mcuth v RBoS ***WON***

[HydraUK]

Yes I saw that, but it said in the instructions that directions should be agreed by both parties wherever possible.

 

I've completed N150 and clipped draft orders on, I intend to send a copy to Cobblers tomorrow with a response to defence, which will be the first time they've seen either document.

 

Am I correct in thinking that response to defence should be copied to the courts also?

 

Thanks Michael, sorry for being a pain...but this is shark infested waters for me. I'm a simple grease monkey.

[mcuth]

Yes I saw that, but it said in the instructions that directions should be agreed by both parties wherever possible.

 

Absolutely - I can just imagine the conversation with Cobbetts: "Hi, I've got this draft order that I'd like to submit to the court - would you agree with it please? By the way, if granted, you'd have to provide full disclosure...". Hmm, imagine their response :lol:

 

I've completed N150 and clipped draft orders on, I intend to send a copy to Cobblers tomorrow with a response to defence, which will be the first time they've seen either document.

Cool

 

Am I correct in thinking that response to defence should be copied to the courts also?

I believe so - I definitely did (can't hurt can it? If in doubt and all that )

 

Thanks Michael, sorry for being a pain...but this is shark infested waters for me. I'm a simple grease monkey.

Not a problem mate, it's what this place is all about. This is the first time I'm getting into proper R2D territory too - my other claims were fairly straightforward....

 

Cheers

 

Michael

[chezt]

WOWSER!!! That's epic michael ... well done!

[mcuth]

WOWSER!!! That's epic michael ... well done!

 

*blush*

Thank you (and thanks for the click ) - but I can't really take all the credit. These things are like recipes - a bit of this info, a bit of that, add a sprinkling of my own wordiness.....

 

Cheers

 

Michael

[mcuth]

Received a letter by Special Delivery from Cobbetts this morning, dated 14th February..... a cheque is enclosed.......

 

Dear {mcuth}

 

We refer to the above matter and to your letter of 23 January 2007.

 

We re-iterate our points in our previous letter to you. Upon consideration of the schedule you provided we note that you set out charges incurred between 21 January 1999 and 1 December 2000. Under the Limitation Act 1980, you cannot bring a claim for more than 6 years after the date on which the cause of action accrued. You issued your claim on 15 December 2006, and you are therefore only legally entitled to claim between the periods 15 December 2000 to 15 December 2006. As such, you cannot claim for the charges incurred before 15 December 2000 which from your schedule total £2,420 plus interest.

 

In short, you are only entitled to claim for £50 (in respect of charges on 18 February 2002 and 17 May 2004) plus interest.

 

In any event, our client considers that your challenge to its charges would fail in Court. Our client believes that its charges are fair, reasonable and transparent. It considers that the amounts debited to your account have been applied strictly in accordance with your agreement with it and its published tariff. Our client is also committed to ensuring the transparency of the information that it gives to its customers about the operation of its products. As such, our client does not believe that your claim has any prospect of succeeding.

 

However, without any admission of liability, our client is prepared to settle this matter in respect of charges claimed in the correct period to prevent incurring any further legal fees. As per your letter of 23 January 2007, we enclose a cheque in the sum of £94.80, being the £50 charged to your account, plus £14.80 interest together with the £30 that would have been the correct Court Fee had you issued your claim correctly.

 

Yours faithfully

 

Cobbetts LLP

 

Ok, so not only have they pretty much ignored what I said in my letter of 23rd January, their original "goodwill offer" (which I accepted in partial settlement) was for £95.00, not £94.80 (see this letter).

 

Also, the cheque is made payable to "{mcuth} into acct XXXXXXXX" - what the hell does that mean? That I have to pay it into the old RBoS account? If so, that's never gonna happen! (point of interest - the cheque account is "Suspense a/c bank charges" - they had to have a new account for these claims, ROTFL!).

 

So, my questions are:

i) I'm thinking I should send this cheque back, due to the "into acct" bit (depending on what that means) and the fact that it's not the same amount as they offered in the first place.

ii) If I now wanted to add in this argument, what would I need to do??

