mcuth v Lloyds TSB - FINISHED

[reload]

Looks like a bog standard defense to me. Keep it up

[mcuth]

Received a letter from SCM (Sechiari, Clark & Mitchell) with a copy of their AQ and confirming that they filed it with Swindon CC on 19th September. What's strange is that they ask me to confirm receipt and supply a copy of my AQ - since the court order didn't require copies to be supplied to the other parties, I'm going to speak with the court tomorrow and see whether they think it's an implied instruction or not. I'm not quite sure if the court will send copies of the AQ to each side anyway.

 

Interesting points from their AQ:

- They've ticked Yes in the "Settlement" box saying they wish further action to be postponed for one month so that we can attempt to settle the claim by informal discussion/alternative dispute resolution. This seems like a delaying tactic to me - my AQ said No to this as they've already had several months. I wonder which takes priority?

- They're apparently calling 1 witness (other than themselves) but no "Expert's report"

- They've ticked Yes to the "Dates not available" question, but not filled in the unavailable dates

- There's no comment in any of the comment boxes...

 

Cheers

 

Michael

[reload]

I think the 'additional time' box for settlement now seems to be standard proceedure for SCM. As they've asked for extra time to reach settlemtn, it might be worth calling them and saying something along the lines of "So settle me!"

[mcuth]

I think the 'additional time' box for settlement now seems to be standard proceedure for SCM. As they've asked for extra time to reach settlemtn, it might be worth calling them and saying something along the lines of "So settle me!"

 

Nah, I've already written once saying that I'm open to the idea of settling without requiring a court hearing, which they didn't have the common courtesy to reply to. Not going to do it again as IMHO it shows weakness

 

Oh, and I rang the court today to check on a couple of things:

i) They've checked "Yes" to another month, I've checked "No" - the decision on whether to stay for a month is down to the judge - not sure whose side he'll come down on, but if the judge orders a stay, I'll try and appeal against that as they've had since June to pay up

 

ii) Whether their request for a copy of my AQ is valid. Apparently the AQ isn't automatically sent to each side, and the Defendant can request copies of relevant court docs, but I don't have to supply them unless the court has ordered so. On the other hand, if I don't supply them, they can always ask the court to supply copies and they'd get charged a copying fee.

 

Yes, I was tempted to tell SCM to go whistle and get a copy from the court and have to pay the copying fee, but I did think that that might look a tad obstructive - so for the sake of a letter & 3 pages copied, I sent it to them today.

 

Cheers

 

Michael

[reload]

Good stuff Mcuth. One thing I will say though - I don't believe a judge will look at your case and decide whether you're 'being weak' or not. Similarly, even if SCM believe that you certainly know you aren't...

 

Just thinking it might hurry things along a bit. However, judging by other people's experiences of phoning SCM so far, I wouldn't count on it!

[mcuth]

Good stuff Mcuth. One thing I will say though - I don't believe a judge will look at your case and decide whether you're 'being weak' or not. Similarly, even if SCM believe that you certainly know you aren't...

 

Just thinking it might hurry things along a bit. However, judging by other people's experiences of phoning SCM so far, I wouldn't count on it!

 

I guess it could hurry it along, but honestly they've not been open to anything thus far, and I can't see the benefit of increasing my telephone bill just to speak to that set of &*^%ers - I'll let them come crawling to me when they're ready

 

Cheers

 

Michael

[mcuth]

Spoke to the court yesterday - Lloyds' AQ was lodged on 26th Sept, so I should hear something from the court sometime "soon"....

 

Cheers

 

Michael

[mcuth]

Received "General Form of Judgement or Order" from Swindon CC - "It is ordered that the claim be stayed until 1st March 2007" - at the bottom is a note: "PLEASE NOTE: There are a considerable number of these cases throughtout (sic) England & Wales. There is likely to be a test case in the near future". That's not "There is a test case", but "There is likely to be a test case" :rolleyes:

 

I have a bit of a family emergency that's keeping me occupied elsewhere at the moment, but I know I have to come back to them within 7 days now - hopefully later this week I should be able to crack on......

 

Cheers

 

Michael

[mcuth]

As detailed in this thread, going to send the following letter to the court tomorrow to see if I can get the stay removed and/or a transfer to the Mercantile Court - that might just push things along.

