The Turning of the Worm

[Philip Hindley]

Received a letter this morning from Sabine Griffiths, saying that she would be unable to supply the additional information I had requested (my original contract and the direct debits that were wrongly cancelled) as:

 

"we are only obliged to store information for a certain period of time.

As a long standing customer, this information is regrettably not available any longer."

 

Presumably this will scupper any chance of my making a DPA request for a list of charges, going back much beyond six years.

 

I'll 'phone her on Monday to find out!

[Philip Hindley]

Sorry I've not been keeping everyone up to date, lately. Been a bit busy chasing Capital One ( successfully!), MBNA, Alliance & Leicester, etc. You know how it is!

 

Anyway, I eventually received the last six year's statements, which show I've been charged £3,719. No wonder I had to sell two of the kids for Medical Research!!

 

This amount does include approx £400 of "overdraft usage fees ".

 

I know some people see these as legitimate, but it puzzles me why, in my case, these can be varying amounts; eg, £5, £15, £20, £35, £40 and £70.

 

Am I being thick, and there's a simple explanation, or can I claim these back too.

 

I sent a 'Letter Before Action' to David Just at the end of April, and yesterday received his reply, in which he says he respects my opinion about their charges, but that I can sod off! ( Sorry about that. It must be the influence of some off the more beligerent subscribers to this forum.)

 

So, he's got another week or so until I start my claim with Moneyclaim.

 

I'll keep you all posted.

[Dappa44]

As far as im aware of course you can claim these back, i have claimed these on my letters.

 

Theyu cannot justify charging £60 for excess usage fees.

[Philip Hindley]

As far as im aware of course you can claim these back, i have claimed these on my letters.

 

Theyu cannot justify charging £60 for excess usage fees.

 

Hi Dappa!

 

Thanks for your comments.

 

Looking at other threads on the Lloyds TSB forum, the consensus of opinion seems to be that Overdraft EXCESS fees are reclaimable, but Overdraft USAGE fees are not.

 

In my case, the change in terminology from USAGE to EXCESS coincided with changing my account to a Select one.

 

For most people on the forum, the usage fees seem to have been at a fairly low ( eg £5) level and remained constant.

 

Mine, on the other hand, as detailed above, seem to have varied wildly between £5 and £70.

 

I don't want to be greedy, but I don't see why Lloyds TSB should be able to charge such a high fee when they are already making money from interest on the overdrawn balance.

 

At the same time I don't want to jeopardize the whole claim for the sake of £400 to which I am not entitled.

 

Any other observations or advice would be appreciated.

[Philip Hindley]

Update Time!

 

Started my moneyclaim against Lloyds/TSB on19th July, which was deemed to be served on 24th July.

 

Acknowledgement of service was filed by Sechiari Clark and Mitchell on 24th July, which gives them until 21st August to file a defence.

 

Meanwhile, on 1st August, £30 was taken out of my account as an "overdraft excess charge".

 

I telephoned the Indian call centre, but because I don't know my "secret 'phone banking number", and because I got one of the security questions wrong (Q. "What is your overdraft limit?" A. "I don't know, because it reduces every month, by arrangement."), they wouldn't speak to me.

 

By chance, I was in town this afternoon, so called into my branch and spoke to a "customer advisor".

 

He called up my details on his PC, but couldn't ascertain what the charge was for, only suggesting that, at some time, I must have exceeded my overdraft limit by more than £10.

 

I asked him how this was possible since I didn't have a cheque book or debit card.

 

He didn't know.

 

I then asked him, regardless of what the charge was for, when did he intend having it refunded to my account?

 

You would have thought I'd slapped him, so resounding was the silence! ( Customers behind me began to fidget.)

 

Since he was obviously stuck for an answer, I pointed out that penalty charges were unlawful and that I was in the process of suing Lloyds/TSB for almost £5000! (Other customers now started to take an interest.)

 

He said he would have to speak to his manager, and disappeared for a few minutes.