 

{BTW, in another envelope received today, is yet another copy of all my statements, supplied under the DPA - that makes the 3rd copy received (damn, no need to have copied one set for my claim now was there? ) after they took 4 months to supply the first 2 lots - maybe they're going overkill now }

 

Final note - I just rang the court, and Cobbetts haven't returned their AQ - so the file went up to the DJ the day before yesterday with my AQ & R2D :D

 

Cheers

 

Michael

[mcuth]

Final note - I just rang the court, and Cobbetts haven't returned their AQ - so the file went up to the DJ the day before yesterday with my AQ & R2D :D

 

Didn't realise what the penalties were for non-filing of AQ til I just read the "notes for completing an AQ" at the end of the N150 again:

If you fail to return the allocation questionnaire by the date given, the judge may make an order which leads to your claim or defence being struck out, or hold an allocation hearing. If there is an allocation hearing the judge may order any party who has not filed their questionnaire to pay, immediately, the costs of that hearing.

 

Sweet - now I'm all excited wondering what the DJ's going to do (though I suspect it'll be the boring option of the Allocation Hearing *sigh*)

 

Cheers

 

Michael

[thecornflake]

...

ii) If I now wanted to add in this argument, what would I need to do??

...

 

I love the 'if you had filed your claim correctly'. I didn't know it was up to Cobblers whether the claim was correct or not.

 

I would consider either or both of the following -

 

1) Use the argument quoted above, it sounds reasonable and probably the best I have seen yet with regards to claims over 6 years. how you would go about this is beyond me however, especially at this stage. Or you could add the 'deliberate concealement of the facts' argument. To prove they didn't conceal facts I think they would have to prove the facts weren't there to be concealed, i.e. their true costs. If they didn't know their true costs at the time of writing the T&Cs how did they know what to set the 'genuine pre-estimate' at?

 

2) Possibly mention to the court/judge how they are trying to tell you that your claim is wrong and you feel this is intimidation. Just for the hell of it, you could even mention it to the law society.

 

I think you're probably doing alright anyway, especially considering the situation with the AQs.

[mcuth]

I love the 'if you had filed your claim correctly'. I didn't know it was up to Cobblers whether the claim was correct or not.... 2) Possibly mention to the court/judge how they are trying to tell you that your claim is wrong and you feel this is intimidation. Just for the hell of it, you could even mention it to the law society.

 

LOL - yeah, you're right - seems like an idea to start putting that in front of the judge. Interesting that their letter above isn't marked without prejudice at all.

 

Or you could add the 'deliberate concealement of the facts' argument. To prove they didn't conceal facts I think they would have to prove the facts weren't there to be concealed, i.e. their true costs. If they didn't know their true costs at the time of writing the T&Cs how did they know what to set the 'genuine pre-estimate' at?

 

I've already touched on the concealment thing, so that can get further explained in any witness statements, etc...

 

I think you're probably doing alright anyway, especially considering the situation with the AQs.

 

Yeah, I do too - just don't like to count chickens and all that

 

One thing I've decided is that I'll be returning the cheque (although I could really do with £94 right now!) for 3 reasons: i) they've sent it as full settlement, ii) the "into account" on the payee line thing - I don't like that, and iii) their intimidatory & unilateral decision that my claim is incorrect.

 

Cheers

 

Michael

[thecornflake]

One thing I've decided is that I'll be returning the cheque (although I could really do with £94 right now!) for 3 reasons: i) they've sent it as full settlement, ii) the "into account" on the payee line thing - I don't like that, and iii) their intimidatory & unilateral decision that my claim is incorrect.

 

See that's what I wanted to say but you seem to be able to phrase it much better!

[elsinore]

I wouldn't put it past Cobbetts to have already written to the court informing them that the claim has been settled. That way they absolve themselves from their failure to submit the AQ. Might be worth checking.

 

Elsinore

[mcuth]

See that's what I wanted to say but you seem to be able to phrase it much better!

 

LOL

 

I wouldn't put it past Cobbetts to have already written to the court informing them that the claim has been settled. That way they absolve themselves from their failure to submit the AQ. Might be worth checking.

 

Aye, good point - though the court staff didn't mention anything like that this morning

 

Cheers

 

Michael

[chezt]

Received a letter by Special Delivery from Cobbetts this morning, dated 14th February..... a cheque is enclosed.......

