Stephen vs First Direct

[stephenwalton]

Claim Number 6QZ90097

 

Total charges: £3047

Interest £637.05

Filed MCOL: 03/12/06

 

Well, I've taken the plunge and filed a claim. FD have acknowledged with intention to defend, given them 28 days. Interesting swift response after ignoring LBA.

 

Any help / comments gratefully received. Site has been fantastic.

[stephenwalton]

Got my letter from DG offering £1902.03 in full and final settlement.

 

Any views on whether I should accept ("HSBC is confident that it would successfully resist the claim in the Courts"). If I don't, can I press for the whole hog - ie charges AND interest to date or is it best to just accept refund of charges.

[gill fleming]

Hi Stephenwalton.

 

I got my offer letter from DG last Thursday offering me almost the full amount. Sent letter back sameday accepting as part payment with intention to pursue for the whole amount. No reply as yet. Dont accept the first offer. If you read further threads you will see that they do this all the time. stick to your guns and you will get all of your money back. Think how much money they would save if everyone accepted the first offer.

Good luck keep us up-dated. gill

[androobe]

Never ever accept the first offer unless it is the full amount. This is the only reason why they delay claims - they know some people will give in. Still it out and you'll get the lot.

 

Of course they say they're confident, but they aren't or they would offer you zilch.

[stephenwalton]

Thanks for the reassurance.

 

Sent letter to DG declining offer on 20 December by recorded delivery and my intention to pursue the claim in full. Included yet another schedule of charges with a copy to Court Manager.

 

Will post updates.

 

Just watched BBC Money Programme online BBC News Player

 

Anyone know how to get a copy of this and whether anything in the prog would be admissable in court eg quotes from OFT, BBC's "bank commission" (re estimates of bank costs in the case of default charges) and if so in what format (clip, transcript ...). Need to put my court bundle together just in case ...

[stephenwalton]

Just got back from New Year celebrations to find that FD have filed a defence dated 4 December (this is odd as it is BEFORE the first offer of £1900). No details as to nature of defence, but I guess I receive this from the court?

 

Has anybody else experienced this? Anybody got advice on what to do?

[stephenwalton]

Well here goes - one final assault hopefully!

 

Received FDs defence from the court + Allocation Questionnaire. One query about their defence which I hope someone can answer.

 

"Pursuant to the Defendant's terms and conditions the Defendant is entitled to make a charge for its services as set out on the Defendant's price list, including an overdraft review fee for considering whether to provide and providing an overdraft."

 

Its the "overdraft review fee" that worries me. Have I missed something or is this just an attempt to justify the charges as a service as opposed to a penalty.

 

I have until 21 January to return the AQ, although where I am going to find the £100 from I don't know. Is it time to throw in the towel - I am quite nervy now.

[androobe]

Hi Stephen

I'm in exactly the same position as you now, except my claim is under £1500 so I won't have to pay the £100 fee. I'm going to wait until the last day to file the defence and expect DG to come back with an offer before that.

[stephenwalton]

I'll keep an eye on your progress androobe.

 

I am going to stick to my guns, but am toying between three options:

 

1. Wait until AQ deadline to see if an offer comes through

 

2. File the AQ in advance of the deadline and ask for 'order for directions' (see below) - that way I begin to dictate the pace of settlement not them (have waited long enough for this what with preliminary letters etc)

 

3. Write to DG informing them that I intend to submit draft order for directions to see if this speeds them up.

 

Has anyone had success with the order for directions?

 

 

 

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

 

 

Between

 

 

XXXXXXXX - Claimant

 

 

and

 

 

 

XXXXX - Defendant

 

 

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[stephenwalton]

Hypothetically, if you were to receive an for FULL SETTLEMENT but you didn't want to bound by the standard confidentiality clause how would you go about wording this and would it compromise the offer of settlement?

 

Also could you ask for payment by cheque or into an alternative account within, let's say, 7 days as AQ deadline might not yet have been reached.

 

I assume it would be also worth, in these circumstances, stating that until the settlement is received and cleared that the case remains open and the bank would be liable for further costs incurred in submitting an AQ.

 

Prompt response from anyone would be appreciated.

[stephenwalton]

I thought I saw a letter somewhere which someone had drafted for this - damn me but it is the only thing I have't been able to find on the site.

 

I don't want to cock up at this final stage!!

 

:D

[stephenwalton]

Any thoughts on this draft letter, anyone?

 

My house, my street

My town

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

11 January 2007

Dear Madam,

Chester County Court, Claim Number 6QZ90097

Stephen Walton v First Direct

Thank you for your letter dated 10 January 2007 informing me of HSBC Bank plc’s preparedness to offer an ex gratia payment of £3815.45 in respect of the above claim.

I am willing to accept HSBC’s offer as a full and final settlement on this claim on the following terms:

• funds to the sum of £3815.45 are credited to my ABC bank account, sort code xxx, account number yyy;
  
• the sum of £3815.45 has cleared the above account by close of business on Thursday 18 January 2007;
  
• I will not be bound by confidentiality in respect of either the claim or the ex gratia payment.

The above terms are reasonable and give HSBC sufficient time to bring this litigation to an end. Should HSBC not comply then I will proceed to submit the Court Allocation Questionnaire on Friday 19 January, together with

• a request for an order that the defence be struck out as it is an abuse of process on the basis that the defendant has settled all previous claims of this nature;
  
• a draft order for directions.

This will necessarily result in additional costs, for which I will hold HSBC liable in the event of judgment against them.

I look forward to a speedy resolution of this matter.

