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Tinkerbella22 v Abbey!! **WON **


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Tink, here it is in the final form which went in my N150 AQ (same as before, just split into 2 sections:

 

SECTION D – TRACK (p3)

Reasons for Claimant indicating a track other than the normal track for the claim

The Claimant respectfully submits that the law relating to contractual penalties is long established so the success or otherwise of the claim depends on the Defendant’s justification that each charge was proportionate to its loss and was a genuine pre-estimate. The Claimant therefore believes that the unresolved issues involved in the claim are principally of fact not law and so respectfully requests that the claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

SECTION H – OTHER INFORMATION (p4)

Other information which the Claimant considers will help the Judge to manage the claim.

The Claimant believes that this claim can proceed most expeditiously if the Defendant was directed to provide the information which is central to the claim and which the Defendant has withheld from the Claimant to date; namely evidence that its charges were (in the Defendant’s view) proportionate to its loss and a genuine pre-estimate.

The Claimant wishes to bring the Court’s attention a General Form of Judgment or Order in a similar case (6QZ84736) at Lincoln County Court where it was ordered (28 December 2006) that “The Court of its own motion is considering striking the Defence out as an abuse of process on the basis that it has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled.” Although this was in relation to another Defendant (Lloyds TSB), it concerned the same issue of Default Charges, and the Claimant is aware that the Defendant in this case has previously settled the following claims prior to Court : 4QZ2810928 5QZ30938 6CK02117 6CL01687 6DE02959 6DE04574 6HG03992 6PE02904 6PE04231 6QZ08692 6QZ09627 6QZ18498 6QZ19764 6QZ21137 6QZ23148 6QZ30791 6QZ32624 6QZ39038 6QZ41854 6QZ43864 6QZ48201 6QZ67803 6QZ71927 6SL00583 6SO05338.

Abbey £8370 settled 17 Apr 07

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Mad Nick,

Looks really good.... can I just clarufy though.

Ur section H - other information is basically asking for standard disclosure and if they dont the case be struck off for taking the mick??

 

so thats basically what Ive got for my ohter information just in a sort of more forceful way?

 

Have u sent of ur AQ yet? Has this tactic been used before?

 

Tink x.x.x

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mad Nick,

Looks good but can I just clarify....

 

Ur section H is asking for standard disclosure... if they dont give it the claim be struck out for taking the mik and wasting the courts time??

 

So... ur other information asks for more or less the same as the one i have written but a bit more forceful is this right??

 

Have u sent off ur AQ yet??

Has this tactic been used before??

 

Tink x.x.x

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Tink, I had another look at your draft and you're right, we're saying the same thing. I've no idea whether anyone else has used Lincoln in an AQ - it just seemed logical to me. But I have seen people quote settled claims.

 

I did spot one thing though - your draft said In the event that the Defendents charges were accepted as being a fee for a service (which is denied), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982. Unless their defence to you tries to justify their default charges as being for a service, I would leave that out. The bit in the template about service is just because some other Banks have tried to use that in their defences. Abbey don't appear to try that.

 

Regards, Mad Nick

Abbey £8370 settled 17 Apr 07

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Mad Nick,

Yeh Ive re-read Abbeys defence and ur right they havent sed that so Ill leave it out.

I was wondering if it would be feasible to use a mixture of both so my first paragraph drawing the judges attention to the draft is the same, leave out the paragraph u suggested and still draw attention to the lincoln case?? so sumthing like this:

 

The Claimant proposes the attached draft order for directions, for the courts due consideration. If ordered, the Claimant believes these directions will allow the overriding objective's to be furthered in that they will fully identify the most fundemental issues in dispute (namely that the defendants charges are disproportionate to loss incurred) and allow them to be assessed so that this claim may proceed justly and expediently..

