Comments please on Lloyds defence and the fact that they had already made an offer.

[rory32]

This is a PM I received the other day:

 

Hi

was hoping you could also send me in lay mans terms the Govan Law article on sists and how I could use this as an agrument at court.

I live in Dumfries and have been issued "Incidental Application to sist on 27/9/07 at Dumfries .I am claiming against Lloyds tsb small claims court for £700, I received a letter from Lloyds TSB beginning on July to say £750 would be payed into my account within 10days, and I waited and waited, only problem is now while waiting for this payment I sent them there orignal letter back with a where is my money and forgot to take a copy. So I want to go to court and agrue my case nothing to loose so if you can offer any help I would much appreciate it,

Thanks

Maureen

[rory32]

To which I replied:

 

Hi Maureen,

 

This is the abstract from 2 cases last month heard in Inverness by Sheriff Pyle who denied the sists. You might want to quote these cases when arguing your case and understand the reasons why he didn't grant the sist.

http://www.govanlc.com/thomson_v_hbos.htm

 

The main points of your objection to the sist are:

 

1. The onus is on the bank to persuade the sheriff that the case should be sisted. The case that supports this view is Connell v Grierson 1865 in which Lord Deas stated "Prima facie it is a matter of right to either party to insist upon the cause going on, and the onus lies on him who wishes to stop".

 

NOTE: Prima facie just means on the face of it.

 

2. It is improper to sist a case pending the outcome of similar one until the pleadings in both actions have been fully adjusted. The ruling that supports this was established in the case of Clydesdale Bank v D & H Cohen 1943. This ruling has been upheld by the Inner House of the Court of Session and in N G Napier Ltd v Corbett 1963 and Maley v Scottish Ministers 2004.

 

3. The OFT's case is at a very early stage. Written pleadings are unlikely to be fully adjusted for at least a year if not more given the complexity of the case.

 

4. The rule of Cohen applies and it is improper to sist a small claim in Scotland pending the English OFT case.

 

5. The OFT's case is primarily concerned with the issue of fairness in terms and conditions. Penalty charges are unlawful at Scots common law and therefore the OFT is not a test case in relation to this claim. The OFT case can not determine the outcome of a case based on Scots common law.

 

6. The OFT case is of minor relevance as it is not looking at the Scots common law position.

 

7. The outcome of this claim can not be determined by the decision of the English High Court. While the decision is potentially persuasive, it is not legally binding in Scotland. The OFT have chosen not to litigate in Scotland.

 

8. The OFT's case is a public law action whereas an individuals claim (as this is), at common law, is a private law action based on individual facts and circumstances. Accordingly, this case should be allowed to proceed.

 

9. It is now within judicial knowledge that all banks have settled nearly all claims prior to an evidential hearing. Allowing this claim to progress will not take up significant court time.

 

10. If appealed, the OFT test case may take 3 to 5 years to be determined. Given the very modest sum of monies involved in this case, it is inequitable and inappropriate to deny the litigant access to the judgement of the court.

 

11. My case, while important to me, is of very little importance to the bank. Nor can the bank fairly argue that the principles of the case are important to them given the number of cases which have been settled shortly before the trial after a defence has been submitted.

 

(Use 12 & 13 only if this applies)

12. I have suffered hardship as a result of the bank's charges. I will continue to suffer hardship if a sist is granted. While the bank has almost unlimited funds, I do not. The return of these charges would make a significant difference to my life.

 

13. If a sist is granted the bank will still be allowed to make future charges causing me continued financial hardship.

 

Any questions or anything you are having trouble understanding just ask.

 

Take a copy of your arguement with you as you will be asked to state your reasons for the sheriff not granting a sist.

 

Also have the bank tried to negotiate with you about the charges before asking for a sist to be granted? You could use this as an arguement as well as if the bank have no intention of negotiating.

 

Let us know how you get on.

 

Rory

[rory32]

She has now sent me this PM:

 

NOTE: Quoad ultra just means so far as the rest is concerned.

 

Thanks for your help, I have now found original letter from Lloyds TSB dated 4th July 2007, saying "Im sorry you are still unhappy about your accouct charges etc, generally we dont agree to adjust any of these charges but on this occasion we are prepared to repay you £750 in full and final settlement of your complaint, we will credit to your account within 10 working days. Please treat this letter as our final response." Phoned a few times to ask where the money was but as I did not receive it I went to the courts/do you think this letter will be sufficient for the sheriff not to grant a sist. Also I received today the Banks defence, which I have copied.

What do you think!!

