JLS v Lloyds TSB

[JLS3852]

Hi there,

 

I filed claim against Lloyds on MCOL which was issued on 04-06-07.

 

Acknowledged 13-06-07 so will sit back and wait again.

 

HSBC claim seemed to go quite well really and having read some Lloyds posts they appear to be a little more difficult then some other banks. Fingers crossed. I have NatWest, Cahoot and First Direct to go after this.

 

Thanks,

 

Jodie

[JLS3852]

Hi all,

 

Have now received a notice of transfer of proceedings from Northampton County Court dated 28-06-07.

 

It also states that "the filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise".

 

Just going to check the defence against what others v lloyds have had. I am guessing it will be the standard.

[JLS3852]

Hi there,

 

This is the defence I received from Lloyds:-

 

1. The defendant Lloyds TSB Bank plc "the bank" is a Bank whose registered office is 25 Gresham Street, London, EC2V 7HN. It is admitted that the Claimant has beena a customer of the Bank at all material times.

2. By opening an account with the Bank, the customer enters into a commercial arrangement with the bank for the provision od 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 cahrges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the cahrges 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"

3. 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 therms of the contract. On page 1 of the leaflet, the Bank explains that ? 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 or 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".

4. There is no breach of the contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank's loss.

5. The customer is given advance warning of charges being imposed; statements show the charges, if any, the customer has incurred during the course of a month, and, which will appear as debits on the following month's statement. Customers are warned by letter when they go overdrawn or over their agreed limit without arrangement with the Bank. If the customer fails to remedy the position, and payments such as standing orders and direct debits are refused then again the customer is warned by letter.

6. The charges are fair and reasonable, and it is denied that they are unlawful.

7. The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charges are terms which relate to the price payable by the customer for a service provided by the Bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999, are not subject to the assessment of fairness.

8. In the premises:

8.1 the charges are for banking services, and are not damages nor a penalty;

8.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;

8.3 it is denied that the charges are unlawful or contravene any statute or regulation.

9. The Claimant's claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the Bank.

 

 

 

I think this is the same defence as received by others. As it states the AQ be dispensed with, I am sending a chaser letter to the solicitors and shall await further instruction from the court.

[zootscoot]

Yes standard defence.

 

It may be worth checking if the a/q fee is still payable as even though they have dispensed with it some courts are still requesting the fee.

 

All the best

 

Zoot

[JLS3852]

Reponse received from local court requesting AQ is completed. Last filing date 27-07-07, I have completed and sent 20-07-07 to the Court and SCM.

Will need to start gathering my court info now I guess as I can't see Lloyds settling. Typical!

[JLS3852]

Hi guys,

Can anyone advise if it is the court bundle I need to start preparing now once I have sent off the AQ? Is it the same information I will be using in court that I need to send to them all now?

 

Thanks,

[BEBOBs]

When I prepared mine I left details at the following forum http://www.consumeractiongroup.co.uk/forum/lloyds-bank/103945-lloyds-court-dates.html and GaryH e-mailed me all the information I needed also i have seen a link around named ERROR I think this is the same info. I will have a look and try post it on your forum. Good luck

[JLS3852]

Thanks for that info Bebob's. The filing date for my AQ is today, I sent it last week but guess I need to send all the information I detailed and I didn't know if this is different from what is used in Court.

[Taz34]

Hi,

 

Hopefully this might be of some help.

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

Good Luck

[BEBOBs]

the link to garyH is a much more comprehensive bundle. If you have just filled your AQ you will be insructed by the court when to submitt the bundle. By all means have a good read through but i'd delay compiling it as it is over a 100 pages and 3 copies of this will mean destuction of a small tree

[JLS3852]

Morning all,

I was hoping for some advice please?

My AQ was filed by the deadline of 27-07-07, I have called the Court today and they have not received anything from Lloyds and have advised that the case is with the judge and he may issue a sanctions order to Lloyds.

I was just wondering, if Lloyds haven't complied with the instructions, do I still have to submit all the documents as per my AQ or do I wait for the judge to decide what to do with Lloyds?

I have sent a nudging letter to SCM stating they haven't filed anything and did they want to settle instead. Nothing received so far though.

I have another week before the 14 days after AQ filing is up so think I need to get all my doucments that I would intend to use in court to them by then.

Any advice on what I need to do next gratefully received!

 

Thanks guys.

[BARTY]

Hi

I would wait to hear from the Court for your next move.

Good luck, keep us posted.

Barty:)

[JLS3852]

Thanks Barty.

Fingers crossed the judge throws out their defence then.

