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Battle with Abbey

Boris Becca

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Ok, thats good. It means you've got a definate date by which they've got to settle.


You now need to comply with the directions as below, by producing a court bundle. You'll find everything you need here -


(small claims track standard directions)


You need 3 copies of everything.


Don't do the Witness statement yet, becouse what goes in that will depend on how or if they respond to the P18.


I have compared the new defence with the old and it is exactly the same, just a specific amount. so i am cool about that.the order as follows:

it is ordered that:

1, claimant has permission to amended paticulars of claim( copy handed to council at preliminary)

2. the defendant shall be permitted ,if so advised, to serve and file an amended defence by 4pm 0n 16th May.

3.With consent of the parties the claimbe allocated to the small claims trackto be heard on a date and time to be notifiedto the parties by the court, estimate 2 hours.

4.each party shall deliver to the other party and to the court office copies of all documents on wich the partie sintend to use at the hearing, no later than 14 days before the allocated hearing date.

5. copies of sighned statements setting out the evidence of all witnesses on whom each party intends to rely andcopies of decided cases and other legal material to be relied apon must be included in the documents mentioned in paragraph 3 above.

6. claimant to advise the court if case is settled.

7. claimant pay the defendants court fee of £65.00.

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Hi Gary, hope your o.k. couple of questions for you. 1: still heard nothing as I am sure your aware two weeks up on tuesday. I called the courts and asked for and recieved application notice, just thinking ahead if we are gonna put this into an order, What do you think?

2: Been readind some threads aboutabout banks and benifits, interesting as I recieve housing, child and working family tax credits and this is what Shabbey have been taking to pay charges, could or does this effect anything to my advantage do you know at all? I am trying to do my bundles, will talk to you about those later.

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Ok, no worries.


Send them a note simular to Foxy's one, asking if they intend to comply - I'm sure she'll be along to give it to at some time.


If they still don't comply, in this particular case I don't think an application is necessary. a) becouse you've been allocated to small claims, and b) becouse your near the end of the claim anyway.


The important thing is that you've requested it and they've ignored you. You can now quote a figure for the cost of each charge in your witness statement and they will struggle to refute it becouse you've asked them for information and they've declined to provide it to you.


Just simply by them ignoring the request it plays hugely in your favour.


I'll help you with the witness statement over the weekend.


To be honest I'm not sure about question number 2.

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Thanks Gary, can you elaberate on the witness statement part. Two weeks up today, heard nothing, would it jeperdise anything for me having this made into an order, I feel I would like to push them, even tho My court case is end of Aug. This may help other peiople to, I have the papers, would just need to know what to put on them. Please let me know you thoughts.

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Hi Becca,


This is what I emailed them last week, no reply received so going ahead with the order on Thursday.


Please be aware that I issued you with a CPR Part 18 request on the 5th June and that the 2 weeks given has now expired. I would be grateful if you could inform me whether you intend to comply with this request. Should I not hear from you by the 26 June 2007 I will seek a court order under p18.


Kind Regards

8) FoxyFiona

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  • 2 weeks later...

As your claim is already allocated to small claims, and rthe hearing isn't that far off, I don't think formally applying for a p18 order is appropriate in this particular case.


However you can use the fact that they have totally ignored the request very much to your advantage.


Next step is to compile your court bundle and a witness statement. I'll help you with that tomorrow. Give me a nudge by PM tomorrow morning if you can - I'll only forget otherwise!:rolleyes::D

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If both parties and the judge all agree then the claim can be allocated to the small claims track no matter what its value. The £5000 threshold is not set in stone - I've seen a £400 claim allocated to the fast track before now, and conversely yours is obviously £16000 and is small claims.


The evidence rules are stricter in the fast track, plus there is a costs risk. On the other hand, in the fast track you have automatic disclosure, which means thaty the chances of the bank going anywhere near court are remote.


How are you getting on with your court bundle, Becca? I'll do the witness statement for you today.

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Witness statement to go in your bundle;



1st Witness Statement of [you]

Exhibit ***1




In the XXXXXXX County Court

Claim Number: *******
























1. I, the Claimant, am a litigant in person in this case.


2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank.


3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.


4. On [date] I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them.


5. Upon unsatisfactory response from the Defendant, [date] I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.


6. Upon no response of my complaint, on [date] I filed a claim online at Northampton County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim.


7. The Defendant acknowledged service of the claim on [date].


8. The Defendant filed its defence on [date].




9. It is submitted that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising from breaches of the contract between myself and the Defendant. The Defendant confirms in paragraph 9 of its defence that the charges are indeed payable upon breach of contract.


10. It is admitted that the charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead unduly enrich the Defendant, thus the charges are penalties, which by virtue of the legislation and provisions cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.

11. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR") and numerous long-settled principles of the common law.





12.It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses resulting from each breach of contract or otherwise a true and genuine pre-estimate thereof. However, it is long settled that a clause which provides for a payment of money which is excessive, unconscionable and not proportionate or related to the loss incurred as a result of the breach is a penalty and thus unenforceable.


13. In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co. Ltd. [1904]12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as opposed to a charge which represents a penalty.


14.Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79[ [exhibit ***] set down a number of principles in definition of a penalty clause. Two of these principles being;



"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach"




"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"


15. I will further rely on numerous recorded authorities dating throughout the 20th century to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof. See the “Relevant Case Law Summary” contained within the court bundle [exhibit ****].


16. Whether the Defendant’s charges amount to a penalty is therefore a question of fact – specifically how the level of charge paid by the claimant compares with the actual loss suffered by the Defendant as a result of each breach. On numerous occasions, I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.


The true cost to Abbey Plc of a default event


17. I estimate the loss incurred by the defendant in respect of each of my contractual breaches to be in the region of a minimum of £0.25 to a maximum of £1.50 per each single event of default. I am unable to provide a more accurate figure at this time, due to the fact that the Defendant, and indeed all of the UK banks, remains highly secretive regarding the mechanisms of their systems and the costs associated in the charging process and of the events of default leading to a charge being made.


18. I am aware of in excess of 200 claims similar or identical in nature to the present case which have been brought against the Defendant bank in the last 18 months. In a significant number of these cases disclosure orders have been made obliging the defendant to substantiate its contention from paragraph 9 of its template defence that;


“The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.”


I understand that each and every time that such an order has been made, or indeed any other directions order, it has been breached by the Defendant who chooses instead to settle each and every claim without liability, typically shortly in advance of the scheduled hearing.


19. It is submitted that if the Defendant’s contention were to hold, it would be easily within the Defendant’s capability to halt the current flood of litigation being brought against it simply by disclosing details of its costs, thereby substantiating its contention that the charges are proportionate to its loss incurred as a result of the breach of contract from which they arise. I believe that is in the interest of the parties in the present case, the court, and of the wider public interest, for the Defendant to do so.


20. In view of the proceeding paragraphs, a preliminary request for information and clarification under CPR Part 18 was submitted to the Defendant on [date], relating specifically and directly to paragraph 9 of the defence, requesting information in respect of the "administrative expenses" referred to in the defence and how such expense is incurred - I.e whether manually or by a specific automated system or otherwise. A copy of the request is contained in the court bundle as [exhibit ***]. Upon the compliance of the Defendant I would then have been in a position to conduct further research and present to the court within submissions an accurate figure based upon the nature of the specific systems employed by the Defendant to process events of default. Regretfully, the Defenant chose to completely ignore the request.


Therefore, my estimate of £0.25 - £1.50 is based upon the following;


21. My assessment of the costs of the charging process


Prior to the commencement of these proceedings, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Subject Access Request pursuant to s.7 of the Data Protection Act 1998. No records of any manual intervention or involvement whatsoever could be provided. My Subject Access request letter and Abbey’s response letter are attached in support of this statement as exhibit **3.


Therefore, It is submitted that the Defendant’s charges are applied by a completely automated and computer driven process. This process consists of a computer system;


a) sending a computer generated letter if a customer exceeds authorised overdraft limit (even if by only a few pence) to advise the customer of the breach and resultant charges, or

b)returning a dishonoured cheque plus notice to the customer, or

c) ‘bouncing’ a direct debit or standing order.


The costs of Data processing are nominal. Following some research into these processes and their costs I was able to obtain a list of prices from The Data Processing Company UK (www.dataprocessing.co.uk), which confirm that such costs can be reasonably measured in pence rather than pounds. Please find this list attached in support of this statement as exhibit ***.


It is therefore impossible to envisage how the Defendant can incur costs of £35 by carrying out a completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance, in separate envelopes. Two samples of these letters are attached to this statement as exhibit ***.



22. CYNthesys Disclosures



Disclosures were recently made to the BBC and subsequently to Andrew George MP and journalists at a meeting at the House Commons revealing that the Clydesdale, Yorkshire and Northern Banks operated a structured, detailed and auditable system for costing, tracking and refining their costs of conducting various operations within the bank including the processing of default events of delinquent accounts. The system, which was apparently introduced in 2002 was called CYNthesys- Clydesdale Yorkshire Northern the system.


A Yorkshire Bank informant who is a former high level employee at the bank stated on television and in an affidavit that even assuming the highest level of manual intervention any single process of default would never cost more than £2.00 and that this cost is calculated and traceable using CYNthesys.


