Andyk vs Abbey

[andyk01]

Hi everyone. My first post here.

 

My motivation for persuing a claim against Abbey started last year when they decided to return 10 direct debits on the same day due to the fact that a salary payment due to me was late. Although I complained bitterly to them at the time, they were dismissive and of no help whatsoever leaving me with no alternative but to take action against them. 10 times £32 plus other charges is no joke so that very event is what gives me the desire to go to the ultimate end with this one, whatever that may be.

 

Fortunately I was lucky enough to have kept the last 6 years worth of statements so I wrote my preliminary letter for a refund (the correct way this time) on 29 Aug. I obviously included all other charges as well as the 10 direct debits which to my amazement added up to £1400.

 

Today - 7th September I received the standard 'sorry you are unhappy' letter from the Head of Complaints (no less). They also included a helpful leaflet entitled 'How to Complain' which promised to resolve my complaint within 8 weeks. How much more helpful could they be?!

 

Needless to say they could be a little more helpful (say £1400 more helpful) so after the first 14 day period (about a week's time) I will be looking forward to writing my Letter Before Action. Cos action is what there is gonna be.

 

My best wishes to everyone who is gunning for the Abbey and the good people behind this website. I look forward to posting my updates.

[Lula]

Good luck Andy and congratulations for studying the process first, there are links at the bottom of my signature that might help you but if you run into any problems or are unsure of anything there is generally people arounnd who will be only too happy to advise and help, Welcome to our happy little (And growing) group

[andyk01]

Thanks Lula - it's good to know that there's such great support here.

[andyk01]

Sent my Letter Before Action on 19 Sept. On the basis of others experience I had better start getting my moneyclaim ready in a couple of weeks. I'll see how it goes.

[andyk01]

Just updating my case.

 

I received a Gesture of Goodwill offer for £145, in response to my first approach for repayment. This crossed in the post with my Letter Before Action. I got no further response within 14 days to my LBA so I went ahead and raised a MoneyClaimOnline Claim against the Abbey for the full amount. I am subsequently wondering if I made a mistake there by not subtracting the GoGW, even though I did not accept it and I'm not entirely sure if Abbey credited it to the account. I no longer have internet or telephone banking for this acc so I am relying on the paper statement which should be sent soon so I will find out what they did in a few days. I guess if I have been given a GoGW payment by default I will need to inform the court so that they can subtract it from the claim:confused:

 

Either way I will press ahead and see what happens next.

[andyk01]

I received a copy of Abbey's Defence, filed with the court, dated 26 Oct.

 

I see this has been used before with other recent cases and comes directly from their "Legal Officer" at the PLC at Trition Square (so no solicitors any more then..?). I guess they might have picked up on the fact that "cut & paste" is a bit cheaper than employing a firm of solicitors!. Here it is for reference:

 

 

1. Save as is specifically admitted in this defence, the defendant denies each and every allegation set out in the particulars of the claim.

 

2. It is admitted that the claimant has a current bank account with the defendant, account number to be particularised ("Account").

 

3. At all times the account has been subject to the applicable terms and conditions ("conditions"), which form aprt of the contract between the claimant and the defendant and to which the claimant agrred when he opened the account. The defendant will refer at trial to the full conditions but for the purposes of this defence will refer to the following extracts:

 

(1) "you can apply for an overdraft on your account. If we give you an overdraft we will tell you your limits and the interest applicable."

 

(2) "An unauthorised overdraft occurs if without our agreement you overdraw your account or exceed the limit of an overdraft which we have agreed."

 

(3) "If you have an unauthorised overdraft, you will be charged fees as set out in our tariff of charges or specified to you and these may include fees fro transactions we are unable to process due to lack of available funds in your account."

 

4. Throughout the period that he has had the account, the claimant received a number of copies of the conditions of the said tariff of charges as they were amended and updated (though there has been no material amendment to the conditions extracted in paragraphs 3(1), (2) and (3) above).

 

5. Any overdraft facility on the account was (and is) subject to the conditions.

 

6. The claimant has overdrawn or exceeded authorised overdraft limits on the account on a number of seperate occassions, full details of which will be provided on disclosure. Therefore by virtue of the conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the claimant became liable to pay fees to the defendant in accordance with its tariff of charges applicable at the relevant time. In accordance with the conditions, such fees were debited to the account.

