UK Banking Litigation Report
The end of 2018 seems a very good point at which to comment further on the UK Bank and Banking litigation position.
UK Banking Litigation is a different 'animal' now to when our report was first published and quoted in the Sunday Times in 1997.
Legal Aid is mow pretty much non existent for business banking matters and Litigation Funding is the new 'norm' - if you can obtain it. To obtain Litigation Funding a barrister is required to provide an opinion with a 75% plus chance of success and you need to obtain and pay for that first before Litigation Funding will even be considered. If you have engaged a solicitor as well you can double up on legal costs at that stage for the 'entry ticket' required for litigation funding.
Most smaller claims will not be able to access Litigation Funding, as winning such cases (even if there is a good chance of success) does not provide enough incentive for the funders i.e. a profit from a successful claim.
However, Litigation funding does take away the danger of costs awards against the business bank customer who loses but the litigation funders are always in the driving seat - not you.
That means if the situation arises where the Litigation Funder can 'exit' the funding arrangement by negotiating a payment to cover their costs and a profit from a bank - they may well do so, particularly when they do not believe that continuing the action will be more profitable to them!
For the Litigation Funders and all the lawyers involved it is about the Law and profit. The Litigation Funder is seeking profits from their investment in your case or claim and emotion has nothing to do with their decisions.
Having said that, Legal Aid (when it was widely available) was very similar in that the Legal aid Board could at any time remove the Legal Aid Funding and leave the bank customer 'high and dry' and then very much on their own.
But as reported by the BBC the UK Legal Aid advice network has been decimated by funding cuts which means that Litigants in person have increased by 650% in the last 6 years and that 'access to justice' for a great many will now rely totally on their knowing how to present their own case in a court. However, IBAS does directly assist LIP's with their Business Banking Disputes or Business Bank Litigation Dispute.
Those with Business Bank Banking Dispute Debt Claims need to know how business banking dispute cases can be 'managed' for the customer's benefit to avoid those disputes 'moving on' to a bank's court claim wherever possible and which IBAS have assisted many to do whilst negotiating and obtaining remarkable results for business banking customers - see IBAS FAQ's and also IBAS Testimonials
If you cannot obtain Litigation Funding your choices as a UK Business Bank customer in conflict with a UK Bank on a business banking debt claim dispute are limited and the choices are:
a) Fund an action or a defence with your own money.
Funding a claim against any bank is very costly so before you even contemplate litigation you first require a very good case.
We have seen some cases where the banking customer has engaged solicitors believing they do have a good case only to find later they were 'entrenched' in their litigating position without a way out. They then lost their case and their home because they were hit with a costs order they couldn't pay. The only winners in such actions are banks and lawyers.
Having looked closely at those cases IBAS would have advised against litigation because the bank customer's cases were just not strong enough and IBAS know just how strong those cases need to be to obtain a fair resolution.
Banking Litigation is very uncertain and costs for the loser can be very severe - as the bank will inevitably use QC's and teams of solicitors to back their claim or case. Also, even a very good case is subject to the 'whims' of a judge. With banking litigation, banks have been protected by the establishment (of which judges are a part) and as the large banks 'are too big to prosecute' (that comment by Andrew Bailey now FCA chief in December 2012 still appears to be accurate) - it doesn't need a genius to work out just how many large banking litigation cases have been won by the bank customers to date.
On those large banks: Royal Bank of Scotland (RBS) and GRG are one example and Halifax Bank Of Scotland (HBOS) the other - where despite a great many business banking cases and negative media publicity 'showing' just how disreputable those banks were - there have been few cases where the business banking customer has actually won their case in Litigation. That is not a coincidence.
Major Solicitor Practices enjoy banking litigation, as it is allows a 'feeding frenzy' where applications and counter applications can rack up large fees and costs for a long period of time, even before a court hearing takes place.
Banks are also now using Litigation Funding for funding their banking litigation cases and claims against their customers - so yet another issue may arise i.e. conflict of interest by the Litigation Funder. The choice of which is the better 'side' to fund may well become an 'issue'.
All the above means that you do require very 'deep pockets' to fund a business banking claim against a bank or to defend against the bank's litigation on a business banking debt claim but whichever litigation is to be addressed, you also require very effective information gathering, in specific areas and also the knowledge of what to do with that information. The two together will make or break a business banking case or allow for good negotiations with the bank.
b) Avoid Litigation unless it is forced on you by the bank.
