RMT vs Lloyds TSB

[chrishoyle]

Hi all,

 

i thought i would start my thread now as i am coming to the stage where, in the near future, i may need some advice.

 

a bit of background first.....

 

I was a partner in a music retail business for a number of years. Originally the buisiness ran as a partnership banking with the HSBC. After a bit of dispute we moved to Lloyds TSB. for a period of a year the business was held accounts with both banks until we went through a bit of restructuring and moved totally to Lloyds TSB in July 2003.

 

We eventually held 3 accounts with LTSB. one was for general retail through the shop, a second was set up for the teaching side of the business and the third was the original partnership account which we kept open just for special transactions. Our cash flow was very poor during the running of the business and, despite out best efforts we accumulated a fait amount of penalty charges. the figures are roughly £500 in the parnership account, £1500 in the teaching account and £4000 in the main reatail account.these figures are returned cheque fees,unauthorised borrowing fees and unauthorised overdraft interest combined for each account.

 

The business closed in August 2005 due to my business partner emigrating, i didn't want to take on the business myself as i was only meant to be a silent partner in the business although i did do a lot of work with the accounts. I have had my eye on the bank charges issue since the beggining of this year and resolved to reclaim them as soon as the accountants had finalised the accounts which they finally have done in September.

 

In November i sent my preliminary letter asking for repayment of charges. no reply received.

 

2 weeks later i sent my letter before action. i received the standard template letter after this which went on about a lot of things that were not even relevent to my case. I replied to this anyway repeating my request and giving them my original timetable to respond.

 

End of November, no communication back so i issued 3 county court claims, one for each account. I did not want to go over the £5000 limit for combining all the fees. For the partnership claim i have included only fees for the period of trading of the limited company figuring that i can go through the same process again claiming on behalf of the partnership for the previous period.

 

Note form courts saying that all three claims had been issued and a refund because i got the court fees wrong! didn't know they had changed i refered to the book on small claims procedure for that information!

 

letter of acknowlegement recieved from Martinau Johnson saying that they will defend the claim on Lloyds TSB Behalf.

 

letter from Lloyds TSB (Standard Template letter) sent far too late in response to my last communication with them!

 

Defence for all three claims arrived On Monday 17th December. They appear to be using the 'fees are a service and only an idiot would claim otherwise' defence.

 

So thats where i am at the moment. I am considering sending the Draft Directions suggestion letter to the court but i can't seem to find it anywhere can anyone give me a link to it?

 

Things i'm concerned about:

1) Will they apply for a stay even though i've read that business cases shouldn't be affected?

 

2) Don't have my original T&C's from opening the account for a court bundle. I don't think there are any in the document library for 2002, an i use the earlier one instead?

 

3) I am really annoyed that i shredded all my communications from our old bank manager last year as i am sure that it would have contained references to bank charges. is it ok to use the 'orton' letter even though it was never addressed to me?

 

4) Going to court, Lloyds defending and me being unable to string a sentence together effectively.

 

Sorry for the long start, guess i should have started this ages ago!

I'll update this thread as things progress.

 

Chris:-)

[elsinore]

For the partnership claim i have included only fees for the period of trading of the limited company figuring that i can go through the same process again claiming on behalf of the partnership for the previous period.

 

 

Hi Chris.

 

I'll try to answer/comment on the points you've raised but, firstly, can you please clarify the status of the business.

 

You have mentioned 'partnership' and 'limited company' in the same sentence. I'm sure you know that they are two different entities, so which was yours? Were you and your colleague partners, or were you co-directors of a limited liability company.

 

Els:)

[chrishoyle]

Elsinore,

 

Sorry for not being clear,

 

The current status of the business is 'ceased trading'. For the purposes of this claim it is a limited company of which i am a director.

 

However, originally we traded as a partnership and just used one account - the "partnership account" until July 2003. After a financial restructure of the business we became a limited company and still used our "partnership account" on occasion as well as an additional 2 accounts, one for the retail side of the business and one for the teaching side of the business. the limited company ceased trading August 2005.

 

I have issued a seperate claim for each of the 3 accounts.

 

In the case of the retail account and the teaching account the claims are straight forward as the accounts only existed as long as long as the limited company traded.

 

For the "partnership account" i have only claimed for charges between July 2003 and August 2005 as this is when the limited company utilised the "partnership" account. The partnership ceased trading end Of June 2003 and hence has no claim on any charges after that date.

 

Assuming i am successful for these claims i will go back and claim the partnership part of the charges seperatley as a partner in a partnership.