So you don't think I should stick to the timescale I detailed in my AQ and send the information in anyway just in case? It does seem a lot of work if Lloyds haven't stuck to the timescales, but don't want my case to get thrown out.

 

Thanks again,

 

Jodie

[JLS3852]

Hi all,

More help needed I am afraid as the wording of the letter from the court has confused me!

 

I have received a General Form of Judgement or Order from my local court which states that:-

 

The claim be listed for an allocation hearing on 07 September 2007 (time estimate 5 minutes).

 

At this hearing, the Court will consider either:

a. Staying the claim pending the decisoon in a test case involving the Defendant or

b. giving directions for this claim to be heard as a test case and if necessary allocating the claim to the multi track for that purpose.

 

Not less than 14 days before the allocation hearing, the Defendant shall file with the Court and serve upon the Claimant details fo any cases proceeding as a test case, the decision in which will determine the issues in this claim. Alternatively, the Defendant shall file with the Court and serve upon the Claimant draft directions for this case to proceed as a test case.

 

The Claimant may make any representations to the Court in writing provided these are received by the Court and served on the Defendant not less than 5 days before the allocation hearing. If eithewr party is prepared to abide by the decision of the Judge as tot he directions to be given, that party is excused from attending the preliminary hearing.

 

I guess this means the case is in Court, so does this mean I now need to prepare my court bundle? Lloyds haven't filed their AQ yet so is this just the court giving them more time to do so?

 

I have tried researching other Lloyds threads but I can't seem to find what I am looking for. Any help or assistance would be great.

 

Thanks,

 

 

Jodie

[JLS3852]

Hey guys,

 

Can anyone help with my question above? I just need to know what I need to do now based on the letter I received from the Court. I guess this is when I prepare my court bundle? Do I prepare it and send to court and SC&M before the court date or just take it with me?

 

Thanks again.

[JLS3852]

Pleeeeeease....

 

Can anybody help me? I am not sure what this letter from the Court means and I don't have long to prepare since the date is set for 7th September.

 

I have tried searching other Lloyds threads but cannot find this information.

 

Can someone advise what I need to do - should I be preparing my court bundle for this? Is this the actual court proceeding? I am confused because it says judgement at the top of the letter as surely if judegement had been passed then I have won by default, however, why would I then have to attend Court?

 

They haven't stated that I should send all the information contained within my AQ yet and I am getting concerned that if I am not following the procedures my claim will be struck out.

 

Please help someone.

 

Thanks,

 

 

Jodie

[zootscoot]

Its an allocation hearing rather than the full hearing and the judge has listed three matters to be decided, the possibility of staying the claim, allocation and possibility of test case.

 

I'll find some links to help you with these.

[zootscoot]

Use the info here to object to the stay. You won't need to do the application via N244 or pay the fee as the judge has ordered the hearing.

 

http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/108430-stays-info-guidance.html

 

Adapt the info for your own circumstances and send a copy to the court, one to SC & M and take a copy along to the hearing.

[zootscoot]

Here is a link to the witness statement for allocation and test case:

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/82729-allocation-hearing-test-case.html?highlight=allocation+test+case#post742607

 

Again send a copy to the court and SC & M and take one with you on the day.

 

Best of luck

[JLS3852]

Thanks so much for your help.

[JLS3852]

Hi All,

 

After spending last week preparing the info as advise above, I received this letter on Friday:

 

Defendant: Lloyds TSB DX36675 Brighton 2

Date: 22-08-07

 

Before District Judge Bazley White sitting at Ipswich County Court.

 

Upon considering the papers in this case

 

IT IS ORDERED THAT

 

1. Save as appears in this order, this action be stayed pending the final decision (being judgement in the action or the final appellate court, whichever is the later) in the test case between the Office of Fair Trading v National Westminster Bank plc and others ("the test case") or furtehr order of the court.

 

2. The Defendant shall within 21 days of the final decision in the test case file at court and serve on the Claimant:

a) A case summary of not more than 500 words setting out the effect of the final decision in the test case on this action

b) Their proposed directions in this case

 

3. Upon receipt of the documents set out at paragraph 3 of this order the file be referred to Distrcit Judge to consider further directions.

 

4. Either party may apply to vary or discharge this order, provided that any application is made in accordance with Part 23 of the Civil Procedure Rules and made on 21 days notice.

 

5. Any hearing listed in this matter be vacated.

 

 

So, I read that the allocation hearing set for 07 September is no longer going ahead? I had drafted my documents arguing the stay, do you think I should send them in now? I have looked up some information on the test case but I am not sure everybody else has received this response - do you think it is a standard one? I am not really sure how I should proceed with this so any help would be appreciated.