 

 

SHERIFF COURT OF DUMFRIES

SUPLEMENTARY NOTES OF

DEFENCE

 

 

Court Ref– SA 288/07

 

 

in causa

 

 

Mrs Maureen Crosbie residing at 7

Urquhart Crescent, Calside. Dumfries DG1 4XF

 

 

PURSUER

 

 

LlOYDS TSB (SCOTLAND) PLC

having there registered Office at

Henry Duncan House 120 George

Street Edinburgh EH2 4LH

 

 

DEFENDERS

 

1. Admitted. The Pursuer has a Classic account .......... with the Defenders which is in the sole name of Mrs Maureen Crosbie. Quoad ultra denied.
   
2. Admitted. The Defender deducted various charges for the period 18th January 2006 to 1st July 2007 inclusive. Quoad ultra denied.
   
3. Denied. Explained and averred the charges forming the subject matter of this action are imposed as a term under the contract between the Defenders and the Pursuer for the provision of Bank services by the Defenders. By opening an account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with details of the Bank charges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include but are limited to, providing:

• cheques

bank statements

the facility to make payments by direct debit and standing order

debit cards

ATMs (cash machines)

 

 

By maintaining the account in credit, or within any limit agreed with the Bank, the customer may avoid most if not all charges. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank's own funds. If the Bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with terms of the contract.

 

 

On page 1 of the leaflet, the Bank explains that

 

 

 

 

“there are normally no charges for everyday banking at Lloyds TSB when your account is in credit. When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement or where you use special services, such as copy statements, we will make a charge. This guide explains how these charges work, and when they will apply. If you want to use a service that we havnt listed. We'll tell you cost of that service before you give us the go-ahead”.

 

 

The charges represent a fair and reasonable reimbursement to the Defenders for the service provided to the Pursuer.

 

 

1. The case of Castenda and Others v Clydbank Engineering and Shipbuilding Co Ltd (1904) 12 SLT 498 is referred to for its terms beyond which no admission is made. Quoad ultra denied.
   
2. The unfair terms and Consumer Contracts Regulations 1999 and the Office of Fair Trading Unfair Contract Terms Bulletin 21 (July to September 2002) issued in May 2003 are referred to there terms beyond which no admission is made. Quoad ultra denied. Explained and averred the Defenders are entitled to impose the charges for services rendered to the Pursuer under the terms of the contract between the Pursuer and the Defenders. The contractual term specifying the price paid for the services provided by the Defenders to the Pursuer is not subject to an assessment of fairness in terms of Regulation 6 of the Terms and Consumer Contract Regulations 1999. The charges represent a fair and reasonable reimbursement to the Defenders of the services provided to the Pursuer.
   
3. Denied
   
4. Denied

[rory32]

So any ideas on her position regarding the fact that Lloyds had already agreed to pay.

[steven4064]

Surely the words "we are prepared to repay you £750 in full and final settlement of your complaint, we will credit to your account within 10 working days." constitute a contract, which they have breached. I would have thought the court would be pretty miffed with Lloyds if they were made aware of this.

[rory32]

That was my thoughts Steven - I was looking for confirmation from someone else though.

 

Also I asked Maureen if the letter stipulated anything about her accepting the offer and it doesn't. It states "we are prepared to repay £750 in full and final settlement of your complaint we will credit your account within 10 working days, we will cancel any charges that we may have told you about but have not yet been taken from your account, we will not refund any overdraft interest, standard account or service charges".

[rory32]

I was also thinking that she should possibly argue that Lloyds are wasting the courts time (and should be charged with such) by not honouring this contract.

[zootscoot]

Surely the words "we are prepared to repay you £750 in full and final settlement of your complaint, we will credit to your account within 10 working days." constitute a contract,

 

That constitutes an offer which only becomes a contract if accepted.

 

As part of the waiver the banks promised to honour all offers already in place. It is worth writing back and reminding Lloyds of this and threatening a complaint to FSA. It worth making a complaint in any event as the FSA are re - considering the waiver at the end of the month. If the banks are found to be in breach of the terms of the waiver agreement it can only work in our favour.

[rory32]

This might be a daft question, but doesn't the way that Lloyds have worded it mean that they would have to demonstrate that the offer was declined. As they have stated what they are going to do e.g. repay £750 in 10 working days to the account.

[zootscoot]

A long standing rule of English contract law that you can not have silence as acceptance Felthouse v Bindly. I'm not sure of the position in Scotland tho.

[rory32]

There seem to be very few instance where silence would be considered as acceptance. This (after doing a bit of looking) wouldn't be one of them. However, verbal acceptance (provided it was proven) would seem to constitute a contract under Scots Law. Unfortunately this could probably only be proven with the assistance of Lloyds.

 

The main difference between Scots and English contract law seems to be consideration e.g. in English Law this is normally required to make the contract binding, in Scots Law it is not a requirement only considered desirable.