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Caution for bank customers over 'some measure of danger' in litigation funder led bank penalty fees cases

Personal Finance
Caution for bank customers over 'some measure of danger' in litigation funder led bank penalty fees cases

By Gareth Vaughan

With cases against ASB, BNZ and Westpac on the backburner as Fair Play on Fees pushes cases on behalf of some ANZ and Kiwibank customers over "excessive" penalty fees, a leading lawyer says customers should make sure they fully understand how the funder and lawyers from Fair Play on Fees will get their pound of flesh if they ultimately secure any money from the banks.
Minter Ellison Rudd Watts partner Stacey Shortall told in a Double Shot interview the role of the funder is something bank customers who have signed up, or who are considering signing up, for the cases over "excessive" bank fees should get to grips with.
"I would in particular focus on the extent to which the litigation funder is going to take a proportionate share of any damages if any ever get awarded here. How the lawyers are going to be compensated," Shortall said.
She defended class action lawsuits during more than a decade working in the United States. Neither Shortall nor Minter Ellison Rudd Watts are currently representing any parties in the Fair Play on Fees action.
"In my experience in the US dealing with litigation funded cases there are occasions where the funder was also getting compensated in whole for any out of pocket expenses (such as) photocopying, and other sorts of disbursement charges. I would look at 'are those going to get reimbursed in full, who is providing those services'," Shortall said.
"So understand what the commitment is, whether if damages are awarded who is going to get a piece of that, how it's going to be divided. And of course, the starting point in any of this should be to think hard about whether or not you as a customer belong in this action."

"So were you charged fees, what were the circumstances that occurred, have you spoken to your bank around this?"

"I'm a lawyer but I believe as few things as possible should find their way into a courtroom. There are a lot of other ways that things can get dealt with, and speaking to your bank would be a starting point."

ASB, BNZ & Westpac off the hook, at least for now

Fair Play on Fees includes New Zealand lawyer Andrew Hooker, Australian law firm Slater & Gordon and Australian litigation funder Litigation Lending Services. Representative actions have been filed against ANZ and Kiwibank, which Fair Play on Fees says are on behalf of about 14,700 and 7,000 customers, respectively. Both banks have responded with statements of defence saying, among other things, customers acquiesced to the fees by failing to avoid them.

Fair Play on Fees also wants to take action against ASB, BNZ and Westpac, but is focusing on the initial two cases, at least for now.

A spokeswoman for Fair Play on Fees said following the recent related Australian court ruling, (see more on this further down this story), Fair Play on Fees has decided its best approach is to focus on the first two cases rather than have five cases running simultaneously.

"Then if the case against the banks are successful it opens the opportunity for customers to lodge larger claims than initially first thought, possibly back decades (rather than six years)," the spokeswoman said.

Penalty, or exception, fees in dispute include unarranged overdrafts (account out of order fees), rejected payments on deposit accounts (dishonour fees), exceeding credit limit (over limit fees) and late payment fees. Fair Play on Fees reckons the major banks have raked in about $1 billion through "excessive" charges on such fees over six years.

The group says banks have recently been charging up to $20 dollars a pop (and more in the past) for fees covering events that probably actually cost them no more than a dollar. ANZ has disputed this, saying it has mathematical calculations backing up the basis of its fees.

'Clients protected'

Litigation Lending Services is funding the case, having tipped in between $3 million and $4 million. It stands to keep 25% of any of any money won through the legal action, as well as recover its costs. Hooker is being paid an hourly rate of $318 and stands to have this topped up to $425 on completion of the case. Slater & Gordon said its lawyers charge different rates depending on their seniority.

"The fees we are entitled to deduct from any judgment or settlement must be approved by the court, so the clients are at all times protected," said Hooker.

Fair Play on Fees' spokeswoman said tasks are allocated as appropriate, with no one lawyer working full time on the case.

"The number of lawyers on the case varies depending on the workload. It is important to note that the amount of lawyers working on the case, or how the legal team chooses to divvy up the work, bears no relationship to the cost to the clients," the spokeswoman said.

Burden of proof on Fair Play on Fees

Shortall said there can be "some measure of danger" for people signing up to a representative action where a litigation funder is involved.

"People need to fully understand what they're signing up to when funders are involved. They (funders) have their place. But people need to understand what the terms of that arrangement are, what they themselves are going to potentially receive versus what the funders and lawyers may receive, so everyone goes in knowledgeably," she said.

