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Abbey - what next?


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Gem. Fantastic, I didn't realise you were in Stourbridge. I am too! Lucky you on getting a court date, I've been waiting since 20th December - maybe tomorrow!

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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Gem - found this for you, not sure if it will help (hope it's okay to post links). Scroll to page 5 I think (post 100).

 

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/30300-bong-barclaycard.html

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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Gem - found this for you, not sure if it will help (hope it's okay to post links). Scroll to page 5 I think (post 100).

 

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/30300-bong-barclaycard.html

 

Wow!! What an amazing woman.......and what an enlightening thread. Thanks for that Kerrie.

 

I haven't got an actual date yet, just the details of the allocation and of what I have to prepare. It says date to be set.

Not sure why they couldnt have fixed a date there and then. Have you heard anything at all from the court other than about the circuit judge thing? Does it mean you would have to go to Coventry or is your case still at Stourbridge?

 

I'll have to knuckle down and get the bundle prepared just incase they drop a date on me which leaves me no time to sort it out. I'm well miffed with Abbey for dragging things out this long and for such a small claim.

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I've doen a lot of chasing, purely because Abbey are threatening to default me account and pass details to credit reference agency etc but I have been told that my case was sent to Coventry just for the circuit judge to have a look as he had taken an interest in this type of case. When I phoned coventry after a few weeks of hearing nothing the lady said she had transferred it back to stourbridge. I then phoned stourbridge to be told it was being allocated a date, but that was 7 days ago and I still haven't received it.

I am very keen to sort this out only because I don't want Abbey to default me. My account was within it's limits when i left it, but their own charges have took it to over £200 over the limit. They have taken £700 in 4 months.

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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My sons account has presumably been defaulted long since, as he's been getting letters from 1st Credit DCA for ages. I sent the last one back saying it was in dispute. His account was £1.10 in credit when he lost his job. Abbey reinstated the DD's he'd cancelled, only to then refuse them thru lack of funds and then charged fees, hence his account at the final threat from Abbey was overdrawn by £144. The DCA seem to have the debt at £178. He had to open another account somewhere to stop them having his jobseeker allowance.

 

I wouldnt mind but the amount he's claiming is only from 'known' charges from statements in his possession. We never sent off for the SAR data as there are only about 2 statements missing anyway, so the £254 we've asked for is not even the complete amount.

 

Maybe your date will be the same as his, they say they're trying cases of the same kind on same days.

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Can anyone tell me please what a Skeleton Argument should state? Is it the same as a case summary? :confused:

 

I've searched and searched and cant find any info other than the link Kerrie sent and I still dont understand fully.

 

I'm pulling my hair out here.......would be grateful if someone would please clarify what it is and what I have to do, before I go and mess it all up.

Thanx

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gem, I can't personally see the difference between a well argued POC and a "skeleton argument", but there you go. However, I did a quick search and found this from alanfromderby (who Won, is a MOD, and from what I can see gives consistently good advice {hope he's watching !!}). Post 76 on here [EDIT - sorry - it just keeps giving me a 404, but it's a NatWest post from Feb 07:] :http://www.consumeractiongroup.co.uk/forum/natwest-bank/50689-bev-tony-stuck-big-4.html?highlight=%22skeleton+argument%22

Slightly longer than Alan's (because I've added the list of evidence that their charges are disproportionate), here's what I'll be going with (just waiting for Court date and Directions) :

2.On several occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of the Claimant’s contractual breaches. Initially these requests were ignored, but later the Defendant stated that it was not obliged to provide the information. It is submitted that the Defendant’s refusal to disclose its costs relating to the defaults is fundamental to the Claim and that the Defendant’s refusal to disclose the information is unduly and unreasonably restricting the evidence available to the Claimant in proving the Claim.

