GOT A COURT DATE? Important, please read......

[GaryH]

No problem.

[olliebollie]

GaryH

 

Lloyds specific Witness statement for inclusion in court bundles. Amend to suit;

Quote:

1st Witness Statement of [you]

Exhibit [initials then 1]

[date]

 

I know this is a daft question but should the "date" on the witness statement be the date you send it in with the bundle or your court date.

 

Also in the witness statement:-

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

 

Should that read: paragraph 9 above???

 

Thanks

Bev

[olliebollie]

Olli Thread one is #1 the very first post on this thread by Gary, it has links to all you need for the bundel

Pen

 

Sorry Pen, only just spotted your reply so apologies for delay in thanking you.

 

Bev

[GaryH]

Yes, the date you sign the statement.

 

Ooops! Yes, so it should! I'll change it now, thanks.

[olliebollie]

GARYH

 

Big Thanks.

 

Bev :)

[olliebollie]

GaryH

 

Sorry also meant to ask - should the paperwork go in any particular order in the bundle?

I did ask this on my thread but no-one has replied.

Also

1. Do you need to add the Claim No. anywhere on your correspondence to and from the bank?

2. Its advised to write page numbers on all paperwork uncluded in the bundle for easy location - can this be hand written on?

(sorry for being a dimwit but its all very confusing to me!)

 

Thanks again for all your help.

 

Bev :)

[Tammymj1]

Hiya

 

Don't know if this helps any. I had my prelimanary hearing on 10th May, The judge wanted to talk through some issue in person with us. LTSB sent there council with duff information. It seems to be a case of the left hand doesn't know what the right hand is doing. They sent me statement I put the charges on a spreadsheet but LTSB disagreed they had charged me that much. The Judge pretty much said "their information how can there be a difference in cost" He suggested to their council that they go away and get it sorted and stop messing about.

 

Seems the courts are getting fed up with dealing with it all

[bargeman]

in the witness statement what does the exhibit ***1- page 3

mean and what do you put in there

[olliebollie]

Hi Bargeman.

 

Getting the witness statement raedy for my bundle and I have put:-

 

Exhibit BAM1 (where BAM are my initials) page 1 - 5 on relevant page.

I hope this is correct as this is how I read it. please if I am wrong can correct advice be given.

 

Bev

[GaryH]

'Tis correct.

[LLou]

Hi. I received my court date (20 June) a week or so ago. It asks the Defendant to submit explanations of all charges in the schedule that I provided but i've not been asked to submit anything. Do I need to submit a bundle by the same date (25 May) or do I just take it to court with me?

 

Any advice would be appreciated

 

thanks

[passivenomore]

Subscribing.

[olliebollie]

'Tis correct.

 

GaryH

Thanks again.

 

Bev

[damo696969]

Thanks gary for all information above i'm waiting for court date will be sure to use you information

[curlychic]

Thought i would post this here for all those

viewing this thread to see ...

GMTV - Latest clips from GMTV

 

 

Martin Lewis on top form and fighting the cause as always

[sveng]

Hello, I'm putting together my bundle to send to SC&M and Worthing County court (hearing is set for 15th June). I have the basic court bundle and have read through most of the info in this thread, but I'm slightly confused on a couple of points: the OFT report to include in the bundle deals with default credit card charges, not bank account charges, I am unsure whether to include this or not.

Also in the contents page of the court bundle there is no heading for the witness statements as detailed in this thread, do I need to include all that too?

[Johnsworld]

Hi Sveng,

Although the OFT report focused on Credit Card Issuers, the OFT stated that the principles of their findings would also apply to Bank Account charges.

Not sure about the witness statement. I didn't put it in the bundle I sent to the bank today. You might think about taking your bundle into your local branch and sending it in their internal mail. That's what I did. They were so helpful! I'm taking the court bundle in tomorrow so I'll ask them. If they say the bank needs a copy I'll put it in the post.

Will let you know.

Regards,

John.

