egg defending court proceedings "won"

[oggy1]

hi,

have sent all the letters lba , to egg and they refused to repay any part of the charges.

issued court papers and just had notification they are going to defend the case.

do they go through with it or not??

[steven4064]

just had notification they are going to defend the case.

do they go through with it or not??

They always say they are going to defend, sometimes actually send a defence but never actually defend - not for charges claims anyway. They have far too much to lose by turning up in court, however, they do like to string you along in the hope you will give up and go away. Just keep following the tried and tested procedure and you will win.

[oggy1]

just had an offer from eversheds.

 

if i sign it says that all info must remain confidential , no further action relating to this claim and last ,

you will sign and return to us within 14 days and each party bearing their own costs.

 

should i just send a letter back saying i will accept but refuse to accept the terms.

[steven4064]

should i just send a letter back saying i will accept but refuse to accept the terms.

Yes, or just cross out the terms you don't like. THese terms are not enforceable anyway.

[oggy1]

hi steven , replied with the terms crossed out and today recieved the defence from Eversheds.

[steven4064]

hi steven , replied with the terms crossed out and today recieved the defence from Eversheds.

Sounds like the left hand doesn't know what the right hand is doing. THere's a surprise

[papadak]

I got the same from EGG ..... i.e.

 

Received a separate full & final without pred offer, including court fee ... then received a defence with todays post. What are Evereds up to?

 

Anyway signed it and expect to see the refund on the acct within 14 days.

 

So nearly there!

[oggy1]

hi papadak,

i dont think we can ever be suprised at what these companies or solicitors do,

just goes to show how incompetant they really are ??

 

anyway just waiting for payment like you.

[oggy1]

defence paperwork arrived today with questonairre to fill in.

will study it tomorrow and then seek some advice????????

[papadak]

defence paperwork arrived today with questonairre to fill in.

will study it tomorrow and then seek some advice????????

 

Please do ... interested to know what they ask ...

[steven4064]

Hi oggy

 

What questionairre? From the defendant or the court?

[oggy1]

hi steven , the allocation questionnaire is from oxford county court.

it has to be back by the 17th jan 2008

[steven4064]

What does the defence say? Anything remotely sensible?

[oggy1]

i will scan and post the details up .

[oggy1]

i spoke to eversheds yesterday afternoon to see if egg were going to settle as this is a small amount, they are waiting for instructions from egg??????

[oggy1]

hi steven cant seem to be able to post the details up, can i email them to you and see what you think .

i have to send the aq back to the court asap

thanks

[Loukeam]

Hi

 

I've had exactly the same thing from Egg, offer letter from Eversheds(with totally wrong amount and really bad maths on!) and then the next day a defence.

 

My court paperwork said I didn't need to fill out an allocation questionnaire though which I don't understand??

 

Have sent back offer signed, but with a note saying I'll only accept the correct amount...am now waiting to see what lands on my mat first- a court date or a cheque!!?

 

I'm hoping the latter!

 

Good Luck!

[oggy1]

1. it is admitted that the claimant entered into an agreement with egg, under the account no************.

2.it is admitted that charges were added to the claimants egg account during the course of the agreement.each charge was made pursuant to clause 7.1 of the defendants standard terms and conditions(the terms and conditions )as a result of insufficient funds being available from the claimants designated current account to cover the amount of the direct debit payment due on the egg card and when she exceeded his credit limit . Clause 7.1 clearly states:

"if you break the terms of this agreement we may charge you the folllowing , where relevant , to cover the additional cost to us :

a) £20.00 each month you go over the credit limit

b) £20.00 if you do not keep up the payments on the account.

 

the credit limit is the amount of money the claimant was entitled to borrow from the defendant.

 

3.it is denied that the claimant exceeding his credit limit and the return of payments from the claimants account due to insufficient funds being available are breaches of contract. However , in so far as they are deemed to be breaches of contract the defendant will contend:

 

(a) that each and every such breach entitled the defendant to levy a charge under the terms of the agreement,

 

(b)that the said charges are proportionate and in all the circumstancesare fair and reasonable in comparison to the loss , damage , cost or expense incurred by the defendant; and

© that the full particulars of the said charges were supplied to the claimant at the time of inception.

 

4.Following the Office of Fair Trading investigation into default charges , the office of Fair Trading indicated that it would not proceed further against the defendant upon the basis that they reduced the charges from £20.00 to £16.00. Without any admission in relation to the previous level of charges , the defendant has reduced the charges accoringly.

5.It is Deniedthe charges are " an unfair extravagant penalty " as alleged.

The defendant recognises that customers , such as the claimant , sometimes fail to make or are late in paying the required repayments and the defendant therefore puts systems and proceeses in place to deal with the same. Such systems and processes include the use of computers , staff and other nescessary overheads . The charges set out in clause 7 of the terms and conditions ("clause 7") are calculated by taking into account the total costs incurred by the defendant in maintaining those systems and processes and the estimated number of customers ( such as the claimant ) who will fail to make or are late in paying the required payments . the defendant avers therefore that the amount of the charges applied under clause 7 represents a genuine pre - estimate of the loss and expense caused to defendant in respect of such customers failing to make or being late in paying the required repayments.

[oggy1]

6. Furthe the defendant takes steps to try to ensure that the customers such as the claimant do not incur the charges set out in clause 7. For example , the conditions of the agreement required the claimant to have a direct debit in place to make his monthly repayments. This was done to ensure (as far as possible ) that the claimant would not fail to make his repayments or make such repayments late and thus avoid charges under clause 7.

7.It is further denied that the charges are an unfair term under the the Unfair contract terma act 1977 and the unfair terms in Consumer Contracts Regulations 1999. The defendant avers that the term imposing the default charges is reasonable in the circumstances set out above.

8.In the pemises , the claimant is put to strict proof that his loss as a result of the charges is £122.59.

 

9.In the event that the court finds that the default charges levied on the claimant do constitute an unfair penalty and are thus unenforceable , the defendant asks the court to asses the actual cost to the defendant of dealing with the claimants breach of contract in failing to make his repayments.

10.It is denied that the claimant is entitled to the interest claimed or at all.

[oggy1]

hi loukeam , i have got to send the aq back by thursday, dont know why they started this , just to get more money i think.

good luck with your claim.

 

has anybody any ideas on the above defence and what i should put in the aq.

[steven4064]

THe defence is pretty standard. If their costs are less than what they charge you then this

if you break the terms of this agreement we may charge you the folllowing , where relevant , to cover the additional cost to us

is an admition that the charges are contract penalties. Send in the AQ with draft orders - I did a letter on another thread that you could use as part G (I have modified it here):

Part G to Allocation Questionnaire.

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of several claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1A).

 

It is submitted that the defendant’s litigation strategy is abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by LincolnCounty court (attachment 1B) in at least 10 cases similar to my own involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1C)

 

 

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

The claim is for the return of contractual penalty charges levied on my account and it is the defendant’s responsibility to demonstrate that the charges claimed are not contractual penalties. As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact The information requested in the draft order will provide the required facts.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in inter alia Leicester, Derby, Chesterfield, and Mansfield County Courts.

- the attachments are in posts #3 and #4 on this thread. Just write 'attached' in part G and head the 'letter' "Part G to the Allocation Questionnaire" and add all the other attacments to it. Make sure the claim unumber is on all the bits of paper.

[oggy1]

thanks a lot steven , dont know what we would do without your help.

i am processing this now

on the aq , e: experts , we just answer no to that i presume, and do you the fee for the aq??

[steven4064]

A new fee structure came in in October. The fee for the AQ is £0 for claims less than £1500, £35 for claims between £1500 and £5000 and £2100 for larger claims. It gets added to court costs that you can reclaim.

[oggy1]

hi everybody , today recieved a reply from eversheds, they state that they are going to accept the crossed out terms in the tomlin order and settle the account in full.

it really annoys me , just went to court to hand in the aq after all the work and preparation then they settle, feel like asking the judge for costs or i suppose be gratefull they are willing to settle.

[steven4064]

CONGRATULATIONS!

 

it really annoys me , just went to court to hand in the aq after all the work and preparation then they settle, feel like asking the judge for costs or i suppose be gratefull they are willing to settle.

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