Fox Mulder vs First Direct *** WON! ***

[Fox Mulder]

And the best of luck to you! I'm not sure yet if they know the judgment has been set aside so am waiting until midweek, at which time I will write to suggest settlement to DG as outlined in templates found elsewhere on CAG.

 

I got my charges since the claim refunded, which kind of suggests to me that an offer at the very least is imminent from the bank. That said, they've run me ragged so much I'm more determined than ever not to settle for less. They don't do themselves any favours.

 

I was saying to a friend over the weekend, the way the banks conduct their business over the bank charge reclaiming movement tells me they simply cannot cope in terms of their business models with internet communities spreading the word and helping each other. Like so many in the past, they succeed a lot of the time through people being ill-informed and not talking to each other. I mean, when was the last time any of us chatted over the fence to neighbours about our bank accounts?

[Fox Mulder]

I got the AQ at the weekend. Am writing to the solicitors to give them seven days to settle before I file the AQ, as I will then be seeking further interest (because it is accumulating now day-to-day) and the £100 AQ charge so it makes sense for them to settle in advance of the AQ going in.

 

If they don't, I will state on the AQ that I am willing to hold off for one month while I try further negotiation so that the judge, as and when and if, will see without a doubt I have been more than reasonable.

 

Sent the following e-message today to FD, filed a copy for my court bundle as I do all e-messages now....

 

Dance the dance they make us dance - and win!

 

For the attention of XXXXXX, Customer Relations:

 

Dear XXXXXXX

 

It is now one week since I returned the form you sent to me but the charges incurred during the months of XX and XX (some of which were deducted in XX) have not yet been refunded to the account as was promised.

 

Please advise as to when I can expect these monies to appear, as it is my understanding the refund onto the account is not an involved process and can be done very quickly on a same day basis, therefore I see no reason for this not having already been completed.

 

I am also writing to the bank's solicitors today with regards to the amount being pursued up to the date at which my claim was filed with the county court. I am sure the solicitors will be keeping the bank advised on the current situation regarding this.

 

I would be most grateful if you could advise me as soon as possible on the refunding of the XX/XX charges. Thank you.

 

Yours sincerely,

 

XXXXXXXXXXX

[Fox Mulder]

I got the charges taken since the claim went to the court put back into my account today. There was a delay in responding to the form, I was pushed a few quid over my overdraft yesterday, so now I am demanding that the charge due to be applied for that be rescinded as it's only come about because the bank didn't act promptly on my declaration.

[Fox Mulder]

Sent today to DG:

 

Dear Sir or Madam,

 

RE: XXXXXX - v - FIRST DIRECT

ACCOUNT NUMBER: XXXXX

CLAIM NUMBER: XXXXXX

ISSUE DATE: XXXXXX

 

It has come to my attention that as of 19 June 2007, you have not yetfiled the Allocation Questionnaire. I am therefore taking the opportunity to approach you with an offer to settle the claim.

 

I require a response from you within seven days of the date on this letter, owing to the fact that the Allocation Questionnaire needs to be returned to the Court by XX XXXX 2007 if settlement has not been reached before then. Sufficient time is needed to ensure the court receives the paperwork before the set deadline, therefore I believe asking you for a written reply to this letter by 26 June 2007 is reasonable.

 

If my claim is not settled before the filing of the Allocation Questionnaire, I will regrettably require that the £100 fee be added to the amount of my claim. As of today’s date the sum claimed, including compound interest, stands at £XXXX plus £120 Court costs already incurred.

 

This means the total amount today stands at £XXXX.

 

I am mindful of the vast number of claims with which you are currently dealing. In order to more speedily resolve this matter, I am willing to accept the sum of £XXXX.

 

I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the Court would approve of our settling this matter as proposed.

 

I look forward to hearing from you.

 

Yours faithfully,

 

XXXXXXXX

[cookiecrumble2004]

Hi I'm still watching your thread with interest.

Just thought I'd let you know how I'm getting on with my claim. FD's AQ was due on the 21st May and by the 7 June had not been received. So I wrote to the court on 7 June asking for judgment. I've just spoken to the court and it appears they have now received the banks AQ and have accepted it!!! I was told a letter is in the post today and I have a court date of 27 Sept. I can't understand why the court accepted the AQ a month after the deadline and are prolonging the process further. I get the feeling the court is on the banks side.

