We need a precedent...

[Movingon]

All this settling out of court is fine; the trouble is, the banks couch the "settlement" in terms of "not accepting that we will lose a court battle" - "in no way accept that our charges are unlawful or unfair"... and requiring that people sign off on that as a full and final settlement.

 

Does "Full and final settlement" mean that we can't follow the process a second time for any charges levied in future? Does it mean that we HAVE to follow this process every time we're charged £35 in fees? Do we have to add a caveat to our acceptance letter saying that we reserve the right to claim back future charges?

 

My argument is, we need someone who is willing to set a precedent in Law. Unfortunately, the Small Claims court is not going to be enough; legal representation will be required to argue the Points of Law effectively, and a situation will need to exist where a settlement out of court is unacceptable to the Claimant, but the refusal of that settlement is acceptable to the Judge.

 

What are we to do? Can Maxie please look at the legalese part of my post and tell me the right of it?

[Loula]

Hi!

 

I will ensure Maxie sees this post for you

 

LOULA

[Movingon]

Thanks!

[thecornflake]

I believe (although anyone with more legal knowledge is free to correct me) that what you are talking about is an injunction.

 

Someone, Stephen Hone I think, sought one against all of the major banks and this failed. However, one fo the main reasons was that he had not been directly affected by all of these banks charges. Also this would have had such a massive affect on the bank's profits I find it hard to believe that this didn't affect the judge's decision.

 

There are a few big claims against Natwest pending at the moment, and they are intending to defend in full. Whether they do will remain to be seen, but if they do actually go to court and lose it could set a good precedent that may lead to a wider injunction.

 

As I say, I have no official legal knowledge so this is just my own opinion from what I have read so far.

 

The OFT ruling does have to be factored into this as well although I believe it will end up being quite a long process no matter what happens with it.

[Maxie]

All this settling out of court is fine; the trouble is, the banks couch the "settlement" in terms of "not accepting that we will lose a court battle" - "in no way accept that our charges are unlawful or unfair"... and requiring that people sign off on that as a full and final settlement.

 

Does "Full and final settlement" mean that we can't follow the process a second time for any charges levied in future? Does it mean that we HAVE to follow this process every time we're charged £35 in fees? Do we have to add a caveat to our acceptance letter saying that we reserve the right to claim back future charges?

 

My argument is, we need someone who is willing to set a precedent in Law. Unfortunately, the Small Claims court is not going to be enough; legal representation will be required to argue the Points of Law effectively, and a situation will need to exist where a settlement out of court is unacceptable to the Claimant, but the refusal of that settlement is acceptable to the Judge.

 

What are we to do? Can Maxie please look at the legalese part of my post and tell me the right of it?

 

I have heard of banks asking people to sign documents saying that they will not pursue an future claim, but this is useless! You can not get someone to waive there legal rights,espcially if the waiver is less favourable.

 

Full and final settlement means that the offer being made is the full amount to be paid in final settlement of all part of the claim and that once it is accepted the claim will be over.

 

The full and final settlement should be qualified. Always send a letter of acceptance back stating that 'I accept the banks offer to pay £XXXX.XX in full and final settlement of all any claims arising within the claim that is claima number XXXXXXX in the XXXXXXX county court against XXXXXXXX bank.'

 

That completely preserves your right to pursue any future claims.

 

Unfortunatly yes, you potentially have to follow the process each time.

 

As for adding conditions to the acceptance letter I'm doing an article for the news letter of how to avoid being 'done over again' by the bank when accepting settlement, so you can read that later!

 

As for your small claim argument I agree with you, but it won't happen for a while. Firstly, the small claim court or indeed the civil proceedures as a whole are design to be the last resort. If you make a claim of against X banks and before trail X banks offer to settle all of your claimand you refuse electing to go to trial and get judgment, upon you winning X bank will produce a copy of there offer and the judge will strike out the judgment as you 'acted unreasonable in litigation' and may well award costs AGAINST you.

