Getting my knickers in a twist about going to court!

[southerner]

I posted this earlier on the Welcome thread, but thought it would be more appripriate here:

 

I've been been following your advice and reading lots of threads to reclaim £8000 + interest from Abbey. I sent the letter before action on 12th August but haven't yet filed for court action as I'm having trouble finding guidance - perhaps I'm just not very good at searching!

 

I'm concerned about some of the threads that I've read that suggest that we could be liable for the banks costs if we pursue this through fast track. Is this true, and is it likely? Is it too late to split the claim into smaller amounts so it can be pursued through the small claims court?

 

I've just checked my bank statements on line and notice that Abbey has credited 4 or 5 "Miscellaneous Fee Refund"s on to each of my accounts. Is this so that my court claim will be inaccurate and therefore cause further delays, or is there a more sinister agenda?

 

Any advice (and confidence building) will be gratefully received.

 

The response I received from Martin3030 was:

 

Its entirely up to you.

Abbey have not defended any claims yet so no one has had to pay for costs.

 

You can split them up if you wish.

 

As far as partial refunds go.....yes this is something a few banks do with live accounts.

It just means adjusting the claim and going for the rest.

[southerner]

I've spent the afternoon creating summaries on spreadsheets to work out the best way of splitting the claim.

 

We have 3 accounts and want to claim £6,500 + interest on one of them and £1,100 + interest on the others.

 

I was thinking of going to the Small Claims Court for the known charges on the main account of £4,600 + interest of £900. Then later, I could submit a further claim for the estimated charges on this account + the charges on the other accounts. This will be approx £3,000 + interest.

 

Does this sound reasonable? Is it definately okay to do this having already requested the full amont from Abbey?

[Bookworm]

Martin's answer is spot on.

 

If you keep the claims under 5k, you're not liable for solicitors's costs. There is a risk however that the bank will try to get the claims joined anyway.

 

If you go fast track, it comes with standard disclosure, which means the bank would have to show how much it costs them to actually fail a d/d and others. Standard disclosure is probably the fastest way to make a bank pay up, lol.

 

So there you have it. The final decision has to be yours.

[southerner]

Thanks Bookworm.

 

Part of the reason I'm so worried about Fast Track is that I'm having trouble finding info about it. There's plenty of advice about the Small Claims Court!

 

I found a good link the other day that had a step by step guide and links to filling in the forms online. I saved it into favourites, but now it's not working. (http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/243-step-step-instructions.html) Could you possibly point me in the right direction?

 

Is it possible for someone with no experience to win through the Fast Track, or will Abbey wipe the floor with me?

[Michael Browne]

Step by step guide here:

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31460-step-step-instructions.html

 

In order to 'wipe the floor with you', they've first got to actually step into court and nothing so far indicates that they have the slightest intention of going anywhere near a court.

[Glenn UK]

Southerner

 

Youre right there isnt much about fast track on here and this is fair bearing in mind the thrust of the action is directed towards SCC.

 

However, there are a number who are electing to have larger claims for good reasons and effectivley ellecting to go fast track.

 

There are subastantial issues not least of which is costs. However, the costs are normally restricted in fast track to a max of 750 should you loose. I cant remember all the rules about this but basically unless you loose and have been pretty daft thats the limit. If however the other side decides to ask for costs, should you lose and suggests you have been negligent in making your claim (sorry thats not the right term but my minds gone blank) then they could ask for limited costs which could amount to several thousand pounds I believe.

 

In your case however the claim naturally lends itself to be split into several claims. If the defendants asks the court to amalgamate the claims and it ends up in fast track you could appeal to the court as a litigant in person for restricted costs and I believe someone has had this happen with a claim escalated by the court to the mercantile court from small claims.

 

If you want further info then go to HM court website and search in there for fast track. Loads of leaflets and such like.

 

Im no expert but would be happy to share info if you have any questions i know the answers to.

 

Re abbey wiping the floor with you, this is a posisbility since they always have the option to use a barrister in the SCC too. Whilst the SCC is supposed to put both claimaint and defendant on an equal footing it doesnt stop them using council if they choose.

 

In the fast track the court may be more formal but you would still be a litigant in person. Oh and formal is a relative terms it doesnt mean you can call the judge mate just because its in SCC! Just how informal a SCC court is will to a large extent depend on the judge sitting at the time as fas as I can make out.

 

IMHO if you are going to put up an effective case then it wont matter much if you are in SCC or fast track IMHO.