 

- The Claimant wishes to bring the Court’s attention a General Form of Judgment or Order in a similar case (6QZ84736) at Lincoln County Court where it was ordered (28 December 2006) that “The Court of its own motion is considering striking the Defence out as an abuse of process on the basis that it has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled.” Although this was in relation to another Defendant (Lloyds TSB), it concerned the same issue of Default Charges, and the Claimant is aware that the Defendant in this case has previously settled the following claims prior to Court : 4QZ2810928 5QZ30938 6CK02117 6CL01687 6DE02959 6DE04574 6HG03992 6PE02904 6PE04231 6QZ08692 6QZ09627 6QZ18498 6QZ19764 6QZ21137 6QZ23148 6QZ30791 6QZ32624 6QZ39038 6QZ41854 6QZ43864 6QZ48201 6QZ67803 6QZ71927 6SL00583 6SO05338

Let me know if u think its too much??

Thanks loads for ur input - its really helpful for other people to read over what uve done.

Tink x.x.x.

 

 

 

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Tink,

  • No new schedule - just keep track yourself of your accruing interest and Court fees (eg AQ = £100) for when they try to settle
  • I scanned and e-mailed it direct to [email protected] (and got a read receipt 2 days later) but I would have sent it to Triton Sq.

Regards, Mad Nick

Abbey £8370 settled 17 Apr 07

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  • 3 weeks later...

the dealing for AQ was the 26th. Not heard anything from the court yet. My boyfrend foned them and they sed the AQ's had been past up to the udge and now just waiting on his directions. Havent seen a copy of Abbeys AQ even though I sent them a copy of mine.

 

Hate the waiting, just want it to be over and done with.

 

tink x.x.x.

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Hi,

Update:

Ive just received thru the post this letter:

 

All parties having agreed

District Judge x.x.x.x.x.x.x orders that this claim is stayed until 06 April 2007 to enable the parties to attempt settlement.

 

On or before 20th April 2007, one of the following steps must be taken:

either

the claimant must notify the court that the whole of the claim has been settled

or

the claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediator, expert, or other person helping with the process. the letter should confirm the agreement of all other parties.

or

all the parties must file a completed allocation questionnaire at the court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire. the list must be agreed with the other parties and must indicate that it has been agreed.

 

Wot does all this mean??

From reading other threads i thort the next thing that would happen would be that the judge would either agree or disagree with the draft directions and give a date for all documents to be handed in. Why has he added more time?? And wot does this mean I do now?

 

Help pls!!

 

Tink x.x.x

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Ive just got a letter together. I dont really know what moe I can say. Its all be said before in the Prelim letter and LBA. Nothing else has changed.

 

Anyway heres my letter so far.Any feedback greatly appreciated:

 

James Arrundale,

You will be aware that on the 7th march, Judge x.x.x.x of Bury County Court has ordered a stay for settlement in the above claim until 6th April. In my opinion I have given you ample opportunity to settle this claim.

In accordance to the Judges request I again make an attempt to settle this matter. I now request the following:

£1278.50 – The total amount of the charges unlawfully taken.

£288.35 – 8% interest as per s.69 of the County Court Act

£120 – Court fee

£100 – Allocation Questionnaire fee

Total - £1786.85.

However, taking into account the Goodwill Gesture made by you which was credited to my account on the 8th January of £165, I respectfully amend the total shown below.

Total minus Goodwill Gesture £ 1621.85

I believe this is a fair attempt at a settlement and I believe that it is in both of our interests to now bring this matter to a close.

I look forward to hearing from you before the deadline of the 6th April.

Regards

I know its quite shot but really am at a loss of what else to write.

Tink x.x.x.

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After I write about bringing the matter to a close I was gonna add this short paragraph.

 

You should note that I am aware that you have yet to take a single case to court and have settled every single one prior to this. Therefore, I feel that it would be a waste of all our time to prolong this matter any further

I dont want to antagonise him tho.

Tink x.x.x

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Hi Tink,

 

Only my opinion, but in your extra paragraph, I wouldn't say "I am aware" I would say "The courts are aware" and quote the Lincoln Judge's directions. I reckon this would give more weight to your argument.