 

What is really needed a a declaration from the high court. Now, recently, I had a case on behalf of someone for £1500. I could have issued proceedings in the high court with a claim for a delcaration. Immediatly the bank would have settled the money claim and then they would have instructed a barrister to pursue the declaration. The barrister would have immediately applied to the court for an indication of costs which means, if we loose and have to pay there costs we 'back this up' by paying money into court. They would have asked of got an application for anything up to £60-70,000. So we can't pay £70,000 so the bank applies to the court to have the claim struck out and win. The case would drag on for over a year at least costing tens of thousand and there would be NO certainty we would win.

 

The bottom line is banks settle because they won't take the risk they will lose!

[dave]

Lose. Not loose.

[Maxie]

Lose. Not loose.

 

My appologies. I try hard but but have dyslexia and now and again it rushes to the surface to ruin my grammer! It because I've jsut got up, it gets better by lunch time but tends to drift off at night again when I get tired.

[dave]

I'm just a pedant.

[BankFodder]

Firstly, County Court judgments don't set precedents. The decision might become notorious because of its unusual nature but it won't be binding in the way which is necessary to stop the banks.

However it woul dbe useful.

 

I don't believe that there will be any banks prepared to take the risk and to go to court just for the money.

I am quite convinced that we will be helping people claim their money back for years to come. There are load of people and there is loads of money.

 

What it will take wilo be something really to stretch the limits.

 

I am quite sure in my mind that there are two issues that might do this.

 

the first is if people start claiming back more than 6 years on the basis that the banks have concealed the cause of action and therefore the Limitation period rule under s.32 (b) Limitation Act 1980 is invoked.

 

This raises such a spectre of disaster for the banks as they would have to make unlimited repayments that they might well decide to take the risk and to go into court.

 

The second involves the default register. If the banks were to be challenged on the accuracy of their default under the DPA and if this in turn lead to an award of damages - or better still an action for defamation against the bank or the CRA, this also could lead to a decision by the banks to take a stand.

 

A stand, for us would only be useful if the claim went off the Small Claims track so that the bank was obliged to to disclose all of its information. This would be a major victory and would signal the end of the fight.

 

I have tried to flag the possibility of claims beyond 6 years and also actions under the DPA.

 

So far only one person has claimed beyond the 6 year limit. You may be interested to know that they obtained a default judgment last week. This is despite the fact that the bank knew about the claim and their solicitors were dealing with it and were in contact with the claimant right up until the day before the judgment was obtained.

 

We are now waiting to see of they will try to get the matter set aside.

 

On the matter of DPA claims, there are about 6 people who are preparing to make claims in respect of non-compliance with SAR requests. About 3 poeple who are considering challenging the banks under the DPA on the issue of their inaccurate defaults.

I don't really understand why more poeple aren't getting involved. However, hopefully this trickle will turn into a deluge,

[deemacperth]

I think you must realise a lot of the people who will be claiming won't be 'crusaders' they want the money and thats it.

 

I must admit, my first priority is to get my money back, but after that, I'm gunning for them.

 

I will be claiming in excess of the statute of limations against lloyds, I just need to wait for my DPA disclosure.

 

I will also be pursuing Goldfish for defamation of character as they have a default applied against my credit file and I have proof that this has resulted in 2 refusuals for a mortgage. I have had the stigma of having to apply for an 'adverse' mortgage through no fault of my own.

 

On the matter of DPA claims, there are about 6 people who are preparing to make claims in respect of non-compliance with SAR requests.

 

BF, can you expand on that? I thought you could only complain to the IC?

[thecornflake]

Deemacperth -

 

If you can prove that you have had to settle for a mortgage with a higher interest rate as a direct result of the defaults there could be quite a large claim there in itself!

 

BF -

 

Once I've safely claimed back from my credit card companies I will be going for my bank with several claims, and I'm willing to test the water as it were with a number of separate issues which I'm currently looking into. Any issues that you have raised as well as the basic unlawful charges claim I am willing to go with, provided they are relevant to my situation. There isn't an evil angry revenge smiley but if there was it would be here

[Movingon]

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