For an opinion listen to Paul Lewis's comments on Money Box Live on Radio 4.

Basically he said it ain't over yet.

RE: The Lloyds Statement

Para 2.

i) The Supreme Court decided that an unarranged O/D charge is A KEY FINANCIAL PART of a current account.

I don't see that under key financial requirements in my application/agreement!

ii) This means that where the CHARGES ARE EXPLAINED IN CLEAR LANGUAGE, under consumer finance legislation, the level of an unarranged O/D charge can't be challenged to see if its fair or not.

I believe they are not and never have been explained IN CLEAR LANGUAGE.

V

Hi Kel,

Interesting comments, thanks.

V

Thanks for your thoughts cB & emandcole.

I wonder, are there any other 'big guns' out there that might like to comment on this situation before I go any further.

V

Hi emandcole and good morning,

Thanks for your reply,

Re para 1. I didn't send an SAR but I do have the statement history going back to March 03 and yes it does contain both £20 & £12 default charges.

re para 3. I did ask to see the alleged DN and sent them a CPR 18 and a CPR 31.14 and requested proof of post of a DN. I, as others have been, was told they don't keep copies of DNs and don't need to, nor do they have a proof of posting. They provided to me and in their Court Bundle a template of a DN. On the 'probability' point they provided a print out showing what they say is proof of a DN, the print out does not record whether it was sent or not, it was claimed that because it was showen on that print out that it would have automatically been sent. It is claimed that because I had a telephone conversation with someone in Mumbai within 48 hours of the print out date that I had in fact received that DN. The Judge read and re-read the synopsis of this conversation and concluded that I had had the DN. The memo data records that 'CH upset abt the ltr which he recive' and went on to say 'Advsd tht he's still been receivin threatnin letters' sic.

Re para 4. See the last sentence above.

Re para 5. I tried the 'Four Corners' argument, it didn't work on this occasion.

Re para 6. See para 5.

Re para 7. The Order was for 28 days, how much time do I have? There is a copy of the application/agreement early on in the thread which was deemed enforceable by the team. Bear in mind though that the application was made in 2003 when I believe that the prescribed terms should be on the signature page above the signature.

I hope that answers some of your queries.

By the way SCM follow this thread.

V

Hi emandcole,

Sorry for the tardy reply. Thanks for your and everybody else's commiserations.

With regard to the DN, they say they sent one, but they have no copy or proof of posting. The Judge accepted their explanation on the grounds of a 'written' synopsis of a telephone conversation I had some 48 hours later with someone in Mumbai !!!

A template of a DN was produced in Court so as such we can't prove or dis-prove it's accuracy BUT the statements do show late payment charges

etc.

Regarding Default Charges they say on the copy of card conditions '(see also 9 for default charges), 9 being in the booklet called 'Credit Cards' is says sic '9 DEFAULT CHARGES. We charge your account for reminders and other expenses resulting from you breaking these Conditions. Ask if you want to know what our standard charges are'.

As to your last sentence what do I do now?

V

Only to say that I had received no DN, but not that it included penalties.

V

Further to my notes earlier, near the end of the trial I brought up a point regarding the DN saying that it could not be accurate in as much as that it included penalty charges, this point was dis-allowed by the Court as I had not mentioned it in my skellies. Is there anything I can do about this?

V

Google SI 2004 No 1482. You should see opsi.gov. Try that

V

Hi Fingers,

I lost yesterday on exactly that point, and I will say that the Judge examined, in great detail, the enhanced copy of the application form and the produced old identical brochure with the app form with the conditions on the back!

V

It is also, maybe, that they are somewhat more diligent in the way they do things, or on the other hand it is possible that WE are getting too complacent.

I hope that doesn't sound bumptious, but as I said earlier, we have to be more professional. I will be if there is another time.

V

My case, in retrospect, was not as strong as I thought. On reflection, and having gone to Court I lost, among other things, because there was writing on the top of the application form which was deemed to be the acceptance of the application therefore making it an agreement.

My statement of case was too sketchy and did not include enough case law, case law or authorities.

Hurstanger was not accepted because the 'four corners' rule was advocated by the other side, and accepted by the Judge, to have four corners on a piece of paper, not as I thought, the four corners of the signed side of that piece of paper.

As I said above, in (your) Statement of Case include ALL law, ALL the case law you find and ALL the authorities you can find. I produced a cut down version of MacLeod Consumer Law and Practice this was poo pooed by their Council because, although this had reference to Goode, and that although he is a Proffessor of Law and having published on that subject he was not accepted as an authority, I had not included that reference. If you do not put something in to the SoC it won't be heard (accepted) by the Court. I of course took more than suggested above, but I didn't present it properly.

