Allocation Questionnaire ***WON***

[mimward]

Hello a bit of background first -

I have followed the Martin Lewes Money Saving website directions for making a claim for unfair charges against Lloyds. First sent letter requesting the bank statements for the last 6 years. then sent 1st letter requesting a repayment from them. Got standard reply saying the charges were fair. Then send second letter threatening to take legal action (no reply). 3rd letter sent threatening legal action but offering to settle (no reply) Started court action via the Money claim and paid £120 court fee. Lloyds have now said they will defend the claim.

Have just received Allocation Questionnaire from Lloyds. They have issued 10 points in their defence. Amongst others the bank is entitled to charge for services and that I have acknowledged that the charges are part of my contract with them (i havent). Also that there is no breach of contract, therefore the charge cannot be a penalty. Advanced warning of charges is given (not true) . the charges are fair and reasonable and therefore lawful. They are not subject to the unfair terms in consumer contracts regulations. the charges are for a service .

Obviously I am scared about going to court.

I shall complete the form, and send the extra £100, but am worried about appearing in court to defend this.

Any tips?

Many thanks

Mim

[Pondfish]

Hi Mimward,

 

All of what you mention is the standard defence Lloyds put up, and you shouldn't be worried about that. Intimidating as it looks, it will not hold up in court, which is why they are settling prior to court - albeit at the last moment usually.

Normally, it is a 9 point defence, but you have mentioned 10 points.

It may be useful to post all the points they have listed, in case there is anything in there we need to advise you on.

 

Pondfish

[the3roses]

WON - £3420!

Hi

We have just done battle with Lloyds TSB and it went exactly as you descibed above, when we got the Allocation quesionaire and after extensive searching of the CAG website decided to fill it in using the new tatic as shown which included direction order (make sure you do your research and are happy to compile all thats is required to comply with the order) much to my suprise a week after we returned the quesionnaire a letter came from Lloyds stating they had settled in full! Good Luck with your claim. You will find everything you need here to help you defend this claim!

[curlychic]

WON - £3420!

Hi

We have just done battle with Lloyds TSB and it went exactly as you descibed above, when we got the Allocation quesionaire and after extensive searching of the CAG website decided to fill it in using the new tatic as shown which included direction order (make sure you do your reaserch and are happy to compile all thats is required to comply with the order) much to my suprise a week after we returned the quesionnaire a letter came from Lloyds stating they had settled in full! Good Luck with yopur claim. You will find everything you need here to help you defend this claim!

 

What tactic is that then ? and where can i find it...?

 

 

[nearlythere]

Hi 3 roses, you said when you got your AQ you won? Did Lloyds send in their AQ or not? I sent in my AQ last Friday, 9th, and hey have until 23rd March to return theirs. At what stage did you get your refund? Thanks

[the3roses]

Hi

 

I got my refund after I sent my AQ in and as far as I know Lloyds didn't, as I said we got the letter from Lloyds a week after we had returned our AQ wilth full settlement. I attached the following draft for direction in my AQ

 

 

In the #### County Court

Between

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Cour

• 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

Again make sure you can comply with the order before sending! It basically means that they have to disclose a full account of how they make up their charges before you get to court and obviously they don't want to have to do that!!! It is instead of asking for full disclosure and the judge is more likely to send it out. I found all this on the website in the court section. Good Luck.

[nearlythere]

Cheers for that. I didn't do the 'new draft order' AQ. It seems that the 'new draft order' AQ response does speed things up a bit according to a few threads on here.

[mimward]

Thankyou, when I get home tonight I shall post all 10 of the points which they said. Another was that one of the charges I was claiming for was past the 6 year cut off (by a few days!!). so does this invalidate my whole claim?

mim

[Pondfish]

Hi Mimward,

 

That sounds like the additional point of defense then!

 

Not too sure on the effect this has on your claim, but if it were me i wouldn't worry about this too much. This particular charge could be argued over in court if it gets that far. If not then Lloyds will end up paying anyway. I don't think it will invalidate the claim, and i don't think you should change your claim at this stage as you will have to pay a non refundable £35 charge to do so, and this will also extend the timescale.

 

Perhaps someone else may offer a more informed answer, but that's my take on it.

 

Pondy

[Will Scarlet]

Mimward - whilst I'm not a lawyer I can't see SC&M going to court to dispute £35. In my opinion they're pushing the boundries of integrity as it is by continuing to pretend to defend cases that they have no intention of ever letting into a court room. Can you imagine the legal bills Lloyds are facing on top of the refunds they have to pay. SC&M must think it's going to be Christmas every day of the year.

 

the3roses - very pleased to read your comments. I had just started a new thread asking if anyone had tried the updated aq strategy because I have an aq to file tomorrow and was keen to give it a go. Congratulations and thank you, you've given me the nudge I needed to give it a go.

[Will Scarlet]

Nearlythere - look here:

 

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

[mimward]

Hello All, so here is the full details of the defence - by the way the allocation questionaire is a N149.

1)the defendant address

2)By opening the account the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled as part of that arrangement to charge for those sevices. At account opeing a customer is provided with details of the banks charges, currently a feaflet.By using the account the customer acknowleges that the charges are incorporated into the contract. (they then list all the things they provide for free)

3) By maintaining the acount in credit, or within any agreed limit the customer may avoid most if not all charges. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments the customer makes a request fora payment to be made from the banks own funds.If the bank makes the payment, it provides a service as specified in the leaflet, and makes a charge in accordance with the terms of the contract. (blah blah for a bit, then) where you go overdrawn without an agreement we will make a charge. This guide explains how these charges work, and when they will apply. If you want to use a service we haven't listed, we will tell you the cost of that service before you give us the go ahead.