In our experience, avoiding litigation is even more important now, with so many solicitors and 'litigation' groups 'trawling' for business, fees and profits, by advertising on Google and everywhere else. That was not the case when our UK Banking Litigation Report was first published and quoted in the Sunday Times in 1997 - at that time obtaining a solicitor 'willing' to on a case against a bank was then almost impossible to find, unless legal aid could be 'milked'.
Now, the 'Litigation groups' looking for Litigation 'cannon fodder' constantly trawling the internet are seeking that one good case to enable them to obtain financial benefit or in some cases to 'shame' the bank into paying up on their own individual claims.
IBAS opinion is that common sense has to be used and Litigation in our opinion is the last course of action to be contemplated in any business banking customer dispute - unless the customer's case is proven to be 'water tight' and 'stress tested' and properly funded.
However, if the bank litigates against the customer there may be no choice - that is a completely different matter over which the bank customer may not have any 'control' and where the bank's claim, if successful may well cost the business banking customer their family home.
IBAS will advise and directly assist directors, partners, sole proprietors who have been business banking customers facing business banking debt dispute claims by Bank Litigation. IBAS is the only non-profit organisation which will help and provide practical assistance for business banking customer who are defending bank debt claim disputes following bank litigation as Litigants in Person.
But, IBAS can say that where we have accepted and investigated those matters for the business bank customer or director and where the bank has litigated against the director or business banking customer on a business debt claim dispute - that IBAS has been able to negotiate some exceptional results for the business banking customer in those cases and IBAS will continue to do so as we enter into our 27th year.
That is also why IBAS favoured the Independent Tribunal for Business Banking disputes as we felt it would enable lower cost defences and claims for business banking customers in dispute with their bank - but an Independent Tribunal for Business Banking disputes is not going to be put in place despite the arguments against enlarging the Financial Ombudsman Service (FOS) of which IBAS was one (IBAS submission to the FCA is here) - as the FCA is adopting the enlarged FOS route regardless of the arguments raised. - 11th December 2018 - Eddy Weatherill IBAS
See IBAS Response and feedback to the FCA on SME as Users of Financial Services and also the complaint (provided with it) alleging an ex RBS senior manager 'decided' an RBS/NatWest FOS case in favour of RBS/NatWest whilst he was employed as an Ombudsman. Whilst we note the IBAS response was well down and 'buried' (in the 200 pages) - to their credit it was published by the FCA. IBAS will provide a copy of the IBAS response to the FCA to those who email and request it from us.
'I found IBAS to be Impressive & professional with no nonsense. I followed IBAS strategy totally and the result was spectacular. Thanks for putting my life back on track and saving me a bucket load of money - I cannot thank you enough. I would now start with IBAS and ignore all the others who are 'selling' an imitation of these guys but without IBAS knowledge! - AT
Update and introduction to UK Banking Litigation Report at 18.02.17
"At IBAS we have proved that there is an alternative to lengthy UK Litigation and many cases have been lifted from the legal treadmill and resolved by direct and active negotiation through IBAS. However, our research has highlighted that there are many thousands of people still in the grip of litigation, ignorant of any alternative, with no prospect of knowing whether their lawyers represent their best interests or not.
In recent years we have been able to identify a large number of the potential problem areas and at the same time help many avoid them, leading them to a successful outcome. Our recent initiatives have shown that where the will exists on both sides to reach a compromise IBAS involvement in the negotiation will certainly bring matters to a more favourable and fairer conclusion for the customer". - "My quote (which was made in 1997) is as true today as it was then- 18.02.17 Eddy Weatherill chief executive IBAS
We have been asked many times how IBAS help business bank customers with their bank litigation?
The short answer is yes we do and also that we have done so - over many years. Our aim is to gather important information which we know is necessary to assess legal arguments as soon after a bank demand as possible and before litigation is contemplated. Our experience is that laying the groundwork' for a successful litigation starts by preserving defences which exist, so they can be used if or when required. Banks will ' bully' in a number of ways to destroy the customer's case and they do not 'play fair', they are capable of many underhand tactics - particularly if they see your case as a potential threat to the bank. They will destabilize any threat where possible and they start at the first point of contact. IBAS has assisted in many cases which have been won by our members after litigation in the County Court, High Court and the Court of Appeal - so IBAS experience is extremely important for business banking customer in a debt claim or dispute with a bank.
- if you send us an overview of your dispute we will assess how best we can assist you.
