pmahonc V Abbey

[charleyfarley]

Hi pmahon,

 

I'm surprised Abbey have filed an AQ but there you go.

 

 

With regard to your AQ, I am at a similar stage but I wonder if you could have a look at my thread and let me know what you put in "G"

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/55539-charleyfarley-abbey.html

 

Many Thanks

 

CF

[webbster]

hi, i am at the stage of going to court, abbey wrote to me asking for my phone number, maybe to do a deal, then they sent me a copy of their allocation questionaire. I have recieved a date when the judge will decide what to do, what should i do now? Should i prepare to go to court?

 

Thier AQ was only signed by Abbey, i think they are trying to use scare tactics cos they changed the court which is further away for me, i am continuing my case........... Go on CAG regain the right!!!!!!!

 

If anyone can help in this matter let me know

 

Webbster

[pmahonc]

Charleyfarley

I must admit that i'm not surprised that they filed an AQ seeing as i'm after them for 28.7% contractual which brings it up to a total claim of just under £11,000 and that's without costs etc.

 

pmahonc

[pmahonc]

Has anybody seen the news recently, On the bbc news page it's got an article about the OFT statement that was due out this month, It seems that they are not going to do that but have decided to make an even deeper investigation, as they expect that if they cap the charges like they did with credit cards, all the banks will do is move the charges else were. The new OFT statement is now due towards the end of the year.

 

pmahonc

[pmahonc]

Also in the Business section of the bbc site they make mention of No win, No Fee companies are now moving in to reclaim bank charges for people and are only charging 25% ?????? of any money they win back.

 

pmahonc

[charleyfarley]

Charleyfarley

I must admit that i'm not surprised that they filed an AQ seeing as i'm after them for 28.7% contractual which brings it up to a total claim of just under £11,000 and that's without costs etc.

 

pmahonc

 

 

pm,

 

They'll take that all the way to the court steps then.

[pmahonc]

Charleyfarley

That's what i'm expecting also the fact that i sent them the AQ by email to them on thursday 22nd and the deadline was the 26th, which only gave them one day to respond and that i put down on the AQ about the default they applied and handing my account over to the debt collectors as intimidation to get me to withdraw the case AS IF.

 

pmahonc

[pmahonc]

just received this morning, N154 from the court.

 

Notice of Allocation to the Fast Track

To the Claimant

 

In the

 

 

GLOUCESTER

 

County Court

 

Claim Number

 

 

7GL00308

 

 

Claimant

 

 

 

(including ref.)

 

 

 

Defendant

 

 

Abbey National Plc

 

 

(including ref.)

 

 

TS6 B03.BCT

 

 

Date

 

 

03 April 2007

 

 

 

 

 

 

DISTRICT JUDGE xxxxxx has considered the statements of case and allocation questionnaires filed, and allocated the claim to the fast track.

The trial of this claim will take place during the period commencing 06 August 2007 and ending on 24 August 2007 at a venue to be notified.

IT IS ORDERED THAT

1. The Claim is allocated to the Fast Track.

2. Each party shall give to the other party standard disclosure of documents by serving a list of documents [by serving copy documents with a disclosure statement] by 4.00 pm on 24 April 2007.Court bundle ? + Disclosure by lists

3. All request for inspection of [or copies of] documents must be made by 4.00 pm on 1st May 2007.

4. The parties mutually disclose by 4.00 pm on 5th June 2007, the signed statements of all witnesses of fact on whose evidence they intend to rely together with any notices to rely on hearsay evidence.

5. No expert evidence being necessary no party has permission to call or rely on expert evidence.

 

6. Each party must file a completed Listing Questionnaire by 4.00 pm on 3rd July 2007. The parties must file with their listing questionnaires a succinct case summary and schedule of issues (which they must seek to agree) and, if any party seeks leave to call oral expert evidence, copies of the relevant reports and any joint statement(s) and/or replies to questions.

