Getting my knickers in a twist about going to court!

[sutee50]

Thanks Bill.

[southerner]

I received a copy of the banks AQ today. In part D they have stated that:

 

"In the interests of commerciality and in the light of the minimal excess of the claim above the small claims threshold, the Defendant consents to the entirety of the claim being dealt with in the small claims track"

 

Have they agreed to this because they hope they will be able to avoid standard disclosure? I did include the following passage in my AQ:

 

"I am respectfully requesting that my claim be allocated to the small claims track. This issue is not a complicated one; it is an issue of fact and not of law. The issue is only whether the money levied by the Defendant in respect of its customer’s contractual breaches exceed their actual costs incurred. I am happy to pay their actual costs and I am surprised the Defendant did not counterclaim for these, because I would have paid them without argument.

 

However, the continuing problem is (in common with the 100s of other cases currently being brought by other bank customers) that the banks refuse to reveal the details of their penalty-charging regime. As the banks have a fiduciary duty towards their customers, they have a duty to deal straightforwardly and in utmost good faith.

 

Accordingly, I would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. I understand that it is in the courts discretion to do so. I believe this would bring a rapid end to this litigation."

 

At the time I submitted my claim it was for £7871 + int. It has now risen to £8076 + int due to receipt of archived statements, further charges and the correction of an error. Can I wait until I submit the court bundle till I inform Abbey and the court of this, or should I tell them now?

 

I get the impression from the newsletter (extract copied in a previous post) that I can claim for my expenses even if the claim is allocated to the small claims track because the claim is for over £5000. Is this correct? What happens about the fact that I have paid the fee for fast track?

 

Incidentally, in Part D the name of the witness has been given as "A Bank Officer of Abbey National PLC". Is this usual?

 

I looked up the word "commerciality" in Dictionary.com. Apparently it means "ability to produce a profit". Can I use this against Abbey?

 

Sorry to ask so many questions. I'm hoping somebody might know some of the answers.

[bish]

I think you have to amend your claim to take into account the new amount and the error. I think that will cost you about £35 ,but not sure so give the court a ring to find out or wait for a more knowledgable reply to your post.

 

If you win you get your fee back, and on the small claims track you do not get costs or pay them if you loose. So forget that one, just ensure full disclosure.

 

Not seen the 'officer of Abbey National PLC' before, but they have to name some one so this is as good as it gets.

 

Use anything you can against them, I replied to a letter from a credit card company reminding the that charges should not be set for commercial reasons alone, and then received a full refund. So good point.

 

Regards bish.

[jax1964]

I am still awaiting my copy of Abbey's AQ - most prob say the same though.

[southerner]

I haven't posted for a while as I was without the internet (and a phone) for a few days and then my PC was playing up. Great timing eh!

 

I have been given a court date of 7th March, with the bundle required by 29th December. The case has been allocated to the small claims track "by consent" even though it is for over £5000.

 

I will be sending this letter to the judge tomorrow (i believe it is originally Karnevil's)

 

 

With reference to the above claim and the defence received from the defendant, I feel this is not complete in that the calculations required to prove the costs of the purported breach of contract are not included within the defence.

 

In your indulgence, I would respectfully ask, that you order disclosure of the calculations which justify the charges in question, that the Defendant may intend to use to defend the claim.

 

I understand that it is within your discretion to do so.

 

I believe such an order would bring a rapid end to this litigation.

I have also prepared a letter of my own to send to Abbey and would welcome comments as to whether I should send it. Also, if I do, should I attach a copy of the letter I'm sending to the judge?

 

I am enclosing updated copies of the spreadsheets showing the charges that have been applied to our accounts and the interest that has accrued thereon. The spreadsheets have been amended to include actual, rather than estimated, charges following receipt of transaction details from Pam Speed, Business Manager on two of the accounts.