From our research over time it appeared inevitable that UK businesses would continue to suffer at the expense of UK banks simply because the banks illustrated a constant desire for profit at any cost to UK businesses. Those continued bank excesses are illustrated by the colossal cost of PPI compensation now being paid. Although, many will not have received compensation for loss. The figures illustrates the tremendous damage caused to UK businesses by banks. Many businesses were forced into failure and bankruptcy by the banks excessive charging and deliberate profiteering evidenced by the many UK banks scams and cons orchestrated for profit, including PPI and SWAPS. But, many other money making schemes were used to profiteer from vulnerable business such as Royal Bank of Scotland's (RBS) Global Restructuring Group and RBS - NatWest 'specialised' lending which were advertised as being 'a support and business restructuring arm of the bank'.
IBAS UK Banking Litigation Report was first published in 1997. At that time our report evidenced the volume of banking cases which were legally aided (84%) and we did not have a figure for LIPs (Litigant in Person). Since that date driven by successive Government's desire to cut legal costs, legal aid has all but disappeared for the majority facing business bank claims for debt repayment. Those now f
IBAS has obtained in excess of £21 million in refunds, write-offs and write-down of bank debt (we stopped 'counting' some years ago) from investigations of UK Business Banking Disputes. We stopped counting when we realized that for an individual, it is only their business banking dispute and their business banking problem which matters most. That's not too surprising, because it's their personal assets which are at risk from the bank's 'plundering' if their business fails and then it's their Director's Personal Guarantee which is 'called' for payment by the bank. If they own a house with or without equity, that will also be at risk from any bank's 'debt recovery operation'.
UK Banking Litigation Report
Bank customers facing litigation - introduction
IBAS Report on Bank Customers in Litigation - This report was compiled from 1200 questionnaires we sent to individuals known to have been involved in litigation in October 1996 - from the completed responses the report was then completed in early 1997.
- IBAS Report on Bank Customers in Litigation
- Research of Bank Customers in active litigation with the five UK major high street banks was conducted by IBAS. Over the period of four years IBAS monitored progress on cases involved in litigation. Many UK Bank customers have expressed concerns that their initial problems with the bank were compounded further by the use of the legal system. Our research shows that:
- 43% - have been in litigation in excess of 4 years.
- 57% - have been in litigation in excess of 2 years.
- 79% - of actions have been instigated by the banks.
- 84% - of actions are legally aided.
- 62% - have changed solicitors three or more times.
- 81% - of cases relate to a business or late business.
- Analysis of research:
- 1200 questionnaires were mailed to past IBAS enquirers in litigation with a bank. The figures were compiled over a three month period from October 1996. We received 764 replies of which 692 were fully completed with all relevant information - these formed the basis of our report.
- Banks involved in UK litigation can be categorized as follows
- UK Banks commence legal actions instead of seeking solutions. In many of these cases the transfer of a bank complaint from the banking system to the legal system merely added further cost to the customers account for payment. Rarely has this worked in the customers favour, despite often well documented and extremely serious complaints being made. The failure of the banking internal complaints system, in some cases to enable a compromise to be made, has been deliberate and the transition from a banking matter to a legal matter has been to the customers disadvantage, but more importantly to the banks advantage, both in time and the ability to charge all recovery costs plus interest to the customers account in a large percentage of the cases. Particularly noticeable is the use of the legal system to prevent the Office of the Banking Ombudsman from continuing to investigate complaints where the bank is obviously at risk from a more detailed investigation taking place.
- Four Out Of Five Proceedings Instigated By The Bank
- As the majority of cases involved the bank instigating proceedings (79%) the customers perception of their problems at this stage were often clouded by simplistic reactions - i.e. "I'll have my day in court and my complaints will be properly aired" or "when they realise I am going to defend the action, they will pull out". In reality nothing could be further from the truth. The banks all have their own 'in house' or retained specialist banking lawyers, with instructions to protect the banks position at any cost. Their knowledge of these type of actions will be considerable and they will invariably project a 'hard line' attitude, regardless of the facts.
- Banks Spare No Cost On Legal Actions
- When the bank issues proceeding they fight with everything available and no cost will be spared in the hope of achieving a swift result. Confronted with this approach the customer has little time to consider how, or indeed if, they can defend the action and it is because of the brash and intimidating approach of the bank that the customer frequently offers no defence at all. The alternative being to act as litigant in person or be represented by a solicitor generally not aware of the banks overall strategies. This gives the bank the perfect opportunity to literally 'rush' an action through court, leaving the customer traumatised and financially even worse off than before. The costs of litigation is not a serious consideration for banks as invariably, in the majority of cases, costs will be met at a later date from the customer's property, or their assets.
