lesley. V. A&L **WON**

[dizzykate]

my defence is exactly the same as yours!!

[lesh45]

this is where the customer ( the claimant)presents an item for payment that the defendant was or is not perpared to pay. this is currantly charged at £34 per item presented.

 

12.3) UNAUTHORISED OVERDRAFT FEE.

 

this is where the customer ( the claimant ) goes in excess of the agreed overdraft limit, or where the customer ( the claimant ) never had a overdraft limit and went overdrawn.

The charges for this is £25 for the first day and then a futher £25 in the customer ( the claimant) remains overdrawn for five days or more during the month.

 

13) the charges which have been debited to the claimants account is the last six years in these three categories are set out in attached schedule

 

14) These charges were incurred as follows.

 

14.1) the paid item fee is a charge incurred where the claimant presents an item for payment which, if honoured, would give rise to the claimants account being overdrawn in excess of any overdraft limit at that point agreed between the parties, and where the defendant decides nevertheless to make payment in relation to the itme.

 

14.2) the failed transation fee is a charge incurred where it is necessary to return a cheque or other item unpaid as a result of the claimant presenting an item for payment which, had it been honoured, would have given rise to the claimants account being overdrawn in excess of any agreed limit.

 

14.3) the unauthorised overdraft fee is a charge incurred where the claimants account becomes overdrawn and no overdraft facility has then been agreed in advance by the claimant, or becomes in excess of the overdraft limit at the point then agreed between the paries.

 

15) As to any allegation ( if any ) that these charges are penalty clauses, they are not, the charges are administrative fees levied by agreement in the circumstances set out about. they are not charges by the way of damages for breech of contract. the charges are thus not capable of constituting penalties, and the principles of law in relation to penalty clauses have no application.

 

16) As to any allegation (if any) that these charges are unenforceable undaer the unfair contract terms act 1977, the charges are administrative fees levied by agreement in the circumstances set out above, as such the unfair contract terms act 1977 has no application to these charges.

 

17) the terms are not in any event unreasonable in relation to the services in question.

 

18) as to any allegation (if any) that these charges were unenforceable under the unfair terms in consumer contracts regulations 1999.

 

18.1) the charges are administrative fees levied by agreement in the circumstances set out above, there are not levied contary to the requirment of good faith and do now cause any or any significant imbalance in the parties rights and obligation arising under the contract to the detriment of the claimant. in consequence, by reason of section 5 they are not unenforceable.

 

18.2) the terms relate to the price or remuneration as against banking services supplied in exchange, as explained above. in consequence, by reason of section 6 they are not unenforceable as no assessment of the fairness of the term is to be applied to such terms.

 

18.3) the terms are not in any event unreasonable to the banking services in question.

 

LIMITATION

 

19) the charges incurred by the claimant at any time prior to six years before this action was commenced are statute barred by virtue of section 5 of the limitation act 1980.

 

20) the charges incurred by the claimant were in accordance with the defendants standard terms and condition agreed to by the claimant when the claimant opened the account with the defendant.the charges were incurred as part of the banking service provided by the defendant and calculated in accordance with defendants terms and conditions agreed to by the claimant. the claimant was notified in monthly statements of the charges to the account as provided for by the terms and conditions.

 

21) the claimant has been aware or ought to have been awear of the charges incurred from the date of eact statements. the charges are open and apparent on the face of each statement

 

22) it is denied that there has been any fraud on the part of the defendant which , in any event, the claimant has failed to particularise or substantiate agains the defendant. it is denied the the defendant has concealed any of the charges and it is denied that the claim is for relief from consequences of a mistake. the claimant knew or ought to have known of the charges when they were levied and section 32 of the limitation act 1980 is not applicable. the defendant has no duty to advise the claimant on the law, and there is no fraudulant and/or any concealment just because the claimant did or did not know whether a legal remedy was available.

 

Interest.

 

23) it is denied that the claimant is entitled to interest as is alleged or at all.

