Please Help review Reply to Lloyds Bank's Defence for mis-sold IPP

[Good-doer]

I am new to this Forum. Thanks for the great works you all do here. This is my first post.

 

 

I am helping my wife who made a claim against Lloyds Bank plc, for refund of mis-sold insurance protection products (IPP) premiums. She obtained judgement in March this year. But Lloyds applied to set it aside and filed a Defence. The amount claimed is £1,274.

 

 

We have drafted the Reply to Defence, which we have to submit on 17/08/15. But the Reply, (together with the Defence) need looking at or reviewed before we submit.

 

 

Please, I should be very grateful if someone or the administrators or moderators can send me your email so I can forward a copy of the documents for your review and return by Friday 14/082015.

 

 

Many thanks in advance.

Good-doer

[honeybee13]

Hello and welcome to CAG.

 

We don't normally advise by PM for various reasons. I expect the legal people will be along later and they will be able to tell you whether you email the documents or post them up with identifying details removed.

 

My best, HB

[Good-doer]

Ok thanks, Honeybee13. In the meantime, what is PM?

[Good-doer]

Thanks again, Honeybee13. I've got it. I now know what PM is. Cheers.

[BankFodder]

Please will you post the claim and the defence

[Good-doer]

Please find attached the claim and defence (pgs 3 & 4 are next).

Thanks. Good-doer

[Good-doer]

Hi BankFodder, thanks for your requests.

I have now attached all pages of the claim and defence. Looking forward for your thoughts on them soon. Thanks. Good-doer.

[honeybee13]

I'm sorry, I can't read those, they're too small. You may need to save them as pdf's so people can see them properly.

 

HB

[ibberty bibberty]

This recent Court of Appeal authority - Figurasin & Anor v Central Capital Ltd [2014] EWCA Civ 504, offers very good news for consumers and can be relied on as regards mis-selling of ppi by the creditors. Although consumers need to be aware that each case turns on its merits

You will need to review your own paperwork in respect of the finance advanced by the creditor in order to determine if the illustration for the loan makes any reference to ppi on it and whether the ppi is stated as optional.

It has been common knowledge for a while now that all consumers were mis-sold ppi on their loans, mortgages etc. etc. and that at the time of taking out the finance, consumers were not made aware that the ppi was optional and it was not made clear to the consumer that the premium paid for the policy, the ppi, was in fact being purchased by them under the Mortgage or Loan being advanced as further non-optional borrowing thereunder to realise and advance the payment thereof to the insurance company. Consumers were not aware that the policy generated the burden of additional borrowing upon them, as often the case is that the ppi has been concealed by being added onto the finance advanced and not set out in any illustration provided showing details of the advance.

Consumers were told that the ppi would provide protection and cover repayment of the loan in the event of ill-health etc., however, such statements made by the creditor or his representative were so made by them in the knowledge that they were not true, such act constitutes fraudulent misrepresentation.

In Derry v Peek UKHL [1889] 1, Lord Herschell defined fraudulent misrepresentation as a statement which is made either:

i) knowing it to be false,

ii) without belief in its truth, or

iii) recklessly, careless as to whether it be true or false

 

Nearly all creditors pass the ppi claim onto their ‘in-house’ legal department and they respond by stating that the ppi is time barred under the Limitations Act and that this provides them with a complete Defence against the ppi claim and that they consider the matter closed, however, this is simply not true as mis-selling ppi does in fact constitute a fraud and fraud in the inducement to enter the financial credit contract on the consumer

In nearly all ppi mis-selling cases, the creditor or his representatives’ business conduct constitutes a contravention of the Insurance Conduct of Business Rules (“ICOB”) in particular r.2.2.3(1) in relation to the mis-selling of the policy and as a consequence also gives rise to a cause of action by operation of s.150 (1) of the Financial Services and Markets Act 2000.

 

Further, the relevant part of s.32 of the Limitation Act 1980 provides:-

 

s.32 of the Limitation Act 1980.

Fraud, concealment and mistake

 

32 Postponement of limitation period in case of fraud, concealment or mistake.

(1) Subject to [F26subsection (3)][F26subsections (3) and (4A)] below, 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.

References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.

(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.

 

In this regard, as advised here earlier, you need to post up your Claim, the creditor’s Defence and any subsequent relevant documents in pdf, minus all your personal details. When we have had the chance to review the same, we will then have a full understanding of your case and its merits and be in a position to post up any further advice or help for you as regards your intended Reply to the Defence.

