Could this be the biggest claim on the site?

[HSBCrusher]

Will be interesting to see what the Mod's have got to say on it all once they've managed to vacate their christmas guests, finished off their mince pies, and sobered up enough to digest this all. P

You have had GaryH, Cillitbanger, BF, some chancer called crusher, even the mighty worm! Besides that bong and Bill-k!

What else do you want?

[photoman]

Crusher. Please don't think me ungrateful (still swaggering around proudly with my new blob) !!

The Hierarchy that I have attracted has been much appreciated.

Just waiting for some comments that I hope will be forthcoming on my in depth posts (number 28 I think was a biggie), so as to get some more specific directions on where to go on all this? Glad to see all the debate, and interest, but could realy do with some comments on my own suggested course of action, once this (and the turkey) has all been digested.

[Guest bong]

OK - who's this then ?

 

"Right - clocks ticking again. Time to turn the screw. "

 

 

go on then tell me I've been racking my brains, I know I've seen it somewhere...

 

sorry photoman:D

[Guest bong]

Hi, y'all. Just to say I'm here, and finding this thread has become a real hotbed of debate. Nice to see. Will be interesting to see what the Mod's have got to say on it all once they've managed to vacate their christmas guests, finished off their mince pies, and sobered up enough to digest this all. P

 

seems you have a plan photoman, what sort of advice are you looking for in particular?

[photoman]

Bong, Any comments or advice on my course of action as laid out in my post #28 particularly. I am now within the zone whereby I can issue my LBA, on initial claim, and don't want any current course to adversely affect anything else ( or anyone else )

Also, any general comments regards the size of claim, time period of claim etc

thanks

[bill-k]

OK - who's this then ?

 

"Right - clocks ticking again. Time to turn the screw. "

Alan (keeps a tidy house) D.

I managed to get us chucked off his thread for messing about in the upstairs seats of the Clapham Omnibus !!

 

Much respect - the guy's got his deeds, now !!

 

Sorry, P-M, back to topic !!

[bill-k]

Bl**dy 'ell, my impressions are as bad as my jokes !!

 

[bill-k]

BTW Photoman - I see you're accumulating blobs !! Well deserved, too, considering your groundwork and your sheer claim size !!

 

Stand by for a Knight-hood, and maybe a Lordship !!

 

Guess what - that puts you in the same league as Jeffrey Archer.

 

It's not WHAT you know....

 

....it's what you can get away with !!!

[BankFodder]

Sorry it had taken so long getting back to you.

One of the big questions here is whether the bank will be prepared to go to court for this kind of money. If they won't then you have nothing to worry about and you can claim for everything you want. If they will go to court then you have to be prepared to battle on to argue all your points very thoroughly.

Certainly as far as I am concerned you have the right of it. In view of the harm being done by the bank and the way in which they are doing it, I consider that the element of reciprocity is a very fair point to argue.

Also it seems clear to me that with all their expertise and with all their experience and also -- I believe with their duty of care to you -- they will either have known or had a duty to know for a very long time certainly well before six years what the law was and to be aware that their charges were well in excess of the law permitted.

Of course Lloyds are different to the other banks in that they do not try to say that their charges people there are visited costs. They agree that their charges make profits. The difference is that Lloyds say that they are entitled to make profits because they say that bouncing direct debits or exceeding overdraft limits simply a causes the bank to provide a service to you which you have already agreed to in your contract.

Of course no one believes this -- probably not even Lloyds. It was just merely that once upon a time they were advised by some legal adviser that this would be a good thing to say and which would permit them to get away with their high level of charges. In law it is called "cloaking the penalty". It is a trick which has been recognized by the courts for well over 100 years and discussed very often. Despite the fact that Lloyds tries to use this trick that do not have sufficient confidence to defend it in court.

Even the OFT has referred to this trick in their April report and warned the credit card companies and banks not to use it. Despite this, I understand that all of the banks are starting to do exactly this.

(Feels to me as if the OFT has done a deal somewhere).