Yours faithfully

Stephen Walton

[stephenwalton]

Update

 

Letter faxed to DG on 12 January and receipt acknowledged verbally in telephone conversation. Then things became less clear when asked about date of payment. Was told that I would have to wait for written confirmation of my acceptance, which would not happen until the letter was processed. This would start 15 January, but no idea when it would be complete. THEN, a further 10 days for funds to clear in the account. I pointed out that First Direct had said funds could be cleared within 48 hours from them receiving confirmation. Very shirty reply to the effect that I must wait, things are done to their timescale not FDs (!) and that the whole thing would not be settled for 3 weeks at the earliest.

 

So it looks as though I will have to file the AQ after all - due on or before 21 January.

 

DG now not returning my calls - several voicemails left with Rachel Tomlinson, but yet to speak to her.

 

I just want the money now - they've had it long enough ....

[dubliner10]

Hi Stephen,

 

Sorry if this is at a tangent to your thread, but I've sent off my prelim to FD yesterday. Any ideas if I can insist on any settlement being in the form of a cheque. Reason I ask is we have a debt management plan to pay back debt to FD and several other creditors, and I don't want FD just knocking the settlement off what we owe them.

 

Any advice gratefully received.

 

Good luck with your claim by the way, thanks for the thread it's been very useful.

 

Dubliner:)

[stephenwalton]

Dubliner,

 

I can't advise with any authority although I have seen threads in which people have been advised to ask for cheque once an offer of settlement is made - I don't think that FD can settle on the condition that the funds are used for any particular purpose. Before that I think how you are paid is not the issue - you need to get them to pay first and this may take you into litigation, as it did me.

 

My own feeling is that once an offer is made you should accept only on YOUR terms and not theirs - but keep the litigation going, if necessary asking for a stay of proceedings and extension to AQ deadline (see below). Hope this is of some help.

 

In my case 'negotiations' consists of a series of messages left on DG answer phones with no reply - feel like I'm negotiating with myself. FD say they can pay within 48 hours once they hear from DG but can't instruct DG to pull out the proverbial (or won't?).

 

 

Street

Town

Postcode

 

Tel: (home)

(work)

Email:

 

 

The Court Manager

Somewhere Court

 

 

Date

 

Dear Sir / Madam,

 

 

Somewhere County Court, Claim Number xxx

You v First Direct

 

 

I am writing to request a stay of proceedings related to the above claim and would be grateful if this request could be considered by the Judge. The circumstances relating to this request are set out below.

 

I am in receipt of an offer of settlement from the defendant’s solicitors which I have, in principle, accepted. Negotiations surrounding this settlement are not finalised and I have not, as yet, received payment from the defendant. In order to give the defendant reasonable time in which to honour the offer, I respectfully request a stay on proceedings and an extension to the deadline for the submission of the Court Allocation Questionnaire due on or before "Date".

 

I am concerned that the offer of a settlement is not abused by the defendant in attempt to dissuade me, by default, from pursuing my legitimate right of seeking a judgment from a court.

 

Should the defendant not honour the offer of settlement in what the Court considers to be a reasonable time from the date of offer, I would like to retain the right to pursue the matter through litigation.

 

I would be grateful if you could look favourably on my request for a stay of proceedings in the light of the above.

 

Yours faithfully

[dubliner10]

Thanks again Stephen

[stephenwalton]

Almost there ...

 

Letter from DG dated 17 January confirming acceptance of the offer (for the lot) and gauranteeing money in my account within 7 days. Once the money is in I will be making a donation to the site - without it I doubt that I would have got to this happy outcome.

 

I have RBS next in sight for a Platinum card - anyone advise whether the process is the same for recovering late penalty fees and overlimit fees from credit card companies - and can I claim back the new lower charges (£12 jobs). I'll check out the RBS forums, but anyone have experience of dealing with RBS?

[stephenwalton]

Chalk up another win v FD

 

Money in my account this morning for the full amount £3815.45. No confidentiality clause, so chalk this one up as a WIN.

 

Will be making a donation to the site just as soon as I get the money out of the FD account into somewhere safer!

 

RBS are next in my sights for late payment / overlimit fees on a Platinum card. Bring it on.

 

So pleased that this was so straightforward thanks to everyone at CAG. A big thank you.

[heavy_t]

Been reading this one with interest. Congratulations!

[stephenwalton]

Thanks heavy.

 

Please can a moderator mark up this thread as SETTLED / WON?

[stephenwalton]

Court informed of settlement - hope the last paragraph might help others going through the Chester County Court.

 

My street

My town

The Court Manager

Chester County Court

Trident House

Little St John Street

Chester

CH1 1SN

22 January 2007

Dear Sir / Madam,

Chester County Court, Claim Number 6QZ90097

Stephen Walton v First Direct

I write to inform the court that the claim as detailed above, in which I am the claimant, has now been settled in full by the defendant. As such, no further action is necessary in this claim.

I wish to apologise to the court for the wasted time spent processing and managing this claim, but would like to add that I made numerous attempts to resolve the matter before the commencement of litigation, which were each time rebutted or ignored by the defendant.

It is submitted that the defendant had no intention of defending this claim, and I think it reasonable to infer that filing a defence was solely an attempt to dissuade me from pursuing my legitimate right of seeking a judgement from a court. The pattern of the hundreds of cases settled by the banks in identical circumstances would seem to support this contention. Indeed, Judge Tooms in the Lincoln County Court has recently issued six orders addressed to defendants in similar cases striking out their defences as an abuse of process on the basis that the defendants have settled all previous claims of this nature.

Yours faithfully,

Stephen Walton