 

On his return he said that, in his manager's words, "if the charge was due to an error by the bank, then it would be refunded, otherwise, it would stand." He then had the temerity to tell me that charges were part of the T&C's I'd agreed when I opened the account.

 

I told him that the charge was indeed an error by the bank. They were mistaken in believing that they could steal money from customer's accounts with impunity!

I said that any contract which made provision for unlawful penalty charges, was, in itself, unlawful.

 

Finally, I asked him if his manager was a solicitor?

 

"No," he said, "he's a bank manager."

 

"That's why he doesn't know anything about the law then!" I told him.

 

As I left, I overheard this young man say to the next customer, "Can you give me a few minutes until I calm down?"

 

Shame...........

 

I can feel another letter to David Just coming on.

[Philip Hindley]

So........ The 21st August came, and went.

 

On the morning of the 22nd, Lloyds having done nothing, I asked the court for a judgement against them.

 

True to form, by the end of the day, Lloyds had filed their defence.

 

No doubt we'll now waste more of everybody's time, and the resources of the court, in the hope that I'll be fobbed off!

 

Their gall, childishness and the continued abuse of the legal system, beggars belief!

 

The fact that Lloyds are prepared to pay out more money in solicitors' charges, court costs and interest, whilst further alienating already disillusioned customers, clearly demonstrates the disdain with which they regard the very people who provide their income. Their arrogance and coception of customer service stinks!

 

But then, we've known that all along, haven't we?

[Philip Hindley]

Update!

 

Preston County Court sent me an Allocation Questionaire to fill in, which I duly completed and returned by the deadline.

 

I heard nothing until 17th October, when I received from the Court a ' General Form of Judgement or Order', which, on the Court's own initiative ordered that " unless the Defendant files an Allocation Questionnaire by 4pm on the 24th October 2006, the Defence is struck out".

 

I telephoned the Court on the 25th October and was told that their AQ had still not been filed.

 

Accordingly, I wrote to the Court asking for Lloyd's Defence to be struck out and Judgement made in my favour.

 

On telephoning the Court, a week later, I was told that the AQ had arrived on the 30th October and that the file, together with my letter requesting judgement was awaiting a decision from a Judge

 

Having 'phoned several times in the ensuing three weeks, I was eventually informed, today, that a date for a hearing had been set for 29th MARCH 2007!!!

 

How SCM can get away with continually ignoring deadlines set by the Court, baffles and disappoints me. The whole process seems to reinforce their tactics of delay and frustration.

 

Needless to say, I still have not heard a word from SCM, either in terms of an Allocation Questionnaire or any attempt at negotiation.

 

The only consolation is that if things continue through to a hearing, they will cost Lloyds another 4 months worth of interest at 81p per day!

[freebird]

OMG Philip get on their case asap.....have a look at my thread, I went about faxing them in the last couple of weeks , following it up with phone calls a couple of times a week.......

 

fax them asap and tell them what you are prepared to accept on your terms.

good luck mate

[Philip Hindley]

OMG Philip get on their case asap.....have a look at my thread, I went about faxing them in the last couple of weeks , following it up with phone calls a couple of times a week.......

 

fax them asap and tell them what you are prepared to accept on your terms.

good luck mate

 

Thanks Freebird for the advice ('though you might have warned me how long your thread was!!)

 

As you can see, I began chasing Lloyds for a refund back in February, and, having had success with MBNA, Capital One and Alliance & Leicester, I'm still waiting for them to stop playing games and respond honourably.

 

I haven't received the notification from the Court yet re. the date of the hearing (other than verbally on the 'phone), so I'll probably wait to see what it says before taking any further action.

 

So far, I have had no contact at all from SCM other than the defence they submitted to the Court, but will probably take your advice and write to them.

 

I don't trust myself to remain dispassionate if I were to telephone them, but, after all, a letter is hardly likely to slow things down any more than has already been done, with the Court's unintentional (I hope!) cooperation.

 

Thanks, once again for your interest and inspiration.

 

I'll let you know how I get on.