Be aware that their Council is good, but I don't know that she is that good, and against a LiP she looks brilliant. In Court their barrister will only vaguely address what you have said, and then go on and press his/her points regardless of what you have said.

The Judge will listen to them as the sound more autoritive.

They can be beaten but you must try to be professional, and as has been said elsewhere on this forum check, check and the check again, and then check once more.

Do not rush. Take your time and DO NOT LEAVE IT (anything) UNTIL THE LAST MINUTE.

Rather rambling and vague I'm affraid but hopefully of some help.

I'm not much use at Law but I learnt from the Court experiance. Let me know if you think I can help.

Viano

Thanks Kel, but I ain't dead yet

V

This cant be so:confused: Viano, I am so sorry. Will wait to hear from you in full and perhaps this can be salvaged. I dont see how the "balance of probability" can apply to the non issue of a Default Notice.

 

What track was this ?

Fast

Let me explain this probability thing.

Because you might have an unexecuted application form, lets say that there is no bank signature, it's a bad copy and there are no prescribed terms on the front, but there is something in the area roughly where their signature should be, and there is produced in Court an example of an original, identical, application form that shows the terms on the back, it seems to be deemed that that mark could be their acceptance signature and therefore the prescribed terms are probably on the back. Then it is probable that that form has become an agreement. the probability factor might be 51/49 but that sways it against you. Or if you say you have never had a DN but they come up with a computer printout that shows that a DN has been issued then it is deemed probable that the computer system has done its job and sent that DN and it assumed that the computer didn't throw a wobbler that day.

I hope that that is clear, I've read it through a few times and it seems to make sence.

V

Many thanks Lilly,

After dinner I will try and paint a picture of the personalities to let those who follow know that in the main it isn't as scary as it might be.

Viano

I hadn't received the DN but there was a printout in their bundle that showed that on probability it had been posted and thus it was served!.

Note probability because the balance of probability was the main theme throughout the trial.

Probability is the core of a County Court trial.

V

Hey thanks UD13, but onwards and upwards!

But keep your eye on the thread as I will try and give an insight into the proceedings and let you all know what I've learnt

V

Hi Team,

I lost!

I say I lost because on the balance of probabilities I was not quite well enough prepared.

The day started late because their barrister was late.

We went into the Court room, the Judge a pleasant man, gave me good leeway to me as Litigant in Person, and then went on to to explain that this trial would be judged on the balance of probabilities.

The Claimants started the proceedings and within a sentence or two, after me being compliment on my Witness Statement, said that I got my information from the CAG!

I was out of my depth, my opponent a very sharp barrister, nuts and sledgehammer sprang to mind, brought up points of law that I thought of.

My defence was difficult to read copy of CCA no prescribed terms on the signature page, and I had not received a Default Notice.

The Judge listened to my story sympathetically I thought, and then to their witness's, we broke for lunch.

It gets a bit hazy after that but point of law were listened to, questioned and considered.

The Judge the broke off the hearing to review all the points made and on the balance of probabilities I lost.

I say I lost, I think I did, I don't think they won.

I was not well enough prepared. The trial I felt went to and fro', but as I say I didn't bring out enough big guns, why, because I didn't put them in my skellies so couldn't use them.

Any way, I think I must have made enough of an impression because the cost were reduced some.

I will later, when my mind clears a bit go into it in more depth.

By the way there was four of them-yes-four, barrister, two witness's and a para legal, no wonder I thought sledgehammer -nut.

Ah well onwards and upwards.

I will post again soon, must give the oppo time to get back to Brighton and turn their computers on to follow this, and maybe post their own comments.

V

Thanks cB, I've Got those.

V

Thanks Steven, will do when I receive it.

V

Thanks Steven & Robin,

I have already senr my skellies & WS. After reading more can I add to these, and do I send these to the Claimants sols.

Thanks

Viano

Thanks Robin, that's very helpful.

Viano

Hi Kel,

I don't know, but that Act so far as I can see is about hearsay evidence. I would think it's a wriggle. See Civil Evidence Act 1995 (c38) 4 (1) at Office of Public Sector Information

Hope that helps

Viano

I read that as that it's only the Claimant that has to file a bundle. I wonder if pt knows better.

Para 2 in my post quotes the relevant part of the Court Order that's why I asked the question. As you can see it doesn't mention a Defendant bundle.

V