There has been and will continue to be a great deal of comment on the decision of the UK Supreme Court in the challenge by the Office of Fair Trading to bank charges on unauthorised overdrafts. Much of that comment is ill informed, and in particular overlooks the fact that as the Court was at pains to stress its decision rested on a narrow technical analysis of legislation as to whether there is statutory power to investigate these charges for fairness, not whether they are in fact fair or unfair. It was on this narrow ground alone that the banks successfully avoided an assessment of their overdraft charges.

Perhaps the most interesting feature of the case is the split between the judges at the three tiers of court hearings. They all heard the same arguments from the same eight teams of expensive lawyers, but whereas the High Court judge ruled in favour of the OFT, as did the three Court of Appeal judges, the five Supreme Court justices took the opposite view and agreed with the banks. So it was 5-4, but it could have been a 3-2 majority decision which would have meant a win for the banks even though the other 6 judges had been against them.

Is there a lesson in this? Undoubtedly yes. It demonstrates that the real value of litigation lawyers is in their experience and commercial acumen, which in suitable cases takes into account the risks of different views being taken by different judges and factors this in to a tactical plan to secure a favourable result, often by negotiation. Any lawyer can run a case and collect the bill at the end of it win or lose; the real skill of a commercial litigator is to predict the outcome and allow for the risks whilst picking the right cases to fight to conclusion. We would like to think that this has always been our approach.