If you sue for £55k you will definitely be multitracked and either it will go to the mercantile court or it will stay in the ordinary County court but it will make no difference. You will have full exposure to costs in the event of losing the case.

Of course Lloyds will be required to make standard disclsoure but in a way it may not toruble them to reveal their actual costs because for them costs are not an issue. Their position wiull merely be that they are charging for a service and your position will be either that they are cloaking a penalty or in the alternative that they are making an exessive profit and that this is not permitted.

Of course we would all be very interested to see Llloyd's dislcosures and Lloyds would not be pleased to reveal their information. You should also bear in mind that any disclsoures made before trial and not used at the trial would probably be confidential to you and to your advisors so it would be most unlikley that we could post the info up on these pages..

(On the other hand, we are part of your advisory team, aren't we?)

To bring your claim you must have arguments to support your position. You can't just go in without evidence.

You first job would definitely be to resolve the question of penalty or a service. You must be fully prepared to produce arguments to show that despite their wording, the charges are penalties.

If they aren't then you have to be prepared to argue that they are making excessive profits ad they aren't permitted to.

By trying to go beyond 6 yrs and to claim for contractual interest as well you are certainly taking the most difficult route.

I would certainly advise you to break it doiwn into small manageable lumps and deal with the claims as separately as you can.

There is a natural division between personal and business which I don't think anybody would question.

After that I really think that you need to understand how badly you want the money against how badly you just want a fight and also what the level of risks that you wish to take. Do you own your own property? Do you have assets? If you do then you have to realise that you put them all at risk by suing for a large sum on untested principles.

I would certainly suggest that you cut your teeth on a smallish realistic sum with well established principles and keeping yourself limited well within the fast track.

If you decide that you want to claim the contractual rate of interest then you need to understand very clearly the basis on which you are claiming, the basis of reciprocal terms and the reason is that you would put forward for saying that such reciprocal terms to exist in your contract.

If you want to go back beyond six years then you need to understand very well what you're going to say to court to persuade the court that section 32 of the Limitation Act should be invoked and that the six-year time limit should fall away. If you do not have arguments to support these propositions then you shouldn't start embarking on a dangerous venture.

[photoman]

Bankfodder,

Thank you VERY much for your response, very useful. I have a few comments or questions that I have added in red for your consideration.

(I understand how busy you are, so no offence taken if somebody else takes this up).

Likewise anyone else viewing this thread, may wish to comment, which I do not mind, if it is kept relevent to this post.

Sorry it had taken so long getting back to you.

One of the big questions here is whether the bank will be prepared to go to court for this kind of money. If they won't then you have nothing to worry about and you can claim for everything you want. If they will go to court then you have to be prepared to battle on to argue all your points very thoroughly.

Certainly as far as I am concerned you have the right of it. In view of the harm being done by the bank and the way in which they are doing it, I consider that the element of reciprocity is a very fair point to argue.

Also it seems clear to me that with all their expertise and with all their experience and also -- I believe with their duty of care to you -- they will either have known or had a duty to know for a very long time certainly well before six years what the law was and to be aware that their charges were well in excess of the law permitted.

Of course Lloyds are different to the other banks in that they do not try to say that their charges people there are visited costs. They agree that their charges make profits. The difference is that Lloyds say that they are entitled to make profits because they say that bouncing direct debits or exceeding overdraft limits simply a causes the bank to provide a service to you which you have already agreed to in your contract.

I have seen it argued on this site, that the definition of service is something that you have specifically requested, and is to your benefit?

Of course no one believes this -- probably not even Lloyds. It was just merely that once upon a time they were advised by some legal adviser that this would be a good thing to say and which would permit them to get away with their high level of charges. In law it is called "cloaking the penalty". It is a trick which has been recognized by the courts for well over 100 years and discussed very often. Despite the fact that Lloyds tries to use this trick that do not have sufficient confidence to defend it in court.

What, if any, effect does this position thay have taken, have upon being able to cite sec32 of Limitations act...... Are they, or are they not concealing?

