Hydra-vs-RBS

[mcuth]

I don't think you should be too worried about that para in the AQ (oooh, you got an AQ - I didn't ), they put pretty much the same about particularity in their defence to my case too. That said though, you should be prepared for them to submit a strike out application - I know you've been keeping up to date with stuff in my thread, but have another look over their defence, my reply to the defence, their Application & reply - it seems like I'm just a week or maybe two ahead of you

 

BTW, very interesting that you're continuing to get offers from Sandy Watt - I haven't heard from Sandy in some time, and I thought it was because I'd issued my claim, obviously not!

 

Cheers

 

Michael

[HydraUK]

Thank you Michael.

 

Yes I've been trying to do a lot of reading and trying to figure out how I can adapt your R2D, based on its reference to your PoC and how that differs from my own, which is more template-like.

 

I'm also reading about this new idea of the bank's breach of contract stemming from our initial request for repayment, but not sure at all how or if this can be applied as backup at this stage. Needs more time in the hands (and heads) of wiser folk than me.

 

Going to write back to SW and accept his generous offer as partial payment, but I'm under a lot of pressure to accept as Mrs Hydra still doesn't get what is going on (not entirely sure I do, sometimes, TBH) and if he gets it up above £7k it might be taken out of my hands.

 

And to add to the stress, I have a powerboat course starting tonight until Sunday night so I'm not going to be able to get near the comp to do anything about it all.

 

Quietly cakking mesel' too

[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

[HydraUK]

Thanks Glenn, I've been reading the stuff you emailed me and trying to tie aspects of it in with Michael's work, in relation to my own case.

 

Trouble is I'm not sure how or when I should be presenting it. Having submitted AQ with draft order for directions, would now be a good or bad time to respond to defence? Or should I await directions?

 

The Defence pleads lack of particularity, and re-iterates in AQ that I haven't given them more info....but can they actually demand that 'the claimant is required [to do lot's of things]'? (as in the Defence.)

 

I was hoping to go along Michael's line of denying any need to particularise further....my PoC is not dissimilar to his, so in a broad sense it is relevant.

 

But when should I do this? That's the big question for me at the mo'

[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

[HydraUK]

Thanks Glenn, I shall think on it.

[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

[HydraUK]

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.

 

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.

 

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.

 

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

 

Comments and advice please.

[HydraUK]

*bump*

[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

[flyboy80]

Hi Hydra,

 

I got a letter from Cobbetts today basically saying that they note from my claim form that I am claiming interest at the contractual rate. RBS will deny that I am entitled to claim for interest charged on the account on top of the court inerest rate of 8%.

 

They go on to say it is the duty of a claimant to substantiate the basis of their claim. They require that I provide a revised schedule for the period that I am claiming, detailing charges claimed and interest at the court interest at 8%?

 

Let me get this right.... they want me to claim for more !!!!! - or is this another stalling tactic? or did I mess up in the begining??? - do you get this Hydra, cause I am sure we are at the same stage.

Sorry, I don't mean to hijack, I am not worried, I refuse to let these guys win, and if they do I don't want it to be because I "gifted" them the victory!!!

 

Flyboy80

[HydraUK]

Thanks Glenn....my main issue is that I'm crapping myself! I just wish Michael Mcuth was a bit further ahead of me because his issues are broadly the same as mine and would like to see them tested....

 

There's not a great deal of source material for similar cases that I can rely on and I'm starting to panic.

 

It also seems that according to CPR I should have made Reply to Defence when I submitted AQ (thanks to Michael for that info) and as Cobbetts cited a lack of particularity in my PoC I think I should have done one.

 

Now they have mentioned this again in their AQ. I tell you no lie, I'm losing sleep over this.

 

 

Flyboy...

 

I'd love to help you but I'm not at all sure about Contractual Rate issues. I'm only claiming the stat 8%.

 

Cobbetts defence did 'require' me to substantiate the basis of my claim by identifying the particular sections of the UTCA, UCTCR and common law cases. See post 62.

 

It seems a reply to defence is appropriate but as you can see from above, I missed the boat on that one.

[isidore]

Flyboy, I believe you have the wrong end of the stick. I reckon they are instructing you to revise your statement to INCLUDE the statuatory 8% but EXCLUDE contractual interest.

 

They obviously want you to substantiate why you feel you entitled to 29odd% rather than 8%. Testing you tbh.

 

I like Hydra have little understanding / exposure / knowledge of the whole contractual interest debate, have never claimed for it (yet). I would advise you to swing this by someone who is dealing with a contractual interest claim or a mod of some sort. Have you got your own thread open to ask this in? If you haven't set one up and refer a few people to it, should get some advice in no time.

 

 

Hyd, not crossed paths lately, just wishing you luck with the next few weeks remember to take deep breaths and DONT PANIC (and get some sleep)!!!

[HydraUK]

Thanks T4FF...having trouble staying focused, on so many levels and for so many reasons.

[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

[HydraUK]

Well things move on despite my dithering.

 

Received Allocation Notice.

 

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??]

 

2 Statements of fact to be filed and served by 4pm on 20 April 2007 [.....!?!]

 

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??]

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.

[flyboy80]

Further costs?? maybe a MOD can advise?

[HydraUK]

AAARGH! They are taunting me! Insult!

 

Today arrives a cheque from Cobblers.

 

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

 

blah blah blah

 

What the hell are they on? Sandy bleddy Watt offered me over £5.5K just last week.....

 

I'm guessing that standard disclosure is upsetting them more than it is me?

 

What to do with this cheque tho? I read on somebody elses thread how they accepted cheque as interim payment and paid it in only to have it snagged back again when they continued to pursue....

[isidore]

i would think twice about doing that. not sure of the logic of literally accepting it.

 

The offer you have now is obviously all about calling your bluff, seeing how concerned you get by their threats (IMO).

[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

[HydraUK]

Costs? Great! Got about £100 in ink, paper, copying and petrol running stuff to court....

 

So this looks good then Glenn? What about the pre 6 year stuff? Is that going to cause them to want to go further? Or would this be a timely point to bring up sec32 LA and Laches defence?

 

I will write to Cobbetts thanking them but declining, pointing out that the client has already offered significantly more. I want to ask them how they arrived at the figure they offered.

 

I shall tell them I want a Judge to decide on the case (bringing up sec 32 etc if appropriate)?

 

And a letter to Court regarding the conference, just in case...

[HydraUK]

*bump*

 

Looking for advice on the way forward. Hope to draught letter to Cobblers tonight.

 

Thanks all

[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

[HydraUK]

Glenn, Thank you mate, those words will be very useful.

[HydraUK]

One further question, should I copy my reply to the court?