[Johnsworld]

Full OFT report here:

 

http://www.oft.gov.uk/shared_oft/rep...cts/oft842.pdf

[Pen]

Hi has you all know my court bundle has been submitted to the court and to [problem] one problem I did not do one for my self, stupid me but thats easy enough to sort out but my question is, Can I add anything to mine that I have not added to theres for instance T&Cs I have my old ones on the back of some of my statements will this be exceptied.

[Johnsworld]

Hi Pen,

 

I'm like you. Submitted bundle to bank. Court one goes in tomorrow and I keep thinking maybe I should add something else. I included the current terms and conditions as they were all I had. Maybe someone will let us know if you can submit other things later on.

 

I've written a new more in depth Witness Statement this evening. I didn't have an AQ and thought the simple version of the Witness Statement wasn't strong enough. Some of it is derived from the Lloyds Bank forum but I'm sending it to Barclays so have cut or amended it. If anyone has time to read it and tell me if I've made any fatal errors, I'll be much obliged. Especially Paras 13, 14 and 16.

Thanks,

John

 

9. I submit 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 directly from my breaches of the contract, both explicit and implied, between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.

 

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

 

 

11. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part”

 

i.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied were not representative of any service provided by the Defendant, but instead are punitive and applied "in-terrorem".

 

12. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999.With regard to the 'cloaking' or disguising of penalties, the OFT said this;

 

"4.21. The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".

 

13. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising from clear and demonstrable express and/or implied breaches of terms of the account contract between myself and the Defendant. I will vehemently refute any contention that they are legitimate contractual service charges.

 

14. However, and without prejudice to paragraph 17 above, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

15. Further, under the UTCCR:

 

(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:

 

“(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."

 

The defendant is a 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.

 

The cost of Barclay’s charges have increased during the period in which my account has been held, with no opportunity to negotiate, or notification of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

16. 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 or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

17. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

 

 

18. Further, 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"

 

19. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches but each time those requests were rebutted or ignored.

 

20. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

21. 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.

 

22. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system 'bouncing' the direct debit, and sending out a computer generated letter. The letter received notifying the customer of a charge is identical in every instance. It is therefore impossible to envisage how the Defendant can incur costs of £30 - £35 by carrying out this completely automated process.

 

23. Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

25. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that bank charges are used to fund free banking for all personal customers as a whole.

 

[GaryH]

Hello, I'm putting together my bundle to send to SC&M and Worthing County court (hearing is set for 15th June). I have the basic court bundle and have read through most of the info in this thread, but I'm slightly confused on a couple of points: the OFT report to include in the bundle deals with default credit card charges, not bank account charges, I am unsure whether to include this or not.

Also in the contents page of the court bundle there is no heading for the witness statements as detailed in this thread, do I need to include all that too?

Yes, the court won't mind you adding stuff after its been submitted.

 

I've written a new more in depth Witness Statement this evening. I didn't have an AQ and thought the simple version of the Witness Statement wasn't strong enough. Some of it is derived from the Lloyds Bank forum but I'm sending it to Barclays so have cut or amended it. If anyone has time to read it and tell me if I've made any fatal errors, I'll be much obliged. Especially Paras 13, 14 and 16.

Thanks,

John

Yes, its fine. Or at least I hope it is anyway - its the one from post #2 of this very thread! http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82148-got-court-date-important.html#post732096

 

Why didn't you leave it in its original format? It was headed and detailed specifically to be CPR compliant.

[Johnsworld]

Hi Gary,

 

Thanks for coming back. It is PRETTY MUCH the one from your thread but I was worried that some of the arguments were specific to Lloyds and I'm claiming from Barclays. I compared it to Barclays defence and left out bits that were doubtful.

 

I just needed reassurance.

 

I have used the headings you provided. I didn't post them in here because it contained all the personal stuff.

 

Thanks again,

John.

[ataction]

I have a court date, 22nd May, that is next Tuesday. I have had a letter from [problem] stating their client is 'minded to enter into settlement negotiations', however their client has advised them they cannot locate my account details!. needless to say I have advised them once again of the details. Looks like it is going to end up in court, but the settlement negotiations statement is promising.

[Mistermind]

Please,

who is this S C and M ?

[jomish]

Mistermind - Lloyds TSB's solicitors