Draft Order for Allocation Questionnaires

[BankFodder]

I think that the order which has been pointed out at

http://www.consumeractiongroup.co.uk/forum/post-409327.html

 

Would form a very good basis for a standard attachment to all AQs and could help to turn the heat up a bit.

 

I think that we could modify it and use it as a template and encourage anyone who returns an AQ to ask for the atrtached draft direction to be made into an order.

 

I suspect that quite a few judges would agree.

[BankFodder]

 

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

 

Between

 

XXXXXXXX - Claimant

 

and

 

 

XXXXX - Defendant

 

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document 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 order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document 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 Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was 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) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) 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.

 

Comments?

[GaryH]

Definately a good idea IMO. I've been advising people to request those directions if they get the chance. Should have more joy with that than we currently are by requesting an SD order, judges seem to be very reluctant to order that for small claims cases. Also it disposes of the claim much quicker when the date for document submission is set early, which is something that most courts don't seem to have cottoned on to yet.

 

 

In section G (J if N150) of the AQ, you get the opportunity to add any other information you think may help the judge manage the claim, or make a request for specific orders that you want the judge to consider making.

 

Untill now, we have always requested an order of standard disclosure in this section, as per the AQ guide notes in the templates library.

 

A standard disclosure order, if it were ordered by the judge, would oblige the bank to fully substantiate exactly how its charges are made up and provide costings and documentary evidence, etc.

 

Trouble is, standard disclosure is not routinely availible in small claims cases - it is only usually ordered in the fast and multi-track. Judges do have the power to order it in small claims cases if they wish, but up untill now they have been very reluctant to do so. In fact I'm only aware of a handful of cases in which it has been ordered dispite it being requested in hundreds of AQ's.

 

So now, instead of requesting an order of standard disclosure in the AQ, there is the option of requesting the directions as per the draft order on the previous page.

 

If ordered, this would still oblige the bank to produce all the important documentation that a standard disclosure order would - but, in a form that is far more likely to be agreed by the judge.

 

These directions are already being routinely ordered by some courts in small claims track cases, and it is fairly likely that if proposed most judges would agree to them. There is certainly no obvious reason why they would'nt, as is the case with standard disclosure.

 

So, if you want to request the directions on the previous page rather than standard disclosure, you need to attach the draft order (as per BF's post #2) to the other info section of the AQ. If you have a N150, attach it to the 'proposed directions' section and see my post on the previous page (post #15) for a suggestion of what to put in 'other info'.

 

The AQ will then go off to be looked at by the judge to consider the AQ's and allocate your claim - set the date, issue directions, etc.

 

You will then in a couple of weeks receive your notice of allocation from the court, which will contain the track, the date and the directions the judge has ordered.

 

If the judge has aceeded to your request and ordered the directions as proposed, you will THEN have to submit the claimants documents as per a), b), c) and d) of the order.

 

It is VERY IMPORTANT that you then know exactly what you need to provide and submit it to the court and the other side within the date specified on the order.

 

If you don't submit it, or don't submit it on time, your claim will then be struck out!!!

 

Once you've filed and served your documents, the bank will then have to submit theirs within their specified timescale. Going on past evidance, it is highly unlikely (although not inconcevable) that the bank will comply. They will probably either settle before the deadline, or default and have their defence struck out.

 

As discussed previously on this thread, the other big advantage of these directions is that the defendants documents have to be submitted within 28 days of the order. Therefore, the claims timescale would be considerably shortened as opposed to the standard small claims track directions, which don't require document exchange to take place untill 14 days before the hearing - which obviously in some cases could be months!

 

Hope this helps clarfy it a bit!

[GaryH]

After the AQ's have gone back, if the judge has agreed to the directions in the draft order you will then need to provide;

 

a) Your schedule;

 

b) Your statements showing the charges. Alternatively the list of charges which the bank provided under your S.A.R - (Subject Access Request);

 

c) A statement of evidence. See the post below.

 

d) All the statutues and decided cases on which your claim relies. Ie, UTCCR's, UCTA's, SOGA, case law, etc. For this, I'd just submit the whole of the http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html.

[GaryH]

Heres the 'Statement of evidence' which can be used for direction c).

 

Remember this is only to be submitted if/when the judge orders the directions as proposed.

 

The first statement is to be used if your bank has defended the claim on the basis that the charges are a legitimate contractual service charge.

 

Please think carefully about what does or does'nt apply to your own particular claim and amend as necessary. Similarly, if you can think of any more evidence relevant to your claim, add that in too.

 

Usual disclaimer applies - Im not a lawyer (far from it!) and the following is just my interpretation which I prepared for my claim and that I have amended to be relevant to others. Its offered without liability.

 

text in black - template

text in red - guide notes

text in blue - examples. Replace with your own information.

 

'SERVICE CHARGE' STATEMENT -

 

STATEMENT OF EVIDENCE

 

 

- The Claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising out of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

- The Defendant contends that the charges levied are legitimate fixed price contractual services, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

- The Claimant believes a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty.

 

- In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915], Lord Dunedin stated that a clause is a penalty if it provides for “a payment of money stipulated as in-terrorum of the offending party”, i.e. if it is designed to scare or coerce or is used as a threat.

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. Add an example of a charge incurred due to going over by a small amount, for example -On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence.I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

- The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously. Here, add in details of any correspondence in which the bank referred to the charges as ‘penalties’, ‘defaults’ or ‘exist to cover costs’, etc. For example -In correspondence with Lloyds TSB’s ‘Customer Service Recovery’ department in July 2006, Martin Orton, who is manager of the department, stated this in a letter: “As you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs”. This was in response to a direct and plain request to justify Lloyds TSB’s charges. Throughout the letter, no mention was ever made of the charges as being the cost of any sort of ‘service’.(If anyone wants a copy of this letter, drop me a PM with your address and I'll post it to you.)