 

 

Cor ur such a tease! What a generous offer ... bet it took u all of 1 sec to decide not to accept as f&f settlement! Can't wait to see what the judge decides

 

Prob worth a cal in the next day or so to check they haven't advised the claim is settled eh!

[mcuth]

Cor ur such a tease!

 

How did you think I felt this morning when seeing Special Delivery and a cheque, then seeing the amount?

 

What a generous offer ... bet it took u all of 1 sec to decide not to accept as f&f settlement! Can't wait to see what the judge decides

 

It's not an offer, it's their belief that's all I'm entitled to - LOL

Their offer letter (here) was accepted only in partial settlement, but from this letter it looks like they think the word partial doesn't exist in my letter of 23rd January (here). I'll be including something suitably scathing withdrawing derisory partial settlements in my letter to Cobbetts returning the cheque

 

Prob worth a cal in the next day or so to check they haven't advised the claim is settled eh!

 

Yeah, although I seem to remember reading on another thread that the court won't do anything about that unless I tell them that it's settled

 

Cheers

 

Michael

[chezt]

How did you think I felt this morning when seeing Special Delivery and a cheque, then seeing the amount?

I can imagine ... major excitement to gutted in the time it took to tear open the envelope n skip read the letter!

 

 

 

I'll be including something suitably scathing withdrawing derisory partial settlements in my letter to Cobbetts returning the cheque

Can't wait to read that one!

 

 

 

Yeah, although I seem to remember reading on another thread that the court won't do anything about that unless I tell them that it's settled

Yes I've read that too

[mcuth]

I can imagine ... major excitement to gutted in the time it took to tear open the envelope n skip read the letter!

 

I didn't even skip read the letter - just looked at the numbers on the cheque - LOL

 

Cheers

 

Michael

[mcuth]

Very interesting postal delivery from Cobbetts this morning...an Application Notice (N244) My notes on bits throughout are in this browny type colour

 

Letter is dated 16 February 2007 ("special delivery" is crossed out) and states:

Dear Sir

 

Our Client: Royal Bank of Scotland {mcuth: remember this}

Claim No: 6SN05490

 

We refer to the above matter.

 

We enclose a copy of our Application Notice, sent to the Court today, for your information.

 

Yours faithfully

 

Cobbetts LLP

Application Notice states:

1. At a hearing is ticked

2. Time estimate 1 hrs

3. Is this agreed by all parties? No

5. Level of judge DISTRICT JUDGE

 

In the Swindon County Court

Claim No 6SN05490

Claimant: {mcuth}

Defendant: National Westminster Bank PLC {mcuth: remember this?}

Date: 16/02/07

 

PART A

We Cobbetts LLP on behalf of the Defendant National Westminster Bank PLC {mcuth: remember this?} intend to apply for an order that the Claimant's claim be struck out

 

because

Pursuant to CPR 3.4 (2) (A) the facts referred to in the Claimant's claim do not disclose any legally recognisable claim against the Defendant.

 

PART B

We wish to rely on the attached witness statement

 

Signed:

Cobbetts LLP

Despite them signing the front signature box, overleaf the Statement of Truth is NOT SIGNED OR DATED! (not sure if that's just cos it's my copy - though everything else is signed)

 

There is a Witness Statement attached, that states:

In the Swindon County Court

Claim No 6SN05490

between

{mcuth} Claimant

and

National Westminster Bank PLC {mcuth: remember this?} Defendant

 

Witness statement of Lynsey Clare Burgoyne

 

I, Lynsey Clare Burgoyne, Solicitor in the firm of Cobbetts LLP of Ship Canal House, King Street, Manchester M2 4WB will say as follows:

 

1. I am the solicitor having conduct of this matter on behalf of the Defendant on whose behalf I am authorised to make this Witness Statement.

 

2. I make this Witness Statement from facts within my own knowledge save where otherwise stated. Where otherwise stated those facts are provided to me by the Claimant.

 

3. I make this Witness Statement in support of the Defendant's Application dated 15 February 2007 {mcuth: strange, I'm sure the date on the N244 says 16th February 2007} for an Order that the Claimant's claim be struck out. The grounds of the application are that the Defendant believes that the facts referred to in the Claimant's claim do not disclose any legally recognisable claim against the Defendant.

