Faz v Yorkshire Bank ***WON***

[westwell]

Thanks to both zoot and caro, I will send this letter with draft order of directions to YB legal department.

 

I will send a separate letter to the court advising them that YB offered settlement but I didn't recieve it in the specified time. Can I include the letter I sent to YB or am I best just to tell them I agreed to settlement providing it was in 7 days? I am never sure when its without prejudice.

[caro]

If it's without prejudice you can't send it to the court, but the new letter refers to it so .......

[westwell]

I won't include a copy of the letter I will just write and say I had an offer.

[westwell]

Sent the letter to the court yesterday saying I hadn't recieved settlement and sent the letter to YB saying I now want the full amount and I maybe amending my claim etc.

 

I recieved all my pre 6 years statements and there are just over £200 of charges made up of mainly £6 O/D charges.

 

To amend my claim do I just fill in a form from the templates library and pay the £35? can I claim this back? also because I am claiming pre 6 years now do I need to change POC slightly?

[westwell]

I have just noticed on my draft order of directions I didn't include the CYNthesys bit, will it matter?

[caro]

Not to the outcome of your case I shouldn't think. Perhaps you could send new draft directions when you amend your claim, or just include something in your bundle.

[westwell]

Help ..... a cheque has just arrived today for full settlement. Its £618 dated the 2nd may. Part of me wants to cash it but I was just about to amend the claim to include the pre 6 years. Advice please?

[caro]

Is it for every last penny up until today and have you sent YB your letter and if so, when?

 

I had a suspicion when I faxed YB a letter once about non-response that they back-dated a letter. It's odd that it took 8 days to arrive.

[westwell]

Very odd, when like you say they always arrive on a friday.

 

The cheque is for what I initally agreed (providing it was within 7 days) £618 but interest upto today would take it to £623. The additional 6 years would be another £220 + interest.

 

The bank will have recieved my letter telling them they missed the deadline and I am amending my claim.

[caro]

Tricky one. Don't bank the cheque yet. My gut feeling is that you should either send it back and tell them they missed the boat and you are carrying on, or write and tell them that you will accept it on the understanding that you reserve the right to start a new claim for the other charges. Possibly even suggest that they can prevent the need for this is they care to just pay the extra now. I'm not sure how the court would take that suggestion as an unsympathetic judge might see it that you have had full settlement and can't go changing it now.

 

The timing of this stinks, and I don't know if it's deliberate or just tardy administration.

[westwell]

I have just noticed the cheque is dated 2nd may but the letter is dated 4th may. I wrote on 25th April saying I would accept providing the cheque was recieved within 7 days.

[westwell]

I feel inclined to take this because it may look to the court like I am being unreasonable and then go after the rest as a seperate claim but zoot mentioned a claim made up of all pre 6year charges may get thrown out but on the other hand I don't want them to get away with the £200 + interest.....oh I don't know what to do

[caro]

You don't have to make a decision now. It's not so much the pre six years that's the problem as second and subsequent claims.

 

On the other hand in your letter of acceptance you reserved the right to make more claims I think didn't you? If that's the case, then you have an answer for any attempt to strike out a new claim.

 

Is there a letter with the cheque, and what exactly does it say?

[westwell]

The letter says...

 

I refer to your acceptance letter dated 25th april 2007.

Please find enclosed a cheque for £618 in full and final settlement of all your claims against the bank and its counter claim against you.

Please can you now send your signed notice of discontinuance to Salford county court as soon as possible.

 

I initially sent michaels letter from this thread accepting within 7 days for this claim only and then on tuesday I sent the letter you drafted for me advising I would be amending my claim. I notice on their response it says "of all claims against the bank"

[caro]

Yes it says full and final settlement. I don't like it and I think you could be on a sticky wicket if you accept it on those terms.

 

I think you should write and remind them of the terms of your acceptance, and ask for written confirmation that they accept your terms. They are not in a position to impose terms to the settlement, and effectively, and rather sneakily, they are imposing them. Tell them that you are not willing to discontinue the claim until you have that assurance that it is on your terms. Remind them of your initial time frame and point out that they failed to meet it. I think that will cover your back, but most importantly don't cash the cheque. A reasonable time limit to respond might be a good idea, and inform them that failure to meet it will mean that you will continue with your original plan to amend the claim, as per your letter of whatever date.

 

What do you think?

[westwell]

I think your right, they responded late and the wording of their letter is iffy. I will put something together later and post it on here before I send it.

Thanks again caro I don't know what I would do without you..

[westwell]

Hiya Caro

 

I wonder if you can have a quick look at this letter I want to send to YB in response to their settlement. I am not very good at writing letters...

 

 

Dear Sir or Madam

 

 

 

Re: Claim xxxxxx

 

I received your cheque today for £618, although it missed the deadline imposed. I am willing to accept it as settlement of my current claim for charges applied between xx/xx/xx and xx/xx/xx.

 

I do intend to reclaim further charges that have been applied to my account so I want to make this clear that the settlement is for this claim only. I am not willing to discontinue the claim without assurance from you within 7 days from the date of this letter that you agree to these terms otherwise I will continue and amend my claim accordingly.

 

I trust this clarifies my position

 

Yours sincerely

[caro]

I do intend to reclaim further charges that have been applied to my account so I want to make this clear that the settlement is for this claim only. I am not willing to discontinue the claim without assurance from you within 7 days from the date of this letter that you agree to these terms otherwise I will continue, amend my claim to include the additional charges accordingly and return the cheque due to the unacceptable conditions attached to accepting it.

 

Small addition, otherwise fine I think.

[westwell]

cheers Caro, I will amend this now and get it posted off.

[westwell]

7 Days is up and no response from YB, I am going to return the cheque due to unreasonable conditions attached and amend my claim to include the pre 6 year charges. Do I just send the amended schedule of charges to the court to attach to my claim and a copy to YB?

Any advice welcome...

[caro]

To amend your claim you need to complete an N244 and pay a fee of £35.00. Sorry I don't have time to hunt out links for you at the mo.

[westwell]

No worries Caro I found the link cheers

[westwell]

I have printed off the N244 application notice so I can amend my claim to include the pre 6 years charges. Is there any guidance notes to filling these out as it looks complicated? advice welcome

[westwell]

N244 Nearly complete I just need to amend the POC'S because my amended claim is over 6years. Do I just mention that I am relying on the limitations act?

any advice welcome?

[caro]

These POC cover claims over 6 years. Edit them to suit your amendment.

 

 

 

• The Claimant [has] [had] an account 1("the Account") with the Defendant which was opened on or around 2[and closed on or around 2 ]
   
  2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.
   
  3. A list of the charges applied is attached to these particulars of claim.
   
  4. The Claimant contends that:
   
  a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
   
  b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. a). In so far as any charges relating to the period before xx/xx/xxxx, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.

 

b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public.

 

6. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 3and any interest charged thereon;

 

 

b) Court costs;

 

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from [date when the money became owed to you] to [the date you are issuing the claim] of £ [amount] and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of [enter the daily rate of interest]

 

6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

 

I believe that the contents of these particulars of claim are true

 

 

Signed:DON'T FORGET TO SIGN IT

 

 

Date: