Me V Swift

[gooner73]

As my case against swift is for £7000 I have never requested this to be handled in the Small Claims Track. It was allocated to Fast Track, so I will be interested to hear what excuse Swift come up with once I submit my part 18.

[mrsfoot]

When is your trial set for Gooner?

 

Quick update

 

Received letter from Sol today. They sem very happy with the Judges decision not to give me further disclosure, and quote form his decision. However i find it very strange that they have received the order and sent a letter to me before i have even received the letter from the court and i only live 5 miles from court they are 200 lol

 

They also quote from Barry Pauls case and basically "explain" that they have already won a case and no doubt wil in this one. They are offering me to withdraw with no costs. Thats so very kind of them dont you think??

Lots of other stuff in the letter, although before i can talk about it i need to get advice from others first.

[alanfromderby]

I have to admit that I am totally perplexed by this case. I would not consider that a claim for more than £3.5k could be regarded as small. Whilst it is a possible argument that the information requested would require some effort and expense, it is absolutely key to your claim.

 

My only conclusion would be that the judge is trying to force this claim into court, for whtever reason. I might be wrong with that view, but it seems to go totally against the overriding objectives to effectively force the questions to be asked in court - rather than through a process that is specifically designed to reduce the length of, or indeed the need for, a trial.

[mrsfoot]

Quick question:

 

I have to let sols know if i want to contiue with the claijm by 5 today. I will be sying yes i do, but there is a query. They have used Barry Pauls case as a tactic, and telling me they won this case (inc names case No and judge) and that they will win this one. I feel this is just bullying as Barry Paul said the judge had said his case was not to be used as evidence. Should i mention this in my reply?

[Bona]

I think you should ask Barry Paul to do a witness statement saying just that and produce it in evidence saying that they are abusing the court procedure by using these tactics and that Judge must have had a reason and your judge is not being told the whole story

[gooner73]

Hi Mrs Foot.

 

I don't have a trial date yet. I have a case management telephone conference set for 16/04/07.

I have just posted on my thread for further advice regarding this.

[Bona]

Originally Posted by mrsfoot

Thanks Alan.

 

Got advice re the Solicitors Act and requesting litigation bills and because it was defendants who employed the solicitors and then charged my account for them I am not entitled to see the bill / ask for certification. But thanks anyway Bona, it was worth a try.

This is what I have been looking for

a claim under section 71(1) of the Act, by a person other than the party chargeable with the bill, for detailed assessment; I think this entitles you to see their bills

[mrsfoot]

Hi all

 

Quick update. Had email form sols they want me to call them to agree a case summary and other details. What is it they actually want from me?? Any suggestions gratefully accepted

[mrsfoot]

Here is a draft of my case summary, appreciate any pointers!!!

 

The Claimant requested information the Defendant held using a Data Protections Act Subject Access Request. The claimant highlighted fees charged to the account. As the fees seemed excessive and punitive in nature the Claimant used the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR) and found they were unenforceable in English common law.

The Defendant maintains the charges are not unlawful rather they are a genuine pre estimate of their losses due to the breaches on the contract.

Referring to UTCCR sch2 1 (e) “where a term may be unfair if the effect requires any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” clauses in the contract between the Claimant and Defendant are therefore unenforceable. These clauses require the consumer (Claimant) to pay a disproportionate amount to the Defendant for breaches. All fees charged can be seen on the schedule of charges in this bundle.

Referring to Office Fair Trading “Calculating Fair Charges in Credit Card Contracts April 2006”

3.1 An unfair standard term is not binding on the consumer. A term is considered unfair under the UTCCR’s if:

“contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”

3.2 The requirement of “good faith” reflects the principle of fair and open dealing with consumers. It does not simply mean that terms must not be used deceitfully

3.3 Schedule 2 to the UTCCR’s illustrates possible respects in which a term may be unfair to the consumer by means of a ‘grey list’ of possible kinds of unfairness. Of particular relevance to default charges is paragraph 1 (e) of Schedule 2, specifying that terms that have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. Therefore being charged £35 - £100 for a standard letter is unfair and therefore unlawful in accordance with UTCCR’s.

In the same report OFT also state:

1.19 ”In our view the basic principles set out here also apply to other analogous default charges in consumer contracts, for example agreements for bank overdrafts, mortgages and store card agreements”

During the correspondence the Defendant offered to reduce a default payment and sent this to the Claimant. Also sent was a refund of solicitor’s fee. This was added to the account contrary to the order of Deputy District Judge Mahy of Chester County Court, who order “the fees for today’s hearing must not be added to the security”

There have been numerous attempts on behalf of the Claimant to settle this case without the need for a hearing; however the Defendant has preferred to continue the case.

It is the claimants belief that the Defendant has acted in an unlawful manner when applying disproportionately high sums to the account when a breach occurred and respectfully seeks from the court a judgement that the charges are in fact unlawful, the return of the charges paid, interest pursuant to s.69 County Court Act and costs in accordance to CPR 48.

[mrsfoot]

Just little update...court date tomorrow is still on so here we go! No order for bundle from me to court or defence but have done anyway so we all on an equal footing....some mind games from defence but thanks to Hag they have not been successful in making me feel intimidated!

