Arkanara v A&L

[arkanara]

Hi there,

 

I have just recently reclaimed my bank charges from the A&L, a short while after we decided to reclaim my partners to from the Cumberland Building Society. Today we have received Defence and Counterclaim. Although i have read what I can it seems not many have done this and I am unsure what happens next. I know an allocation questionaire are sent out but its feeling increasing like we are going to be the losers in this and will end up paying them!

 

Any advice would be greatly appreciated. Thanks in advance.

[callumsgran]

Dont panic, this is standard procedure for some companies, just go with the flow!

They will pay out eventually, you just have to be patient!

[MARTIN3030]

Yep........you will be on the winning side..the only loser will be the bank;)

[arkanara]

Thanks guys.

 

The only thing I am a little worried about is the content of the defence and the counterclaim. I have read claims dating back quite a few months and do I not have to do something in reply to this counterclaim or do I just wait for the AQ?

[arkanara]

The Cumberland Building Society have filed a defence after MCOL was issued.

 

The words 'without predjudice' are in a couple of paragraphs of the 12 page long defence. I was confused by this as I thought that meant that it could not be used as evidence in court if this was stated?

 

They have stated that their charges are 'liquidated damages'.

 

It is just a little scary not having a forum to post on and get the help and advice of others. I recently was successfull in reclaiming my charges from A&L and hads so much support in the forum, also it didn't get to this stage so this is all a bit new for me.

 

Sny comments would be appreciated. Many thanks.

[zootscoot]

Hi Arkanara,

 

What sort of account was this? What were the charges for and how much were they.

 

Do you have access to a scanner?

[Glenn UK]

Even if you cant scan the papers, why not transcribed the bits you are particularly concerned with?

 

Unfortunately a couple of words alone don't convey the context or meaning of what the issues are.

 

Do you have a thread started anywhere for this claim, it would be helpful then you could post all the details and if necessary send or post the link to ask for support.

 

HTH

 

Glenn

[arkanara]

Hi Arkanara,

 

What sort of account was this? What were the charges for and how much were they.

 

Do you have access to a scanner?

 

Hi zootscoot,

 

Thank you for your reply. The account is a basic current account, it was in its early stages a business account but was then transfered to a basic account. The charges are for Failed DD, SO etc and the total including interest is around £2000.

 

I do have access to a scanner, what would you like me to do?

 

Thanks, Em.

[zootscoot]

Hi Arkanara,

 

Had a look at the defence and it really is one of the worst I've seen yet, although not for you, it is pretty good for you.

 

Most points are just denial without any substance. Interesting that they are actually claiming the charges are fair as they allow their good customers to enjoy free banking which is subsidised by charges. I think they have shot themselves in the foot with that one! To amount to a liquidated damages clause they have to show that they have made a genuine pre-estimate of any loss flowing from your breaches of contract not that they are allowed to charge you for services provided to other customers!

 

They have also put in a counter claim for their legal fees. They can not do this if it is in small claims court as it would be against public policy and directly contradicts the CPR. To add insult to injury they are also claiming interest on their legal fees! They probably haven't even paid these yet and won't get paid until after the trial so what interest can they incur?!

 

Probably the sort of defence you would expect from a company named after a sausage!

 

It seems that this is simply a scare/delaying tactic so stick to your guns. You will get your allocation questionnaire in the next few days so just proceed as normal, although you'll need to raise a defence to their counter claim.

 

 

All the best

 

Zoot

[Glenn UK]

 

Probably the sort of defence you would expect from a company named after a sausage!

 

 

PMSL

 

Can a sausage sue for defamation? Anyone using your name is such a shoddy fashion is surely defaming you?

 

GLenn

[arkanara]

Zoot, you have no idea how much I appreciate you taking a look at that for me. Thank you.

 

As far as the counterclaim goes, how would I file my defence? I have filled in my A/Q and am ready to take it to the court with the fee. Nothing was mentioned in my docs from the court about the counterclaim so a little unsure about this one.

 

Thanks again.

 

Em

[arkanara]

Hi all,

 

Can anyone advise me on how to raise a defence to a counterclaim or tell me where i can find info about this?

