Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)

[GuidoT]

The judge is trying to get the parties to agree a way forward.

 

Do not copy the letters you send to SCM to the court, wait until the 04th then copy all the letters to SCM in one go telling the court how naughty SCM are.

[innocent]

Good thinking (again) Guido

 

 

Innocent

[griffin9959]

Hi Innocent,

 

Still keepin an eye on your thread.

 

Sounds like an unusual order - take a couple of weeks to see if you can sort something out boys. Is that not what you have been trying to do for several months!!

 

Mind you, if it brings you nearer to a default judgement in favour of yourself, all the better.

 

My D-Day is tomorow, no idea what to expect now CI has been ruled on.

 

Keep at it.

 

~S~

Griffin

 

~S~

[innocent]

Thanks Griffin appreciating your support

 

I will pop in on your thread later, but needless to say, good luck for tomorrow.

 

Bit rushed today actually, which explains why I have almost copied the following letter (but the original is fantastic anyway) from the aq's-stays and strike out request thread.

 

Here goes....

 

Innocent,

 

Innocents Mansion,

 

Innocent Lane,

 

down the lane in Innocentshire.

 

IN1 IN1

 

 

Sechiari, Clark & Mitchell Solicitors,

 

Department So, PO Box 499,

 

Upper Ground Floor,

 

1-5 Queens Road Quadrant,

 

Brighton.

 

BN1 3XJ.

 

 

21st June 2007

 

 

 

BY ROYAL MAIL SPECIAL DELIVERY

 

 

 

Dear Sir/Madam

 

 

Innocent -v- Lloyds TSB Bank Plc

 

Claim Number: 7PO00835

 

 

I write in relation to the matters as detailed above, and specifically the order of a stay in proceedings made by District Judge Manuel on 13th June 2007. The clause of the order was that the parties negotiate to file an agreed directions order, no doubt to attempt to narrow the issues in dispute.

 

 

I consider that the object of a negotiation is to avoid litigation by having a sensible discussion in order to try and achieve a solution, which would anticipate the decision of a court if the matter were actually heard. This means that we need to clarify the issues and then see if we can reconcile our areas of disagreement.

 

 

As you know, I object to the charges which the bank makes because I say they are penalties and that they exceed actual costs, and as such are contrary to well established principles in common law and statute.

 

 

Your position is that they are not penalties, but they are merely fees, which are levied for a contractual service, and because of this you are entitled to profit.

 

 

My position is that I do not accept that the charges are for a contractual service. However I have already signalled to you and to the court that in the event they were to be accepted as such then you should only be entitled to charge a reasonable fee for this service.

 

 

On the matter of penalties, let me say that I accept without reservation the Bank’s right to recover its actual losses caused by my contractual breaches. As you know, it is only that I do not believe that the level of penalty charges levied by the bank is only sufficient to cover those losses. It goes without saying that your defence that the charges are not penalties is tantamount to an admission that they are profit-making.

 

However, if you will provide evidence to show that the charge's levied exactly equal your losses incurred by my breaches then I will be happy to give up my action or to amend it so that my claim is only for a figure which is above that which is required by the bank to cover its costs.

 

 

On the other hand, if the charges are contractual as you say they are, then as you know, my position is that the charges may only be levied at a reasonable rate. Section 15 of the Supply of Goods and Services Act 1982 makes this clear.

 

 

If I were convinced that you were correct as to the status of the charges then I would agree that I should be obliged to pay you a fee. However, the fee would have to be reasonable.

 

 

I consider that the test for reasonableness in this circumstance would be to measure the reasonable mark-up of a reasonably successful high street business. This is because the bank is a UK high street business. The present normal mark-up for high street businesses is about 100%. If I did accept your position as to the status of the charges then I would require you merely once again to provide evidence of the actual costs to you of supplying your "service" and I would be happy to pay you the reasonable mark-up. (However as you know, I do not accept that your charges are contractual fees).

 

 

I am sure that you are aware that ever since the law relating to penalties was established in the late 1800s that contractual parties have regularly attempted to disguise their penalties as contractual services of some type. The relevant Cases are full of discussions about this, and the courts are fully aware of this technique of avoiding the Common Law. Even the Office of Fair Trading report earlier this year referred to this and stated that institutions should not attempt to disguise their penalties. In this regard I would draw your attention to Section 4.21.

