Memnoch vs Lloyds TSB (inc. Contractual Interest)

[Memnoch]

I certainly did. I am also in the process of writing a reply to defence should the Judge ask for it, its going to included an arguement around standard defence being sent to me and them not looking into it at all (ie. "...a majority of the banking with Lloyds TSB is free...so thats what the £35 charges help pay for", obviously they have looked at my account where I pay for my banking privelages with them).

 

I really do hope the Judge allows me to reply to their defence, I would like the opportunity to make them sweat a bit.

[Memnoch]

As a note, I really hope Lloyds TSB look at the list of the settled cases that I have added to the AQ. I was a bit evil with that too see and added cases where I know Contractual Interest has been claimed and won just before the Court date.

 

Low baller anyone ?

[GaryH]

I really do hope the Judge allows me to reply to their defence, I would like the opportunity to make them sweat a bit.

You don't need the judges permission to reply to the defence. Its too late now though, as the reply would have to be attached to your AQ. Its not necessary anyway - save it for your witness statement.

[Mr Chips]

Very interesting thread - it looks like i may be going to court over a claim in which i have claimed contractual interest. I notice Stonelafter said that case law is very clear on the issue of reciprocity - any pointers??? Doea it involve the legislation concerning unfair contracts, & unfair terms in contracts ??

 

Thanks.

 

Mr Chips

[GaryH]

If there is any, I am not aware of it.

 

As ever though, if someone could show me something which substantiates contractual mutuality or reciprocity in the context that is relevant to our CI claims, then I would be very pleased to be proved wrong.

 

The only case law I have found in relation to CI is against the awarding of compound interest!

Westdeutsche v Islington BC

[Memnoch]

I could have sworn that I have seen 2 case laws relating to awarding Contractual Interest on theis site somewhere.

 

Why is it you can never find stuff when you are looking for it ?

[Movingon]

I was merely going by what I had been told by experienced people; I'm now having doubts as noone yet has shown ME any case law.

[Memnoch]

Ok had the following letter from the bank today, is it usual ?

 

Dear Memnoch

 

Thank you for your letter dated 26 February 2007 (well its only taken them 2 months to reply so that's good). I am sorry that you've not been happy with our response so far.

 

I am unable to add to our letter dated 21 February 2007. This is because we have already outlined our position on the points you have raised.

 

I know that you do not wish to accept our offer, but this is a gesture of goodwill and does not affect your right to take further action. I also want to let you know that the amount we've offered is the maximum we are able to award (they've awarded it to me !!! I thought it was my money anyhow, they had just taken it unlawfully).

 

Thank you once again for taking the time to raise your concerns with us.

 

Yours sincerely

 

Nik Pandya

Customer Services recovery Centre Andover

 

Is this usual ? Awfully nice of them to award me my own money.

 

On the same day I have received a 'Notice of Preliminary Hearing'

 

1st June 2007 at 10:00 am.

[photoman]

Dear LloydsTSB

Thank you so much for your "Award". I can only presume that this is in return for my outstanding contributions to the staff outing fund for so many years. Do I get a certificate with this too? I can put it in the loo, which could come in very handy also, should we run out of toilet paper.

Regards your final offer. Sadly, matters are now beyond allowing you to dictate and decide what is reasonable and fair. We shall instead see what the local judge has to say. Perhaps you could try to offer him one of your "awards" too? I gather that used notes in a black briefcase left in a carpark is customary for such "awards" ?

Bst regards

memnoch

[golfscape]

Hi Memnoch

 

Which court are you in? if its Bedford I will see you there! June 1st's going to be a busy day for Lloyds & SC&M

[GaryH]

Ok had the following letter from the bank today, is it usual ?

Yes.

On the same day I have received a 'Notice of Preliminary Hearing'

 

1st June 2007 at 10:00 am.

Expect SC&M to be there - or rather their barrister from a firm in Leicester.

[GaryH]

Oh, golf - weren't you going to PM me?

[golfscape]

Gary

 

Thanks for the Orton letter, I added the info to your emal and sent it back to you, let me know if its gone missing.

 

SC&M sent an agent (thats what he called himself anyway) I think it was a Mr West from Essex to my allocation hearing.

[Memnoch]

I have not been asked to take anything with me to this preliminary hearing, so I am assuming I just turn up and havea chat with the judge about why I am asking for what I am etc.

[GaryH]

Golf,

 

Sorry, yes I haven't checked my e-mail - I'll have a look.