 

I think it's time I started my own thread now!

[Fox Mulder]

Yes, definitely, do. It can help you and others! As for the AQ, I thought if it wasn't in by the due date, the claim is struck out if it's the claimant not sending in the form on time - so yes, I agree, the system definitely appears to favour large corporate interests when it comes to stretching deadlines.

[Fox Mulder]

I forgot to ask, cookie, have you written to DG, the solicitor's? There are a number of threads about writing to them while the AQ stuff is going on. This one is particularly helpful:

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires.html

[cookiecrumble2004]

Yes, I have written nudge letters on 17 & 25 May with no replies. I have just posted my story so far on a new thread take a look at Cookie v FD. I'm not sure what I should be doing now. I was so shocked by the news from the court. Do you think it's worth sending them regular nudge letters?

[Fox Mulder]

Not too regular as it might be construed as harassment. I'd say if you've tried twice to reach settlement with no reply, then DG isn't going to respond to a third or greater attempt. I will take a look at your thread.

 

I completed my AQ today and filing it tomorrow at court in person, with the £100 fee, and sending copies of AQ and attachments to DG as well by signed-for delivery. I'm asking for a Draft Order for Directions, which if the judge grants means I will then have 14 days from the date I get notice of my court date to send in my court bundle but DG will then have 14 days in which to do the same, which they're unlikely to do (but it's not beyond possibility). It might just mean I cut down on time spent waiting, and gives me a definite deadline by which I have to get my court bundle together and make it as watertight as possible.

[Fox Mulder]

I should add I believe the fact that DG routinely ignore any attempts people make to enter into dialogue and reach a settlement is going to look very bad to the courts, as the claimant is showing great willingness to reach agreement while the defendant's representatives are refusing to even acknowledge letters sent to them. My letter(s) to DG will certainly be included in my bundle.

 

Whether I get any replies or not, well. I wait to see. I intend to send them at least one more letter after tomorrow, suggesting settlement again but with the addition of the £100 court fee I have to pay for the AQ and WITHOUT any further accrued compound interest, suggesting that this saves them money (again) by settling before court.

 

If I don't get a response to that, I wait to see if the judge gives the draft order for directions, get my bundle in, and take it from there.

[Fox Mulder]

Filed the AQ today in person at the court, it was the last day to do so or the claim would have been struck out, and asked if the defendant (ie First Direct/DG) had to get its AQ into the court on the same day.

 

I was told yes, and that if the AQ wasn't in on time, the same would apply - that is, if the AQ doesn't come in on time, the defence can be struck out.

 

The question is: has this ever happened? I was told to call tomorrow as today's post hadn't all been opened, so there was a possibility the AQ had been filed in time. But what do I do tomorrow if there's no AQ filed by DG? Do I ask for the defence to be struck out, or does the court do this without my interaction this time?

 

I do recall reading several threads here on CAG that detail letter templates you can send to DG after you've filed your AQ noting that they've yet to file theirs despite the deadline having been passed - so what gives on that score?

 

I included the request for a Draft Order for Directions along with my AQ as well, so if they do submit theirs then I will send off my court bundle as soon as my court date comes through.

 

I'm confused at this point so any help would be appreciated. Thank you!

[Tiffla]

Hi, Fox.

 

It has been known for the judge to accept a late AQ for the solicitors by anything upto for or five days:mad: so i wouldn't hold your breath.

 

Call the court later in the week.

 

Best of luck!!

[Tiffla]

Me personally, i wouldn't remind DG that they are late in filing their AQ either - no need to remind them that they're running late - that's their problem;)

[Fox Mulder]

Thank you. That's a point to consider - after all, they didn't reply to my letter offering settlement prior to sending the AQ. I think it's basically rude how a professional and presumably massive company of solicitors can utterly fail to respond to so many people writing to them, people who are involved in court action the solicitors are employed to 'defend'.

 

Besides the charges issue itself, this ignorance itself reflects badly on their clients as well as them.

 

So do you think if they don't send the AQ, or send it in weeks late, there's a chance the courts would simply decide against them? I've been looking through the forums to see if there's any AQs that were sent in by DG a long time after the deadline passed and haven't found any examples yet.

