By Kam Sandhu @KamBass
‘The bank has told the court this couple have a partnership’, Steve Middleton is on the phone with the data team at RBS, enquiring about files in relation to a partnership belonging to Mark and Lynne Berry. A voice responds ‘looking for a partnership facility form, an application form, there doesn’t seem to be one.’
‘You’re saying the bank lent money to a company that doesn’t exist on your systems, and doesn’t have income? How did they borrow money?
In 2008, Mark Berry sought a business loan from RBS for his company MB Building Contractors Ltd.
However a loan document presented by the bank a few months before the trial, carried the name of both he and his wife Lynn, who says she was never involved in the business. The loan document is made out to the couple as a partnership which their accountant stated has never existed. The document is dated 31st July 2008. The funds were released the next day.
THE DAY IN QUESTION
On 31st July 2008, Mark Berry recalls leaving early for work before heading to his farmhouse for lunch, where he picked up the mail. He says he received a Key Facts Information document about his loan which was incorrect. Taking it with him on the next job fitting windows in Wilmslow he called his banking manager to inform her of the mistake.
At home was his wife Lynn Berry, as well as his mother and stepfather who had made the journey down from Scotland the previous day. They were preparing for Mark’s 50thbirthday celebrations that weekend.
What neither of them recall is a visit from Miss A* – Mark Berry’s banking manager – which would have included, according to her statement, legal advice and witnessing both signatures.
The court case was of course mired in all of the ways eight years can affect memories and precision, save for the fact that Mark Berry was a compulsive record keeper:
“They said how can you prove you made this phone call in 2008. I said I have my itemised phone bill. I keep records of everything’ he says.
A receipt for windows at 13:51 placed Mark Berry at a window shop over 16 miles from his home. The court found the document was printed after 12:00 – leaving an ever smaller window to reach the farmhouse before Mark Berry returned to his job.
Meanwhile, Miss A* was unable to produce similar evidence regarding her whereabouts that day such as mileage receipts or diaries, though she no longer worked at the bank at the time of the court case.
Then there was the document itself.
The bank was unable to locate the loan document until a few months before the trial. They said the ‘original scan of the paper document’ was ‘retained on an optical disk accessible only by the technical support team in India.’
A fax copy Miss A* says she sent to Brighton on 1st August was available. This was the document presented to the court.
Yet, Berry says he didn’t see his banking manager until the next year.
‘In 2009, I told her we had no documentation for this loan, she said it was all done in house.”
The Berrys received the loan into their personal account which is also unusual. Guidelines stipulate same name, same right rules, meaning the title on the loan document must match the title on the deposit account. Business loans are also not usually deposited by banks into personal accounts.
Berry serviced the loan for five years. When, in 2013, a customer did not pay him for work, he contacted RBS for assistance.
“I rang RBS and said can you help us…. I spoke to a woman called Kelly*. She said I know what you’re saying, my Dad had the same problem.
‘She emailed back saying could I send her a copy of the loan documents and I said I haven’t got anything.
“She said no neither have we.”
When the bank solicitors later produced the fax copy, they said Kelly* had looked on the wrong system.
‘The signatures look like mine, I can’t deny they do but I never signed it,’ says Lynn Berry.
Mrs Berry says she was not involved in the business at the time, and had no meetings with bank managers concerning the loan but now has a CCJ as a result of this document.
‘And my name is spelled wrong. Why would I sign an important document with my name spelled wrong?”
The loan document carries an extra ‘e’ on Lynn.
Before the case started, it was established that everything depended on the authenticity of this document and the signatures included within it. A judge ordered in July 2014 that the entire history of the document needed to be investigated in ‘native format’ by an IT expert.
‘I wanted the best’, says Mark Berry, ‘We’d never had this document. The loan was based on the limited customer account. We searched the Internet and found an expert called Dr Steve Castell who had been involved in fraud cases in Australia.”
Castell seemed to fit the bill. He was an award winning IT Consultant with extensive experience in complex IT systems and dispute resolutions, including previous work as an expert witness. He’d published several papers on his areas of expertise and worked as a correspondent for the Computer Law Society and Security Report.
‘I was approached by his [Mark Berry’s] solicitors initially but then both to be a single joint expert,’ says Castell recalling the case.
‘This is from memory, they said they had a court order – in other words, permission from the court to allow me, or the expert, to inspect the systems at RBS in regards to one particular document.’
However, a further order won by RBS in December 2014 narrowed the investigation. The bank stated it did not want to provide ‘open ended access to all of its system’ and instead changed the scope of the investigation to an examination of the ‘PDF File and any metadata embedded therein or associated therewith’– essentially it was reduced to what was on the screen when the document was open. They said this was out of concern for security and confidentiality.
‘I said it would be useful to look at the bank’s systems’, says Castell, “as that’s where it was stored, but the thing about PDF is that you can’t tell the history of a PDF, there’s not enough metadata or as much as it would be in the original word document or other format.