3.In the absence of the relevant information from the Defendant which would show whether its default charges are a genuine pre-estimate of loss or a penalty, the Claimant must rely on assessment, the open literature, comparative studies and related findings from official bodies :

a)The Claimant contends that the Defendant’s charges are extravagantly higher than its costs because the charges are applied by an automated and computer driven process. It is impossible to envisage how the Defendant can incur costs of £30-40 for a default when the rejection of a direct debit, application of the default charge and sending out a computer generated letter are completely automated. The letter received notifying a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance. The charge is the same regardless of whether the breach of overdraft is £1 or £1000;

b)the Claimant asked the Defendant to provide evidence of any manual intervention (the cost of which would be greater than for an automated process) that had occurred in relation to the Account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming;

c)an investigation (December 2004) by the Consumer Law Centre, Victoria, Australia concluded that Australian Banks’ default charges ($25-50 ≈ £11-22) are at least 5 times greater than their costs of dishonouring cheques and at least 64 times for dishonouring direct debits, and constitute penalties as this is excessive and out of all proportion to their costs. [p10, point 1]. No such research is available for Banks in the United Kingdom;

d)Treasury Select Committee, 2nd report, 25 January 2005. Banks' evidence (not the Defendant although it has stated to the Claimant that its charges are in line with other Banks) was that their default charges included costs unrelated to an actual breach;[para 50]

e)Office of Fair Trading report (OFT842, April 2006) about credit card default charges which stated that default fees have been set at a significantly higher level than is fair for the purposes of the Unfair Terms in Consumer Contracts Regulations (1999). The OFT stated that its findings were likely to be relevant to bank account charges. [Executive Summary, para 1.1], a view confirmed by the Economic Secretary at HM Treasury in a House of Commons Adjournment Debate on 16 January 2007;

f)Members of Parliament who expressed concern about the “exorbitant costs to customers of default charges applied to current and credit card accounts” in two House of Commons Early Day Motions (EDMs 2227/0506 and 500/0607);

g)Competition Commission inquiry into personal banking in Northern Ireland (provisional findings October 2006). The Commission noted that Banks’ default charges include unrelated costs and profit; ie the charges are significantly greater than Banks’ actual costs; [para 56(j)]

h)Treasury Select Committee - Thirteenth Report, 7 November 2006, HC1717 which stated that “We are not convinced that penalty charges of up to £39 are reasonable and accurately reflect the costs incurred by the banks.” [Conclusions, para 19].

i)Investigation by commission of experts (senior banking industry figure and business academics) for BBC Money Programme (12 December 06) which concluded that the highest cost which banks could justify were £4.50 for dishonouring cheques, and £2.50 for dishonouring direct debits and dealing with unauthorised overdrafts, compared with typical default charges of £30; and estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

j)The Claimant concludes on the basis of the above, and in the absence of information requested by the Claimant from the Defendant, that the Defendant’s default charges are extravagantly higher than its costs related to each default.

10.It is then submitted that 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, in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915, laid out several tests –

“(a) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach; [as argued at para 9 above]

(b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid [as argued at para 9 above]; and

© There is a presumption (but no more) that it is a penalty when ´a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.' [as argued at para 9a above]

11.This position on Liquidated Damages is supported by : Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281 (TCC); Lordsvale Finance PLC v. Bank of Zambia [QB 752]; Murray v. Leisureplay [EWCA Civ 963]; Bridge v. Campbell Discount Co. Ltd [AC 600]; Commissioner of Public Works v Hills [AC 368]

12.Further, the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) gives examples of terms which may be regarded as unfair, including :

(e) “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation”; as argued at para 9a above;

(i) “irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.” The Defendant has declined the Claimant’s requests for information to acquaint himself with the justification for the contract provisions for Liquidated Damages

(j) “enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.” The Defendant increased the amount of default charges throughout the period of the Claim. Although the increase was notified, it was without reference to a valid reason specified in the contract.

(q) “excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.” The Defendant has stated that it is not obliged to provide information to justify that its default charges are proportionate to its costs. The Claimant contends that this is unduly restricting the evidence available to him in relation to the contract which is the subject of the Claim.

13.The Claimant therefore concludes that 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, unfair and unenforceable at law.

14.Further, the contractual provision that permits the Defendant to levy the charges is unenforceable by virtue of the Unfair Contracts Terms Act 1977 section 4.

HTH. Regards, Mad Nick

Abbey £8370 settled 17 Apr 07

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Gem.

Got my letter this morning. It varies slightly from yours and doesn't mention a skeleton argument.

Here it is:

 

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

 

The hearing of the claim will take place on a date to be fixed at Stourbridge County Court and should take no longer than 2 hours.

