lydia_42 vs Abbey *** WON ***

[Yorkyclaims]

No need to do anything really - they will et the judgement set aside, then the Legal Department in MK will contact you to arrange settlement. regarding the costs, you will only have to pay them if they go to court (which they wont) and win (which they wont)

 

Good Luck - the finish line is near!!!!

[lydia_42]

Will they just add the costs to the case then? Bit confused, as i had to pay £120 to claim in the first place, which had to be paid up front.

If they settle, who pays their costs for the hearing? Will i be left with a court bill?

[lydia_42]

Thanks guys, feel a lot more positive about it all now.

It's been playing on my mind over the Christmas holidays, and i couldn't get on here to ask anyone - left my laptop at work over hols - Doh!!!!

 

I'll let you know what happens on the 10th, although as you say they will get the judgement set aside. Bit of a shame i have to waste time going to court for 10/20 mins, but i'm not going to miss it. Not giving them anything to hold against me if i can help it.

 

Thanks again. By the way, does anyone have a link to the limitations act, so i can read the relevant bits re: claiming the charges that Abbey say are prior to the 6 years?

 

Thanks again

[lydia_42]

Thanks Karnevil, you're a star!!!

[lydia_42]

Well, had the hearing yesterday. Was only in there about 3 minutes.

So relieved that bits out the way.

Their solicitor came up to me before hand and introduced herself, and said they were going to ask for costs.

 

When we got in there, the judge asked if i was ok with having the judgement set aside, as he was happy all the paperwork was ok. I agreed.

 

Then Abbey said they wanted costs due to default judgement, and he bluntly said NO! Had to stop myself smiling at that. VERY relieved!!!!!

 

The judge said he would allow approx 1 hour for the real hearing, but turning to Abbey said 'they never get to court though do they?' You settle before hand. In all the cases, one hasn't got to court, so you will settle wont you?'

 

Abbey looked very uncomfortable that the judge had basically told me their game plan!!!!!

 

Just hoping it's gonna happen that way.

 

Thanks to everyone for their advice and support, no doubt i will be back soon with the next instalement, and panic over more court paperwork.

Do i have to just wait for the court to send next paperwork? Will this be the allocation questionaire?

[lydia_42]

Hi

I am currently fighting Abbey - see lydia 42 vs Abbey.

I had my default judgement set aside on 10th Jan, and was waiting for my allocation questionairre to arrive, for the next step.

However, i have now received a court date - 19th Feb, and been told to get court bundle in 21 days before hearing!!!!!!

Received this in post Friday!!!!! Called court re: time frame, and they have said get paperwork asap.

I have been told by the court, that due to the way my case has been handled - ie. default judgement, and then set aside, i do not have to provide allocation questionairre, just the bundle.

 

I have found the court bundle link, and copied to my doc's for printing later today - gonna have to go and get paper and ink by the looks of it!!!!!!

I also understand that i have to provide personal stuff ie. all correspondance between Abbey and myself, along with copies of bank statements showing charegs etc.

 

With regard to printing the OFT summary:

Do i just print the 3 page summary, or the whole statement document - which is pretty large

With regard to the EDM do i print the 6 lines regarding default banking charges, or is there something more i am missing.

 

Is there anything else i should do/add? Really worried i may miss something, due to the short time frame imposed by court!!!!

 

Thanks loads

[lydia_42]

Major panic - have also posted this on general thread for advice....

 

I had my default judgement set aside on 10th Jan, and was waiting for my allocation questionairre to arrive, for the next step.

However, i have now received a court date - 19th Feb, and been told to get court bundle in 21 days before hearing!!!!!!

Received this in post Friday!!!!! Called court re: time frame, and they have said get paperwork asap.

I have been told by the court, that due to the way my case has been handled - ie. default judgement, and then set aside, i do not have to provide allocation questionairre, just the bundle.

 

I have found the court bundle link, and copied to my doc's for printing later today - gonna have to go and get paper and ink by the looks of it!!!!!!

I also understand that i have to provide personal stuff ie. all correspondance between Abbey and myself, along with copies of bank statements showing charegs etc.

 

With regard to printing the OFT summary:

Do i just print the 3 page summary, or the whole statement document - which is pretty large

With regard to the EDM do i print the 6 lines regarding default banking charges, or is there something more i am missing.

 

Is there anything else i should do/add? Really worried i may miss something, due to the short time frame imposed by court!!!!

 

Thanks loads

[lydia_42]

BUMP!!!

 

Also, do i need to do a covering statement to go with bundle, or is the original court form enough?

 

Someone please, any info?? Have printed most paperwork off now, and copied all statements/correspondance x 3 copies, but will have to post tomorrow at lastest.

 

Thanks loads

[lydia_42]

Thanks so much Karnevil, don't know what i would do without you!!!!

 

This is what i have received:

NOTICE OF ALLOCATION TO THE SMALL CLAIMS TRACK (HEARING)

District Judge xxxx has considered the statements of case and allocation questionaires filed and allocated the claim to the small claims track.

 

The hearing will take place blah, blah, and should take no longer than 1 hour.

