Court Date - Have queries! Help Please?

[fzrkitten]

Hi nicsussex,

Your'e joking?! I don't even get what the directions mean, I did think it meant they have to prove their costs? Is this a good directions then? I'm sat at home, trying to print bundle, ran out of black ink, not quite sure what I'm doing but need to get bundle in. Judge's directions were done on 13th, do I get 14 days to submit from that date, or the date I received them do you know? Otherwise I've got about 2 days left to sort it!

Glad you think good news over the directions, let's hope so eh?!

BW & thank you.

fzrkitten

[fzrkitten]

Can anyone tell me, if I got directions dated 13th June, got them on 16th, how long have I got to get my bundle in? Is it 14 days before the hearing or 14 days from the date I got directions?

Having a slight 'printer' problem, it's in bits on the floor in the back bedroom with a vexed partner making a lot of noise!

BW,

FZRkitten.

[GuidoT]

It usually says on the order, but 14 days prior to the hearing is normal. Phone the court if it does not say.

In any event best to get it in early.

[fzrkitten]

Thanks, one more question - I need terms and conditions from 2001 for Lloyds - anybody found them? I can't seem to get into T&C on the Internet way back machine - just info on the accounts?

I actually think I'm supposed to get bundle in in 14 days from when they served directions, someone said my directions (above in this post), are good?

BW,

Fzrkitten.

[christinajanep]

hi u get 14 days form the 13th, i had exactly the same problem and yes like u i ran out of black ink as well.i got my letter from the judge on thursday and mine has to be in on tuesday so far i have only printed my statements as that took 5 hrs yesterday and two packs of paper, so guess what i'm going to be doing today,
and the directions mean its a disclosure order, basically lloyds have to tell the judge what the true cost is of boucing a cheque, etc, and as nicsussex said they'll never do it so lets see who gets there refund first u or me lol

[oi-giz-it-back]

Hi fzr,
Iv got the same directions as you. Im fighting this one for my brother. They came yesterday and i have to have them in in the next 28 days. I dont have a court date tho. A good thing i think. Just trying to get my head round it now.

[christinajanep]

i dont have a court date either, i guess the judge is thinking that we wont need one as lloyds will sort it before it gets that far...

what court are u both from

[GuidoT]

Internet Wayback does not do it for me neither, this is the only set I have come across:
Evidence for court bundle needed when reclaiming penalty bank charges

Yes the directions are good news for you, it is not the same as the New Stragegy Order on this site though. Check again if the order has dates that the parties are required to comply by.

[fzrkitten]

Thanks all, My case is Coventry, but not quite so worried now you've all said about directions being good!

What I do need help with later today (as I only have today left really!), is my statement of evidence, ifI post it can someone help? And my witness statement.

One printer down, one fixed with superglue! LOL!

BW,

Fzrkitten.

[christinajanep]

i have a copy of a witness statement garyh sent to me to use for mine i will forward that onto u

[christinajanep]

if u look at my thread its all on there
i never got asked for a copy of my t&c's

[diamond4736]

heres some recent t&c's
LloydsTSB - Terms and conditions for current and deposit accounts

[oi-giz-it-back]

Im at Notts. I have 28 days to subbmit my bundles. then SCM have 21 days to do theres. Which from what i can gather there not going to do and i should expect an offer, Maybe? This is the bit i think there going to struggle on:-

c) if such charge is alleged to be a pre-estimate of the defendant's loss incurred by the claiment's action or omissions (whether or not such action or omission is to be treated as a breach of contract between the parties), all fact and mattters intended to be relied upon as showing that such is a proper estimate of such loss and all evidence to be adducted at trial as to what the true cost of dealing with the matter was

So basically as i see it it means regardless of what the contract says the judge wants to know the true loss to them. Which as i gather they wont tell so will offer.

I take it your says i similar thing?

[fzrkitten]

Hi all,

Thanks so much for the help, greatly appreciated.

My directions are at the top of this thread, they are similar I think to yours oi-giz-it-back. I have copy of 2004's now, I opened my account in 2001, spent this morning in the loft but can't find any at all for Lloyds. Will put 2004's and the recent ones in, hopefully it won't get any further anyway now.

My Directions order did say I had to have them in in 14 days from it being served, (it was dated 13th, I got it on the 17th!). It also says Lloyds have '14 days thereafter' to submit everything they have been asked for, so watch this space!

I do have a court date of 7th Sept, seems a way off seeing as they only giving me the 14 days!

Gonna get witness statement and statement of evidence posted up, query on witness statement - I never had an overdraft, my limit was 0, how do I word that bit? They still charged me whenever I went over my 0 limit.

Thanks and good luck all,

Fzrkitten.

