Glenn Vs Abbey

[Glenn UK]

Right small development, after a lot of thought I have decided to withdraw my application to have the Defence struck out.

 

I have the Allocation Hearing, I have made all of the points in my AQ and requested the Defence is struck out so we shall see what happens.

 

 

Glenn

[newbody]

just subscribing as just starting my claim agaist abbey shambles

[elizabeth1]

Hiya Newbody - good luck with your claim!!

 

Start a new thread so you can keep us updated with your progress - that way if you get stuck we can help you out with any questions you might have etc..

 

You'll find lots of good information in here and letters you need are in the template library (just edit to suit your accounts etc..)

 

Reading the FAQ's and threads here is the best way of learning etc.. and you'll have an idea of what you are doing etc..

[newbody]

thank you elizabeth for th e welcome have alredy started my own thread and just reading and subscribing now whilist awaiting information from shabby

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/57977-newbody-abbey.html#post485027

[Glenn UK]

Another update.

 

Well after posting that i had withdrawn my claim to get Abbeys defence struck out i was surprised no one asked why, in truth I wouldn't have said anyway, i wanted it to be a surprise for Abbey. I only posted in the hope that Abbey would read this thread anyway!!

 

A bit of a reminder, I have asked three times for Abbeys defence to be struck out, twice informally and once formally.

 

My view was then and is now that if I had been successful,Abbey would have appealed and submitted a revised defence. In effect it would have been a good exercise but long term wouldn't have resulted in the Claim being settled.

 

When I submitted the formal application it was with the knowledge that if I lost I could have had costs awarded against me, but in discussion with a friend who has special knowledge, I decided that was a small risk and one i would bear.

 

Then shortly afterwards two orders came into the public domain, one issued by a court in Lincoln and another from Swindon area.

 

If i had had these I would have submitted them with my AQ rather than making the strike out application.

 

Now I was in a position of not really being able to withdraw the application to strike out their defence without risking being landed with costs by the defendant.

 

Guess what?

 

They kindly wrote to me last week and threatened me with costs if i didn't withdraw the application.

 

Result, I against spoke to my friend and in decided to withdraw the application to strike out their defence.

 

Now the icing on the cake, at the same time i made an application to the courts asking them to consider the two orders one ordering them to provide a list of claims and the other asking for disclosure.

 

I received the note form the courts today informing me they would consider the orders at the hearing on the 7th Feb.

 

So the upshot is that i have now put a lot of information before the courts informally which they have the choice to consider, plus i have put two draft orders in front of them which they can implement if they wish and the risk of costs is now the same as for my original claim.

 

I'm reasonably happy about this and am preparing for the AQ hearing next Wednesday.

 

Glenn

 

Edit I forgot to say i faxed abbey and told them id withdran the application Tuesday and wrote to them too, I bet they were releived until they get/got the letter form the court wiht the two ordersw attached.

[bish]

Hi Glenn,

 

I requested in writting for the judge to strike out the abbey defence on the grounds of non complience of the orders directed by the judge. I have now received a notice of restored hearing. I think the courts would love to strike out a defence of the banks, but are worried about a counter offensive by the banks to further muddy the waters regarding this problem. Catch 22 for the courts, without a test case they seem to be stuck in a rut. It needs a step in the dark or a judge that is willing to take a risk, in my opinion, to solve this problem.

 

Regards bish.

[Glenn UK]

In a sense their hands are tied, the courts i mean, they know that the banks have endless resources and that having their defence struck out is a minor inconvenience and the courts will have to deal with their submissions to get the defence reinstated.

 

This is why the recent orders are so good, because they rely on the banks refusal to provide the information to strike out their defence or for them to settle the claims.

 

It doesn't resolve the legal issues, but it does unclog the courts to a degree.

 

JMHO

 

Glenn

[bish]

True

[Mad Nick]

Glenn,

Then shortly afterwards two orders came into the public domain, one issued by a court in Lincoln and another from Swindon area

.

I've got the Lincoln one, but would you do me a favour and point me to the Swindon one - it didn't turn up using Search. Just coming up to AQ so they'll do very nicely. Thanks very much. Mad Nick.

[Glenn UK]

nick

 

Theyre both around, one asks the defendant for a list of all claims the defendant has settled and those it has defended

 

The second is the one where the claimant has to prepare their court bundle and submit it then the defendant has to submit their evidence.

 

Ill see if i can find the threads for you.

 

GLenn

[elizabeth1]

nick

 

Theyre both around, one asks the defendant for a list of all claims the defendant has settled and those it has defended

 

The second is the one where the claimant has to prepare their court bundle and submit it then the defendant has to submit their evidence.

 

Ill see if i can find the threads for you.

 

GLenn

 

Glenn I hope you can link those here - as they may come in useful for me too next month - we have AQ hearing on 13th March - so may need that for later once we hear what the judge wants??

[Glenn UK]

heres a link to the order for disclosure

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html#post482191

 

And heres the other one for the strike out

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/20752-kazzaw-lloyds-asset-card.html#post467620

 

HTH

 

Glenn

[Mad Nick]

Glenn, Thanks for the links. Regards, Mad Nick

[Glenn UK]

Heres a link to Nelson Vs Rye

 

Judgement - Nelson v. Rye

 

Bear in ind this depends, probably, on proving that the defendant owes us a fiduciary duty in law. i havent got to that bit yet if others have it woulf be good to post links/info for that.

 

Glenn

[joneshousehold]

Sorry if this is already on the thread but I have seen a definition of fiduciary in Wikipedia

 

Fiduciary - Wikipedia, the free encyclopedia

 

A fiduciary has a stronger relationship than a normal commercial relationship between two parties. The only worry is that the examples of a fiduciary relationship does not include banks and their customers. The nearest ones are stockbroker to client and lawyer to client.