 

All parties not less than 21 days before the hearing date must send to the other and to the court office:

Typed and signed statements setting out the evidence of all the witnesses on which each party intends to rely. This includes the evidence of the parties themselves and copies of all documents, invoices, letters or estimates that realate to the case. The original documents shall be brought to the hearing.

No order for costs

BACK TO BACK NOTICE

Allocation to the small claims track

 

I did not submit anything other than the original claim form, and have been told that i wasn't asked to complete an AQ as i got judgement by default set aside.

 

I found a post you helped on, and prepared the following:

 

STATEMENT OF EVIDENCE

 

 

- The claimant submits that the charges levied to her bank account xxxxxxxx, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges imposed because of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit, standing order or cheque. On one occasion in March 2006, a visa payment was paid when insufficient funds were available in my account. The shortfall was only £2.57. I was then penalised for this breach by way of a charge of £30, as well as being charged £20 for going overdrawn, and the appropriate interest on the unauthorised borrowing. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

- The law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that Liquidated damages should be charged.

 

- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.

 

- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 -

“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach” and;

“The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

 

- Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

- It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. A penalty however, is unenforceable.

 

 

- In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.

 

- In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65.

 

- The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

- For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

- It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £32 by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter.

 

- Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was available.

 

- The claimant cites 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 default charges at the current level were unfair within their interpretation of the UTCCR’s.

 

- On 22nd May 2006, the house of commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

- Further, under the UTCCR:

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

 

- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

- As set out above, the Defendant’s charges cannot be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

 

- The Defendant states that the Claimant is unable to recover charges incurred prior to October 2000 by virtue of the Limitation Act 1980 section 5. The Claimant believes that under section 32 of the same act, she should be entitled to claim the charges detailed on the enclosed ‘Schedule of Charges’ prior to October 2000, as she first became aware of this matter, and made Abbey aware of her intention to pursue this matter in May 2006.

 

 

 

 

 

I, the Claimant, believe all facts stated to be true.

 

Signed:

 

 

 

 

Date:

 

Documents attached in support of this statement

• Office of Fair Trading report, April 2006

• House of Commons early day motion, May 2006

• BBC Commission conclusion

• Australian Default charges report, Nicole Rich

• Data Protection Act Subject Access Request for evidence of manual intervention

• Limitation Act 1980

• Statements and Schedule of Charges

• All Correspondence between parties

 

 

 

 

Is this sufficient to go with the court bundle which does include schedule of charges, all statements detailing said charges, all correspondance, and all docs mentioned above, as well as in basic bundle.

 

Thanks

[lydia_42]

Also with regard to the charges and interest. I added the relevant interest onto schedule when i submitted court paperwork, can i update this to reflect that its been a further 3 months, and recalculate interest? Or do i leave costs as they are?

Thanks again

[Mad Nick]

Lydia, suggest that you don't give the Court any new figures. If your POC followed the template it would have had the bit in about "interest from the date of charge to the date of Judgement or settlement at £X per day." That's what protects you from them delaying. Regards, Mad Nick

[lydia_42]

Thanks Nick - Does the statement of evidence sound ok?

[Mad Nick]

Lydia, indeed it does, really good.

 

FWIW, I'm still debating whether to include in mine as well the correspondence trail eg I sent this letter, they replied saying that. Karne's sticky had that in both a "Witness Statement" and a "Case Summary" and I'm still trying to work out the terminology. My current inclination is that it probably doesn't matter very much because the bundle includes the correspondence anyway. Besides, is it going to end up in Court ? I don't think so ! Regards Mad Nick

[lydia_42]

Many thanks Nick.

Know what you mean about the correspondance trail, ummm'd and arrrr'd about this one, and then due to time restraints decided against. As you say, it's all in the bundle anyway.

Just keeping my fingers crossed now that i hear from Abbey.

[lydia_42]

Got a letter from Abbey today (11 days before i am due in court), and guess what...................

they have offered to settle my claim in full...........£1505.24.

 

Can't believe it is finally going to be over in a few days when i recieve the money.

 

Thank-you all so much for your help and support. I really think i would have chickened out by now otherwise. Abbey basically waited until they received my court bundle before realising i was serious. (They admit no liability of course).

 

For everyone else out there in the process of going for their charges with Abbey, don't give up. That's what they are hoping for.

 

Good luck everyone, and thanks again.

 

I'm going to go for the charges our our Abbey Joint Accout now. Ha! Ha!

[RosaChaz]

You have no idea how pleased I was to read this. CONGRATULATIONS

I was beginning to think that they were always leaving it to court day. It gives hope to those of us following in your wake ( I have only just sent the SAR myself )

Rosa

[lydia_42]

Thanks again for all your help. Couldn't have done it without you.

 

So pleased it is over (well this one anyway - Abbey joint account is next).

Couldn't have come at a better time either - first baby is due start of May, so all funds needed.

 

One last question - has anyone found that they have more/quicker success getting a second lot of charges back due to having shown the bank they are serious, or have most people not had 2 accounts with the same bank, or claimed both lots of charges at the same time?