 

I can't seem to find anything and nothing was mentioned in the documents from the court so I am a little unsure.

 

The Building Society in question are counterclaiming for their costs as well as Interest.

 

Any help would be greatly appreciated.

 

Many thanks.

[arkanara]

Has anyone had to file a defence to a counterclaim? I really would appreciate any help anyone has to offer on this. I'v searched all over and cannot seem to find any information on doing this.

 

If anyone can help I really would appreciate it, i've successfully claimed my bank charges back from A&L but they didn't take it this far so unknown territory here!

[arkanara]

Hi again,

 

I sucessfully reclaimed my bank charges from A&L recently. I done this only with the help of this forum. I am now claiming from a building society in the North, there is no forum here for them as they are quite small. However they have filled a defence and counterclaim which is new territory for me.

 

I have had the defence looked over and am ready to take back the AQ with the fee back to the court but unfortunately I have no idea how to raise a defence to their counterclaim which I know I need to do. The details are in the link below any help really would be appreciated.

 

Thanks in advance.

 

http://www.consumeractiongroup.co.uk/forum/general/36903-defence-filed.html

[arkanara]

Thanks Karnevil, i am grateful for your help. I am by no means an expert on this but I have attempted below my defence. Please tell me what you think.

 

 

 

 

Claim No -----------

 

********************************************* Claimant

-and-

CUMBERLAND BUILDING SOCIETY Defendant

 

 

DEFENCE

 

• This defence is prepared to the contention that the defendant has made a counterclaim for costs and legal expenses. Set out in paragraph 26 of the defence includes a counterclaim for the defendant to charge the claimant for any loss or expenses suffered by the defendant in connection with the account in question. This is denied due to the costs being a disproportionate penalty.

• In defence to paragraph 27 and 28 of the defendants counterclaim where the defendant is claiming the legal and administrative costs of these proceedings aswell as interest. This is also denied as claiming for these in a small claims court would be against public policy and directly contradict the CPR.

STATEMENT OF TRUTH

 

I believe the facts stated within this defence to be true and comprising of 1 page.

 

 

Dated: 17 October 2006

 

Signed

***********

Claimant

[zootscoot]

Sorry Arkanara I meant to get back to you on this earlier, but then got interupted and then forgot. Karnevil is doing a great job!

 

You might also want to have a look at this thread for a similar defence to a counter claim although conerning a mortgage.

 

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/32915-these-guys-don-t.html

 

All the best

 

Zoot

[arkanara]

Can you type out 27 and 28 of their defence on your thread ?

 

27. In the premises, the Claimant claims, as a matter of contractual entitlement, its legal and administrative costs of these proceedings.

 

28. Further, the claimant claims interest on those costs and expenses under section 69 of the County Courts Act 1984 at such rate and for such period as the Court shall deem fit.

 

I will take a look at the thread you suggested. Thank you both for your attention to this.

[arkanara]

I have amended slightly, is this any better and would it be acceptable?

 

 

 

Claim No -----------

 

********************************************* Claimant

-and-

CUMBERLAND BUILDING SOCIETY Defendant

 

 

DEFENCE

 

• This defence is prepared to the contention that the defendant has made a counterclaim as set out in paragraph 26 of the defence that the defendant is entitled to charge the claimant for any loss or expenses suffered by the defendant in connection with the account in question.

I. In the event that the defendant is counterclaiming for actual costs resulting from the claimant contractual breaches and not litigation costs; then the claimant pleads as follows:

II. That this counterclaim for the actual costs is an abuse of court process because the claimant had repeatedly asked for the actual costs incurred as a result of the claimant breaches but the defendant failed to reveal the details of their penalty-charging regime; had these been revealed perhaps there wouldn’t have been a claim brought against the claimant in the first place consequently, the claimant would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. The claimant understands that it is in the courts discretion to do so. The claimant believes this would bring a rapid end to this litigation.

• In defence to paragraph 27 and 28 of the defendants counterclaim where the defendant is claiming the legal and administrative costs of these proceedings aswell as interest. This is also denied as claiming for these in a small claims court would be against public policy and directly contradict the CPR.