 

By 14 days before the hearing The Claimant must send to the court and the Defendant copies of all the documents he intends to rely on at the final hearing. These must be in a bundle with each page clearly numbered. The Claimant must bring the originals of those documents to the final hearing.

 

By 14 days before the hearing the Defendant must send to the court and to the Claimant copies of all documents he intends to reply upon at the final hearing. These must be in a bundle with each page clearly numbered. The Defnedant must bring the originals of those documents to the final hearing.

 

No expert evidence is necessary and none is allowed.

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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Thanks for that MadNick, I was beginning to despair. I just cant see why they cant stick to one phrase to describe what they want.

So in other words you reckon they just want a more inflated version of the POC? Surely all this info will be in the court bundle itself........cant see why the judge wants both. Ta for that anyway, I'll make a start now.

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Hi Gem

Just been catching up and seeing how things are going for you. It seems that different areas have different systems. We were certainly very lucky living in Lincolnshire, the judge really came down on the Abbey like a ton of bricks and didn't even give a court date until the Abbey could show how many cases actually got to court, the Abbey had no choice but to back down. Great for us.

I will keeping snooping around the various cases that are going on just to offer moral support.

Keep smiling Gem. Brenda

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Hi Brenda, I've started putting together my skeleton argument on the pc. It has to be submitted no less than 3 days before the date, but since there is no date specified yet I dont want to be caught on the hop.

 

I thought if I put it together and send it off early, before doing the Court Bundle it might shake them into settling as they will see exactly what information I will be relying on in court.

 

I also sent a letter saying that in compliance with the Judge's suggestion that a settlement should be reached out of court if possible, I was giving them another chance to pay up before I go to further expense of preparing the court bundle and that under the circumstances I may ask the judge to take into account my expenses as a result of their timewasting. Lol.....well its worth a try.

 

Unfortunately I think I had a bit of a 'senior moment' and oddly addressed the poor guy as J Allendale on the letter rather than J Arrandale..........so now I'm gonna send an email to apologise for that faux pas....if I can find his flippin email addy again in all these posts ;) I'm hoping its not a significant error on my part, maybe someone will let me know?

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Unfortunately I think I had a bit of a 'senior moment' and oddly addressed the poor guy as J Allendale on the letter rather than J Arrandale..........so now I'm gonna send an email to apologise for that faux pas....if I can find his flippin email addy again in all these posts ;) I'm hoping its not a significant error on my part, maybe someone will let me know?

 

For a legal team that sign all their letters from Abbey as Abbey, I don`t think they would have anything to complain about.

 

Might be worth giving James a call 48 hours after he will have received your Email, he may want to discuss it with you and offer to settle:o

 

Give it a try

VIEWS EXPRESSED ARE MY OWN - IF THEY HELP - PLEASE CLICK MY SCALES

Halifax - S.A.R - June 06

- Pre-Lim(£1665) July 06

- LBA - July 06

- MCOL - 15th Aug 06

- Acknowledged 18th Aug

- Settled IN FULL :eek:

- 2nd Claim Started - 12 Dec 2006

- SETTLED IN FULL:eek:

- 3rd Claim Started (Phone Call) 1st March 2007

- SETTLED IN FULL:eek:

Abbey National - S.A.R - 23/08/06

- Default Removal Letter sent 21st Sept

- LBA sent with Estimated Charges 4/10/06

- 2nd LBA 23/10/06

- N1 filed 9/11/06 - Deemed Served 16/11/06

- AQ & Draft Directions filed 19/12/06

- Court Hearing 22/3/07

- SETTLED IN FULL:o INCLUDING £5k COMPENSATION

Capital One - S.A.R. 10/10/06

- SETTLED IN FULL:eek:

Alliance & Leicester - Mortgage E/S/C Claim 02/03/07

- SETTLED IN FULL:eek:

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Might be worth giving James a call 48 hours after he will have received your Email, he may want to discuss it with you and offer to settle:o

 

Give it a try

 

Would love to phone but I dont think he'd discuss the matter with me without written permission from my son (who I'm doing all this for)

If there was a way around it I'd definately give it a try.;)

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Hi Gem,

You could always try bluffing and say that your son sent a letter giving you authority, with all the paperwork they receive I doubt if they would argue. If you don't want to risk it, can your son do a letter for you? Might come in handy in days to come anyway.