 

Although this claim will be heard in the small claims court, it is for over £5000. I will therefore be applying to the judge for repayment of my costs under CPR48. These will include the cost of paper, ink, postage etc, as well as the cost of my time @ £9.25 per hour. To date this amounts to:

 

Letters / forms including postage: £10.23

Letters / Forms preparation 9.5 hours @ £9.25/hour: £87.88

Research and planning 56.5 hours @ £9.25/hour: £522.63

Total costs to date: £622.24

 

I will begin to prepare our bundle for the court hearing in 7 days from the date of this letter. I anticipate that this will be time consuming and therefore will increase my costs significantly. However, should you settle the claim of £8,076.00 in full, plus interest to the date funds clear, before this date I will forgo my claim for costs. Your settlement must also include our court fees of £350 and Abbey’s fee for copy statements of £10.

[traceyrmj]

abbey didnt bother to file the AQ in my case i am in the proces of writing to them now along the lines of "for such a small claim ( £1070) is it worth alloowign the judge to dismiss your defence ( as he has the right to do) and awarding the case to me, applyign to set aside ( which they will do) and then getting a hearing date they will settle before anyway, when in fact they can pay me now and ill drop the case, ergo no ccj no need for lengthy (costly) lawyer bills" or words to that effect we shall see where i get.

[jax1964]

Hi Southerner, I am in a situation where my claim is just under £5000 and yet the court is preparing to allocate to fast track. I would like to send a letter that might encourage Abbey to settle sooner rather than later. How much did you charge for each Letters / forms? where you have stated Letters / forms including postage: £10.23.

I hope somebody with a bit more know-how comes back to you with regards to your letter, but I think it looks fine.

[Glenn UK]

I haven't posted for a while as I was without the internet (and a phone) for a few days and then my PC was playing up. Great timing eh!

 

I have been given a court date of 7th March, with the bundle required by 29th December. The case has been allocated to the small claims track "by consent" even though it is for over £5000.

 

I will be sending this letter to the judge tomorrow (i believe it is originally Karnevil's)

 

 

I have also prepared a letter of my own to send to Abbey and would welcome comments as to whether I should send it. Also, if I do, should I attach a copy of the letter I'm sending to the judge?

 

When you write to the judge i would also add the comments about expert witnesses from abbey along these lines.

 

There is no necessity of any expert evidence in this claim, the matter of the banks charges are a matter of facts not expert evidence, accordingly i would request that the request for expert testimony is refused. Since this claim is about the Claimants Contract with the defendant then any comparisons with other banks lending practises is also irrelevant.

 

Or something like that.

 

You have asked for SCC and therefore i am pretty certain that you cannot apply for costs. Id have to go check the CPR and don't have the time right now.

 

If you want to encourage them to settle then you can copy this to the judge. However, be warned that if you or the abbey have sent a previous letter marked 'without prejudice save as to costs' with a genuine attempt to settle, then irrespective of whether you mark your letter the same, it could be deemed as such and could cause you some embarrassment if and when you meet the judge.

 

JMHO

 

Glenn

[southerner]

If you want to encourage them to settle then you can copy this to the judge. However, be warned that if you or the abbey have sent a previous letter marked 'without prejudice save as to costs' with a genuine attempt to settle, then irrespective of whether you mark your letter the same, it could be deemed as such and could cause you some embarrassment if and when you meet the judge.

Oops! I can see how my question was ambiguous. What I meant to ask was, should I send the bank a copy of the letter I'm sending to the judge?

 

BTW, I haven't received any letters from Abbey with or without prejudice, apart from the standard holding letters.

 

You have asked for SCC and therefore i am pretty certain that you cannot apply for costs. Id have to go check the CPR and don't have the time right now.

I'd be happy to research this myself if you could point me in the right direction. I tried googling CPR48 but couldn't find anything useful.

 

Thanks for your suggested extra paragraph for the letter, Glenn. I shall add it.

[southerner]

Thanks Karn. The link you gave me wasn't quite relevant, but it introduced me to the website, which was very helpful.

 

Unfortunately it would appear I shot myself in the foot by asking for the case to be referred to the scc:

SECTION 26 SCOPE OF PART 46:

 

RULE 46.126.1

 

Part 46 applies to the costs of an advocate for preparing for and appearing at the trial of a claim in the fast track.

 

26.2 It applies only where, at the date of the trial, the claim is allocated to the fast track. It does not apply in any other case, irrespective of the final value of the claim.

