'Tish vs Abbey'

[julied1]

Hi Adam,

 

Yeah! Thats the sort of thing I meant. Something to inform the banks of our intentions to claim back the costs. I'm not well up on these things but it seems right to me.

 

Also knowing if we did include this it would give us time to keep track of time and effort right from the start and therefore have a more accurate figure.

 

Thanks

Julie:wink:

[adamc6671]

You're very welcome, Julie - just hope we're doing the right thing!

 

Adam;)

[adamc6671]

Hi All

 

We're expecting the AQ from the Court for this case very shortly. I've been reading the thread 'mariejader v Abbey', where Abbey's defence has been struck out, with GREAT interest today. As a result I'm almost convinced to have a go at asking the Court, via the AQ, in our case to consider striking out Abbey's defence.

 

To do this I'm contemplating using a slightly ammended version of GaryH's template in post 62 of mariejader's thread, for which I'm deeply indebted to GaryH (and mariejader). The reason I've ammended it is to make it suitable for use with any bank, as I'm currently at varying stages with claims against 3 different banks, and I'd like to use it for each of them, if it comes to that!

 

This is the statement I'm thinking of using -

 

Quote -

 

–v- xxxxxxxx Bank Plc

In the xxxxxxxx County Court

Claim No:

 

 

 

 

N149 ALLOCATION QUESTIONNAIRE

 

 

 

 

 

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

 

The Claimant makes this request on the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature. Please find attached a copy of an order made by LincolnCounty court (attachment 1A) in at least 6 cases very similar to the Claimant’s own. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant, and I would respectfully request that the court gives consideration to its relevance in respect of my own claim. Please find a copy of this case attached (attachment 1B).

 

Since May 2006, the Claimant is aware of many claims of this nature in which the Defendant has filed an Acknowledgement of Service, a Defence, an Allocation Questionnaire, has often breached the order for pre-hearing directions, then has finally settled shortly in advance of the hearing. A sample list of these claims, including their claim numbers, is attached (attachment 1C).

 

The Claimant believes that the Defendant is using court process and procedure as an intimidatory tool in order to dissuade its customers from pursuing legitimate complaints. It is clear from the pattern of many hundreds of settled cases, all very similar to the Claimants own, that the chance of the Defendant contesting this claim at trial is almost zero. Indeed, after extensive research the Claimant is unable to find reference to even a single case in which the Defendant has appeared in Court in order to contest a similar claim at trial.

 

The Claimant believes this strategy to be abusive, and to the detriment and financial cost of both the publicly funded Court resource and the Claimant. It is respectfully submitted that the Defendant will continue to conduct its litigation in this manner for as long as it is allowed to continue to do so.

 

2. In the alternative, should the honourable 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 (as detailed below), and allow them to be assessed in advance of the hearing 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 the Claimant refutes), examination of the Defendant’s true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

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 the Defendant 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. Additionally, they were ordered previously in a similar claim at Swindon County Court. Please find attached a copy of the order to which I refer (attachment 2B).

 

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.

 

end Quote

 

I'd be very grateful for any comments / advice - am I doing the right thing, and am I using the right words?

 

One further question - This link, from GaryH's post #68 in mariejader's thread, to the full text of the Mullen v Hackney case which I need to attach to my AQ, wont allow me access - does anyone know why?

 

http://www.consumeractiongroup.c o....4&d=1174744321

 

Many thanks - Adam

[adamc6671]

Any comments on the above PLEASE! :confused:

 

Many thanks - Adam

[adamc6671]

Hi All.

 

Update time, and time to ask 2 VERY important questions - any help would be hugely appreciated.

 

Recieved Abbeys defence today - seems like the standard 'template' defence - i.e. - we deny everything except the fact you have 2 a/c's with us. Signed by Willem Basson (Paralegal, whatever that is!), who's name I think I've heard before. No problem with that.