“To get at the truth about this document, we need to look at the bank’s system, so I asked if we could please have the court’s time to see how that PDF came into being. That’s when it got more difficult…’
The bank’s solicitors said they had no intention of departing from the new instructions to only look at the PDF.
‘The other thing about systems is, you can’t ask questions until you start going through the systems, which of course the banks may be quite rightly nervous about. But that’s covered in confidentiality claims, I’ve done them before.”
RBS’ lawyers claimed they had not decided on whether Castell’s fees were agreeable, and called for a different expert.
“The point about having an independent witness is that we don’t accept either side’s point of view. A man cannot serve two masters, but really my duty is to the court. You have to do due diligence on the court’s behalf.
“Both parties in the instructions said we want you to look at the history of the document, but the order said we can only look at the document…When you PDF something it wipes out some of the things that may have been there before you then ran the PDF software. You’ve created a fresh document at that point with its own set of data.”
‘The question was about where these signatures came from and that could have been found through how this document went through RBS systems and people. It said the point was the history of this document so it was paradoxical to say only look at this final copy.
Instead, the bank sought a new expert, and upon finding one at a cheaper rate refused to disclose the details of this quote to Castell.
‘I was quite upset about the fact that they wouldn’t disclose to me what the other quote was and what basis that quote was made on, then the court could understand if you were comparing apples and oranges.’
“I did eventually get a discharge from Berrys lawyers”
As a result of the conflict a new expert was appointed.
The expert examined the PDF document at RBS offices and found it had been produced on 1st August 2008. He also concluded that the signatures were not electronically inserted.
Still, the Berrys were concerned that the report carried an incorrect company name: Mark Berry t/a MB Building Contractors & Lynn Berry vs RBS.
This was the name of Berry’s sole trader account closed in 2000, not the limited company nor the partnership. When speaking to RBS however, Steve Middleton says he was informed that the sole trader account had been converted into a partnership.
While working on the case, financial adviser Steve Middleton says he has received mixed responses from the bank and has struggled getting information usually available to clients;
“On every account I have dealt with, I would get the connected accounts summary, that’s all we need. The clients are entitled to that anytime.”
A connected accounts summary details the products/loans/payments for each customer. Every new account is a new connection. Middleton says these have been made available many times before;
‘If I ever did a meeting with RBS the first thing I asked for is a connected accounts summary so I can see what the position of the client is….I’ve never received one for Mark Berry. I’ve got 50-60 in some cases, even where it’s a struggle to get information we’ve had 10 or so, but we received 20-30 pages from the bank and there’s not a single account summary in there.”
This case has already gone to court and was won on the grounds of the partnership existing. Now claiming the bank has no records of it, puts RBS in a strange position.
The Berrys do have evidence of a partnership account existing. When another account was closed, Berry received a bank statement showing £1.96 had been transferred into a ‘partnership’ account. But no further statements have been given to the Berrys.
There have been other questions raised by Middleton regarding Miss A*s evidence.
Despite stating to the court that her recollection was that the agreement was ‘between the bank and the defendants and not the Bank and the Company’, Miss A* does not mention Lynn Berry once in her supporting documentation. She also comments on the serviceability of the loan but, if made in the name of the new partnership of Mark & Lynn Berry – it has no income. Middleton also has concerns that the documents provided are not complete, and are instead ‘cut and pasted’ from internal credit systems.
When responding to Real Media about this case, which the Berrys eventually lost, RBS highlighted comments made by the Judge that Miss A* was an ‘excellent’ witness of who he was ‘utterly convinced that she was telling me the truth.’ He said this ‘wasn’t true of the defendants‘*** and that Mark Berry was ‘unreliable’. The Judge added that while nothing in Mark Berry’s body language suggested he was lying, he found parts of his claim and demeanor ‘absurd.’
‘I was arguing with them because I felt they were lying’ says Berry recalling the case. ‘Lynn tells me not to do that, she says it’s not so black and white.”
There were a series of frustrating inaccuracies in the Berry case as it went to trial, but this is further compounded by the bank’s actions after the trial.
RBS told Real Media:
‘The Berrys’ principal complaint is that the bank fabricated evidence (the loan agreement) that was relied on in court. All entries on the bank’s credit approval system are locked and date stamped once the deal is sanctioned and therefore cannot be retrospectively created or amended. We fully comply with our obligations under the Data Protection Act which states individuals are entitled to copies of their personal data held within an organisation’s records, not copies of the underlying documents themselves (e.g. loan documents).’
RBS’s statement on all allegations regarding file falsification is:
“We have found no evidence to support these customers’ allegations and categorically deny manipulating or falsifying customer records to suit our purposes.”**
Much less than asking for loan documentation – the Berrys are yet to receive account opening forms, connected account summaries and historic statements for this account.
RBS’s statement on all allegations in our report is:
“We have found no evidence to support these customers’ allegations and categorically deny manipulating or falsifying customer records to suit our purposes.”
The names Miss A* and Kelly* have been changed
** This article was updated at 15:25pm on 16/02/2017 to include this part of RBS’ statement.
*** This article was updated at 15:28on 16/02/2017 to include more of the Judge’s statement