 

I've just read that back and seems it seems to make sense to me, however i am familiar with the situation and i realise it is a little confusing.

 

let me know if you need further clarification

 

thanks

 

Chris

[elsinore]

Thanks Chris, I think I’ve got the gist of it!

 

As the limited company account incurred unlawful charges, it is for the limited company to reclaim them. Have you issued that claim in the company name?

 

The court may stay the claims of its own volition and/or LTSB may apply for stays. Should this happen you will be able to appeal against/oppose the stays and you should be successful.

 

You could try asking LTSB for a copy of the relevant T&Cs, as I am doing in my claim. They will probably respond with a template fob-off letter. If they fail to provide you with a copy, this can be used against them, should your claim reach court, by implying that they have been at least, uncooperative and at worst, obstructive.

 

Any document which has a relevance should be used. That doesn’t mean that the judge will take any notice of it, but I would sooner put everything in and let the judge decide, rather than leave something out, assuming the judge won’t allow it.

 

Please don’t worry about going to court. If you prepare as well as you appear to have done so far and you make notes of what you want to say in court, you will be fine. Particular points can be addressed nearer the time (if it happens at all!).

 

Els

[chrishoyle]

Els,

 

Yes, all three claims were issued in the limited company's name with me signing the claim as director.

 

Thanks for the advice, the bit about the T&C's makes a lot of sense, i shall do that today, as you say i can always include the request and any correspondance back in my bundle as well as the earlier T&Cs that is in the document library here and use it as a likely alternative, as long as i don't claim that they are the actual T&C's i received i should be ok? like you say the judge can always decide if it's not relevant.

 

I'll post back with how i get on.

 

Chris:-)

[chrishoyle]

**Update**

 

I've received the allocation questionnaires for my claims and filled them in using the guidance on the site, straight forward enough.

 

I have also appended the suggested draft directions suggested on this site along with a suggestion that all 3 of my claims be heard at the same time as they all relate to the same matter. This will hopefully save both my & the court's time.

 

I took the forms & extra pages down to the county court today(Sunday) and popped them through the letter box as they had to be filed by Tuesday 22nd January anyway. I've also copied all the questionnaires & extra pages and will be sending them by post to Martinau Johnson tomorrow.

 

I wrote the letter to LTSB requesting T&C's from when our accounts were opened before christmas and as yet, had no reply. Time for a follow up letter i think.

 

Thats all for now.

 

Chris

[GuidoT]

Just bear in mind that if you are seeking to consolidate the 3 claims you will be over the £5K in total and may well be allocated to the fast track.

 

If you do not ask, MJ may well request that they are consolidated anyway.

 

Personally, I do not think the fast track is anything to fear but there is additional risk attached to it that I think you are aware of.

[chrishoyle]

I suppose it could happen.

 

I filled in the individual AQs as though they should be allocated to the small claims track. in the section G for each claim i wrote the following (Claim numbers changed where appropriate):

 

If the court is in agreement, it is respectfully suggested that special directions may be given as per the attached draft order.

 

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.

 

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend 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 in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, I believe the outstanding issues to be of fact. Accordingly, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

 

I would also respectfully suggest that our other claims against Lloyds TSB (7NG11011 & 7NG11012) be allocated the same time & date to avoid wasting the courts time as all three claims pertain to the same arguments.

 

This is mainly just the standard letter on the site with my additional comment at the end. The idea was to suggest that although there are 3 seperate claims, they all relate to the same legal arguments and it would be a waste of time to go to 3 seperate hearings for what would ultimatley be the same decision.

 

Mistake?? Maybe, but you learn from doing (then not doing it again if it turns out bad!)

 

Regards

 

Chris :-|

[elsinore]

Mistake??

 

No, quite cute I think! A judge might well be persuaded that it is quite a reasonable request.

 

Els

[chrishoyle]

*update*

 

had the allocation questionnaire that martinau johnson have filed with the courts (didn't know that they do one as well! just proves how sketchy my knowledge is about all this!)

 

Mostly standard stuff but a few of things stand out for me.

 

1) In section A - Settlement M&J want a stay of one month to attempt to settle the claim by informal discussion etc.

 

2) In section D - They intend to call "bank manager" as a witness for "account operation" (is this likely to be our old manager?). For dates not available they have put "not known at present".

 

3) In section H - any other infomation they state "we have seen the claiments draft directions letter and do not consider it appropriate to respond to point 2 until the test case (OFT v Abbey & Others) has been decided, as these issues are currently being considered by the court in that case"

 

4) They have completed a N150 form instead of a N149.