[GaryH]

Hi Phillip,

 

Looks like their messing you around more than most, which is really saying something! The same sort of thing happened with their AQ in my case, they were 2 weeks late to file it. Unfortuntely they seem to get away with it time and time again, which is quite worrying actually.

 

I notice your court date is set for March. This does'nt automatically mean that they are under no pressure to settle for months. The very latest Lloyds will ever pay up is at the deadline for exchanging documents. They've never actually submitted a court bundle and upon the approaching deadline, when pressed for it they always say the settlement letter is in the post. This means the time in which you get your settlement will basically depend on the date the judge sets for the defendant to submit their documents. If the standard directions are ordered, that will mean the exchange won't take place untill 14 days before the hearing, which is obviously not much good to you. If its not two late, I'd get on to the court and request that whatever directions are ordered, that the document exchange take place within the next 28 days. Explain the pattern of cases settled so far and that you feel that the case would be disposed of quickly if the exchange date were set sooner. You should probably put this in writing, addressed to the court manager but request that it be placed before the judge in your case. This will also give you an opportunity to bring Lloyds' abusive stratigies to the judges attention. Don't actually directly accuse them of anything, just state some of the facts and make inferences, both regarding their intransigence in your case and the pattern of cases as a whole.

 

If you decide to do this, send a copy to SC&M too.

 

Good luck!

[Philip Hindley]

Thanks Gary,

 

As always, excellent and practical advice!

 

I'll make writing a letter to the Court, along the lines you've suggested, the main job for the weekend.

 

cheers!

[Philip Hindley]

Received written confirmation from the Court on Wednesday, that my claim has been allocated to the small claims track, with the Hearing to be on 29th March 2007.

 

The Judge (as predicted by Gary) has ordered production of all documents no later than 14 days before the hearing.

 

Using Gary's advice and the examples posted by Bankfodder and Mccuth, I've cobbled together the following:

 

Dear Sir/Madam

Philip Hindley v Lloyds TSB Bank PLC – claim number xxxxxxxx

I am in receipt of the Court’s Notice of Allocation to the Small Claims Track (Hearing), dated 25th November 2006.

I note that the hearing of the claim will not take place until 10:00 a.m. on the 29th March 2007, and, as a consequence, I would respectfully ask that the following submission be brought to the attention of the District Judge.

Human rights

I issued my claim against the Defendant Bank on the 19th July 2006. During the proceeding five months, I had made repeated requests for them to consider the merits of my claim against them. These requests were met with a flat refusal.

Subsequently, neither the Bank, nor their Solicitors have made any attempt to negotiate a settlement with me.

By delaying submitting a Defence until the last possible moment, and by ignoring deadlines for the submission of an Allocation Questionnaire, I respectfully submit, that the Defendant’s solicitors are treating me, and the Court with contempt.

The further delay in hearing my claim interferes with my rights under the European Convention on Human Rights (“the Convention”) directly and as enacted in the Human Rights Act 1998.

 

Art.6 1. of the Convention provides that “In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”. It is submitted that a further delay of 4 months is not reasonable.

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to these cases. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

Lloyds TSB Bank PLC

The Defendant in case xxxxxxx, Lloyds TSB Bank PLC (“Lloyds”), has already settled at least 29 similar cases. A list of these 29 cases, where Lloyds was the Defendant, is attached (Appendix 1). In most of these cases, Lloyds actually filed a defence to the case and returned their Allocation Questionnaire, obliging the Claimant to do the same. However, in every one of these cases, Lloyds settled the matter before any hearing.

 

In 2004 the head of personal banking of Lloyds, Peter MacNamara, stated in a Radio 4 interview that Lloyds makes big profits from its default charges and that this money was being used to fund free banking for its customers. The Claimant can supply a copy of this recording if the Court wishes.

 

Other cases

It is true that there are currently many other cases, which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that, so far, the vast majority has been settled before any hearing, with only a handful proceeding as far as a hearing.

 

Attached to this letter is a sample list of 286 cases, complete with County Court reference numbers (Appendix 2), of which the Claimant is aware and which have been issued since January 2006. All of these cases have been settled before a full hearing. Many of these cases even received a default judgment against the Defendant banks in question, which has then been set-aside on application by that bank and which has further been settled by that bank rather than go to court.

