I have been away with work so haven’t been able to update on my progress in a while – have had a bit of progress and need some advice.
I received the following letter from Cobbetts on the 12th October.
“Our client considers that your challenge to its charges would fail in Court. Our client believes that its charges are fair, reasonable and transparent. It considers that the amounts debited to your account have been applied strictly in accordance with your agreement with it and its published tariff, which it is satisfied complies with all applicable laws and regulations. Our client is also committed to ensuring the transparency of the information that it gives to its customers about the operation of its products. As such, our client does not believe that your claim has any prospect of succeeding.
However, as a gesture of goodwill and strictly on the basis that our client rejects any liability to you, it is willing to offer you a goodwill payment of £800.
Acceptance by you of this goodwill payment will be in full and final settlement of your claim against our client and strictly on the basis that:-
1 you agree not to disclose to any third party the fact of, or any details relating to, this payment:
2 you write to the court withdrawing your claim.
Whilst this letter is written without prejudice save as to costs, in the event that you decline this offer, we will draw this letter to the Court’s attention on the basis that we hold the fim view that this offer is entirely reasonable in the circumstances. This offer will remain open for 7 days until Friday, 20 October 2006.”
I replied with:
“Further to your letter of 12th October 2006, I am writing to inform you that I will NOT be accepting your clients offer of £800 in full and final settlement of the above claim but I will accept the offer as an interim payment and I will be pursuing the rest through the courts. If your client believes that their charges are fair, reasonable and transparent as stated in your letter then it will not be a problem for them to disclose to the courts how the charges are calculated.
I am also unwilling to agree to the specific terms and conditions you have added to this, namely:
1. Not to disclose to any third party the fact of, or any details relating to, this payment;
2. To withdraw my claim;
3. That this payment of £800 is a full and final settlement of the claim.
Furthermore I am requesting a list of the charges that your client is willing to refund by way of the £800 payment so that I can compare it with the schedule of charges that I have previously sent to you.
The legal advice, which I have sought, has confirmed I will be entitled to the entirety of my claim of £1489.76 to date.
(£1,088.00 + £49.18 interest on penalties + £232.58 8% interest allowed by the courts + £120 court costs).
I look forward to receiving a cheque for the interim payment of £800, along with the breakdown from your client of which charges they relate to.”
So far I have received no response from Cobbetts. Is there some further action I should take? Am I supposed to make the court aware of their offer and my acceptance as an interim payment?
On the 1st Novmber, I received a confirmation that my case has been allocated to the small claims court and a hearing date has been set for the 31st Jan 2007, and should take no longer than 1 hour.
The Court order reads as follows:
“Upon reading the documents filed and of the Court’s own motion
It is ordered that:
1. This claim is allocated to the Small Claims Track.
2. The Claimant shall by [28 days] file and serve:
(a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and alleged reason (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;
© A statement of his evidence, if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties.
If the Claimant fails to comply with this order, the claim will be struck out without further order.
3. The Defendant shall by [56 days] 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;
© 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 to be treated as a breach of the contract between the parties), all facts and matters intended to be relied upon as showing that such is 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.
If the Defendant fails to comply with this order, the Defence will be struck out without further order.
4. Decided cases and other legal materials should not be filed, but brought to the hearing with additional copies for the Court and the opposing party.
5. List for hearing next available date after 10 weeks, time estimate 1 hour, reserved to District Judge Atkinson.
This Order has been made by the court of its own initiative, without hearing the parties or giving them an opportunity to make representations. Any party affected by the order may apply to have it set aside, varied or stayed. Such an application must be made not more than 7 days after the date on which the order was served on the party making the application.”
In terms of the actions that I need to take, can someone advise:
1 Does File and Serve mean that I send a copy to the court and a copy to Cobbetts?
2 My schedule of charges and a copy of my bank statements should cover the courts first two requirements, but I am a little confused as to what I should use for the third: “A statement of evidence, if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties.”
Should this be acceptable, then it looks like it is up to our friends at Cobbetts to supply all information intended to be relied upon to showing that RBS’s charges are 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.