Hydra-vs-RBS

[Glenn UK]

there is a post in the new allocation questionnare proceudre (the one garyh started) with a section about the arguments against their 'services provision' defence.

 

I reckon it must be in the first thre or four pages if that helps.

 

re the odler charges, there is quite a bitlurking about on sec 32.1 b and c and ideally you shuld have something in your defence re their concelament and your mistake.

 

the doctrine of laches is a cute little number and you need to understand the concepts that its about the difficulty the passage of time may present them in proving their defence.

 

As an example, if between the charge being applied and you makng yuor claim they had destoryed relevant records then they wont be able to use them in their defence, or perhpas a key witness has died (these are general comments to try to illustrate the point).

 

If you want any information MCuth has some stuff, i do too, just pm us or do your own searches

 

HTH

 

glenn

 

HTH

 

glenn

[Glenn UK]

I think its a matter of choice, i guess i would probably particularise my claim in more detail where appropriate but by the same token there are also other parts of these defences which quite frankly are silly and need to be batted back at the defendant.

 

They have asked for a case management conference which will probably be granted, you POC are quite brief IMHO, and then this will delay your settlement.

 

So as i say its a matter of opinion if you answer their defence then IMHO it should be to further particularise your claim and to refute their various contentions.

 

When you say can they demand stuff in their defence/AQ. The answer is clearly no, but if they make the right noises then the court will be in the position of having to review your claim in line with the CPR and if they find you fall short of that standard they may strike out your claim or give you an order asking for clarification, again potential grief and time wasting.

 

JMHO

 

Glenn

[Glenn UK]

Hydra

 

if you want any help please feel free to drop me a pm, if i cant help or dont know ill say but if i can i will.

 

Does that makes sense?

 

Anyway hopefully you get my drift.

 

Glenn

[Glenn UK]

I am considering replying to SW letter with a counter offer which effectively stops the pre-6 year element of my schedule for the time being.

speaking personally i cant see the point, you can prove sec 32.1.b and c based on case law and your own actions. If you stop the six years now then you will have to start from scratch on that, it just seems a waste of effort.

I would be offering to withdraw on receipt of a refund covering charges from a date 6years prior to my SAR, up to the current statement, plus court charges.

IF you think they will automatically settle the claim then i would think again, as much as some poepl say it makes a difference i think thats open for debate. My barclaycard claim didnt have chargesolder than six years and was settled a week before my abbey claim that did. both were started at the same time.

I think I would like to fight the pre-6year thing separately.

 

My decision only makes about £1700 difference (before stat interest) to the claim.

 

My concern is that this might prejudice the case should they not accept my counter-offer.

 

It seems to me either you have a claim for the pre 6 charges or you dont, if you do then how can it prejudice your claim?

Also, should I be copying correspondance with Customer Relations to the Courts and/or Cobbetts?

 

I wold deal with Cobbets as they are representing the defendant.

 

Comments and advice please.

 

THe decision is yours of course but i think the best approach is to claim the lot if you can.

 

 

JMHO

 

Glenn

[Glenn UK]

1st off Hydra stop panicking, this is only one smalle chapter on your life, the worst that can happen is you dont get the interest you want.

 

2nd the defendant cannot instruct you to ammend your claim or indeed anyhting else. Only the court has that privelidge.

 

As much as my POC have been different to yours i think its unlikley the court will strike it out, if they do you appeal and resubmit. Personally i cant see it.

 

Dont forget you are not obliged to submit a response to their defence and unless they couterclaim i believe that most people dont.

 

The while purpose of cobbetts defence is to scare the lvign shit out of you, and its worked hasnt it? Well think on this, when you amend your claim you will be sneidng them a signal that you are prepared to back down. If you are and are happy with this then thats fine, no one will think any the worse of you.

 

however, dont do something now which in the weeks and months following you will regret.

 

I am not saying that you cannot change, only that if you do, make the changes for your sake and not theirs. I changed my claim and withdrew my application to strike thier defence out, i did it to rweduce the risk of costs being awarded against me should it all go tits up. So in other words it suited , and on top of that it allowed me to submit the two draft orders which became available on the site and expose me to no risk.

 

Anyway hope that helps, dont be scared be brave, fortune favours the brave.

 

Glenn

[Glenn UK]

DEPUTY DISTRICT JUDGE ***** has considered the statements of case and allocation questionaires filed, and allocated the claim to the fast track

 

The trial of this claim will take place during the period commencing 13 August 2007 and ending 31 August 2007 [OMG! Sent my Data request 1 September - A whole year to sort this out!] at a venue to be notified.

