Claim for your inconvenience too?

[notlam]

 

If you are going small claims you almost certainly wont get it (with the exception of court costs), if your going fast track your entitled to claim costs.

 

Glenn

 

Statutory Instruments 1998 No. 3132 (L. 17)

The Civil Procedure Rules 1998

Small Claims Track

Costs on the small claims track - Part 27.14(2)(d)

The court may award (d) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

Small Claims Procedure: A Practical Guide, Third Edition, Patricia Pearl

Page 115, Stage 1. "What amounts to unreasonable behaviour?"

• making unnecessary or disproportionate applications for procedural orders.
  
  
• pulling out of a case at the last minute when there has been no change in the circumstances.
  
• pressing (or defending?) a hopeless case with the ulterior motive of embarrassing or inconveniencing the opposite party.
  

Q. Aren't banks therefore clearly behaving unreasonably when they know of an overwhelming number of claims being reported here on this web site, on other web sites, on radio, TV and newspapers, etc. and an overwhelming amount of evidence; the OFT comments, the FOS briefing, the Peter McNamara Radio Interview, UTCCR 1999, UCTA 1977, SOGA 1982, etc. etc. etc. that the penalty charges are unlawful?

 

And on so many occasions dont they pull out of the court proceedings at the last minute?

[Glenn UK]

And your points is?

 

How does this relate to your desire to claim costs in SCC?

 

The banks don't pull out for no reason, they settle before court! It maybe an abuse of process to do it so often, but in truth they cannot be punished for settling claims.

 

As much as i think they're case is hopeless, they don't defend to embarrass or inconvenience you, the defend to try to avoid paying out.

 

I'm not sure they ask for unnecessary or disproportionate orders either. The number of times orders are requested in a single claim would only amount to one or two I suspect, the fact some banks have done this on numerous claims isn't the point.

 

I think you are falling into the trap of taking the view that the law and the courts are there to see that you are treated fairly.

 

As far as i can tell treating the common man fairly is not what the courts are about, or at least not in pratice, a law is passed, the courts apply and interpret that law.

 

The end result is that you have to use the law to your advantage and not expect it to do you any favours.

 

I would love to be able to charge the banks a huge amount in compensation for all the grief Ive had over these charges and the impact its had on my life, but i cant, because the law doesn't allow it and so far i don't think a convincing case has been put forward on this site to show it does.

 

i look forward to the day when a good case is made and we can reliably put a good case forward that stands a chance of us winning.

 

JMHO

 

Glenn

[PhantomReclaimer]

Statutory Instruments 1998 No. 3132 (L. 17)

The Civil Procedure Rules 1998

Small Claims Track

Costs on the small claims track - Part 27.14(2)(d)

The court may award (d) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

 

 

Small Claims Procedure: A Practical Guide, Third Edition, Patricia Pearl

Page 115, Stage 1. "What amounts to unreasonable behaviour?"

 

• making unnecessary or disproportionate applications for procedural orders.
  
• pulling out of a case at the last minute when there has been no change in the circumstances.
  
• pressing (or defending?) a hopeless case with the ulterior motive of embarrassing or inconveniencing the opposite party.

Q. Aren't banks therefore clearly behaving unreasonably when they know of an overwhelming number of claims being reported here on this web site, on other web sites, on radio, TV and newspapers, etc. and an overwhelming amount of evidence; the OFT comments, the FOS briefing, the Peter McNamara Radio Interview, UTCCR 1999, UCTA 1977, SOGA 1982, etc. etc. etc. that the penalty charges are unlawful?

 

And on so many occasions dont they pull out of the court proceedings at the last minute?

 

The last part (defending a hopeless case) is quite pertinent. I've had two claims, to date, with IF and on both occasions they indicated initially that they would defend and both times didn't on the grounds that it was not cost effective to do so.

 

Why did they idicate the second time that they intended to defend when clearly they had no intention of doing so as the costs would have ben just as much as the first? Of course, we all know why they do this type of thing, they use it as a final intimidation tactic in the hope you will go away.

 

P.

[notlam]

 

....they don't defend to embarrass or inconvenience you.....

 

Glenn

 

Of course they do.

 

That is the only reason they now contest these claims.