Even the OFT has referred to this trick in their April report and warned the credit card companies and banks not to use it. Despite this, I understand that all of the banks are starting to do exactly this.

(Feels to me as if the OFT has done a deal somewhere).

If you sue for £55k you will definitely be multitracked and either it will go to the mercantile court or it will stay in the ordinary County court but it will make no difference. You will have full exposure to costs in the event of losing the case.

Of course Lloyds will be required to make standard disclsoure but in a way it may not toruble them to reveal their actual costs because for them costs are not an issue. Their position wiull merely be that they are charging for a service and your position will be either that they are cloaking a penalty or in the alternative that they are making an exessive profit and that this is not permitted.

Of course we would all be very interested to see Llloyd's dislcosures and Lloyds would not be pleased to reveal their information. You should also bear in mind that any disclsoures made before trial and not used at the trial would probably be confidential to you and to your advisors so it would be most unlikley that we could post the info up on these pages..

(On the other hand, we are part of your advisory team, aren't we?)

If I could post their disclosures of costs on here without any prejudice to the case, I certainly would. I would need to get rock solid assurance from a legal advisor that I could first. ie. What constitutes "advisors"? Could I include a Public Forum as advisors, or could it be that as the site is a subscription/members only site mean by definition that it was not "public"?

Also, if it could be ascertained that I was able to post here in advance, their willingness to continue, rather than settle may be reduced?

To bring your claim you must have arguments to support your position. You can't just go in without evidence. I have gathered lots of it.

You first job would definitely be to resolv the question of penalty or a service. You must be fully prepared to produce arguments to show that despite their wording, the charges are penalties.

If they aren't then you have to be prepared to argue that they are making excessive profits ad they aren't permitted to.

By trying to go beyond 6 yrs and to claim for contractual interest as well you are certainly taking the most difficult route.

I would certainly advise you to break it doiwn into small manageable lumps and deal with the claims as separately as you can.

There is a natural division between personal and business which I don't think anybody would question.

I would certainly prefer to do this, and yes the natural divisions do help. However, my initial claim on my Business account (at Prelim stage only, so not too late to change tact), has been put in for last 6 years only, although that particular account was opened several years further back. By sticking to this tact as my initial claim, rather than decideing to go back to accounts inception, am I conceding some sort of acknowledgement to the validity of the Statute of Limitations act? If I later claim the earlier personal accounts, and the remainder of the Business account by citing section32, could this earlier claim within confines of S.o.L. be seen as contradictory to the further actions that claim the barr should be lifted? However, if I do now decide to change tact, and claim the whole period on the Business account, even this alone could possibly cause for allocation to Mercantile?

After that I really think that you need to understand how badly you want the money against how badly you just want a fight and also what the level of risks that you wish to take. Do you own your own property? Do you have assets? If you do then you have to realise that you put them all at risk by suing for a large sum on untested principles.

I do not have my own property, and have minimal assets. Plus, due to my current Income Support status, I believe my income would be safe from deductions. I also think I have a good chance of Legal Aid. Another member on this site has already suggested a solicitor who may be prepared to take this on Pro Bono. and I shall be talking to them early next week, before my next move.

I would certainly suggest that you cut your teeth on a smallish realistic sum with well established principles and keeping yourself limited well within the fast track.

If you decide that you want to claim the contractual rate of interest then you need to understand very clearly the basis on which you are claiming, the basis of reciprocal terms and the reason is that you would put forward for saying that such reciprocal terms to exist in your contract.

I need them to provide copies of my contracts, which I am sending an SAR for next week on all accounts. Incidentally, If I do send an SAR for all contracts and info on all accounts, would one letter suffice for info on all, or should I send a seperate SAR for each account, in order to maintain that I consider clear divisions between each account, for purposes of enabling claims to be split? Or could the SAR not be used by them in such a manner, ie. to contest my splitting claims? Or could I simply mark the SAR "Without Prejudice".........or am I just being overly cautious???

