John72 v Lloyds TSB

[christinajanep]

lets hope u hear something before then

[John72]

An update...........just back from the County Court where my claim was listed today for a "pre-trial review" - along with around 40 or so other cases which took up the whole list for the Judge today. All the banks were listed but it seems only one (Barclays) had sent along a barrister to represent them - and even he had no instructions to settle cases, only to agree directions. Apparently Barclays are deciding whether to pay up on all their cases or to defend them all - so nothing new I suppose.

 

Back to my case and LTSB. Although they had 10 or so cases listed today, they instructed a barrister on only one - the one before mine! He had no instructions on my case and therefore couldn't deal with it; so I saw the Judge alone.

 

The Judge, bless him, seemed tired of being told that either so many cases had already been settled or that no one was there to represent the various banks and I think rather relished the opportunity of granting me the order for directions that I had proposed to SC&M (and copied to the Court) back in April. In fact the directions were given with the exception of the need for witness statements or decided cases.

 

A preliminary hearing with a 30 minute time slot was also ordered - likely to be in the 1st week of September.

 

Not the result I had hoped for by today (I strangely thought that I might have heard in settlement by now) but a form of progress none the less.

 

John

[Pen]

Hi John.

as you know i have been following on the other thread, sorry you did not have a good day in court, but it's still not over and on the good side, the longer it takes hopefully the more interest will be piling up. somehow I cannot see you losing this claim. they will pay up in the end.

 

Pen

[darling1]

Just subcribing - good luck -

it is shameful that the banks can get away with the abuse of the courts time...but they do seem to. I have a case in court on Friday 27th and we have had nothing whatsoever form the bank (HSBC) we are still living in hope that they will pay up before then! BUT, your experience is getting more and more common - Good Luck again and hopefully they may settle before your september date.

[John72]

As an update to my post at#27, I have now received a copy of the Court Order. This is as said in my post, with the only change being that the statements of evidence and decided cases are being called for. In addition the case has been listed as a preliminary hearing on 3 September, although it is stated that the Judge may decide to treat it as a final hearing.

 

I have already submitted the schedules of charges and copies of statements and now have to submit these additional documents. The slight problem is that I am away on holiday until 24 August so will not be able to see if SC&M comply with their part of the order.

 

Any advice at all?

 

John

[dburrell55]

Hi John,

I submitted my court papers online and recieved the transfer to cambridge court at the end of June and then recieved a Pre Trail Review date of 10 Sep. The good news is they havnt ask for an AQ and so wont cost another £100. They have said that i dont need to submitt anything to the court for the 10 Sep, but Im getting my court bundle ready to take just in case, hopefully the Abbey will settle before the court date.

 

Iv read your thread an see you had to do an AQ is that becuase your claim goes above the small claims?

 

Good luck, I will keep a keen eye on your thread to see how things go, have you got any advice after what you have been thru!!!!

[John72]

Hi dburrell

 

I'm not quite sure why an AQ is required in some cases and not others - it may be size but it may also be that the Courts are seeing these cases as all being pretty similar and wanting to cut down on time and the paperwork involved?

 

The only "advice" I can give is to persevere with patience; the banks won't want it known that they are giving in to these claims too easily just in case the floodgates really do open, so they make it as difficult as they can for their customers - I wonder what the PR people in the banks are thinking?

 

Do make sure you prepare for, and attend, every hearing that is listed in your case by the Court. The number of instances you see on this site where people don't attend is worrying - and that's a sure way to have a claim dismissed.

 

John

[dburrell55]

Thanks

Yeh, i think your right, im going to be prepared for the worst. I think that is the reason the individuals have failed in court becus they havent been prepared and just expect the banks not to turn up at court.