 

7. In view of the facts and matters referred to in paragraphs 3,4,5 and 6 above, the defendant denies that the amount of £1404.00, or any other amount, was unlawfully debited to the account and the claimants claim for the repayment of that amount is therefore denied.

 

8. The claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the defendants administrative expenses incurred due to the claimants breach of contract and are a genuine pre-estimate of the damage suffered by the defendant.

 

9. Further or in the alternative, even if the said fees are not proportionate to the defendants administrative expenses incurred (which is denied), the claimant remains liable to pay such fees as may be found to be proportionate and the claimant is not entitled to reclaim repayment of the full amount of each charge made to the account.

 

10. No admissions are made as to the amounts claimed by the claimant and the claimant is put to strict proof of the same.

 

The defendant believes that the facts stated in this defence are true.

 

I am duly authorised by the defendant to sign this statement

 

Inga Kirkman of Abbey National plc

[andyk01]

:idea: Hi again. At last I have been allocated a court date, to the small claims track. It has been set for 27 March. The letter has requested the following:

 

The claimant shall by 26th January 2007 file and serve:

a) Copies of any statement or other document relied upon as showing that each and every charge repayment of which is sought has been made.

(b) A statement of the claimants own evidence , if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties.

If the claimant fails to comply with this order, the claim will be struck out without further order.

The defendant shall by 6th February 2007 file and serve a response to the list of charges claimed by the claimant, stating in respect of each item claimed:

(a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

(b) Whether such charge is accepted to be a penalty, and if not, why not;

© If such charge is alleged to be a pre-estimate of the defendants loss incurred by the claimants actions (whether or not such action is to be treated as a breach of the contract between the parties), all facts and matters intended to be relied upon as showing that such is a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

If the defendant fails to comply with this order, the defence will be struck out without further order.

 

I'm perfectly OK with claimant a) but unsure about b). Surely the statements show that the charges have been made? And not sure how I show they are irrecoverable penalties..?

 

Any help appreciated - they have not given me long to submit this! Thanks. Andy.

[Lula]

:idea: Hi again. At last I have been allocated a court date, to the small claims track. It has been set for 27 March. The letter has requested the following:

 

The claimant shall by 26th January 2007 file and serve:

a) Copies of any statement or other document relied upon as showing that each and every charge repayment of which is sought has been made.

 

this is just a straightforward copy of your spreadsheet detailing what each charge is for

 

(b) A statement of the claimants own evidence , if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties.

 

This one is more tricky and I think that the statement of Evidence giving a brief outline of the case studies and the UTCCR 1999 saying that these charges ARE penalties and are therefore UNLAWFUL - you need to take a look at the court bundle documentation and there is a list that is a summary with a para in each - I beleive that this is what you need but I would be very grateful if a mod could look this over

I

[andyk01]

Hi Lula - thanks. I checked through the court bundle and can sort of see your point. However I would be grateful if you or anyone else could clarify further exactly what the court are looking for when they say:

 

b) A statement of the claimants own evidence , if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties.

 

Does the court bundle sections referred to definately cover this?

[Lula]

.....

[Lula]

The more I look at it the it says do a Witness Statement, but please could a mod or site helper take a look at this and make any comment

 

thanks

 

[davenport5]

It looks to be very similar to the draft order that the CAG are advising we send with the AQ. If you look on this thread from the beginning you will see the CAG version (it is thread 2).

 

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

 

Read as much of it as you can but on thread 55 is an example of a statement of evidence.

 

I hope this helps. Good luck

[andyk01]

Thank you davenport5 - I think you have the answer. I followed the CAG advice when I completed my AQ and it looks like that strategy has worked. I agree with you it seems that I need to respond with something along the lines of the 'Statement of Evidence" shown in http://www.consumeractiongroup.co.uk/forum/general/57707-draft-order-allocation-questionnaires.html#post450746 posted by GaryH.

 

I can't seem to find that in the standard templates - should it be one CAG, especially as it seems the courts are responding to this strategy?

 

Like I read, if I comply with my directions, that leaves the bank to submit proof of the estimate of their costs to the court by the given date which I would be very surprised if they do..? If they don't make it then that in itself would lead to victory?!