Crimson Giant v Lloyds TSB

[crimson giant]

Hi. I issused a summons and after speaking to the court today I hear that the TSB are defending the case. I should be recieving more information in the post in a few days. Does this mean they want to go to court. If so what advice can you offer. I will post more details when I get the letter from the courts.

[crimson giant]

I got the court papers regarding TSB's defence through my letter box just after I sent in my first post. They seem to be picking holes in my summons. Would I be breaking any law by publishing the contents of the details of their counter claim, if not then I will post all the details of their defence so you can see what they are claiming and perhaps someone could give me some advice as to how to word the Counter Claim/Amended claim.

 

They do say that the charges are not unlawful or that they contravene any statute or regulation. But from what I've read on the subject, mostly on this site, they seem to be using a different set of rules from the rest of the world.

 

I've got to get the papers in by the 18th of November so help is needed.

 

 

Thanks

[caro]

I think we need more information. They will try and pick holes in your claim but that is par for the course. Are they definitely counterclaiming against you, and why do you think you need to amend the claim? I am not sure we need to see the whole defence, but just the main points would help. If they are counterclaiming, and this should be shown after the full defence, then what are the grounds for the counterclaim? We will try to help but need more info.

[GaryH]

Very much doubt its a counterclaim. The form in the response pack serves both purposes, defence or counterclaim, so you may just have mis-read it. As Caro said, we need more information.

 

The defence will be one of 2 things. If you filed on moneyclaim and did'nt send a schedule, they will say you have'nt adequetely particularised your claim and therefore you have "no reasonable grounds" to bring it. If you used the proper 'particulars of claim' from the templates library, this can be easily remedied by sending a schedule of charges with a short covering letter to the court and to Lloyds solicitors. If you did'nt use the proper 'Particulars of claim' template, we need to know what you did use.

 

Or, if the defence is the standard nine point "the charges are a fixed price contractual service" which "are not required to be a pre-estimate of the defendants loss", then don't worry, its what everyone gets. Check Reloads thread 'Lloyds TSB - the template response letters' to see if the defence you have is the standard one. If it is, you need do nothing - except fill in the AQ.

[crimson giant]

Their Defence.

 

1. The Defendent Llyds TSB Bank plc ( The Bank) is a Bank whose registered office is 25 Gresham Street, London, EC2V 7HN. It is admited that the Claiment has been a customer of the Bank at all the material times.

 

2.This Defence is served without predudice to the Defendant?s contention that the Statement of claim is insufficently particularise and is embarrasing. The Defendant reserves the right to plead further to the Statement of Claim once theyare sufficently particularised.

 

3.The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant and makes no allegations against the Defendant as to why the Defendant should be liable to the Claiment for the amount claimed.

 

4. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not identify the account in question that appears to form the subject matter of these proceedings and the Particulars of Claim are too vague. The Statement of Claim shows no reasonable grounds for bringing the claim.

 

5. The Claiment should, therefore, be ordered to file and sereve an amended claim to set out the basis in law and fact for his claim as there is no pleaded basis for the claim it'self. the Claimenet should give full Particulars of the Bank Account and the charge he is seeking to recover, identifying each charge, the date and amount of the charge and why the Claiment in each case he alleges it is a disproportionate penalty and thus unlawful.

 

6. The Defendant should then be given the opertunity to defend the proceedings further.

 

7. For the avoidance of doubt, by opening an account with the Bank, the customer enters into a commercial arrangment with the Bank for the provision of banking services. The Bank is entitled as part of that arrangment, to charge for those services. At opening a customer is provided with details of the Bank's charges, currently in a leaflet, a guide to our banking charges. By using the account, the customer acknowedges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, not withstanding that they are an expense to the Bank. Such services presenlty include, but are not limited to, providing:

- cheques

- bank statements

- the facility to make payments by direct debiti and standing order

- debit cards

- ATMs (cash machines)

8. By maintaining the account in credit, or withing any limit agreed with the Bank, the customer may avoid most if not all charges. If the customer fails to to ensure that there are sufficaint cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a paymeny to be made from the Bank's own funds. If the Bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accourdance with the terms of the contract. On page 1 of the leaflet, the Bank explains that there are normally no charges for everyday banking at Llyoyds TSB when you account is in credit. When you use an aggreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you to go overdrawn without an agreement or where you use special services, such as copy statments, we will make a charge. This guide explains how these chargs work, and when they will apply.