I sent a copy of my son's letter of authority to the court as a just in case. I must admit, other than talking to the court managers, I did all mine by email. I always felt that if it was needed, I had a paper trail. Fortunately I didn't need it. Ihad never heard of a skeleton argument, is it the courts way of trying to reduce paperwork for them and you?

I hope you don't mind my keeping in touch.

Keep smiling .... Brenda

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I had never heard of a skeleton argument, is it the courts way of trying to reduce paperwork for them and you?

I hope you don't mind my keeping in touch.

Keep smiling .... Brenda

 

Hi, of course I dont mind you keeping in touch, I welcome it :)

My thoughts on the skeleton argument are that it gives an opportunity to put your points across without the 'official' layout of the particulars of claim and the witness statement. I may be entirely wrong of course......lol

 

When I rang the court, she wasnt sure herself but did say that it didnt need a 'formal' layout, and was basically just a padding out of the particulars of claim giving details of all the information we intend to rely on in court. Got some good ideas from Mad Nick on that one.

 

No doubt the judge is hoping that if Abbey get an idea of exactly what they are up against they may give in, but it will also give the judge an opportunity to see how well I've done my homework. Cant be a bad thing eh?

Son is coming over today for mothers day, I'll get a letter ready for him to sign. :D

ps. James is out of the office till 20th March according to auto-response email.

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Hi Gem

I was hoping that most of the judges would take the same attitude as the one in my local court, Boston and the main man in Lincoln, DONT waste the court's time. You sure seem to have done a lot of homework but as you have said on several occasions it can get confusing. I have read a few articles in the newspapers on this but I'm surprised it isn't happening countrywide, this would really make all the banks do something about this problem at grass routes and save a lot of heartache. but there who are we.....!

One suggestion I would make and you may have already thought of this, send a copy of the letter of authority to the Abbey as well as the court.

Have a great Mums day with your son. I saw mine last weekend. I went and visited him where he is now working, down in Hampshire, had a great weekend and he insisted I kept all but £400 of his settlement against money he owes me from when he was out of work. The £400 will go towards getting his car back on the road after failed MOT, etc.

Keep smiling .... Brenda

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Hi,

Would someone give this the once over please? It's bits from all over the place put into one doc. Not quite sure how to end it though, I've drawn a blank.....or gone brain dead ;)

Also dont know how to insert my letter into here so forgive me if 'copy and paste' is the wrong thing to do.

 

 

Claim No : xxxxxxxx

 

 

IN THE STOURBRIDGE COUNTY COURT

 

BETWEEN:

 

 

xxxx xxxxxx

 

 

Claimant

 

 

 

 

and

 

 

 

ABBEY NATIONAL PLC

 

 

 

 

 

Defendant

 

 

 

___________________________________

 

 

SKELETON ARGUMENT

 

___________________________________

 

 

 

 

 

 

 

  • The Claimant held a current bank account xxxxxxxx (the “Account”) with the Defendant between March 2002 and December 2005 at which point the Defendant withdrew access to the account. No further information regarding the Account was available to the Claimant.

  • Since 12/08/02 the Defendant has debited charges and interest totalling £254.84, in respect of purported breaches of contract. A breakdown of the charges has been submitted to the Defendant on several occasions. A copy is attached to this argument.

  • The Claimant claims the recovery of all known charges and interest applied on those charges debited to the Claimant’s Account between August 2002 and December 2005 on the basis that they are unlawful and unenforceable.

  • The Claimant contends that the charges do not represent or relate to any alleged actual loss by the Defendant but are levied with a view to profit and are disproportionately extravagant. Furthermore, the Claimant has requested that the Defendant provides a breakdown of its actual costs in relation to each purported breach and indicate where, if any, manual intervention was required.

  • The Defendant claims that it does not have to provide any such information to the Claimant. Without this information, which would show whether the Defendants default charges are a genuine pre-estimate of loss or a penalty, the Claimant must rely on Case Law, open literature and related findings from official bodies.

  • The Claimant believes that since the charges are completely automated and generated by a computer, and may be actioned thousands of times per day without any manual intervention, the fixed charge of £32 per breach is disproportionate to the Defendants actual costs and thus constitutes a penalty.

  • The Claimant believes that the contractual provisions referred to by the Defendant, and contained within their Terms and Conditions, are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”), the Unfair Contract Terms Act 1977 (“UCTA”) and the Common Law.

