French v. Abbey (2) ** WON ***

[bish]

Hi srfrench,

 

Awwww post the witness statement, would love to see it. Good hunting.

 

Regards bish.

[srfrench]

Oooooooo...... what's it worth? lol

[bish]

Only you can put a price on it, but a few bevvies at the next CAG meeting, protest, or general get together that may be held in the future by CAG. Hope there is one as could not make the demo in London, I will wait with bated breath for your witness statement to apear here. Better let abbey digest it first.

 

Regards bish.

[srfrench]

I don't think the website could cope with a huge block of text!

 

I missed the demo too (holiday) however would love to be at the next do!

 

"Only I could put a price on it!" That's slander that is......... now what would I charge and my costs?

 

Ok I'll give it a whirl, will take a short while.......... watch this space (or lack of it!!)

[srfrench]

1st bit........

 

In the Harrogate County Court

 

srfrench [Claimant]

-AND-

Abbey National PLC [Defendant]

WITNESS STATEMENT

1. I, srfrench of The Hobbit Hole, Sue'Em, The Courtyard will say as follows:-

2. I am the Claimant in this case, not legally trained and representing myself.

3. I make this Witness Statement in response to the Court Order issued 21st December 2006 by District Judge Wood.

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

5. On the 30th September 2006, I wrote to the defendant requesting a refund of charges and questioning the lawfulness of the Defendants level of levied bank charges. [pages 1-3]

6. On the 6th October 2006, I received a reply in the form of a standard response. [page 4]

7. On the 14th October 2006, I wrote again stressing my concerns over the bank charges levied and again reminding them of their duty as my fiduciaries to disclose information and documentation to prove the Defendants view that the Defendants level of levied charges was lawful and enforceable. [pages 5-6]

8. On 14th October 2006 I received another letter from the Customer Services Dept of the Defendants’ dated 10th October 2006. [page 7]

9. On the 17th October 2006 the Claimant wrote to the Defendants Complaints Dept as requested stating quite clearly the Claimants and Defendants position in this matter. The Claimant gave the Defendant the opportunity to respond to which it has failed to do so since and to date. [pages 8-10]

10. On the 29th October 2006 I filed, with the Harrogate County Court, a claim against the defendant for the return of excessive penalty charges as outlined in my particulars of claim. [pages 11-14]

11. On or around the 1st November 2006 I received from the Court a Notice Of Issue letter. [page 15]

12. On the 17th November 2006 I received a letter from the Defendants Complaints Dept a standard draft letter inviting me to complain to the Financial Ombudsmen Service. [page 16]

13. On the 30th November I received from the Court a letter indicating that the Defendant has filed a Defence and that my Allocation Questionnaire needed to be filed in response by the 18th December 2006. The AQ was filed on the 8th December 2006. [page 17]

14. On the 14th December 2006 I received a “Without Prejudice” letter from the Defendant. This I believe does not earn the privilege of said status as it is not in any shape or form an attempt to negotiate or settle this claim. The letter was accompanied by a copy of the Defendants Defence which I had requested a week earlier via telephone as I had yet to receive a copy at that point. [pages 18-22]

15. On the 21st December 2006 (whilst I was away from the UK on holiday) I received a “Notice of Allocation to the Small Claims Track” from the Court detailing that the hearing was to take place on the 17th January 2007. [page 23]

16. On the 3rd January 2007 (the very day I arrived back in the UK) I wrote to District Judge Wood requesting that the hearing be adjourned for a later date as I did not have enough time to prepare and submit my bundle. I also contacted the Defendant (Mr. James Arrandale - a clerk at the Defendants) to which he agreed and would submit a fax to the Court agreeing to an adjournment. [page 24]

On the 5th January 2007 I received a “Notice Of Adjourned Hearing” from the Court advising me of a new court date for the 26th February 2007. [page 25]

[srfrench]

2nd bit..........

