Offer and Defence...advice?

[mike1980]

UPDATE...received Abbey's defence in the post this morning, along with this letter...

"Dear Mr Mike1980

YOURSELF - V - CAHOOT
CLAIM NO: 7QZ 73122

We enclose by way of service a copy of the Defence that we have filed with the Court.

The next stage in the process will be for the Court to send to each of us an Allocation Questionnaire, which asks for certain information relating to the case before it proceeds to trials. In the interim, we are writing to you to ascertain whether you would be prepared to agree to a settlement of your claim now in order to bring the matter to a close, limiting further expense to both of us and also avoiding the necessity of taking the further procedural steps such as the filing of Allocation Questionnaires.

Regarding the charges, you will see from the Defence that Abbey takes issue with your claim on a number of points. For the purpose of this letter though, we should like to mention in particular that your claim seems to be based on an argument that you should not pay any charges at all. It cannot be correct that Abbey cannot charge anything at all if you become overdrawn or do not meet direct debits as Abbey must remedy the issues with the account and this occurs expense. This is in line with Banking Industry practice and the Terms and Conditions under which you opened the account. Even if it were correct (which is not accepted) that the charges are greater than Abbey’s actual loss in dealing with your account, Abbey would still be entitled to charge you something for the expenses. Further, you will see the charges are liquidated damages, and not penalty charges and are therefore valid pre-estimates of loss.

Your claim is for the refund of £1235.24 in bank charges and interest. As a matter of goodwill and without any admission of liability on Abbey’s part, Abbey will offer to pay you 65% of your claim, that is £802.91, subject to your having received any refunds or goodwill payments in respect of the sums claimed. This would be in full and final settlement of your claim.

We hope that you will regard this as a reasonable offer in the circumstances and a genuine attempt to reach an amicable settlement of your claim. If you are prepared to agree to this please sign and return the enclosed copy of the letter.

We look forward to hearing from you.

Yours Faithfully,

Abbey National plc

I, Mike1980, accept your offer of settlement on the terms and conditions set out in this letter in full and final settlement of the Northampton County Court Claim number 7QZ 73122. I confirm that upon receipt of payment of the settlement monies I will write to the Court and withdraw my claim.”

This is the defence they have filed:

• “Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

• It is admitted that the Claimant has a current bank account with the Defendant, account number XXXXXXX (the “Account”).

• At all times the Account has been subject to the applicable terms and conditions (“Conditions”), which form part of the contract between the Claimant and Defendant and to which the Claimant agrred when the Claimant opened the Account. The Defendant will refer to at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts:

• • “You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable”
  • “An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed.”
  • “If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may included fees for transactions we are unable to process due to lack of available funds in your Account.”

• Throughout the period that s/he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(a), (b) and (c) above).

• Any overdraft facility on the Account was (and is) subject to the Conditions.

• The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay such fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. In accordance with the Conditions, such fees were debited to the account.

• In view of the facts and matters referred to in paragraphs 3,4,5 and 6 above, the Defendant denies that the amount of £1235.24 or any other, amount was unlawfully debited to the Account and the Claimant’s claim for the repayment of that amount is therefore denied. The Defendant denies that the Claimant is entitled to claim interest in the sum of £200.24 or at all.

• The Claimant’s contention that the said fees are unenforceable and/or “penalty charges” is denied. The fees reflect and are proportionate to the Defendant’s administrative expenses incurred due to the Claimant’s breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

• Further or in the alternative, even if the said fees are not proportionate to the Defendant’s administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charges made to the Account.

• No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.”

Any opinions, advice or recommendations on this? Is this a standard defence and offer letter? I am tempted reply and accept it as partial settlement, but they don’t seem to be offering that option LOL.

Cheers,

Mike

[LS123]

Hi Mike

I have received exactly the same thing in the post today - not sure what to do really as excluding interest and court fee the 65% is only a couple of pounds out from what I originally asked for.


LS123

[Lula]

I would advise both of you to decline and request full amount plus interest and court fees, they will pay up eventually, they are just trying to test your resolve

[mike1980]

I just sent this via email to inga.kirkman@abbey.com and bct@abbey.com..

"Dear Sir / Madam,

Claim Number 7QZ73122

I write regarding your letter dated 12th June 2007, offering a goodwill gesture of 65% of my claim for £1235.24 for bank charges, interest and court fees. You state that you hope I will regard this as a genuine attempt to reach an amicable settlement of my claim. However, I would regard the two letters I sent to you over the previous months, before I began Court action, as a genuine attempt to reach an amicable settlement of my claim, minimising costs for all parties concerned.

I am not satisfied with this offer, and must therefore respectfully decline. If you wish to credit the proposed sum to my Account, I will however accept this as partial settlement. However, my Court action will proceed until such time that I have received a settlement that I am satisfied with.

I will therefore make you the following offer:

I will settle for the costs as claimed in my particulars of claim, at the date of filing, i.e. £1235.24. If this sum is credited to my Account by the end of business on Friday 15th June 2007, I will withdraw my claim. However, if this offer is rejected, I will not settle for less than the full amount as stated in my particulars of claim i.e. £1235.24 plus interest at the statutory rate as of the date of settlement.

I hope you regard this as a genuine attempt to reach an amicable settlement of my claim.

Yours Faithfully,

Mike1980"


How does that sound?

[Lula]

excellent, well done

[LS123]

Hi Mike

Did you hear anything back?

I sent the standard decline letter by post - so guess that I am just a/w court date now.

[mike1980]

No reply yet - i forwarded the email to them again at 3pm today, with this message:

"Dear Sir/Madam,

I would like to confirm that you have received the following email. It
contains a time-sensitive offer, and as such, requires your immediate
action.

Yours Faithfully,

Mike1980"

[Nicegirl1]

Hi Mike1980,

Just wanted to let you know that I too had exactly the same defence & offer from Shabbey this week. I will of course be sending a 'thanks but no thanks' letter. I will add that I am content for matters to proceed to court where Abbey will have ample opportunity to demonstrate exactly how their charges are calculated.

I can't believe how they are suddenly only too eager to save us both time and money after ignoring me for the past 4 months!