 

26.3 In particular it does not apply to:

 

(a)the hearing of a claim which is allocated to the small claims track with the consent of the parties given under rule 26.7(3)

 

General rule for allocation

 

26.7 (3)The court will not allocate proceedings to a track if the financial value of the claim, assessed by the court under rule 26.8, exceeds the limit for that track unless all the parties consent to the allocation of the claim to that track.

 

Oh well, I suppose I'd better start preparing the court bundle and then just sit back and wait for March.

 

Unless you have any suggestions as to how I could try to speed things up.....

[southerner]

Does anyone have a phone number for the lovely Inga at Abbey? I've been inspired by Lager_Lou to give her a call to see if I can sort something out before I start photocopying 6 years worth of statements for 3 accounts in triplicate!!

[southerner]

Having read Chilli and Noorbrider's threads I'm tempted to email Inga or Christine to ask for the address to send the bundle (I haven't received any correspondence other than standard fob-offs from Abbey) and to suggest they might wish to settle before they incur any further costs. What do you think? And does anyone have an email address or phone number I can Inga or Christine?

[davenport5]

[email protected]

[southerner]

Thanks Davenport

[noobrider]

Don't hold your breath though I've sent two emails over the last three days and have yet to receive a reply

[southerner]

Well, I emailed James and Christine last night, but surprisingly they haven't responded!

[southerner]

HELP

 

I know this is a terrible time to be asking for help, but my bundle is due at the court on the 29th and I'm having a bit of a wobble!.....

 

I've just realised that on the schedule of charges I am claiming interest from the date the charges were incurred and not the date they were applied to my account, which was later. Do I need to to redo the schedule? It will mean tracing £8,000 worth of charges on 3 accounts over 6 years - and I haven't even started the photocopying yet!

[davenport5]

I am no expert but I think you have done it correctly.

 

This is what it say's in the notes section of the Excel sheet.

 

"The turquoise boxes on the right hand side are for any interest you have been charged in the last six years. You need to enter a date, amount and account balance in columns G, H and I accordingly. The best date to use for the interest, is the last date of the interest charge period, e.g. for 1 April 2002 to 30 April 2002 a date of 30 April 2002 would be used. If this date is unavailable, use the date the interest appears on the statement. Enter the balance the account is showing at the date you are stating, using a minus figure for overdrawn balances"

 

I hope this helps

[southerner]

Thanks Karn.

 

If you have nothing better to do over the next few days would you mind glancing at my witness statement to see if it looks ok?

 

Have a good Christmas.

 

Claim Number: XXXXXXXX

Claimant: XXXXXXXXXXXXXXXX

Defendant: Abbey National PLC

In relation to : Bank charges applied to account numbers XXXXXX, XXXXXX & XXXXXX since 1st June 2000.

 

I, XXXXXXXXXXXXX, will say as follows:-

 

1. I am the Claimant in this case.

 

2. I make this Witness Statement in support of claim against the defendant.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. I have contracts with the defendant since before 1st June 2000. I am claiming the return of money taken by the defendant in the way of charges since 1st June 2000.

 

The bank's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law.

 

5. 8/6/06 Data Protection Act – Subject Access Request: Letter to defendant requesting complete list of transactions relating to all 3 bank accounts since 1st June 2000. £10 fee enclosed.

 

6. 3 identical letters dated 19/6/06 from defendant agreeing to send details currently held on system within 40 days, but that earlier transactions held on microfiche are not covered by the Data Protection Act.

 

7. 23/6/06 Data Protection Disclosure Request: Further letter to defendant requesting transaction details pointing out that they had been willing and able to provide other customers with transaction information for this period and drawing their attention to Smith v Lloyds TSB Bank PLC (2005) EWHC (Ch).

 

8. Letter dated 14/7/06 received from defendant stating information archived onto microfiche could not be provided as a computer printout, but stating that arrangements had been made for the microfiche records to be sent in due course.

 

9. 25/7/06 Letter to defendant requesting repayment of charges since 1/6/00 and pointing out that regime of 'fees' that the defendant had been applying my accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations. Request for repayment of charges amounting to £7,941, part of which was estimated, plus interest of £2199.34. Schedule of charges enclosed with letter. 14 days given for the defendant to respond positively.

 

10. Standard holding letter dated 8/8/06 received from defendant together with Complaints Leaflet

 

11. 12/8/06 Letter before Action to defendant enclosing further copy of schedule of charges.

 

12. Holding letter dated 18/8/06 received from defendant, identical to letter dated 12/8/06. Complaints Leaflet enclosed.

 

13. Holding letter dated 25/8/06 received from claimant.

 

14. Holding letter dated 12/9/06 received from defendant, identical to letter dated 25/8/06.

 

15. 18/9/06 “Miscellaneous Fee Refunds” applied by defendant to all 3 accounts. Schedule of Charges amended accordingly.

 

16. 29/9/06 Form N1 completed and sent to court together with schedule of charges. £250 fee enclosed.

 

17. Notice of Issue received from court.

 

18. Letter dated 25/10/06 received from defendant enclosing copy of defence.

 

19. Notice that a Defence has been filed dated 31/10/06 received from court.

 

20. 8/11/06 Allocation Questionnaire completed and returned to court. £100 fee enclosed.

 

21. 11/11/06 Full list of transactions for account numbers XXXXXX and XXXXXX received from defendant fro period 30/5/00 to 27/6/05. Schedule of charges amended accordingly.

 

22. Letter from defendant dated 20/11/06 enclosing copy of defendant’s Allocation Questionnaire.

 

23. Notice of Allocation to Small Claims Court received dated 1/12/06.

 

24. 14/12/06 Letter to District Judge Peake pointing out that the defence received from the defendant is not complete in that the calculations required to prove the costs of the purported breach of contract are not included within the defence, and requesting that he order disclosure of the calculations which justify the charges in question that the Defendant may intend to use to defend the claim.

 

25. 21/12/06 email to defendant requesting payment in full within 7 days and agreeing to freeze interest at date of email if request complied with.

 

My claim is that the bank's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

I have repeatedly asked the bank to justify their charges but they have declined to do so. As reported on a recent BBC2 ‘The Money Programme’, three experts have researched for a period of time and their conclusion is that the maximum cost incurred to process a ‘bounced cheque’ is £4.50 and a ‘direct debit or unauthorised overdraft’ is £2.50. Therefore being charged £20-£35 for the same ‘service’ is unlawful.

 

I am claiming interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 1st June 2000 to 28th December 2006 of £2471.38 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.78 and for such rates and for such periods as the court deems just.

 

 

Statement of Truth

I believe the facts stated within this Witness Statement to be true and exhibit Exhibits comprising of 02 pages.

 

29. Accordingly the Claimant claims:

 

i. The return of the amounts debited in respect of charges in the sum of £2471.38 as set out on the attached list of charges.

 

ii. Court costs (court fee of £250, Allocation Questionnaire fee of £100).

 

iii. Defendants fee (£10 for copy transactions).

 

iv. interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 1st June2000to 28th Decemberof £2471.38as set out on the attached list of charge, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.78 and for such rates and for such periods as the court deems just.

__________________

 

Please could you also confirm that the witness statement is part of the bundle and should be included on the index page.

 

Also, am I correct in assuming that I don't have to include docs such as the claim form and allocation questionnaire in the bundle?

[southerner]

Bump

 

Feedback would be appreciated as I want to deliver this to the court tomorrow.

[southerner]

Thanks Karn. I'll do that.

[Armsoft]

Thanks Karn. I'll do that.

 

Also, Point 13 should read Defendant (not Claimant)?

[southerner]

Also, Point 13 should read Defendant (not Claimant)?

Oooh - well spotted, Armsoft!

[Armsoft]

Oooh - well spotted, Armsoft!

 

Glad to have been of help:)

Perhaps you can do the same for me if/when I get a court date

Good Luck

[southerner]

Another quick question about the witness statement:

 

On the last page one of the paragraphs reads:

 

Statement of Truth

I believe the facts stated within this Witness Statement to be true and exhibit Exhibits comprising of ?? pages

 

Is ?? the total number of pages in the bundle (ie 197)?