Fox Mulder vs First Direct *** WON! ***

[Fox Mulder]

I called the Court back, to ask if I was able to still file for abuse of process even though I'd already submitted my AQ and was told yes, there's no charge, they're keeping a photocopy and sending the original to me for amendment.

 

This is because DG has yet to file the AQ for the bank.

 

So I have printed off for myself, the Court and DG the list of cases First Direct and HSBC have settled (gleaned from the CAG site), the text of the order made by Lincoln County Court, the summation of Mullen -v- Hackney BC (1997) A11ER 906 which is referenced by the Lincoln order, and the Draft Order for Directions.

 

Under section G I have three points outlined:

 

Section G – Other Information

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since March 2006, the Claimant is aware of a great many claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

 

The Claimant believes that the Defendant is using court process as an intimidatory tool in order to dissuade its customers from pursuing legitimate complaints. It is strongly suggested from the pattern of hundreds of settled cases that the chances of the Defendant contesting this claim at trial are infinitesimal.

 

Please find attached a copy of an order made by Lincoln County court (attachment 1C) in at least 10 cases similar to my own, involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

 

2. In the alternative, should the court consider such order not to be appropriate in respect of this claim, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that the claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

3. It is respectfully submitted that the defendant may routinely request a stay in proceedings in claims of this nature, by indicating an intention to negotiate a settlement in section A of their Allocation Questionnaire. The request by the defendant is highly likely to be an attempt to further frustrate and delay proceedings, and the pattern of settled cases so far would strongly suggest that the defendant does not intend to settle these matters until a hearing date is imminent. Accordingly, the claimant respectfully requests that any such request by the defendant is turned aside.

 

The claimant is strongly opposed to such a stay, upon the basis that the defendant, both during and prior to this litigation, has rebutted or ignored all prior attempts by the claimant to narrow the issues in dispute, or otherwise engage in meaningful dialogue which may have facilitated an amicable settlement to these matters.

 

 

Pages on CAG I found useful/helpful in compiling my revised AQ stuff:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/78216-aqs-stays-strike-out.html#post686509

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71343-when-you-have-filed.html

 

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

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/87766-abbey-abuse-orders-keeping-5.html#post993083

 

to name but a few with thanks!

[Fox Mulder]

I have to amend the original AQ - not submit a new one - keeping the dates and information thereon, but striking out or adding to section G the following:

 

REVISED AQ WITH ATTACHMENTS 1A, 1B, 1C, 1D AND 2A SUBMITTED TO COURT AND SENT TO DEFENDANT [insert date] AFTER CONFIRMATION VIA PHONE BY COURT REPRESENTATIVE [insert date of phone conversation] THAT REVISION WAS ACCEPTABLE OWING TO DEFENDANT NOT YET HAVING FILED AQ.

 

As you can see in the above, it has meant another letter to DG (which I must admit was a joy to write!).

[Fox Mulder]

This is the letter going to DG with the amended AQ and attachments. I've taken out some bits that are too identifying, and marked the missing sections thus:...

 

AMENDED ALLOCATION QUESTIONNAIRE ATTACHMENTS

 

I yesterday contacted [...] County Court to make enquiry as to whether you have submitted the Allocation Questionnaire on behalf of your client, the last date by which it was to be filed with the Court Office having been [...] July 2007.

 

I have been informed that you have not yet filed your Allocation Questionnaire [insert how long, week, two weeks, whatever!] later. I cannot understand why you have not contacted me out of courtesy to acknowledge the receipt of the copy I sent you of my own Allocation Questionnaire, along with my other information. Perhaps you would like to discuss this with me?

 

I note, however, that I wrote a letter to you [...] June 2007 requesting a response in writing to that letter by [...] June 2007. I did not get a reply by that date, but I did get a response from you dated [...] July 2007, which was the date by which your Allocation Questionnaire was to be filed with the Court Office.

 

Furthermore, you then went on to reply to the second letter I sent you [...] July 2007, your response being dated [two days later!] July 2007 and so clearly, you are able to enter into relatively quick correspondence with me and yet seem to have nevertheless neglected to file the necessary paperwork with the Court in time.

 

If you intend to file the Allocation Questionnaire, please do so because the judge will be reviewing this matter within the near future.