If you want to go back beyond six years then you need to understand very well what you're going to say to court to persuade the court that section 32 of the Limitation Act should be invoked and that the six-year time limit should fall away. If you do not have arguments to support these propositions then you shouldn't start embarking on a dangerous venture.

 

Once again, thank you for your response.

HAPPY NEW YEAR !!

[elsinore]

As you can imagine photoman, I'm reading your thread avidly.

 

It's tempting to pile in with comments on so many points, but knee-jerk responses are likely to be unhelpful.

 

So, I for one will be contributing to the discussion after due consideration (if you hear a creaking noise, it'll be me, thinking).

 

Elsinore

[lucid]

Hi photoman,

 

This has been an interesting read so far. I've got a couple of points based entirely on my own opinions so I may get completely contradicted by somebody else who knows much more than I do.

 

I have seen it argued on this site, that the definition of service is something that you have specifically requested, and is to your benefit?

 

That would be my arguement. What service are they providing other than telling you that you have gone overdrawn and they have had to charge you when it's too late for you to do anything about it? In my opinion, they would explain their service (or part of it) as the letter they send to let you know that you have gone overdrawn:

 

We wanted to let you know that we’ve made all of the payments that you arranged to come out of your account this morning. Unfortunately, because there was not enough money in your account to cover them, this means your account is now over your overdraft limit.

 

We will have charged you for being overdrawn unless you had brought your account back into credit on the day we wrote this letter.

This letter always arrives the day after you have gone overdrawn (or it usually does), and as far as I can see this is the service they think they are providing. They write to you and let you know you went overdrawn or had an item returned. The thing that always gets me is we will have charged you for being overdrawn unless you had brought your account back into credit on the day we wrote this letter. So if this is their service that they have to charge you for, then they are willing to waive it if your account was brought back into credit. I could be wrong, but this seems to dismiss their service charge theory, because surely they would charge it no matter what? Of course this theory relies heavily on the service being the whole process of letting you know you have gone overdrawn etc.

 

EDIT: Having just looked through the settlement offer letters we've received they do seem to be suggesting that the service charge is for, "amongst other things", the process of letting you know you have gone overdrawn or had an item returned.

 

By sticking to this tact as my initial claim, rather than decideing to go back to accounts inception, am I conceding some sort of acknowledgement to the validity of the Statute of Limitations act? If I later claim the earlier personal accounts, and the remainder of the Business account by citing section32, could this earlier claim within confines of S.o.L. be seen as contradictory to the further actions that claim the barr should be lifted? However, if I do now decide to change tact, and claim the whole period on the Business account, even this alone could possibly cause for allocation to Mercantile?

 

In my opinion you won't be in the wrong to go back and claim for the earlier charges on all of these accounts. The reason being that it will be a new and seperate claim and I don't think they can draw on what has happened in your previous claim. This, of course, is my own opinion on this and as we have only had to deal with charges going back 3 years I certainly wouldn't take my word for it. I guess really it's down to your own choice. If you're only at the prelim stage then there's no reason you can't resubmit a prelim and go for the whole lot, or you may prefer to go ahead with 6 years at first and then go back for the rest later.

 

I need them to provide copies of my contracts, which I am sending an S.A.R - (Subject Access Request) for next week on all accounts. Incidentally, If I do send an S.A.R - (Subject Access Request) for all contracts and info on all accounts, would one letter suffice for info on all, or should I send a seperate S.A.R - (Subject Access Request) for each account, in order to maintain that I consider clear divisions between each account, for purposes of enabling claims to be split? Or could the S.A.R - (Subject Access Request) not be used by them in such a manner, ie. to contest my splitting claims? Or could I simply mark the S.A.R - (Subject Access Request) "Without Prejudice".........or am I just being overly cautious???

 

I think you're being very overly cautious. I have read elsewhere that one S.A.R - (Subject Access Request) will be sufficient, although I wouldn't get your hopes up about actually receiving any contracts from them. They seem to ignore this request, but still include it as you can prove in court (should you need to) that you did request it from the beginning.

