RBOS solicitors - "Particulars of Claim - unreasonable grounds"

[mrsfoot]

Please can someone help me with regards to the following? I am feeling really stressed and unprepared now - partly through my own ignorance and belief the bank would have paid up by now. Not a good start!!

 

After sending a letter for a full refund to my bank based on an estimated amount they did not respond (not even to send copies of statements/charges within 14 days of the receipt of the letter if they disagreed with the claim). Consequently I made a claim via MCOL. Where did you get the info to send an LBA straight away from?

 

The bank's solicitor's have now responded - amongst other points - that the Particulars of Claim are unreasonable grounds, etc., and requesting full breakdown of the charges by 31 May else they will request the court strikes off my claim. I do not have copies of statements/charges for the past 6 years.

 

What is my best course of action? They have asked me to contact them and explain why I cannot provide the requested information by the 31 May (originally the date by which they had to enter a defence) - should I do this citing part of the template that I (stupidly) SHOULD have used on the Particular of Claim section, and request copies of all statements/charges through the Data Protection route?

 

I am also concerned they are going on about my contract with the bank and breach of contract. I have no copy of contact from when the accounts were opened. Could I request a copy? Should I request a copy?

 

I don't want to lose this valid claim as they bank is way out of order - prime example, November 2006 they charged me over £450 in one month!!!

 

As it currently stands the ESTIMATED claim on the MCOL form was for over £9000 - I know it is NOT this high as it is estimated. My concern is if this goes to court as it currently stands. You will not be paid that amount. An estimation of charge amount is not enough evidence for a the court to make a decison on. Some posts/threads seem to indicate that if over £5000 and it goes to court it may go to a high court and not a county court and if I did/do lose I may be eligible for paying the banks legal fees.Claims under £5000 normally stay in the small claims (however some have gone into fast track) The high court is not an option at this stage, they only get involved much much later down the line if and wen the case is argued. Claims over £5K go to fast track, and yes you are lioable for the banks costs if you were to lose. Have I screwed up? In a word..Yes I made the claim through MCOL because I believed the limit for claim to be £100k (less a penny). I can't aford legal costs. No court action is without its risks, but if you do your research and understand what you are doing then it is only a small risk.

 

Now the banks have had one legal victory through the courts and I am (admittedly) not as prepared as I could/should be - I am worried I may lose my claim and (at worse) end up paying legal costs!!!

 

I am new to this site and this is my 1st post...please, some advice would be useful.

 

This is a very good example of what happens when the process is not followed or indeed advice not taken. I am glad you have posted as this will be a good story for all who think they do not need to understand what they are about to get involved with.

You need to send a DPA SAR immediately (see templates) You need to write to the solicitors and advise them you are postponing the action till you have the correct figure. Explain you had requested they contact you if the amount was incorrect and they declined to do so and so now you are making a formal request via DPA SAR for the information that they declined to send after your first letter. Write the same letter to the courts. The bank will probably request your claim to be struck out, hopefully the judge will be lenient and take your naievety to heart and refuse.

Then you need to complete the spreadsheet and start the process again. You need to be aware of why you are asking for the money back....what laws apply and which cases you can rely on. It is your money, your claim, we can only support and advise you. Hopefully this has given you a reality slap and you will now see there is more to your claim other than writing to your bank and asking for the money back!

Hope this helps

[mrsfoot]

Thanks for the help, support and advice, guys. I have today sent off the S.A.R - (Subject Access Request) to the bank and have written a letter to their solicitors - not yet sent as I was after more advice.

 

The solicitors have requested more information (as posted) including section whereby they are trying to get me to admit to whether I believe I should have been charged or not, and if yes, how much do I believe I should have been charged!! Do I respond to this at all? If I respond should I agree that I should have been charged for being in breach of contract (that guy who lost ansswered "no" did he not??) and as for the chargeable amount just stick to the "reasonable" charge as quoted in the Acts? For this section you do not have to show what is a reasonable charge. The Act states very clearly that if a penalty is excesive in nature then it becomes invalid and nothing is due. It is not your position to decide what is reasonable and what is not. Reply with something along the lines of.....With reference to your request of what my opinion of a reasonable charge is, this is not relative as it is not my position to declare what is a reasonable charge. I have made the application for XXXX to be refunded as it is clear under the UTCCR's and the OFT report that the amount charged was excessive and far outweighs any loss RBOS have incurred through my breach. However if you would like to declare your losses for each of my breaches, then I am more than happy to employ a Finance Analysist in order to do calculate the actual loss incurred and a "reasonable" charge for the loss. Please be aware that should this then go to court, you will be liable for the extra costs incurred.

 

Is it also advisible to highlight to the solicitors that I will need more time than the 31st May to respond with a breakdown of charges due to their client not supplying me (when requested) with copies of statements/charges, hence the need for me to request them now via SAR? Yes write them a letter saying you are requesting further time and send a copy to the court.

 

Should I send duplicate copies of letters to the court? Yes

 

In their statement of defence I find it difficult not to respond on points they raise - should I refrain from responding apart from the specific request for information section? Without seeing the defence this is difficult to answer but for now i would suggest only answering the points on info.

 

Sorry for all the obvious(?) questions but I am feeling really overwhelmed - points about being unprepared accepted. If I am to not make this another victory for the banks, though, I could do with any help, advice and support that you can to make sure I am succesful and if nothing else, highlight my failings to alert others who are only just starting out.

 

Thanks to you all so far....

