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Have had an ongoing saga with Egg.
MCOL submitted and as seems to be the norm Eversheds had sent a Tomlin order offer, but not for the full amount.
I respectfully declined, but will to accept it as partial payment etc.
Today i get their defence in the post, they cannot have yet seen my rejection letter as it was only posted yesterday.
I take it there is nothing new in this defence, would be interested to see if anyone thinks differently.
What should i do next?
The defence is:
1. the claimant entered into an egg cc agreement with the defendant in april 2000.
2. it is admitted that charges were added to the claimants egg account during the course of the agreement. each charge was made pursuant to clause 7.1 of the defendants standard terms and conditions as a result of insufficient funds being available from the defendants designated current account to cover the amount of the direct debit payment due on the egg card and when she exceeded his credit limit. clause 7.1 clearly states:
if you break the terms of this agreement we may charge you the following, where relevant, to cover the additional cost to us:
£20.00 each month you go over the credit limit....
£20.00 if you do not keep up the payments on the account...
The credit limit is the amount of money the claimant was entitled to borrow from the defendant.
3. it is denied that the claimant exceeding his credit limit and the return of the payments from the claimants account due to insufficient funds being available are breaches of contract. However,in so far as they are deemed to be breaches of contract the defendant will claim:
(a) that each and every such breach entitled the defendant to levy a charge under the terms of the agreement.
(b) that the said charges are proportionate and in all the circumstances are fair and reasonable in comparison to the loss, damage, cost or expense incurred by the defendant.
(c) that the particulars of the said charges were supplied to the claimant at the time of inception.
4. following the oft investigation into default charges, the oft indicated that it would not proceed further against egg upon the basis that egg reduced its charges from £20 to £16. without any admission in relation to the previous level of charges, Egg has reduced the charges accordingly.
5. it is denied that the charges are unlawful as alleged. the defendant recognises that customers, such as the claimant, sometimes fail to make or are late in paying the required payments and the defendant therefore puts in place systems and processes to deal with the same. Such systems and processes include the use of computers, staff and other necessary overheads. the charges set out in condition 7 of the agreement are calculated by taking into account the total cost incurred by the defendant in maintaining those systems and processes and the estimated number of customers such as the claimant who will fail to make or are late in paying the required repayments. the defendant avers therefore that the amount of the charges applied under condition 7 represents a genuine pre estimate of the loss and expense caused to the defendant in respect of such customers failing to make or being late in paying the required repayments.
6. further the defendant takes steps to try and ensure that customers such as the claimant do not incur the charges set out in condition 7. For example, the conditions of the agreement required the claimant to have a direct debit in place to make the monthly repayments. this was doen to ensure as far as possible that the claimant would not fail to make repayments or make such repayments late and thus avoid charges under condition 7.
7. In the premises, the claimant is put to strict proof that his loss as a result of the charges is £xxxxx
8. In the event that th court finds that the default charges levied on the claimant do constitute an unfair penalty and are thus unenforceable, the defendant asks the court to assess the actual cost to the defendant of dealing with the claimants breach of contract in failing to make his repayments.
9. It is denied that the claimant is entitled to the interest claimed for at all.
3 (b) that the said charges are proportionate and in all the circumstances are fair and reasonable in comparison to the loss, damage, cost or expense incurred by the defendant.
5. it is denied that the charges are unlawful as alleged. the defendant recognises that customers, such as the claimant, sometimes fail to make or are late in paying the required payments and the defendant therefore puts in place systems and processes to deal with the same. Such systems and processes include the use of computers, staff and other necessary overheads. the charges set out in condition 7 of the agreement are calculated by taking into account the total cost incurred by the defendant in maintaining those systems and processes and the estimated number of customers such as the claimant who will fail to make or are late in paying the required repayments. the defendant avers therefore that the amount of the charges applied under condition 7 represents a genuine pre estimate of the loss and expense caused to the defendant in respect of such customers failing to make or being late in paying the required repayments.