 

 

1. The Claimant contends that:-

• The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant and are not intended to represent or related to any alleged actual loss but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

• The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the

Unfair Contract Terms in Consumer Contracts Regulations (1999) [paragraph. 8 and Schedule 2(1) (e)],

The Unfair Contract Terms Act 1977 [s.4],

The Supply of Goods and Services Act 1982 [s.15],

And already established in Common Law:

Lord Elphinstone v. Monkland Iron and Coal Co. 1886,

Wilson v. Love 1896,

Castaneda and Others v. Clydebank Engineering and Shipbuilding Co Ltd 1904,

Commissioner Of Public Works v. Hills 1906,

Campbell Discount Co Ltd v. Bridge 1962,

Philips v. The Attorney General of Hong Kong 1993,

Murray v. Leisureplay 2004,

First Commercial Bank and Others v. the Owners of “Mandarin Container”, “Kingdom Container”, and “Liberty Container” 2004,

Alfred McAlpine Capital Projects Limited v. Tilebox Limited 2005

2. In the absence of any proof from the Defendant regarding a breakdown of the charges and the level of fees levied, the Claimant fails to see how the Defendant can present and support their stance in paragraphs 7, 8 and 9 of their Defence; leastways any form of Defence to support the level of levied charges.

3. It is denied by the Claimant in paragraph 10 of the Defendants defence that the Limitations Act 1980 prevents the Claimant from claiming further than the 6 year limitation. Indeed, should the Defendant argue over the Limitations Act 1980, then under Section 32 The Limitations Act clearly states that if they have made a mistake, omission or concealed their information, then the Limitations Act doesn’t apply.

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
  • (a) the action is based upon the fraud of the defendant; or
    
  • (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
    
  • © the action is for relief from the consequences of a mistake;

  [*]the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

  [*](2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).

Please see [pages 416-456] for the full Act, or [page 438-441 for Section 32]

4. Background:

4.1. Bank charges continue to attract public scrutiny. It has been recently reported that banks were making over £ ½ billion a year from such charges.

 

“Millions of bank customers are being punished with ‘staggering’ penalty charges of an estimated £533 million a year”.

 

Source: Daily Mail 13 January 2006 page 35.

4.2. The above article is but one of many that I located recording growing concern at bank ‘penalty’ charges being levied against customer’s accounts (and also their considerable increase in amount). Critics argue that these are abused by the banks to create a significant source of profit rather than, as they should, seeking to be a genuine estimate of their actual loss likely to be incurred by the customer’s breach. It is to be remembered that this bank charge is not for the recovery of the overdrawn sum, or interest thereon, but purely a charge levied for what should only be the banks associated administrative charges.

4.3. Many people have at some time inadvertently gone over their overdraft limit, with the result that considerable charges are applied to their accounts. Bank charges for bounced payments and late payments on credit facilities can typically be between £25 and £39 (see below). Several bounced cheques; say over a busy Christmas Period could result in multiple charges being applied exceeding £100.

 

Moneyfact’s lists the charges (at October 2005) *as follows:

 

Bank

Halifax

 

Lloyd’s TSB

NatWest

Barclays

Abbey

Penalty fee for busting limit on Overdraft

£28

£30

£28

Nil

£20

Insufficient Funds

(item paid)

£30

£30

£30

£25

£30

Insufficient Funds (item bounced)

£39

£35

£38

£30

£35

Overdraft interest rate

(authorised)

18.9%

18.2%

17.7%

15.6%

16.9%

Overdraft interest rate

(unauthorised)

29.8%

29.8%

29.7%

27.5%

28.7%

* Abstracted from Daily Mail, January 13, 2006 at page 35.

[srfrench]

The paragraph numbering system gone tits up!!!

 

No!........ that wasn't part of my Witness statement....

[srfrench]

3rd bit...........

 

 

1. Liquidated Damages or Penalties.

22.1. I do not intend to do a detailed review of the history and case law related to penalties. Rather I set out below legal principles that are derived from them.

22.2. Damages for breach of Contract.

22.2.1 It is a well established legal principle that where a party (the “innocent party”) sustains a loss caused by a breach of contract by the other party to the contract (the “defaulting party”), the innocent party is, so far as money can do it, entitled to be placed in the same situation, via the payment of damages incurred, as if the contract had been performed (i.e. no breach)*.

* Robinson v. Harman (1846 1 Ex. 850 at 855)

 

22.2.2 When a customer opens an account with a bank their relationship is founded on a contract, governed, inter alia, by contract law. The customer agrees to maintain sufficient funds in his account (or an agreed overdraft facility) in order to pay any sums drawn against it e.g. direct debits, cheques. Where the account does not have sufficient funds to meet such payments the customer commits a breach entitling the bank to damages for any loss caused, for which the bank charges a fee (i.e. a bank charge).

 

22.3 Liquidated Damages

22.3.1 A party can sue for its actual loss caused by a breach of contract by way of legal proceedings – this is known as damages.

