Big Ted Vs Lloyds TSB (defending case)

[Big Ted]

Hello every one,

 

I downloaded the letter from the BBC Money Programme to request all my previous bank charges for the last 5 years (Scotland) under the Freedom of Information Act and the Data Protection Act to Lloyds TSB along with the £10 fee and received a list of the charges they have taken from me over that period. I then sent the next letter asking for these charges to be returned and received their standard letter saying all charges had been explained at the opening of the acount and they were not going to refund them.

 

So my next step was to file a small claim at Dunfermline Sheriff Court. The case is to be heard on the 17 Aprill and they had until the 10th of April to reply and state if they were going to defend the case. I phoned the court to see what their reply was, if any, to find they are defending the case!

 

In fact, attached is an extract of their reply.

 

• Admitted.

• Admitted the Pursuer has an account number (blank) with the Defenders. Quoad ultra denied.

• Denied. Explained and averred the charges forming the subject matter of this action are imposed as a term under the contract between the Defenders and the Pursuer for the provision of Bank services by the Defenders. By opening an account with the Bank, 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 services. At account opening a customer is provided with details of the Bank’s charges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include, but are not limited to, providing:-

· Cheques

· Bank statements

· The facility to make payments by direct debit and standing order

· Debit cards

· ATMs (cash machines)

By maintaining the account in credit, or within any limit agreed with the Bank, 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, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank’s own funds. If the Bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract. On page 1 of the leaflet, the Bank explains that’s:

 

“there are normally no charges for everyday banking at Lloyds TSB when your account is in credit. When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement of where you use special services, such as copy statements, we will make a charge. This guide explains how these charges work, and when they will apply. If you want to use a service that we haven’t listed, we’ll tell you the cost of that service before you give us the go-ahead

 

The charges represent a fair and reasonable reimbursement to the Defenders for the services provided to the Pursuer.

 

4. The case of Castenda and Others v Clydebank Engineering and Shipbuilding Co Ltd (1904) 12 SLT 498 is referred to for its terms beyond which no admission is made. Quoad ultra denied.

• The Unfair Terms and Consumer Contracts Regulations 1999 and The Office of Fair Trading Unfair Contract Terms Bulletin 21 (July to September 2002) issued in May 2003 are referred to for their terms beyond which no admission is made. Quoad ultra denied. Explained and averred the Defenders are entitled to impose the charges for services rendered to the Pursuer under the terms of the contract between the Pursuer and the Defenders. The contractual term specifying the price paid for the service provided by the Defenders to the Pursuer is not subject to an assessment of fairness in terms of Regulation 6 of the Unfair Terms and Consumer Contract Regulations 1999. The charges represent a fair and reasonable reimbursement to the Defenders of the services provided to the Pursuer.

• Denied.

• Denied.

I would be grateful for any advice you can give me with regard to attending court on Tuesday, as I have opted for no representation, and therefore I am rather perturbed!!!!

 

Also, can anyone please advise which case they are citing (Number 4 in bold)?

 

Big Ted

[Bigmac versus]

Hi Ted, rather than pm all the stuff it is best to keep it here so you can update as you go along.

[Bigmac versus]

Thx Gary.

[GaryH]

Hi Big Ted,

 

I've PM'd you a detailed witness statement which covers all the arguments you'll need to put accross in court - particularly with regards to Lloyds 'service charge' defence.

 

Make sure you read up on it so you understand the issues, and you could also prepare some case notes based upon it.

 

Have you been ordered to provide any documents or evidence in advance of the hearing (ie your court bundle)? If so, have you complied? Have Lloyds complied?

 

It would be helpful if you could post up the wording of the order.

 

Also have a read of this thread - http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html#post553523

[Big Ted]

Hi Gary, First let me take a second and thank you for your help.

In answer to your question , I have not been asked to provide any evidence or papers of any kind. nor have I asked Lloyds to do so, except to provide me with a list of the charges, which they have done. I am going to study the docs. you have provided. I will let you know if I have any problems understanding anything tomorrow. Many thanks again.

[Jaybabes]

Hi Big Ted

 

I too have gone through Dunfermline Sheriff Court nut my date is not until 1st June, however, its my understanding as explained by the clerk that the initial hearing is a preliminary one for the judge to decide if there is no way of coming to an agreement then there will be a full hearing at a later date, I would call the clerks at the court house to verify tho.

 

Good luck and keep us posted

 

Jaybabes

[maryhillgull]

Hi

 

I think Jaybabes is right at the first hearing the sheriff will see if the sides can come to an agreement if not then they will look at the arguments and then according to the act of sederunt if they can't make a decision based on the evidence they have.