 

AND IT IS ORDERED THAT:

 

1 There be standard disclosure by List by 4pm on 23 March 2007 [HELP! WTH DOES THAT MEAN FOR ME??] Excellent news see my thread Glenn Vs Abbey for a disoclusre by list.

 

2 Statements of fact to be filed and served by 4pm on 20 April 2007 [.....!?!] its basically your witness tatements theres several about, i think karnevil has one listed in her signature. Dont worry i bet you wont have to worry about this.

 

3 The matter shall be listed for case management conference by telephone [??] on 25 May 2007 at 10:00am before District Judge ******** at The Courts of Justice, Edward Street, Truro TR1 2PB with a time estimate of 20 minutes.

The claimant's solicitors to arrange at the parties joint expense. [GAAARH! What? WHAT SOLICITOR? It's all over my forms ' LiP '?! And I have to bear half the cost of those Cobbett's fatcat solicitors? WTF??] Again i cant see this happening but write back to the court and respectfully ask since you are not represented could the defendants solicitros deal with this matter. I may be able to sort out some words, in my case when the court made the order it was agreed that the defendants would deal with these issues and at their cost too.

The claimant shall fax proposed directions, if not already submitted, by 9:00 am on the day of the hearing.

 

 

Please ensure that all future correspondance relating to the above hearing has the hearing date and time clearly endorsed on the first page. This will ensure your correspondance is dealt with and placed on the file prior to the hearing.

 

Our client considers that your challenge would fail...blah....charges fair and reasonable...blah...no admission of liability....rhubarb....

 

We enclose a cheque [made payable to me but marked 'into acc. xxxxxxxx'] for the sum of £2789.79 [HA! It's over 11K now numpties!] for the charges (together with interest and applicable court fees) outlined in your schedule from [NOTE DATE - I am claiming from 01/01/2000 in my schedule] 21 December 2000 onwards. As previously stated, under Limitation Act 1980, you cannot issue a claim more than 6 years after the date on which the cause of action accrued. You issued your claim on 21 December 2000 [oh did I? REALLY? Typo I guess], and you are therefore only legally entitled to claim between the periods 21 December 2000 21 December 2006 [sic]. Acceptance by you of this goodwill payment will be in full and final settlement of your claim against our client and strictly on the basis that:

 

1 non-disclosure boolsheet

2 write to court withdrawing the claim

 

 

Dont cash the cheque write back using the appropirate template from the library rejecting it.

 

I reckon your settlement will be forthcoming soon and if you havent prepared a scheduel of costgs then i would prepare one. as its listed in the fast track you will be entitled to ask for costs.

 

HTH

 

Glenn

[Glenn UK]

i would simply write back and thank them for their offer using one of the templates from the library and then add something along the lines of:

 

with regards to your contention that this claim is statue barred by virtue of Section 5 of the Limitations Act. it is my contention that the defendant has concealed, and continues to conceal the unlawfulness of these penalty charges form the claimant and hence, his right of action against them.

 

The claimant further contends that the charges were paid by a mistake and had the claimant known that the charges were unlawful would not have paid them.

 

As you will know these are both relevant matters and negate the effect of Section 5 of the Limitations Act, moving the cause of action from the implementation of the unlawful charges to the moment when the claimant discovered, or reasonably could have discovered, the concealment of those charges and their mistake.

 

The Claimant then has six years from that date to begin proceedings against the Defendant.

 

in passing i would also like to bring to your attention the Courts order of the xx/xx/xx and in particular, item 1. Standard Disclosure.

 

since this claim is listed for the fast track and the party losing will be liable for the other parties costs, would you like to confirm your intent to comply with this particular item before i undertake the time consuming and costly process of preparing my list?

 

it would seem reasonable for both parties to agree a way forward without increasing unnecessarily the others costs if there is not genuine attempt to comply.

 

I thank you for your kind offer and look forward to your response in the near future.

 

HTH

 

Glenn

[Glenn UK]

i would

[Glenn UK]

Thank you for your letter dated 06 March 2007. I respectfully decline your offer of £2789.79 as settlement of my claim and have enclosed the cheque you supplied in respect of that offer.

 

You assert that your client considers that my claim must fail and that you wish to settle in full.

 

My claim is for £8261.00 plus interest, pursuant to section 69 of the county courts act, of £2636.50 as of today’s date (increasing at the rate of £1.81 per day) as outlined in my Particulars of Claim, plus court costs of £350.00, and this claim will continue until payment is made in full. As the claim has been allocated to the Fast Track it is also my intention to submit costs, currently at £100 (I believe you are entitled to claim 9.25 per hour for time incurred or 6.75 per letter, i would prepare a scheduel based on letters to sent/recevied and the time spent preparing your n1 court bundle my claim for costs is 350 for court costs plus another 450 for time/letters over an 8 month period). for photocopying, printing, stationary and visit to court for document submission.)

