair and unlawful charges for unauthorised overdrafts.

He also accuses the bank of deliberately harming him by unlawful means, because the overdraft charges on his current account drove him into the red, thus damaging his credit rating.

Brennan is claiming a total of £3,393, including court fees and interest.

The NatWest has already refunded £2,548 and offered to pay him a further £1,600.

But arguing his own case before Judge Peter Simpson, Mr Brennan claimed these payments amounted to an abuse of power by the bank.

He said the bank had simply forced the money into his account before closing it, and argued that this should be seen as an attempt to circumvent consumer law.

"What the defendants have sought to do is buy their way of out this claim," Brennan told the court.

He said that if this tactic by the bank was allowed then there was "no way to prevent the continued use of unfair terms" in its contacts with customers.

Bank victory

A victory for Mr Brennan would lead to a full hearing of his case, possibly in the Mercantile court, a division of the High Court, and this in turn might force the NatWest to justify the level of overdraft fees its charges.

It could also open the way for other customers to claim extra damages in relation to the bank charges issue.

But if NatWest wins, it would damage the hopes of thousands of bank customers currently suing their banks over charges.

Last week, Lloyds TSB became the first bank to defeat a court challenge by a customer for recovery of charges.

District Judge Cooke, at Birmingham County Court, dismissed a claim for £2,545 from Kevin Berwick.

Judge Cooke decided the bank's charges were not illegal contractual penalties but legitimate fees for servicing an overdrawn account.

Legal argument

Brennan started his case last month by asking for permission to launch his novel legal arguments, rather than just claiming that the fees levied by NatWest were excessive.

On Monday he added to his armoury of legal points by claiming that a breach of the regulations on unfair terms in consumer contracts meant the NatWest was in breach a legal duty to treat its customers fairly.

Brennan also claimed that the bank had deliberately acted in an illegal manner by continuing to levy its charges, despite knowing they were now being investigated by the Office of Fair Trading (OFT) and despite knowing he was launching legal action over them.

"The bank knew the charges were disproportionate and therefore unlawful," he claimed.

"It consciously acted in an unlawful manner," he added.

Uphill struggle

Ben Pilling, acting for the NatWest, replied that the "claim for causing loss by unlawful means was unsustainable" and that citing European legislation was of "no relevance".

Mr Brennan also appeared to have an uphill struggle in convincing the judge of some of the merits of his case.

Judge Simpson repeated his earlier suggestion that Mr Brennan might consider waiting until the OFT had completed its enquiry in bank charges.

Suggesting that Mr Brennan, who argued that the country was crying out for a test case on the bank charges issue, might appear to be setting himself up as a consumer crusader, the judge said:

"I am not concerned with thousands of other cases - only this one."

At one point, Judge Simpson also said he did not see "any basis" for a claim for aggravated damages as this part of the claim - effectively for stress or hurt feelings - was usually not relevant to disputes over commercial contracts.

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