 

I've come this far, though, and I'm prepared to take it all the way to the courtroom now. My letters in the bundle will already show I tried to be reasonable, and rational, and that for the most part FD and/or DG ignored all attempts at a negotiated settlement.

 

It really is time the banks were busted over these long-haul tactics which appear designed to 'fatigue' the claimant and abuse the legal process with ultimately no intention to defend on the day in court.

[Fox Mulder]

Mind you, DG will know they're late because I had to send them a copy of my AQ as per instructions by signed-for post yesterday. But yesterday was the last date given for filing, for both parties.

[Fox Mulder]

I received an offer letter from DG today 'without prejudice' - does this mean I cannot include it in my court bundle?

 

The offer made is approximately 65 per cent of the original amount claimed, without compound interest. It falls, therefore, considerably short of the current amount which grows daily.

 

They point out that I haven't taken into account some charge refunds - in any reply, should I reference that or simply say something like,

 

With regards to your statements on the amount of my claim, and its validity, and your interpretation of points of law, I believe it is best to let the court decide on all these matters if your client proves unwilling to reach a reasonable settlement with me prior to the date on which both parties are to appear in court.

 

What do you reckon? I'm thinking keep my reply as short as possible.

 

Furthermore DG references,

 

In the absence of a breakdown from you our client has conducted a detailed analysis of the account...

 

What rubbish is this? Absence of a breakdown? What's the statement of charges if not a breakdown?

 

Of by far the greatest concern for me right now--and I desperately need some knowledgeable input on this bit--is the following:

 

We have reviewed your claim and note that you seek to claim compound interest. In this respect we should like to refer you to the House of Lords decision in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (1996) All ER 961 where it was held that the Court had no jurisdiction to award compound interest either at law or under s35A on the Supreme Court Act 1981.

 

The rest of the letter is the standard rubbish, mindful of time... irrecoverable legal costs... ex gratia... blah, blah, blah. And of course they want me to sign a confidentiality agreement if I accept the figure offered, which I certainly don't.

 

So. Can someone PLEASE help on this compound interest stuff? Is DG right, or is it, shall we say, misdirecting? Thanks in advance!

[Talking Heads]

Hello Fox M, I received a simular letter regarding the interest, I'm tempted to take their offer of approx 85%, it covers all the charges and some interest, I'm wavering as I am not up to speed with the legal system and feel 6.5K is better with me with no more court issues etc.

[Fox Mulder]

But then, bear in mind they're not going to attend Court to argue their case.

 

I wrote a draft response, am going to post it in a second!

[Fox Mulder]

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

 

X XXXX XXXX

 

Dear Sir or Madam,

 

RE: XXXX - v - FIRST DIRECT

ACCOUNT NUMBER: XXXXXXX CLAIM NUMBER: XXXXXX

ISSUE DATE: XX XXXX XXXX

 

I am responding to your letter sent ‘without prejudice’ dated X XXXX XXXX, which was itself a reply to my letter dated X XXXX XXXX.

 

I do not accept your offer of an ex gratia payment of £XXXX as this falls far short of the amount claimed.

 

In my previous letter I wrote that if my claim was not been settled before the Allocation Questionnaire was filed, I would require that the £100 fee be added to the amount of my claim.

I again reiterate, however, that I am seeking reasonable resolution of this matter, and am therefore willing to forego any further accruing daily compound interest, and, furthermore, as a demonstration of good faith, to reduce the total sum that would be acceptable to me as full and final settlement of my claim.

 

I am willing at this stage to accept a settlement of £XXXX [note: this is with £100 lopped off from previous proposed settlement letter sent to DG].

 

I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

With regard to your statements made relating to the amount of my claim, and its validity, and your interpretation of points of law, I believe it is best to let the Court decide on all these matters if your client proves unwilling to reach reasonable settlement with me prior to the date on which both parties are to appear in Court.

 

I understand you have a policy of initially rejecting claims for overdraft interest. You should be aware that my claim for overdraft interest has been meticulously calculated and double-checked. It only ever relates to the cumulative charges within the overdrawn balance of the account at the point that the overdraft interest was debited.

 

I would point out to you that you were mistaken when you wrote,

 

In the absence of a breakdown from you our client has conducted a detailed analysis of the account.

 

You were mistaken because at every stage, from my preliminary approach to the bank onward, I have provided your client with a Statement of Charges detailing dates, amounts and reasons given for the charges, along with compound interest accrued.