It is submitted that it is inconceivable that such a system with the same or similar mechanisms, characteristics and costs is not also employed by Abbey Plc, the Defendant in the present case. Basic business principles and marketplace competition dictate that if such a system is in existence, available and operated by an organisation, that its competitors in the marketplace will also seek to employ a system which is equally efficient and cost effective or perhaps even more so. Abbey Plc is is far larger institution than the CYN banks, therefore econimies of scale would suggest that in fact the cost to it would in fact be less.


Further, note the end charge to the customer of the CYNthesys banks (for example Yorkshire Bank) is almost identical to those of Abbey Plc.


Abbey charges tariff

  • Unauthorised overdraft fee - £30

  • Bounced direct debit/cheque/standing order - £35

Taken from “Tariff of charges” at Abbey


Yorkshire Bank charges tariff

  • Debit card abuse fee - £35

  • Bounced direct debit/cheque/standing order - £35

Taken from “Table of charges” at Welcome to Yorkshire Bank



23. The Competition Commission


Northern Ireland Competition Commission report from October 2006 revealed that figures contributed by eight banks, including the Defendant, Abbey Plc, showed that around 12% of the banks annual revenue is generated by "overdraft charges". The report clearly demonstrates that the banks make significant profits from their penalty charges and that they know about it, depend upon it and that they calculate for it. It is submitted that this report is clear evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to specific events of default.


Some relevant parts of the report are reproduced as follows;


Appendix 4.6

Policies on setting unauthorised overdraft charges


" 9. The answers were consistent across all the banks that responded, that unauthorized overdraft charges were set in the same way as other fees and charges. Thus banks tended to look across all their products and all their charges and sought to ensure their products were competitive with their rivals. This would be assessed through price comparisons, and also by monitoring account recruitment and retention. In the main, the clearers paid particular attention to the other clearers. The non-clearers set their pricing UK-wide and so particularly monitored the UK wide banks and the banks based in Great Britain. However, that said, there were clear examples of banks concluding that it would be profitable to raise charges above competitors (eg see paragraphs 20 and 22 in Annex 1).


12. Most of the banks made reference to monitoring of their costs, and sought to recover cost increases through their charges. However, as such costs tended to arise across a range of bank activities there was no direct feed through from particular cost increases to particular charges, but would be spread across the charging structure with regard to competition on these charges.


13. None of the banks told us that their charges were determined mainly by estimates of costs.


17. [] states “as is always the case the biggest impact in terms of service income price increases lies in penal charges such as unpaids and referral items, and I have had little option but to concentrate on these in an attempt to achieve the [] targeted increase in income". []


24. Some inference on unauthorized overdraft charges can be seen in the banks’ moves to fee-free accounts, as analysed in Appendix 4.8. As covered previously, Ulster’s proposals for fee-free banking rebalanced to an extent the loss of fee-income from transactions with an increase in unauthorized overdraft charges. BoI had developed proposals for a similar fee-free account where income loss would be approximately offset by increased unauthorized overdraft charges.


25. Charges are a significant source of revenue for the banks on PCAs. [] said that increased unauthorized overdraft fees were part of the strategic imperative to turn the PCA into a profitable business over time. The charges were significantly less than a number of its competitors. "


Appendix 4.6 of the report titled “Unauthorized Overdraft charges” is attached in support of this statement as exhibit ***.



24. Australian Default Fees report


In a study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges to the customer against the actual cost to the bank, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law. The reports summary is attached in support of this statement as exhibit ***7. The penalty charging regimes of the Australian banks as well as the automated systems employed to process default events are similar to those of the UK banks, and the laws relating to contractual penalty clauses are also similar to those in the UK.



25. BBC Commission Report


For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer's breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes. The commissions conclusion is attached in support of this statement as exhibit ***8.


26. It is thus submitted that the charge is an unconscionable penalty as it is extravagant, unrelated to and greatly exceeds any loss that the Defendant could ever have expected to have incurred as a result of the Claimant’s breach, and seeks to deter the Claimant from breaching the contract.


Unfair Terms in Consumer Contracts Regulations 1999


27. Under the UTCCR, schedule 2 (1) includes to define an example of an unfair clause as -


"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation"


As submitted in the proceeding paragraphs, the Defendant's charges greatly exceed and are disproportionate to the loss incurred as a result of the claimant's breach of contract. It is thus submitted that clause ** of the account agreement amounts to an unfair term under schedule 2 (1)(e).


28. Further under the UTCCR:


"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.


(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.


(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”


Schedule 2 also includes such clauses (to define examples of unfair clauses) as:


(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation


(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;


(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;


(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."


29. The defendant is a powerful multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.


30. The cost of the Defendant's charges have increased substantially and indiscriminantly during the period in which my account has been in operation, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my significant detriment, and to their advantage.