8. In the event that th court finds that the default charges levied on the claimant do constitute an unfair penalty and are thus unenforceable, the defendant asks the court to assess the actual cost to the defendant of dealing with the claimants breach of contract in failing to make his repayments.
9. It is denied that the claimant is entitled to the interest claimed for at all.
I have not see the various Egg template letters which evolved over the past 12 months, so just giving my impressions based on info I gleaned from other cardholders.
3 (b) Proportionality is the crux of legal argument drawing on the precedent of Dunlop v Garage. This is what Egg does NOT want tested in court.
5. In testing 3(b) in court Egg wish to fall back on Pre-Estimates which need have no relation to reality. We claimants insist on Egg producing post-event audit figures. The moc1982 template letter in the V-E Day index will phrase it in a form acutely embarassing to Egg.
8. This is new. Between November 2006 and August 2007 Egg always refunded 100% of disputed charges (plus interest). In November 2006 Egg met a claimant (himself a lawyer) in an Oxford court, and the judge ruled on a compromise figure of £5 per charge, the excess being refunded by Egg. Egg did not want this result broadcast (neither did the claimant), because it would have made it difficult for Egg to carry on charging £16. It would also have set an easy and clear precedent (actual quotable court judgment) to encourage all eligible claimants to come forward. With test case hearing due on 14th January 2008, Egg could now be moving away from their stance of shyness and indecision. This new stance of pushing all the way to a court judgment could be a bluff to be withdrawn at the last moment, or it could be real. In the second contingency you will NOT be receiving 100% refund from court judgment.
9. Debit interest was physically and demonstrably levied on your account. So when charges are refunded, I cannot see how Egg can refuse refund of interest demonstrably accrued on said charges. This is part of Egg toughening up their stance. Cowboys chased Indians for a year, but now looks as if the Indians want to stand and fight, or so they claim.
Suggest you inform Egg you intend to take your case to the fos, who will charge Egg £360 win lose or draw.
If this is brinkmanship, and you demonstrate you know all the angles (by producing the moc1982 letter), Egg may decide settlement is the better part of valour.
If this does go all the way to court, and Egg no longer mind an actual court judgment against them, then you will need to accept refund will NOT be 100% of charges. With Xmas and New Year disruptions, 14th January will be upon us in the blink of an eye. Seismic events may occur which will change the entire reclaim scene. If for example a verdict were to come out (God forbid) that £16 is a fair bank penalty charge, although it does not explicitly apply to Egg, Egg and other cards will be mightily encouraged, and they will fight in the courts to the last drop of blood. In which case after a lot of time and effort spent, you might finish with zero.
With a number of uncertainties ahead, not all favourable to claimants, you might like consider the choice between a smaller bird in the hand, and a larger one in the bush.
This is just standard banks' nonesense. How they can say in the same breath
Originally Posted by joebloggs
if you break the terms of this agreement we may charge you the following, where relevant, to cover the additional cost to us:
£20.00 each month you go over the credit limit....
£20.00 if you do not keep up the payments on the account...
and
Originally Posted by joebloggs
it is denied that blah blah are breaches of contract.
is quite beyond me. What planet do these guys live on?
Just stick with you claim. don't sign anything unless it is everything you want. They will give in in the end. Just remember, it is a game of chicken. They will blink first. they have more to lose.
Steven
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Egg caved in on the 7th December 2007, and offered to settle for everything i had claimed.
I duly signed the Tomlin order striking out the confidentiality bits, the agreement was that payment woudl be made in 14 days.
Having now checked 2 statements online and having rung them to make sure all the figures i saw were correct, it seems that they haven't coughed up at all.
I received from the local CC an aq on the same day and did not complete it as i was prepared to inform the court the matter was settled.
Today i received from the local CC a second allocation questionnaire that has to be submitted before the 31st, how do i best deal with this now?
How much is it going to cost me to submit the AQ?
Any advice greatly appreciated.
I love the smell of banks coughing up refunds early in the morning
jb vs egg.
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Reply With Quote
Originally Posted by joebloggs
