Charbydis v Platform *Claim struck out in court*

[Charbydis]

I thought I had started a thread on this but it seems to have vanished.

Anyway I have sent my LBA off now for just short of £7000 so in seven days time I will be sending my NP1 to the courts.

[paulpb123]

Hi Charbydis,

I take it that this is an ERC you are claiming?

[too strong]

Sent my N1 to the court last week, just waiting for paperwork

to come through.

[Charbydis]

The charges are one failed DD charge (due to changing bank accounts I think) and an ERC. Sorry for not mentioning it originally.

[Les Gunn]

Good luck with it Charbydis!

 

[Charbydis]

I received letter in response to LBA saying their response had crossed in the post. Gave them a week, still no response(taking them to the end of the original LBA period), so I have just written to them offering them a further 14 days as a sign of good faith but have told them if I haven't had a satisfactory response by then I am filling my claim. Lets see if their next response gets "lost" in the post?

[Charbydis]

Eventually got response, read it, read it again sent off form NP1 with cheque. I did warn them!

[paulpb123]

Great work Charbydis! Yet another ERC claim to add to the list.

[Charbydis]

Received a letter in the post yesterday from Drydens who are representing Platform. The wrote to tell me that Platform intend to defend and and the defence and counterclaim will be filed by 28 November and asked me to contact them if I wasn't happy with this?

My first thought was I'm so scared!(alright a bit scared) then I realised this is standard bullying tactics to get me to back down and also to succeed in a counterclaim against me they will have to appear in court which means they will have to justify how they calculate the ERC inflicted on me.

My thoughts today are bring it on! Life is too short to be scared!

 

[Charbydis]

Just had the defence through from Platform's sollicitors Drydens. It seems the same as everyone else has received: Your claim is without merit, we deny everything you are liable for costs under the terms of the mortgage.

Interestingly they don't include any costs but ask me to contact them to confirm that I want to dismiss the claim and pay their costs.

I will be sending my defence in asap and basing it on the one provided my ZOOTSCOOT in a related thread.

Will keep you posted.

[paulpb123]

Hi Charbydis,

Did they actually do a counterclaim for their costs (section 4 on the defence)? If not I don't think you have to defend anything.

Good wishes for a speedy resolution,

Paul

[Charbydis]

The counterclaim for costs to be quantified plus interest under a clause in the now discharged mortgage as well as a counterclaim for cost and expenses as a matter of contract or cost of proceedings plus interest plus anything else the court will give them

[Charbydis]

I have just prepared the following in response to Dryden's defence and counterclaim, I intend to send it with a covering letter saying I am still willing to settle before allocation which they might want to do as allocation to the fast track means more costs and full disclosure.

I want to send this off asap so could someone check I haven't cocked up somewhere before I post it. Should I also send a copy to the court or should I wait until the allocation questionaire arrives?

Defence to counterclaim

 

 

 

 

This defence is prepared to the contention by the defendant that the claimant has established no reasonable grounds for bringing the claim and is an abuse and should be struck out as per paragraph 1-15 of the defence also in relation to the counterclaim as set out in paragraph 16-20 of the defence that the defendant is entitled to charge the claimant for any loss or expenses suffered by the defendant in connection with the account in question and interest thereon.

 

Defence to the defendant’s contention that the claim is without merit

• 1. The claimant agrees with defendant as to paragraph 3 of the defence. It is not disputed that the claimant had a mortgage account with the defendant.
     
  2. The claimant accepts the sequence of events outlined in paragraphs 6 to 10 took place.
     
  3. The claimant denies paragraphs 12 of the defence. The claimant was in breach of a major term of the contract. The particular term in the mortgage which was breached was an express term relating to the period of twenty three years for which the mortgage was to run. This term of the contract was clearly stated in the written mortgage offer signed by the claimant. The terms of which were incorporated by reference into the mortgage deed which was not only signed, but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that the claimant in fact redeemed the mortgage on the xxxxx as evidenced by the final redemption statement. This date is clearly well before the contractually agreed date of xxxxx and thus represents a clear breach of the contract.
     