  • In support of this I would cite section 5 of the UTCCR (1999), which states:

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

  • Schedule 2 of the UTCCR (1999) gives “an indicative and non-exhaustive list of terms which may be regarded as unfair”

  • Under section 1(e), it is stated that a term which has the object or effect of “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation”, should be considered as an unfair term.
  • Under section 8(1), it states that, “an unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer”

  • Under section 4(1) of the UCTA 1977, it states that, “A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

  • In support of my argument I will refer to the following case laws:-

  • In the case of Lord Elphinstone v. Monkland Iron and Coal Co [1886], Lord Watson stated that: "There is a presumption (but no more) that a charge is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
  • In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. [1904] 12 SLT 498, the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty.
  • In the case of Wilson v Love [1896] 1 QB 6Z6, a tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings per ton more than straw, and thus the landlord was unjustly enriched to the tune of 5s for each ton of straw sold.
  • In the case of Dunlop Pneumatic Tyre Co. Ltd. v New Garage and Motor Co. Ltd. [1915] AC 79, the House of Lords decided that a liquidated damages clause would be considered a penalty and therefore unenforceable where the sum to be paid by the defendant was ‘extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be provided to have followed from the breach’.

  • The Claimant requests that reasonable costs incurred in bringing this claim to Court may be awarded by the Court on the grounds of the Defendants unreasonable conduct according to CPR 27.14(2)(g)

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Hi,

Would someone give this the once over please? It's bits from all over the place put into one doc. Not quite sure how to end it though, I've drawn a blank.....or gone brain dead ;)

Also dont know how to insert my letter into here so forgive me if 'copy and paste' is the wrong thing to do.

 

 

Claim No : xxxxxxxx

 

 

IN THE STOURBRIDGE COUNTY COURT

 

BETWEEN:

 

 

xxxx xxxxxx

 

 

Claimant

 

 

 

 

and

 

 

 

ABBEY NATIONAL PLC

 

 

 

 

 

Defendant

 

 

 

___________________________________

 

 

SKELETON ARGUMENT

 

___________________________________

 

 

 

 

 

 

 

  • The Claimant held a current bank account xxxxxxxx (the “Account”) with the Defendant between March 2002 and December 2005 at which point the Defendant withdrew access to the account. No further information regarding the Account was available to the Claimant.

  • Since 12/08/02 the Defendant has debited charges and interest totalling £254.84, in respect of purported breaches of contract. A breakdown of the charges has been submitted to the Defendant on several occasions. A copy is attached to this argument.

  • The Claimant claims the recovery of all known charges and interest applied on those charges debited to the Claimant’s Account between August 2002 and December 2005 on the basis that they are unlawful and unenforceable.

  • The Claimant contends that the charges do not represent or relate to any alleged actual loss by the Defendant but are levied with a view to profit and are disproportionately extravagant. Furthermore, the Claimant has requested that the Defendant provides a breakdown of its actual costs in relation to each purported breach and indicate where, if any, manual intervention was required.

  • The Defendant claims that it does not have to provide any such information to the Claimant. Without this information, which would show whether the Defendants default charges are a genuine pre-estimate of loss or a penalty, the Claimant must rely on Case Law, open literature and related findings from official bodies.

  • The Claimant believes that since the charges are completely automated and generated by a computer, and may be actioned thousands of times per day without any manual intervention, the fixed charge of £32 per breach is disproportionate to the Defendants actual costs and thus constitutes a penalty.

  • The Claimant believes that the contractual provisions referred to by the Defendant, and contained within their Terms and Conditions, are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”), the Unfair Contract Terms Act 1977 (“UCTA”) and the Common Law.