7. The matter to be listed for a Directions Hearing on a date to be fixed after 12 weeks with a time estimate of 30 minutes. (Date to be notified by the court)

8. The claim [issue] will be tried during the period ("the Trial Window") commencing on 6th August 2007 and ending on 24th August 2007. The provisional time estimate for the Trial is three hours and the parties must inform the Court if that estimate varies.

9. The parties are reminded of the provisions of the Practice Directions to [CPR 28 (Fast track)], concerning variation of direction and failure to comply with directions and in particular of the time within which applications to the Court should be made.

10. The costs of obtaining this order be in the case.

 

Is it me or does 6 conflict with 5

also disclosure by lists, isn't this the same as the index on the front of the court bundle?

 

Wonder how abbey will react to this? almost finished my court bundle i could even get it filed and sent off by the end of the week.

 

one of the last bits i have to add to the court bundle is the updated schedule of charges. Seeing as how in my POC i have claimed for CI and if failing that 8% shall i include two seperate schedules reflecting both rates.

 

wonder if they will make an offer now?

 

regards pmahonc

[charleyfarley]

Nice one pm,

 

Number 2 on that list is the killer........by the 24th April they've got to tell you their charging structure:)

[webbster]

sounds a bit complicated to me! I should get a court date tomorrow. As they have already paid me some money does'nt that mean they have admitted that they owe me the money. Could you give me some advice on court bundles?

 

Paul

[pmahonc]

webbster

Unfortunately it doesn't mean they have admitted they owe you that's for the court to decide. The Court bundle is quite simple for the most part just tedious, You need three copies all identical. Yours which contains all the originals and one copy for the court and one copy for Abbey. You can get a sample which contains most of the documents you need along with a guide to the layout, just fill it out with documents that you think will help your case.

 

here's the link

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

don't forget to get a supply of ink and paper so far i think mine's up to about 350-400 pages long although I'm admittedly using only one side of a page as my printer doesn't support printing on both sides.

 

Actually the notice of allocation isn't that complicated it just looks it, each step has a date it has to be completed by so i just follow each step one at a time.

 

The real hard part will be trying to keep the claim intact if they make me an offer to pay all charges + 8% + costs.

 

regards pmahonc

[pmahonc]

Found this on the bbc website

 

BBC NEWS | Business | The true cost of bouncing a cheque?

 

pmahonc

[pmahonc]

thanks Karnevil

I'm doing that one along with the letter from andrew george, Guardian, bbc news etc...

 

pmahonc

[pmahonc]

been trying to finish off my Court Bundle and the desciption is as follows

 

Description Pages

Correspondence Claimant p 1 to 25

Correspondence Defendant p 26 to 33

Court Correspondence p 34 to 53

Latest Schedule of Charges @ 28.7% p 54 to 59

Latest Schedule of Charges @ 8.0% p 60 to 65

Bank Account Statements p 66 to 323

Relevant Law Summary p 324 to 326

Early Day Motion from House of Parliament p 327

Dunlop v New Garage p 328 to 329

UTCCR 1999 p 330 to 340

UTCA 1977 p 341 to 350

SOGA 1982 p 351 to 363

OFT Statement Summary p 364 to 367

Andrew George MP Press Release p 368

Settled Cases List p 369

BBC News Articles p 370 to 374

Yorkshire Bank Mechanics of Penalty Charging System p 375 to 377

this is the part ordered by the court.

2. Each party shall give to the other party standard disclosure of documents by serving a list of documents [by serving copy documents with a disclosure statement] by 4.00 pm on 24 April 2007.