 

For reference point 2 in my draft directions were for LTSB to provide:

 

"Whether such charge is accepted to be a penalty, and if not why not"

 

It seems to me that the entire thing is designed to delay a court date by

 

(1) Wanting a stay for time to settle informally,

(2) Not giving dates when their witness "the bank manager" is available

(3) Trying to produce similarities between my claim and a consumer claim thus laying out the ground for a formal stay of proceedings?

 

anyone seen anything like this before?

 

Regards

 

Chris:-|

[elsinore]

Did MJ send you only one AQ? If so, does it refer to any one claim in particular, or all three?

 

Els

[chrishoyle]

MJ sent 3 identical AQ's. One for each claim.

 

Chris

[elsinore]

It's pretty standard stuff, Chris.

 

Your addendum to your own AQ now looks good, as if you anticipated their tactics.

 

You might well get a directions/allocation hearing at which you can further challenge the points raised in their AQ.

 

Els

[chrishoyle]

Thanks Els,

 

As always, your advice and comments are much appreciated.

 

I have been looking at the "wasted costs order" in the bank template section which I may use should I be succesfull. I understand the idea behind it including the spreadsheet for the work done whilst pursuing your claim etc, but should I suggest a price against it i.e use my professional hourly charge out rate as an engineer for each task, or is it for the court to decide a reasonable sum?

 

Chris

[elsinore]

There is a set rate, which I think is £9.25 per hour (I'm quite sure your worth more than that!). Somebody will correct me if I'm wrong.

 

Yes, you should calculate a sum that you wish to recover, rather than let the judge pluck a figure out of thin air, always assuming that he entertains your application anyway.

 

Els

[GuidoT]

Example of Costs Summary

[chrishoyle]

**Another Update**

 

Earlier in my posts i asked about how to get hold of the Terms & Conditions for my account at the time of opening. Els suggested writing which i did. I wrote to Lloyds just before Christmas and again around mid January asking for a copy of the T&Cs in force at the time of opening my account. No reply to either letter so after mulling it over I decided to write to MJ just to cover all bases. MJ have replied with a leaflet entitled "I like knowing where I stand On Charges" which appears to be an explanation leaflet rather than the actual T&Cs. However, MJ have quoted from this in there defence. Does anyone think this is sufficient for my evidence bundle or should i write back asking for the actual T&Cs?

 

btw if this is sufficient, does anyone want a copy of it for the document library on the forum?

 

Chris

[elsinore]

This is uncannily like my own claim Chris. I'll respond later today, when I will also be posting on my own thread.

 

Els

[elsinore]

MJ have replied with a leaflet entitled "I like knowing where I stand On Charges" which appears to be an explanation leaflet rather than the actual T&Cs. However, MJ have quoted from this in there defence. Does anyone think this is sufficient for my evidence bundle or should i write back asking for the actual T&Cs?

 

You've asked them and that's what they have sent you. Accept it as such and, as they are relying on it in their defence, you can rely on it in your submissions (if it suits you, that is).

 

Yes, if you would like to send me a copy of the leaflet I'll add it to our library, along with mine. [email protected]

 

I've updated my thread here

 

Els

[chrishoyle]

Hi Els,

 

Thanks for the reply.

 

I think i'll still ask if they have the full T&Cs, it costs nothing and i think they would be more appropriate in a court of law.

 

I enjoyed reading through your thread and i found this argument by photoman very interesting:

 

I've been having a think about lloyds fee for services argument that they have universally taken.

They claim that these charges are for a service, and even had the nerve on the defence they sent me, to claim that many other services and facilities regards my account were provided free gratis (and even listed them).

What the fools have neglected to account for is that unlike a personal account, business account holders actually pay monthly service charges AND also pay for each and every transaction on account too (regardless of whether cleared or not).

They even provided me with monthly inserts with my statements listing all the fee's and charges billed to the account each month. The charges in question were NOT included on these charges summaries. Which goes further to prove that these were as such, not even considered by the bank themselves as being regular normal considerations for services.

Hence, arisen out of contract, either as their recouping of costs incurred for dealing with such events, or as charges for events arising outside of the normal contractual considerations.

They themselves deny they are for recouperation of costs, and the statements and manner they are applied prove they are not a normal contractual consideration for service.

This only leaves the option of charges for breaches of contract.

Penalties in other words !!!

 

I'd love to put that one to the defence in court to see what they say! (although i'd still rather they just pay up).

 

i may consider using contract interest in my future claims if i can get my head around it as they will probably be smaller and the figures need a boost!

 

Chris

[elsinore]

 

I think i'll still ask if they have the full T&Cs, it costs nothing and i think they would be more appropriate in a court of law.

 

 

Yes, I agree with you, having the T&Cs is much better than not having them but getting LTSB to hand 'em over is another matter.

 

I can't make my mind up whether they are being very cute in denying us the evidence or whether they simply haven't got anything to send us. If they have got relevant T&Cs and want to use them in their defence, then they will have to divulge them prior to a hearing. Maybe they don't want to rely on them because the T&Cs are incriminating.

 

Photoman's argument is very seductive, isn't it? I'm certainly considering including it in my POC.

 

Els

[chrishoyle]

Getting bored now!

 

It's been well over a month since i filed my AQs and i've heard nothing from the court. I suspect that they are waiting for the high court judgement before setting a court date which is most unfair.

 

I also sent a letter to m&j requesting the original T&Cs instead of the guide to bank charges and have had no response. I think i'll send them a letter reminding them of their obligations, i would have at least expected a letter explaining why they could not send me a copy!

 

I'm in a bit of a quandry about how to approach the court asking why there has been no court date. The last thing i want to do is to **** the judge off that might be hearing my case. At the same time i want them to issue a hearing date so that i can get on with submitting my evidence bundle.

 

any advice anyone?

 

Chris

[chrishoyle]

*update*

 

Finally received something from the court:

 

Standard order for stay for settlement with consent of all the parties

 

All parties have agreed (eh? i didn't!)

DISTRICT JUDGE NICOLLE orders that this claim is stayed until 15 April 2008 to enable the parties to attempt settlement.

 

On or before 29 April 2008, one of the following steps must be taken:

either

the claiment must notify the court that the whole of the claim has been settled; (see note (i) below)

or

the claiment or defendant must write to the court requesting an extension of the stay period, explaining any steps being taken towards settlement and identifiying any mediator, expert, or other person helping with the process. The letter should confirm the agreement of all the other parties. (see note (ii) below)

or

all parties must file a completed allocation quationnaire at the court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire. The list must be agreed with the other parties and must indicate that it has been agreed.

 

Date 05 April 2008

 

Note(i): When settlement of the claim is achieved before the end of the period of stay, the following will be taken to include an application for the stay to be lifted:

(a) an application for a consent order to give effect to the settlement

(b) an application for the approval of a settlement where one ofr more of the parties is a person under a disability: and

© the filing of a notice of acceptance of monies paid into courtm or an application to accept monies paid into court out of time.

Note (ii): Extensions to the period of stay will generally be no more than 1 month.

 

I recieved the same for all three of my claims, not what i was expecting.

 

I intend to write to mj and state that i will settle no for nothing less than a full refund of charges + interest + costs to date of settlement, as far as i am concerned Lloyds have had ample time to settle this and i intend to take them for the full amount.

 

If they settle then fair enough (unlikley i know!), if they don't or i receive no reply i will send a letter to court requesting that the stay be lifted as nothing can be gained from negotiation and enclose any copies of correspondance to prove that i have at least tried.

 

Chris

[elsinore]

It suits you more than it suits LTSB.

 

They won't be able to apply for an extension to the stay, because you won't agree to it.

 

If they submit their AQs, they run the risk that the judge will consolidate the three claims into one and allocate to Fast Track. There, they will face standard disclosure, not something they will ever want to do.

 

So, they might decide to cough up, or at least make an offer.

 

You haven't long to wait to find out.

 

Els

[chrishoyle]

Ok, whilst i am generally pleased that the OFT won an overall victory for consumers over bank charges, the ruling seems to have delivered a curve ball to my claims.

 

I am particularly concerned that the judgement has indicated that Bank charges are not unenforcable penalties.

 

Reading around on this forum and others it appears that the general advice is to put a hold on business claims until the case management hearing on the 22nd May when the OFT may?! appeal against that particular part of the ruling.

 

My own view is that the judgement refered to only current T&Cs and not past ones which i am claiming on so i am in a bit of a muddle as to whether to proceed or play for more time.

 

My own case is on stay at the moment allowing time for the parties to negotiate out of court. I have written to MJ stating that i will only settle or the full amount plus interest plus costs and have had no reply to date. I need to write to the court before the 29th of this month stating what has been done and whether i want to extend the stay or not.

 

Any advice appreciated

 

Chris (first unhappy face of the thread!)