  4. To further the contention that a breach of contract did in fact occur, it is submitted by the claimant that during the period of the twenty three years the claimant was clearly under a contractual obligation to pay monthly installments to the defendants and clearly has not made such payments since the redemption of the mortgage.
     
  5. The claimant accepts the contention that redemption of the mortgage was expressly provided for in the mortgage offer. The term provides that an early redemption charge was payable in the event of redemption and thus represents a charge that is payable in the event of a breach of contract. This term merely anticipates a breach and does not represent the exercising of a right under the contract.
     
  6. In the event that the court were to find the said term as exercising a right and without prejudice to the above paragraph it is submitted that the fact that such a term exists does not prevent a court finding of breach of contract following the House of Lords decision in Bridge v. Campbell Discount Co Ltd [1962] AC 600
     
  7. The claimant denies the contention by the defendant that the term relating to the early repayment charge is a liquidated damages clause. A contractual term which provides for a specified amount payable (whether by a fixed sum or calculated by way of a percentage) must represent a genuine pre-estimate of loss if it is to be regarded as a liquidated damages clause Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79. The claimant has repeatedly asked the defendant to provide the claimant with details of how their charge was calculated to represent a genuine estimate of their loss. The defendant has failed to respond to this request and thus the claimant is of the opinion that no genuine pre-estimate indeed took place. The claimant thus makes a respectful request to the court that disclosure of this information is provided to the claimant forthwith to bring an expeditious termination to the proceedings.
     
  8. In relation to paragraph 11 of the defence, the claimant contends that if the defendant complies with the claimant’s request to provide a breakdown of losses to which the defendant has been put to, it would reveal that the charges levied would in fact be revealed to be a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The claimant’s account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as the claimant is a consumer. The charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. The claimant vigorously contends that this is the position regarding the early redemption fee of £xxxx and the unpaid direct debit fee of £xxwhich the defendant deemed fit to apply to the claimant’s account. It is further submitted by the claimant that the defendant’s failure to provide such information is for the reason that such information would reveal that the terms are in fact a disproportionate penalty. Had the defendant been able to demonstrate that the early redemption charge was indeed a liquidated damages clause it has had ample opportunity to do so and the claimant would not have need to initiate these proceedings. It is thus respectfully submitted by the claimant that the defendant’s defence be struck out as an abuse of process or in the alternative that an order to disclose this information is made so as to satisfy the claimant that the charge is indeed a liquidated damages clause.
     
  9. As to paragraph 13 of the defendant’s defence please see paragraphs 3-7 above.
     
  10. The claimant accepts paragraph 4 of the defendant’s defence and contends that such a charges represents a disproportionate penalty and with regard to the early redemption fee, such a fee calculated by terms of a percentage of the sum repaid can not amount to a genuine pre-estimate of the defendant’s loss, but moreover represents a fee levied with a view calculated to profit from the claimant’s breach, to act as a clog on the equitable right to redeem or to punish the claimant for its breach of contract. Equally the charge levied for non-payment of a direct debit does not represent the actual loss incurred by the defendant and therefore is in fact a disproportionate penalty and therefore unenforceable.
      
  11. In the premise of all the above, the claimant vigorously denies paragraph 1 of the defendant’s defence and counterclaim and respectfully submits that the claimant does indeed have a legitimate cause of action which should be allowed to proceed to trial in the event that the defendant continues to refuse to provide the claimant with the information requested to satisfy the claimant that the fee levied by the defendant was indeed lawful.
      
  12. The claimant further submits that the defendant has not provided a satisfactory cause for the claim to be struck out nor provided a legitimate reason for its accusation that the claimant has abused the court process. Indeed had the defendant complied with the claimants requests for information the claimant would not have needed to seek redress through the courts.

Defence to the defendant’s counterclaim for costs

1. Further to paragraph 16 -17 of the defendant’s defence it is submitted by the claimant that it was not in the contemplation of the parties nor was it anticipated that such a clause could be relied upon by the defendant to require the claimant to indemnify the defendant in proceedings brought by the claimant to recover sums unlawfully taken by the defendant.
   