 

Good luck with whatever your choice is. I'm sure it will be a little while before you reach a definteive decision on the way to proceed.

 

Lucid

[GaryH]

Re. the service charge arguement, this may be of interest if you have'nt already seen it - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires-3.html#post450746

 

I'm sure there is more evidance that could be compiled to counter it, too.

[photoman]

Lucid,

Thank you for your comments. I think it was actually on one of your own postings, that I originally saw the argument regards "service" that I have referred to !!

 

GaryH,

Thank you for the link. Had already seen this... and earmarked it... and copied and pasted sections into my folder on computer for when I reach the allocation stage....(very powerful tool for pushing for disclosure well before the 14 days before trial normally required. Would also likely be looked upon by Courts favourably who must be getting sick of the Banks abusing the legal system and clogging up their courts diaries, with no intention of turning up) !!......

Thanks anyway, nice to know everyone looking out for each other !!

[Guest bong]

photoman I think that is a very interesting point you raise about splitting the claim between the last six years and over six years. It does seem to me as if you would be acknowledging the six year limitation by doing that but then again would it be that hard to explain your reasons for doing so? you realised that the statute existed and that the success of your case depends on proving that s.32 should be invoked.

 

If you succeed on the first 6 years with no admission of liability you are not really in any better position to proceed for the older charges, BUT, that might be the better route to go for a better chance of getting contractual interest. If they pay contractual interest on the 6 year claim that would, in my opinion, set up some kind of an informal precedent for getting it paid on the older portion once you succeed with the s.32 challenge.

 

Just my thoughts

[photoman]

Bong, tending to agree here. My reasoning at present goes like this:

 

Should the issue of not having invoked sec32 on my initial claim be raised by a defence on later claims, as being indicative of my acknowledgement of SOL bar, then I would respond along the lines that "I first wished to establish that the charges were unlawful per se, by making an initial claim without the additional complications, delays, and issues of simultaneously having to invoke sec32, and once established I would then go on further to proceed with my assertions regards sec32 in susequent claims"

[bill-k]

Now that the "Burning Bush" has spoken, I feel obliged to make utterance. I clicked BF's scales, BTW - it's about time he lost that black blob and got a decent green one, poor bloke :grin: !!

Further to Lucid's comments, I recall seeing the argument that, in order for something to be a service, then it must provide a benefit to the recipient. Where, indeed, is the benefit in providing a letter containing stale information about an account ? Yesterday's news is worthless. And I also agree your sig, P-M, if you look at the Sun, you'll go blind !!

 

It sems to me that concealment is there, whichever way Lloyd's argue. As a service, then where is the benefit that justifies the profit from providing it ? If not a service, then we know the rest...

 

I think it possible that, as BF suggests, disclosure to your advisors here may well be OK., but as there is public access to all postings here, I don't think posting details would be OK. My guess is that, as advisors to Photoman, we may be entitled to receive the info by PM only. JMHO.

 

I think I agree with Bong about acknowledging the Limitation Act. I believe that splitting the claim in this way does no more than merely acknowledge that the LA exists, and is to be respectfully dealt with as a separate obstacle. It isn't IMO acknowledging that it is an immoveable object. But it is about to be met by an irresistible force !!!

 

Costs & personal assets - as a "man of straw" you have nothing to lose, then P-M. That makes you a very dangerous animal, does it not ? !!

 

I agree with Lucid that one single SAR is all that you should need to make with each Data Controller. That should cover everything. I personally would make sure that I had received absolutely everything from them, though, before I let them smell the S.32 claim !! Try and specifically get a copy of the original contract, or a confirmation of its' non-existence. Unfortunately, I don't think you can apply for it for a current account under the CCA, can you ? Not sure about that.

 

That's my piece - thanks for reading this far (if indeed you have) !!

[Guest bong]

also seeing as the bulk of your older claim is the contractual interest element, you will more or less have sown up that issue with your first claim and will be able to concentrate purely on the LA issues.

[bill-k]

Although it wouldn't be a precedent, can the initial claim be referred to in court in support of the second one ?