[Glenn UK]

Hi Jones

 

Ive seen that one what we really need though is recent case law supporting our side.

 

Glenn

[paulwlton]

Hi Jones

 

Ive seen that one what we really need though is recent case law supporting our side.

 

Glenn

 

Can't find no case law, this is interesting.

 

It is suggested that the banker and customer relationship cannot be fully reflected in the legal context of a statute-based Code. A reason for this goes back to the fundamental principal at the heart of the banker-customer relationship – Trust. Following on from this the relationship therefore can be described as a fiduciary relationship and I submit that following on from that itself, legislative intervention would undermine the meaning of fiduciary in such a relationship. A fiduciary is a person who is entrusted to act in the best interests of another. Fiduciary duties in a banking context are the duty of a banker to act in the best interest of a customer without gaining any material benefit except with the knowledge and prior consent of the customer. Such persons are generally held to conduct their operations in the highest standards of good faith or best practice. The law, I suggest, will be a rather crude instrument for regulating all aspects of financial activities especially one regarding setting of banking standards of practice.

 

Paul

[sarahpp]

Banks and stockbrokers are now both regulated by the FSA suggesting that the same rules regarding Conflicts of Interest apply. The bank holds funds on a customer's behalf and is not permitted to utilise those funds or make profits from those funds without the customer's permission. The fact that they have indeed made profits by making charges which in no way reflect their costs despite averrals to the contrary implies a dereliction of that duty of care.

 

In my opinion.....

[Glenn UK]

Sarah

 

I spent a hwile reading through the FSA handbook but coundlt see that current accoutns are regulated, if they are i agree with you.

 

I have some quotes similar the one posted by Paul

 

Ill post them a bit later.

 

Glenn

[Guest bong]

glenn, thought this might be of interest, then again might not!

 

www.trustees.org.uk/review-index/Fiduciary-what-are-the-dangers-and-can-you-avoid-them.php

[Guest bong]

ok that doesn't take you to the right page - I'll try again Welcome to the TACT web site

 

thats better!

[Glenn UK]

Bong

 

Thanks for that, it does help because it gives some useful discussion on the issue at hand.

 

I would also point others to look at their banks publicity and see what impression a normal person would gain.

 

Seems to me that giving the impression of being a fiduciary is almost as good as being one in law.

 

JMHO

 

Glenn

[sarahpp]

Agreed Glenn. I found some interesting stuff on Google Scholar about the definition of fiduciary

 

Mwenda, 'Banks and the Use of Chinese Walls in Managing Conflict of Duties' [2000] 2 Web JCLI

 

Ok - so,most of the article is about the establishment of Chinese Walls but, there are several (attributed) definitions which may be useful:

 

Management of fiduciary duties relating to non-public and material information as the raison d'être behind Chinese Walls

 

 

 

At common law, the question `who is a fiduciary?' provides an interesting starting point to an inquiry on the legal problems surrounding Chinese walls. The nature and forms in which fiduciary duties present themselves cannot be reduced to one succinct statement.(4) As Hannigan observes:

"It is now generally agreed that the word `fiduciary' does not of itself identify a single class of relationships, nor can fiduciary duties be reduced to a single set of rules and principles which apply to all such relationships.

(5)

Before considering liability for breach of fiduciary duty, therefore, it is necessary first to determine whether ... would be regarded as fiduciaries and to whom they are fiduciaries; secondly, it is necessary to consider the particular duty or duties relevant to imposing liability..." (Hannigan 1994, p 132)

In line with the view that the word `fiduciary' does not of itself identify a single class of relationships, we look at what judges have said in England, the United States of America and Australia. In the English case of Re Coomber [1911] 1 Ch 723, 728 Fletcher L.J. observed:

"...Fiduciary relations are of many different types; they extend from the relation of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the courts have again and again, in cases where there has been a fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have been perfectly valid...."

Similarly, in the American case of Securities Exchange Commission v. Chenery Corporation 318 U.S. 80, 85 Frankfurter J. stated:

"...to say that a man is a fiduciary only begins the analysis, it gives direction to further enquiry. To whom is he a fiduciary...?"

The courts in Australia have often applied the `undertaking test' when determining whether or not a fiduciary relationship exist:

"[A fiduciary] is, simply, someone who undertakes to act for on behalf of another in some particular matter or matters. That undertaking may be of a general character. It may be specific and limited. It is immaterial whether the undertaking is or is not in the form of a contract. It is immaterial that the undertaking is gratuitous. And the undertaking may be officiously assumed without request." (Moffat 1994, p. 54)

[Guest bong]

I would also point others to look at their banks publicity and see what impression a normal person would gain.

 

Seems to me that giving the impression of being a fiduciary is almost as good as being one in law.

 

Glenn, what do you think about some stuff I have found in my HSBC terms and conditions - I think it sounds like they are taking on the role of advisor -

 

Clauses 13.12 & 13.13

"If you have more than one of the above accounts listed we will transfer your money to the account which pays the highest rate of interest."

 

Clause 9.3.2

"Your liability

You will be responsible for all losses, if you have acted without reasonable care, which includes not complying with section 1, clause 4, so as to allow an unauthorised transaction, or that you have acted fraudulently. Your liability may also be limited by law."

[chezt]

Glenn I just wanted to post to say

 

C O N G R A T U L A T I O N S ! ! !

ON THE BIRTH OF YOUR LITTLE BOY

Thought it better to post in one of your threads rather than run the risk of hijacking someone elses!!

 

love to all Xx