 

In two cases the Court has even ordered standard disclosure against Defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that this case is most unlikely to go to a hearing and that it will be settled out of court. It is further submitted that the Defendants have no intention of going to a hearing.

 

It is submitted that the pattern of cases settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right. Any further delay is supportive of the banks’ litigation strategy - which is to take the Claimant to the door of the court and then to settle the case.

 

It is submitted that this is abusive of the justice system and of the public resource.

The Status Quo

The delay does not maintain the Status Quo. As submitted above, a delay favors the bank by preventing the Claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks’ activities which the Claimant submits are unlawful.

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks have so far settled every one of the 286 example cases in Appendix 2, and it is clear that it is their abusive litigation strategy, which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the Defendants have declined to allow the issue to be decided in court.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) gives the power to the Office of Fair Trading (“the OFT”) to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

 

The OFT conducted a 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks. The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so

 

Additional orders

I respectfully request that the Defendants be ordered to make standard disclosure, and that all documents needed for the hearing should be delivered to the Court and every other party, within twenty eight days.

 

It is submitted these orders will assist greatly in bringing this case to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges.

 

I remain,

 

Yours sincerely,

I've sent this today, together with a copy to our friends SCM, and whilst I don't expect a positive response from the Court, I hope it may provoke SCM to, at least, begin negotiations.

[Philip Hindley]

Received my first communication from SC&M, on Friday.

 

Contained the usual utterances about my claim having no foundation because there had been no breach of contract, and that the fees were for services in paying, or refusing to pay, overlimit amounts.

 

However, to save costs, which, whoever wins, could be greater than the amount at issue, they were prepared to offer to settle my claim.

 

Unfortunately the amount that they were prepared to offer was approx 12.5% less than the full value of my claim.

 

Accordingly, and with grateful thanks to Gary, from whose previous threads I have borrowed shamelessly, I intend to send them the following:

 

 

Philip Hindley v Lloyds TSB Bank PLC – claim number xxxxxxxx

 

Thank you for your letter, dated 5th December, the contents of which I have noted, in particular your defence, that the charges, arbitrarily imposed by the Bank were “fees” for services rendered, and not penalties imposed for breach of contract, as I have submitted to the Court.

 

You mention the Contract between the Bank and Myself, and in so doing, imply that this contract should have made me aware of the “fees” (penalties) that the Bank charged for their “services” (breaches of contract).

 

On the 6th March 2006, I made a Subject Access Request, under the Data Protection Act 1998, in which I specifically requested a copy of the aforementioned contract.

This has not been forthcoming. I was, in fact, informed that, since I had been a customer for some twenty-three years, the original contract had been destroyed.

 

If you have had sight of this original contract, signed by me, in which I have agreed to the Bank’s regime of unfair fees and penalties, then I would appreciate your letting me have a copy, as a matter of courtesy.

I believe that it is a high possibility that the terms and conditions of my account contract explicitly describe the fee’s, as to be applied in instances of breaching those terms. I am aware that this is true of the contracts of other Lloyds TSB customers.

 

I refute your argument with regard to the Bank’s interpretation of its charges, in its entirety.

 

The Bank contends that the charges levied are legitimate fixed price contractual services, which are therefore not required to be a pre-estimate of loss incurred on my part.

I would submit that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

I believe a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. I believe it to be inconceivable that the charges levied to my account by the Bank could be any form of ‘service’, rather than a penalty.

I am sure that you are aware of the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that the default charges at the current level were unfair within their interpretation of the UTCCR’s. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

Your letter also implies that, were I to ‘lose’ my claim in Court, my costs could “easily exceed the amount in issue”.

Again, as you should be aware, my claim has been allocated to the Small Claims Track and, since it is my intention to represent myself, my costs, should I lose, would be limited to £220.00, being the cost of filing my claim and the Allocation Questionnaire.