 

 

It seems to me this whole case can be easily settled if you simply provide evidence of your actual costs. It is very clear that this is the absolutely fundamental crux upon which the matters in these proceedings involving bank charges rest.

 

 

I have a sample list of 40 claims which have been started against Lloyds TSB bank PLC, including their claim numbers, all of which have been settled in full by the bank, shortly in advance of the scheduled hearing date.

 

 

In fact I have a list of nearly 500 claims, including claim numbers, which have been brought against UK high street banks this year and which have all been settled by the banks. Every bank refuses to disclose its costs information. There were even difficulties in disclosing this information under conditions of confidentiality to the Office of Fair Trading when they were investigating charges over the previous couple of years.

 

 

It goes without saying that the current flood of litigation is putting a heavy burden on private individuals but also on the Courts Service which is a scarce public resource. A reasonable inference is that the banks are not serious about their litigation and that they are merely attempting to wear out claimants. I am sure that if the banks were not Defendants, that they would by now have been judged Vexatious.

 

Please provide the evidence of your client’s costs and I think that the remaining issue can be dealt with very swiftly. I believe that a court would require no less than this, and should this matter proceed to allocation without a suitable resolution having been reached amicably, rest assured that I would seek an order of disclosure, notwithstanding probable allocation to the small claims track.

 

 

Specifically, also, I am suggesting the attached draft order to the court, to help narrow our issues in dispute.

 

 

I look forward to your prompt response.

 

 

Yours faithfully,

 

 

 

I plan to write a second letter next week, and then communicate with the court on the 3rd July for the 4th showing every effort has been made by me to talk to [problem]. And then push the draft order even more!!!

 

Any thoughts welcome

 

Innocent

[GuidoT]

Your letter above is for a different purpose, that is to argue your case and attempt to settle the matter through negotiation.

 

Your letter should focus on what the judge has ordered, that is to agree some directions; not to agree your claim.

 

This is something I have cobbled together from various places:

 

'I refer to the matter above and the order made by District Judge Manuel on the 13 June 2007 that requests the parties agree directions by the 04 July 2007.

 

To this end the Claimant proposes the attached directions. The Claimant believes these directions will allow the Overriding Objectives to be furthered in that they will fully identify the most fundamental issues in dispute (as detailed below) and allow them to be assessed so that this claim may proceed justly and expeditiously.

 

The crux upon which this claim rests is the true cost incurred by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the UTCCR 1999 and common law principles established since the early 1900's.

 

In the event that the Defendant’s charges were accepted as being a fee for a service (which is emphatically denied) examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact, which can be quickly resolved through compliance with the attached directions.

 

Please confirm your agreement to the attached directions or propose an alternative.'

[innocent]

Very relevant point Guido ;-)

 

I will ensure my second letter (compiling today) to be more like ur 'cobbled' then my 'past' ;-)

 

Lesson to be learnt: don't rush

 

(Got the order so late and working as I do weekends..... I probably felt rushed oooops)

 

Thanks again

 

 

Innocent

[Angi77777]

Hi, innocent

 

I've been keeping an eye on your thread as you seem to be in same position as me but unfortunately I still havent heard anything from court????

I've updated my thread with details. But i'm getting sick of this run around by Lloyds and the courts.

 

Good luck with your letter....I hope they pay us all off soon as. I'll be keeping an eye on the proceedings as usual.

 

Angi77777:)

[innocent]

Thanks Angi......

 

Been keeping an eye ;-) on ur thread too

 

 

The run around........ ur not kidding.....

 

 

Innocent ;-)

[innocent]

Ok...... getting a little ahead of myself.... as I would rather be

 

Typed and ready to send 2nd letter (much more like Guido's suggestion: thanks again Guido ) and will send "special delivery" on 28th

 

I propose contacting the court also, to see whether, Lloyds, actually requested a stay on their AQ...

 

If they did (probable), or didn't, bearing in mind they

*filed their AQ late

*probably haven't entered into dialogue with me by the 4th July (expiry of current stay) to agree directions order

*past cases all settled etc etc

 

Would it be worth requesting a "stike out for abuse" their defence, in the alternative to submitting the new strategy draft order again??