  • In support of this I would cite section 5 of the UTCCR (1999), which states:

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

  • Schedule 2 of the UTCCR (1999) gives “an indicative and non-exhaustive list of terms which may be regarded as unfair”

  • Under section 1(e), it is stated that a term which has the object or effect of “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation”, should be considered as an unfair term.
  • Under section 8(1), it states that, “an unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer”

  • Under section 4(1) of the UCTA 1977, it states that, “A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

  • In support of my argument I will refer to the following case laws:-

  • In the case of Lord Elphinstone v. Monkland Iron and Coal Co [1886], Lord Watson stated that: "There is a presumption (but no more) that a charge is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
  • In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. [1904] 12 SLT 498, the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty.
  • In the case of Wilson v Love [1896] 1 QB 6Z6, a tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings per ton more than straw, and thus the landlord was unjustly enriched to the tune of 5s for each ton of straw sold.
  • In the case of Dunlop Pneumatic Tyre Co. Ltd. v New Garage and Motor Co. Ltd. [1915] AC 79, the House of Lords decided that a liquidated damages clause would be considered a penalty and therefore unenforceable where the sum to be paid by the defendant was ‘extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be provided to have followed from the breach’.

  • The Claimant requests that reasonable costs incurred in bringing this claim to Court may be awarded by the Court on the grounds of the Defendants unreasonable conduct according to CPR 27.14(2)(g)

 

All seems fine to me, plenty of case referencing etc should wake a few people up at the Abbey.

My guess is, file this at court, send a copy to Abbey (addressed to James Arrandale), give him 48hours to digest it and then give him a call - He will agree to settle (have in mind how much extra you would expect the court to give you by way of expenses, as he will ask you), you should only agree to settle if he is prepared to give you what you want (and that you know the court would award you).

 

I won`t wish you good luck, you won`t need it:D

  • Haha 1

VIEWS EXPRESSED ARE MY OWN - IF THEY HELP - PLEASE CLICK MY SCALES

Halifax - S.A.R - June 06

- Pre-Lim(£1665) July 06

- LBA - July 06

- MCOL - 15th Aug 06

- Acknowledged 18th Aug

- Settled IN FULL :eek:

- 2nd Claim Started - 12 Dec 2006

- SETTLED IN FULL:eek:

- 3rd Claim Started (Phone Call) 1st March 2007

- SETTLED IN FULL:eek:

Abbey National - S.A.R - 23/08/06

- Default Removal Letter sent 21st Sept

- LBA sent with Estimated Charges 4/10/06

- 2nd LBA 23/10/06

- N1 filed 9/11/06 - Deemed Served 16/11/06

- AQ & Draft Directions filed 19/12/06

- Court Hearing 22/3/07

- SETTLED IN FULL:o INCLUDING £5k COMPENSATION

Capital One - S.A.R. 10/10/06

- SETTLED IN FULL:eek:

Alliance & Leicester - Mortgage E/S/C Claim 02/03/07

- SETTLED IN FULL:eek:

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All seems fine to me, plenty of case referencing etc should wake a few people up at the Abbey.

My guess is, file this at court, send a copy to Abbey (addressed to James Arrandale), give him 48hours to digest it and then give him a call - He will agree to settle (have in mind how much extra you would expect the court to give you by way of expenses, as he will ask you), you should only agree to settle if he is prepared to give you what you want (and that you know the court would award you).

 

I won`t wish you good luck, you won`t need it:D

 

Many thanks Armsoft. James had a letter last week with a deadline of today to settle before I start the expense of the court bundle and I gave him a list of things which I 'may' rely on in court and also giving a 'genuine pre-estimate', of my costs (which doubles the original claim.......lol)

There was much more info referred to which I've not included in my skeleton, as well a list of settled litigation, if he required it, courtesy of this site.

I added finally that this wasnt my skeleton argument, just a few details for his consideration, and that my skeleton argument would follow shortly.....and it will now :wink:

 

Just one more thing. The ending. Should I add anything? Does my son need to sign it or can it just be sent as it is? It seems somewhat 'unfinished'.

When he was visiting yesterday I hadn't had the 'once over' from the peeps on here...and then my internet went down :eek: so I hadnt printed it off for him to sign before he went home. Wont see him for another week now :( any suggestions?

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  • 3 weeks later...

Hi Gem.

Just wondering if there were any developements. Have you had a court date yet, or heard anything at all from Abbey??

I still haven't received my date.

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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Many thanks Armsoft. James had a letter last week with a deadline of today to settle before I start the expense of the court bundle and I gave him a list of things which I 'may' rely on in court and also giving a 'genuine pre-estimate', of my costs (which doubles the original claim.......lol)

There was much more info referred to which I've not included in my skeleton, as well a list of settled litigation, if he required it, courtesy of this site.