 

I remain willing to resolve this matter out of court, and to that end I am willing to accept the sum of £[...] . This figure includes £220 court costs incurred to date and the amount £[...], which is clearly outlined on the latest Statement of Charges, which I attach for your convenience along with this letter. This figure for charges includes compound interest at the bank’s Standard Authorised Overdraft Rate of 18.37 per cent. I maintain this rate to be justified under the principle of mutuality and reciprocity.

 

Upon receipt of the above amount, I will halt my claim against First Direct Ltd.

 

I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

Furthermore, please be advised that as a courtesy I have included several revised Allocation Questionnaire attachments along with this letter as well as an up-to-date Statement of Charges. The revisions were submitted to the Court this day, [...] July 2007, after the Court confirmed to me yesterday that revisions were acceptable owing to the fact that you have yet to file your own Allocation Questionnaire with regard to this claim.

 

I look forward to hearing from you at your earliest convenience.

 

[Celicaman]

Hi Fox mulder

Watching your thread with interest,(not compound LOL) and wonder what argument you are going to use with the CI as it seems that the R & M path seems to be closed and as yet nothing concrete has been posted, although i note that there seems to be something in the off about accountability of profits where if claimed at the rate of 29%, they are happier to get rid of you with the 18.3% LOL, i'll bet.

Tanzarrelli mentioned it in the post 192 of this thread http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/97691-contractual-interest-precedent-lost-10.html

 

It may help your claim, as im sure the bank will be wise to getting round R & M by now.

Im still chomping at the bit, waiting to start about 6 various claims and had my head half around the R & M argument only for it to fail in recent court ruling, so now looking into the various new arguments before i proceed.

 

Celicaman

[Fox Mulder]

Hi Celicaman, yeah - I only just found out about that thread. Annoying, but as far as I can tell, I've done the right thing to date in pushing for either/or on the interest front. I supplied two Statements of Charges to the Court, along with detailed breakdown of both the 18.37 per cent and the 8 per cent.

 

I've also asked the Court to consider striking out the defence as abuse of process, which of course remains a possibility because it's so well-known what the banks are doing and I may have the luck of a judge who's willing to do as I suggest.

 

I need to keep an eye on developments, and am unsure as to how to proceed with things if as seems the case we can't rely on mutuality and reciprocity any more. Not sure if this means I have to amend my claim, or simply leave the Court to decide on eight per cent.

 

Hopefully the choice given of interest rates means if the Court does go against the 18.37 per cent, it will allow the standard eight per cent.

[Guest amethystdragon]

there maybe something here that you can use:

 

http://www.consumeractiongroup.co.uk/forum/general/105377-ci-mutuality-dead-long.html

[Fox Mulder]

You star! Thank you so much, I will check it out very carefully!

[Fox Mulder]

Ah okay... That's interesting... Not with FD but my claims against credit cards... With credit cards you CAN claim compound interest (at least according to one person posting to that thread you linked to above) because they actually charge you CI so you can claim it back, that is claim back what they actually charged you in interest on the unlawful charges.

 

For the banks, this concept of unjust enrichment looks like it might be the way to go... I'm just not sure what I do at this stage with FD.... reference it in any letters to DG, I guess, from now on, and quietly drop mutuality? And get some stuff into my court bundle if it comes to that?

 

As yet, though, there's no coherent direction emerged in the form of one or two things to try, or any templates to use as a basis for replacing the M&R argument.

 

In the case of DG, for the time being if they raise this I think it best to simply not be drawn into giving any written response on this score and either leaving it for the Court to make its decision, or waiting in the hope of something new emerging I can use.

 

Or maybe give a final offer to DG to settle using my 8 per cent Statement of Charges, them already knowing this is likely what the Court will go for? And in so doing make no reference to M&R?

[jubaxt]

have you got as far as filing with court???????

 

if not mmmmmmmmmm-you could push for stat i suppose

 

if you have already filed with court i would carry on and just take it as part settlement

[Fox Mulder]

I just received a third offer letter from DG in relation to my claim against FD, offering just short of the basic amount claimed - that is, minus any form of interest, CI or the 8 per cent. In the letter, though, DG acknowledges,

 

"At best you are only entitled to the statutory rate of 8%"

 

So they're definitely, unsurprisingly, wise to the recent judgement. They point out that,

 

"You are claiming interest at the rate of 18.7% on the basis of mutuality and reciprocity..... no legal principle upon which you are entitled to claim interest on that basis...."