 

 

Innocent

[GuidoT]

Yes ask for a strike out and then in the alternative the new strategy. I do not think you will get a strike out, but by including the request for it, it should make the judge more likely to issue the new strategy order.

 

Obtaining the new strategy order will have the effect of a strike out, albeit some months later.

 

Do you know there is a new list of cases settled here?

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

[griffin9959]

Hi Innocent,

 

Well, time for me to bow out now and get on with other things. So, good luck with your claim and thanks for your support.

 

I don't intend to give up on the forum entirely but, what little posting I do is likely to get less.

 

Of course I shall remain subscribed to your thread for the time being.

 

All the best.

 

~S~

Tom

[innocent]

Thanks Guido (nice to get reassurance of my thoughts exactly)

 

Months....:o .... but I am aware of course, even with new stratedy granted (iffff) deadlines, missed deadlines, judgements to be filed, deadlines.... yeah (albeit I would like to think 6-8 weeks)

 

Which is why I hope you stay around griffin to see and help with my win and others....

 

Please try to 'pop' in as and when you can..... so pleased you won again

 

 

Innocent

[innocent]

Hi all

 

I am proposing to send this order to the court on this Wednesday the 4th.....

 

Any comments??

 

 

Dear Sir/Madam,

 

Innocent -v- Lloyds TSB Bank Plc

Claim Number: 7PO00835

 

Pursuant to the order made by District Judge Manuel on the 13 June 2007 that requests the parties agree directions by the 04 July 2007, I, the claimant, hereby confirm that no such directions have been agreed with regard to the claim as detailed above.

 

I advise the court regrettably that the Defendant has not attempted no contact whatsoever during the period of the stay to agree directions, as per said order. Further, I contacted the defendant by way of a letter on 21st June 2007, and then a further letter on 28th June 2007, in attempt to initiate the dialogue for which the stay was intended. Unfortunately, this correspondence was not afforded the courtesy of a response. Please find copies of these letters attached.

 

To this end the Claimant respectfully requests that an order be made as follows:

 

1. On the basis that the Defendant has filed the same Defence and then subsequently settled all claims of this nature, it is submitted that the Defence should be struck out pursuant to 3.4(2)(b) of the Civil Procedure Rules and judgement entered for the amount claimed, as it is an abuse of process.

 

Since March 2006, the Claimant is aware of many claims of this nature in which the Defendant has filed an Acknowledgement of Service, a Defence and Allocation Questionnaire and finally settled in advance of the hearing. In support of this, a sample list of claims, including their claim numbers is attached (attachment 1A).

 

The abuse is underpinned by the orders made (attachment 1B) in at least three cases similar to the Claimant’s, where Lloyds TSB Bank Plc were the Defendant. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant, and accordingly the Claimant respectfully requests that the court gives consideration to its relevance in respect of this Claim.

 

That authority is attached (attachment 1C) and in summary it was held that when conducting proceedings a judge could take judicial notice of matters which were notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source. He could also rely on his own local knowledge, provided he did so properly and within reasonable limits. It followed, in the instant case, that the judge had been entitled to take judicial notice of how the council had conducted itself in relation to undertakings given in similar cases.

 

The Claimant believes that the Defendant is using litigation as a mechanism to intimidate Claimant’s and to dissuade them from pursuing legitimate claims. It is clear from the pattern of the hundreds of settled cases that the prospects of the Defendant actually contesting this claim at trial are minute.

 

It is submitted that this litigation strategy is abusive and to the detriment and financial cost of both the publicly funded court resource as well as Claimants. It is respectfully submitted that the Defendant will continue to conduct its litigation in this manner for as long as it is allowed to do so with impunity.

 

 

2. In the alternative, should the honourable court not be minded to strike out the Defence, the Claimant respectfully requests that directions are made as per the attached draft order (attachment 2A).

 

The Claimant believes the said directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and allow proper consideration of the matter in advance of the hearing, to enable this claim to proceed justly and expeditiously and negate the time wasted by the Defendant during the stay.

 

The crux upon which this claim rests is the true cost incurred by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

In the event that the Defendant's charges are accepted as being a fee for a service (which is denied) the order will facilitate examination of its true costs to determine whether the price is reasonable pursuant to the Supply of Goods and Services Act 1982.