I notice when i look at the example of disclosure list that there are several items on it that i do not mention in my court bundle. namely

(EE) -- Office of Fair Trading Report April 2006 (OFT842) - 35

(GG) -- House of Commons Select Committee on Treasury

Second Report: ‘Transparency in charging’ - 10

(HH) -- Report by Kendall Freeman on Liquidated Damages (May 2005) - 3

(JJ) -- Case Law Reference: Alfred McAlpine Capital Projects Ltd

v Tilebox Ltd [2005] EWHC 281 (TCC) - 2

 

Seeing as how i've included OFT summary of statement, is (ee) necessary.

Also can i just add the rest to the end of the court bundle?

TIA pmahonc

[pmahonc]

On the subject of keeping a claim intact to be able to claim contractual interest by refusing abbey's offers of paying all charges and costs, i was wondering whether or not the following arguement would stand up.

 

When the abbey return a dd unpaid some firms also charge for the dd so you end up paying for the abbey's charge of 35 and the firms charge of 25 so to be able to get the 25 back from the abbey { if they hadn't charged so much the dd would have been paid } you would need a decision from the court that the charges were unlawful. Plus to get a default from the abbey removed as i have not included the removal of default in my POC because it was applied after the n1 was issued, again a decision from the court would be needed.

 

Just thinking out loud.

 

pmahonc

[Mad Nick]

pmahonc, I've also been thinking how to keep the whole claim intact ever since they ambushed Glenn and dissected his claim. I suppose that saying you need a ruling on the charges for subsequent action is one way. FWIW, if they try to dissect my claim before Court, I'll be saying :

• this conversation/correspondence is "without prejudice"
  
• the interest part stems from the alleged mistake of law which resulted in me paying the default charges, so they cannot be separated
  
• and to stop them ignoring the WP caveat and telling the judge I refused their genuine offer to pay 100% of the charges, I shall give them a figure I would settle for (covering charges + interest).

HTH. Regards, Mad Nick

[pmahonc]

MadNick

I must admit i thought about the without prejudice route and then realised that they could just make a payment straight into the account without consultation as per their GOGW payments and therefore would not be subject to WP. and if they did that surely they could then argue that the charges have been paid which leaves us in the same position as glenn arguing just your second point.

 

regards pmahonc

[newbody]

re keeping the claim intact if they make a GOGW or payment direct into the bank in regards these type claims could we not say that thank you for your recent payment and we are prepared to accept it as payment towards reducing the amount of interest accuring off your clients debt and if any capital should be left after that then i will apply it to the most recent charges that were applied to the account until your part payment is negotiated leaving you with either XXXX in charges and XXX in interest outstanding or XXXX in charges acumalting interest as of now if this is not acceptable then please remove any monies paid otherwise i will accept this to be acceptable to yourselves and procced to pursue the remaining unlawful charges that are outstanding

 

Or words to the affect of the above

[pmahonc]

Newbody

I was trying to think along a more devious line of thought in that they may wait until the very last minute so we don't have a chance to respond until we are just about to go into court. that way we would have to say to the judge that they have made the payment and then explain the reasons that you and Nick have come up with to keep the claim intact. whereas if it's charges that have been levied against us by other firms because of the bank's action, then the whole point is that you need to have the judgement that the bank's charges are unlawful and the payment of the charges and cost's etc are secondary matters, and that for us to withdraw the claim before a court hearing would be Charges + Costs + CI at 28.7% + removal of default{s} that way the 28.7% is in some way restituition for the charges the firms have applied and the fact that in my case a default has been applied for over several months on my credit file because of the unlawful charges.

 

pmahonc

[Mad Nick]

pmahonc, newbody, I've sat here for a while pondering over both your words. On balance I think it might be quite dangerous accepting something, even in partial settlement with the words about offsetting interest first, which the Bank actually offered as 100% settlement of the charges. I've got this nagging feeling that there's probably something about offers and acceptance in contracts which means a Judge might rule that you accepted their offer (regardless of the words we wrap it up in). A bit like something can be a penalty however you dress it up (eg "Liquidated Damages"). And in contract law, there's certainly a need for unconditional acceptance of an offer of contract in the first place, but I'm not sure about this situation - if I have time I'll investigate.