 

Site Team Member dx100uk can provide you with the details as to how to post up your documents here in pdf, send him a pm to request his help in this respect.

 

ibberty bibberty

[Good-doer]

Thanks ibberty bibberty. You've brought up some key points that are very crucial to the Reply. I will add them. I've scanned and attached the docs as requested. But it looks like they too small. I do not know how to send by PDF. I will send pm to dx100uk to get that done asap. Many thanks. Good-doer.

[dx100uk]

use the upload

put everything in a multipage word doc First after redacting each picture

then print as PDF

or save as PDF from the word file menu.

[Good-doer]

Hi dx100uk, thanks for your PDF info. I have now attached the docs in PDF. Although they are a bit faint, I hope you all enlarge the pages to be able to read them. pls remember the date to submit the Reply is this Monday coming, 17/08/15. Thanks to you all. Good-doer

[ibberty bibberty]

Thank you Good-doer

 

Have downloaded the pdf and will get back to you shortly.

 

ibberty bibberty

[ibberty bibberty]

OK, thanks Good-doer

 

The Defendant is complaining that he does not understand the case he has to defend against for want of service of particularised particulars of your claim. Therefore, he simply gives a bare denial of it and puts you to strict proof.

 

 

The Defendant complains (in his Defence at para.11 (v)) that you have not provided any documentary evidence to support your claim, however, at this stage in the proceedings, documentary evidence is not required as disclosure will come at a later stage and ordered by the Court in its directions given at the case management conference (CMC) stage in the matter. The directions will usually provide for Standard Disclosure pursuant to CPR r.31.10 and direct, amongst other things, the date upon which the parties are to disclose their documents on which they rely.

 

 

Can you scan in by pdf your intended Reply to the Defence that you have drafted so that I can read it in conjunction with the Defendants’ Defence please.

 

 

In relation to the Defendant saying that he reserves his right to file and serve an amended Defence against your Reply as it will set out further or better particulars of your claim, such right is not automatic and the Defendant will be required to seek permission from the Court under CPR Part 17 to make any amendments to his statement of case (his Defence). Unless the Court has already ordered you to file and serve particularised particulars of claim and made a provision for the Defendant to file and serve an amended Defence against the same, however, this does not appear to be the case in this matter, so Part 17 will apply.

 

 

As regards your Reply to the Defence, have a read of the following material as this will help you to particularise your statement of case in your Reply. The matters set out below are real and relate exclusively to my own ppi claim, (I have redacted all personal information) and demonstrate how to particularise your case; i.e.: facts, law, regulations, dates, where and who the representative was who mis-sold the ppi to you:

 

 

Particulars of Claim – EXAMPLE: AMEND TO SUIT YOUR OWN CASE

 

 

We believe that your representative at the meeting in our previous home on ______ for the Mortgage Application which was completed under his hand and signed by us in his presence therewith the policy application, mis-sold the ppi thereon to us on the same and in acting as agent for you, that you are liable for our claim pursuant to the principle in Lumley v Gye [1853] EWHC QB J73.

 

 

At no time during that said meeting, did your representative inform us or even make it clear to us that the _____________ premium paid for the policy, the ppi, was in fact being purchased by us under the Mortgage being advanced as further non-optional borrowing thereunder to realise and advance the payment thereof to the insurance company. We were not asked by your representative whether we wanted to pay in advance for the ppi and we were not made aware that this was the case and no reason(s) or any explanation were given by him for doing so at that time or at any point thereafter. Your representative told us that the policy was not optional and in the absence of it there would be no mortgage advanced to us by you. This business conduct of your representative financially constrained us to put the insurance company in funds by that advance payment without any reference to ourselves and thereby caused us to incur considerable financial loss for the sole purpose of providing a very lucrative financial benefit to a third party.

 

 

The policy term was for a 3 year period – _______________, the life benefit thereunder was ________ and the maximum benefit period was 12 months against a mortgage advance of _____ which, although not stated in the details of the mortgage breakdown, included the non-optional borrowing of ________ for the premium, plus higher percentage advance fee of ____ and administration fee of _______ bringing the total to _________ over a period of 24 years. Under the mortgage advanced we would have been paying the premium of ______ and interest thereon for a further 21 years on a policy that only had a 3 year life span, and which, during that life span was wholly insufficient insurance against said mortgage advanced and therefore of no benefit to us whatsoever.

