Can someone else represent you in court?

[tillymouse]

Hello, I am new here and hoping that someone can help me.

 

I am claiming back about £300 from Lloyds. I have got to the stage of taking them to court via the Moneyclaim website. They are defending the claim. I was expecting an allocation questionnaire but have heard nothing for about a month from when they notified me of their intention to defend.

 

Today I have received a "Notice of Transfer of Proceedings" which says that the case has been transferred to my local court which is fine, but there is a paragraph they've crossed out which says "Please read the accompanying documents carefully and note that the allocation questionnaire should be returned to (my local) county court".

 

On the next page (from the original court) it says "Sitting at (original) court without hearing: the filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise". If there is no allocation questionnaire, what is the next step in the process?

 

The following pages are the "Defence and Counterclaim" form which details the bank's defence. There are 7 points defending their position. I don't know if I am allowed to post them on here but for most of them I cannot come up with a very robust argument. Would anyone here be able to advise me if I can post these points and then advise me on how to argue my side?

 

I am unsure what happens next in the process and would be very grateful if anyone could advise me what I need to do next as I am finding this all quite worrying,especially in the light of the recent Lloyds victory!!

[tillymouse]

Me again. I've been reading other posts and it seems other people are posting specifics so here goes:

 

On the Defence & Counterclaim form Lloyds have written:

 

Defence

 

1. By opening an account with the bank, the customer enters into a commercial agreement 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... 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 include but are not limited to providing: cheques, bank statements, direcet debit/standing order facilities, cash machines.

 

2. By maintaining the account in credit, or within any agreed limit with the bank, the customer may avoid most if not all charges. If the customer fails to ensure there are sufficient cleared funds in the account to cover payments... the customer makes a request to be made from the bank's own funds. If the bank makes payment or returns a payment, it provides a service... and makes a charge in accordance with the terms of the contract...

 

3. There is no breach of 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.

 

4. The customer is given advance warning of charges being imposed...

 

5. The charges are fair and reasonable and it is denied they are unlawful.

 

6. The customer is notified of the charges in plain intelligible language ... 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 Customer Contracts Regulations 1999, are not subject to the assessment of fairness.

 

7. In the premesis:

 

What does all this mean (especially point 7??!!) and can I argue my case?

[nicsussex]

Yet another 7 point defence from LLoyds - they seem to have abit of a glitch on the system at the moment. Apart from that all perfectly standard

[tillymouse]

Thank you, it's reassuring to know this is just a standard reply. I would be really grateful for any hints as to how to respond to each point. Is there a link or something?

[jowalshy]

Hi Tilly, I know that this is from the HSBC forum, but it may help you. It seems that MCOL dispenses with AQ and leaves it up to your local court as to whether one will be required.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78873-new-after-28-days.html

[BARTY]

Thank you, it's reassuring to know this is just a standard reply. I would be really grateful for any hints as to how to respond to each point. Is there a link or something?

 

Hi

There is no need to reply to the defence.

Good luck, let us know how you get on.

Barty:)

[tillymouse]

Thank you, but don't I need to argue my case if/when it gets to court? I have read some points regarding the "cloaked penalty" issue but don't know where to look for material to help me argue Lloyds' other points.

[rosygraham]

Hello

Sorry I can't be of any help but am very interested as I am in exactly the same position as you ie have got the standard defence from Lloyds (though mine stretches to 9 points!). My Notice of Allocation to the Small Claims Track (Hearing) says that copies of documents need to be delivered to the Court no later than 14 days before the hearing, and looking at this site I see that there is a fairly complex 'court bundle' which should be adapted for each case. This looks quite tricky!

Also this site suggests that you should let an Administrator know your details but I can't see any instructions as to how to do that.

I hope I can piggy back on your query!

Thanks

[tillymouse]

Hi Rosy, it's nice to know I'm not alone! It could be that Lloyds' defence in my case is also meant to be 9 points but at point 7 the paper runs out! I don't yet have any notification to say I am being fast tracked but am also finding the thought of creating a "bundle" very daunting. My husband claimed from Natwest earlier in the year and they just paid up straight away so I stupidly assumed Lloyds would do the same. Just my luck! I just hope they give you plenty of time to prepare the bundle before you need to submit it. Good luck anyway, and feel free to piggy back away!

[rosygraham]

Doesn't seem to have been much response! However I found a useful thread which is headed

it includes a Witness statement which I found made sense of everything much more than the 'court bundle' though it is meant to form part of the bundle. It seems to me that it plus copies of previous correspondence and the schedule of charges would stand on its own, as it refers to all the other items in the bundle anyway. It would certainly be better than doing nothing. So I am in the process of filling in all my dates etc.

Good luck!

[rosygraham]

Sorry missed out the vital part! The other thread is headed:

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

[nicsussex]

Sorry missed out the vital part! The other thread is headed:

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

 

That will be this one then . .

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82148-got-court-date-important.html

[tillymouse]

Great, thank you. I'll have a look when the kids leave me alone!

[simonjohn]

Me again. I've been reading other posts and it seems other people are posting specifics so here goes:

 

On the Defence & Counterclaim form Lloyds have written:

 

Defence

 

1. By opening an account with the bank, the customer enters into a commercial agreement 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... 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 include but are not limited to providing: cheques, bank statements, direcet debit/standing order facilities, cash machines.