4) There is no breach of contract, the charge cannot therefore be a penalty consequently there is no requirement that the charge be a pre-estimate of the banks loss.

The customer is given advance warning of charges being imposed, statements show the charges the customer has incurred. Customers are warned by letter when they go overdrawn, or over the agreed limit. If the customer fails to rectify the position and payments are refused then again the customer is warned.

6) the charges are fair and reasonable, and it is denied they are unlawful.

7) The customer is notified in plain language. The charges are tems which relate to the price payable by the customer for a service provided by the Bank, and pursuant to regulation 6 of the Unfair terms in consumer contracts regulations 1999 are not subject to the assessment of fairness.

8) In the premises: the charges are for banking services and are not damages nor a penalty; the bank is entitled by contract to impose the charges which are fair and reasonable; it is denied the charges are unlawful or contravene any statute or regulation.

9)Inso far as part of the claimants claim is based on charges levied oprior to6 years, that is 16th Feb 2001. this part of the claim is statute barred. The defendant is unable to verify the amount claimed prior to the 16.2.01 as the statement of claim does not show how the claim is arrived at.

10) Claim is denied in its entirety. further denied that the claimant is entitles to the sum claimed, or to any sum from the bank.

 

 

phew

Any comments would be appreciated !!

Mim

[GaryH]

Thankyou, when I get home tonight I shall post all 10 of the points which they said. Another was that one of the charges I was claiming for was past the 6 year cut off (by a few days!!). so does this invalidate my whole claim?

mim

 

They are actually quite right in that charges dating back more than 6 years from the date of issue are barred by virtue of the Limitations Act. This will not make any difference to the rest of your claim though or cause any problems. When the offer to settle it will be minus the post 6 year charge - you would be advised to accept this. You could argue that there has been concealment over the nature of the charges which means that the Limitations Act should'nt apply, however this will involve a lot more research and its not exactly solid ground. For £35 IMHO its not worth it.

[GaryH]

Oh, and the defence by the way is completely standard.

[mimward]

Thankyou for that.

Am I correct that I should insert the following in the "other" information, and also at this time it is not necesssary to send the order for directions? (I got this from one of your other threads!!) Or shall I request they take into consideration the "order for directions" at this time?

Also I am slightly concerned my bundle of documentation so far consists of copies of my letters to the bank, letters from Lloyds, my spreadsheets with the charges calculated, and copies of the bank statements (also a few cuttings from newspapers) but is this relevant at this stage?

 

You -v- Bank Plc

Claim No:*******

 

 

 

 

N149/N150 Allocation Questionnaire

 

 

 

 

Section G/H - other information

 

The Claimant respectfully suggests that special directions may be made as per the attached draft order.

 

If ordered, the Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

- The crux upon which this claim rests is the actual loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

- In the event that the Defendant's charges were accepted as being a fee for a contractual service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is imcumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

[Will Scarlet]

Mimward - I'm at exactly the same stage as you and am using this updated strategy. I have until Monday to submit my AQ. In part G of the N149 did you just put "See attached" or is there some special legal jargon that needs to be inserted to make mention of the "other information" that is attached as opposed to inserted in the box (because itr doesn't fit)?

[GaryH]

Thankyou for that.

 

 

Am I correct that I should insert the following in the "other" information, and also at this time it is not necesssary to send the order for directions? (I got this from one of your other threads!!) Or shall I request they take into consideration the "order for directions" at this time?

Also I am slightly concerned my bundle of documentation so far consists of copies of my letters to the bank, letters from Lloyds, my spreadsheets with the charges calculated, and copies of the bank statements (also a few cuttings from newspapers) but is this relevant at this stage?

This passage for the AQ is only to be used in conjunction with the draft order. If you want to use the new strategy, attach the text as posted above and the draft order to the AQ, and in section G box just put "see attached sheets - 1) Section G - other information; 2) Draft order for directions"

 

The court bundle is not relevant at this stage, no.

[Will Scarlet]

Thanks Gary

[mimward]

thanks Gary will crack on with this over the weekend, and then get posted off monday. I have until the end of March but think it better to send the questionnaire off asap with the extra £100.00

 

Will Scarlet - stay in touch and we can compare progress !!

[nearlythere]

mimward/will scarlet - i will try to keep an eye on your posts. I handed in my AQ on 9th March, SCM have until the 23rd to hand in theirs but I didn't use the updated draft order so we'll see if it makes any difference. Some people are quoting quicker settlements than others dependant on the AQ.

[Will Scarlet]

Mimward - will be happy to keep in touch and compare notes. If the judge does grant my order there will certainly be some late nights gathering information, writing statements of evidence and putting bundles together. The pressure of that will be lessened knowing that there are other people out there doing exactly the same thing and it always puts a smile on my face when my 3 year old son comes into my study and asks me "Are you still fighting the nasty banks Daddy?"

I would wish you luck but with the support from everyone at the CAG I feel we have the upper hand....

[GaryH]

All the info is pretty much here already - most of the documents you would need are linked in my sig in template format.

[Will Scarlet]

Gary - you're a star!

[mimward]

Hello All

Just to confirm I took my Allocation Questionnaire to the court yesterday, with the new strategy and directions attached. Paid my £100, and am now waiting to see what happens next.

In the meantime I am working on getting my spreadsheets more user friendly, in case the directions are agreed and I need to get my info in within 14 days.

Does anyone have a template which has already been sent to the court to show the charges etc?

If there is a format which has already been through the court process, I would rather transfer my information into this, rather than relying on my judgement for what the Judge and Court will like the look of.

Many thanks

mim (still quite nervous about the prospect of standing up in court!!)

[BARTY]

Hi

I used one of the spreadsheets here:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/182-6-interest-calculation-spreadsheets.html

 

Does that help??

Good luck!

Barty:)