 

The District Judge

Swindon County Court

The Law Courts

Islington Street

Swindon

Wiltshire

SN1 2HG

Dear Sir/Madam

mcuth v Lloyds TSB Bank PLC – claim number 6SN02738

&

mcuth v Egg PLC – claim number 6SN02736

I respectfully request that the stays on the above cases, which were ordered on 28th & 29th September 2006 respectively, be removed per the following.

 

Human rights

The stays interfere with my rights under the European Convention on Human Rights (“the Convention”) directly and as enacted in the Human Rights Act 1998.

Art.6 1. of the Convention provides that “In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”. It is submitted that in cases for sums of £354.66 & £85.22 respectively, a stay of 5 months which depends on unspecified litigation unconnected to the instant cases between two other parties who have no relation to the parties in the instant cases, is not reasonable.

Indeed, it is unlikely that there will actually be a test case proceeding to hearing as specified (see “Test Case” & “Other Cases” below).

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my cases are allowed to proceed speedily so that a just settlement may be obtained by the parties to these cases. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

Lloyds TSB Bank PLC

The Defendant in case 6SN02738,Lloyds TSB Bank PLC (“Lloyds”), has already settled at least 28 similar cases. A list of these 28 cases where Lloyds was the Defendant is attached (Appendix 1). In most of these cases, Lloyds actually filed a defence to the case and returned their Allocation Questionnaire, obliging the Claimant to do the same. However, in every one of these cases, Lloyds settled the matter before any hearing.

In 2004 the head of personal banking of Lloyds, Peter MacNamara, stated in a Radio 4 interview that Lloyds makes big profits from its default charges and that this money was being used to fund free banking for its customers. The Claimant can supply a copy of this recording if the Court wishes.

Other cases

It is true that there are currently many other cases which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that, so far, the vast majority have been settled before any hearing, with only a handfull proceeding as far as a hearing.

 

Attached to this letter is a sample list of 244 cases, complete with County Court reference numbers (Appendix 2), of which the Claimant is aware and which have been issued since January 2006. All of these cases have been settled before a full hearing. Many of these cases even received default judgments against the Defendant banks in question, which has then been set aside on application by that bank and which has further been settled by that bank rather than go to court.

In two cases the Court has even ordered standard disclosure against Defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing - that it will be settled out of court and therefore produce no useful decision from a higher court. It is further submitted that the Defendants in the instant cases have no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right. A stay is supportive of the banks’ litigation strategy - which is to take the Claimant to the door of the court and then to settle the case.

It is submitted that this is abusive of the justice system and of the public resource.

 

The Status Quo

The stay does not maintain the Status Quo. As submitted above, a stay favours the bank by preventing the Claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks’ activities which the Claimant submits are unlawful.

 

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks have so far settled every one of the 244 example cases in Appendix 2, and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the Defendants have declined to allow the issue to be decided in court.

My cases present another opportunity for the question to be definitively settled as, should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy. It is respectfully submitted that the Court’s order to stay the case creates more uncertainty and more difficulty.

It is respectfully submitted that, if the predicted test case referred to by District Judge Carron in the orders, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the cases conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) gives the power to the Office of Fair Trading (“the OFT”) to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

The OFT conducted a 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks. The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by myself in the instant cases.

 

Additional orders

If the Court does accede to my request for a removal of stay then I respectfully request that the cases be allocated to the Small Claims track but that the Defendants be ordered to make standard disclosure. It is submitted that an order for standard disclosure will assist greatly in bringing these and other similar cases to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges

In the alternative, a number of cases have recently been transferred to various Mercantile Courts for hearings, and in the majority have been settled before even the Case Management Conference was held. The Claimant is aware of only 1 of these transferred cases that has proceeded to the Case Management Conference. If the Court were to decide that my cases should be similarly transferred to a Mercantile Court (the closest being located in Bristol), I respectfully request that a Small Claims Costs Order is made and the Defendants be ordered to make standard disclosure.