Given Fair Play on Fees has brought the case, they have to provide the evidence to show the merits of the case.

"They (Fair Play on Fees) are the ones bringing the case so they're the ones that have made the allegations and the burden sits with them to establish that this case does in fact hold water. So they've alleged claims and they will need to put on evidence to establish those," said Shortall.

"I'm not in a position really to comment on that (the merits of the case) because I don't know what the underlying facts are. And that's important for (bank) customers to keep in mind too."

"At the moment we are hearing, by virtue of what the plaintiffs' lawyer and funder announced at a press conference which is an interesting strategy in itself, and then what they have released into the public arena. We're hearing one side of a story," Shortall said.

"I understand there have been some statements of defence (from ANZ and Kiwibank) filed. But they'll be fairly bare bones at this point. The obligation is not on the defendant to come forward and tell all of its story at this part of the case."

"So I don't know what the merits of the case ultimately will be and no one does. I think that's important to keep in mind," Shortall added.

She also noted most of these types of cases tend to result in settlements, before they get to court.

"The banks have said they intend to vigorously defend the litigation. And based on what I understand the facts to be, that makes absolute sense to me that that would be the defence strategy."

"Whether or not that ultimately results in some discussion at some point in the future that leads to a resolution short of trial, it's always possible. The US experience is certainly that cases do tend to settle, class actions in particular. Not because of the merits always of the claims, but for very logistical, practical, commercial reasons around the expense of defending the claim, distraction of management time and personnel time dealing with it, the reputational consequences, commercial consequences," Shortall said.

However, she said it was too soon to tell whether the Fair Play on Fees cases might result in some sort of settlement.

'The NZ litigation will have to stand and fall on its own legs'

In terms of a recent related Australian ruling on ANZ exception fees, Shortall said the significance of this shouldn't be overplayed in New Zealand.

"The New Zealand litigation will have to stand and fall on its own legs. So any decision in Australia has no precedent effect legally in a courtroom here in New Zealand. It may have some influence perception wise as to whether people want to join the litigation or not join it. It is material that there were five categories of fees pursued there and only one is left standing, although that decision is on appeal."

"But the extent to which that's relevant here in New Zealand I would say is marginal. The law's different, the fact's will be different and the case will need to be established in this setting. There's no ability to transport what an Australian court heard or found over here for a New Zealand judge to look at," Shortall added.

The Australian class action cases, which don't involve Fair Play on Fees, have thus far seen a case against ANZ in court. A judgment found no problem in law with four of the five disputed ANZ fees. However, Justice Michelle Gordon said credit card late payment fees were "extravagant, exorbitant and unconscionable" with losses or damages incurred by ANZ ranging from A50 cents to A$5.50 when the actual fees charged were between A$20 and A$35. The Australian judgment is being appealed by both sides.

In New Zealand the Commerce Commission said in 2010 late payment credit card fees of up to $15 were likely to be justifiable on a cost recovery basis, telling banks any late payment fees at or below $15 "should not trigger future investigation or enforcement action." The banks have been abiding by this $15 limit. However, Hooker has told this doesn't mean banks are off the hook.

"Firstly, the Commerce Commission is not the regulator of the banks so that's the first point. Secondly the Commerce Commission did not say that it was okay to charge $15. And thirdly the Commerce Commission does not make the law, it does what it thinks is right and a civil case is a totally separate arena," Hooker said.

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"a leading lawyer says customers should make sure they fully understand how the funder and lawyers from Fair Play on Fees will get their pound of flesh if they ultimately secure any money from the banks."


Does anyone else find that statement hilarious.


If you have a case in court you have already lost.


Naysayers who try to undermine such legal claims should be prepared to provide an alternative mechanism for the average consumer to hold major corporates to account.  Or should we all just sit back and so nothing?  

The truth is that without these types of cases customers of major corporates are essentially powerless to take action.

The over 30,000 people who have joined these cases have nothing to lose, and everything to gain, both personally and for their fellow consumers.

It is unclear why those who try to undermine such cases do so without acknowledging that there are no olther real options for consumers in New Zealand to take a stand against hugh multi billion dollar profit making corporates whose senior executives are paid multiples of what mere lawyers such as myself could ever dream of earning.