Beales Vs lloyds TSB **WON**

[GaryH]

For a start - if you're not sure what to claim for at this stage, then what did you put as a the total of your claim when you filed it, and how did you come to that figure?

 

Please give me the answer to this and we can take it from there.

[GaryH]

Overdraft interest is not all claimable. You can only claim what was applied as a result of each unlawful charge. So no, you can't just add on the whole lot as it appears on the list of charges from your SAR. You'd need to work out the claimable preportion, but to be honest this is the least of your worries.

 

We need to know exactly what you put as your 'particulars of claim', and the amount of your claim and how you arrived at it.

 

Don't worry, it can be put right, but for anyone else reading this thread - DON'T FILE A CLAIM UNTILL YOUR 100% SURE OF WHAT YOU ARE DOING!!!!!!!

[GaryH]

Overdraft excess fee is claimable, O/D interest is'nt (well not all of it anyway - see explaination above)

[GaryH]

Firstly, try sending SC&M this and also send a copy to the court.

 

Dear Sir/Madam,

 

Thank you for providing me with a copy of your completed N149 Allocation Questionnaire, which I received on xx/xx/xx.

Referring to the Allocation Questionnaire, I must admit to being somewhat surprised by your response to Section A (Settlement). You have ticked ‘yes’, thereby requesting a one-month postponement in proceedings in order that a settlement may be reached by way of negotiation.

 

Please note that throughout the process of this claim, neither yourselves nor your client have ever given any indication whatsoever that you wish to settle this matter without the need for litigation. In fact, in my previous attempts at dialogue with your client has been met with outright refusals to negotiate this matter, and on xx/xx/xx, I received a letter from Lloyds TSB’s service recovery centre which explicitly stated that the bank had issued its ‘final response’ and therefore would not enter into any further correspondence. It is for this reason that I felt I had no alternative but to seek redress by way of Court action.

 

Having said the above, I do believe that litigation should always be a last resort and would of course be happy to settle this matter without the need for a court hearing. Please be advised though, that I am completely confidant in the strength of my claim and believe that your client’s charges could indeed be proved to be unlawful penalties, which you are trying to cloak as contractual service charges. For this reason, I will only settle for the amount of the claim, namely £xxxx.

 

In light of your indication of your intention to negotiate, I will await your communication informing me of how you wish to proceed. A copy of this letter will also be sent to the court.

 

Yours Sincerely

 

As for the amendment, you have made an application to amend your claim and the judge has decided that you will have a hearing to do so. Presumably you have already set out the amendments you wish to make on your N244 form so its just a case of re-iterateing that. I had an application hearing last week to lift a stay and its nothing at all to worry about. Make sure you call the judge sir and remember your manners and it'll be a piece of cake! You may wish to write a script or some prompts of what you wish to say, ie setting out the reasons for your application. Also, remember that small claims are not heard in a 'court' as you would imagion it, its more like an office. Its designed to be accesible to your average bloke (or woman!) in the street and is fairly informal.

[GaryH]

The court will have let them know. Yes, they are supposed to be there, but its highly likely they will send a letter saying they have no objections to your amendment and apologising for their non-attendance. The reason given will be "to attempt keep the costs of this matter to a minimum"

[GaryH]

Hi Russ,

 

Firstly, please start a thread of your own, so you can create a timeline where people can track your progress. You should find you'll get more help that way, too.

 

In answer to your question though, no, O/D interest is not all reclaimable - only the proportion that was levied on top of unlawful charges. You would have to work out the claimable part from the legitamate part, which is quite complicated, so yes, your probably better off leaving it out completely.

 

Yes, its fine to add both accounts together, so long as they are both bank accounts. If it were a credit card you would need to keep it seperate.

[GaryH]

Yes, its definately worth a try. Ring them and say you are following up on your letter - ask if they have received it, and ask if they intend to attempt to come to a settlement since they indicated that was their intention on their A/Q. When ringing them, or when making any important phone call for that matter, write down a few prompts or headings to remind you of the main points of what you want to say. It is also a good idea to keep a record of what is said.

 

Let us know how you get on.

[GaryH]

Yep, their fax is 01273 745356

[GaryH]

Good luck trying to get hold of him. He's quite elusive that Mr Thomas!

[GaryH]

Not alot more you can do then Phil for the time being. That sounds like pretty much the usual gumph from SC&M. Just wait for directions from the court and let me/us know of any developments.

[GaryH]

Call the judge sir, be polite and don't be late! Thats about it.

 

Seriously though, its nothing to worry about at all. In fact it'll be a good first experiance of the small claims court. You've got no real pressure on you - nothing can be won or lost on Monday. You'll probably wait a couple of hours to be called and then the hearing will last all of 5 minutes! Be prepared with a script or some prompts regarding why you need the amendment and apologise for the courts inconveniance. Its probably also a good idea to take a copy of the N244 and your new particulars of claim, just in case. You won't need to argue your case regarding the charges, but it would still pay to be aware of the statutes and common law your claim relies on, as that is what your new particulars will include.