 

So. What do I do now? I have cross-posted most of this message to the thread on the contractual interest precedent (which AD links to above) and am going to reject their offer because it is LESS than the basic amount taken without any interest at all.

 

The Court would surely recognise that the recent judgement was made against CI AFTER my own and many other claims were submitted, and that previous claims were settled WITH CI and so I was acting on currently available knowledge and previous evidence in claims.

 

So the Court would - tell me if wrong - likely just go for the 8 per cent on that basis. So I would still get more from going all the way to Court than what DG is set on offering me as a maximum (three times now they've offered the same amount without budging).

 

But in my rejection letter to DG do I reference this precedent case, that I know of it and on that basis state I am willing to accept settlement at 8 per cent interest? It's a fair whack, several hundreds more, than they've put on the table to date. Or do I give them a 'last chance' to settle at the 8 per cent the Court is likely to award?

 

In submitting my claim to Court, I made both options for the Court clear and included two separate Statements of Charges, one of them being 8 per cent.

 

If someone could help out in how to respond to DG with regard to ongoing claims that have in the past referenced CI and now find they can't claim CI, I for one would be hugely appreciative. Thank you.

 

I won't reply to DG until I've got some sound advice from someone here, so will keep checking back both here in my own thread and the other. So please - anyone?

 

I should point out that in addition to Draft Order for Directions, I also requested with my AQ that the defence be struck out and may yet find the judge accedes to that. But right now, I'm not unduly concerned but I am keen to find the right wording for my rejection letter to DG.

[Fox Mulder]

jubaxt: First of all, thank you for responding. By,

 

"if you have already filed with court i would carry on and just take it as part settlement"

 

what do you mean, take as part settlement? The offer on the table? I am waiting now to hear as to the Court Date, assuming the defence isn't struck out as I have requested, and I will also find out soon if my Draft Order for Directions has been accepted as well.

 

If you mean what I think you mean... tell me if wrong!... you're suggested I write back and don't send a rejection as such but a letter saying I am willing to accept the offer made as part-settlement but intend to proceed to Court to obtain at minimum the eight per cent to which I am entitled and the remainder of the balance of monies that were taken from the account.

 

And obviously, I don't sign the form they've sent to me again.

 

Correct?

[Fox Mulder]

Okay, I have checked the following letter out with a moderator for advice and it's good to go. I won't go below this offer, so it's final and if they don't accept then it's to Court we go!

 

WITHOUT PREJUDICE

Dear Sir or Madam,

 

RE: XXXXXX - v - FIRST DIRECT

ACCOUNT NUMBER: XXXXXXXX

CLAIM NUMBER: XXXXXXX

 

Thank you for your letter dated XX July 2007. In my letter dated XX July, I respectfully declined your offer of £XXXX as full and final settlement of my claim.

 

I write now to inform you that I am willing to accept the offer made of £XXXX as part-settlement only.

 

It is my intention to proceed to a Court hearing, as and when a date is allocated, and if it proves necessary, to obtain the remainder of the balance of monies that were taken from the account and interest the Court awards.

 

You state in your letter,

 

At best you are only entitled to interest at the statutory rate of 8%.

I do not agree with the suggestion in your statement that statutory eight per cent is what I am entitled to ‘at best’. Your statement is nevertheless a clear acknowledgement from you that the Court will determine I am, at the very least, entitled to interest at the statutory eight per cent. However, to attempt to determine in advance the Court’s decision on interest payable is presumptuous in the extreme.

 

Your offer to date has failed to even include the full amount of charges taken, the statutory eight per cent interest, and the £220 Court costs incurred to date, leading me to believe it is not in any way reasonable.

Despite your unwillingness to date to make any reasonable offer in my view, I am willing at this juncture to accept £XXXX plus eight per cent statutory interest bringing the amount to £XXXX plus £220 court costs.

 

The total sum I am therefore willing to accept as of today by way of full and final settlement of my claim is £XXXX [fees + eight per cent + court costs].