 

This is not quite true: 1) cash machines are beneficial to the bank in respect of it means less staff to handle cash. 2) cheques mean that they can hold on to your cash longer while awaiting clearing times hence earning them more money. 3)Direct debits This is more of a comercial aspect in so much as the amount of time that would be taken up by multi-national companies going into the bank with extremly large wads of cash, only to take up more time of the banks staff which equates to more staff for the bank, hence reducing their efficancy

There is also the point that 99.9% of peoples wages are paid into a bank account, when you consider that the banks, even if only for a brief period of 24 hrs invest the money in your account in the commodities market, which they do then they are on to a winner. As an example my company pays me weekly. the money leaves their account on a wednesday but does'nt reach my acount until friday...???

£490 x 10,000, makes a good ammount of interest does'nt it even on a small scale

 

" so this part of their argument fall by the wayside.

 

2. By maintaining the account in credit, or within any agreed limit with the bank, the customer may avoid most if not all charges. If the customer fails to ensure there are sufficient cleared funds in the account to cover payments... the customer makes a request to be made from the bank's own funds. If the bank makes payment or returns a payment, it provides a service... and makes a charge in accordance with the terms of the contract...

 

Hmmm, 1) if the bank makes a payment when there are insufficant cleared funds they may, and, I use the term losely may be providing a service. However By declining a payment by automated means they can not be providing a service.

Of all the people on here who are claiming back unlawfull penalty charges, How many can put their hands up and say that their bank paid out a direct debit, cheque payment or other when they have been in an unauthorised overdraft situation I would say less than 0.01%. Further if the banks are claiming to be providing a service then each transaction in a state of unauthorised overdraft should be manuallly intervened, afterall they claim to be providing a service than surley they can prove this by manual intervention

 

3. There is no breach of 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.

 

Also not quite true: To name a particular bank, The co op cash minder.

If a customer breaks the terms of this particular account by going into an unautherised overdraft on 3 occasions then the bank infers the right to close the account.... How can this be so if they are providing a service as opposed to cloacked penalty charges

 

4. The customer is given advance warning of charges being imposed...

 

This bit made me laugh. so if the customer has a failed direct debit on say the 2nd january the bank writes, and by the third of january you have a letter on your door mat. I dont think so, the majority of users on here could probrebly testify to the fact that most banks don't even bother sending out letters anymore

 

5. The charges are fair and reasonable and it is denied they are unlawful.

 

No No No No. If a customer who has contacted me to attempt to repair their washing machine asked what I would charge to take a look and I said £35, they would rightly expect me to turn up with a tool box and start to dismantle the machine to elicidate the problem, not to turn up, take a cursory glance, then tell them that i have litteraly looked at the machine then take the £35

 

6. The customer is notified of the charges in plain intelligible language ... 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 Customer Contracts Regulations 1999, are not subject to the assessment of fairness.

 

Well you have to provide proof of a service to be valid

 

7. In the premesis:

 

What does all this mean (especially point 7??!!) and can I argue my case?

 

 

I hope you can see where this points to if the bank is claiming that this is part of a service then they must show this to be the case, and not rely on cloked, or as may be best described as "Crooked charges"

[simonjohn]

With regards to point 7) of their Defence, I can only assume that they are refering to the consumer credit act, and cooling of periods.

 

As many, people on here may have received a response from their banks that overdrafts are not covered by the Consumer Credit Act, then I can only assume that, this may be a flaw in their defence, to be exploited, however I would suggest that you seek a more professional viewpoint.

 

Best regards

 

sim

[tillymouse]

Thank you, simonjohn. I was hoping I would not have to respond to point 7 of the defence as I have not really received it. Better safe than sorry though.

 

I read a thread a while back but can no longer find it, that suggested at this stage it was worth sending Lloyds' solicitors another letter asking for settlement before court. Does anyone know where I can find it (or does anyone think this is worth trying?)

[jshtr3]

Is this what you wanted http://www.consumeractiongroup.co.uk/forum/general/80091-your-court-dispensing-allocation.html?

[broke dave]

Have a look at this link (if it works!)

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78873-new-after-28-days.html

 

There are a couple of letters on there. I have sent the first one; no reply.

Sending second off on Tuesday.

[broke dave]

The letters to the solicitors on my link. The Draft Order, which you may consider sending to the court is on jshtr's link.

Plenty for you to read.

[tillymouse]

How long is it until you receive a court date? I received a copy of LLoyds' defence about 6 wks ago and then confirmation that the case had been transferred to my local court and the AQ was to be dispensed with about 4 wks ago. Should I have had a court date through by now?

[broke dave]

I would ring your local court up. My date only took 10 days to come through.

[tillymouse]

Thank you, but wouldn't you know it, today I received my court date! It's 17th August. The letter says I have been allocated to the small claims track and it is estimated to take one hour to hear the case. It then says that within 3 wks I have to send the court and SC&M:

1. A schedule of each charge (fine).

2. A statement of evidence, if such is to be relied upon, in support of the claim... Is this the court bundle? Sorry if I am being thick!

[Brucey]

Our letter says that the hearing should take 5 minutes!

(As part of a "block list")

 

Why 1 hour for one and 5 minutes for another?

[rosygraham]

Fantastic news! My court date was for 14th June and so I submitted my papers so that they arrived on 1st June ie last possible date and have just heard that Lloyds have caved in! Good luck with your case - my 'bundle' was based on the witness statement that I found but it seems that it doesn't matter too much - you just have to submit something that shows you have done a bit of research.

[thunderbird]

Dont panic this happened to us with our claim. Northampton Court stated that AQ whould be dispensed with but my local court said AQ was needed. It arrived fairly soon and is easy to fill in and send back. Most courts seem to want to make their own decisions on this.