If you use a service that we have'nt listed, we'll tell you the cost of that service before you give us the go-ahead.

 

9. There is no breach of contract; the charge cannot therefore be a penalty, conseqently there is no requirment that the charge be a pre-estimate of the Bank's loss.

 

10. The customer is given advance warning of charges being imposed; statments show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following months statment. Customers are warned by letter when they go overdrawn or over their agreed limit without arrangemnet with the Bank. If the customer fails to remedy the position, and payment such as standing orders and direct debits are refused then again the customer is warned by letter.

 

11. The charges are fair and reasonable, and it is denied that they are unlawful.

 

12. The customer is notified of the charges in plain intelligible launguage at the conclusion of the contract, and on each monthly statment. The charge are terms which relate to the price payable by the customer for a service provided by the Bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts regulations 1999, are not subject to the assessment of fairness.

 

13. In the premises:

 

13.1 the charges are for banking services, and are not damages nor a penalty;

 

13.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;

 

13.3 it is denied that the charges are unlawful or contravine any statute or regulation.

 

14. The Claiment's claim is denied in it's entirety. It is further denied that the Claiment is entitled to the sum claimed or to any sum from the Bank.

 

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That's what is on their defence and counterclaim form. For the most part it looks like a template letter except for paras 2, 3 and 4.

 

I have got the N149 form to fill in now. Any advice on what to put would be most helpful, i.e. In the event that I did muck up the wording of the summons can I include bank account details and details of the charges again and the relevent regluations/laws that they are breaking.

 

Thanks for all your help

 

Crimson Giant

[GaryH]

Ok, now can you post up what you put for your 'Particulars of claim' please?

Was it as per the template on this site?

[crimson giant]

No. I pasted some details of my original letter to the bank. I did'nt use your template, thats where I may have gone wrong. I included my account number, all the bank charges including dates. The original letter was one of your template letters with my details added. And like an idiot I did not keep a copy of my claim. If I can I will include a proper breakdown of all charges and interest.

 

Thanks

[GaryH]

You will need to apply for an amendment. This will cost you a non-refundable fee of £35 I'm afraid. Fill out this form http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf as follows:

 

Top left hand box:

 

1. Tick c), without a hearing

 

Leave the rest blank

 

Part A:

 

I ***** (the claimant)

 

(that....) allows an amendment to the above claim in respect of the claim particulars

 

(because....) the claimant did not adequately particularise his claim in that he did not specify the common law and statutory provisions that form the grounds for the claim being brought.

 

Part B:

 

tick 'evidance in part C' box

 

Part C:

 

Something like;

 

"I respectfully request that the court allows an amendment to my particulars of claim.

 

(brief explaination of why the amendment is needed, etc...............)

 

Please find attached to this application my proposed new particulars of claim, as well as a schedule of the amount claimed in respect of penalty charges levied by the defendant"

 

Then, print out the N1 particulars of claim from the templates library, set the page out like this:

 

YOUR NAME v LLOYDS BANK PLC

in the ******* COUNTY COURT

CLAIM NO: *******

 

PARTICULARS OF CLAIM

 

1. The Claimant [has] [had] an account 1 ("the Account") with the Defendant which was opened on or around 2 [and closed on or around 2 ]

 

2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) 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.

 

b) 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), the Unfair Contract Terms Act 1977 and the common law.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 3 and any interest charged thereon;

 

 

b) Court costs;

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

I believe that the contents of these particulars of claim are true

 

 

Signed:

 

 

Date:

 

Fill in the gaps, attach your spreadsheet and take 3 copies to the court, along with 3 copies of the completed N244 + the fee. Tell the court staff what has happened, apologise for their inconveniance, and ask that your current particulars of claim are disregarded and replaced by the new ones. It will have to go before a judge to ok the amendment, and you could possibily get called for an application hearing which is nothing to worry about.

 

Also, complete your AQ and take that to the court at the same time - you'll find guide notes in the templates library.

 

I would also strongly suggest that you read the step by step instructions and FAQ's (in my sig)