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Hello, although i have done loads of reading and browsing through the threads in the past, I have not been on the site for a some time and need some help quickly from a mod.
I have just recieved my 'Notice of Alllocation to the Small Claims Track (Hearing)' The judge has ordered that I clarify the claim by filing in court and serving on the defendant the following:
a) a schedule of charges (I have already sent Abbey 3 copies & the
court 1!!)
b) state what the claimant considers to be a proper charge.
I am a bit confused by the latter and I don't want to mess this up. Does anyone know what I should state constitutes a "proper charge"?
Any help would be greatly appreciated from all you experts out there.
NOTICE OF ALLOCATION TO THE SMALL CLAIMS TRACK (HEARING)
On 21 December 2006 District Judge Steel sitting at Willesden county court considered the statements of case and Allocation questionnaires filed and
IT IS ORDERED THAT
1. Allocate claim to small claims track.
2. The Claimant do by 4.00pm on 30 January 2007 clarify the claim by filing in Court and serving on the Defendant the following information:
a) in a schedule under the headings 'date', 'amount' and 'description' give details of each item in respect of which a refund is sought.
b) state what the Claimant considers to be a proper charge.
3. Defendant do by 4.00pm on 13 February 2007 file a statment in answer.
4. Parties do by 4.00pm on 27 February 2007 serve on each other copies of all documents to be relied upon at the hearing.
5. The hearing of the claim will take place at 14.30 on the 13 March 2007 at Willesden County Court and should take no longer than 1 hour.
6. The Court is of the view that this matter ought to be settled by sensible negotiation or mediation and will take into account the failure of either party to follow such a course when dealing with the question of costs.
The bit I am unsure of is 1b. state what you consider to be a proper charge. Also, at this stage can I add any other charges that I missed of my original schedule and any that have been added to my account recently??
My particulars of claim are:
1. The Claimant has an account ******* with the Defendant, opened Sept 2001 2. Since 01/02/03 the Defendant debited charges and interest in respect of purported breaches of contract. 3. Defendant is aware of all details as a list of charges has already been supplied. Another copy will be sent. 4. Claimant contends: (a) The charges exceed the Defendant's losses caused by the breaches; (b) The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. 5. Claimant claims: (a) return of the amounts debited of £1178; 6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982. 7. Costs allowed by the Court.
Well they want your schedule of charges, but what really concerns me is that they want you to state what you think a proper charge is, how on earth can we make that decision, i think I would be tempted to say that the UTCCR 1999 (I think) states that the charge has to be a true reflection of the ACTUAL COST to the bank in question - the bank need to come back with their true costs for each transgression and not just a blanket penalty charge - perhaps this is a roundabout way to get you to ask for full disclosure
Lula
Lula v Abbey - Settled Lula v Abbey (2) - Settled Lula v Abbey (3) - Stayed
b) state what the Claimant considers to be a proper charge.
This Direction is either stupid, irrelevant or an ambush.
I'm not a mod but I deal with contract LDs at work. If an LD specified at the time of contract turns out (under challenge later) to be unenforceable (for whatever reason but including the fact that it wasn't a genuine pre-estimate) then that's that - the 'damaged' party can't then introduce a new (lower) LD term/figure or a new estimate of its loss. That deals with stupid and irrelevant.
As for ambush ........ there's nothing to stop both parties agreeing a new LD clause. DO NOT, under any circumstances whatever (in my humble opinion) offer a figure. Tricky one though - can't be seen not follow Judge's Directions.
I think you should write to the Judge for clarification. Our gut feeling is that it refers to a value.
In principle the response should be something like "a proper charge should be the amount which in law the defendants are justified in asking from the claimant in respect of breaches so that they are put into the position which they would be in had the breach of contract never occurred."
I suggest that the you provide the judge with the draft directions and respctfully suggest that if they are adopted by the court, the defendants will then make a disclosure which will put the question beyond doubt.
Livelylad, when I submitted my aq, I attached with it a Draft Order for Directions. So unless the Judge has misplaced these I cant see why he has not adhered to them.
Mad Nick, my claim was not a pre-estimate of charges but a true figure that I gathered from my statements (kept them all). I have not asked for any interest nor any other costs. I have simply asked that each and every charge is refunded, I dont think this is an unreasonable request. I know many others have claimed interest on top.