 

I enclose an updated Statement of Charges with this letter, for your records.

 

Once again, I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am certain that the Court would approve of our settling this matter as proposed.

 

Yours faithfully,

XXXXXXXXX

[Fox Mulder]

I really REALLY need some advice from someone, please.

 

I've had today what is, by DG's standards, a very quick reply but they've only upped the offer on the table from their side by £100. The letter is clearly designed to rattle me, as it includes statements such as pointing out that 'parties involved in litigation are encouraged to communicate and negotiate with each other' (which is rich, as I made the first attempt to communicate and make an offer of settlement) and going on to state that they believe the client's offer has 'unreasonably been rejected and that they will 'bring to the Court's attention... that previous reasonable offers of settlement have been made and rejected by [me] and make submissions to the Judge on this aspect'. Again, I could say exactly the same couldn't I?

 

DG reiterates by various means that it intends to go to the wall on this (though one can only assume it won't be in the courtroom outlining a breakdown of why they think the charges are reasonable). The reason is clearly because I am claiming compound interest, which DG states categorically has no basis in law - which I assume is nonsense, given that many have successfully claimed compound interest.

 

Yet DG states there is 'no legal principle whatsoever which entitles [me]to claim interest on the basis of mutuality and reciprocity'.

 

The letter is ever so slightly softer in some respects, with me being given an 'invite to reconsider... a generous offer'. But it is £1,100 less than the claim including compound interest, correctly calculated as per instructions and advice on CAG, at the bank's standard authorised overdraft rate.

 

I have/had a bottom line below which I would not/do not wish to go in terms of settlement, and for that to be reached the figure has to be £700 more than what DG is putting on the table.

 

Bear in mind when claiming compound interest, it's entirely reasonable in my view to do so as there's no way I can pursue the bank for 'knock-on' charges incurred from third-parties such as utility companies for bounced direct debits and standing orders, charges which are often fairly extreme these days although nowhere near bank charges - we're talking four, five, maybe six pounds depending on the third party.

 

So. Help someone! Please! Advice needed on how to proceed from here. Do I lower my settlement figure to the absolute bottom line I am willing to accept? Or is there something else I should do? I don't yet know if they've even filed their AQ - one would assume so given their quick response to my letter this week - and I can't now find out until Monday.

[Fox Mulder]

I'm still hoping for some input from folks but I've put together this draft response:

 

RE: XXXXXX - v - FIRST DIRECT

ACCOUNT NUMBER: XXXXXX CLAIM NUMBER: XXXXXXX

 

ISSUE DATE: XXXXXXX

 

RESPONSE TO SETTLEMENT OFFER

 

Thank you for your letter dated X XXXX 2007. I respectfully decline your offer of £XXXX as settlement of my claim.

 

I thank you most sincerely for advising me that ‘parties involved within litigation are encouraged to communicate and negotiate with each other with a view to settlement of issues which may be resolved, in order to avoid intervention of the Court and resultant judicial time’. I was, however, already fully aware of these facts, having attempted to reach settlement several times to date.

 

It is therefore clear to me that genuine attempts to reach settlement have been repeatedly made on my part, and that your client has unreasonably rejected settlement offers made to date.

 

It is my intention in this respect to myself bring to the Court’s attention the fact that previous reasonable offers of settlement were made by myself, and were rejected by you on behalf of your client, and will make my own submissions to the Judge on this aspect.

 

You ask me to confirm to your offices the relevant legislation upon which I intend to rely in respect of my claim for compound interest, to which I answer that you are well aware this information will form part of my submission to the Court and you will, of course, be sent the material in due course as it is incumbent upon me to do so.

 

My claim as outlined in my Particulars of Claim is for £XXXX plus compound interest at a rate of 18.37 per cent. Despite your protestations that this is not acceptable to your client, I maintain this rate to be justified under the principle of mutuality and reciprocity, and it is based on your client’s Standard Authorised Overdraft interest rate for Cheque Accounts (hence the use of the term ‘overdraft interest’ in my last letter).

I enclose an updated Statement of Charges with this letter, for your records. The amount claimed, including compound interest as outlined stands today at £XXXX. In addition, court costs have been incurred totalling £220.00 and so the total amount claimed now stands at £XXXX.