 

They know, you know and I know, they can't win in court. So their only reason for saying they intend to defend all of the claim (and invariably not do so) is in order to try to embarrass and/or inconvenience you in the hope that you will give up, as I am sure many others do.

[Glenn UK]

Your interpretation is incorrect i believe, the purpose of their defence is to dissuade you from proceeding, end of.

 

Inconvenience is about forcing you to do something via the courts, not about the inconvenience of going to court.

 

Embarrassment is about the potential to bring your into the public domain and besmirch your name.

 

The only objective of the bank is to try to reduce the amount of money they pay out.

 

for every person that proceeds all the way and gets their money back there are probably three or four who don't.

 

For every person who gets everything they want from a claim there are probably three or four who settle for less than they might otherwise have done so.

 

As far as the banks are concerned you are not a customer or a individual, you are a monetary problem that needs to be resolved with as little cost as possible.

 

The cost of disputing the claims is far outweighed by the money they save from dissuading other customers not to claim or to settle for less than they might otherwise do.

 

Notlam, you are arguing with your heart mate, you need to get your head around the fact that its about the law, nothing else and whilst i may be wrong its because of an interpretation or lack of on my part of the law.

 

The law doesnt know its a consumer claiming only that there is a dispute between two parties.

 

The court is the absolute last resort and if the claim is settled before court then thats the best solution it can hope for.

 

JMHO

 

Glenn

[notlam]

 

Notlam, you are arguing with your heart mate, you need to get your head around the fact that its about the law, nothing else...

 

The law doesnt know its a consumer claiming only that there is a dispute between two parties.

 

Glenn

 

Glenn, I would agree with you there.

 

But then - what would constitute "defending a hopeless case", if this, as you seem to believe (or you are suggesting perhaps) the bank's action in defending a claim against unlawful penalty charges, doesn't?

[Glenn UK]

Notlam

 

My personal view is that their case is hopeless, but for this to have any bearing on my claim means i have to prove this to the court.

 

I think from the courts viewpoint the defendants case is viable, the reason why?

 

the success or failure of a claim is not simply a matter of what the law says, the written word, its more to do with how cases are presented in court, its an adversarial process where the best argument wins.

 

This means that we cannot presume that our claims will win unless they are well argued. It is for this reason that i believe the best hope claimants have is to settle for the full amount prior to court.

 

To do this you have to apply pressure in a legal sense to the defendant to show them you have some idea what your doing.

 

JMHO

 

Glenn

[notlam]

Going back to my original premise then...

 

I know (as we've already discussed and agreed) it is unwise to assume that they won't show up in court. Nevertheless, it seems abundantly clear, from the 1,000's of claimants reporting their progress on here, that 999 times out of a 1000, they haven't yet. In fact, I have not read of any single instance where they have shown up to contest a claim for repayment of unlawful penalty charges taken over the last six years.

 

So, why don't they show up?

 

a) because they know they have a very weak (virtually non-existent), argument, even with money to pay for the best legal team on earth.

b) because it is not commercially viable to spend money defending a case that they are unlikely to win.

c) because if they do show up and then lose it sets a legal precedent.

d) because the CAG web site is doing such a bloody brilliant job.

 

So, on that basis......why would they show up to contest a claim just because it also included another £280 for inconvenience?

[Glenn UK]

There is a problem here, and that is that in many cases what we do is accept partial settlements, this gives the defendant the option to turn up at court and fight the bits they don't want to pay.

 

As an example, J2B accepted a partial settlement but went to court to argue over the removal of a default.

 

Regardless of our thoughts about the way the hearing went, the bottom line is that the default wasn't removed and the bank didn't have to argue over the lawfulness of their charges.

 

The banks can and do/will use the same approach over the interest and costs, LIP is I believe almost in court over costs on her claim as we speak.

 

JMHO

 

Glenn

[notlam]

What would be the sense of them turning up just to contest costs of £280 when their costs, in management time and irrecoverable legal costs, to do so will probably be more than that. Especially when they have already said to many (me included) that it would not be commercially viable to contest claims for sums far higher than that?

[Glenn UK]

The sense is about the principle, not that the bank are worried about the moral issues, only that if they dont defend claims for interest and costs that they will end up having to pay everyones costs and interest.

 

So they will settle your claim before court in full with the exception of costs and interest (im talking about contractual interest/sec 69 interest here).