I don't intend to offer an 'exact' figure as this will just play into the hands of Abbey and I also feel that it should be abbey not I, who has to "state what they consider to be a proper charge". No?
Will give the court a ring this afternoon as Lula suggested.
If you attached the Draft order for directions then I think that they might have got the directions a bit wrong - it might be worth asking if they can check for what the judge actually said - respectfully of course
Lula
Lula v Abbey - Settled Lula v Abbey (2) - Settled Lula v Abbey (3) - Stayed
Mad Nick, my claim was not a pre-estimate of charges but a true figure that I gathered from my statements (kept them all). I have not asked for any interest nor any other costs. I have simply asked that each and every charge is refunded, I dont think this is an unreasonable request. I know many others have claimed interest on top.
I don't intend to offer an 'exact' figure as this will just play into the hands of Abbey and I also feel that it should be abbey not I, who has to "state what they consider to be a proper charge". No?
I wasn't actually questioning the legitimacy of your claim however it's constructed. When I said the 'damaged' party can't then introduce a new (lower) LD term/figure or a new estimate of its loss I was referring to the Abbey as the 'damaged' party not you - strictly speaking they are because of our default. Their only problem in claiming LDs is that their charges are not a genuine pre-estimate of loss, disproportionate and therefore unenforceable. My point was that having lost that argument they can't retrospectively charge a lower figure which would pass the pre-estimate/proportionate test - it doesn't work like that. Which is exactly why you are right not to play into their hands by offering them a figure. You must have thought I was living up to my Mad tag. Regards, Mad Nick
Right... tried calling the courts 3 times yesterday and each time was on hold for over 30 mins! So gave up.
Today however I persisted and finally got through (after 40 mins)! The man I spoke to got my file out and confirmed that the judge had received my Draft Order for Directions (although it seems he did not want to follow it?). He said there had been no mistake with order and that I should attach a letter to judge stating what I consider to be a proper charge but to point out to the judge that I am unsure exactly what he has requested.
I am gonna need some help with this one! I don't want to give an exact figure but at the same time I can't be too vague either. Any suggestions from you guys? It has to be handed in by next tuesday so want to post it by the weekend really.
Just to let you know I am claiming £1178 worth of charges. Also is it possible at this stage to add 2 other charges that completely slipped me by?
IMO you should state quoting from the money programme, australian thing and competition commsioners report saying that a proper charge would
be directly proportional to the costs. It is your belief that this would be
in the region of £1.50 or whatever but in the absence of information from the defendant you are unable to make an accurate assessment of what would be a proper charge.
Just my thought I believe someone else will be along shortly to have a look.
Personally and IMHO, I would tell the Judge that as I am not a forensic accountant then the onus is on Abbey to provide to you and the Court an accurate assesment of their charges actually incurred. You cannot with any accuracy provide it as it is the Defendants responsibility to do this as how do they work out the charges in the first place in order to charge what they do? They must have detailed accountancy reports detailing the amounts accrued for each transaction!
PLease point out to the Judge that (if you have used the standard script for your claim) that this information has been requested from the DEfendant and to date has not been provided.
srfrench
Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are!
NOTICE OF ALLOCATION TO THE SMALL CLAIMS TRACK (HEARING)
On 21 December 2006 District Judge Steel sitting at Willesden county court considered the statements of case and Allocation questionnaires filed and
IT IS ORDERED THAT
1. Allocate claim to small claims track. Self explanatory
2. The Claimant do by 4.00pm on 30 January 2007 clarify the claim by filing in Court and serving on the Defendant the following information:
a) in a schedule under the headings 'date', 'amount' and 'description' give details of each item in respect of which a refund is sought. Submit aschedule ofcharges
b) state what the Claimant considers to be a proper charge. Ok it seems that he is asking for a monetary value. You can quote the recent report regarding bank charges on the money programme, and competition commsioners report saying that a proper charge would be directly proportional to the costs. It is your belief that this would be in the region of £1.50 but in the absence of information from the defendant (which you have requested from them) you are unable to make an accurate assessment of what would be a proper charge. A standard disclosure regarding a Breakdown of charges will allow you to enter the correct "proper charge " figure.