 

Darren

[Pen]

I think they have abolished the AQ just to get the volum of cases through the courts quicker as they are all mostly based on the same principle, I have just won my claim with CI for 13.5K. It did take a lot of time hard work and a lot of support, you do have to follow the procedule to the rule, that means checking everything you are doing on here first before sending anything off as mistakes can be very costly has soom members have founf out when there cases have been thrown out of court, prepair well and you willnot lose no matter what the amount, if they have taken it you will get it back. It is a slow process i'm afraid but well worth it in the end. also the longer it takes the more interest is being added at a rate you would not get in any savings account so think positive don't prepair for the worst prepair for the best possible outcome, if you have done it properly thats what you will get so think positive negitive thinking is not good!!!

 

Good luck

[John72]

Still no news from LTSB or SC&M in relation to the above. However, I have today received copies of my account statements for the period 1997 to 2001 from LTSB on my accounts - for which they have kindly made no charge!

 

The statements reveal a further £3700 of charges in that period where incredibly the highest overdrawn balance was £400 - I didn't think I could get any more upset over how much I'd been charged in penalty charges but the bar has just been raised. My predicament now is whether to commence a second claim for these while the current claim is ongoing, or to wait until the first one is settled, and then what rate of interest to claim on those?

 

Any advice please?

 

John

[broke dave]

May as well start the ball rolling now - you know how long it takes.

[darling1]

See the thread for Pen on the LTSB - she has lots of claims for all different things at the same time and as Broke Dave said you know how long it takes! - Pen is now enjoying the fruits of all her hard work coming in one after the other!!Good Luck

[Pen]

ha! you can say that again.

 

Hi John, how's it going. have they coughed up yet or even complied with the courts directions of 28 days

[John72]

Hi Pen, sorry for not replying sooner but i've been away on hol in advance of my hearing on 3 Sptember. I've just returned and guess what.....an order dated 9 August from the Court saying:

 

"Upon the Court's own motion...this matter is stayed pending the final determination of the Office of Fair Trading test case 2007 Folio 1186. If you object to this order you must make an application to have it set aside within 7 days of receiving it".

 

Seems like the Court's are now doing SC&M's work for them?

 

I have now sent of form N244 with my staement in supoort of the application to set this order aside.

 

I have heard nothing at all from SC&M - they haven't settled nor have they complied with the Court's earlier directions.

 

Has anyone successfully had one of these staying orders set aside?

 

John

[John72]

I've heard nothing from the Court in response to my application for the stay to be lifted (although they've cashed the £35 application fee!) but in this morning's post I've received the following from SC&M:

 

1. A letter to me (whick looks like a pretty standard letter) saying they are asking the court to keep the stay in place and asking me to agree - they refer to a hearing to take place on 25th September 2007 for this.

 

2. A copy of their letter to the court saying why they think it is fair for the stay to remain in place until the result of the OFT case is known - but in this letter they say the case is listed for the 26th September 2007!

 

3. A copy of their application (on form N244) requesting an order that the claim continues to be stayed on the basis it would "facilitate the orderly resolution of this case and all other similar cases".

 

This is the first letter I have received from SC&M since I started my claim in Court at the beginning of March 2007, some six months ago, and I don't think I have anything to lose at this stage by opposing their request - or do I?

 

Can anyone tell me:

 

a. Is there anything else I should be saying to the Court at this stage, or at the hearing?

 

b. Has anyone been successful in overturning a stay in such circumstances?

 

John

[ladyinred]

keep going!! if you are successful more people will follow your example. Sounds like the bank might be worried if you have finally had communication from ****.

[darling1]

Hi Have you looked at the Ms Banana Vs Lloyds thread? The case was due in court tomorrow, I was to have gone to court as support.

LLoyds have asked for a stay - and Ms Banana has objected using letters and advise form the forum. She Pm'd me during the weekend - (the thread is not up to date!!!) to say that the courts have agreed a stay and that is that! She will now have to await the outcome of the test case..... It is all very frustrating to have this happen at the last moment - the whole thing has really dragged on..

Hope you have better luck ..But I fear that the courts are doing Scams work for them now - as you say.

Darling1

[John72]

Mine WAS due in court on 3rd September - that was until the court ordered the stay all by itself!