 

Memnoch,

 

You'll want to be proposing directions at the prelim. See here - http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

[innocent]

Totally impressed with your knowledge Gary

 

...and even more very useful 'resources'....

 

 

 

 

(i'm reading so much every night; yet my reading list continues to grow lolol)..... gotta be prepared eh

 

 

Innocent :D

[Memnoch]

Erm how much fun am I having. lloyds TSB organised a meeting with my local branch manager last week where they upgraded my account to Platinum status and offered me all sorts of other wonderful things.

 

They have a plan I tell you. I have tried to be evil with my plans and they are trying to be as evil back to me. Im not going to fall for it though, because I am more evil than they are.

[photoman]

Erm how much fun am I having. lloyds TSB organised a meeting with my local branch manager last week where they upgraded my account to Platinum status and offered me all sorts of other wonderful things.

 

They have a plan I tell you. I have tried to be evil with my plans and they are trying to be as evil back to me. Im not going to fall for it though, because I am more evil than they are.

 

Dear Memnoch

Please come in and talk to one of our minions who will offer you one of our "Platitude" accounts.

It only costs a small fortune every month in fees, and in return we'll give you a free Britney Spears tribute band CD, a cheap plastic wallet to keep a record of your statements in (so you can see how much we are ripping you off by), and 5% off your Bus fares (provided you are under 5yrs old).

This is a great offer (for us), and just simply the fact that you've opened the envelope to read this letter we shall consider as being acceptance.

We shall start applying these charges immediately in the hope you'll not notice, and when you do we'll just get someone in the call centre to rustle up a signed agreement.

 

Yours insincerely

 

The guy you can never get to speak to.

[Memnoch]

That last bit about not being able to speak to anyone, they all seem to fall over themselves to help me when I go into my local branch.

 

Always get a nice cup of coffee etc. They are such nice people I feel ashamed about taking them to court now. But then again, they didnt show me this courtesy when I was not earning very much. Plus, it is my money isnt it.

[GuidoT]

Email now sent with PDF of all the Statement of Evidence documents.

[Memnoch]

Thankyou.

[innocent]

Hi all

 

 

What have you decided to take with you on the 1st??

 

 

 

Innocent

[Memnoch]

Hmmm .... Charges for a Service :

 

Taken from the statement of evidence I intend to use in the near future.

 

19. The Defendant contends in paragraphs 2 and 4 of its Defence that the charges levied are not intended to be liquidated damages but are instead fees chargeable for contractual services. The Defendant has clearly had to adopt this overly semantic interpretation of its own terms and conditions in order to avoid the necessary conclusion that the charges are penalties and thus unenforceable.

20 The Defendant’s interpretation of the purpose of the charges can however by readily discredited by an acknowledgement of the following facts:

• I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed services on my account or not. I recognise that as a result of my exceeding cleared funds that the Defendant was put to some additional work and expense and I recognise a liability for that. But that is a claim for liquidated damages, that is not an agreement to pay a fee for services.

• I had no alternative but to agree to the Defendant’s charges if I wanted to open the account. I could not opt out of the services or charges.

• If the Defendant’s interpretation were to prevail, all suppliers in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for services rather than damages for breach. Such a result would seriously damage the interests of the consumer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.

21. Further, I note that the Defendant’s contention that the charges are a service charge represents a contradiction to materials published by the bank previously. In correspondence with Lloyds TSB’s ‘Customer Service Recovery Centre’ in July 2006, Martin Orton, who is manager of the department, stated this in a letter:

“As you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs”.

This was in response to a direct and plain request to justify Lloyds TSB’s charges. Throughout the letter, no mention was ever made of the charges as being the cost of any sort of ‘service’.

22. As set out above, I submit that the Defendant’s charges cannot be considered to be a service charge. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by the Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held “in-terrorem" and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

23. I do not accept the Defendant’s contention that the charges are enforceable as a service charge. I do not dispute that the Defendant is entitled to recover its actual damages following my breaches and it is entitled to include in the contract a liquidated sum in that respect provided that that liquidated sum is a genuine pre-estimate of the Defendant’s actual costs or losses. I accept the Defendant’s right to recover its actual losses or a genuine pre-estimate thereof. However the charges as levied are a penalty and are therefore unenforceable.

 

I hope this helps reassure anyone concerned about the above argument that somehow Lloyds TSB won with.

 

I will beat them at their own game !!!

[GuidoT]

You need to edit out that post to remove font etc. It looks familiar though.

[Memnoch]

Done !!! :grin: