Changing claim amount from Prelim to LBA

[bill-k]

Track allocation is based on claim value not including interest - is that still correct, Bong ?

Did you get any useful reply from MCOL/HMCS "Little Britain" to your earlier query about this ?

[Garu]

But what if the claim is purely interest?

[redsue]

A last ditch attempt to panic you

Multitrack - because they want you to start worrying about costs

1 day in court - because they want you to worry about being stressed in court.

 

Thats exactly what I thought - I received the following from the court this morning

 

District Judge Baker has considered the statements of case and allocation questionnaires submitted in this counterclaim and has decided that a hearing is necessary before a final decision about allocation can be made.

 

Reasons for the hearing are as follows:

1. What are the legal issues referred to by the Defendants

I don't know this yet as i haven't seen their AQ

2. Number (if any) of witnesses for Defendants

3. Differences re-estimate of length of hearing (claimant states 1 hour - Defendat states 1 day)

4. Defendant indicates Multi track, claimant indicates Small Claims Track

 

I've got a 20 minute telephone conference scheduled on 9 May 07.

The court document states that parties shall file and serve all documents to be relied upon at the hearing no later than 4.00pm the last working day before the hearing.

So NW are trying to scare me into thinking about having to pay their costs - the claim is below £5k - I'm actually after an outstanding £1,600 they have paid out the original charges plus contractual authorised interest.

So any advice guys? Firstly I'm going to get hold of a copy of their AQ so I can see what 'legal issues' they are referring to.

Secondly, I guess I begin preparing the case as if I was having my day in court even though this is a hearing for allocation.

If anyone has any seen anything similar on other threads I'd be really grateful if you could point me in the right direction.

Thirdly,

I believe I'm right in saying you could request that costs under the small claims track rules should apply.

- I do this at the telephone conference hearing?

 

Thanks everyone for you help and advice as always - the saga continues....

[bill-k]

But what if the claim is purely interest?

May be getting confused. The interest which is disregarded for allocation is the contractual or statutory interest which we are claiming from them now, and which we are charging on the penalty charges.

 

If we are claiming back just the interest charges which were actually deducted from our account(s) by the bank over the years, then that is actually the claim value itself. It is a fixed sum of money, taken from us. We can claim interest on this, though, and that should not be counted for allocation.

[Garu]

As I understand it, they have paid back redsue's charges, and some interest, but not enough \ all of it?

 

(I am in the same boat)

[bill-k]

They have paid some of what she claimed, but not all of it. Whether they choose to call it charges, interest, or just goodwill payment, it is nothing more than a payment of less than she has claimed, and they still owe her the rest.

Whatever label they have stuck on it, it is called a partial payment here !!

[Garu]

I think you are missing the point, it's not what they call it, or we call it, but what the court sees it as.

[Guest bong]

redsue I've just noticed it says counterclaim. Is that correct?

[MilkTrayMan]

Hi redsue!

...I've got a 20 minute telephone conference scheduled on 9 May 07...If anyone has any seen anything similar on other threads I'd be really grateful if you could point me in the right direction...Thanks everyone for you help and advice as always - the saga continues....

Have stayed out of this one for far too long!...lol...

Check out soldier girl's post (#25 onwards) in the following thread:

http://www.consumeractiongroup.co.uk/forum/general/54146-oft-referral-competition-commission-2.html?highlight=soldiergirl

 

...and also her own thread, which may give U food for thought redsue?!:

http://www.consumeractiongroup.co.uk/forum/general/54861-telephone-hearing-beyond.html

 

 

 

Hope the above has helped?!

[MilkTrayMan]

They have paid some of what she claimed, but not all of it. Whether they choose to call it charges, interest, or just goodwill payment, it is nothing more than a payment of less than she has claimed, and they still owe her the rest.

Whatever label they have stuck on it, it is called a partial payment here !!

btw...Totally Agree!

[bill-k]

As I understand it, they have paid back redsue's charges, and some interest, but not enough \ all of it?

 

(I am in the same boat)

 

I think you are missing the point, it's not what they call it, or we call it, but what the court sees it as.

I thought you had, there, Garu. I agree - that's the bottom line. But it is so easy to convince people by just putting one's own label on something. That's my point, as I understand it !!