 

I too used the format of the documents on this site to apply for the stay to be lifted - and I'm presuming it is the hearing of this application that is listed on either 25th or 26th September.

 

I can see that the OFT test case is on the basis of whether the charges are "fair" or not, within the context of the Unfair terms in contracts law, but is it also questioning whether the charges are a penalty for breach of contract?

 

Any thoughts anyone?

 

John

[darling1]

I must be the only one who doesn't know when the test case is scheduled for! When is it?!? I had started work on a new claim before I noticed -DURRRRR - and I'm not even blond!

[nicsussex]

I can see that the OFT test case is on the basis of whether the charges are "fair" or not, within the context of the Unfair terms in contracts law, but is it also questioning whether the charges are a penalty for breach of contract?

 

Here are their POCs

 

http://www.oft.gov.uk/shared_oft/business_leaflets/general/PCA-particulars-of-claim.pdf

[GaryH]

I can see that the OFT test case is on the basis of whether the charges are "fair" or not, within the context of the Unfair terms in contracts law, but is it also questioning whether the charges are a penalty for breach of contract?

Good point John. Apparently, the OFT can only bring an action under the UTCCR's - thats all that is in their remit, so yes, the penalty argument is theoretically still open. I've added a section to the stay removal template now to try to distinguish the OFT case from most other claims on that basis.

 

Having said that, the banks are expected to raise the penalty issues in their counterclaim, so that angle will not really be valid if (well, when) they do. However, until they serve it nobody really knows for definate and as it stands at present I think we can perfectly reasonably take a copy of the OFT POC in in one hand and your T&C's in the other and argue that the charges arise from breach of contract so are subject to the penalty laws which the OFT have not sought a decloration on.

 

The only thing is that only the Lloyds OD excess and unpaid cheque charges arise from breaches, there is no term specifically for unpaid DD's/SO's - so they will have to rely on the UTCCR.

 

Most of this post will be relevant to you -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82807-court-date-have-queries-15.html#post1108758

[John72]

Hi

 

Thanks to Nic for the link and thanks to Gary for the additional info.

 

Whilst not contained within the T&C's, I have various pieces of correspondence from the Bank referring to, what I think can be construed as, breaches of contract. Examples are:

 

"...Against the unsatisfactory background of these accounts no tolerance, short term or otherwise, can be given on your accounts..............the management of your personal accounts now rests with the Bank's department in Brighton and you should by now have received a letter requesting the return of your platinum account cards, which have been cancelled........We have spoken and corresponded on numerous occasions concerning the general conduct of your accounts and I do feel the current position is untenanble. If the banking relationship is to continue I must insist that all accounts, business and personal are brought into order immediately..."

 

I suppose at this stage I can do little more than turn up on the 26th in Court and argue all this?

 

John

[John72]

.......does what I have shown an example of above indicate that by exceeding my overdraft limits I have expressly breached my agreement with the bank, with the consequence that they then made the charges on my accounts for returning cheques, unauthorised overdraft fees etc etc?

 

Any thoughts?

 

John

[GaryH]

Personally I can't see that its relevant. Letters like that can be useful but unless the contract actually says "you must not exceed your overdraft limit" or suchlike then you have not broken your agreement.

[John72]

Hi Gary

 

Thanks for your reply. I have some more examples as follows:

 

"the maximum amount owing under the facility at any time must not exceed £xxx (the "limit")".

 

"..you should only write cheques when there are enough cleared funds in your account to cover them".

 

"...I see that your account is still over the limit we agreed. I must ask you to take action immediately to put your account in order. Umless you repay the money you us I'm afraid we will instruct our solicitors to start proceedings against you"

 

"...I cannot allow any payments from your account if they would take you beyond your overdraft limit. For borrowing more than we have agreed you may be charged additional fees and higher rates of interest"

 

Do you think the above indicate that LTSB took the view I was breaching an agreement with them?

 

John