 

I remain supremely confident that the Court will find merit in my arguments, in which case even these minimal costs will become the responsibility of your client.

 

I look upon your inaccurate statement as yet another attempt to intimidate and coerce me into accepting your inadequate offer to settle my claim.

 

Whilst I appreciate your offer of the sum of £xxxx in settlement of my claim, I am happy to accept this as PARTIAL unconditional settlement only.

 

My full claim, as detailed in the accompanying list of Charges, is for £xxxxx, comprising a principal sum of £xxxx plus statutory interest of £xxxx (to date) plus Court costs of £220.00. Interest is accruing at a rate of £xxx per day.

 

With regard to the conditions contained within your letter and which you ask me to agree to:

 

1. I agree to the FULL amount of my claim being paid into my Select account

 

2. I agree the payment of the FULL amount will be in full and final settlement of this claim

 

3. If you and your clients are confident in the legitimacy of your defence, I see neither a legal necessity for a confidentiality clause, nor for any reason to request one. Confidentiality is a service, which I am prepared to offer, but this would be subject to a separate and negotiable fee.

 

4. I am happy to maintain my account with the Bank within the agreed terms, providing that those terms are not unlawful and unenforceable.

 

5. Should the Bank arbitrarily extract unlawful “fees” from my account, in future, then these will be contested with the same vigour.

 

Please let me know as soon as possible if your Clients are prepared to settle on these terms, so that I may either inform the Court of settlement, or otherwise continue preparing my documents for exchange,

 

 

 

 

Yours sincerely,

 

 

 

 

 

Philip Hindlley

 

 

 

 

I'll be sending a copy to the Court, as well, to incorporate into the file.

[GaryH]

Excellant job! Don't worry about borrowing stuff from my posts - thats what its there for, help yourself. Thats the great thing about this site, we're all learning together and share our knowledge and resources for the good of the common cause. Most of what I've posted has been picked up from various places on the site anyway at some stage or another.

 

I particularly like your response to the conditions, especially number three! Feels good, don't it?

[Philip Hindley]

Excellant job!

I particularly like your response to the conditions, especially number three! Feels good, don't it?

 

Thanks Gary,

 

You don't think I'm starting to sound like a Bank do you???

[dbmbawswlb]

Hi Philip

 

Just caught up with your thread today - some amazing letters you've sent!!

 

Good Luck

Martin

[Philip Hindley]

Thanks, Martin, although much of the credit for the "legalities' should go to GaryH, who I see is taking an interest in your thread. You're in good hands.

 

I haven't heard anything, as yet, from the Court about bringing forward the date for exchanging documents (don't really expect to!).

 

Since my Court date isn't until the 29th March, I was very surprised to receive an offer from SC&M much before then, even if it wasn't for the full amount.

 

Perhaps they want to get their desks clear before Christmas (not much chance of that, the rate new claims must be hitting them!).

 

In your case, they're possibly hoping the fee for the Allocation Questionnaire will put you off carrying on with your claim, and it may be that returning it might precipitate an offer.

 

I'll keep my fingers crossed

[matmondez]

Cross your fingers for me too Phil, i`m on same timeline as Martin.

Will keep an eye on your thread and good luck.

 

Matt

[Philip Hindley]

Cross your fingers for me too Phil, i`m on same timeline as Martin.

Will keep an eye on your thread and good luck.

 

Matt

 

Everything crossed, as requested, Matt!!

 

I see Gary is on your case too, so you've no need to worry.

 

I've always found that when you're waiting for something to come in the post it doesn't arrive until you've given up hope and forgotten about it.

 

Letters i didn't want, on the other hand, (bank charge letters, etc) turned up on a daily basis.

 

You've done everything you can, so it's best to just relax and forget about it.

 

I'm sure that, having returned your Allocation Questionnaire, you will get an offer soon.

 

Remember that whatever you get will be a bonus, which, had you not found this site, you wouldn't have had anyway!

 

What amazes me is that Lloyds/ TSB have any customers left!!

[Philip Hindley]

This topic was closed on 03/05/19.

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