All advice offered here is my opinion only based on what I would do in a given situation. If you wish to act on it you do so at your own discretion

......................................................

I have no legal expertise or qualification, and give advice on the basis of my own experience and nothing else.

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Hi Tink

 

Is it worth including previous attempts to reach an agreement?

 

I know that any 'without prejudice' info cannot go to the court but it may be worth letting the court know that you have been trying.

 

IE -"Although my previous attempts to reach a settlement through emailing you on XX and speaking with your office on XX I have still to recieve a response..."

 

It would let the judge know you have been trying if it gets to court.

 

What does anyone else think?

2 Accounts with statements back to Feb 04 = £802 in charges

S.A.R received by Abbey 22.09.06 .......start the clock!:D

9.10.06 received letter from Pam Speed 'information to follow'

12.10.06 received last 14 months of altered statements :rolleyes:

01.11.06 LBA sent to Abbey for statements

10.11.06 received statements back to 2000 - on one account:|

15.11.06 2nd LBA sent for outstanding information

26.11.06 Outstanding info arrives

30.11.06 Prelim for £1089 received by Abbey

06.12.06 Sorry you are unhappy letter received

21.12.06 Sent LBA giving 14 days before court action

22.12.06 Received GOGW for £375

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Hi,

Do u think this will have any effect though or is it worth applying for a set aside as why would Abbey settle now. Wont they just drag it out for the month then make it go to court anyway? has anybody else got any prior experience of this?

 

Tink x.x.x

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Ok,

Ive decided to not try and apply for a set aside and just write to James and see what happens. This is the final draft of my letter, still any other ideas always welcome. (thinking a bit more clearly now ive managed to cope with a grumpy 1yr old having his jabs)

 

You will be aware that on the 7th march, Judge x.x.x.x.x of Bury County Court has ordered a stay for settlement in the above claim until 6th April. In my opinion I have given you ample opportunity to settle this claim which was started on the 12th December.

In accordance to the Judges request I again make an attempt to settle this matter. I now request the following:

£1278.50 – The total amount of the charges unlawfully taken.

£288.35 – 8% interest as per s.69 of the County Court Act

£120 – Court fee

£100 – Allocation Questionnaire fee

Total - £1786.85.

However, taking into account the Goodwill Gesture made by you which was credited to my account on the 8th January of £165, I respectfully amend the total shown below.

Total minus Goodwill Gesture £ 1621.85

I believe this is a fair attempt at a settlement and is in both of our interests to now bring this matter to a close.

You should note that the courts are aware that you have yet to take a single case to court and have settled every single one prior to this. As mentioned on my Allocation Questionnaire (which you have a copy of) I also bring to your attention a similar case (6QZ84736) at Lincoln County Court where it was ordered (28 December 2006) that “The Court of its own motion is considering striking the Defense out as an abuse of process on the basis that it has settled all previous claims of this nature. Therefore, I feel that it would be a waste of all our time to prolong this matter any further.

I look forward to hearing from you before the deadline of the 6th April.

Regards

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Tink, just to offer my 5p worth :

to reassure you about where the Judge might be coming from, he/she is just applying CPR 26.4 (CPR - Parts and Practice Directions). Like a lot of the rules governing the Court process, Judges have latitude to direct the parties to do more or less whatever they like. It really is best just to go along with it - I think you've already decided to do that.

 

As to your draft, in the middle, the bit about "I believe that this is a fair attempt at a settlement" comes so soon after you talking about their GOGW that the "this" in "I believe ...." could be misinterpreted as the GOGW - which is clearly not what you meant !! Do you see what I mean ?

 

The other problem is that, playing Devil's Advocate, your letter isn't actually looking for a compromise - it's just restating your demand for 100%. Don't get me wrong, I can see the problem - why would you want to do anything else. But who knows how a Judge would respond. So I've got three alternative suggestions

  • also include reference to the fact that, if they settle now, they can avoid further accruing interest and you claiming the costs associated with preparing your Court bundle (£9.25/hr);

  • let them make the first real move - just draw their attention to the Direction and simply invite them to make you a sensible offer. How about :

You will be aware that on the 7th march, Judge x.x.x.x.x of Bury County Court has ordered a stay for settlement in the above claim until 6th April.

