GOOD (me sometimes) V EVIL (A&L)**WON**

[bsia666]

Thanks janus for the link..............its a bit long to go through as i am making dinner now, I shall look later on today.

[jansus]

Hi william

 

have just found out AQ may still be required so I have jumped the gun a bit. Also found a new useful section (guidance notes) thought I had read everything on here!

 

On there it says let the sol come to you to do a deal - but on that other thread it says the courts look favourably on you trying to avoid a court date. Confusing

 

I am still thinking of doing a nudge letter that I can send to the court later - but for the full current amount. Glad I have taken time to think - and may leave it a few days before my final decision .

 

Jan:)

[bsia666]

Hi jansus I had a look at this...................

http://www.consumeractiongroup.co.uk/forum/guidance-notes/675-case-guidance-notes-making.html

 

This looks very helpful to me for making deals in court. I shall wait till I get my orders from the judge, then send a letter asking to settle before court for the full claim amount. They may or may settle out of court, if they dont i think it may bolster my wasted costs request.

 

William

[bsia666]

I phoned Brenford CC today to ask about my claim. I was advised that my claim was still with the judge. So still no orders yet.

 

"Patience patience" is the phrase I hear. Still the journey will hopefully be worthwhile.

 

William.

[track11tyl]

“Patience is bitter, but its fruit is sweet.” - Rousseau

 

 

Tr:)

[bsia666]

[bsia666]

Phoned the court today...................the judge still has not sent my case "back through".

I shall phone next Friday.

[Poe1974]

Have you heard anything yet William ?.

[bsia666]

Nope have not recieved anything......................waiting till Friday and then another call to HMCS.

[bsia666]

I phoned Brentford CC today.............I was advised that a letter had been sent to me on the 19th of July re a court date. I was told that I have a date for a hearing (6th of August, 2pm). That is a week on Monday, that would be good news other than the fact that I have not received any letters from the court.

 

There are 17 days from the date of the letter being sent from court, to the actual Hearing date. This does seem a small amount of time to be given to prepare. Can anybody shed some light on this?

 

I also have no idea what type of hearing it is (very frustrating) !!!..............It could be any type. I told the "listing's secretary" that I had not received any correspondence from Brentford CC regarding the hearing on 6.8.7, she agreed to send out another copy of what may be the Judges orders, if I get that on Friday that's still only 7 days before the hearing. She put my mind at ease by saying the judge would listen some kind of request for more time if I need to file docs.

 

I just knew that Royal M-il would not be able deliver the most important letter I would need, on time.

 

What will the next step be??.................I havn't a clue.

 

William

[MimiJane]

Mmmm, could the court's fault or R/Mail ... no way of knowing:rolleyes: I've had recent problems with R/Mail, as they didn't get a signature for Recorded Delivery when the bundle was delivered:rolleyes:

 

Hope it all gets sorted and make sure you apply for more time if you need it ... depends on the directions of course. At least it will all be over for you sooner than you thought!

 

Mimi x

[bsia666]

Can anyone help.................

 

I received on the 27th of July, a Notice of Allocation to the Small Claims Track (hearing) from Brentford CC. The letter is dated 19th of July 2007.It begins like this.................

 

"DISTRICT JUDGE PLASKOW has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track"

 

The paragraph that concerns me the most is this............

"Each party shall deliver to every other party and the court office copies of all documents (including any experts' report) on which he intends to rely at the hearing no later than 14 days before the hearing." I could not comply with this in time as I did not receive the Notice until the 27th which is 10 days before the hearing. I will be able (I think) to send all my docs on Monday.

 

I think that letters to the court and Wragge & Co should be sent apologising and explaining why I could not comply, but I do not know how to frame them, is there anyone who could help me frame these letters, or are there some links I could follow? I want be spot on to the judge especially.

 

William

[MimiJane]

Hi William,

 

I don't think it's up to you to "apologise" as the court should have sent this to your earlier:confused: We all know there's a postal strike, but this should have been/will be allowed for. I think it's up to the court to put this right, not you.

 

I'd give them a ring first thing on Monday to explain and say obviously both yourself and the Defendant will need more time to prepare and submit the papers and ask them what they suggest. IMHO they should re-submit the Directions and give you more time ... you should not have to write to everyone concerned.

 

Also, of course, we don't know how the "Announcement" is going to affect everyone at the different stages you're all at. I suppose it's best to proceed as normal until told otherwise.