So what would I do if they deposited a GOGW for 100% of the charges ? I think I'd just write to them rejecting the offer on the basis that the claim is an integral whole. The interest relates to the charges which were paid as a result of a mistake of law (the default charges). The Court must rule on the lawfulness of the charges in order to be able to consider the interest. Any other thoughts ? Regards, Mad Nick

[newbody]

i think the way that they offer the payment would come into effect on how it Could be Percieved

 

if it is an offer of settlement of claim ie full and final then I dont think a refusal of acceptance would not be frowned upon as it would not be settlement of our entire claim

 

if it is a GOGW then in most the letters i have seen on here and the one i have recieved they do not actually specify to what it applies though it is implied it is towards the charges issues so i think if you were to accept it you might be able to use the above argument

 

If it were on the court steps then i think the only option you really have is to make certain your disscussions with them is a WP conversation and to make it clear that any monies they have deposited as they are without your consent and knowledge you will deem it as not paid (due to the fact you cannot verify it as you are about to enter the court room and if it should be the case then unless they are prepared to accept it as payment towards the whole claim starting with the interest element then they are to remove it ) then if they were to bring it up in front of a judge saying we have paid the claimant the amount owing of the charges so that element should be deemed settled then

 

1 they would be in violation of a WP conversation

2 you would have recourse to say you cannot verify this to be true due to late disclosure by the defendant

3 you have made the defendant aware that if such a payment has indeed been made you are prepared to accept the payment as part payment of the entire claim not just one aspect of it

4 the payment though it happens to be equal or greater than the charges value is nothing more than tatics by the defendant to mitigate and minimise it's chances of losing by removing the fundamental act that bought this action about (Which has been the banks basic defense in SOL cases pay the 6yrs charges and claim SOL on the rest (as the lawfulness of the charges has never been proven))

5) That your action is not about the award of CI but is based on the actual lawfulness of the charges themselves and that the CI aspect is what you deem to be the amount that if the charges are deemed unlawful then that is the rate you believe you should recieve over sec 69 as it is in a contract and sec 69 is there for instances in a breach of contract where no restitutional rate is defined in a contract

 

FWIW i agree mad nick the best way is to accept no payments atall but to adress the way pmahonc was on about i think i would use the above to try and limit the damage

 

Thankfully I have had a GOGW which they had paid to me without my knowledge which i wrote back telling them to keep it and if they had paid it to remove it as i cannot verify my account due the fact they reclaimed my cards and books for it and passed it to a DCA and not to in future make any payments to me in regards this matter without my confirmation on the matter as i will deem it as not paid due to the fact i have no means of verifying it

[pmahonc]

newbody and Mad Nick

I like both your answers, in fact newbody i'm in the same boat as you except that i didn't or rather haven't as yet received a GOGW, I've done a lot of reading up on the CI Debate and i'm comfortable with all the arguements for and against it. The only problem i could see was keeping the claim intact and was trying to think of various way's the abbey are likely to try to trip us up {knowing how devious they can be}, now though i think i'll follow both of your reasonings and refuse any offers they come up with {unless of course they concede to all my demands}.

 

Thanks for clearing things up for me.

 

pmahonc

[pmahonc]

Update Sort of won

I've negotiated with abbey and received payment for £7036.33p in respect of my claim. They paid the money back into the account and re-issued me with an electron debit card, and access to the internet banking they also removed the default notice on my credit report. I've just logged on to the internet banking and found that they have charged me around £146 during the period that my county court claim was running, I've just rung them to ask for a refund of those charges and they said that they have refunded enough, i even pointed out that i will persue them through the court again if need be to get the charges back and all they said was "that was up to me goodbye". Oh well I'll just at add it to the list, i'll have to take them to court another two more times now instead of one.

 

Unfortunately i cannot make a donation this time as the money received was spent paying arrears on bills, But i'll will make a donation of 5% at some point.

