Postal address for CAG: Consumer Action Group PO Box 7481 Derby DE1 0LE Thanks

Hi all, Does any body have any business account T & Cs preferably historic ones but any will do. If so can you email them to admin@consumeractiongroup.co.uk and mark them FAO Zoot. Thanks

You need to check your T & Cs to see if you are prohibited by your contract from having a direct debit returned or obliged to ensure that it is not returned. If not you will only be able to rely on UTCCRs in relation to those charges. You will also need to plead the term in the contract which states that you must pay by a certain date.

Some suggested amendments in red

You don't want to be alleging fraud in your claim if you can help it as this will automatically fast track the claim.

Hi Damon, Sorry things did not go well at the hearing for summary judgment. If you are considering making a fresh claim its probably best not to refer to the estoppel argument in your letters. There's no point in alerting them to what arguments they could possibly use. The extract the solicitor gave you does not seem to be relevant to estoppel and you are not seeking to reopen the account but simply to claim back money paid out under what you allege to be an unenforceable term. The action is knwn as an action for money had and received. The estoppel argument is a defence to such restitutionary actions. It applies where you have paid money and at the time dispute that the money is due but pay in any event. This implies that you were willing to pay the money irrespective of whether it was due and you are then estopped from asserting that it wasn't legally due. As far as I know the estoppel argument only applies where you were aware that there was a possibility that the money wasn't legally due. If this is not the case and you did not become aware of the possibility that the charges may not be legally enforceable until after you paid them then you should be able to get around the estoppel argument. What did you put in your Particulars of claim and what charges are you claiming?

Looks good

If they have been threatening to fast track in order to get costs then it seems they will not relying on the indemnity clause. So its best to try to get it transfered to the small claims court. All the best Zoot

From the UTCCRs 1999: I would imagine if an indemnity clause was used to prevent a consumer from challenging the fairness of the terms of the contract it would be classed as hindering the consumer's right to take legal action.

If they haven't mentioned costs in their defence they may not claim them from you. I've not come across any claims involving the Chelsea before so I'm not aware of what tactics they may take. Should they claim their costs you can then defend on the grounds of an unfair term. There is something in the UTCCRs which covers this.

Nice one Gary!

Actually because of the indemnity clause it won't make a great deal of difference if the case is multi track. There is therefore no reason to make an application to ammend the order. It is still worth making an application to amend the claim to add the part about the cash back being taken at the wrong time and the indemnity clause. There is not a 7 day limit on making an application for amending the claim.

Yes those are the correct fees

Form N244 is here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/41901-form-n244-application-notice.html

If they are flatly refusing to negotiate the judge has made it clear in his directions that costs will be awarded against them unless they can justify their refusal to settle. So I don't think that it is a forgone concusion that they will refuse point blank to settle. Negotiation is a form of Alternative Dispute Resolution so you should keep making offers and keep copies of letters to demonstrate your willingness to settle and if they continue to refuse they do risk paying their own legal costs which can be a good bargaining tool in getting a settlement from them. You need to make your application to amend your POC on form N244. There is a fee payable which is greater unless you obtain the consent of the defendant. So you will need to write to the Defendant and ask for their consent before making the application. There is likely to be a hearing to decide this issue.

I don't think this is a clearcut payment on breach of contract more of a condition precedent. Also the fact that its not triggered on the first breach but only after the third breach may well affect a finding of whether it is capable of being a penalty. I still think your best solution would be to try to withdraw with as little damage as possible. What ever you do do not withdraw without first trying to get a settlement. If they are not forth coming with this then do try to at least get out with a no costs agreement. Do not simply withdraw your claim from the courts without this otherwise you will be liable for their legal costs to date.

Dear Sir/Madam, I am writing in accordance with my duty under the overriding objectives of the Civil Procedure Rules to continue to seek settlement of the case without the need to invoke the time of the courts and in compliance with Judge's Directions in which we are to seek alternative methods of resolving this dispute. In recognition of the fact that you will incur some costs in relation to my contractual breaches and in the interest of acting fair and reasonably I am thus now in a position to offer your client the chance to settle at £xxxx. I sincerely hope that this matter can be resolved expeditiously and amicably. I would be grateful if you could reply letting me know your decision within 14 days of receipt of this letter. Yours

There is no guarantee that the indemnity clause will not be upheld in the small claims court. It may well be worth amending your claim to include a determination on the issue of fairness of the indemnity clause. I have to say that it is risky as far as costs go. I think maybe your best bet to be on the safe side would be to make an offer saying you are willing to accept a lower amount and see if they are agreeable to that. Make it sound as though you are trying to co-operate with the courts direction to seek to resolve the dispute. I'm sure there are some letters on here somewhere from when the ERC claims failed. I'll see if I can find one.

Some points you can use in making your application: 1. The claim involves a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers. 2. You are a litigant in person and not familiar with the more complex procedures in the multi track. 3. it is advisable to have legal representation in the fast or multi track, whereas in the small claims track legal representation is discouraged. I can not afford legal representation and thus require a hearing in the small claims track so that my right to a fair hearing is not prejudiced 4. Under the Overriding Objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the Defendant is a huge financial institution it would be unfair to place this in the multi - track as this would give the Defendant the advantage in being able to bear the risk of costs whereas I do not. The Defendant has ready access to legal advice and representation whereas I am a litigant in person 5. the Overriding Objectives of the Civil Procedure Rules requires the case to proceed speedily so that a just settlement may be obtained by the parties to this case. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive. 6. The claim is below the 5K threshold. Ifiled 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 or multi - track. To allocate the claim outside the small claims track would be grossly unfair 7.Whilst the Claimant has repeatedly tried to contact the Defendant to resolve the issue, the Defendant has failed to respond to any communication, they have refused requests for a breakdown of their costs in order to satisfy the Claimant that their charges are lawful

You really do need to avoid multi track if at all possible. There is also the question of an indemnity clause. This may not actually cover legal costs involved in defending an action based on the unfairness of a contractual term. Can you post the T &Cs of the mortgage contract. I am also quite interested in the term relating to their ability to recover the cash back in the event of arrears. I would certainly recommend putting in an application on form N244 to have the case reallocated to the small claims track.

How much is your claim and who are you claiming against? Pm me if you don't want to reveal this info on the forum. What do they put in their defence?

District judge - for case management and small claims hearings Circuit judge -the next grade up for hearings in county court Puisne judge - High Court judge Multi -track claims can go either the County or High so could have a crcuit or Puisne judge

Take a look here: http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/139971-oft-abbey-others-april.html