Defendants Witness Statement: help needed Please

[nickt1976]

Hi all,

 

Hope someone can help or point me in the right direction with this one.

 

Long story but I'll keep it very short,

 

A Lloyds TSB claim, filed last year on 19th April 2007. Allocation questionnaire etc... done. The case went from local court to Mercantile court and back again.

 

Claim stayed in September2007, sent application to have stay lifted on grounds of hardship

 

On 14th Feb 2008 hearing for stay to be lifted, judge was very good, our case is very different in that on our statements,the bank could not explain why they had deducted these amounts listed as 'OTH', (varying from £5.00, £23.50,etc... highest one was £35.23) over a period of 3 months- Total claim £775.57.Judge ordered defendants to file explanation, giving them 28 days (lifted stay for 28 days)

 

Today defendants have sent a witness statement basically giving us £209.24, cant explain why these charges were put on ( excuse is- 2001 is over 6 yrs and they don't keep records etc..but it wasn't when claim was filed)if anyone wants more info I'll send it

 

thanks in advance, if anyone can give me guidance to next step, writing back to court,defendant etc... it would be much appreciated

 

Hope this all make sense.

 

nick

[patrickq1]

i will put your request to some of the forums and see if curly can help or PT dont worry you will get a reply by the sounds of things they are already in breach of the judges request and still have a lot of answers to do

and the six year rule is not in question when they are the ones who began the action so they can whistle in the wind on that

patrickq1

[nickt1976]

Hi patrickq1

 

Thanks for your reply

 

They are trying to fob me off with this reply and I don't want to let them get away with this as it's come this far.

 

I want to make sure that the judge doesn't take what they say and accept their explanation.

 

They have completely gone around the question set by the judge.

 

nick

[nickt1976]

Hi all

 

Here is what was in witness statement,

 

"statements clearly identifies the various debits from the account listed as 'OTH'. Due to the passage of time and the bank not being obliged to keep records more than 6 yrs in these matters, I have been unable to ascertain the exact nature of these transactions"

 

this is the answer to the judge and me asking what they were for.

 

nick

[car2403]

What does the Court Order say will happen once the 28 days expire? Relist the case, defence struck out, etc?

 

If they haven't/can't provide what was asked for, they don't have a hope in hell.

[nickt1976]

hi car2403,

 

Court order says,

 

upon hearing the claimant in person and upon hearing Counsel for the Defendant

 

It is ordered that:-

 

1) The stay is lifted for the specific purpose of the Defendants filing and serving evidence as to the basis of the items charged and referred to as 'oth' in the schedule annexed to the particulars of claim, such evidence to be filed and served by 4.00pm on 13th March 2008.

 

2) The matter shall be referred to District Judge Bedford for his further directions (which may include the ordering of a further stay) upon compliance with paragraph 1 above.

 

The hearing was adjourned for 10 mins for the solicitor to phone his client and ask what they were for and when they couldn't answer thats when he asked for 28 days.

 

The judge basically said to him it's not a great deal of money and we were only asking for our money back (no damages) give it to them (without saying it).

 

I don't know what to do next, should I write to the court?(don't know what to say) or wait for court to get in touch, should I write to the solicitor? accept the cheque as partial settlement, send cheque back?

 

All thoughts / suggestions great fully received

 

Thanks in advance

 

nick

[Lula]

When they sent you the cheque what did the letter say? If it makes no mention of the fact that if you accept the cheque then they will consider the claim settled, I would write back (recorded delivery) that you accept the cheque in partial settlement of your claim and will continue to claim the rest through the court.

 

As per the order, you dont need to do anything, you just wait for the court to get in touch, but i would ring them when the time is up and see if they have sent the stuff to the court, if they havnt then I would wrote and ask for the defence to be struck out and judgement to be found in your favour.

[car2403]

They've sent you a cheque? Is that the £209.24 you mentioned? Can I assume that this amount is the different between the charges they can explain and the charges they can't?

[nickt1976]

Hi Lula and car2403,

 

Thanks for your replies,

 

Lula it says nothing about accepting cheque as a settlement figure. In the witness statement it says:( which will answer your question car2403)

 

"The bank has agreed to refund all transaction relating to charges listed as "OTH" which amount to the sum of £139.73 for the period 2nd Jan 01 until 2nd March 01, together with the statutory rate of interest @8%for £69.51 total £209. 24 ( I've gone for contractual Interest @ 29.8%) and rest of the claim was overdraft interest that these charges incurred for me)

 

I believe that the remaining part of this claim should be stayed pending OFT test case I believe these proceedings will resolve the legal issues regarding the fairness and legality of these charges"

 

HA! HA! they don't even know what the charges are for and neither do I

 

car2403 they have sent a cheque for the "OTH" charges

 

nick

[car2403]

Clever... I think the claim will be stayed pending the OFT TC now then.

[nickt1976]

Hi car2403,

 

What makes you think this?when the charges can't be accounted for.(do you think the contractual part will be stayed?)

 

I think it will go through(hopefully) as they haven't answered the courts order to produce the reason behind "OTH" charges, surely this now is nothing at all like the OFT test case principles.

 

I value your opinion and points, if anyone else has any please feel free to make them.

 

What does anyone feel about my prospect of getting all of my claim?

 

nick

[nickt1976]

Hi all,

 

Question regarding cheque do I accept 'Without prejudice' on letter to solicitor or wouldn't you bother in this instance

 

thanks in advance

 

nick

[car2403]

Hi car2403,

 

What makes you think this?when the charges can't be accounted for.(do you think the contractual part will be stayed?)

 

I think it will go through(hopefully) as they haven't answered the courts order to produce the reason behind "OTH" charges, surely this now is nothing at all like the OFT test case principles.

 

I value your opinion and points, if anyone else has any please feel free to make them.

 

What does anyone feel about my prospect of getting all of my claim?

 

nick

 

My understanding is that they've refunded the charges they can't account for in this cheque and will rely on the OFT TC outcome to determine the rest, which is why I think the amount of your claim will be reduced by the cheque amount you've received back and the remainder of the claim will have to be stayed until the OFT TC outcome is known. I seriously can't see the Court hearing the rest of the claim, as the Bank will surely appeal any decision anyway, so it isn't in your interests to continue until the OFT TC is known anyway. (Given costs involved in responding to an appeal by the Bank)

 

Yes they haven't done what has been ordered, but they have refunded the amount you've disputed under the "OTH" charges, so technically they probably have complied. (or the Judge is likely to take that view anyway)

 

Hi all,

 

Question regarding cheque do I accept 'Without prejudice' on letter to solicitor or wouldn't you bother in this instance

 

thanks in advance

 

nick

 

If you do, the letter can't be submitted as substantial evidence to the Court - I'd say no, as you need to submit the letter to the Court to show that they've made a partial payment under the claim.

 

I can guarantee that they've already communicated this to the Court, but nothing wrong in you doing the same at this stage, IMO.

[nickt1976]

Hi car2403,

 

thanks for your reply and I can see what you mean, thanks for answering my last question too(re: without prejudice)

 

Hope judge is in a good mood,:eek:OFT test case finishes:(( that would be a miracle) banks have a conscience, sorry I'm dreaming again.

 

nick