French v. Abbey (3) - Into the breach once more my friends!

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Will re-read the section regarding breaches and report back...... thanks Lula & Noob! :grin:

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Nope everything above board....

 

They haven't shot themselves in the foot on this one. Their defence is based on Limitations Act and that they are not charges but fees(!) Quite what the difference between the two is beyond argument.

 

No this one looks simple to deal with. ;-)

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It seems not....... it's like shooting ostriches!

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Good job we have Sat-Nav then

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Well I got my AQ in this mornings post.

 

I have now drafted the "new" Section G strike out directions for the Judge to review.

 

Anyone care to comment?

 

Section G – Other Information

 

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by Lincoln County court (attachment 1C) in at least 6 cases similar to my own, in which Abbey Plc were also the Defendant's. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

 

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in Leicester, Derby, Chesterfield, and Mansfield County Courts.

 

 

 

 

 

 

As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact. Accordingly, I respectfully request that this claim is allocated to the small claims track; it is an issue of fact and not of Law. The issue is only whether the level of levied fees, levied by the Defendant in respect of its Clients’ admitted contractual breaches, exceeds their actual costs incurred. I am happy to pay their actual costs and I am surprised the Defendant did not counterclaim for these, because I would have paid them without argument.

 

However the continuing problem is (in common with 1000’s of other cases being brought by other Banks Clients’) that the Banks refuse to reveal the details of their penalty-charging regime. As the Banks have a fiduciary duty towards their Clients, they have a duty to deal straightforwardly and in the utmost good faith.

 

In respect of the Defendants stance (point 8 of their Defence) regarding the Limitations Act 1980 is denied. Section 32 (b) & © stipulates:

• • (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
    
  • © the action is for relief from the consequences of a mistake;

Then the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it....

 

Also the right to claim Compound Contractual Interest (point 7) at the same rate as the Defendant is an implied term in a non-negotiated contract under Reciprocity and Mutuality.

 

Accordingly, I would respectfully ask the court, not withstanding allocation to the small claims track, order standard disclosure of the Defendants true costs. The Claimant contends that the charges are unenforceable in their entirety until such time as the Defendants disclose the true cost of each breach.

I understand that it is the Court’s discretion to do so. I truly believe this would bring a rapid end to this litigation.

 

 

 

 

 

 

Attachment 1C

 

 

Upon the courts own motion. The court has made this order of its own initiative without a hearing.

 

It is ordered that:

 

1/ The court of its own motion is considering striking the Defence in this action as an abuse of process.

 

2/ The basis for this is the fact that the Defendant is settling all claims of this nature where claimants are seeking the reimbursement of bank charges, with no claims proceeding to a contested hearing.

 

3/ The court considers the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 relevant.

 

4/ If the defendant objects to the proposed strike out it is ordered to file by ______________ a schedule setting out all claims of this type in England and Wales which have proceeded to a final contested hearing, and the outcome of such hearings, together with a schedule of all such claims which it has compromised before final hearing, after proceedings have been issued.

 

5/ Upon receipt of any such objections the court will consider listing the claim for an on notice hearing of the strike out issue.

 

6/ In the absence of any such objections being filed in time, the defence herein will be struck out and entered for the amount claimed, together with the appropriate costs claimable on the small claims track.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 1D

 

 

Hackney v Mullen

 

Appeal by the defendant London Borough of Hackney (LBH) from a decision of County Court judge (HHJ Graham QC) ordering them, under the provisions of s.14(4A) of the Contempt of Court Act 1981, to pay a £5000 fine.

 

The respondent was a secure tenant who pursued a claim for compensation and for a mandatory order to carry out remedial work.

 

A consent order was made by the Court containing an undertaking by LBH to carry out specified works of repairs within a given period.

 

The fine was in respect of the breach of this undertaking.

 

LBH contended the judge had erred in law in taking into consideration previous instances in different cases where LBH had failed to honour undertakings given to the Court, there being no evidence before the Court as to such previous breaches.