 

Should you wish to settle my claim as proposed, then please forward the balance without further conditions and I will inform the court that the claim is settled. I assert once again that I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

I would also like to take the opportunity to point out, once again, that you have yet to file your Allocation Questionnaire which was due to be received by the Court no later than X July 2007, nor have you yet acknowledged receipt of my own Allocation Questionnaire and attachments.

 

I do not understand why you are continuing to prove capable of entering into correspondence with myself, yet choose not to file the paperwork with the Court by the date on which it became due.

I trust your client will recognise my desire to reach amicable settlement on the terms outlined above, and I invite you to respond at your earliest convenience. This is my final offer.

 

Yours faithfully,

 

XXXXXXXXXXX

[Fox Mulder]

I should add, their AQ was due nearly THREE weeks ago (the Court STILL hasn't received it!) in which time I've had THREE letters from DG. Go figure...

 

I would also like to say to any other bank customers who are disabled like myself, expect no slack in your claim for charges - indeed, to date I've had a particularly harsh experience with both the bank and its solicitors, yet the bank knows full well I am on disability as I've had cause to inform them when I first became unable to work, and since with regard to benefits and income insurance payouts, etc.

 

I actually wonder if them knowing I'm disabled means they think I'll cave in easier. If so, they are mistaken. But whatever's going on, I have become more and more disgusted and determined as time goes by.

[Celicaman]

Looks good to me, go for it

off to bed now

 

CM

[jubaxt]

go for it-and good luck!!!!

[Fox Mulder]

Thanks both of you! I reckon it's crunch time - if DG doesn't accept this then it means the &^%$£$% intend to make me produce my Court bundle and take it all the way to the door of the Court.... I hope not but I'm ready. Bring it on if need be!

[Fox Mulder]

Waiting to hear back from DG, suspect I may get some news by midweek.

[Celicaman]

I reckon they will still wait for the bundle, its just the way they do it now, same as it appears initial offers are now only about 50% of claim (at least that is what they have offered on my business claim and have seen at least one other offer for same %.) and it doesnt seem to matter how many nudges you send, well thats this week anyway, maybe change of tactics next week, keeps us on our toes LOL

 

Good luck

CM

[Fox Mulder]

I got a letter from DG yesterday offering settlement of my claim with eight per cent interest plus court fees. Yay! Also, the form they want me to sign has been changed... It now says if I sign I agree not to further pursue the specific claim after settlement, which covers between two dates, the final one being the date the claim was filed with the court. I can sign that, as it doesn't stop me pursuing any future charges placed against the account since the claim was filed.

 

I won't ask the mods to mark this thread settled until the money is in the bank, but it's good news indeed.

[Celicaman]

Way to go Fox Mulder, well done.

You may find it faster to e mail a copy of your acceptance to DG, I did & got paid into account same day. then send exact same signed copy in post.

Just type email up as a letter with a covering paragraph before it, with your details on, then exact acceptance letter inc addresses on, Title it Acceptance letter so they know before they open it, and hopefully your in the money straight away.

 

Well done again, see you in the 'won' section

 

CM

[Fox Mulder]

Thanks CM! Do you have an email address for them for this purpose, please? I can't find one on their letters...

[Celicaman]

There you go bud, choose a number, any number

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/74985-hsbc-contact-information.html

 

CM

[Fox Mulder]

Thanks CM! That's incredibly quick, and incredibly nice of you to reply so fast! I've added to your reputation (the scales thingie) by way of an additional thanks!

[Celicaman]

Thanks for that, enjoy your money

 

CM

[Fox Mulder]

Hahaha! I emailed an MS Word document containing my scanned-in acceptance letter, and a PDF, to Rachel Tomlinson, and got this back:

 

I will be out of the office starting 27/07/2007 and will not return until

28/03/2070.

 

I have now left the Bank. Please contact Jason Newbold or Casey Byrne if

you require urgent assistance.

 

So I assumed the email format would be the same - fullname@hsbc.com, and sent the attachments to jasonnewbold@hsbc.com and caseybyrne@hsbc.com - so far, no bounce-back, so that's good!

 

But this Tomlinson woman is still listed on the letters from DG, which is just bizarre... especially as her auto-reply suggests she was very glad to leave...