Moss v Yorkshire Bank ***WON***

[caro]

Take them for every last penny Moss. You know it can be done (I got my FULL payment today:D) so go for it.

[sllimk]

URGENT - HELP REQUIRED PLEASE

I've received notification that my case has been transferred from Northampton County Court to Kettering County Court and I have to complete an Allocation Questionnaire and hand it in by 31st January 2007. I'm a little unsure as to what to put in Section G - can anyone please point me to where I can copy the correct text to attach to Section G. I'm also unsure on Section E regarding expert reports - can these be obtained from this website? Help please - I'm getting confused.

[moss]

Sllimk, look in the templates library at allocation questionnaires a guide to completion by Jonni2bad, here's a link http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

Hope this helps if not shout up. How much notice did you get for your AQ

[sllimk]

moss - many thanks for your reply, I'm checking the link once I've posted this. I received the AQ together with the notification of transfer giving me around a fortnight to reply. However, I was away for a while and received the letter upon my return leaving me a just few days to comply - hence the panic.

[sllimk]

moss - the link is very good. However, forgive me for being thick but what sort of details or documents should I put in Section G other than "I believe the case will last no longer than 1 hour".

[sllimk]

moss - sorry to be a pain. I've copied and pasted the following into MS Word for printing and attaching to the AQ - is this correct?

 

Claim Number – 6QZ96613

N149/150 Allocation Questionnaire - Section G/H

The Claimant proposes the attached draft order for directions, for the courts due consideration. If ordered, the Claimant believes these directions will allow the overriding objective's to be furthered in that they will fully identify the most fundemental issues in dispute (as detailed below), and allow them to be assessed so that this claim may proceed justly and expediously.

 

- The crux upon which this claim rests is the true cost incurred by the Defendent as a result of the contractual breach from which its charges arise. If the Defendent cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the UTCCR 1999 and common law principles established since the early 1900's.

 

- In the event that the Defendents charges were accepted as being a fee for a service (which is denied), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that the claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

In the Kettering County Court

Claim number xxxxxxxx

 

 

 

Between

ME - Claimant

and

Clydesdale bank trading as Yorkshire Bank - Defendant

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[moss]

suspect that your AQ is a N149 and in Jonni2bads Example i think this is the bit you are looking for

"I am respectfully requesting that my claim be allocated to the small claims track. This issue is not a complicated one; it is an issue of fact and not of law. The issue is only whether the money levied by the Defendant in respect of its customer’s contractual breaches exceed their actual costs incurred. I am happy to pay their actual costs and I am surprised the Defendant did not counterclaim for these, because I would have paid them without argument.

 

However, the continuing problem is (in common with the 100s of other cases currently being brought by other bank customers) that the banks refuse to reveal the details of their penalty-charging regime. As the banks have a fiduciary duty towards their customers, they have a duty to deal straightforwardly and in utmost good faith.

 

Accordingly, I would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. I understand that it is in the courts discretion to do so. I believe this would bring a rapid end to this litigation."

There has been a proposed new approach fot the AQ which i used which you can gen up on with this link.

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html

[sllimk]

moss - looks like I'm missing your replies before I post. Can you please confirm if I need to put the text you've included above and also the text I've included above that or just one of them. I don't want to screw up on a technicality

[moss]

If you want to attach the draft order for directions you will need to omit the request for standard disclosure. It's well worth taking the time to thoroughly read through both links above, don't rush and get it right first time

[moss]

my AQ was a N150 so a bit different to yours but i did find everything in the links mentioned, if you get stuck i will have a look at the N149 I'm not an expert so please check things out for yourself as well

[sllimk]

moss - now I'm really confused. I've gathered that I need to attach the text I posted earlier to Section G. However, what exactly does this require me to do afterwards regarding -

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

AND

Is Section a & b (in this post) just my copies of my spreadsheet claim.

What does section C (in this post) mean

AND

where do I get the supporting copies for section D (in this post).

[moss]

After the AQ's have gone back, if/when the judge has agreed to the directions in the draft order you will then need to provide;

 

a) Your schedule;

 

b) Your statements showing the charges. Alternatively the list of charges which the bank provided under your S.A.R - (Subject Access Request);

 

c) A statement of evidence.