I added finally that this wasnt my skeleton argument, just a few details for his consideration, and that my skeleton argument would follow shortly.....and it will now :wink:

 

Just one more thing. The ending. Should I add anything? Does my son need to sign it or can it just be sent as it is? It seems somewhat 'unfinished'.

When he was visiting yesterday I hadn't had the 'once over' from the peeps on here...and then my internet went down :eek: so I hadnt printed it off for him to sign before he went home. Wont see him for another week now :( any suggestions?

 

gem,

did you get the signing issue sorted?

Any news after discussions with James?

 

Happy Easter:)

VIEWS EXPRESSED ARE MY OWN - IF THEY HELP - PLEASE CLICK MY SCALES

Halifax - S.A.R - June 06

- Pre-Lim(£1665) July 06

- LBA - July 06

- MCOL - 15th Aug 06

- Acknowledged 18th Aug

- Settled IN FULL :eek:

- 2nd Claim Started - 12 Dec 2006

- SETTLED IN FULL:eek:

- 3rd Claim Started (Phone Call) 1st March 2007

- SETTLED IN FULL:eek:

Abbey National - S.A.R - 23/08/06

- Default Removal Letter sent 21st Sept

- LBA sent with Estimated Charges 4/10/06

- 2nd LBA 23/10/06

- N1 filed 9/11/06 - Deemed Served 16/11/06

- AQ & Draft Directions filed 19/12/06

- Court Hearing 22/3/07

- SETTLED IN FULL:o INCLUDING £5k COMPENSATION

Capital One - S.A.R. 10/10/06

- SETTLED IN FULL:eek:

Alliance & Leicester - Mortgage E/S/C Claim 02/03/07

- SETTLED IN FULL:eek:

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Hi guys,

Sorry for delay, been away for a week. Needed a break after a trying week at work.

I havent heard a thing yet from either Abbey or the Court. I sent the skeleton argument to James A and the Court shortly after posting it here, so a good 3 weeks now. I didnt phone him since I'm acting on behalf of my son and I had to get a letter of consent off to him from my son. I sent it at the same time.

 

I think I'll send James another email and if I dont get a reply this time I will phone him as a few weeks have gone since my last email (which got no response :Cry: ).

Gem

x

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gem,

did you get the signing issue sorted?

Any news after discussions with James?

 

Happy Easter:)

 

Hi,

I just sent it off as it was without son's signature. His signature was on the accompanying letter giving me authority to deal with his affairs though so it could have counted for all enclosed documents I reckon.....well, I hope.

When I rang the court before doing the skeleton argument they said it wasnt a formal doc and didnt need any special format, as long as it had the claim no. claimant and defendant on it for identification.

Discussion with James not taken place yet, I'll get onto it now I'm back from hols.Just need to get by head back into gear.

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Just had a letter from Abbey settling in full but a bit puzzled over the wording.

ie "...we have now conducted a complete reconciliation of your account and without admission of any liability, Abbey National plc has determined, in this instance, to settle your claim in full...."

"...payment is in full and final settlement of your claim...."

 

It includes the charges as claimed, interest as claimed, interest at 8% between claim date and now and £30 court fee....woohoo.......but no mention of my expenses, postage, inconvenience etc.

 

question: does any of the above wording indicate that the debt collectors will not be writing to my son for the amount the account was overdrawn as they did before the claim?

Does the 'reconciliation' of the account mean they've reinstated it complete with overdrawn balance, or is it written off? Or does that mean they've just looked at it? :-?

 

I might email James A for confirmation of these points and to make sure he sends a cheque and doesnt put the money in an account my son hasnt got access to. Any other suggestions?

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Fantastic news Gem,. I'm really pleased for you. I am still getting the final stages of the bundle ready, only case summary and correspondance left ot print them I'll send it to them.

 

Guess I won't see you in Court at the same hearing as me then:D

Settled at 50%

Clydesdale £155. Should have been £310 charges, plus interest :( Husbands Account.

 

 

SETTLED IN FULL:

MBNA £1230. For Hubby.

Halifax £39.

RBS £342. For Hubby.

Cap One £200.

Abbey:

:D Settled in FULL April 18th 2007. £5179.83 Paid but what a long battle!

:D

COMPENSATION OF £100 ON 14/04/08 FOR CONTINUED HARASSEMENT.

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