 

Where evidence requires to be led for the purposes of reaching a decision on the dispute, the sheriff shall-

(a) direct parties to lead evidence on the disputed issues of fact which he has noted on the summons

 

So as long as the Sheriff agrees you have a valid case they will order the banks to produce evidence of their costs which is obviously not going to happen.

 

I not sure what happens if the banks don't then provide the evidence and settle instead the Sheriff may get very annoyed that they wasted the courts time but I'm not sure what they can do.

 

My only nagging doubt is that if you both attend the first hearing and the sheriff decides the banks don't have a case to answer based on their rebutal as above in post 1. Obviously that would leave you up pooh creek without a propulsion device! and in the case of Sumamry Cause with a not too small bill to pay as well.

 

Hope I've got this right I'm more than happy to be corrected:D if I've missed anything or made a wrong assumption.

 

Cheers Maryhillgull

[Big Ted]

Hi All,

 

Have just downloaded the case they are citing Castenda and Others v Clydebank Engineering and Shipbuilding Co Ltd.

 

Turns out they havent even cited the correct case. The case is actually "Castaneda and Others v Clydbank Engineering and Shipbuilding Co Ltd"

 

Could I quite legitimately quote that they case they are citing in their defence does not exist or is that being petty?

[rory32]

The case they have quoted does not exist - allbeit on a technicality. If they try to produce this in court it would be thrown out in the same way as if you had made a mistake in your claim.

[Big Ted]

Well, Today is the day for the first Hearing in the Sheriff court.

I will let you all know how it went as soon as I get back. I'm not sure whether to mention the fact that they are citing the wrong case in there defence at this stage or hold that back till the second hearing.

any advice before I leave???

[Big Ted]

No court today!!!!!!!!!!! Just been to the bank and they have put £752.64 into my account quoting "Bank Claim Refund" (was only claiming £680! YAHOOOOOO!!!!!!!!!!!!!!!!!!!!!!!

 

Big Ted (aka Ann)

[maryhillgull]

Surprise! Surprise! Just shows they back down everytime! What interest did you ask for 8% Judicial?

 

Anyway BIG Congratulations

 

Maryhillgull

[Jaybabes]

Congratulations Big Ted...

[Big Ted]

In reply to Maryhillgull "yes it was 8%" I think maybe thats why the odd amount £252.64

To everyone else "A realy big thanks to evryone for there help and advice sometimes late into the night" . In particular site helpers BIGMAC and GARYH who went through my paperwork with me step by step and who I could not have done without.

[GaryH]

Fantastic, thats great news well done!!!!!

[Big Ted]

By the way, that £252.64 I posted earlier should have been £752.64!!!!!

 

Sorry, got carried away!

 

Big Ted

[Big Ted]

Just a quick question, having read the preamble on the site (which I didnt do before, what a dohball) I realise that I may have been penalised as I have never been offered a Switch card, I only have a card which means I have to go to the bank, or a Lloyds TSB cash machine.

 

Is there any way I can redress this, as they have paid up?

 

Big Ted (aka Ann)

[rory32]

On what grounds was the card issued. Was it because you have/had a poor credit rating - is this now repaired (you'll need to check). Or is it due to your income i.e. not fixed such as self employed or short-term contract worker.

[Big Ted]

Not even sure, they wont say!!! My credit has been good since last August (anyway not that it was bad before) but that was when the charges started, dont know if it is related, or me just being paranoid! I only joined the bank in 2005 (after having been with RBOS for 25 years) (next claim here I come) so figured it was cos I was a new customer

 

Any help welcome!

 

Big Ted (aka Ann)

[Bigmac versus]

Woohoo, CONGRATS Ann thats great and see you on the RBOS forum.

 

George

[Big Ted]

Is the RBOS forum not on here?

[Bigmac versus]

CAG yes but different forum, follow link and read up some, when your ready start another thread there, good luck.

George

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/

[rory32]

I would suspect the reason might be your previous banking with RBofS. I had a similar problem and at the mo have a basic account with Nationwide, but am looking for just over £4.5K back from RBofS plus the repair of my credit rating.

I would suggest you get a copy of your credit report (think it only costs £1) from Experian or someone like that. This will let you know how credit worthy you are deemed.

[rory32]

Oh just had a thought......do you do all your banking with Lloyds now. They may not have issued you with a switch card on the basis you weren't putting much money through the account.

Don't know if this helps or not.....Rory

[Jaybabes]

Thinks its just Lloyds being a***h***s lol cos they won't give me a debit card either and I've banked with them for over 15 yrs and have over £2k a month going in to my account !!