 

regards pmahonc

[pmahonc]

Has anybody seen this probably everybody here i suppose.

A High Court judge has warned banks to stop behaving unreasonably when customers accuse them of levying unlawful overdraft charges.

 

Judge David Mackie QC issued the warning at the London Mercantile Court, in the Royal Courts of Justice.

He said some banks were wasting the time of claimants and the courts by pretending they would defend claims when they had no intention of doing so.

He added if banks continued to do this he might award damages against them.

About 300 claims for refunds of allegedly unlawful charges have been lodged at the London Mercantile Court this year.

Typically these have been referred from County Courts in the hope that one might be heard in the High Court and produce a test decision.

"If the banks had won, many fewer customers would have sued," said Judge Mackie.

"If the banks had lost, the claims would have been much easier to sort out than they are now," he added.

Fantasy

In such cases banks have so far settled out of court, usually a few days before their case is due to be heard.

This is fantasy because, at least for the moment, we all know that there will be no trial

 

 

Judge David Mackie QC

 

 

Expressing some frustration at this situation, Judge Mackie said: "On the face of things each case raises serious issues which the court would permit to proceed to trial.

"But this is fantasy because, at least for the moment, we all know that there will be no trial."

Brian Capon, of the British Bankers Association, defended the stance taken by banks saying they were confident their fees are legal.

"They take the court process very seriously, but ultimately they would prefer to settle disputes with their customers outside the court process," he said.

"Where a customer's complaint dates back over a long period or is complex the bank will need longer to investigate the complaint properly."

The consumers association Which? rejected this.

"It seems that the banks are deliberately dragging their feet in the hope that their customers will either give up or accept part of the money they are owed," said a spokeswoman.

Unreasonable behaviour

Judge Mackie pointed out that in some cases bank customers had tried to claim damages for stress and inconvenience.

Such claims have been unsuccessful so far, but he warned he would award damages in future if banks and their lawyers continued to:

• fail to respond to some claimants letters
  
• fail to negotiate for months and until a hearing date is set
  
• demand extra information from the claimants, knowing they had no intention letting a court hear the matter
  
• settle the case without telling the claimants they need not attend court
  
• fail to show up in court

"Looked at in the real world where there will be no trial these steps, which place completely pointless work and some anxiety on litigants in person, constitute unreasonable behaviour," said Judge Mackie.

"From now on we will generally be treating such conduct as unreasonable behaviour thus enabling any claimant who has been put to unnecessary work and inconvenience to be compensated for this."

Frustration

Judge Mackie's comments appear to reflect growing judicial annoyance at the banks' attempts to avoid a test case at all costs.

It would be helpful if there was a decision taken at High Court level to clarify the situation Nationwide

 

 

Judge Roger Kaye QC

 

 

Last month, Leeds Mercantile Court listed 77 cases in one day, all of which were settled out of court.

Afterwards, Judge Roger Kaye QC said "it would be helpful if there was a decision taken at High Court level to clarify the situation nationwide".

In Bristol County Court a successful claimant was recently awarded £84.41 in costs as the judge ruled Lloyds TSB wasted the court's time because it had had no intention of defending the claim.

In January, a Judge at Lincoln County Court threatened to strike out some banks' defences for abusing the legal process for the same reason.

At the time Judge Paul Collins, speaking on behalf of county court judges in London, said: "It would be very desirable to have a test case to see whether the arguments being put forward by the banks are sustainable or not," he said.

The latest warning from Judge Mackie left the banks with what sounded like a final warning. "There may be a need for a more radical approach if the number of cases continues to grow," he said.

[Lula]

Wow, Congratulations, and if it is any consolation, they did exactly the same to me, charges up to £160 by the time i had finished my first claim, so I propmtly started the second, got all that back, and now am on my third, charges over 6 years and 80 from this year - so good luck - its easy after the first one