 

CONCULSION.

 

By reason of the facts and matters set out above, it is denied that the claimant is entitled to the loss and damages as pleaded. the claimant is not entitled to the relief sought , or any relief.

 

 

 

WELL SORRY IT IS LONG, BUT LET ME KNOW YOUR THOUGHTS ON IT PLEASE.. I WOULD LOVE TO HEAR FROM YOU !

 

will let you know of the court date when it arrives.. and keep you all informed as it moves along now..

[lesh45]

dizzy kate.. have you heard from the court with a copy of the defence ? and i htought it might be.. keep me posted on how you are going.. ok..

i am posting my back to the court this coming Tuesday will have to wait for the court date then i suppose.. nice to hear form you

[lesh45]

please can anyonme tell me where the letter is that you in with the AQ that states you want the defendant to disclose their fees ( in other words they have to show the true charge and how much it actually cost them.. i cant find it any where and wanted it to go in my letter to the court.

 

many thanks

[dizzykate]

hiya lesley

 

is this what you mean

 

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. .

 

Its in the templates bit at the beginning

 

I went to court with the AQ today and they were on strike so will have to go tomorrow!!

 

kate

[lesh45]

thanks dizzy kate but i have that one .. it is the letter that you need to sign stateing it is a statement of truth... i could really kick myself as i fond itonce then lost it and like a fool i didnt save it

[mcuth]

please can anyonme tell me where the letter is that you in with the AQ that states you want the defendant to disclose their fees ( in other words they have to show the true charge and how much it actually cost them.. i cant find it any where and wanted it to go in my letter to the court.

 

many thanks

 

Not quite sure what "letter" you mean (you don't have to put a statement of truth on a letter - and neither the AQ nor the Draft Orders require a statement of truth)...the Draft Order is indeed the document that is a proposal for an order from the court for disclosure (revealing costs).

 

All the AQ stuff can be found here (guide to completion) and here (new strategy with the draft order - more of a discussion, since the draft order is already in the "guide to completion" section)

 

HTH

 

Cheers

Michael

[lesh45]

so do i only need the letter that dizzykate has put up in here .. thats to go with the AQ back to the court. with the cheque for £100. Is their any other letter to go with it

 

the reason why i ask about he other letter was... when i recieved my defence it laid out all the things they were defending and at the end their was a statement of truth that the solicitors signed..

i was thinking that i had to do the same sort of letter. and sign it saying that it was true ...

[Guest ChloeJane]

Hi There...

 

Yes what Dizzy put is correct and Mcuth.

 

Part H of an N150 is where you print off what Dizzy sent you.

 

In part H just put the words where it says particulars of claim -

 

"as per attached".

 

What you are asking for is the court to note your particulars of claim. It allows them to view overall, what you seek and how much time is needed to allocate to your case.

 

This is why there are questions on there such as witnesses etc. It really is a court document used to allocate time and often to give the other side an insight into what you are seeking from the time in court and what you aim to achieve.

 

What you are asking for in more simple terms from what is written is for them to disclose their true costs. As these are far less than the OFT has allowed for, that is why they do not defend! So you can be assured this is a process, but one that you need to understand so you don't get caught out if you are asked questions.

 

So add dizzies particulars of claim by copying and pasting to a word document attach it to the AQ and your done other than the note below!

 

If you had previously failed to include a list of charges and their dates etc, this is your opportunity to do so.

CJ

[mcuth]

so do i only need the letter that dizzykate has put up in here .. thats to go with the AQ back to the court. with the cheque for £100. Is their any other letter to go with it

 

Yes, that's all you need - no, there's nothing else. It's all laid out in the guide to completion.