- Deliberate Delaying Tactics By UK Banks
- The bank is only presented with a challenge, when the customer defends the proceedings and when faced with this situation, the bank adopts a totally different approach and the agenda changes drastically. The objective is then to delay. We have established that there is an intention to deliberately delay the progress of large numbers of cases by a variety of methods. In particular it is normal practise for the banks to repeatedly revert to the courts for extensions of time, which are invariably granted despite objections. Vital documents are frequently 'lost or destroyed', before the discovery stage and therefore not available to the customers lawyer, or indeed the court. It would appear that perjury is commonplace in affidavits from the banks - with statements being sworn on oath as true, when clearly they are misleading at best, but often not true.
- Blatant Abuse Of The UK Legal System
- Neither is it unusual for vital facts and figures to be presented to the court which are both inaccurate and poorly prepared by the bank, when submitting a claim for possession of the family home. The onus being on the customer alone to prove that the submissions by the bank are not accurate or correct.
- This appears to IBAS to be biased in the wrong direction. Surely, it is up to the bank to prove without doubt their position and that the debt they are claiming is owed. This also leads IBAS to question the true cost of UK justice and whether it is denied to those who have limited resources. At the same time the legal system accepts both inaccurate and late affidavits from the banks, without penalty, whilst expecting the opposite from the customer.
- Trying To Find The Right Lawyer Places The Customer In A Legal Minefield
- When issued with legal proceedings, many customer enter a legal 'minefield' without the ability to differentiate between legal advisors capabilities. This frequently results in solicitors being instructed without consideration or knowledge of their ability in this extremely specialised field. This can result in total dissatisfaction or loss of the case, due to the instructed solicitor not having the experience or commitment with which to properly brief counsel, or present the case effectively.
The reality is that banks can afford the best, whilst the customer has to 'pick from the rest' - almost a lottery - Not surprisingly 62% of our survey had changed solicitors at least three times during their proceedings.
- Majority Of Customers Unable To Afford Costly Litigation
- From the survey results, the majority (84%) of cases are legally aided and again the majority have been in litigation more than two years (57%) with the remaining (43%) still in litigation after more than four years.
- Lawyers & Bankers The Only Winners From Legal Aid
- The length of time can be directly related to how much time is wasted by the participants - in particular the banks, who have an unlimited purse and no sense of urgency, particularly when it is to the banks advantage both in time and the ability to charge all costs to the customers account.
- Some solicitors also view the legal aid system as a good long term source of income and can because of this, extend the time necessary to bring a case to a successful conclusion. There is no doubt that both detract from the process of justice working effectively, or quickly.
- Many perceive that justice is not working at all for those without money, particularly as there is now more attention being given to the way in which legal aid costs are being substantially reduced. At the same time there has been no penalty imposed on those who have deep pockets whilst hijacking the system for their own benefit and greed.
- Customers Compromised By System
- Of the 21% who have been able to commence an action against their bank, those who are legally aided face not only the delaying and time-wasting tactics. If their case looks sound and the bank senses a possible defeat, they will invariably offer a derisory out of court settlement, but only after a number of years have elapsed. Unfortunately, if the customers legal advisors consider the offer reasonable, balanced against future costs to proceed with the action, legal aid may be discharged.
- Derisory Settlements To Customers
- Such settlement offers rarely reflect a realistic, or fair figure and are offered in the knowledge that the easy option may be preferred by the customer's advisors and the legal aid board - the only loser can be the customer. This provides yet further advantage to the banks, who are already using their deep pockets to manipulate the situation to their own advantage. In this situation the customer is left in a hopeless position - with the case stopped from reaching court. The bank can be the only winners in this situation and again justice is not served.
- Quote from Chief Executive Eddy Weatherill
- "At IBAS we have proved that there is an alternative to lengthy UK Litigation and many cases have been lifted from the legal treadmill and resolved by direct and active negotiation through IBAS. However, our research has highlighted that there are many thousands of people still in the grip of litigation, ignorant of any alternative, with no prospect of knowing whether their lawyers represent their best interests or not.
- In recent years we have been able to identify a large number of the potential problem areas and at the same time help many avoid them, leading them to a successful outcome. Our recent initiatives have shown that where the will exists on both sides to reach a compromise IBAS involvement in the negotiation will certainly bring matters to a more favourable and fairer conclusion for the customer".
Independent Banking Advisory Service (IBAS) - launched in 1992 as a specialist business banking membership organization assisting bank customers with UK business banking account loan disputes and business banking debt disputes with their bank. Our analysis and investigation of business bank loans, bank accounts, banking contracts, business banking account facilities and banking debt recovery information has been instrumental in our member's success.
Last modified: 13th December 2018