 

22.3.2. Alternatively, a contract may provide for a pre-determined specified sum of money to be payable by the defaulting party following a breach of the contract (“a “liquidated damages” clause) – this is known as liquidated damages.

22.3.3 One advantage of a liquidated damages clause is that the innocent/non-defaulting party can recover damages without incurring the difficulty and expense of proving the actual damage. This option is likely to be attractive to the banks where the damages incurred are likely to be small amounts.

22.3.4 However, the law requires that the liquidated damages sum must be a genuine pre-estimate of the loss or damages incurred by the innocent party. If it is not then the term will be construed as penal and, as a penalty clause, it will not be enforced by the courts.

22.4 What is a penalty clause?

22.4.1 In the leading well-known case of Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79 at 86., it was noted that a clause is penal if it provides for “a payment of money stipulated as in terrorem of the offending party”, (i.e. a payment of a sum of money intended to frighten or intimidate the offending party rather than a genuine attempt to compensate the innocent party for their actual loss).

 

22.4.2 A clause that is found to be penal (i.e. a penalty clause) is generally invalid, and it is an unusual feature of the law of contract that the court will strike down penalty clauses, whilst (usually) permitting other clauses which have been freely agreed between the parties even if those clause are unduly harsh.

 

22.4.3 It is sometimes a matter of some difficulty to determine whether liquidated damages clauses are, in the particular circumstances of the case, penalties or liquidated damages, but the principles applied by the courts are well established.

 

22.4.4 In the above noted case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited, Lord Dunedin set out a series of propositions in respect of Penalty clauses, which have often been cited and relied upon for the last 90 years. These propositions being:-

 

Even though the parties may use the word ‘penalty’ or ‘liquidated damages’ in respect of a clause, it is for the Court to find out whether the payment stipulated is in truth penalty or liquidated damages.

The essence of a penalty is a payment of money stipulated as in terrorem of the offending party.

The essence of liquidated damages is a genuine covenanted pre-estimate of damage.

The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of making the contract, not as at the time of the breach.

To assist this task of construction various tests have been suggested, which if applicable to the case under consideration, may prove helpful, or even inclusive. Such tests being: -

 

(a) It will be held to be a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

(b) There is a presumption (but no more) that it is a penalty when, 'A single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.'

© It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimate damage was the true bargain between the parties.

22.5 Further recent guidance

22.5.1 Mr Justice Jackson in the recent case of Alfred McAlpine Capital Projects Limited v Tilebox Ltd* had to consider whether a clause was a penalty in a dispute between two commercial organisations. Having considered the relevant authorities, at paragraph 48 of his judgment he made the following four general observations pertinent to that case:-

 

* Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281 (TCC)

"There seem to be two strands in the authorities. In some cases judges consider whether there is an unconscionable or extravagant disproportion between the damages stipulated in the contract and the true amount of damages likely to be suffered. In other cases the courts consider whether the level of damages stipulated was reasonable. In my view, a pre-estimate of damages does not have to be right in order to be reasonable. There must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre-estimate is unreasonable.

Although many authorities use or echo the phrase "genuine pre-estimate", the test does not turn upon the genuineness or honesty of the party or parties who made the pre-estimate. The test is primarily an objective one, even though the court has some regard to the thought processes of the parties at the time of contracting.

Because the rule about penalties is an anomaly within the law of contract, the courts are predisposed, where possible, to uphold contractual terms which fix the level of damages for breach. This predisposition is even stronger in the case of commercial contracts freely entered into between parties of comparable bargaining power.

Looking at the bundle of authorities provided in this case, I note only four cases where the relevant clause has been struck down as a penalty…. In each of these cases there was, in fact, a very wide gulf between a) the level of the damages likely to be suffered, and b) the level of damages stipulated in the contract.”

22.5.2 Based upon the above, and the circumstances of that case, Mr Justice Jackson formed the view that the liquidated damages clause in question was not a penalty clause, and therefore would be enforced

 

22.5.3 This latest case appears to empathises that a court will be slow to interfere with a liquidated damages negotiated at arms length between two commercial parties. This was particularly relevant in this case, given that the liquidated damages provisions survived heavy negotiation. It further appears that the courts will not be persuaded by arguments that the actual loss suffered is less than the estimated damages, unless the discrepancy is so large that it demonstrates that the sum could not have been a genuine pre-estimate of the likely loss but was unreasonable.