 

You have to look at the wider picture, this forum has lots of members, Abbey national has 18 million customers alone, the CAG is a mere drop in the ocean to the banks and cc companies, there is a reason why the banks are doing what they do even if it doesnt suit us.

 

JMHO

 

glenn

[gizmo111]

Going back to my original premise then...

 

I know (as we've already discussed and agreed) it is unwise to assume that they won't show up in court. Nevertheless, it seems abundantly clear, from the 1,000's of claimants reporting their progress on here, that 999 times out of a 1000, they haven't yet. In fact, I have not read of any single instance where they have shown up to contest a claim for repayment of unlawful penalty charges taken over the last six years.

 

Citi cards have appeared in court and they pulled the sneakiest tricks they could

http://www.consumeractiongroup.co.uk/forum/citicards/9085-citi-cards-request-repayment.html

 

So, why don't they show up?

 

a) because they know they have a very weak (virtually non-existent), argument, even with money to pay for the best legal team on earth.

b) because it is not commercially viable to spend money defending a case that they are unlikely to win.

c) because if they do show up and then lose it sets a legal precedent.

 

Not in a county court - only a higher court can set a precedent.

 

d) because the CAG web site is doing such a bloody brilliant job.

 

Can't argue with that:grin:

So, on that basis......why would they show up to contest a claim just because it also included another £280 for inconvenience?

To put others off and the amount of claims x£280 eventually comes to a lot of dosh. And it is the only amount of control they have left.

[notlam]

..... if they dont defend claims for interest and costs that they will end up having to pay everyones costs and interest.

Like they are doing now with everyone's unlawful penalty charges, do you mean?

Citi cards have appeared in court and they pulled the sneakiest tricks they could

Well if City Cards, keep sending their FD out on the road to defend all the claims, he wont be getting much work done, will he?

 

Still cant see a serious bank wanting to defend too many claims for £280 somehow.

 

That's why IMHO we should all claim for it because, if everyone does it they will have to cave in on that issue too - and yes, it would indeed amount to a serious load of dosh and mean that banks were actually being punished - instead of just giving us our money back.

 

 

[gizmo111]

..... if they dont defend claims for interest and costs that they will end up having to pay everyones costs and interest.

 

Not my comment

Like they are doing now with everyone's unlawful penalty charges, do you mean?

Citi cards have appeared in court and they pulled the sneakiest tricks they could

Well if City Cards, keep sending their FD out on the road to defend all the claims, he wont be getting much work done, will he?

He isn't :grin:

 

 

Still cant see a serious bank wanting to defend too many claims for £280 somehow.

 

That's why IMHO we should all claim for it because, if everyone does it they will have to cave in on that issue too - and yes, it would indeed amount to a serious load of dosh and mean that banks were actually being punished - instead of just giving us our money back.

 

 

[notlam]

In response to my complaint to the FOS about a month ago, I received a letter from the FOS this morning informing me that LTSB is willing to pay me £250.00 for "distress and inconvenience".

 

This is on top of the full refund plus interest at the contractual rate, which I have already received following obtaining judgement in default, which I did without going through the FOS.

 

[bandonbhoy]

Well done. It may not have ben the most you were looking for, but at the back of my mind, when banks etc sign up for banking code, there is conatined within that ascheme of comopensation. I seem to recall the max without going to higher court, but dealt with through ombudsman is £250.

[notlam]

Cheers. The amount itself is irrellevant - well almost!

 

It's more the principle that is satisfying to me. The bank deliberately faffed me off - as they seem to be doing with everyone else. As a result this has not only cost them a full refund, court costs and contractual interest but also an exra £250 plus what ever the FOS charged them.

 

If everyone did the same and sent a D&I claim to the FOS after settling their claim that would add up to quite a tidy sum more for the banks to fork out.

 

I'm satisfied with the offer.

[Glenn UK]

Notlam

 

Congratulations and well done for sticking it to the banks again.

 

For the benifit of us all have you posted the info you provided anywhere?

 

Glenn

[notlam]

Glenn,

 

I have cribbed this opening schpiel from the FOS web site:

Anyone can download the form off the FOS website at Financial Ombudsman Service to complete by hand. Or you can fill it in on screen – then print it off and post it back to them.