 

Thanks guys.

[JLS3852]

Hey there,

 

Can anyone advise what I should do next based on my last post re the Stay?

 

Thanks.

[Rich3236]

Hi,

 

Use the templates here to object to the stay, it will cost you £35 but people are doing it and still winning. Don't let it get to you. here is an example of what to right as provided by Zootscoot.

 

 

 

Your address

Court address

 

Date

 

Dear Sir/Madam

 

Claim Number: XXXXXX

 

Hearing date: 9th August 2007

 

I understand that D&G Solicitors, on behalf of their client HSBC Bank pls, will be requesting an order to stay my action until resolution of the bank's proceedings with the Office of Fair Trading. I respectfully request that any such request for a stay be denied. In addition to requesting a stay, the Bank appears to have failed to submit the required paperwork as directed by the Court.

 

The claimant relies on the following grounds

 

HUMAN RIGHTS

 

1 The Claimant contends that a stay of all court actions in which the preliminary issues identified in the Agreement of 25th July 2007, made between the Office of Fair Trading (OFT) and the Banks (the Agreement), a copy of which is annexed hereto, are raised, contravenes my rights under the European Convention on Human Rights (ECHR) as set out in Schedule 1 of the Human Rights Act 1998, Article 6.1.

 

2 Art.6 1. Of the Convention provides that, in the determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. The OFT v the Banks case is not going to be resolved within a year from its commencement. Further, given the importance of the issues there will almost inevitably be an appeal from a first instance decision and any stay could endure for two years or even more. This is plainly not a reasonable time within which to resolve the vast majority of claims before the Courts, which like mine are small claims.

 

THE OVERRIDING OBJECTIVE

 

3 CPR 1.1(2) sets out considerations which the Court must give effect to.

 

(a) ensuring the parties are on an equal footing

 

The Banks and the OFT will be represented in their case. We as consumers are not represented. The case will determine issues essential to many cases, like mine, before the County Courts, yet we have no voice in them. There are particular circumstances in individual cases which will raise arguments the OFT are not aware of, nor can the case be expected to deal with the terms and conditions in all cases as not all Banks and Building Societies are listed as Defendants. Even if I were to be somehow joined in the OFT case, I would have no funding for representation and would therefore be prejudiced in a case with some heavyweight lawyers. The Court would properly ensure the parties in my case remain on an equal footing by allowing it to proceed.

 

(b) Saving expense

 

Expense would be saved by allowing my case to proceed in the normal way. Arguments on this issue are already set out below and apply equally under this head.

 

© dealing with cases which are proportionate to the amount of money involved

 

In my case, I claim £xxxx.xx plus £xxx.xx interest on penalties plus £xxx.xx interest at 8% for charges unlawfully levied by HSBC, not withstanding court costs of £xxx. This a large sum for me but a negligible sum for the Defendant. It is of no consequence to the Bank that I may be deprived of an opportunity to resolve my dispute for a further year to two years, as they already have my money and in any event they are under no financial pressure to resolve the case fairly and speedily. I on the other hand am extremely anxious to have my case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Bank is concerned, does not warrant the resolution of the dispute being delayed further. Additionally, the bank have unilaterally and without explanation increased penalty charges to £150 a month since I began court proceedings which has substantially increased the hardship suffered for myself and my children, and such charges are only being imposed because these very same charges force me to exceed the agreed overdraft limit each month.

 

(ii) the importance of the case

 

My case is very important to me, though given the commercial strength and power of the Bank, of relatively little importance to them. Nor can the Banks fairly argue that all of a sudden the principles as a whole are important to them so that all claims against them must be stayed, as they seek to do in the OFT case. This is not an argument which lies with them to make, given their approach to cases like mine. The Banks’ strategy to litigation of this kind is almost without exception, to put in a defence and settle shortly before the trial. It is very rare when the Banks bother to argue any defence. In other words, they treat cases like mine as another commercial decision. They have never sought to see a case through, take it to appeal if necessary and seek to establish certainty over the principles they assert are so crucial now, they necessitate a stay of all claims. Certainly of all the cases dealt with by my representative (consumeractiongroup.co.u k), I am told and believe that not one case out of thousands has been taken to trial. The Bank has always settled. If these issues were so critical to them they were at liberty to see their arguments through in a case, take it to appeal and seek certainty on the issues in an appellate court in the normal way. Only now do they seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

 

(iii) to the complexity of the issues

 

The issues of whether the Banks’ charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and whether they amount to penalty charges, whether for breach of contract or as a payment for services as the Banks now allege, is not so complex that it warrants the stay of all claims in which these issues are at large. The arguments are commonly dealt with day in day out by the County Courts who are more than adequately placed to deal with them. The complexity/simplicity of the issues is no reason to grant a stay, rather it is a reason why the County Court should continue to determine them.