 

HTH

 

Glenn

[pward33]

Have a look here for 16 pages of info on the fast track system!

 

Fast track and multi track

[southerner]

Thanks for all your advice .

 

Having read up about Fast Track and bought/read Patricia Pearl's book about scc I decided to be cowardly and make 2 scc claims.

 

My first claim was to be for £4600 + interest of £990. However, the only way to enter the figures onto the form online is to add them together, making the total claim over the £5000 limit.

 

I called the HMCS helpline and was told that the total amount of the claim, ie charges+interest+court costs has to be under £5000 to qualify for the scc, which wasn't the impression I was under from reading this site.

 

Please could you clarify this for me.

[southerner]

Thanks Karnevil.

 

So, just to get this straight in my mind, If I copy rbrears' text into the Particulars of Claim would that cover me for the interest as it refers to "Interest pursuant to section 69 County Courts Act as set out on the attached list of charges... "? Or would I be better to copy un1boy's text?

 

I take it that the brief details of the claim are "Repayment of unlawful charges levied by the Defendant against the Claimant's account"

 

Can there only be one claimant? The account is joint names - should the claim be in both our names or just mine? Does it matter that my name appears second on the account

 

(By the way, are you aware that your Example of completed N1 form link is not working?)

[Glenn UK]

For clairifcation, if you are claiming section 69 interest it doesnt count towards the value fo the claim.

 

If you are claiming contractual interest it does count towards the value, and therefore the track you are allocated to.

 

HTH

 

Glenn

[southerner]

Thanks Glenn.

 

I've completed the N1 and will be posting it Recorded Delivery tomorrow.

 

I've decided not to go to the local County Court as it's only about 3 miles from my house and I live in a small town! Instead I'm sending the forms to a court about 45 mins drive away. The disadvantage, of course, is that I can't hand deliver the doc.s, but at least I'm not likely to have to deal with people who know me.

 

I'll let you know what happens.

[southerner]

Should also have mentioned that I've decided to go for the full amount in one go - £7600 + interest. This is partly because I would rather get it all done in one go and partly because I had concerns about my second claim being mainly for estimated charges. I might try to get it moved to scc when I complete the AQ.

[Glenn UK]

Good luck and if you have any worries or qeustions post them so we can all chip in and help

 

Glenn

[bish]

I opted for fast track as I can request full disclosure, but hope the Judges are getting fed up with these cases never being heard in court and will start to require that at AQ stage. The banks and CC companies would not want to disclose how they arrive at their charges and so will pay up quicker. Thats the theory any way. Read of one case yesterday where Judge had ordered full disclosure from both parties. From what I've read fast track is same as SCC just allocated more time as larger sums involved may be more complex. However, SC or FT the argument remains the same just the amount of money differs. I believe it is for the Judge to decide whether to award higher costs, and I do intend to show the damage these charges have done to my finances, small guy v's big bank, I am sure the Judge will decide wisely. Thats one of the reasons they are a Judge. If it ever gets that far, which I doubt.

 

Regards bish.

[Glenn UK]

I opted for fast track as I can request full disclosure, but hope the Judges are getting fed up with these cases never being heard in court and will start to require that at AQ stage. The banks and CC companies would not want to disclose how they arrive at their charges and so will pay up quicker. Thats the theory any way. Read of one case yesterday where Judge had ordered full disclosure from both parties. From what I've read fast track is same as SCC just allocated more time as larger sums involved may be more complex. However, SC or FT the argument remains the same just the amount of money differs. I believe it is for the Judge to decide whether to award higher costs, and I do intend to show the damage these charges have done to my finances, small guy v's big bank, I am sure the Judge will decide wisely. Thats one of the reasons they are a Judge. If it ever gets that far, which I doubt.

 

Regards bish.

 

The primary issue is that in fast track should you loose costs can be awarded against you, typically limited to 750.

 

However, there is the provision for substantially larger costs being awarded against you if you loose.

 

I was informed that if i lost then i could expect to pay for the cost of standard discolusre which at solicitors rates would likely come to a few grand.

 

Incidentally if it were to get to court you would find that the setting is more formal generally than SCC too, which many would find intimidating.

 

JMHO but reliance on not getting to court is a risky strategy unless you can afford to loose.

 

GLenn

[southerner]

The 14 days was up on the 18th and when I phoned the court yesterday I was told that Abbey had acknowledged but not entered a defence. I'll send off my request for judgment today.