[Guest willowb]

Redsue, like Bong has asked, have they issued a counter-claim? If so, what are they claiming?

 

If the Judge puts this on multi/fast track even though it's under £5k you can ask that Judge not allow costs to be issue as you are a litigant and therefore the case would not be on an equal footing.

 

I'm with Bong here, need to know what they are counter-claiming for.....costs or the money they have paid you already or both? Crucial as the Judge may say 'NO' to contractual interest and 'YES' to their counter-claim......you need to scan everything and post please Sue. Let's be 100% clear here.

 

Wxxx

[MilkTrayMan]

...I agree - that's the bottom line.

To an extent YES!

 

However, imagine this parallel scenario...

 

U are the Defendant in County Court being sued by your Local Council for Non-Payment of monies owing i.e. Council Tax.

(...I know the legalities are totally different, but try to stay with me)

Say the sum owed is £100.

U agree to pay £90, but argue that U disagree with the Councils policy of having Twice Weekly Collections of Refuse and say that the money that U have already paid reflect a Once a Week Collection which, in your opinion, is more than adequate.

Are U asking for judgement on YOUR assumptions (especially when U refuse to openly submit to the Court your Costing Figures!)?

...Or are U expected to have to pay the Full Amount Claimed and let the Council apportion the monies paid by U???

 

The way I see it...Nationwide have to pay EVERYTHING Claimed, or NOTHING...They can not apportion payment without DISCLOSURE!!!

[Garu]

I would hope it was that way, but if NWide convince the court that the claim is for remaining interest only, and that, having paid out all the charges, they do not need to disclose anything re the charges, we would be on the back foot.

 

Believe me, as I am in the same boat, I would love that the courts force full disclosure on the details of the whole defence, but I just can't see it.

[Guest bong]

I might be missing something here and apologies if I am being really really thick, but what is the harm in proceeding to court just to haggle over the interest element? the claim points out that interest is claimed on the charges. We can say it is just a payment off the total but I'm sure a copy of their letter saying here you are have the charges back will suffice to convince the judge that it is the interest they haven't agreed to pay...

[bill-k]

From what I can see, then, we're all agreed that, no matter how we see it. It's how the court sees it that is the bottom line.

 

So, our job is to convince the court to see it our way. To do that, we have to be able to do more than just say that's how we see it. We have to explain clearly and logically why we see it that way, and it has to be a better explanation than there is for seeing it any other way !!

 

If we can agree on the way we all see it, then good. We can then go on to working out together how best we convince the court to see it our way, too.

[Guest bong]

what I'm trying to say is the interest doesn't depend upon the charges being proved unlawful in court, (mmm, or does it??) I think it is a legitimate debt in its own right for the bank having had our money and refunding it x years later. we are applying the contractual rate because that is what they charge us, and because they have been unjustly enriched, and we can still show these things even though it has been paid back.

[bill-k]

Skipped you there, Bong. I think the worry we may have here is that they are paying charges as they know they cannot avoid that (without bother), but they may have a good defence against paying interest. We feel safer, I think, if our entire claim were to be judged, rather than just the one aspect of it which the bank would prefer to be. This is based on our fear, not our knowledge, though.

[Garu]

Agreed.

 

Interestingly, in my letter, they refer to "lost interest", which in effect I have not claimed for. I claimed "interest on the debt" rather than trying to get back interest I paid on it, if that makes sense.

[Guest bong]

Sorry for the hijack, Bill I'm trying to send you a PM but your box is full. could you make 1 space please.....

[redsue]

I'm with Bong here, need to know what they are counter-claiming for.....costs or the money they have paid you already or both? Crucial as the Judge may say 'NO' to contractual interest and 'YES' to their counter-claim......you need to scan everything and post please Sue. Let's be 100% clear here.

 

I haven't seen a copy of their AQ or any info yet I'm mad busy at work at the moment but I'm going to contact the court tomorrow to see what NW are paying at.

 

Just a reminder tho I sent the court the following info and they have made no reference to this

1. May it please the court, I request that the Defendants claim in respect of the above case is struck out on the basis that the Defendant has no basis for its defence.

- The Defence discloses no reasonable grounds for defending this claim.