3. Defendant do by 4.00pm on 13 February 2007 file a statment in answer. Self explanatory as above.
4. Parties do by 4.00pm on 27 February 2007 serve on each other copies of all documents to be relied upon at the hearing. Court Bundle incl letters and statement copies (and commisoners reports etc from your reply to 2b)
5. The hearing of the claim will take place at 14.30 on the 13 March 2007 at Willesden County Court and should take no longer than 1 hour.
6. The Court is of the view that this matter ought to be settled by sensible negotiation or mediation and will take into account the failure of either party to follow such a course when dealing with the question of costs.
The bit I am unsure of is 1b. state what you consider to be a proper charge. Also, at this stage can I add any other charges that I missed of my original schedule and any that have been added to my account recently?? You can add the charges but it will cost £35 and you will need to complete the N244. This fee is not recoverable and may delay your claim so a better option would be to ask for the charges to be added once they agree to settle if they refuse you will need to start another claim.
My particulars of claim are:
1. The Claimant has an account ******* with the Defendant, opened Sept 2001 2. Since 01/02/03 the Defendant debited charges and interest in respect of purported breaches of contract. 3. Defendant is aware of all details as a list of charges has already been supplied. Another copy will be sent. 4. Claimant contends: (a) The charges exceed the Defendant's losses caused by the breaches; (b) The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. 5. Claimant claims: (a) return of the amounts debited of £1178; 6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982. 7. Costs allowed by the Court.
Here is a draft copy of what I intend to give to the court. Can someone please give it the once over and make any neccessary changes. Thanks!
1. Please find attached a schedule of charges which gives details of each item in respect of which a refund is sought.
2. The Claimant considers a proper charge should be a true reflection of the actual costs to the defendant in respect of any breaches of contract on the part of the Claimant. The Defendant should therefore provide to the Claimant and the Court an accurate assessment of their costs actually incurred. The Claimant has never been the subject of debt recovery action, or been pursued for payment of debt, by the Defendant. In addition, the Defendant has never been required to undertake any work other than sending automated letters to the Claimant with regard to Unpaid Items, Unarranged Overdrafts and Referral Charges.
The recent report regarding bank charges on the money programme, and competition commissioner’s report stated that a proper charge would be directly proportional to the costs. It is your belief that this would be in the region of £1.50 but in the absence of information from the defendant (which you have requested from them) you are unable to make an accurate assessment of what would be a proper charge. A standard disclosure regarding a Breakdown of charges will allow you to enter the correct "proper charge" figure.
The recent report regarding bank charges on the money programme, and competition commissioner’s report stated that a proper charge would be directly proportional to the costs. It is your belief that this would be in the region of £1.50 but in the absence of information from the defendant (which you have requested from them) you are unable to make an accurate assessment of what would be a proper charge. A standard disclosure regarding a Breakdown of charges will allow you to enter the correct "proper charge" figure.
needs expanding and rewording........have you got copies of the competition commisoners report etc ?
Made some chages myself as re-read it and it didnt make sense. As for the competition commissioner's report I am not sure which one I should have read. Thanks for all your help.
1. Please find attached a schedule of charges which gives details of each item in respect of which a refund is sought.
2. The Claimant considers a proper charge should be a true reflection of the actual costs to the defendant in respect of any breaches of contract on the part of the Claimant. The Defendant should therefore provide to the Claimant and the Court an accurate assessment of their costs actually incurred. The Claimant has never been the subject of debt recovery action, or been pursued for payment of debt, by the Defendant. In addition, the Defendant has never been required to undertake any work other than sending automated letters to the Claimant with regard to Unpaid Items, Unarranged Overdrafts and Referral Charges.
The recent report regarding bank charges on the money programme, and competition commissioner’s report stated that a proper charge would be directly proportional to the costs. It is the Claimant's belief that this would be in the region of £1.50 but in the absence of information from the Defendant (which has been requested from them) the Claimant is unable to make an accurate assessment of what would be a proper charge. A standard disclosure regarding a Breakdown of charges will allow the Claimant to enter the correct "proper charge" figure.
Little old me against the big bad bank! *** WON WON WON **
3 copies & the
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Originally Posted by Kathrynlf