 

I apologise if you felt my first response was hard.....however it is easy to make mistakes and these mistakes can be easily avoided if the correct work is done before jumping in. Dont worry, I'm sure this will turn around and you will get your refund with just a little bit of hard work. Just make sure you fuly understand the laws and cases...its that that wins the claims!!

Good luck

[mrsfoot]

mrsfoot/rory32,

 

Thanks again for the advice and words of encouragement. Fingers crossed all will work out.

 

I have managed to track down (I'm useless with paperwork!!) about a year's worth of statements for the accounts for which I am claiming back charges on. Is it worthwhile sending copies of these - indicating the charges - to the banks solicitors and the court as "proof" of why I am claiming, what I am claiming and as a basis for my estimation to date until such time (IF!) the bank returns copies of my statements or lists of charges? I woudl send these as a preliminary approach with an explanation that the others will folow after the banks has complied with the DPA SAR. DO NOT send originals and send by special next day delivery....costs a little extra but worth it

 

One of my biggest concerns at the moment is now I have been informed - through MCOL - that the case is going to court due to the defendant's defence, and my claim is estimated is that it will be pushed through on fast track and not through small claims that would make me eligible for their fees should I lose. Is there anyway I can request the small claims court? You can request small claims, however if the sum is over £5K it is unlikely to be granted. However read up on Civil Procedings Rules and prepare an argument in order to try keep in small claims. I know the estimate is much bigger than the real sum paid in fees but was worked out on the basis of having x number of statements and multiplying up to work out ann "estimated" figure. The date for the court hearing will take a whle to come through and even when it does chances are it wont be until at least 8 weeks as the Courts are extremely busy. So stop panicking, you will have time to get this sorted and an exact amount completed.

 

Looking through the request for information again last night, the bank's solicitors have asked the following:

 

"In relation to each charge, please clarify the following: (a) is it the case of the claimant the same should not have been charged? (b) If yes; please explain why the claimant contends the same should not have been charged? © If no; is it the case of the claimant that the same should not have been charged in this amount? (d) If yes; please explain why the claimant contends that the same should not have been charged in this amount and identify the sum of the claimant contends should have been charged. (e) If no; please state the claimant's case.

 

In respect of the above, do I agree I should have been charged but contend the amount I have been charged and as for the identification of the sum, use the kind of wording as MRSFOOT has suggested?

 

4.1 Please specify the clause(s) pursuant to which the charges were applied; In your terms and conditions, what clause states a charge will be added to your account for non payment of a cheque etc....that clause number will be your answer.

 

4.2 Please specify whether the charges applied were due to a breach of contract by the claimant; DO I ANSWER YES?? Yes they are a breach and therefore attract a charge

 

4.3 Please identify in each case the particular breach of contact (by reference to the appropriate term(s) of the contract that the charge related to. DO I REFER THEM TO THE INSTANCES OF THE CHARGES ON THE STATEMENTS I DO HAVE? On the spreadsheet add a column headed "breach of clause" and under that heading state the clause which has been breached according to your contract with the bank.

 

5. In your claim you state that the charges are contrary to the UTCCR 1999. Schedule 2.1 (e) is the part you need to refer to for this point. State it word for word and then explain how it applies.

 

6. Please specify all of the facts relied on by the defendant in support of the contentions in Para.5 above, and in particular please identify the contractual provision(s) that the claimant alleges are invalid by reference to the regulations. Use the UTCCR's and OFT report for this section and apply them to the charges.

 

Huh??

 

Once again, can't thank you both enough. I know some of this post MRSFOOT has kind of answered already but I though that I'd post the actual requirements by the solicitors and get it right this time!

 

Ok i think that covers most of it. If you need a hand writing the response please contact me and Ill give you a hand.

[mrsfoot]

mrsfoot, thanks again for all the advice and support. You most probably WILL be getting a hand in writing my response. I can't seem to help worrying about this. I never realised when making the claim at the courts that it would be likely to go thru fasttrack and not the small claims track. I think I got myself confused by the fact that it said the claim could be up to £99,999.99 via MCOL. The thought of actually going to court is a scary prospect for me and I honestly have a strong feeling that RBOS will see this thru to court with me.

Very doubtful they will attend as they understand too many cases are being won and they cant justify but always best to be on safe side and have everything neat.

I contacted Northampton Court y'day to ask about the allocation, telling them that although it is an estimated claim that the real amount will probably be less than £5k and therefore should stay in the small claims court. The woman I spoke to was very helpful and courteous to me only confused me even more when telling me how I could fill out form N224(?) and apply to the district judge to have this claim cancelled off and a new one issued with the accurate claim amount, etc., etc. My head is spinning with it all now.

N224 is like a change of circumstances, it will give the Judge an insight into the error and be able to change the amount to a true account rather than an estimated. I think it costs £35 and this is not claimable from Bank as with some other court costs are. I would do it asap

 

I feel like I have made so many errors (small or large) along the way that I feel like giving it up. Guess I'll just have to try my best - with your help!!

 

Fasttrack? If it goes down this route and the worse case scenario happened would I be liable to £thousands of legal fees "accrued" by RBOS with their solicitors or is there still some sort of cap? This REALLY worries me as I know (or believe) that this would not be an issue if it stays in the small claims court. Probably end up having a coronary before this is sorted!!!!!

Fast tracked has capped costs depending on the amount claimed. However until you get a true reading of the amount to be claimed its hard to say. Between 5 and 10k i think it is capped to £500 plus a further £250 for a solicitor to attend on the banks behalf

I dont thin you will have the coronory..more likely to be me lol however as long as you get all your statments and dig out a leaflet with the terms and conditions of the contract account on then you should be fine