- The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide the Defendant’s reasons for doing so and doesn’t provide an alternative version of events. Furthermore, it is the case of the Claimants that the Defendant cannot deny an allegation without providing an alternative explanation/view on the matter in question.

- I would also draw the courts attention to the fact that the defence contains significant errors in respect to the amount of interest the Defendant has already paid to the Claimants. The Defendant's claim in the defence, to have paid the Claimants simple interest calculated at the rate of 8% in accordance with section 69 County Courts Act 1984 is a material misrepresentation of fact.

- The Defendant has refunded to the Claimants, contractual interest at the authorised borrowing rate of 7.75% on 12 October 2006, (Copy attached marked 1)

- The Claimants, believe the contractual unauthorised overdraft interest rate of 24.9% to be justified under the principle of mutuality and reciprocity, and is based on the unauthorised borrowing rate that would be applied under the terms and conditions of the account held by the Claimants.

- The Office of Fair Trading states in The Unfair Terms in Consumer Contracts Regulations 1999 - "fairness and balance require that both parties to a contract are equally bound by it, and equally liable to pay compensation for failure to abide by it." The Claimants informed the Defendants in writing on the 21st October 2006 (Copy attached marked 2) and 2 November 2006 (Copy attached marked 3).

2. The Defendant has had many cases concerning its default charges raised against it by consumers. These cases are usually settled for the full amount just before the court trial date. This ensures that the Defendant isn’t required to justify its charging regime but does result in a lot of wasted court time.

- The defendant has repeatedly acknowledged claims, entered a similar defence they entered in this claim, filed allocation questionnaires, attended case management and allocation hearings generally abused legal process to its advantage.

 

 

3. The Defendant has at its disposal the absolute defence required to defend this claim in its entirety and yet at no time has it ever offered to prove what its costs are in respect of breaches of contract which it claims allows it to levy charges of the magnitude it has done in the claimant and other customers cases.

 

4. In the event that the Court is minded to allow the defence then it is requested that the Defendant is put to standard disclosure pursuant to CPR 28.3(1)a.

May I respectfully request that the court orders disclosure of:

- the defendants costs in relation to the administration of breaches of contract on the part of the claimant;

- the defendant provides evidence of its pre-estimates prepared during the period the claimant held its account with the defendant; &

- the defendant provides all minutes, letters, emails, faxes, records containing references to meetings, discussions or other investigations into the investigation by the Office of Fair Trade into credit card charges; &

- the defendant provides all minutes, letters, emails, faxes, records containing references to meetings, discussions or other investigations relating to the introduction of the Unfair Terms in Consumer Contracts Regulations 1999.

The Claimants first requested the return of unlawfully taken charges on the 6th September 2006 and wrote again on the 21st September 2006. Since the Defendant received these letters they have failed to enter into sincere negotiations or dialogue to settle the claim.

I can see no merit in any further delays to attempt a settlement. I believe that in the event that the Court sets a stay in place that this would materially benefit the Defendant at the detriment of the Claimants. I therefore respectfully request this court that the claim is allowed to proceed as quickly as possible to its natural conclusion.

 

Have I messed up sending the above and not

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

 

Oh gawd, I need to clear my head and start thinking clearly and logically - leave it with me guys I'll get the info posted up asap :o

[Guest willowb]

Can you phone the Court for a copy of their AQ. I suspect if they were counter-claiming for costs then you'd have been informed seperately to the AQ....Bong?

 

Wxxx

[Guest bong]

what you wrote on the AQ is fine redsue, you didn't use the new draft order but that's of no importance now. you got your point across and the next step to concentrate on is what documents they have submitted to the court.

 

If you could recheck the order to make sure it does actually read counterclaim and if it does, query this with the court in writing. you've got bags of time before May. It may have just been a court typo or it might be a counterclaim they've lodged in which case you want the court to confirm this, you require a copy of the counterclaim, and a copy of NW's AQ to see what reason they gave for requesting multitrack. I doubt whether their AQ will state what legal matters they are talking about because the judge has put that down as one of the things to ascertain at the A-hearing.

[redsue]

Hi Bong, just spoke to the court and the clerk said there doesn't appear to be a counterclaim it must be a typo - they're sending me a copy of the AQ in the post so I'll copy info up when I get it

[Guest willowb]

Great stuff!

 

Wxxx