31. It is submitted that the account contract is within the ambit of the Regulation 5 as it was not individually negotiated. The requirement of good faith was described by Lord Bingham in Director General of Fair Trading v First National Bank [2001] UKHL 52 as:


"Good faith in this context is not an artificial or technical concept... It looks to good standards of commercial morality and practice. It lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the regulations are designed to promote. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position"


32. The Claimant submits that the charging regime operated by the Defendant by charging those who can least afford it to subsidise free banking of other customers takes advantage of the Claimant’s necessity indigence and weak bargaining power. The objectives which the Regulations are designed to promote include the protection of Consumers from commercial entities.

33. The Defendant may assert that the charges are within the requirement of good faith as they were in the published terms and conditions and the Claimant was aware of them. However, this is a purely procedural argument and according to Lord Steyn in Director General of Fair Trading v First National Bank:


"Any purely procedural or even predominantly procedural interpretation of the requirement of good faith must be rejected."


34. I thus assert that the substance of the clause is of paramount importance in looking at the requirement of good faith also the way it was packaged so as to deceive the consumer into believing it was a legitimate charge to compensate loss.




35. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive and held "in-terrorem" - I.e. the clause is designed to deter the claimant from breaching the contract. The charges imposed are disproportionate, excessive, exorbitant and extravagant in comparison to the greatest loss which could have occurred as a result of the breach, and they unduly and substantially enrich the Defendant. As such, they are contractual penalties and unenforceable at law.


36. Accordingly, the claimant seeks judgement in respect of;


a) Charges in the sum of £**** (as particularised in the Particulars of claim).


b) interest at the rate of 8% per annum under County Courts Act 1984 s.69 in the sum of £** until [date], and further the daily rate of £** thereafter (as particularised in the Particulars of Claim);


c) Issue fee of £**


d) Allocation fee of £**


e) Any further costs allowed by the court


37. Statement of truth


I, the claimant, believe the facts stated within this Witness Statement to be true, and submit it as Exhibit ***1 comprising of ** pages.





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Thankyou so much Gary. will copy and paste this, and get it done! Im getting on okay with my bundles. Im sorely temtped to have a order made CPR18 i know my court case isnt that far away, but really feel like pushing the issue especially in view of Fiona's case, i know though that were are slightly different. i have the form to fill in, i know you advised that my court case is near, but do you think doing this would jepordise things?

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Your better off just submitting the witness statement and bundle, then waiting for them to pay up. The reason you won't get a part 18 order is becouse you are already allocated to the small claims track. Part 18 does not apply to small claims so applying for the order really would be a waste of money.


Just before you submit your bundle, post a list of what it contains and I'll check it for you.

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Hi Becca,


Good luck with everything, forget about the CPR Part 18 the bundle landing on their desk will get their attention just as well. Will keep watching for progress.



8) FoxyFiona

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How are you getting on with the bundle, Becca?

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Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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O.k. My Bundles must be done no later than 15th Aug. I would like to send them in by the end of this week tho, is that o.k? I am getting on ok obviously 3 copies of everything. Should I photo copy original bank statements to show charges to include in bundles.I thought I should. should I also do an up to date schedule of charges as it will now be more on the interest, or not? I also want to include something about current charges of the last couple of months, any suggestions? Now I have copied any correspondace I and the bank and the court have had x3 includind poc, witness statement, sced showing interest, what is a oft report, this should be included. Also for evidence should I just copy of the info on ex: the Mc Namara interview and add? soory so many Questions!! Last but not least what about money for ALL the time spent doing this?? THANKYOU.:confused:

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Here you go, there is everything you need listed and linked from here -




Get it in ASAP. The sooner they see it the sooner they're likely to cough up.


Yes, photocopy the statements showing charges and put in each bundle.


The original schedule is fine. The daily rate accrues automatically.


You can't add any further charges, unfortunately - when Inga offers to settle see if she'll include them in. If not, just start another claim afterwards.


Tot up your time spent on it - when they offer to settle say yes but subject to costs and hit them with your costs schedule. You should add up your hours spent at £9.25 per hour as well as any receipts for paper, ink, etc.

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becks I seem to be having a problem replying to pm's but the answer is yes with pleasure

Abbey £4340.59 *WON* Jan 07


Abbey II MCOL 31/03/07 £8800.00




Read my latest claim its a fast track potentially



read my first claim which includes attending a directions hearing in court


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Hello, please help, Clare fletcher been intouch with me asking if I am interested still to settle out of court and I should E mail an offer!!! Of courese I would love this but no silly money talk! Any suggestions for a reply I was thinking keep it at the total they have 16.000. I will not claim any recent charges, any good???? HELP

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