 

Will update thread as soon as i can tomorrow

[mrsfoot]

This is what I have been looking for [/i]

a claim under section 71(1) of the Act, by a person other than the party chargeable with the bill, for detailed assessment; I think this entitles you to see their bills

 

Hi Bona

 

Just a little note, the Act you refer to is from the Irish Statute book SOLICITORS (AMENDMENT) ACT, 1994 SECTION 71 according to the web and i dont think they are applicable in this case, but thank you anyway and i would be interested in finding out how you get on using it.

 

Good luck

[kennyh]

Be lucky MrsF!!

[Bona]

It is the Act that the judge in the High Court used ?

[alanfromderby]

issue 57 - October/November 2006

 

Worth looking at this document from the Chief Ombudsman regarding the bank disclosing its costs. In particular the penultimate paragraph contains these words:

 

"But for certain charges, the law on contract variations and penalties demands a reasonable relation between cost and price, and requires those who seek to justify the price to produce evidence of their actual costs."

[zootscoot]

Good luck Mrs Foot!

[mrsfoot]

Thanks all

 

thanks Alan, i have that article ready. Even if i do say so myself, my closing summary is FAB and have included it in that.

 

All i can say is im hopeful but not over confident, as its very easy to get carried away, however a nice point to bear in mind is the defence have NOT dislcosed any case / law / regs even though they have quoted plenty in their skeleton argument, so when they start quoting im going to be rejecting on the base it was not dislcosed to me in accordance with the order so all they have disclosed are the correspondance from the start of the claim and the mortgage application stuff whe we took the loan out.

 

will update as soon as possible

[mrsfoot]

Update

 

Arrived in court early and waited for the defence to arrive. 20 mins early the DJ called us into his oofice for a pre trial meet. there were his comments:

 

1. DJ felt embarassed that the laim had not been settled before today and had resulted in this court hearing

2. DJ has had 200-300 similar cases with banks for charges of a "penal inclination" (his words not mine) and none had ended with a trial

3. DJ felt it needed to be adjourned on the rounds that he was not up to date with the case law stated in the claim. He felt this would disadvantage both parties. Barrister stated at this point he felt the claim would take "no more than 2 hours to decide"

4. DJ suggested to both parties the claim be transferred to multi track. He also suggested a commercial judge would be better to hear it and suggested a Judge Chambers QC who sits in Chester to take the case. He then asked for some time to decide the course of action and to make some calls.

On return the DJ asked me was it ok to take direction from the barrister and he would relay anything that i wasnt ok with and only make it a direction once i fully understood. The following happened:

1. The Defence asked for the claim to be struck out on the grounds the MrFoot was not a party. They stated as we were both liable for the debt we were both entitled to any sum of money arising from it. As MrFoot hd not been on any claim they felt this was not correct. DJ looked directly at me and OH and said "would MrFoot mind being a prty to the claim" to which he said no, i dont mind. The look on the barristers face as he had not been told by his team mrfoot was there as my mckenzie friend was priceless and so this failed.

2. The defence then stated they would prefer the claim to be heard in multi track on the grounds that it would mean a longer time to digest the info. I then said that I had suggested small claim and the D had requested fast track. I felt it was nfair for me not to have the safety barrier of fast track with regards to cost. The barrister than said it would be necessary to be multi so it could take the full day and a half. I argued he had said no more than 15 mins ago that this case would take no more than 2 hour and yet noe he wanted a day and a half (obviously he wanted multi so more costs). The Dj agreed and between the lines suggested the barrister had contradicted himself and that the case would stay in fast track in order for me to have some protection.

3. I explained i had asked for further info (report used in barry paul case) where their witness stated that this report showed there was no profit from swift advances with regards to the charges as the analysis they hhad completed showed a parity. I explained this had been refused. The DJ then said it seemed it was a very imprtant doc and that it should have been disclosed. I explained that the paul v swift case had relied heavily on it and in fact this was what BP lost the case on....they had the DJ summary in bundle. I stated it was used in the sworn witness statement as well as the defence. The DJ agreed that it should be disclosed....and was about to write the order when the Barrister was interrupted by solicitor and manager of swift. A little conference occurred and it was explained this report was not actually based on figures from swift advances but was from swift 1st. The Defence was not happy at all!

4. The barrister told the DJ that i was about to bring another case for ERC, (this was told when the DJ was mentioning wasting courts time) i went on to explain that at allocation it was made very clear that i would not be starting any action for ERC. again the barrister loked shocked and not impressed.

Result is the case is being transferred to commercial Judge in Chester and staying on fast track. the bundles are going to be merged (mine into theirs for simplicity) and I have to send to them the info i was relying on that they did not have. I will of course check the new file they send against the old bundle for any changes that may have occurred.

I am very happy with this....although i would have liked to bring this to a close. The date for the final hearing has not been decided. But i feel more confident now than before.

[Bona]

Well done lets hope they settle

[kennyh]

You weren't lucky, Mrs F - just b****y good. If I'm in the region when it hits Chester then I'd be proud to carry your bag.

[Guest Scarletrose]

Well Done Mrs Foot i am so pleased you stood your grounf hun xxxx

 

hugs scarlet

[alanfromderby]

Very well done, and I am sure they will be extremely unhappy with the thought of facing a commercial judge.

[mochamoo]

..

[gizmo111]

Well done Mrs F - enjy the bubbly tonight:)

[sues35]

Been readin you thread will interest, hoping to take on swift in the enxt few weeks for charges and erc. Hope the bubbly went down well, congrats on the small victory, heres to the war!

[kennyh]

"Congrats on the small victory...."; hope you feel the same after you've gone up against this lot.