 

HELD:

(1) Courts may take judicial notice of matters which are so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source, that evidence of their existence is unnecessary. Judges have a wide discretion and may notice much that they are not required to notice, such notice being in some cases conclusive and in others prima facie and rebuttable.

(2) A judge can rely on his own local knowledge, as long as he does so properly and within reasonable limits, and as long as that knowledge is general in character and not liable to be varied by the specific characteristics of the particular case. Judges using such knowledge were to be regarded as fulfilling a constitutional function.

(3) Applying these principles to the present case, the judge was entitled to take Judicial Notice of his special or local knowledge of how the appellant had conducted itself in relation to undertakings given in similar cases.

(4) The facts noticeable were relevant in deciding the appropriate sanction. The judge did not err in the exercise of his discretion to take such matters into account, and it was for him to decide what weight to attach to the knowledge once he had decided to take notice. It being acknowledged by the appellants that the fine could not be regarded as manifestly excessive if it was permissible to take notice, the appeal was dismissed.

 

 

 

 

 

 

 

 

 

 

Attachment 2A

 

 

 

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

 

 

Between

 

 

Stephen French - Claimant

 

 

 

and

 

 

 

Abbey National PLC - 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.

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Cheers Noob

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Ok then.... in the absence of any further comments and private mails I have now decided to print it out. One copy will go to the Courts and one copy to shAbbey.

 

Won't be able to do it until the 4th however.

 

Here goes! Wish me luck peeps

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Hi Bonnie.

 

Basically what Section 32 (b) of the Limitations Act 1980 means is quote:

 

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant;

 

in this case it's the disclosure of their actual costs in dealing with a bounced cheque, going overdrawn etc etc.

 

By failing to provide it to us they have concealed evidence from us to use against them. Ultimately it means that until they (Abbey) do you can go back to whenever you opened your account be it 1980 or 1890!!

 

Does that make any sense?

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In order to appear to the Courts that I am making a serious attempt at negotiation for settlement I will be sending Abbey the following letter this Monday morning (4th June). It will make me look good in Court and considering the nil responses shAbbey issue will make them look...well......... shAbbey (pardon the pun)

 

4th June 2007

Dear Mr Basson

Mr Blobby - v – Abbey National PLC

Account No: BLEEP

Claim No: ANOTHER BLEEP

 

 

I am writing you today in a further effort to ask you to consider my claim. I am most disappointed that you have not acknowledged my previous correspondence.

 

I have filed my claim on 13th April 2007. I have filed my Allocation Questionnaire on 4th June 2007. I have written to you in the past, asking for you to consider my claim and reply to me. I have heard nothing. Were this to come before a judge, it is obvious who is making any and all attempts at resolution.

It is my feeling that you seem to have no intention of defending this claim in court and are simply procrastinating.

 

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 £6968 plus £10.60 per day from the date I have made this offer until the date this claim is resolved.

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

 

Please find enclosed another copy of my schedule of charges relating to this claim.

 

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the courts would whole heartedly approve of our settling this matter in a timely manner and without their further intervention. I look forward to hearing from you.

 

Yours sincerely,

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Concrete everything I say..... flock it in green baize....... easy life

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Right..... AQ filed, copy of AQ sent to shAbbey (Spec. Delivery) and the Offer Of Settlement Letter sent (also Spec Delivery)

 

Had to pay an extra £100 to file my AQ at the Court, but hey....... it'll all come back

 

JUst the wait now for one or both things to happen...... a Court date or an offer to settle in full.

 

Tick Tock.............

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Well last day for posting the AQ's into Courtis today and guess what came in the post this morning........ no not a cake Lula!

 

It was their AQ!! (Shock horror.... they actually sent me a copy for the first time!)

 

Anyway once I had recovered from that I read it in more detail and what a joke!

 

1. they have requested in their AQ for a stay of one month (and we all know what they won't do!?)