22.6 Consumers

22.6.1 However, whether the courts would be slow to interfere and/or reach the same conclusions in respect of a liquidated damages clause unilaterally (not negotiated) inserted by a large commercial organisation into a contract with a consumer is unclear. It appears that this is a one relevant factor considered by the Australian Courts when examining this issue:

“[t]here is, in my view,, a qualitative difference of which the law is able to take into account between a clause freely negotiated between a major commercial organisation, in respect of a substantial contract, where the major commercial organisation have available and receive competent legal advice regarding the meaning, purpose and likely consequence of the clause, from a clause attacked in a contract of adhesion between a major organisation and a individual or small company who has, in reality, no opportunity to negotiate the contract”*

“[t]hat is not to say that the latter form of contract containing such a clause would be struck down; it is rather to recognise that, quite apart from whether the clause fails because it lacks a compensatory character, it may also fail because a being imposed in the circumstances rendering enforcement of the clause unconscionable. The degree of contractual freedom afforded to parties to determine a measure of damages departing from strict compensation will, in my view, be affected by those matters constituting aspects of the relationship …”

 

* Cole J in Multiplex Constructions Pty Ltd v. Abgarus Pty Ltd (1992) 33 NSWLR 504

 

22.6.2 From the above, it may be the background relationship between the contracting parties (i.e. their relative bargaining position and whether or not there was an opportunity to negotiate a term) could possibly be one of the factors considered by the courts in determining whether a sum is a penalty or not. However, this not clear and it may be that this is not considered by the courts at all. However, if it is, then it is likely that an individual consumer may be viewed more favourably by the courts than a large company. Regrettably, the absence of any legal precedent established by case law for bank charges means that no definite conclusion can be reached.

 

[srfrench]

4th bit..........

 

 

22.6.3 However, in either event, irrespective of the parties standing (an individual or a company) arguments that the bank charge was not a reasonable estimate of the banks likely loss, but was far greater and disproportionate would still have to be considered.

23 Bank Charges

23.1 It is not disputed that a bank is entitled to damages (reimbursement of its direct actual costs) following a breach of contract by a customer, and it is entitled to include a liquidated damages clause to cover specified breach by its customers. A penalty is however unenforceable.

 

23.2 To decide whether a bank charge is a penalty or is liquidated damages the likely costs incurred by the bank needs to be examined to establish whether or not the banks charge represents a genuine attempt at pre-estimating its likely loss caused by the customer’s breach.

 

23.3 In a recent study undertaken in Australia* it was estimated that the cost of processing a dishonoured cheque by an Australian Bank was (generously) likely to be in the region of $3.00 to $6.00. A direct debit dishonour was estimated to be in the likely region of 54 cents. No data was published by the Australian banks to confirm or deny this. By reviewing the banks’ charges against the above figures, the study estimated that banks could be charging:

 

a. between 5 to 16 times what it costs them to process a cheque dishonour.

b. between 64 to 92 times what it costs them to process a direct debit dishonour.

 

*Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”

 

 

23.4 The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit dishonour fees (bank charges) were likely to be penalties at law.

 

23.5 Further in an American study* (also referred to in the above Australian study) it had been estimated that the American’s Banks’ cost to process a dishonoured cheque was between US$ 0.50 and US$1.50 (estimated actual cost being 11 to 32 times less than the bank’s actual charge). To process a dishonoured direct debit payment was between US$0.48 and US$0.65 (estimated actual cost therefore being 9 to 11 times less than the banks’ actual charge).

 

* 1998 American Study on cheque dishonour fees by the Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”.

 

23.6 Unfortunately I could find no similar research for the United Kingdom’s Banks. Further, as far as I am aware (perhaps for obvious reasons), the United Kingdom Banks do not publish any details to support how their bank charges are calculated, nor what their actual costs associated with such breaches are, nor what revenue they derive (after actual costs) from such bank charges.

 

23.7 Therefore, whilst regrettably I am unable to do anything other than speculate, given the findings reported in the American and Australian studies, and the use of computer automation, apparently similarly employed by the banks in the United Kingdom, it is difficult to reconcile how a bank can incur costs of £25 to £39 in the process of:

 

a. sending a computer generated letter if a customer exceeds authorised overdraft limit (even by a minor amount) to advise the customer of the breach and resultant charges, or

b. returning a dishonoured cheque plus notice to the customer, or

 

c. the non payment of a direct debit.

 

23.8 Such charges may therefore be found to be a "penalty" if the matter went to court. However, under the rule of law, the burden of showing that the clause is a penalty clause would rest with the person bringing the proceedings (i.e. the customer”).

 

23.9 However, I understand that in most instances the need to pursue such matters via proceedings is unnecessary. The banks often “waive” their charges following customer’s threats to “vote with their feet”. Another reason is that the vast majority of people are unaware of their legal position, or even if they are, and the banks do not “waive” their charges, they are naturally reluctant to incur the time, trouble and expense of embarking on legal proceedings for a relatively small amount.

24 Summary:

24.1 A penalty clause does not seek to compensate the innocent party for his actual loss, but rather it seeks penalise the defaulting party. Such clauses are not enforceable.

 

24.2 Whether a clause is a penalty clause is a question of construction of the contract, to be determined at the date of the contract, and not at the date of the breach.

 

24.3 A court is likely to uphold a liquidated damages clause to the extent that it is satisfied that, at the time of the contract, the specified sum was a reasonable estimate of the probable loss flowing from the breach that would be incurred by the innocent party.

 

24.4 The courts are likely to construe a term as a penalty where the predetermined sum to be paid is wholly disproportionate or extravagant, exorbitant or unconscionable in comparison with the probable loss suffered by the innocent party (at the time of the contract).

 

24.5 There could be a difference in the approach of the court between a claim brought by an individual consumer to that of a company, but this is unclear.

 

24.6 Whilst not analysed in any detail, bank charges do, prima facie, appear disproportionate and excessive.

24.7 If the matter progressed it may therefore be that bank charges would be found to be a penalty, and unenforceable, but this would depend on the circumstances of the case.

 

24.8 However as with all proceedings, this result cannot be guaranteed. These issues have never been tried and tested in a court of law, hence there is no legal authority established by precedent. Further, there is no data available from the United Kingdom banks in order to determine how the various bank charges have been calculated.

 

24.9 Individual customers are deterred from taking the matter to court because of the legal and other costs involved in dealing with relatively small individual amounts in dispute. The corollary to this being that if many thousands of individual cases were taken against the banks, the banks would suffer huge legal and other administrative costs in defending such claims. Anecdotal evidence shows that those people that do object to the banks’ charges frequently have the charges withdrawn as a “gesture of goodwill” – but perhaps, taking a more cynical view, the withdrawal of the charges may have more to do with the banks’ desire not to have the matter tested in court rather than anything to do with goodwill.

 

[srfrench]

5th bit............. anyone given up the will to live yet?

 

 

 

24.10 Finally where the bank account is a consumer contract, excessive bank charges (if found to be the case) may also be in breach of the Unfair Terms of the Consumer Contracts Regulations 1999. I also understand that the Office of Fair Trading Office has recently ruled that credit card charges of up to £25 for people who were late in making payments, or who exceeded credit limits, were unfairly heavy sums, and have recently also started to investigate the validity of bank charges to which they have already indicated recently that they are excessive and disproportionate. A recent Daily Mail news article dated 16th January put it rather plainly:

High Street banks are "mugging" their customers by imposing "illegal" charges, an MP has said.

Liberal Democrat social exclusion spokesman Matthew Taylor said charges on customers who go over their overdraft limits are a "major contributor to the debt crisis".

• Upping credit interest rates nets banks £624m

Mr. Taylor (Truro and St Austell) told MPs penalties imposed on customers for bounced cheques and declined direct debit payments netted the six main banks £4.5 billion last year.

He said in a Westminster Hall debate: "This is a major contributor to the UK debt crisis and to social exclusion.

"Most importantly of all, these bank penalty charges are more than inconvenient, more than unfair, they are illegal."

He said the charges, which were on average £30, could lead to a "spiral of debt" as penalties mounted up.

Mr. Taylor said: "The truth is, this is the banks using poverty as a source of profit."

He said the law only allowed banks to impose a penalty that allows them to cover the administrative costs of bounced cheques or the refusal of a direct debit payment.

Mr. Taylor said: "The absolute maximum it costs the bank in these cases is £4.50 for a bounced cheque.

"For all other items, the absolute maximum in this electronic age where it's all done automatically through computer is £2.50."

He said that any time people had refused to pay the charge and threatened to go to court the banks backed down.

Mr. Taylor said: "The only possible reason is that they know they will lose.