 

Taking into account the goodwill payment of £165 which you credited to my account on the 8th January, the outstanding amount which I am claiming is £1621.85.

 

I am just writing to confirm that I am perfectly willing to consider any fair and reasonable offer to settle this claim. I look forward to hearing from you. It would be helpful for me to receive your reply by XXXX in order to give me time to consider your proposals prior to the Judge's deadline.

  • go straight in with an offer to settle at £1500, take it or leave it, no negotiation. Nice round figure. Bird in the hand etc. Give up £121.85 ? Only you can decide.

Regards, Mad Nick

 

EDIT - the more I think about the last option, the more I think it's what I'd do - because this is effectively the Judge directing the Bank to settle - Abbey would be very foolish to say no to any figure you quoted

Abbey £8370 settled 17 Apr 07

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Thaks for your comments Mad Nick. They were very helpful. Ive amended my letter slightly, me and boyfrend have agered to offer to take £1550.

Hopefully this should now settle it and tbh we could really do with the money. Ill post the new letter up:

 

James Arrandale,

You will be aware that on the 7th march, Judge Duerden of Bury County Court has ordered a stay for settlement in the above claim until 6th April. In my opinion I have given you ample opportunity to settle this claim which was started on the 12th December.

In accordance with the Judges request I again make an attempt to settle this matter.

Taking into account the goodwill payment of £165 which you credited to my account on the 8th January, the outstanding amount which I am claiming is £1622.13

Just to clarify, this amount is comprised of the following:

£1278.50 – Total amount of charges

£288.63 – 8% Interest as per s.69 of the County Court Act

£120 – Court fees

£100 – Allocation Questionnaire Fees

Total minus Goodwill Gesture £ 1622.13

You should note that the courts are aware that you have yet to take a single case to court and have settled every single one prior to this. As mentioned on my Allocation Questionnaire (which you have a copy of) I also bring to your attention a similar case (6QZ84736) at Lincoln County Court where it was ordered (28 December 2006) that “The Court of its own motion is considering striking the Defense out as an abuse of process on the basis that it has settled all previous claims of this nature. Therefore, I feel that it would be a waste of all our time to prolong this matter any further.

To bring this matter to a close I will be prepared to accept an offer of £1550. I believe that this is a fair attempt at a settlement and would be beneficial to the both of us as interest is accruing daily on the claim and would prevent any further cost to myself.

I will give you until the 30th March to respond.

I look forward to hearing from you.

Regards

 

I know its a little blunt at the end but I didnt want to give them any leeway as in I dint want them to think that Im going to negotiate. I want the amount stated and nothing less. So hopefully if our ink comes today Ill send the letter and Ill email it to james to.

 

Thanks for your help.

 

Tink x.x.x.

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For what it is worth Tink, I think you are giving them too long to consider the offer - 5 working days is sufficient as far as I am concerned. Just a thought but I really would not allow them any more room to wriggle than that.

 

SD

 

PS Good Luck - you are nearly there.

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Have been reading your case and really impressed with your determination and persistance. Don't get disheartened,you're an inspiration to us all.You've done really well and hope you get your money soon.

I hope that I can show the same nerves of steel that you have once I start my own case against them!

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Rright everybody,

The letters gone of to James arrandale today. I comprimised and gave them 14 days from today to respond so now just a waiting game for me. Id like to think the end is near but I wont hold my breath - lol. Also sent James an email and requested a read receipt.

 

Fingers crossed for me peeps.

 

Tink x.x.x

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I envy you- I submitted my AQ (deadline was up on the 3rd) and heard nothing at all. Abbey didn't even have the courtesy to send me a copy of theirs.

 

By your timescale hopefully I've only got a few days more to wait.

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