 

NB - once you know them, it's really more helpful if you could refer to documents by their correct names (i.e. "Draft Order" rather than "a letter"), just so everyone trying to help can see what you're referring to. Although you can write letters to the Court/DJ, there's usually little need to - mainly because there's a type of document for everything involved in a case - whether that's a downloadable form, or just setting it all out on a piece of paper in the correct manner (e.g. the Draft Order is just that)

 

the reason why i ask about he other letter was... when i recieved my defence it laid out all the things they were defending and at the end their was a statement of truth that the solicitors signed..

i was thinking that i had to do the same sort of letter. and sign it saying that it was true ...

 

Riiiight, ok, statements of truth only apply to certain documents - e.g. witness statements, statements of case, etc.. (list here). As ChloeJane explained, these docs are pretty much procedural, so they don't need a statement of truth. There is an option of replying to their defence, which would need a statement of truth (and sending back with the AQ), but that's an optional document and should only really be attempted if you're extremely confident of setting out rebuttals and counter-arguments to their defence, and really only if there are points in the defence that really need replying to before any hearing.

 

Cheers

Michael

[lesh45]

A extra BIG THANK YOU.. for your help. i have today 3rd May 07 put my AQ in at the county court, and paied my extra £100 to go with it.. so all i can do now is wait to see what happens and go over my files and make sure they are complete and all in order... will keep you all post...

 

my Husband has started his claim today just sent of his SAR letter that for our joint account.. will keep you up date with a new thread on his name to let you all know how that one goes.

[mochamoo]

N/A;)

[lesh45]

up date. i have now got all my court folders ready and i am handing them in to the county court this thrusday.. all i can do now is go with the flow and wait it out.. court date next. and i know i am going to be the unlucky one and end up in court. i know it only nerves.. but my heart has been going 60 times faster than it should be at the moment..

 

they should pay out on compensation for stress for this lot. blimey ( holds forehead "oh the trumor" )..~laffs~

 

will up date once i recieve a court date..

[dizzykate]

hi lesley

 

do we have to do the court bundle now or do we wait until we have got a court date. I have done the AQ and emailed amended schedule to Wragges (I copied the partner whose initials were on the letter in dont know if I should of done that!!)

[kerrianne]

hiya lesh 45 and dizzykate

 

just wanted to congratulate you both on getting so far with procedure to claim your charges, you are both so close now and will soon be celebrating big time i hope.

 

just to update on my case have received usual bog off letter and further standard letters from a&l and have responded with lba and spreadsheet of costs, and now in middle of doing court application im using the N1 approach in the hope it may be a quicker route as most people doing mcol. is this a good or bad idea id love to know?

i have filled in N1, and attached schedule of charges, but i have read that £120 is only for mcol do i need to pay this for N1 approach? im a little confused:confused: best wishes to you both keep up the pressure.

kerrianne

[lesh45]

hiya kate......when i read the letter that you send into the court with the AQ i read that it said ( you the claimant will send all files within 14 or it will be struck out ) thats to say if you dont get your folders in within the 14 days then your side will have collapes and it will be struck out.

 

my 14 days are up this monday. so i getting my ones in to the couty court tomorrow ( thursday )..

 

keep in touch with your one and good luck.

[dizzykate]

hiya lesley

 

righty oh am getting onto this tomorrow and doing the bundle will take it to the county court on friday I got a copy of their allocation questionnaire and they are trying to get it in the fast track not the small claims.. and they want 2hours to hear it but they have no witnesses not even themselves!!!

 

good luck to you too will keep you updated of any more progress...

 

Kate

 

good luck to you too,

[lesh45]

well i have gone over to the court today. and have handed in my file. and have posted off another copy exactly the same to A&L solicitors. in my AQ i have asked for small claims NOT fast track.. and i have also asked on my AQ for the bank to give me a full disclosure of cost.. so i am now waiting for the next step and will keep you posted..