"If they lose a test case they know they will forfeit this multi-billion-pound source of illegal profit forever."

Mr. Taylor added: "They know it's an illegal rip-off of trusting and often impoverished customers.

 

 

25. Accordingly the Claimant claims:

a. The return of the amounts debited in respect of charges in the sum of £2157.76;

b. Court costs (court fee of £120.00, Allocation Questionnaire fee of £100.00).

c. Interest of £986.66 up to the 19th January 2007 under Section 69 of the County Courts Act, and interest at a daily rate of £0.48 thereafter until date of Judgment or payment.

d. Additional expenditure such as time and materials used at the Courts’ discretion.

Statement of Truth

I believe the facts stated within this Witness Statement to be true and comprises of 143 pages.

 

 

Dated this day of 19th January 2007

 

Signed

[srfrench]

Ok...... there it is....... just waiting for the comments now, and I'll bet they're negative ones?

[bish]

Good stuff and good to see an example of a real witness statement, I like to point newbies in the right direction and this is certainly good reading. Different courts take different angles on what they want people to provide, so the more on here the better. I have a second allocation hearing on 14/02/07 and have just found 2 others on the same hearing, so able to give them some advice regarding the hearing. Thanks for posting this and will buy you a few jars at the next CAG do.

 

Regards Bish.

[srfrench]

Aha...... will hold you too it Bud. Glad I could help and I'm still watching you. Best wishes......... see ya soon. And many thanks.

[Mad Nick]

S, thanks for doing that. I'm drafting mine. The following comments are aimed at helping me (how selfish is that !) ie they are partly questions about why you mentioned certain things :

• Like you, I started by including McAlpine v Tilebox but all it seems to do is show when a Court would (or in that case wouldn't) interfere in contract LDs. So I took it out. What do you think ?
  
• Cole J in Multiplex Constructions Pty Ltd v. Abgarus Pty Ltd (1992) 33 NSWLR 504. I haven't checked, but is this Australian ("NSW", "pty") ? Does it count as Common Law here ?
  
• You mention lots of Common Law examples which you don't then expand - I, too, did that but then decided I couldn't be bothered to read them all to check for hostages to fortune and have left them out (current draft). Just left Dunlop.
  
• I wouldn't bother with 24.5 and 24.7 to 24.9 - they look like cut/paste from guidance so they're a bit "discussive" ie "it could be this, but it could be that". If you use them, then keep the bit that makes your point and remove the "but" clauses
  
• You mention UCTA77 and SOGA82 but don't expand. I had exactly the same problem - I read both and couldn't see how to use them (ie which para) so I've left them out.

Anyone else - feel free to chip in with answers.

 

Regards, Mad Nick.

[srfrench]

Many thanks for the once over Nick..... and your comments duly noted.

 

A quick point however, while you are right, the case of McAlpine v. Tilebox I left in because it's clearly stating a contract between 2 companies of equal bargaining power. The flip to this that would be demonstrated is that the 2 parties in my case consists of 1 powerful and 1 weak party with no negotiating input. Therefore as a non-negotiable contarctit is deemed unfair and thus falls into the realm of the UTCCR whereby the the contarct will side with the weaker party.

 

I too felt like excluding a number of paragraphs, but the more I read them the more I could formulate an argument to support my own case in it's entirity.

 

So really its entirely up to the individuals to include or to omit with whatever they feel comfortable with. With Nicks input as cut down as it was makes perfect sense for those not entirely 100% behind the complexities of their case. Thanks Nick once again for your input to assist all of the other potential claimants.

[bish]

Hi srfrench

 

Had a bit more time to go over it and is good stuff, You probably could cut down on some of it, but what the hell, give the judge someting worthwhile to read. At this point in time the only thing that jumps out is the Australian and American examples. It may be worth cutting down on those examples and adding the findings of the money box program findings of the three experts they commissioned to investigate bank charges. Although perhaps not of the clout of the Ausie or yank examples, their findings pretty well back up what is said regarding them.

 

Regards bish.

[srfrench]

Ohhhhhhh....................... BUM!

 

BIG development today and I'm none too happy!

[Lula]

there should be a law about people posting stuff like this and then not telling us what has happened!!

[Mad Nick]

Frenchy, Come on, spill the beans. Regards, Mad Nick

[Lula]

he's probably out celebrating

[srfrench]

Right then, now that I've got over my depression.........