 

The Claimant submits that if the Defendant has a serious intention of defending this claim at trial as predicated in 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.

[GuidoT]

I was looking back over your thread for the stay order, I could not find it.

 

The above is fine, providing you do not have to submit a second AQ, this is commonly directed, but not always.

 

Quite apart from the above, you need to edit out your claim details on your post 22.

[innocent]

I was looking back over your thread for the stay order, I could not find it.

 

The above is fine, providing you do not have to submit a second AQ, this is commonly directed, but not always.

 

Quite apart from the above, you need to edit out your claim details on your post 22.

 

 

Thankyou as ever Guido

 

and thankyou again for re-reading my thread

 

Received general form of judgement or order form "N24" dated 13th June 2007:

 

IT IS ORDERED THAT:

 

1) Stay to 4th July 2007. Parties to file agreed directions order on conclusion of period allowed.

 

This was the only stay ordered with the reason; a little unusual and no 2nd aq request???

 

 

Post 22 editted; not sure why?

 

 

Guido, I sincerely thankyou, and thankyou again for looking over my shoulder and double checking my process.....

 

 

Innocent

[GuidoT]

Post 22 requires editing (as you have done), so that any information that allows your claim to be identified is removed, in case it is used against you by the bank.

[innocent]

Cheers Guido

 

 

Letter sent to courts as listed

 

 

Innocent

[hands2bfree]

hi innocent as ever your threead makes good reading.

was wondering if you had a copy of your terms and conditions for your account?

or if you know where i could get hold of them?

 

i hope all is ok

 

Lou

[mr.sshh]

Hi Innocent,just read your thread-Am some way behind you ,with my Lloyds claim for charges plus C.I. They have until 23rd July to defend .Waiting with baited breath to see new developments in the C.I. arguments but just wanted to say thanks and ask kindly the same question as hands2bfree.Do you have copy of T& Cs ? Your help would be very much appreciated !

 

Thanks again and good luck.

 

LET'S GO TO WORK

[innocent]

Hi all

 

Well I have been waiting with 'baited breath' ever since the stay ended on the 4th July....

 

I phoned Portsmouth court on the 19th July, and the court said the case was just about to be returned "upstairs"......

 

then the high court announcement......

 

and I phoned the Portsmouth court this afternoon, 2nd August. Apparently (and I took the name of the court helper) someone has forgotten to put a 'trigger' on my case after the stay ended, which he had then just done...

 

He said, "We have had many cases now stayed pending the result of the high court case. However, this doesn't seem to apply to them all, depending on how far the case has already gone. All I can do is put the trigger back on now, and make sure the case goes upstairs and see what happens"

 

 

Oh well? I forsee another phone call to the courts in a fortnight....

 

 

Yours anticipating

 

Innocent

[innocent]

Hi all

 

Well still waiting with baited breath so I rang the courts AGAIN today:

 

Apparently my case went 'upstairs' on the 3rd and there are some directions (not that they have been typed up yet!!!)

 

Basically Im allocated to SMALL CLAIMS TRACK

 

BUT STAYED UNTIL 1/4/2008 pending high court case; if after this date the court does not hear anything within 21 days it will be assumed the case is settled bla bla

 

I have 14 days from the date of this order (NOT RECEIVED YET because its not typed up) to appeal against this decision....

 

"Gutted!"; case been going on for 5 months... "oh well.... pick myself up and start preparing a letter to the court to appeal against the decision eh???"

 

 

Advise all

 

 

 

Innocent

[BARTY]

Hi

Have a read of these links:

 

http://www.consumeractiongroup.co.uk/forum/general/108430-stays-info-guidance.html

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html#post1046820

 

Good luck!

Barty:)

[GuidoT]

This is disappointing given how far your claim has advanced and that the new strategy was ordered and you are claiming CI.

 

You need to apply to have the stay lifted:

http://www.consumeractiongroup.co.uk/forum/general/108430-stays-info-guidance.html

 

Ensure you add in about how your claim is so far advanced and how Lloyds have not complied with the last directions order.

[innocent]

Thanks Guido; sounds advice as usual

 

Disappointing is not the word.....

 

 

Will keep thread updated with news (hopefully before 1/4/2008)

 

 

Innocent

[GuidoT]

This is helpful too:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html#post1046820

 

Remain positive.