 

Your offer is derisory, especially considering your client has already offered me £4860 on 06 December 06 (ref TMcL) and £5359.91 on 21 February 07 (ref.1056641195)I personnally wouldnt bother, it might make you feel better but im not sure either the defendant or the courts are interested in this at least in this tone, make the point if you wish but i wold simply say i am surprised at this offer bearing in mind youcleint has already......

 

With regards to your contention that portions of this claim are statute barred by virtue of Section 5 of the Limitations Act. It is my contention that the defendant has concealed, and by your own comments in your letter, continues to conceal the unlawfulness of these penalty charges from the claimant and hence, his right of action against them.

 

The claimant further contends that the charges were paid by a mistake and had the claimant known that the charges were unlawful would not have paid them.

 

As you will know these are both relevant matters and negate the effect of Section 5 of the Limitations Act, moving the cause of action from the implementation of the unlawful charges to the moment when the claimant discovered, or reasonably could have discovered, the concealment of those charges and their mistake.

 

The Claimant then has six years from that date to begin proceedings against the Defendant.

 

In passing I would also like to bring to your attention the Courts order of the 28 February 2007, and in particular item 1. Standard Disclosure.

 

Since this claim is listed for the fast track and the party losing will be liable for the other party’s costs, would you like to confirm your intent to comply with this particular item before I continue the time consuming and costly process of preparing my list?

 

It would seem reasonable for both parties to agree a way forward without increasing unnecessarily the other’s costs, particularly if there is not to be a genuine attempt to comply.

 

Should you wish to settle my claim in full, then please forward a cheque for the total amount claimed (£11247.50) without further conditions and I will inform the court that the claim is settled.

 

 

I trust this clarifies my position.

 

 

Yours faithfully

 

HTH

 

 

Glenn

[Glenn UK]

I would suggest you comply with the disclosure order, at the same time you will be replying to their request to strike out the defence and comment on the payment.

 

Ill be back later to go through your thread and make some suggestions.

 

Oh by the way, its up to you what you do, when i said you will be replying its not an order, honest.

 

Glenn

[Glenn UK]

Quick update for anyone following the saga....not as interesting as Michael Mcuth's, I know, I don't write letters like he does...

 

Position is now - Strike out application refused, Judge wants to hear LA issues.

 

RBoS now 5 weeks late with disclosure and 10 days late with statements of fact.

 

Phone call last week from Cobbetts saying client inclined to settle, could they have 14 days to go through schedule and make FF offer....Yippe

 

I was disinclined because, and I made this point, that after giving them another 14 days to 'go through schedule as my claim is over 10k' (to which I replied 'Youve had months to do that'),and with only 14 days left to case conference, they could just carry on the fight, leaving me less time to prepare.....but I agreed in order to get things moving, possibly (Inclined to settle.....sucker punched!)

 

Then letter arrives over the weekend confirming I had agreed to let them have 14 more days to submit Standard Disclosure and Statements of Fact - which I definitely did not agree to, quite pointedly did not.If you havent already done so you must respond to this letter correcting the mistake on their part and copy the court in on it too.

It is critical the courts dont think you have agreed to anyhting you havent.

Dont mark your letter WOP and dont mention anyhting about potential settlement, if you want to write about that send it as a seperate letter otherwise there is a danger that they may ask the court to deem your letter WOP due to discussion about a settlement.

 

Also paragraph about how they would arrange the telephone conference on 24th May 'If necessary' (huh? court order was for attendance...I just love this lot, so professional)

 

I Phoned them today, but LCB wasn't in the office so bit difficult to dispute a conversation with somebody who didnt hear it.... expect a call tomorrow re. errors.

 

So the games go on....

 

SOunds like our letter may have worked then, does their letter or did the phone call give any clues?

 

glenn

[Glenn UK]

Dear Sirs

 

In response to your letter dated 27 April 2007, you have made a signifcant error.

I do not now and have not previsouley consented to any extension of time for complaince with the Courts order Dated 28th February 2007.

 

I trust this clarifies my position.

 

It should also be noted that the Court’s order for conference on 25 May has been amended to ‘Attendance’ as I am Litigant in Person, and not ‘telephone’ as implied in your letter.

 

 

Yours faithfully

 

Mr HydraUK

short and sweet

 

Glenn

[Glenn UK]

PS email or fax it to both the court and the defendants ASAP

[Glenn UK]

I concur with Glenn, short & sweet, and make sure stuff like that is in writing, with a copy to court if needed. Just a couple of spelling/grammatical/layout suggestions to Glenn's draft though:

 

 

 

Cheers

Michael

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If there werent any typos you wold know i had got someone else to type it!!!