 

2. they have put a "Yes" in Sect C (Pre-Action Protocols) Part 2 stating that they have exchanged information and/or documents (evidence) with the other party in order to assist in settling the claim! I wonder what it was because as sure as hell NO-ONE in living memory has ever received any "evidence". shAbbey WAKE UP and stop lying!!

 

3. The amount disputed is the total amount but the amount quoted was what it was 2 months ago!

 

4. They do not want experts to give and evidence or statements!

 

5. They have listed the Hearing take no longer than 2 hours! (Makes a change from 3 days!)

 

6. They have listed their costs as £2000 (Like you're going to get it lol?) I view this as rather intimidatory and unless they have a solicitor representing them they can't claim it anyway!

 

7. A seperate scrappy sheet listing it's Draft Order for Directions. (Note how one-sided it is compared to mine which is fair as it imposes on both parties to disclose!?)

 

 

1. The Calimant shall within 28 days of service of this order send to the Defendant and the Court:

 

• 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;
  
• Copies of any statement or other document relied upon as showing that each and every charge has been made;

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

2. The Claim be allocated to the Small Claims Track for Hearing not before 7th July 2007.

 

3. 14 days prior to the allocated hearing date, the Claimant and the Defendant shall file and serve:

 

• Copies of all documents (including expert's reports) on which he/it intends to rely at the hearing;
  
• Any witness statements must be included in the documents files and served: and:
  
• Copies of decided cases and other legal materials to be relied upon. (I wonder if thet intend to quote the Berwick case?) (Idiots if they tried! )

So what do all the peeps think then? and does anyone have the same given to them after all it appears that shAbbey appear to be vexatious Defendants!!

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I love delays as it just increases my interest at £10.60 per day lol

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Yes.... I don't have it with me.... left it at Gym last night

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I can understand the Banks refusal to pay out if I can't provide evidence in the form of actual Bank Statements or info supplied by them. Fools...... do they not know I have them...... and more!!!!! :o Wait till my final claim against them......... believe me that will hurt them like no H-Bomb will.........

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Crickey, Crumbs.... etc etc!

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oh and Gosh DM!

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Very interesting....... BBC NEWS | Business | Bank claims deluge legal service

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Seeing no reason not to contact Inga after a nice settlement on my last claim I decided to email her with the following:

 

Dear Ms Kirkman / Mr Basson,

 

 

Ref : Claim reference XXXXXXXX - Noddy Town County Court

 

I am respectfully requesting, in conjunction with the attached letter sent recently and attached to this email, that we can negotiate a settlement of this claim, to avoid any additional costs to both parties.

 

 

My claim currently stands at £6994.60. I have already filed my AQ as have yourselves.

 

 

I am prepared to accept £6968 in full and final settlement. This figure is a gesture of goodwill and would forgo any additional interest or costs. A condition of this offer would be that the funds are available to me in the form of a cheque by 22nd June 2007.

 

 

I would like you to note that I intend to request full costs in court and that would include all letters charged at £6.75 for printing & reproduction and an hourly rate of £9.25 for preparation time, plus all postal charges.

 

 

This has the potential to save Abbey additional expense and would be looked on by the courts as a favourable negotiation on both sides.

 

 

I believe this offer to be a meaningful and realistic attempt at a settlement and would like you to duly note as such. Should you choose to ignore this, this email will form part of the evidence submitted to the court.

 

 

Yours sincerely

Well..... here's hoping she answers it?

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Thanks Lula Babe!

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Oooo you liddle tinker!

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Tick Tock........ I wonder if Pingu Kirkman has read it yet?

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Nah!

 

It'll just clutter my Inbox. I wonder where Pingu goes for the weekend?

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Now.... you're just getting obsessed with her now! All because you want to bury her up to her neck in sand and let the sun and gulls do their worst and all because she read your email but didn't reply.

 

Mental note to all........... Avoid Lula as she is getting psychopathic LOL

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Ooooops!

 

She's still a psycho though lol