Thread: Maisielou~v~Egg

Hi
a while ago i won my claim against Barclays (over 5K) amongst others
well now im trying to reclaim my charges against Egg....but im finding a lot harder to crack............
today i received the court order for 18th May stating

the following directions apply to this claim

1. the claimant shall within 28 days of service of this order send to the defendant and the court;
a. a schedule setting out each charge repayment of which is sought, showing the date,amount,and reason (if any) for that charge being made

b. copies of any statements or other documents relied upon as showing that each and every charge has been made

c. a statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise

d. copies of decided cases and other legal materials to be relied upon

if the claimant fails to comply with this order the claim will be struck out without further notice.
2. the defendant shall within 28 days thereafter file and serve a response to the claimants schedule stating in response of each item claimed.

a. pursant to what constractual provision such charge was made, producing a copy of the contractual documment relied upon.

b. whether such charge is accepted to be a penalty.and if not. why not.

c.. if such charge is alleged to be a pre-estimate of the Defendants loss incurred by the claimants actions (whether or not such action is to be treated as a breach of the contract between the parties) all facts and matters intended to be relied upon as showing that such is a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

d. any witness statements

c. copies of decided cases and other legal materials to be relied upon.

if the defendant fails to comply with this order, the defence will be struck out without further order,

3. the original documents shall be brought to the hearing

4. the court must be informed immediately if the case is settled by agreement before the hearing date

I never had anything like this with Barclays so any advice would be gratefully accepted................. ....plz.........

Maisie,

What initiative on your part preceded the receipt of this court order? Did you write to Egg? Did you file a claim in Small Claims Court? If the latter then I believe you have no choice but go as fast as the court will allow, jumping through the hoops itemised.

After the CEO of OFT pronounced on 5th April 2006 that he planned to take legal action against excessive credit card penalty charges, forums such as this burnt the midnight oil to prepare a case for reclaim, quoting as precedent Dunlop-v-Garage 1911, where the claimant's case about excessive penalty charge was upheld (there was a similar ruling in Scotland which provided a Scottish precedent). From then till December 2006 Egg resisted and stalled claims fiercely, ending up in Small Claims Court once or twice, where they largely lost, but the judge did not order 100% refund. After that Egg was sold by the Pru to Citigroup, and Egg managers had no further appetite for a cour fight or even for stalling as long as possible to make life sad for claimants. Egg reclaims were largely waved through after a skilled claimant letter making clear the claimant knew exactly what to say in court.

The court order you received shows a sea change at Egg, the first in two years with Egg now ready to fight a test case (or to make you think so and frighten you into accepting £4 refund). The worm turning is no surprise. With easy 100% reclaims Egg no longer has any persuader to stop cardholders from going Overlimit or missing monthly payments. The only remaining persuader is the threat of a DN.

This order requires you to list evidece of itemised charges which you will do any way for court.

Egg appear to want to sidestep the Dunlop-v-Garage precedent - making out in court that Overlimit Charge and Late Payment Charge were not levied upon breach of contract, so that the Dunlop case based on breach of contract would be inapplicable. This is laughable because there is too much text in T&C to show these charges were Egg's response to a breach of contract which the claimant does not dispute.

Given that Egg will fail to escape Dunlop-v-Garage Egg will then say that the injury of Overlimit and Late Payment to them were assessed in April 2006 as Genuine Pre-estimates, priced at £16 and presented to OFT who did not demur. Here the claimant can cause Egg maximum embarassment in open court by seeking discovery of Egg's yearend post-event audited price in contrast to their "Genuine Pre-estimates". If the true damage is computed by Egg's yearend audit at £5, the cat will be let out of the bag and Egg can no longer charge anybody else £16. See moc1982 v Egg

Egg will have a lot to lose if they see you in court, but so do you. For two years all claimants have been getting 100% refund, but if this gets to court the judge will rule on a fair charge, lower than £16 but higher than zero. On 21st Nov 2006 it was ruled as £5, see Win #1 in http://www.consumeractiongroup.co.uk...ry-over-5.html

So the best thing for you and those after you is for you to show your shining armour and gleaming sword, that you have understood everything and will face them down. If you are convincing, they may do a U-turn on their U-turn and revert to refunding on demand without need for court or legal form-filling.

Suggest you draw attention to this thread by PM'ing head man Bankfodder and Egg local mod Steven4064. If their mailboxes are full then click the yellow triangle to reach a Mod on duty who will forward your message.

Good luck.

Thank you for your help..........i did file a claim and have filled out a questionnaire hence the court order........think i need to pm a mod

Originally Posted by maisielou

Thank you for your help..........i did file a claim and have filled out a questionnaire hence the court order........think i need to pm a mod

This is a better sign. If you filed a court suit then the case will have landed in Egg's hardline law department who no doubt want to show their macho muscles able to scare claimants into a climbdown. This has been demonstrated before, with lawyers talkiing tough but at the last minute deciding discretion is the better part of valour.