 

- Additionally, the [claimant believes there to be a high possibility that the] terms and conditions of [his / the claimants] account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the defendant that the claimant is aware. However, the bank has failed to provide me with a copy of the account contract, despite repeated requests to do so, so unfortunately this cannot be proved. A right of subject access request for this document was submitted to the defendant under the Data Protection Act 1998, on 8th September 2006. The defendant has failed to comply. Here, if your account contract states the charges as ‘breaches’ use the text in black. The blue bit was true in my case and I’ve left it there as an example. If it applies to you, keep it in, if not, take it out.

 

- The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR’s. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

- As pleaded above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

- However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

- Further, under the UTCCR:

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

 

- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

- The cost of Lloyds charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

- Following on from the above, the claimant does not accept The Defendants contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. A penalty however, is unenforceable.

 

- The law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848.

 

- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.

 

- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 -

“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach”

 

- Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

- In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.

 

- On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

- In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65.

 

- The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

- For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

- It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out this completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

- In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.

 

- Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

- On 22nd May 2006, the house of commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house discribed such default charges as "exorbitant" and "excessive".

 

- The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

- As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that they make profits from these fees. The Defendant seemingly contends that their charges are not subject to an assessment of fairness. This implies they can set these fees at whatever level they like without regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant’s own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, and unduly and substantially enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

 

I, the Claimant, beleive all facts stated to be true.

 

Signed, dated.

 

Documents attached in support of this statement

• Letter from Martin Orton, Lloyds TSB Customer Recovery Centre - or any letter or material in which the charges are described as 'defaults', 'penalties', 'covers costs', etc.

  
  

• Account Contract - if applicable. See para 8
  
• Office of Fair Trading report, April 2006
  
• House of commons early day motion, May 2006
  
• Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day
  
• BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission
  
• Australian Default charges report, Nicole Rich - http://www.clcv.net.au/downloads/Media%20Release%20-%20Unfair%20Fees%20Report.pdf
  
• Transcript of telephone communication with Lloyds TSB 'personal banking' department.
  
• DPA Subject Access Request for evidence of manual intervention
  
• Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.
  
• All pre-litigation correspondance between the parties

This next statement is suitable for claims in which the defence contends that the charges are proportionate to or a pre-estimate of their actual loss.

 

Again, think carefully about what applies to your claim and amend to suit if necessary.

 

Text in black - template

Text in red - guide notes

Text in blue - examples, replace with your own.

 

'GENUINE PRE-ESTIMATE' STATEMENT -

 

STATEMENT OF EVIDENCE

 

 

- The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges imposed because of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. Add an example of a charge incurred due to going over by a small amount, for example -On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence.I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

- The law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848.

 

- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.

 

- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 -

“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach” and;

“The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

 

- Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

- It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. A penalty however, is unenforceable.

 

- In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.

 

- On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

- In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65.

 

- The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

- For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

- It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

- In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff actually told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.

 

- Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

- The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

- The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR’s.

 

- On 22nd May 2006, the house of commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house discribed such default charges as "exorbitant" and "excessive".

 

- Further, under the UTCCR:

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

 

- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

- The cost of Lloyds charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

- As set out above, the Defendant’s charges cannot be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

 

I, the Claimant, believe all facts stated to be true.

 

Signed, dated.

 

Documents attached in support of this statement

• Office of Fair Trading report, April 2006
  
• House of commons early day motion, May 2006
  
• Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day
  
• BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission
  
• Australian Default charges report, Nicole Rich - http://www.clcv.net.au/downloads/Med...20Report .pdf
  
• Transcript of telephone communication with Lloyds TSB 'personal banking' department.
  
• Data Protection Act Subject Access Request for evidence of manual intervention
  
• Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.
  
• All pre-litigation correspondance between the parties

Remember that all settled cases and statutes are to be submitted for direction d)

[tinkerbell2]

Gary,

 

...

Remember that all settled cases and statutes are to be submitted for direction d)

 

The settled cases for direction (d) - do you mean the historical cases from the Court Bundle - or do you also mean a list of recently settled cases - ie a list of particular settled cases detailed on cag for example?

[easterfields]

Hi, I submitted the draft order for directions as recommended and have now recieved the Notice of Hearing, giving the date for the court case as 26 March 2007.

There is no mention of whether the order for directions was accepted or not and no mention of whether I should submit any further documentation.

 

Can you advise whether I should print out and send off my side of the order a, b, c, and d, or do I not need to bother ?

 

any help apprecieted

 

thanks

Roy Wareham

[ballin]

I would check with the court, mention section G of the N149 and whether it was accepted as you received no confirmation?

March isn't far away though if it wasn't accepted!

[GaryH]

You need to submit what the court has asked for - if they haven't agreed the directions then I presume you've got the standard small claims ones - "each party shall within 14 days both file and serve........ etc."

 

This will tell you what you need - http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

 

Also, can I suggest that any questions of this nature are asked on this thread - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html.

[Finalreminder]

OK, Im confused.

 

When I went to the county court to file my claim they requested 3 copies of the bank statements that supported my claim.

 

This draft is basically saying (in my case) that I'm going to provide, within 14 days the evidence I've already submitted to the court and bank.

The courts sent a copy of the statements with the highlighted charges to the bank and back to myself.

 

So there's no point sending the draft really is there??:-|

[Finalreminder]

Could really do with some help on this one guys:(

[GaryH]

Have a read of this thread, particularly post #3. http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires.html