 

d) All the statutues and decided cases on which your claim relies. Ie, UTCCR's, UCTA's, SOGA, case law, etc. For this, I'd just submit the whole of the http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

I strongly advise that you read this thread http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html it is excellent and should give you an undrerstanding of what you need to do. I'm still working on my statement of evidence which is based on the on in this thread, post #55

[moss]

Sllimk, If you start your own thread you will get more help from other Peeps on here and we will be able to follow your progress better

[moss]

Hi all

I’ve just heard from the court after submitting my AQ with the new proposed draft order for directions, which I put up on post #48.

The judge has agreed to the order with a couple of changes, first instead of 14 days he has given me 28 days to send in my court bundle and then the bank a further 28 days to serve a response.

Then secondly section 2. (d) Of the draft order is deleted

2. (d) “If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable”.

Other than that it’s word for word. I also have a hearing date of 11th May.

My AQ was considered by the judge on the 7th Feb and I only got the order today so if 14 days had been agreed to I would have been busy as it is I have until 7th Mar and the bank 4th Apr. I’m a bit disappointed that 14 days wasn’t ordered because they still have two months to mess me about and I’m going to do my bundles but I bet they don’t do there’s.

How does the removal of 2. (d) From the order affect things, does it allow them to keep on with the “it’s a service” defence?

Regards Moss.

[caro]

I have a feeling it won't make much difference Moss. Does the defence allege that it is a pre-estimate, or have they put that it is in any of the letters to you. If so, then it probably isn't needed.

 

Have they always said it's a service or did it change to that somewhere along the process?

[moss]

Yes they did allege that the charges are a genuine pre estimate and they didn't mention service charge until i got the defence. By the way did you get the copy of my defence. Also they said in there AQ that two days would be needed and the judge has allowed 1 hr.

Another interesting letter from my branch stated "Terms and Conditions of the account are issued at the time of opening the account and as such there is not an Account Contract" i then asked for an original copy of the Terms and conditions but have only got an up to date copy.

 

Moss

[caro]

I think I did get it thanks Moss, but will check.

 

It would be interesting to see how they can say what the T&C's actually said at the time if they can't produce a copy.

[moss]

I've just read the order from the court again and the bank don't have 56 days from the service of the order to submit there bundle but 28 days after i have sent in mine, so that's cheered me up and I'm on with getting two bundles together.

Caro i did wonder if they had a copy of the original T&C's, i spoke to a nice woman at my branch ( Jayne) several times and got the impression they don't have any old copies there wasn't one in my original paper work, i did get a copy of my Index card that i signed when opening my account and Jayne at the bank said there was nothing else signed by me.

[caro]

When I got the order from the court in my case, it asked the bank to include in their bundle a copy of the T&C they would be relying on in court. It seems to me, that if the defence relies on them, and they don't have them, it blows the defence out of the water.

 

It's academic really, because as far as I know they have settled before ever submitting a bundle, or statements from their 2 mystery witnesses. Trouble is, you need to carry on as if the case will continue.

[moss]

Well I've done my court bundles as directed by the judge ( poor old printer didn't know what had hit it ) i posted one to YB and took one into the court, so now i hope it's the final count down, 28 days and counting. I can't see them submitting a court bundle because it does say on the order that if they don't agree that their charges are a penalty they must state why not and if it is alleged to be a pre-estimate of the defendants loss ( which they did state in their defence ) they must show all facts and matters that show the charges are a proper estimate of their loss. So it looks like Moss has got YB in a corner.

[caro]

Looking forward to see what happens moss. Good work.

[moss]

Well YB's 28 days are up today and no court bundle, so I'll ring the court tomorrow and take it from there.

 

Moss

[caro]

Well done Moss.

 

Please read my sig re Whistleblower programme. It may be of interest to you.

[moss]

Caro I've watched the whistleblower programme, which wasn't suprising but shocking just the same, they are worse than i thought, they couldn't give a Sh&t about any of us. So now we know that YB's actual cost of processing our breaches is no more than £2.00 I'm thinking that i will apply for judgment tomorrow and if they manage to get a set aside and send me a court bundle i will update my claim then as i still have over 6 weeks to the hearing, What do you think.

[caro]

According to the programme that would appear to be the case. Can you give us a little time to respond please Moss. I think you may get more info available in the next few days and further advice. Can you bear with us. I think it might be an idea to hang fire with getting the judgment and PERHAPS(???) amend your claim, depending on what transpires.