 

 

We were not aware that the policy generated the burden of additional borrowing upon us and your first mortgage offer dated _________________ makes no reference to the policy or the sum of _______ further, your revised mortgage offer of _____________, which was subsequently accepted and completed by all parties, makes no reference to the policy or that the sum of _______ was in fact included into the mortgage advance in order to finance an advance payment of the premium to an insurance company. On the _______________ you sent a letter to us setting out the details of the ______ mortgage that was debited to our account and no reference is made therein to the ______ being added into the mortgage to cover the advance payment of the same to the insurance company for the policy. At no point did you provide us with a full mortgage breakdown and we believe that the only possible explanation for not doing so was to ensure that we were not aware that we had incurred additional non-optional borrowing of _________ plus interest thereon for the said policy.

 

 

We were also not made aware that the sum of _______________ was added into the mortgage, this sum being the solicitors costs which you arranged to complete the transaction thereof, which was hidden from plain sight under the heading “Higher Percentage Advance Fee” set out in your letter of __________, and that we would be repaying said _______ to you plus your interest of 6.24% thereon over a 24 year period thus causing us to incur costs of more than triple of the actual solicitors costs in the matter. In fact your letter of ____________setting out the details of the mortgage debited to our account clearly states “Solicitors Fee: 0.00” Had we been given knowledge of this during the mortgage application process we would have instructed our own solicitors for the legal administration involved to complete the mortgage.

 

 

Taking the above facts and figures into account, by means of conscious concealment and misleading information, under the mortgage advanced you intended to cause us the loss of ____________ (including your interest at 6.24%) for an insurance policy that was wholly insufficient and of no benefit to ourselves in relation to that mortgage and for solicitors’ service which, in accordance with the material set out in your letter of ___________, we were lead to believe that no solicitors fee was payable by us under the mortgage.

 

 

None of these facts were ever made known to us or ever explained to us by your representative at the meeting or by you at any time during the mortgage application process or after completion thereof.

 

 

We believe that your representatives’ business conduct was not honest and was misleading and unfair towards us at this time in this respect and that both he and you consciously suppressed and concealed relevant and important information from us as regards the ppi element of the Mortgage Application and the solicitors fees that were both included in the mortgage advanced and hidden therein from plain sight. Had he or you disclosed the same and explained the terms and conditions and their effect and the financial impact on us, we most certainly would not have pursued the Mortgage Application with you as the policy and solicitors fee were an extortionate non-optional condition and burden put on us.

 

 

Therefore, our claim put to you is not time barred and in this regard we refer you to the provisions of s.32 of the Limitation Act 1980 which clearly apply as regards our cause of action complained of, which has only recently become known to us as evidenced by the contents herein and by the material set out in our letter to you of ____________.

 

 

We further believe that your representatives’ business conduct constitutes a contravention of the Insurance Conduct of Business Rules (“ICOB”) in particular r.2.2.3(1) in relation to the said policy and as a consequence also gives rise to our cause of action complained of by operation of s.150 (1) of the Financial Services and Markets Act 2000.

 

 

In the light of the foregoing, the policy was clearly generated for the sole purpose of causing a loss to ourselves and providing a benefit and gain to another and was unequivocally mis-sold to us by you and should it become necessary to commence with civil proceedings against you for our claim, we rely on the above- stated legislation and the recent authority of Figurasin & Anor v Central Capital Ltd [2014] EWCA Civ 504 in this area of law, all of which support and hold in favour of our claim against you.

 

 

We believe that your representatives’ conduct and your conduct in this matter may have contravened further ICOB rules and possibly may have contravened a number of Business Standards rules under the Financial Conduct Authority & Mortgages and Home Finance: Conduct of Business sourcebook (“FCA MCOB”), we are taking further advice in this respect.

 

 

To resolve this dispute we require a full refund of the ___________ premium paid for the said policy and full refund of the interest you applied on the premium which was 6.24% each year for the term of the loan, refund of the monthly payments made on the premium including your charge of 6.24% interest and payment of statutory interest charged at 8% for each year of the term of the loan and compensation for the loss of the use of that money paid for the premium so that we are placed in the financial position that we would have been in had you not mis-sold the said policy to us

 

 

ibberty bibberty

[Good-doer]

Thanks ibberty bibberty. Indeed, you've demonstrated how to particularise the case. That's another answer you've provided.

 

 

How to particularise the Claim has been one main thing in the defence that we did not fully know what else the Defendant was looking for. Having read your example, I got it now. I may have to re-write the Reply, which is now about 17pages.