 

BTW, sounds like the "full" bundle is required, minus any Statements, i.e. copies of all correspondence between parties, CAG Basic court bundle, settled cases in the CAG library, any BBC articles you want to include and T&C's. PM me if you want me to send you my document index, etc.

 

Good luck

 

Mimi x

[bsia666]

Thanks MJ...................I shall carry on with my bundle preparation and send the courts bundle with a cover note explaining why I could not comply inside the judges timeline. I shall miss out the letter to Wragge & Co but send their bundle on Monday too.

 

I am happy just now to go to court on the 6th of August, so I will not ask the court for more time, I shall phone Brentford CC on Monday and ask if the judge will still be hearing my case. If Wragge & Co are happy getting my court bundle on Tuesday aswell as the judge, I won't apply to the court for more time, the court hearing can go ahead as ordered

 

I have your index on my computer from a previous PM, cheers. I have a question MJ re this..............""full" bundle is required, minus any Statements" from your post above. Its the "minus any statements" part I don't understand sorry for being thicko but could you explain that to me MJ ??

 

William

[MimiJane]

Quite often peeps are being asked for a Statement of Evidence or Witness Statement. You haven't been asked for either (as many others haven't also). Less work for you, so a good thing

 

(If you want a look at the Statements, they're in the A-Z in my signature)

 

I had a feeling I'd sent you my index, etc. in the past, I lose track ...

 

Cheers,

Mimi x

[bsia666]

Thanks MJ, I had a look at the notice and the judge has asked for "Witness statements, including from the parties themselves"

 

I shall do it tomorrow as its getting late;)

 

William

[MimiJane]

Good luck William

 

Shout if you need any help.

 

Mimi x

[bsia666]

Shouting MJ....................

 

Could someone with a lot more savvy than me look at this Statement of Evidence below and tell me where my mistakes are????

 

There were two so I hope I picked the right one

 

I have pasted most of what is below from another thread but I dont know I am heading in the right direction or not................Its very important that this is correct so I would appreciate any thoughts or help.

 

William

 

 

 

Claim Number:*******

In the ******* County Court

 

Between:

 

 

 

 

Your name

(Claimant)

 

 

 

and

 

 

 

 

Bank Plc

(Defendant)

 

 

 

 

_________________________ _____

 

 

STATEMENT OF EVIDENCE

_________________________ _____

 

 

1. The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such penalty charges with a view to profit.

 

3. A complete list of the relevant bank statements with all unlawful charges highlighted, is submitted, together with a Schedule Of Claim For Charges listing the amount, date incurred and Alliance & Leicester Charge description.

 

4. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

5. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include -

 

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach" and;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"

 

6. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

7. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

8. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. On one occasion on the 4th of January 2005, a direct debit payment of £5.99 to Allianz Cornhill caused an unautheried overdraw of £4.15. I was then penalised for this breach by way of a charges of £25 & £30 on the 24 of January. The claimant holds these charges and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

 

9. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. The Claimant contends that the charges made by the defendant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to; its actual loss suffered as a result of the Claimants breaches of contract.

 

10. The defendant has declined to answer the Claimant’s written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite a request to do so.

 

11. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

12. The claimant submits several BBC reports including, "The true cost of bouncing a cheque" report. It stated that the cost of employing a bank clerk to bounce a cheque, may be less than £2 each time a customer goes overdrawn.

 

13. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

14. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

15. The News release from The Competition Commission on the 12th October 2006 states that "Its difficult for customers to make comparisons between competing providers due to the failure of the banks to explain sufficiently or fully their unduly complex charging structures and practices"

 

16. It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £30 or more, by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical.

 

17. Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

18. The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

19. The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair and unlawful within their interpretation of the UTCCR’s.

 

20. Published on the 17th of January 2006 the House of Commons - Treasury - Second Report. States as per Point 51, that Credit card issuers continue to maintain that their penalty charges represent a fair recovery of the costs involved, but it is immpossible to know-because companies have been unwilling to place in the public domain the information needed to create confidence that these charges are reasonable.

 

21. I am stuck what to put down regards the Unfair Contract Terms Act 1977 and how I can relate to my case...................can anyone help please?? I want to include this as I can include it in any appeal, should I lose in court. I have a clue about it really.

 

22. Its the same with the Supply Of Goods & Services Act 1982................ I am stuck here to.

 

23. The claimant submits a list of cases settled by the Alliance & Leicester as defendant. I AM NOT SURE ABOUT THIS can any body help??