 

B Background to the Application

 

1. The Claim was issued by the Claimant under CPR Part 7 on 18 December 2006 ("LCB1" pages 1 to 13) {mcuth: incorrect - as "LCB1" (their evidence) shows, it was clearly issued on 15th December!} and the Claim Form was served on the National Westminster Bank Plc ("the Bank") {mcuth: remember this?}.

 

2. The Claimant seeks in his claim the return of charges taken from his account in respect of penalty charges in the sum of £2,470 plus interest. Accompanying the Claim was a schedule of the charges the Claimant intends to rely on together with bank statements.

 

3. The Claimant is time-barred from bringing a claim of unauthorised bank charges {mcuth: sorry, "unauthorised" charges? Penalty charges, dearest Lynsey} prior to 18 December 2000 {mcuth: wrong date again} by the provisions of section 5 of the Limitation Act 1980. The majority of the charges detail on the Claimant's schedule are therefore time barred, together with the Claimant's claim for interest on those charges. The Defendant calculates that the Claimant's correct schedule should be for £50 charges and £14.80 interest.

 

4. On 14 February 2006 by way of a cheque attached to a letter to the Claimant, ("LCB1" page 14) the Defendant has paid to the Claimant the sum of £94.80 being the amount of charges incurred on the Claimant's account within 6 years of the issue date, together with interest at 8% at a sum of £14.80 and a sum of £30 which represents the correct Court fee had the Claim been issued correctly.

 

C. Application to Strike Out

 

5. Pursuant to Part 3.4(2)(a) CPR, a Court may strike out a statement of case if it appears to the court that the statement of case discloses no reasonable ground for bringing the claim.

 

6. Upon payment of the sum referred to in paragraph 4 above, I respectfully submit that the Claimant's Particulars of Claim in relation to bank charges fall away, and I ask the Court to make an Order striking out the Claim.

 

7. Accordingly, I would ask this Court to strike out the Claimant's claim pursuant to CPR 3.4(2)(a).

 

I believe the facts stated in this Witness Statement are true.

 

Signed Lynsey Clare Burgoyne

Dated 16/2/07

Exhibit "LCB1" is attached, which says "This is the exhibit marked "LCB1" referred to in the Witness statement of Lynsey Clare Burgoyne dated this 15th day February 2007" {mcuth: w/s is actually dated 16th Feb}

LCB1 is a copy of my N1 claim form (stating issue date 15th December 2006), with my PoC and the 4 Appendices of charge schedules & interest breakdowns (NOTE: 36 pages of copy statements though!) and a copy of their letter to me that accompanied the cheque.

 

So, this could explain why they didn't file their AQ - though I don't think that the Court will be impressed, given that the N244 is dated 4 days after the AQ was due to be in.

 

I presume that I just wait for the Court to deal with everything now?

 

BTW, change of tack from me - I think I've decided that I'm going to bank the cheque after all and I'm only going to reply to Cobbetts pointing out facts.

 

Cheers

 

Michael

[Guest bong]

michael I wondered why you are going to bank the cheque? or is this something you don't want to divulge on your thread?

 

Don't forget my thread http://www.consumeractiongroup.co.uk/forum/legalities/65306-forget-32-limitations-act.html#post557273 which might provide a response to this. I have asked zootscoot again if she will advise on it. I know people are busy and have their own lives but it does seem strange when something as important and exciting as this crops up and the mods and BF don't comment or worse still, mods visit the thread and then disappear like they've been silenced:eek:. Perhaps its just me being impatient...

[mcuth]

michael I wondered why you are going to bank the cheque? or is this something you don't want to divulge on your thread?

 

It's fine - I just figured that since I'd said I'd accept it in partial settlement, that's what I'd do. Oh, and I didn't have to stick it into my RBoS account - I used a cheque cashing place

 

Don't forget my thread http://www.consumeractiongroup.co.uk/forum/legalities/65306-forget-32-limitations-act.html#post557273 which might provide a response to this. I have asked zootscoot again if she will advise on it. I know people are busy and have their own lives but it does seem strange when something as important and exciting as this crops up and the mods and BF don't comment or worse still, mods visit the thread and then disappear like they've been silenced:eek:. Perhaps its just me being impatient...

 

Yeah, I've still to go back to that and digest it meself, but it certainly seems to be a good argument. I just need to figure out how I can now add it to my case, and whether I actually need to do anything about this strike out application or not (especially given that it's riddled with holes!)

 

Cheers

 

Michael

[progenic7]

Hi michael,

 

i have been lurking on your threads since i found this site, and have read them with interest. On reading through the defence lodged i noticed a point that will probably be a bone of contention in court, this is of course the limitation act.

I have been researching this matter for some time now and have found alot of case law on the subject, on the point of concealment (and therfore silence) i think this may (hopefully) help you in your arguments if the day should come about.

 

Best of luck mate

 

Johnny

 

20. Lord Denning MR explained the meaning of the expression "concealed by the fraud of [the defendant or his agent]" in King v Victor Parsons & Co [1973] 1 WLR 29, 33-34 as follows:

"The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne [1899] AC 351 and Applegate v Moss [1971] 1 QB 406. In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly': see Beaman v ARTS Ltd [1949] 1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough:

[progenic7]

Michael,

 

hope you dont mind but i have found a little gem for your argument, which i feel would be very difficult for the defence to wrigle out of

 

hope this helps

 

 

S32(1)© Limitation Act 1980 -

In Fea & Another v Roberts s32(2)© Limitation Act 1980 was considered. The claimant (F), an executor of a will, brought

proceedings against the defendant to whom F had, in error, paid monies. The claim was brought over 6 years after the distribution

of the estate. F argued, based on s32(2)©, that his claim was not statute barred on the basis that he could not, with reasonable

diligence, have discovered the mistake any earlier. F succeeded. Nothing in s32(2)© requires that a mistake be avoided (as

opposed to discovered) with due diligence.

[mcuth]

Thanks for that info progenic7 - could well prove useful

 

Ok, I just spoke to the court this lunchtime. Cobbetts still haven't filed their AQ, and the judge made an order on that. I'm not going to post the order here until it's received in the post, since I don't want to give anything to our friends in Manchester just yet (if they're reading). Suffice to say that the order should put a liitle pressure on them

 

As regards the "Strike Out" application, that went before the judge yesterday, but there's been no order on it yet. Apparently even though they've ticked that they want a hearing, the judge could strike without one. Not that I think the judge will do that, but I was told that if I want to write a letter in response to it, that would be fine. I think I might, since the multiple errors contained therein are glaring. Indeed, the whole Defendant side of things is a mess considering that Cobbetts still think they're defending NatWest

 

I shall have my quill ready this evening methinks

 

Cheers

 

Michael

[livelylad]

Go on my son.

[Atlantic]

Good luck to you michael - I have been following your thread with acute interest as am just about to start a pretty huge claim against RBS myself.

 

There is just one thing that I am a little confused about: I know you live in southern England, that you're using an Enlish local court to pursue the claim - but where is your branch located (Scotland or England)? I'm really new to all this claims stuff, but I thought if the head office of your bank is in Scotland then you are only able to submit a claim in a Scottish court under Scottish jurisdiction and not English law? I do have a thread of my own, but wanted to ask someone who's already going through the motions with the same bank.....

[mcuth]

There is just one thing that I am a little confused about: I know you live in southern England, that you're using an Enlish local court to pursue the claim - but where is your branch located (Scotland or England)? I'm really new to all this claims stuff, but I thought if the head office of your bank is in Scotland then you are only able to submit a claim in a Scottish court under Scottish jurisdiction and not English law? I do have a thread of my own, but wanted to ask someone who's already going through the motions with the same bank.....

 

My old branch was actually in Rochdale (Lancashire). As far as I know, you can serve a claim on any office carrying on the business of the Defendant, as long as you specify which one it is on your N1 - I used the Group Litigation Address (there's a sticky of addresses here). I think it depends on where you live though...(if you live in Scotland, it might be worth you asking in the Scotland forum)

 

HTH

 

Cheers

 

Michael

[Wardle32]

Hi Atlantic

 

I'd avoid filing in Scotland- they have a much lower limit on the amount you can claim so you have to open multiple cases.

 

As Mcuth said, you can lodge it with any office carrying on the business of the Defendant.

 

The only issue is if you do live in Scotland, you'd have to be prepared to travel to an english court if it comes to it

 

Thanks