 

(iv) to the financial position of each party

 

Many Claimants are normal people on low or average incomes who have been deprived, in many cases, of several thousand pounds going back up to 6 years. I am on a low income and have suffered hardship as a result of the Bank’s charges. I will continue to suffer hardship for a much longer period if the stay is allowed. The Banks have virtually unlimited funds by comparison. I like many other Claimants would be financially prejudiced by the matter going on for a long period, not just by the fact that if I win I will have been deprived of my money for a much longer period, money that would make a significant difference to my life, but also by the fact that in the meantime, the Banks can continue to charge me their outrageous penalties, incurring further hardship on me, for the period of the stay. The Bank now routinely take almost 25% of my Working Family Tax Credits benefits in penalty charges each month. I can have my private law dispute resolved expeditiously and fairly by the Court allowing my action to proceed to trial in the normal way.

 

(d) ensuring the case is allowed to proceed expeditiously and fairly

 

· This case will not be expeditiously dealt with if delayed for up to 2 years. The Banks have had years to invite the OFT to issue their case against them. Many hundreds of cases have gone through the Courts already, arguing the same points that are set out as preliminary issues in the OFT case. I should not be deprived of the same opportunity that all those other Claimants had, simply because the Banks have elected to take this route vis a vis the OFT.

· In any event, my case, as many others do, involve other additional arguments to those listed as preliminary issues in the OFT case. One major issue is the amount of recoverable bank charges and the costs to the Banks of taking the particular step they charge for. There is clearly an issue over what is a reasonable charge for say a returned cheque or at what stage a charge moves from a reasonable one to an unenforceable penalty. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of my case because some issues are identical to the preliminary ones in the OFT case, while there remain issues in my case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in my case to be determined at the same time, by the same Court which hears all the evidence and all the arguments.

· Another additional argument in my case is the fact that I am in receipt of Working Family Tax Credits benefits which are paid directly into the my account. The category of benefit that I receive is deemed as inalienable under the Social Security Administration Act 1992 (s.187) which states as follows:

 

187.—(1) Subject to the provisions of this Act, every assignment of or charge on—

(a) benefit as defined in section 122 of the Contributions and Benefits Act;

(b)any income-related benefit; or

©child benefit

and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.

 

My argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause undue hardship and which, if found in my favour, cannot be properly compensated.

 

ADDITIONAL POINTS

 

4 The defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous inconvenience and damage to reputations. Were my name to be entered on the default register I would find it very difficult to get credit or a mortgage and I would have to pay higher fees for any credit, which I did manage to obtain. Allowing a stay of all claims like mine would facilitate this invidious practice, which cannot properly be compensated for, should I be successful. The damage will already have been done.

 

IN THE ALTERNATIVE

 

5 If the court decides not to accede to my request to deny the stay I respectfully request that the court makes the stay conditional on the following orders:

 

1) That the defendant bank is prevented from applying further charges to my account until the final settlement of the matter.

2) That the defendant is prevented from applying interest to any outstanding amounts which are comprised of charges until the settlement of the matter.

3) That the defendant is prevented from closing my account.

4) That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter relating to charges on my account and/or the payment or non payment thereof until the final settlement of the matter.

5) That the defendant remove any adverse entry on its own records insofar as it relates to charges on my account or the payment or non payment thereof. (The Court has the power to do this under the Data Protection Act 1998 ).

6) That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to charges on my account. (The Court has the power to do this under the Data protection Act 1998.)

7) That these orders remain in place until the settlement of my claim.

 

 

Yours sincerely

 

 

Just ammend this as necessary and send it to the court along with the correct form and fee. Hope this helps you.

 

Rich3236

[JLS3852]

Hi all,

 

Thanks for your help and information yesterday Rich3236.

 

I have already made that form and also the witness statement when I was advised that there would be an allocation hearing. What confuses me is that it sounds as if they have dispensed with the allocation hearing now.

Also, when looking at the N244 I can't see where to put all the information. The whole thing is just confusing me slightly. I was all prepared to send off the the objection to the stay and witness statement thinking I was one step ahead of everyone else and then received the letter about the stay. If I send of my objection do I then wait for the court to come back to me or should I still see if the allocation hearing is happening on 7th Sep?

 

Thanks,