 

thanks again everyone for all your help and support, with out it i would never have got as far as i have.. ~S~

[lesh45]

yet again more help needed.. should i have photocopied and copy of my AQ and sent it to A&L solicitors.. or will the court do this.. as i am not to sure on this one .. the problem is i have already sent in my AQ to the court. and if i should send a copy to the other side then i need to go over to the court and asked for a photo copy of my AQ.. maybe just me panicing over nothing but i am not to sure on this one

[mcuth]

yet again more help needed.. should i have photocopied and copy of my AQ and sent it to A&L solicitors.. or will the court do this.. as i am not to sure on this one .. the problem is i have already sent in my AQ to the court. and if i should send a copy to the other side then i need to go over to the court and asked for a photo copy of my AQ.. maybe just me panicing over nothing but i am not to sure on this one

 

I'm not sure that it's absolutely necessary (though the court would confirm) - however, it is a point of etiquette that you should copy the other party in as well as the court. Of course you should always always always keep a copy of everything for yourself anyway....

 

Cheers

Michael

[lesh45]

Thanks.. i will have to go to the court tomorrow and asked very nicely for a copy.. i just cant believe how stupid i have been over this..

 

thanks all.

[lesh45]

i popped along to the court they were very nice and said they would send a copy to wragge & co for me that way i wouldnt have to pay out any more money... which i thougth was very good of them... and they also told me that my papers are now in front of the judge for direction.. just waiting for a letter to say some thing like file/serve. then it the court date.

 

looking at others post it seems like they going to court now looks like a fight to win.. can i appoint a solicitor at this late stage for myself if needed one ? or am i better doing it myself. bit stuck on that one.

 

will keep you posted

[mcuth]

LIMITATION

 

19) the charges incurred by the claimant at any time prior to six years before this action was commenced are statute barred by virtue of section 5 of the limitation act 1980.

 

20) the charges incurred by the claimant were in accordance with the defendants standard terms and condition agreed to by the claimant when the claimant opened the account with the defendant.the charges were incurred as part of the banking service provided by the defendant and calculated in accordance with defendants terms and conditions agreed to by the claimant. the claimant was notified in monthly statements of the charges to the account as provided for by the terms and conditions.

 

21) the claimant has been aware or ought to have been awear of the charges incurred from the date of eact statements. the charges are open and apparent on the face of each statement

 

22) it is denied that there has been any fraud on the part of the defendant which , in any event, the claimant has failed to particularise or substantiate agains the defendant. it is denied the the defendant has concealed any of the charges and it is denied that the claim is for relief from consequences of a mistake. the claimant knew or ought to have known of the charges when they were levied and section 32 of the limitation act 1980 is not applicable. the defendant has no duty to advise the claimant on the law, and there is no fraudulant and/or any concealment just because the claimant did or did not know whether a legal remedy was available.

 

Hmm, Lesley I just noticed this part of the defence - have you claimed back charges going back over 6 years? If so, did you make any mention of it in your PoC? Actually, it might be a good idea if you can post the PoC that you used so that we can make sure they're ok and the defence is responding to the correct parts.

 

Cheers

Michael

[jayco]

Hi,

 

Have a claim with A&L at court, just got defence from Wragge & co the same as others posted

 

 

2 things

 

sent numerous charge lists, but they say i have failed to particularise the claim

 

claiming back to 8/9/00 and they have same statement as lesleys in that charges after 6 years are statute barred

 

they are asking for the case to be struck out

 

do i need to respond to them, or the court ?

 

claiming £3161

stat interest 633.20

total 3793.20

no charges ( I diddnt have to pay the fee to file the claim)

 

They sent me a cheque for £998 the day before acknowledging the claim and defense letter the next day. They are also closing the account and sent a letter saying so 5 days after i asked for statements!

[lesh45]

Dear Mucth..

 

i have just been able to get back on line and noticed your message to me... i have had a look at my poc and it appears that one has gone over the six years. which the date of that one is 23/01/2001 if i have got this right.. poc .. you mean my list of over draft charges including the dates of overdraft charges, and the interest at 8%... or have i go tthis wrong....

 

if i am right how do i amend it and put it right . if i can . and it isnt to late...