 

Having read threads from other people who have requested judgment it doesn't seem usual for Abbey to have acknowledged so I'll phone the court again next week to check that I didn't mishear.

 

If Abbey did acknowledge the claim within the 14 days can they still apply for a set aside?

[southerner]

That's interesting - it was the girl at the court who told me to request judgement.

 

Unfortunately I'll be working Monday and Tuesday so won't get a chance to phone again till Wednesday. I'll let you know what happens.

[traceyrmj]

i think if they fail to acknowledge after the 14 days you can apply for judgement, but if they yahve acknowledge receipt they still have to enter a defence in the 14 days , will check my paperwork on this tho as i may be wrong.

[southerner]

I spoke to a lovely lady at the court today who confirmed that my claim had been acknowledged within the 14 days and that therefore I shouldn't have submitted my request for judgement until after 28 days, which will be 1st November. However, since they won't reach the pile that my request is in until after that date, the fact that I submitted it early won't be a problem!

 

The only downside from my point of view is that I'll be short of 2 weeks interest, but since I'm expecting Abbey to request a set aside, it probably won't matter in the long run.

[southerner]

I received the defence from Abbey this morning, which was a surprise as I was expecting Abbey to request a set aside. I was also surprised that it came from Abbey in Triton square and not from their solicitor. Is this usual? Is this their standard defence? If not, do you have any ideas why?

 

 

 

Claim No xxxxxxx

BETWEEN xxxxxxxxx Claimant

-and -

 

 

 

ABBEY NATIONAL PLC

 

Defendant

 

 

 

DEFENCE

 

1.Save as is specifically admitted in this defence, the Defendant denies each and every allegation set out in the particulars of claim.

 

2. It is admitted that the Claimant has current bank accounts with the Defendant, account numbers xxxxxxxx. xxxxxxxx and xxxxxxxx ("Account")

 

3. At all times the Account has been subject to the applicable terms and conditions ("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts:

 

(1) "You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable."

 

(2) "An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed."

 

(3) "If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account."

 

(4) Throughout the period that he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

 

(5) Any overdraft facility on the Account was (and is) subject to the Conditions.

 

(6) The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. In- accordance with the Conditions, such fees were debited to the Account.

 

(7) In view of the facts and matters referred to in paragraphs 3, 4,5 and 6 above, the Defendant denies that the amount of any other amount, was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied.

 

(8 ) The Claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

 

(9) Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

 

(10) No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

 

The Defendant believes that the facts stated in this defence are true.

 

I am duly authorised by the Defendant to sign this statement.

 

Full name Inga Kirkman

 

of Abbey National pIc

 

signed position or office held: Legal Officer

 

Date: 25 October 2006

[sixtyminuteman]

Hi, I had exactly the same defence to my case against Abbey, the court wants a detailed reply to their defence and an outline of the skeleton points of law to be argued. It's fair to say i'm struggling to do it, let me know how you get on with your case, and good luck!

[noobrider]

I got same defence and same person ...Inga Kirkman

[REG SINGH]

Same Here,same Name Too.will Watch Your Thread

[natwesttookmymoney]

(8 ) The Claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

 

(9) Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

Great! Point 8: "The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract" Prove it. Show us your costs incurred, the meetings, phone calls (not sales calls), visits to your premises, personal letters manually typed and signed by the Branch Manager or lending centre or whatever, that were incurred as a result of your breach of contract. Then tell us how your charges are arrived at and how they compare with the actual costs. Then explain the difference.

 

As for point 9 - It just says you have to pay those that it can show are proportionate. So they'll have to show what the costs are, the expenses they had to go to, etc, etc, and just refund the difference. Which will be nearly all of it, every time, because the biggest single expense they have per transgression is the cost of postage. And they get a deal on that, because they send out so many letters.

 

They can't claim the fees are OK simply because they're in their tariff and scales of charges: they have to be justifiable. Unfair Contract Terms Act, plus the precedents.

 

If they're providing a service, fine. They have to show what the service is and how much it cost to provide it. But these are for breaches of contract: you get 'free banking' (ha-ha!) while in credit because...the bank is earning interest by lending on money you lend (deposit) to them.

 

If they're relying on that, they should take some better legal advice.

 

Be prepared to put the points in Court but, if that's the basis of theri defence, you will be able to do so with confidence.

 

Good luck!

Westie

[grumpy guts]

Same defence & same person here.