All the easy reclaims were submitted to Egg bsiness managers. It has not therefore been proven that Egg business managers have undergone a sea change escalating from doves to determined hawks.

Maisielou

Can you post your particulars of claim. Also,do you have a copy of your agreement with Egg? If not, it might be worth requesting it under s78(1) of the Consumer Credit Act 1974. You need to send £1 and remind them they must reply within 12 days.

What the court has sent are pretty standard directions (in fact they are effectively ones that we ask them to issue). THe first 2 bits are straightforward - your schedule of charges and copies of statements to back it up.

The statememt of evidence is fairly strightforward and there are several around on the site - if you can't find one perhaps Mistermind will help. THe last bit is jus copies of the cases referredto in the statement of evidence - most will be available in the cases lirary on this site.

You have 4 weeks to put this together so there is no panic although you shouldn't drag your feet either.AS you put it all together, make sure you understand every detail then you can brandish your sword as MM said.

Further to my previous post - here is a statement of evidence - http://www.consumeractiongroup.co.uk...tml#post482194

It is a bit old now and will require a bit of work although the basics ar there. Ditch all references to the Unfair Contract Terms Act 1977 as that is now known to be irrelevant. Ditch the Australian stuff too and the Lloyds telephone call. Put in the relavant details from you case.

When you have had a go at it, post the statement here so we can look at it. MM will be a great source of help and advice, I'm sure.

You will find the cases here - The Consumer Forums - Cases

Put together a file (3 copies - 1 for court, 1 for Egg and1 for you) with the 4 parts of the order - statement of evidence first, schedule of charges, copies of statements (don't bother with any that do not have charges on them) and copies of the cases mentioned in the statement. You might also add a copy of the relevant bits of the UTCCR1999.

The precise clauses in Egg T&C need to be pinpointed, saying Late Payment and Overlimit constitute breaches of contract, to be met with penalty charges. It is essential that the claimant admit breach of contract, or Dunlop-v-Garage 1911 ruling would not apply -- basically that Dunlop was entitled to receive as much penalty charge as the breach cost them, but not to make a profit over the breach. Be careful if successive T&C have softpedaled this link, in which case may need to retriev an earlier version of T&C.

In April 2007 CAG member Kevboy_telford reclaimed penalty (bank, not credit card) charges from Lloyds TSB in court. Judge Cooke ruled that he saw the charges in question as a service fee not a penalty charge, as no breach of contract was proven. Judge Cooke went to great lengths to say that his ruling did not apply to credit cards, this being as far as a circumspect judge is likely to go in saying credit card penalty charges were triggered by breach of contract, seeing that cc was not the case in court. If you PM Kevboy_telford he will show you where to find the pdf judgement document - something like paragraph 42 out of 44.

If you convince Egg lawyers you have a nuclear missile carrying a genuine payload not a dustbin, you do not need to fire it. They will remember an urgent appointment elsewhere.

Of course the judge in Kevboy-telford's case was wrong. The charges may not be penaltes but the test case has shown they are not charges for a service either.

IMO, credit card charges are more obviously penalties. A late payment charge is IMHO directly related to the term in the contract that you must make a minimum [ayment by a certain date and is therefore a penalty charge occasioned by your breach of the contract - ie by paying late. Charges when you go over your credit limit are less obviously penalties unless there is a term in the contract that effectively says "you must not go over your credit limit" Haaving said that, going over a credit limit is not all the caooman as it is quite difficult to do and often only haooens because of the late payment charges. As thay are penalties, the other charge would be a penaltyy too.

zz

sorry i havent replied had a sudden death in the family and have spent the last few weeks up and down the m40 anyway im in desperate need of help........have to send all the paperwork off tomorrow
I have nearly everything ready to go but do i need anything from the OFT ? and whats UTCCR1999 if someone can point me in the right direction please or think i will be up all night searching
thanks

UTCCR1999 can be found here http://www.consumerforums.com/resour...regs-1999.html

Thank you....so do i need to print all this out and send to the court and Egg?

yes along with everything else that was asked for in the order

Thank you Saintly 1 you are a saint lol

Just an update sent everything off 10 days ago now they have 28 days to respond just a waiting game now

Up date........... the court and Egg solicitors received all my papers....... then a week later had a letter offering me all my money back was supposed to receive it by the 12th still waiting all the response i get is that they are snowed under with all the refunds!!!!!!! so still waiting

Hope you havent stopped the claim yet ...... Dont do that until you have the cleared funds in your bank

No i havent but they informed the courts about 2 weeks ago that they were going to settle

Think i have given them enough time.......will give the courts a ring tomorrow

still waiting.....so think its time for the bailiffs on tuesday