As previous reasonable attempts at settlement have been summarily dismissed by yourselves acting on behalf of your client, this claim will continue until payment is made in full. I believe the offer I made in my previous letter was entirely reasonable and was unreasonably rejected.

Should you wish to settle my claim in full, then please forward the balance of the claim without further conditions and I will inform the court that the claim is settled. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

I trust this clarifies my position, and I invite you to respond at your earliest convenience with an offer of settlement in full.

 

 

Yours faithfully,

 

XXXXXXX

[cookiecrumble2004]

Hi Fox

I'm still watching your thread as I think we are at the same stage but I've not received anything from DG. my court bundle deadline is 12 July. So I'm busy printing everything off now.

I like your letter and I would take the same action as you if I was to receive such an offer at this time. I'm not expecting to hear anything now until after I've sent the court bundle off, then hopefully the full amount will be offered. I don't want to wait untill my court date of 27 Sept. Have you got a court date yet?

I'll keep watching with interest. Good luck

[Fox Mulder]

No, no court date yet. I've just called the court to ask if DG has submitted the AQ yet - it was due two weeks ago - and they still haven't filed and yet are proving able to enter into correspondence with me, their last reply to my most recent letter being within three days of sending it to them!

 

So I have been told to call the court again in a week's time, because at the start of next week the claim will be passed to the judge who is likely to give the defendant no more than 7 more days to submit the AQ or the defence will be struck out. Of course, this is unlikely as DG will at that point most likely submit the AQ.

 

Of course DG knows full well what it is doing, and I am working very hard to avoid feeling frustrated because that is, I believe, EXACTLY the effect DG would like to have in order to brow-beat me into settlement for far less than the sum claimed.

 

Still, if a defence is filed I hope the judge will accept my Draft Order for Directions as it is unlikely, but not impossible, that DG will submit the necessary defence bundle within 14 days of receiving my own bundle. More likely, DG won't respond within the 14 days and so the bank's defence will be struck out. They're just stringing it along as long as possible.

[uptonfc]

Hi everyone! First, let me start by saying thank you so much for your input, it's hugely appreciated.

 

It's good to know this £1,600 offer is pretty formula - I was worried after reading they usually offer 80 per cent, and their offer to me to date is less than that.

 

My letter before action is ready, as is my upwardly-revised statement (as other charges have gone on since the first one). I'm posting it Monday - only because the bank took all my disability benefits, aagh, and I don't have cash to send out a signed-for letter until then. Still, a few days won't be too long to wait...

 

dubliner10: Scary? Absolutely! It's very weird saying no to that kind of cash... And ta for the link!

 

Stornoway: My claim includes interest too, charged at their advertised authorised overdraft rate of 18.37 per cent. I think what they are saying to you is, um, BS basically. I read elsewhere on the site it is entirely legitimate in the eyes of the court to claim interest, and doing so on the authorised overdraft rate is considered reasonable - claiming the higher unauthorised rate would be seen as greedy and work against a claimaint.

 

The reason it's valid to claim interest is because of whenever they took the money. My claim spreadsheet calculates interest per item on that rate I quote about - for example, a £30 charge incurred three years ago would be a lot more in real terms today because of the interest you could have accrued on it were it not taken from you, than a £30 charge taken yesterday.

 

What stage are you at? I'd issue the claim. The only bit that confuses me on that stage - not having got there yet - is how we switch to 8 per cent, and why? As in, do we reach a point at which we stop calculating using the unauthorised overdraft rate, take that 'final' figure and then from that calculate 8 per cent of the total amount, including the interest we're claiming?

 

Sheesh. It's as confusing to write about as it is to understand!

from what i understand you can only claim compound interest at 8%

[Fox Mulder]

from what i understand you can only claim compound interest at 8%

 

Hi there! No, that's incorrect. It is entirely valid to claim interest at the authorised overdraft rate but when you submit your claim to court you have to provide two options: should the Court decide against paying you compound interest at the standard authorised overdraft rate, it will pay you eight per cent.

 

But your calculations should clearly show the two options for the Court. So you'll have different sets of figures, including the figures for daily interest between the claim and settlement and/or Court date.

 

You can, if you wish, only claim the 8 per cent but you can only do that when you send your claim to Court; if claiming compound overdraft interest, you ensure that is in the Statement of Charges from the very first time you send it off to the bank, let alone the solicitors.