2. Furthermore as the contract was discharged on xxxxxx it is no longer open to the defendant to rely on a term within the mortgage contract allowing for recovery of legal costs.
   
3. Without prejudice to the above paragraph, it is further submitted that clauses 17.1 and 17.2 of the contract which the defendant seeks to rely on to recover their legal charges is an unfair term under s.4 of the Unfair Contracts Terms Act 1977. It is respectfully submitted by the claimant that such a term should be regarded as unreasonable under s.11 of the said Act, as even if the claimant were to succeed in these proceedings, the term would effectively deprive the claimant of a remedy and indeed could leave the claimant open to pay further costs.
   
4. The claimant respectfully asks the court to strike out the defendant’s counterclaim as it represents an abuse of the court process in that it is intimidatory to the claimant, aimed at pressuring the claimant into withdrawing his claim and is in direct conflict with the Civil Procedure Rules.
   
5. Under the overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. To allow the defendant’s counterclaim for costs would put the defendant at a substantial disadvantage to the claimant in that the claimant has no reciprocal right to claim costs under the contract and is thus unable to obtain legal advice and representation for her claim. Also as a litigant in person the claimant is already at a substantial disadvantage as the defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of his claim and feels she has no option but to proceed. The claimant and her family would be caused severe financial hardship should the court allow the defendant’s counter claim.
   
6. The claimant accepts that it is within the courts jurisdiction to award costs against her, however, the defendant’s counterclaim seeks to usurp the judge’s power on the order of costs.
   
7. In view of the defendant’s conduct thus far in the proceedings and particularly for the reasons given in paragraphs 15-19 above it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings.

[Charbydis]

Received AQ yesterday, wrote to Drydens with a response to their defence/counterclaim saying that unless they settled in week I would be sending it in. Hopefully a nice Christmas present is on its way.

[Charbydis]

Received a copy of Platform/Drydens allocation questionaire, it must have crossed in the post with my letter(see previous post).

They are repeating the request that my claim be struck out and have added that it should be allocated to the multi-track because of its complexity. They are also requesting a case management conference and costs.

I am going to give them until Friday to settle before I send in my AQ in which I will wording along the lines of

"It is an issue of fact not law and not complex. I breached the contract with Platform and they charged me for it. I consider this charge excessive and a penalty. They have refused to justify their costs. I request full disclosure...(I know it is standard in fast track but I don't see any reason not to ask)."

Should I put something in about their counterclaim being unfounded and intimidatory as is their request for allocation to multi-track as I consider it merely a way of dragging out proceedings in the hope that I will withdraw my action?

[Charbydis]

I am working on my AQ for Drydens/Platform. As I am claiming £7,000 or so do you think it would be frowned upon to ask for allocation to the small claims track on the grounds that it is not complex, a matter of fact not law, I am an individual against a large company etc.

Secondly do you think I should put something in about their tactics being intimidatory by counterclaiming based on a clause in a contract that no longer exists and by asking for allocation to the multi-track or is that also likely to be frowned upon.

[GraemeC]

From what I've read on other threads, I cant see there would be a problem in adding these details to you AQ - good luck with it!

[ukaviator]

That is the way to go Charbydis. A judge is more likely to keep it small track if you add something like this :

 

In view of the defendant’s conduct thus far in the proceedings, it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings. Under the overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. Also as a litigant in person the claimant is already at a substantial disadvantage as the defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of his claim and feels that he has no option but to proceed. The claimant and his family would be caused severe financial hardship should the court allow the defendant to claim costs if he was to lose his case in court. The Claimant filed the claim believing it would be dealt with in the Small Claims Court and did not anticipate the risk of bearing the costs in the Fast Track. To transfer to Fast Track would be grossly unfair.

Uk. . .

[Charbydis]

That's brilliant, I will incorporate that asap. Thanks for your help.

[ukaviator]

That's ok. Zootscoot did it a while ago i think. Have a read up on her threads, very interesting reading.

 

Good luck

 

Uk. . .

[Charbydis]

I have to file my AQ by Friday and intended including the following with it.