 

2 days after they received my Court Bundle I received a letter from shAbbey, and I quote verbatim;

 

Dear Sir

 

We note this claim is listed for Hearing on 26 February 2007

 

We have now conducted a complete reconciliation of your account and in view of the quantum of your claim and the cost to Abbey of arranging its defence and representation at the Court the decision has been made, without admission of any liability, to settle your claim in full.

 

Payment will be made in the sum of £3394.24 calculated as follows:

 

Calculations.......

 

Abbey is raising a cheque that will be paid into your account (if open) or posted to you. Payment is made in full and final settlementof your claim.

 

We will now inform the Court that Abbey is settling your claim in full and asking the Court to withdraw the claim from the Hearing List. Once you have received payment, would you please inform the Court that you withdraw your claim and provide us with a copy of your letter.

 

 

Signed by Mr/Mrs/Ms. Squiggle (with a hiccup!)

 

 

 

 

So....... I phoned up Inga yesterday @ 4PM to state that the claim has not been settled in full as I have additional costs to take into effect, such as postage, paper and preparation time spent on the Court BUndle. We negotiated briefly and nicely as we put the prep time to @ 10 hours and eventually we came up to an agreeable figure of £111.13

 

Inga also stated that my name sounded familiar (oooooo eck!) and she had just seen a cheque with my name on it for the settlement claim (phew!) and will post out the second cheque with the additional costs amount on it straight away. I said I wont withdraw my claim until I receive the main amount as cleared funds to my account and a letter in the meantime whilst you are arranging the second cheque confirming the intended payment of the additional.

 

So...... there we have it, Abbey have now proven to be incapable of defending the 6 year limitations Act as the huge part of my claim goes back to 96-98. There's only @ £400 max on the claim that is in 2006!!!

 

Take heart all those peeps out there....... hold your own, they fold!

 

Right where#s that Hamster.............

[Weeksy59]

Right then, now that I've got over my depression.........

 

2 days after they received my Court Bundle I received a letter from shAbbey, and I quote verbatim;

 

Dear Sir

 

We note this claim is listed for Hearing on 26 February 2007

 

We have now conducted a complete reconciliation of your account and in view of the quantum of your claim and the cost to Abbey of arranging its defence and representation at the Court the decision has been made, without admission of any liability, to settle your claim in full.

 

Payment will be made in the sum of £3394.24 calculated as follows:

 

Calculations.......

 

Abbey is raising a cheque that will be paid into your account (if open) or posted to you. Payment is made in full and final settlementof your claim.

 

We will now inform the Court that Abbey is settling your claim in full and asking the Court to withdraw the claim from the Hearing List. Once you have received payment, would you please inform the Court that you withdraw your claim and provide us with a copy of your letter.

 

 

Signed by Mr/Mrs/Ms. Squiggle (with a hiccup!)

 

 

 

 

So....... I phoned up Inga yesterday @ 4PM to state that the claim has not been settled in full as I have additional costs to take into effect, such as postage, paper and preparation time spent on the Court BUndle. We negotiated briefly and nicely as we put the prep time to @ 10 hours and eventually we came up to an agreeable figure of £111.13

 

Inga also stated that my name sounded familiar (oooooo eck!) and she had just seen a cheque with my name on it for the settlement claim (phew!) and will post out the second cheque with the additional costs amount on it straight away. I said I wont withdraw my claim until I receive the main amount as cleared funds to my account and a letter in the meantime whilst you are arranging the second cheque confirming the intended payment of the additional.

 

So...... there we have it, Abbey have now proven to be incapable of defending the 6 year limitations Act as the huge part of my claim goes back to 96-98. There's only @ £400 max on the claim that is in 2006!!!

 

Take heart all those peeps out there....... hold your own, they fold!

 

Right where#s that Hamster.............

 

Good stuff... a nice little confidence boost for us lot who are a couple of steps behind you on the road....

 

thanks for that.

[Lula]

Congratulations Frenchy!!!!!!

[Jacqueline07]

Many congrats French - good to hear - I'm just about to start round 2 with Abbey for 1997 - 2001. Your story has pepped (is that a word:) ) me up a bit. First one with abbey was to pay off debt - the next one is purely for me (oh - and hubby, maybe)

 

Enjoy - Jackie

[bish]

Hi frenchy

 

Well done once again and I have received a very similar letter to yours this morning with full setllement, so that beer is definatly on, just need CAG to set the venue:D

 

Regards bish.