STATEMENT OF TRUTH

 

I believe the facts stated within this defence to be true and comprising of 1 page.

 

 

Dated: 17 October 2006

 

Signed

***********

Claimant

[arkanara]

Please don't apologise like I say i'm extremely grateful.

 

26. Under Clause 8.1 of the Investment and Current Account Conditions which apply to this account, the Defendant is entitled to charge the Claimant for any loss or expense suffered by the Defendant in connection with this account. Such loss and expense included the legal and administrative costs and expenses of these proceedings.

 

At the end there is this -

 

AND the Defendant counterclaims:

 

(1) Costs and expenses as a matter of contract as set out in Paragraph 27 herein;

(2) Interest;

(3) Alternatively to (1), the costs of these proceesings as a matter of the discretion of the Court;

(4) Such further or other relief as may be necessary or desirable.

 

Thats the lot, everything in their counterclaim.

[arkanara]

Ok I have amended the parts you suggested Karnevil, thanks. However I cannot find the part within the CPR which says they cannot claim for these expenses. I have searched most of the day. That is all i need for it to be finishes i think. Here is what i have so far, like I say all i need is the rule.

 

DEFENCE

 

1. This defence is prepared to the contention that the defendant has made a counterclaim for costs and legal expenses.

2. Set out in paragraph 26 of the defence includes a counterclaim for the defendant to charge the claimant for any loss or expenses suffered by the defendant in connection to the breach of contract by the claimant in respect of the account in question. This is denied due to the charges taken from the account by the defendant being a disproportionate penalty.

3. In defence to paragraph 27 of the defendant’s counterclaim where the defendant is claiming the legal and administrative costs of these proceedings. This is also denied as claiming for these in a small claims court would be against public policy and directly contradicts the CPR.

4. In defence to paragraph 28 of the defendant’s counterclaim where the defendant is claiming Interest on the costs and expenses,

this is denied using the reasons set out in Paragraph 3.

Any comments or help with the rule would be really helpful.

[arkanara]

Thank you for the reply.

 

I did find this today, however it seems confusing to me. Should I enter that text in my defence or is it contradicting what i'm saying?

[zootscoot]

There is no need to reproduce it in full. Simply mention that legal fees are not recoverable in actions in the small claims under CPR 27.14. You may need to include a copy of the CPR in your document bundle if it gets that far.

 

You could perhaps also mention the overriding objectives of the CPR which provide an obligation on lawyers to deal with cases justly and to ensure that parties are on an equal footing. As you have no reciprocal right to claim legal costs and as an individual with appearing in person it would place you at a substantial disadvantage; particularly as your opponent is a large financial institution with easy access to legal advice and representation and an ability to bear the burden of those costs.

 

You might also want to have a look at the actual wording of the clause they rely upon to see if it covers the situation of defending themselves in a claim by you for their unlawful activity.

 

You could also lodge a complaint with the Law Society about the solicitor's abuse of process.

 

Hope this helps

 

Zoot

[zootscoot]

Also, if you have not received any notice from the court regarding this it could well be that they've slipped this in their defence to scare you with out formally issuing a counterclaim with the court. If this is the case, it is still worth lodging the defence with the court to draw attention to their underhand tactics. This will hopefully result in a speedier end to the matter.

[maroonfox5]

Good thread

 

Just posting for a e mail link to this one.

 

Cheers

 

MF5

 

PS don't worry Zoot I'm not stalking you !

 

Regards

 

MF5

[arkanara]

Once again Zoot, thank you so much! I will amend to make a final draft and take that into the courts with the AQ.

 

With regard to them not entering the counterclaim with the court I received two copies of the defence, one from them and one with the AQ from the court, which are both identical. Seems they really are having a poor attempt.

 

Hopefully once this is handed in they will pay up, the legal side of things really isn't my forte and i get worried quite easily. In comparison A&L were a very easy to crack!

So to all those at the beginning or in the middle of their process, keep it up!

 

Many many thanks for the support, Em.