 

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

25. Further, under the UTCCR:

 

“5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.”

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

26. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

 

I, the Claimant, believe all facts stated to be true.

 

Signed, dated.

 

 

Documents attached in support of this statement

• Office of Fair Trading report, April 2006.
  
• House of commons early day motion, May 2006.
  
• Select Committee on Treasury Second Report.
  
• BBC Bank commission conclusion.
  
• Several BBC reports including, The true cost Of bouncing A Cheque.
  
• Australian Default charges report, Nicole Rich.
  
• News release from The Competition Commission regarding Northern Ireland Personal Banking Customers.
  
• Data Protection Act Subject Access Request for evidence of manual intervention.
  
• Bank Statements
  
• Schedule Of Payment of Charges.
  
• Kendall freeman report.
  
• Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.
  
• Alliance & leicester Terms and Conditions.
  
• Unfair Contract Terms Act 1977.
  
• UK Unfair Terms in Consumer Contracts Regulations 1999.
  
• Supply Of Goods And Services Act 1982
  
• Article from Consilio which deals with Murray v Leisureplay plc [2005]
  
• Letters to court.
  
• All pre-litigation correspondence between the parties

[bsia666]

I started punching holes for the ring binders (thats a drag LOL LOL) at lunchtime today, then The statement and I am now tired...................It makes you appreciate how much work other CAG members put into helping out.

 

I tip my hat to you all !!!!!.

 

Very Tired William

[MimiJane]

Hi William,

 

Perhaps I'm getting confused now, but I thought it was a Witness Statement you had to produce, not a Statement of Evidence?

 

Mimi

[bsia666]

Hi MJ...................could you have a look at what the notice says as I am confused and I must have got it wrong (HELP).............

 

"Witness statements , including from the parties themselves , must be included in the documents served and filed"

 

and next paragraph is ............

 

"Signed statements setting out the evidence of all witnesses on whom each party intends to rely must be prepared and copies included in the documents mentioned in the paragraph above. This includes the evidence of the parties themselves and of any other witness, whether or not he is going to court to give evidence"

 

 

I have to dash off to work but I shall look in later, thanks for your help MJ

 

William

[MimiJane]

Hi William,

 

It looks as if both are required to me:rolleyes: I have seen similar on a couple of people's "Directions". Bit of a pain for you all this.

 

Drop me your email address (I'm sure I already got it, but god knows where!) and I'll send you the SofE I used, which I've made into template form and it should be nice and easy to follow. It is different to the one you've done, so unless there are updates in the templates library, you should be OK with mine.

 

In my SofE I don't have to produce "settled cases" but, do so by all means if you want to. These are within the following link. Just schroll down to the "show results for" in the middle of the page and pick out A&L and you'll get a list up :-

 

http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=138&Itemid=82

 

You'll need the "settled cases" again William if you apply for Wasted Costs at the end, so a good idea to pop them into your "Favourites".

 

I didn't have to produce a Witness Statement myself but, if you run into problems, I'm sure others will be able to help, although obviously it has to be specific to your case.

 

Mimi

[bsia666]

Hi Mj I have sent at PM with my email.

 

Thanks - William

[bsia666]

Mimi has sorted out my Statement of Evidence, I have printed it off, many thanks!!

 

Now all I have to do is work out a Witness Statement...........I have only seen two in Judge Patricia Pearls book so Ill have a go tonight after tea. Has any one on the forum written or seen one relevant A&l or bank charges ?? Are there any links I could use??

 

William

[bsia666]

Here goes......................

 

I shall start with a

 

Witness Statement

 

1. My name is William *******

 

2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

3. I have an account with the defendant (account number **********).

 

4. From the 23/10/00 to the 09/05/05, the defendant levied unlawful charges from my account (number *********).

 

5. I made a request to the defendant to repay me the charges.

 

6. I sent a letter before action to the defendant, which stated, that I require repayment in full of the monies levied on my account or a claim would begin to reclaim the charges.

 

7. The defendant did not repay me so I began a claim against the defendant in the Northampton County Court, reclaiming bank charges.

 

8. The claim involves a consumer dispute

 

9. I received a notice of transfer of proceedings to Brentford County Court.

 

10. 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. There are no complex issues of interpretation.

 

I believe that the facts stated in this witness statement are true

 

Signed William ********

 

Date **/**/**

 

 

Any ideas folks if I am getting it wrong or right??

William