[GuidoT]

After you have send yours Lloyds will not file their documents.

You can then request that their defence is struck out, apply for judgement and then Lloyds pay.

Therefore the matter will be resolved prior to the September 2007 hearing.

See my thread, read the last few pages:
Guido T v Lloyds TSB ***DEFENCE STRUCK OUT - WON****

[fzrkitten]

:o I'd say goody goody gumdrops but I'm still scared that it will be me that loses!

Witness statement below, following instructions though to reword it to statement of evidence (christinajaneps thread), and that's all I need? apart from rest of bundle of course, think I am nearly sorted, just got to index it all. (I'm doing this between 2 houses! - got to go back to other half's to print bits and collate it later!).

Statement of Evidence - can anyone check for me?::

Statement of Evidence of

Exhibit
21st June 2007

In the Coventry County Court
Claim Number:

Between:

(Claimant)

-And-

LLOYDS TSB BANK PLC

(Defendant)

_________________________

STATEMENT OF EVIDENCE OF:

_________________________

1. I, the Claimant, am a litigant in person in this case.

2. I make this Statement of evidence in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank.

3. I make this Statement from information and facts within my own knowledge and which I believe to be true.

4. On 5th March 2007 I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. I also copied this to the Office of Fair Trading.


5. On 10th March I phoned the Defendant, again setting out the nature of my complaints with them, including personal treatment, to which they said they were most surprised and displeased at the way I had been treated, (detailed on separate page), and gave me a reference number (******), to which I was told someone would deal with my complaint immediately and come back to me within 5 days. I had no response whatsoever.

6. Due to no response from the Defendant, I filed a claim at Northampton County Court on 28th March for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim. This claim was then transferred to Coventry.


7. On 29th March, I received the Defendant's generic template rebuttal of my complaint by letter (dated 26th March).

8. The Defendant acknowledged service of the claim on 12th April 2007.

9. The Defendant filed its defence on 28th April 2007.

Overview

10. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.

11. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.

Disguised Penalties and breach of contract

12. The Defendant avers that the charges levied are legitimate fixed price contractual services, not related to breach of contract, and therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. I refute this interpretation and further submit that this contention is merely an attempt to 'cloak', or disguise, its penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

13. I believe the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one which the consumer agrees is at a reasonable market rate commensurable with the service provided. I believe it to be inconceivable that the charges levied to my account by the Defendant could be any form of service', rather than a penalty. I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed any purported “services” on my account.

14. I understand the definition of a breach of contract to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I have a zero overdraft with the defendant. This overdraft has a contractually agreed limit of zero, which is an express term of the bank account contract between myself and the Defendant. The definition of the word “limit” given by the Oxford English Dictionary is as follows;

• noun 1 a point beyond which something does not or may not pass. 2 a restriction on the size or amount of something. 3 the furthest extent of one’s endurance. • verb (limited, limiting) set or serve as a limit to.

When I exceeded the contractually agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge of £30.00.

15. The banks charges arise directly from the happening of an event. It is a clear requirement of the terms of the account contract that sufficient funds are available to cover payments made by standing order or direct debit, or overdraft drawings. A charge arises when these requirements are not met – I.e. when a payment or drawing is made from the account which is not supported by sufficient available funds.

16. If the Defendant’s interpretation were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the consumer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.

17. It is further submitted that the Defendant's contention that the charges are now a service charge represents a contradiction to materials published by the bank previously. I am in possession of a letter, which is attached to this Witness Statement, signed by Martin Orton, a senior manager at Lloyds TSB's customer care department, which states –

"as you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs".

This was in response to a direct and plain request to justify Lloyds TSB's charges. Throughout the letter, no mention is ever made of the charges as being the cost of any type of 'service'.

Office of Fair Trading Analysis

18. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated in its overview that the principle of their findings would also apply to Bank account charges and indeed those of the entire financial and lending industry. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR. With regard to the 'cloaking' or disguising of penalties, the OFT said this;

"4.21.Disguised Penalties
The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".

19. Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999”. Relevant sections from this report are quoted as follows;

“Section 5.8 - Disguised penalties.Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.”

Section 18 1.3
"These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

Unfair Terms in Consumer Contracts Regulations 1999

20. In the absence of an express term of the account agreement prohibiting exceeding the limit of the overdraft facility and/or prohibiting the payments of standing orders and direct debits without sufficient funds, I will aver that there is a term implied to the same effect. Without such term the consumer would be afforded no protection whatsoever from the inequity between the bargaining powers of the parties, and it is an intended effect fundamental to the UTCCR and other consumer contract regulationsto imply terms in order that such great imbalance in the rights of the parties is redressed to some extent.

21. Further, under the UTCCR:

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

22. The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity