I am going to court on thur (6th July), help!

[manolo]

oh and zooman i hope you won today! x

[Guest Mumofthreeboys]

Very well done manolo, you sound like you really stood up for yourself and knew what you were talking about.

[alexcraw]

Guan yersel Manolo - keep at it. Some good evidence is noted in the Govan LC step 3 letter. have a read on their site govanlc.com and see what you can get. I got some email help off of Mike Dailly off that site aswell, very helpful.

 

Good Luck

[Seminole]

Well done. Please let us know what the clerk says when you contact them.

 

It might be an idea to have a word with the Govan Law Centre to see if these are new tactics by Abbey.

[Ewan]

Does this mean we should begin to send copies of the terms and conditions to the courts as well as the breakdowns of charges?

[manolo]

i am definatly going to go see the in court advisor and email the gov website, to get as much info as poss. Feeling quite happy with myself as i can pull a lot of other things into proving that these charges are penalty charges, such as the amount of profit they make on charges etc

[manolo]

ewan i am not sure about the terms and conditions, i am hoping a mod can clear this up a bit later on.

[nearlyoldwoman]

way to go! been thinking about you all day, i also didn't realise about this 'terms and conditions' thing, hopefully someone can give us more info on that. i hope you are really proud of yourself, you did really well, good luck and go have a drink right now:)

[give_me_it_back]

Well done, Manolo!

 

I am sure one of the MODs will be back to you today, but my opinion (and it is just my opinion) is that surely the case is not for YOU to prove these are penalty charges, but for Abbey to prove they are NOT?

 

Only they can prove how much the costs amount to...

 

This is a very interesting development, and I will be really keen to hear what the MODs think...

[Tink]

Give Me It Back, that's what I was thinking, surely the onus is on the Bank to prove the charges are reasonable and right not us to prove they are not?

 

Perhaps the initial DPA response will show no manual intervention and as such all charges were applied by an automated service, which could not possibly cost £39 for each letter .....??

 

T

[stacymason]

God I can't believe more people aren't interetsed in this thread its fantastic and you've done great Manolo!

[meagainstrbs]

Hey manolo,

 

Well done - you go girl! I'd be so scared but you have done so well in not pulling out so far - I'm not sure I would've had that confidence!

 

If I can help in ANY WAY - please let me know.

 

meagainstrbs

[give_me_it_back]

It does concern me that it was the JUDGE who put that onus on you, Manolo... Have you telephoned yet?

 

I think this has serious implications.

[Andy T]

well done manolo for keeping up the fight

[amber2508]

Well done manolo, you are a brave chick for sure, not sure i would have coped so well. Hope you get whats rightfully urs in the end.

[o0oliambeeo0o]

Hi Manolo, must congratulate you on your performance today, sounds like you told them as it is, I must say I am personally dissapointed as this is yet another stalling process these people are playing. But hey ho, justice will prevail. With regards to you submitting evidence to confirm charges were penalty charges,

 

 

5) Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair

1. Terms which have the object of effect of-

(e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:

OFT case 15 – Kids of Wilmslow Ltd.

Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.

OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.

A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

OFT case 4 – Dampcure-Woodcure/30Ltd.

Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.

Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTTC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the card/account holder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.

 

Sorry about the wording but ive just copied it from my "details of claim", now is the above not evidence which could be submitted, also could you not bring to the courts attention the fact that your bank have settled similar cases in the past.

 

Just to add:

The law relating to penalties has been established through case law. The cases date back to the nineteenth century and the courts have been consistent in the way that they have ruled on penalty clauses.

 

Wilson v. Love (1896)

 

A tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings a ton more than straw.

 

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915)

 

In the particular case, the judges held that the sum specified in the contract was reasonable and was classified as liquidated damages. However, in this case, Lord Dunedin laid down rules which are still applied today in these types of cases:

 

i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable".

 

ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty. Ford Motor Co. v. Armstrong (1915)

 

In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

 

Bridge v. Campbell Discount Co. Ltd. (1962)

 

In this case a customer bought a car under a hire purchase agreement. He paid the initial and first payments and then cancelled the agreement. The company tried to recover the sums specified in the contract for canceling the agreement, but the courts held that the sums payable were excessive and constituted a penalty clause. It was, therefore, unenforceable.

 

Murray v. Leisureplay (2004)

 

Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages.

 

There have been several other cases over the past century. Any good book on contract law or business law will contain references to "penalty clauses", "penalties" or "liquidated damages" cases and a discussion of the law.

 

 

Hope this helps!!!!

Regards o0oLiamBeeo0o

[lisamellor]

well done you!! you must have been really nervous, but you did it all by yourself... post as soon as you have phoned to let us know what the script is!!

 

lisaxx

[give_me_it_back]

Could a MOD please respond to this with comments please?

[skyrocket123]

well done Manolo!

Also to add to others comments, if it is the bank that sets the terms and conditions by which we are supposed to abide, why do YOU need to supply THEM with a copy of that contract? Surely they have a copy!

I no longer keep a copy of the contracts I made with the banks I am suing, they were made 10 years ago! Where are we supposed to get copies from? The bank?

Sky x

[give_me_it_back]

I completely agree, Skyrocket. It all seems a bit peculiar to me... I can't see why the Judge has even entertained this.

[Seminole]

Could a MOD please respond to this with comments please?

 

I know nothing about Scottish law so I am not well placed to comment on how things operate north of the border. However, it does seem strange that they would ask the claimant (or pursuer in Scottish ) to provide a copy of them. This is clearly a point for manolo to clear when she speaks to the clerk if we haven't come up with an answer beforehand.

 

This might be a variant of the Nat West fob off where their standard defence is to ask the claimant to specify which terms in the contract are unfair. At worst this can only be a delaying tactic because, after all, it's the bank that is using a breach of the terms and conditions to levy charges. The question that I would ask the bank is precisely which of the terms and conditions a bounced payment breaches. The fact is that any charge leviied to remedy a breach that is disproportionate to the cost of remedying the breach is a penalty and unlawful.

 

Someone raised the question of who has to prove what. The small claims track (and again I don't know how this works in Scotland) works on the basis of the balance of probabilities. The claimant doesn't have to prove beyond any reasonable doubt but rather that it is more likely than not that the charges are unlawful. As I said this may work differently in Scotland.

[Robertxc]

And they said that i had failed to submitt a copy of the terms and conditions to either the court or themselves(didnt realise i had to do this, but will send them in tomorrow if someone can confirm this) and because of this they would like the trial to continue where evidence can be submitted.

Manolo, I would not waste a millisecond worrying about this. It is laughable to think that they're going to stand up in court and complain that they haven't received a copy of their own terms and conditions. If I were you I would go into your nearest branch and pick up two copies of their terms and conditions. Send one of them in to the court (don't forget to include the case number), marked as "additional information". Put a short explanation, along the lines of "These are the defenders terms & conditions" in your covering letter. Once you've done that, send the other one to the bank, along with the following letter:

 

Case No. XXXXXXXX

 

Dear sirs,

 

I write in relation to the above matter. Please find enclosed additional information which I have today lodged with the court.

 

Yours faithfully

Manolo.

 

Job done.

 

I take it their defence rests solely on the terms and conditions argument? If so, then you're probably experiencing a new tactic, which is to take it to the second hearing, on the basis that the first can be pretty terrifying. If that is what's happening, you can expect a condescending letter from them in the next couple of weeks offering partial settlement.

 

A word of warning. Lawyers generaly file things with the court at the very last minute - i.e. five minutes before the court closes on the day of the deadline. They do this for the very good reason that it's difficult to unsubmit something once it's in the system, and if the circumstances happen to change once its been submitted it causes all sorts of problems. It also has the effect of seriously ratcheting up the pressure on anyone not used to it. So be prepared. If they make an offer it will probably be as close to the date of the next hearing as they think they can get away with, in the hope that in the meantime you'll get in touch with them, either to drop it or offer settlement of your own.

[Robertxc]

One other thing. Don't worry too much about submitting to any demands from Abbey. This is your case and now that it's in the system the sheriff has a duty to protect your interests. You're NOT expected to know either the law or the court's procedures, so the sheriff will go out of her way to be as flexible as necessary to ensure that the case is heard on its merits. This is an important protection for you. If there's a bit of paper you haven't filed, or the wording on something is wrong, the sheriff should give you the opportunity to correct the situation, as well as give you guidance on how to do it.

[manolo]

oh my goodness, thank you everyone for replying, so much info on here i am going to have to sit down and read it all properly. Not really taking it in just now. I am going to phone the in court advisor tomorrow and book an appointment to go see her. I too thought it was strange that the defendents wanted a list of the terms and conditions. i too now see it strange that the judge told me the next case will be for me to prove that these charges are penalty charges(that was the only thing she said) i am the one accusing them, surley they should be trying to prove me wrong. I think i will have loads more questions but cant think of them now. Oh all my evidence, does that all have to be submitted to the courts and Abbey lawyers?? I am no where near ready to submit it yet as i want to make sure i have every single thing possible so they have no way of arguing against it!! Also Robertxc do you mind if i pm you with question as i think of them, will need a few things cleared up after i talk to the incourt advisor, , bit unsure if they are trying to say that i have breached the terms and conditions or that i have not and thats why they are charging me! Going to sleep now as my brain hurts. post back tomorrow. Once again thanks for all the support and information x

[give_me_it_back]

Thanks MODs. I'm sure Manolo feels a lot better now. I know I do! Robert is absolutely right in saying that it is laughable that they would claim they haven't seen a copy of their own ts and cs! However, I would play their little game anyway.

 

Manolo - you mentioned 'gathering evidence'. What do you intend to submit?