 

 

I am struggling to reduce the pages, not wanting to leave out key facts. Pls any idea about the maximum pages allowed in the county courts?

 

 

Thanks. Good-doer.

[ibberty bibberty]

Don't worry about the amount of pages to your Reply to the Defence as it can be anything from 1 page upwards.

 

Please post up your Draft Reply here in pdf for our perusal and comment and or amendment on the same. Thank you.

 

ibberty bibberty

[Good-doer]

Thanks ibberty bibberty.

I am thinking I will not be able to meet Monday's deadline if I want rewrite the whole Reply, post here, get a feedback and refine before I submit it on Monday. But if I can get the 'foundation' right, then the rest of the structures will fall in place.

 

 

So what I done is to post the Concise Statement of the Facts (CSF) here in PDF for your perusal, comments and amendments. If I can get the CSF right, then the details will just be a matter of adding the facts, which are almost there in the CSF. I hope these help.

 

 

Thanks to all in advance.

Good-doer.

[ibberty bibberty]

We further believe that your representatives’ business conduct constitutes a contravention of the Insurance Conduct of Business Rules (“ICOB”) in particular r.2.2.3(1) in relation to the said policy and as a consequence also gives rise to our cause of action complained of by operation of s.150 (1) of the Financial Services and Markets Act 2000.

 

You need to put the above material in your Reply to the Defence and also state that you rely on the authority Figurasin & Anor v Central Capital Ltd [2014] EWCA Civ 504 and will refer to the same at the trial for the full terms and effect of the same.

 

ibberty bibberty

[ibberty bibberty]

Under the Heading “CAUSES OF ACTION, THE ELEMENTS AND FACTS” in paragraph 2 of your Reply to the Defence; simply keep that paragraph and all sub-paragraphs the same and state “the Claimant will refer to the same at the trial for the full terms and effect of the same”

 

 

Further, state that: “the Claimant relies on the authority Figurasin & Anor v Central Capital Ltd [2014] EWCA Civ 504 on the point of law as to the mis-sold policy (“ppi”) and Plevin v Paragon Personal Finance Limited [2014] UKSC 61 on the point of law as to unfair relationship under s.140(a) of the CCA 1974 (as amended) and Derry v Peek UKHL [1889] 1, where Lord Herschell defined fraudulent misrepresentation as a statement which is made either:

 

 

i) knowing it to be false,

ii) without belief in its truth, or

iii) recklessly, careless as to whether it be true or false

 

 

 

Your skeleton argument will contain all these facts, law, authorities thereon which confirm your causes of action and the Defendant’s liability for the same.

 

 

Skeleton arguments are normally filed and served at least 3 days before the trial or hearing.

 

 

Change the title from “Concise Statement of Facts” to “Claimant’s Reply to the Defence”.

 

 

Ask the Defendant if he will accept service of the same by way of email or fax and ask the Court the same, and if they both consent to this request, file and serve your Reply to the Defence by email or fax on Monday 17 August 2015 BEFORE 4:00 pm. Failing this, arrange for same day courier to deliver your Reply to the Defence on the same.

 

 

Do you still have professional representation, if so, then that is great, or is your wife acting in person in these proceedings or are you intending to act for her as a Lay Representative? If so, your wife must make an application (N244) to the Court requesting its permission to allow you to represent her.

ibberty bibberty

[Good-doer]

Hi ibberty bibberty, many thanks. I have added the amendments, laws and authorities as you've suggested. Pls a few more final touches:

 

 

1) Is it ok that I can plead the unfair communication and false use of authority by the defendant at this stage, even though that was not on the Claim Form? Any specific laws or authorities?

 

 

2). The cause of action took place in January 2000. The FSMA 2000 came into force on 14/06/2000. Will that affect our pleading?

 

 

Finally, the Court will accept filing by email so that's very helpful. We will call the defendant on Monday if they will also accept email or fax. Initially the defendant was handling the case by their in-house paralegal staff or lawyers. But just 2 days ago, we've received a letter from a very well known law firm that they are now handling the case and will represent them in Court.

 

 

Well, that was a bit of a surprise to us. But we are not too scared. My wife and I will press on. I will be her Lay Representative in Court. Thank once again. I didn't know I have to make an application (N244). The last time she just wrote a letter and also made that as part of her Witness Statement. But as you've reminded us, we will get that done asap.

 

 

Regards, Good-doer.

[ibberty bibberty]

Thank you Good-doer.