 

Now thinking about getting the 'Bundle' together, as I'm sure we'll have to, and 2 questions have come up as a result of the 'Birmingham Judgement' (as referenced in BankFodder's and rbrears 'stickys' in the Lloyds Bank forum). Its very obvious from that case that the Contract which was signed on opening the a/c's and / or the Terms and Conditions of the a/c's are a vital part of the Court Bundle, in order to proove to the Court that the charges have been incurred due to a breach of contract, and therefore the UTCCC 1999 regulations apply. My 2 questions are -

 

1) Does anybody know if the contract signed when opening an a/c is covered under the Data Protection Act? If so, getting a copy from the bank should be possible.

 

2) Does anyone have a copy of Abbey's Terms & Conditions from as far back as 2002 (from which time our claim starts) that I could have a copy of for our bundle, please? A copy of their T&C's from any time since then would do.

 

Many thanks - Adam.

[noobrider]

read this and make a decision http://www.consumeractiongroup.co.uk/forum/abbey-bank/90404-lloyds-win-abbey-consequences.html#post825310

[adamc6671]

Hi Noobrider

 

Many thanks, and absoloutely spot on!!!!! Very well thought out.

 

Point 8 of the defence they've sent us says exactly that - '. . . . . . . due to the Defendants breach of contract . . . .' - no prob there, then - UTCCC 1999 applies!

 

However, still feel that Contract & T&C's should be in the Bundle for the sake of completeness, if nothing else. Can anyone help with copy of T&C's and info re. DPA as requested above, please??????????

 

many thanks - Adam

[adamc6671]

Hi All - update time!

 

Recieved Abbey's (standard) 10 point defence, and AQ, from the Court last Friday (18th May). Have filled in the AQ using GaryH's request for strikeout, and Draft Order for Directions should Court not wish to strikeout (for which many thanks, Gary). Will file this at Court tomorrow.

 

Thinking ahead to the Court Bundle, I now have a set of Abbey's T&C's from Feb 2002 (which is the exact month this claim starts from!) that I got from a link here on CAG. These refer to 'the Contract between us etc etc . .', so I'll include these in the Bundle as they proove, I think, that the UTCCR 1999 apply to this case.

 

Will keep you posted as things progress - Adam.

[April7]

Hi Adam

Your claims gone quiet for a while, co could you have a butchers at my problem please, I know your helping the family, can you help me too.

Thanks

April

[adamc6671]

Hi All - a request for some advice please:confused: :confused:

 

I have recently read several posts by MisterMind, mainly on the Lloyds TSB forum, in which he classes bank charges as falling into one of two types.

 

Type 1 he defines as a charge, of up to about £38, for simply refusing to pay something (D/D, S/O, cheque etc) from which action the customer derives no tangible benefit, and therefore cannot be classed as a fee for a service. These are often applied automatically by a computer, with little or no human resource input. It is, therefore, nothing short of a 'Penalty' charge which is NOT recoverable at Law, and can therefore be claimed back. Also in Type 1 I would put charges for exceeding agreed overdraft where this has happened only due to the bank taking Type 1 charges.

 

Type 2 he defines as a charge the bank makes for agreeing to pay something that DOES take the a/c over its agreed overdraft limit. The customer HAS derived a benefit from the bank agreeing to do this, and therefore the charge IS a fee for a service, for which the bank is lawfully entitled to charge (in the same way that any other service provider is entitled to charge for their services).

 

I actually agree with these definitions, and can appreciate the total fairness of seperating charges in this way. Apparently, according to MisterMind, Lloyds ARE still agreeing to pay claims consisting only of Type 1 charges, but are very likely to defend claims for Type 2 charges. There is a 'grey area' for claims consisting of both types, but his feeling is they are likely to fail, especially in the light of recent history.

 

I have carefully reviewed Tish's claim against Abbey, which is at the 'AQ's filed' stage, and have found that some of her charges are indeed of Type 2.

 

As a result I am seriously thinking of writing to Willem Basson (the Abbey Paralegal who signed their defence to our claim) and offering to settle 'Out of Court' for a sum equivalent to only the Type 1 charges, plus of course, 8% interest and Court fees.

 

I would be VERY grateful for any opinions on this - many thanks - Adam. :-? :-? :-?

 

.

[adamc6671]

Thank you very much, Gary.