 

They say you must have complained to the bank first. For help filling in this form, phone them on 0845 080 1800. The information you give on the form must be true and accurate.

This is the info I provided, which obviously has to be adapted to your particular circumstances:

 

complaint form

Claim Number XXXXXXXX was issued in XXXXXXX County Court on XXXXXX 2006.

Judgement was obtained and issued on XXXXXXXX 2006 and the defendant (LloydsTSB) was order to repay the money unlawfully taken from my account, plus interest, plus court costs.

brief summary of your complaint

important!

If your complaint is about a mortgage endowment, you will need to complete our special questionnaire as well as this standard complaint form. You can download the special questionnaire from our frequently-asked-questions (FAQ) page on mortgage

endowment complaints from our website – or phone us on 0845 080 1800.

more details about your complaint

Please list in date order all the letters, phone calls or meetings that are relevant to your complaint.

This may take you a little time, but it will help to ensure the facts are set out as clearly as possible.

From XXXX 2000 to XXXXX 2006 I held an account with Lloyds TSB. Repeatedly throughout the period, on XX separate occasions, LTSB made unlawful charges to my account. After I complained to LTSB, about the unfair level of charges, LTSB removed my overdraft facility and increased the interest rate. Despite numerous time-consuming letters and phone calls to LTSB my request a refund was refused. This constant embarrassing and on-going situation over so many years was the cause of considerable distress and worry. When in April this year the OFT declared that such charges were indeed unlawful, I decided to take the matter up once again with LTSB. I again wrote letters repeatedly asking for a refund of the charges and each time the request was refused. I explained that I would be willing to consider a fair and reasonable offer to settle the dispute; I did not want to have to face the trauma of a court hearing. Yet still LTSB refused. So I had to amass a file of supporting documents (197 page report) in order to be ready to present my case to the court hearing. I could not afford a solicitor, so I had to prepare my own case and familiarise myself with court procedures. I bought a book and CD and spent approximately 14 hours researching my legal position because I wanted to be sure that I could stand up in court and explain myself logically and coherently. I also visited the County Court on one occasion to gain experience of the environment. During all this time I was under considerable distress worrying about the ultimate prospect of a court hearing.

12/02/06 - Letter to LTSB to complain about unfair charges amounting to £1,515.00 over a six year period.

17/02/06 - Reply from LTSB - removing my overdraft facility and increasing the rate of interest charged.

27/02/06 - Reply from LTSB - refund refused.

06/06/06 - Letter to LTSB to request refund, in light of OFT statement (April 2005, unfair bank charges).

08/06/06 - Reply from LTSB - refund refused. Final response.

10/06/06 - Letter to LTSB requesting list of all charges.

21/06/06 - Letter to LTSB - request refund.

28/06/06 - Reply from LTSB - agreeing to provide details of charges.

15/07/06 - Letter to LTSB - claiming £3,355.68 in charges and interest.

21/07/06 - Reply from LTSB - declining to add any further comment.

22/07/06 - Letter to LTSB - Letter before action requesting refund and interest totalling £2886.42.

27/07/06 - Reply from LTSB - enclosing copies of six years statements.

27/07/06 - Reply from LTSB - Refused to discuss any further.

22/08/06 - Claim issued in XXXXXXX County Court (ref. XXXXXXX.

25/08/06 - Letter from court giving Notice that Acknowledgement of Service Has Been Filed and informing me that

LTSB intended to defend all of the claim.

30/08/06 - Letter to HCC requesting amendment to claim.

01/09/06 - Letter from HCC enclosing form N244 to request changes.

05/09/06 - Application Notice sent to HCC to amend changes.

28/09/06 - Letter to HCC with Certificate of Service and amended Claim form.

18/10/06 - Request for Judgement sent to HCC.

19/10/06 - Judgment for Claimant awarded in my favour.

N.B. During the above period I was left with no choice but to change bank accounts and to cancel standing orders and direct debits and to set up new ones with a different bank. The court judgement award only covered repayment of money that was legally mine plus the interest that accrued during the six year period that it was taken from me. The award did not include any apology from LloydsTSB, nor did it include any compensation for the distress and inconvenience caused to me during the eight month period it took me to recover my money. I have no knowledge whether this case has affected my credit rating but would request that the bank give a written assurance that it does not.