[lucid]

Although it wouldn't be a precedent, can the initial claim be referred to in court in support of the second one ?

 

That's excatly the reason I suggested it wouldn't be a problem to split the claim - in my opinion. I didn't think that the Defendant would be able to use the first case as evidence against the Claimant - provided (if the initial case was settled out of Court) you didn't agree to their usual conditions of never trying to reclaim charges again.

 

Lucid

 

EDIT: I've just re-read your post bill-k and think I've completely misinterpreted what you meant. I think you meant referred to by the Claimant - not the Defendant. Oh well. I'm not sure if I'm right on the Defendant referring to the initial claim issue, but if that is correct then I don't see a problem in splitting the claim.

______________

2ND EDIT: Actually I think I'm getting really confused here.

 

As far as I'm aware if both cases went to court then either party is entitled to refer to the first case as evidence. But if the bank settled out of court then they wouldn't refer to it as evidence for the 2nd case because it would be useless - I think that was what I was thinking of in the first place.

[bill-k]

EDIT: I've just re-read your post bill-k and think I've completely misinterpreted what you meant. I think you meant referred to by the Claimant - not the Defendant. Oh well. I'm not sure if I'm right on the Defendant referring to the initial claim issue, but if that is correct then I don't see a problem in splitting the claim.

Sorry Lucid - my post was vague. I meant the claimant referring to the earlier settlement of the first 6 years claim in support of the second claim. But you post reminds us that this is a two-edged sword, also !!

[Guest bong]

Although it wouldn't be a precedent, can the initial claim be referred to in court in support of the second one ?

 

I can't see what would stop you. can you? even if there's no admission of liability they're going to look pretty stupid saying they paid interest that they didn't agree there was any reason they should pay.

[lucid]

Sorry Lucid - my post was vague. I meant the claimant referring to the earlier settlement of the first 6 years claim in support of the second claim. But you post reminds us that this is a two-edged sword, also !!

 

Don't worry bill-k, I wasn't concentrating properly! I've had to add a 2nd edit which is evidence enough that I'm having immense trouble getting to grips with this area of the discussion.

 

But I think that the Claimant could refer to the fact that they did choose to settle in support of a 2nd claim, because the Court will obviously have evidence that such a claim did exist - it's not like the bank could deny it settled the initial claim, and obviously we have to inform the Court when a settlement is agreed.

 

Lucid

[bill-k]

Yeah - got it Bong & Lucid. Although not to be seen necessarily as a previous "win," a settlement is a matter of relevant historical fact, and can be referred to for what it is. Thanks, guys !!

 

...and sorry to get you at it, Lucid !!! :grin:

[photoman]

Popped out for half an hour (bill.........remember the outside world?.....it's that place with trees and things........and no computer's.........aaaaarghh, incidentally, do you ever sleep? I see posts on here at 1am, 5am, then again at 9am the next morning.........your either taking intravenous coffee , or maybe there is a whole team of chimps with PC's working in a sweatshop, banging away at keyboards)??

Anyhow, I digress. Notice my thread is grooooooooooowing quickly,and attracting much attention. Thank you all for your comments, particularly liked Bill's comment about "being a dangerous animal"....(yes, I've nothing to lose, so I'm gonna go right for the "nuts") !!

With regards your comment about referring to past cases? Don't see that as an issue whether settled in or out of court. Our sites current court bundle already cites settled cases, and you could cite them with particular reference to your own.

Regards the LA, I think my post #66 deals with that in line with what you all seem to be saying?

Regards disclosure to advisors, yes something that needs to clarified if it got that far, in either case, after settled whether in or out of court I'm sure the information could be publically posted then ?

Regards the SAR, yes I intend to get EVERYTHING held on file about me, and to specify that if not available , then they must make clear that is the case, and why. Having read the interesting RBS case with no contract, it seems to do me no harm whether I actually get it all or not.........but will be seen as an act of non compliance or concealment by any judge if it can be seen that I have justly asked for it all.

Anyhow, there you go. any comments?