Many thanks

Yours faithfully

mcuth

 

 

Cheers

 

Michael

[mcuth]

Reply from the court received today (quoted verbatim, so forgive the poor grammar & punctuation ):

 

Dear {mcuth}

 

Re: {mcuth} v Lloyds TSB Bank PLC Case No 6SN02738

 

The District Judge has considered your letter dated 23rd October 2006 to the court in relation to the stay that the court has ordered in this case and 6SN02736.

 

In both cases the court has stayed the actions pending the outcome of test cases that will be dealt with shortly. All cases of this type, of which there have been a considerable number in recent times for reasons well known, are being stayed pending the outcome of the test cases. However you are entitled to apply to have the stay lifted and the District Judge has said that if you wish to make such an application clearly you may do so but you must make a formal application, preferably on form N244 and pay the fee.

 

The fee may be £35.00, application without a hearing, or £65.00 for an application to be dealt with at a hearing.

 

A fee of £35.00 is where the applicant suggests that at least to start with the application can be dealt with as paperwork by the District Judge, that is without attendance by any party. The District Judge may make the order required by the applicant or such other order as he or she sees fit to make. If the judge decides the matter needs to be dealt with at a hearing then he instructs the court office to fix a date and a fee of £65.00 becomes payable, and the court would ask the applicant for the additional fee.

 

In the event that £65.00 was paid when the application was first issued, if a hearing was set then no additional fee would be payable, however if the judge made the order without a hearing, the court would not refund the overpayment.

 

Yours sincerely

 

Going to see what the response is to this post before I decide where I'm going to go with this...

 

Cheers

 

Michael

[mcuth]

Ummm, move along, nothing to see here - every chance that this is over, but I can't say anything about it ;)

 

Cheers

 

Michael

[BARTY]

Sounds like CONGRATULATIONS are in order????

Barty:)

[mcuth]

I couldn't possibly say - and not for definite just yet anyway!

 

Cheers

 

Michael

[Philip Hindley]

Hi Michael!

 

I've got a court date of 29th March 2007, so in an attempt to speed things up, I'm going to write to the Court ( using a bastardised version of your letter asking for the stay removal ) requesting standard disclosure and exchange of documents within 28 days.

Could you tell me where you found the lists of settled cases, as mentioned in the appendices you've attached to the letter.

Thanks in anticipation, and I hope you are at last seeing some light at the end of the tunnel!

[mcuth]

Hi Philip

 

I've got a court date of 29th March 2007, so in an attempt to speed things up, I'm going to write to the Court ( using a bastardised version of your letter asking for the stay removal ) requesting standard disclosure and exchange of documents within 28 days.

Could you tell me where you found the lists of settled cases, as mentioned in the appendices you've attached to the letter.

Thanks in anticipation, and I hope you are at last seeing some light at the end of the tunnel!

 

Pete (Number6) posted it up in my "stays & test cases" thread, here. It's been revised a couple of times.

One thing I would point out is that Swindon CC are refusing to lift the stay on the basis of the letter - they're insisting on an N244 being filled out to apply for it, you can see my correspondence with them on that thread too...

 

Cheers

 

Michael

[mcuth]

All done - nothing more to see here

 

Cheers

 

Michael

[stadium_arcadium]

That is excellent news, CONGRATULATIONS!!!!! Well done Mcuth!

[GaryH]

Hi Michael,

 

Finally caught up with one of your threads at last! Well done on concluding your claim, bet its a relief to get this one done and dusted. Do you still bank with Lloyds by the way? I got rid of my account with them, could'nt even bere to walk into the branch without holding my nose in the end! Grrrrrr.....

 

Well done mate:D

[mcuth]

Thanks folks - was well happy to have this one done & dusted Just the Egg to boil now, from my claims issued on 31st July Have started some more off to keep busy

 

Gary - nope, not banking with LTSB anymore - haven't done for a while now, though I still have outstanding debt with them (*sigh*)

 

Cheers

 

Michael

[mrincredible]

Wow! Sounds like a hard slog, but I assume from your posts that it was worth it in the end. Myself, I'm at the very early stages (SAR sent, awaiting statements) with Lloyds. I'll be tapping you up for advice when I reach the latter stages, as it sounds like Lloyds are very stubborn!!

[mcuth]

This topic was closed on 09 March 2019.

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