In Court with the Clydesdale Bank

[claimitall]

I wonder if maybe anyone has a definative answer to this one. I claimed CB and went through first letter then LBA and got usual fob off.

 

I then put in small claim for 490 plus int of 120 and 39 costs. I then got a letter and cheque from Neil McKirdy for 550. The letter was dated 1 week before the claim went in but i received it 1 week after the claim. Suspicious huh.

 

letter stated encashment of cheque was full and final settlement. I wrote back saying i would accept the cheque as part payment and that as a small claim had been raised then i would expect the balance to be paid.

I did cash the cheque following my letter.

 

I received a further letter saying that as i had cashed the cheque then i had accepted their terms and that I had effectively barred any further action in court.

 

I decided to test this at the hearing as they had decided to defend. They brought in local solicitor and their defence was usual charges are fair and representative of cost etc and also stated that I was barred from proceeding as i had accepted and cashed cheque.

 

The sheriff did appear to agree with this view and strongly suggested i take legal advice before appearing at the continuation in a couple of weeks.

 

What is the view as i have seen numerous different points relating to this in the threads over the last few months. I am quite prepared to test both the unfair charges defence and the full and final settlement defence statements in court if you people out there think it is worth getting involved.

[Bigmac versus]

Have they accepted they received your letter of partial settlement?

[claimitall]

Have they accepted they received your letter of partial settlement?

 

George

 

They sent me a further letter acknowledging my partial settlement and "reminding" me that i had settled fully whilst also stating that as i had started a court claim their legal department was now dealing with the matter.

[Bigmac versus]

George

 

acknowledging my partial settlement and "reminding" me that i had settled fully

 

cant be both as i see it the bank knew you were accepting the cheque as per letter partial settlement, they themselves allowed the cheque to clear knowing this, in my eyes if they were not to accept this they could have stopped the cheque but they didnt because they had you exactly where they wanted you having the said document full and final settlement signed by you and sent back allbeit with an attachment saying partial, they dont seem to have informed the court that this was sent also, did yoy inform the court showing the said paperwork you sent to the bank?

[claimitall]

I agree with you - i didnt sign anything just cashed the cheque. The court hearing is continued for another 2 weeks as the Sheriff appeared to side with the banks argument and suggested i seek legal advice before i go further to "proof" .

[Bigmac versus]

Im pretty sure that the cashing of the cheque is what they see as full and final settlement regardless of that you need some advise and i hope maybe someone could go further on this and advise you of your next move.

[caro]

I'm trying to get some advice for you. How much short is your payment?

[Bigmac versus]

Hi Caro, this is just typical of CB, hope someone can advise on this, im sure claimitall wont be the first or the last to find themselves in this position with CB, i feel they have aimed to get people claiming into this full and final situation through total ignorance of letters sent saying accepted as partial settlement, i remember reading somewhere about this and saying they cant tell you what is full and final.

[Guest Zooman]

I going to be drummed off the site for this, TBH if you had sent that chq to a claimant against you would accept that he had not settled?

 

I would have to ask myself is going to court again worth it for £100 knowing the Judge is against to your claim?

[Bookworm]

I know what you're saying, Zoo... OTOH, if it was the other way round, you owe the bank £200 and you send them £100 and say "If you cash payment, you're accepting F&F", and they proceed in court for the remainder, do we really believe a judge would accept that your £100 was acceptable as F&F? I have my doubts, personally.

[Bigmac versus]

Very interesting debate and worth some research i think.

[gizmo111]

This has been discussed here with BF's input http://www.consumeractiongroup.co.uk/forum/yorkshire-bank-clydesdale-bank/33125-huge-claim-need-help-2.html#post354179

also see post 56 onwards.

Opinion is that by cashing cheques offered in full and final settlement you accept terms. This also happened to a Citi claimant a few weeks ago and the judge refused any further claim saying that the law was very clear on this.

[Guest Zooman]

I know what you're saying, Zoo... OTOH, if it was the other way round, you owe the bank £200 and you send them £100 and say "If you cash payment, you're accepting F&F", and they proceed in court for the remainder, do we really believe a judge would accept that your £100 was acceptable as F&F? I have my doubts, personally.

I advised that to some in the debt forum about 5 months ago and he got took to court and the judge sided with him, I will ask if he will post.

[Bigmac versus]

Can he pay this back saying will not accept if is seen as full and final?

[Bigmac versus]

claiming he was confused as to what encashment actually meant as he had sent back the partial offer?

[caro]

Given that the sheriff already seems to have taken the banks side on this I think claimitall is going to need very strong arguments to get him to change his mind.

[Bigmac versus]

I thought judges were suppossed to be sympathetic to the layman on the understanding of law at smallclaims. Banks are very cunning and they could have stopped the cheque clearing after receiving the partial offer letter but didnt as they knew they could use this to end the claim.

[caro]

At least the judge has given the 2 weeks to get advice etc as I presume he could have just struck the case out.

[Bigmac versus]

Well id say the judge would at least need to hear if the claimant has a defence to the banks request for striking out, this i believe is why there are another 2 weeks on this.

[Robertxc]

I think if you try to go back to court the sheriff will kick it out. I know it is sometimes advised to cash cheques in 'partial settlement', but my own view has always been that if you do that to a cheque which has been offered in full and final settlement, you're asking for trouble. If the sheriff told you to seek legal advice, he was telling you as clearly as he felt he could that to continue is a waste of time.

[Bigmac versus]

I see what your saying Robertxc and sadly i think you are probably right, however why should the claimant not be allowed to show a copy of the letter which would have been received by the bank (partial setlement) before the encashment of the cheque was complete therfore allowing them not to clear the said cheque, to not even respond to this i personally see it as devious and a defence to their striking out claim.

[caro]

Thing is though the cheque was cashed without getting the banks agreement to the change in conditions. Just writing and telling them you are changing the conditions probably isn't enough without their acceptance.

 

It's a bitter pill to swallow, but I don't think it's worth pursuing and I'm not sure what the situation would be regarding costs if it was pursued against the judges advice. He may have been giving you a chance to withdraw the case gracefully, rather than giving the bank the opportunity to succeed in getting the case thrown out in court.

 

I know its a fair amount to lose, but if you had been claiming thousands it could have been much worse. We need to learn from this.

[Bigmac versus]

Im just ranting on here, lol but bloody hell who are they to lay down conditions, their charges are unlawfull, their concealment of costs is hidden, and after being found with their hands in our pockets for many a year they then claim the law protects them from refunding over 6 years, can quite get my head round that. Why are their conditions accepted in court and ours not (partial settlement) they are manipulative, wasting of the courts time and so bloody obstructive in their so called attempts to resolve these issues, and still charge these unlawfull penalties, is it any wonder when no action seems pending to be tackling this blatant disregard of the OFT's findings that they continue to act in this way.

 

Time for the OFT to do their job and take action against these bankers who continue to operate in this way and to stop the total wastage of the courts time.

[Guest Zooman]

simple as he took the money and cashed it and cashing that money had terms tied to it, if you want to avoid the same happening to yourself the simple thing to do is return the chq and say you do not accept the offer.

 

Learn from this.

[Robertxc]

The bank knows full well that people, especially at this time of year, will be very reluctant to return a cheque. That's why they do it this way.