 

I would wish you good luck, but you won't need it.

 

If theres anything else your not sure of or worried about, let me know.

[GaryH]

Thats strange. I have always thought that the interest is not included in the 5K threshold. I'll look into that.

 

What else was said?

 

I thought you had submitted a N244 with your new particulars of claim?

 

You need to clarify what was meant by 're-submit' your claim. That suggests she's asking you to file a new one. Are you sure it was'nt to resubmit your particulars of claim?

 

And I thought you were going to take a copy of your new particulars with you?

 

Sorry about all the questions, I'm just trying to get a clearer picture.

[GaryH]

It looks like what the judge told you was wrong. Interest should NOT be taken into account when allocating the claim to a track. The Cival Procedure Rules state this quite clearly - PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE

You need to print this off and make a request for your claim to be re-allocated to the small claims track, quoting CPR 26.8 (2). Make this request in writing at the same time you submit your POC.

 

To be honest though, the fast track in my (non-legally trained!) opinion is nothing to fear - in fact it does have advantages. Here's the basic pro's and con's;

 

£5000 (not including interest!) is the top limit for small claims track claims. Anything over that would generally go into the fast track. With this comes a very small risk. In the small claims track there is a no costs rule. This means that the losing party is not liable the costs of the other side, so bringing an action in the small claims track is virtually risk-free. In the fast track, the no costs rule does not apply. So theoretically, if your case went to court and you lost, you may be liable to pay Lloyds solicitors and other legal costs.

 

In reality however, this risk - in my opinion - is very, very small. Minute even. A), the chances of your case getting to court are very low - of 1000's of claims so far not one has yet. B), even if you did go to court, the chances of losing are small (which is why the banks always pay up beforehand!), and C), even in the almost unthinkable event that you went to court and lost, it is still not likely at all that the judge would award costs against you to a £multi-billion organisation.

 

On the other hand, IMO the chances of your claim getting as far as court reduce from slim to very slim if its in the fast track. This is becouse an order of standard disclosure can be made as a matter of course. This means that Lloyds would have to reveal the true administrative costs of their charging system prior to the trial - which is obviously something that they really, really don't want to do!

 

So basically, whilst you have every right to ask that your claim is re-allocated, you may want to consider staying on the fast track. Its your risk, your choice.

[GaryH]

Well done Phil, got there in the end!

 

So to which track is your claim allocated to? And what are the directions?

[GaryH]

Excellant, glad its sorted.

 

What about directions? Should be on the notice of allocation, it'll ask you for your evidance, etc. Your next step is to submit your bundle, and that should be the final hurdle. Take notice of the date it has to be submitted by.

 

You need everything from the court bundle in the templates library, all correspondence between you and Lloyds, your statements or account information, a schedule, the McNamara interview (templates - soundfiles) and edit this to suit your claim and add it to your bundle too - GaryH v Lloyds TSB - WON !! UNCONDITIONALLY !!!!.

 

You need 3 copies of everything. File one at the court, serve one to Lloyds sols and keep one for yourself (this should include the originals).

 

Get this all off and then ring SC&M and ask where their documents are. They should then say that the settlement is in the post.

[GaryH]

:grin: Thats brilliant news Phil......

 

CONGRATULATIONS!!!

 

A long old battle, but you made it in the end - very, very well done! Enjoy the money and best of luck with your new arrival.

[GaryH]

No, they should have settled the 8% as well - if I were you I'd insist on it. They'll pay it, they're just trying it on. Tell them that unless you receive a FULL settlement including 8% and fee's then you'll see them in court.

[GaryH]

Thats fine. £1000 is too much to lose! If they haven't paid it within a week then I would give them a call.

 

The value of your claim has no bearing on the track now - you've already been allocated to small claims, and besides the 5k threshold is only a guideline its not set in stone.

[GaryH]

I'd get a bundle up together and send it in now. Also one to SC&M, it should give them a good kick!

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

[GaryH]

Yes, I would do as innocent says - you should go.

 

A bundle won't really be necessary as the charges are not really the issue anymore - they've indicated that they will settle but have got the incorrect amount.

 

Show your workings to the judge, and request that he makes an order for them to pay the outstanding amount.

 

You should also comment that Lloyds/SC&M have had months to offer an arrange settlement if they had wished to, but, in common with hundreds of other claims, they've choosen to drag you through 6 months of stressful litigation only to settle at the very last minute.

[GaryH]

Great stuff Phil, well done!! 2 court appearances now - your becoming something of an old hand at all this litigation lark!

 

Did the judge say anything else, about SC&M abusing the system or anything like that?

[GaryH]

Brilliant, very well done!!

[GaryH]

Great stuff Phil. Give them a couple of weeks then you can start to think about enforcing it.