 

"

With reference to Claim: xxxxx

 

For the courts perusal I enclose an updated spreadsheet of charges, plus a copy of my response to the defendants counterclaim for costs and a covering letter sent to the defendant’s solicitors offering a settlement. I also respectfully submit the following information regarding the management of the claim.

 

In view of the defendant’s conduct thus far in the proceedings, it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings. Under the overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. Also as a litigant in person the claimant is already at a substantial disadvantage as the defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of his claim and feels that he has no option but to proceed. The claimant and his family would be caused severe financial hardship should the court allow the defendant to claim costs if he was to lose his case in court. The Claimant filed the claim believing it would be dealt with in the Small Claims Court and did not anticipate the risk of bearing the costs in the Fast Track. To transfer to Fast Track or the multi-track would be grossly unfair.

 

Furthermore I consider the defendants conduct since this claim was filed to be intimidatory and obstructive and directed to the sole aim of making me withdraw my claim. To support this I would draw the courts attention to the following:

They have counterclaimed for costs based on a clause in a contract that no longer exists.

They have asserted that my claim is unfounded and without merit without filing any evidence to support this.

They have requested allocation to the multi-track on the grounds that the case is complex when as I outline above it is not and also multi-track is usually reserved for cases of over £15,000 which this is not. I would have understood it if the defendant had requested allocation to fast track as this is within the guidelines.

 

I respectfully request my claim be heard via the small claims track. This issue is not a complicated one; it is an issue of fact and not of law. The issue is only whether the money levied by the defendant in respect of its customer’s contractual breaches exceeds or even reflect their actual costs incurred. I am happy to pay their actual costs and I am surprised the defendant did not counterclaim for these, as I would have paid them without argument. However, the continuing problem is (in common with the numerous other cases currently being brought by similar customers) is that the companies such as the defendant are refusing to reveal the details of their penalty-charging regime, and that the charges they apply to accounts for exceeding overdraft limits and so on are entirely disproportionate to the actual costs they incur. As the claimant has a fiduciary duty towards their customers, they have a duty to deal straightforwardly and in utmost good faith. Accordingly, I would respectfully ask that the court in this case, not withstanding allocations to the small claims track, order standard disclosure. I understand that it is in the courts discretion to do so. I believe this would bring a rapid end to this litigation.. I believe the case will take no longer than 1 hour".

 

Can someone cast their eye over it in case I have done something stupid?

[zootscoot]

Hi Chabydis,

A few missing apostrophes and you seem to have undergone a gender change since your defence!

I would take out this bit if you are claiming 7K:

The Claimant filed the claim believing it would be dealt with in the Small Claims Court and did not anticipate the risk of bearing the costs in the Fast Track.

 

Also I would assume this part needs changing:

they apply to accounts for exceeding overdraft limits and so on

 

Otherwise some really good arguments. You might also want to have a look at the new template response to claim for strike out as I have revamped the no breach argument a little.

 

All the best

 

Zoot

[Charbydis]

Thanks for that zoot, I will apply the changes as you suggest and check what gender I am! I think I spotted this error in the defence after I posted it but its always best to check.

[tezviper]

Hiya, how are you getting on with this? I am cosidering claiming myslelf and would be very interested to know. Are you also claiming interest on the ERC?

 

TezViper

[Charbydis]

The latest development is this:

The Saturday before Christmas I received a notice of hearing from the court.

Dryden's have filed an application for the claim to be struck out and/or summary judgement as "the claim a) holds no issue with any merit... or "b) the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the this should be disposed of at trial."

The hearing is listed for 5th Feb at 2pm.

The application for strick out N244 refers to a witness statement by an Adam Fox but this isn't included although the covering letter from Drydens states that the witness evidence will follow once the matter has been listed.

The obvious first question is what should I do? I have filed a defence to the counter claim for strike out, filed my AQ on time etc.

Secondly would I be right in thinking that that to prove my case is without merit they would have to disclose the actual costs involved or do they have some other way of wriggling out of this.

Lastly am I being overly optimistic to think this smacks of desperation to avoid court and generally panic me into withdrawing my claim (which I did for all of 5 mins)

Any advice woud be gratefully received.