 

 

As regards para.2 (above), in your Reply to the Defence, your wife has, amongst other things, pleaded:-

 

 

 

1.5. “Deliberate Concealment of Key Facts Involved in the Breach of Duty.

a) The Personal Key Features Schedule (page …of …). This document was concealed from the Claimant. It was left out and was not given to the Claimant during or after the sales meeting on ----/2000. Whilst the evidence that the capital

cost of £------ was predetermined by the Defendant and printed out a day before the meeting was in this document. It was concealed by the Defendant until 2010. The Claimant found this out just recently”.

 

 

 

The above material set out in your wife’s Reply to the Defence clearly confirms the date upon which her cause of action accrued, for the purposes of s.5 of the Limitation Act 1980, and s.32 of the 1980 Act confirms that the limitation period did not begin until on or around 2010 by reason of the creditor’s fraud/concealment of the issue she now complains of – the mis-sold ppi.

 

 

 

Therefore, the provisions of s.150(1) FSMA 2000 are applicable to your case in relation to your wife’s cause of action.

 

 

In relation to para.1 (above):-

 

 

The White Book Vol.1 commentary on rule 16.7 (which the Bible for all Civil Procedure Rules):-

 

“Rule 16.7 Reply to defence

16.7

(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.

(2) A claimant who—

(a) files a reply to a defence; but

(b) fails to deal with a matter raised in the defence,

shall be taken to require that matter to be proved.

(Part 22 requires a reply to be verified by a statement of truth.)

 

 

 

Where reply necessary

16.7.1 A reply is optional (see r.15.8). A claimant need not serve a reply unless they wish to allege facts in answer to the defence which were not included in their claim.

 

 

 

No implied admission of the defence

16.7.2 Unless the claimant makes an express admission, the defendant will be required to prove facts raised in their defence whether the claimant files a reply (r.16.7(2)) or does not file a reply (r.16.7(1)).

 

 

 

Reply must not contradict the claim

16.7.3 A reply must not contradict or be inconsistent with the claim; for example it must not bring in a new claim. If the claimant wishes to depart from the case set out in their claim they should seek to amend that claim rather than serve a reply (see generally para.10.2 of the Practice Direction supplementing Pt 16 (para.16PD.10)).

 

 

 

Serving a reply and defence to counterclaim

16.7.4 A claimant who wishes to rely on a reply must file it and serve copies on the other parties (r.15.8). A claimant who wishes to defend a counterclaim must file a defence and a copy of it must be served on every other party (see r.15.2, r.15.6 and r.20.2). Practice Directions provide that "the reply and defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply" (Practice Direction supplementing Pt 15, para.3.2 (see para.15PD.3) and Practice Direction supplementing Pt 20, para.6.2 (see para.20PD.6)). However they may be served as separate documents if the time limit for serving the defence to counterclaim is shorter than the time limit for the reply. (See further para.3.2A of the Practice Direction supplementing Pt 15, para.15PD.3 and para.15.8.3 above.

If the statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served (para.1.4 of the Practice Direction supplementing Pt 16, para.16PD.1 below)”. (End Quote)

 

 

 

In relation to the third paragraph (above), do not telephone the Defendant to request if he consents to service by electronic means – fax or email, instead send a brief email to his ‘big gun corporate solicitors’ (their email or fax details will be on their recent letter) and make this particular request to them and only by this method (seeing that time is against you right now). Email them first thing on Monday 17 August at 9:00 am.

 

 

 

Further, in your email to the ‘big gun solicitors’, inform them that your wife intends to make an application to allow you to represent her as a lay representative and if their client has any objection to this.

 

 

Can you please scan in a pdf doc of the recent letter you have received from the so-called ‘big gun solicitors’, minus all personal details of course.

 

 

It is perfectly normal and proper for ‘in-house’ solicitors to transfer conduct of the case to a third party because ‘in-house solicitors’ are considered, by the Courts, to be inappropriate to represent their employer and also because the ‘in-house solicitors’ will almost certainly, in the majority of cases, not hold the requisite higher rights of audience to give them standing to represent their employer in Court.

 

 

 

In relation to your wife’s intended application to allow lay representation (you) to act for her and present her case and make oral submissions to the Court, it is your wife (not you) who must make such application and clearly set out her reasons for this in her accompanying witness statement.

 

 

 

Such application can be made on the day of the case management conference (of which your wife must be present, unless she is house-bound by some ill health etc.etc) or can be made on the first day of the trial.

 

 

 

Any further questions, then just ask away.

 

 

 

Ibberty bibberty