 

However, may not need to do bundle just yet given the very unusual 'General Form of Judgment or Order' we have just recieved from the Court in response to our AQ. It seems we may have been picked to become the Test Case that everyone has been waiting for, or in our case, dreading!!!!!!!!!!!! Full details I will now post on my own thread 'Tish vs Abbey'.

 

All the best - (a very nervous)Adam

[GaryH]

Well as far as the above goes I've answered that at length already - the "Type 1" and "Type 2" definitions is a load of utter rubbish. Flawed, flawed, flawed. For the benefit of anyone else who's read it and may be concerned - don't be. I've explained why its flawed here - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/85444-jimmyboy-lloyds-tsb.html?highlight=jimmyboy#post883751

 

Can't see an order? But I'm going to guess its this one which is standard for all Norfolk and Suffolk claims -

http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/37561-starting-three-claims-lloyds-2.html#post535276

 

There is advice on what to do in that thread.

[adamc6671]

Can't see an order? But I'm going to guess its this one which is standard for all Norfolk and Suffolk claims -

http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/37561-starting-three-claims-lloyds-2.html#post535276

 

There is advice on what to do in that thread.

 

Hi All, and thank you again Gary.

 

Yes - you're right - the Order is very similar to the one in the Lloyds thread you mention. However, as there are some differences I'll reproduce the exact text here -

 

General Form of Judgment or Order

 

Before District Judge Evans sitting at Ipswich County Court

 

This claim is allocated to the Small Claims Track

 

Upon review of the Court File

 

IT IS ORDERED THAT

 

1 The claim be listed for an allocation hearing on 21st September 2007 (time estimate 15 minutes)

(is this any different from a Directions hearing?)

 

2 At this hearing the Court will consider either

 

a. staying the claim pending a decision in a test case involving the Defendant or

 

b. giving directions for this claim to be heard as a test case and if necessary allocating the claim to the multi track for that purpose

 

3 Not less than 14 days before the allocation hearing, the Defendant shall file with the Court and serve upon the Claimant details of any case proceeding as a test case, the decision in which will determine the issues in this claim. Alternatively, the Defendant shall file with the Court and serve upon the Claimant draft directions for this case to proceed as a test case

(Are Abbey likely to do this?)

 

4 The Claimant may make any representations to the Court in writing provided these are recieved by the Court and served on the Defendant not less than 5 days before the allocation hearing. If either party is prepared to abide by the decision of the Judge as to the directions to be given, that party is excused from attending the preliminary hearing.

(Is there any advantage in doing this sooner rather than later?)

 

The Judge has considered your case is suitable for mediation and you are therefore invited to use the free Small Claims Mediation service

(Is there any obligation to do this, and is anything likely to be gained from it?)

 

 

 

Well, there it is - wasn't really expecting this - although I've read literally hundereds of threads on CAG, I've not come across it before!

 

We've got over 3 months to prepare, but any (updated?) advice would be hugely appreciated, especially as to wording of the best letter to send to the Court. I do understand that we do need to ask for it to stay in Small Claims from a costs point of view as 'I am a litigant in person and the Bank is a multi-national company with billions of pounds in assets at its disposal etc etc'

 

Does anyone know if Abbey are likely to settle before this hearing?

 

If not are they likely to attend it?

 

My feeling is that we would like to attend, if only to gain experience - is this advisable, or not?

 

Apologies for the number of questions, but I am rather concerned about it!

I'm sure more questions will come to me as I think more about it, and I very much hope no-one minds if I post them here!

 

In the meantime, grateful thanks to all who take the time to read this, and to advise - Adam

[adamc6671]

Hi All

 

Would be hugely grateful for any advice on the questions I've asked in the previous post.

 

Many thanks - Adam

[GaryH]

Here you go -

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/96809-silverjames-abbey.html#post899574

 

Yes, it is simular to a directions hearing - directions will be decided as well but the main issue is track allocation.

[adamc6671]

Once again, huge thanks Gary. Will subscribe to 'Silverjames's' thread and watch what happens there - our 'allocation hearing' is about a month after theirs.

 

All the best - Adam

[Lana241]

Hi Adam,

 

thought i'd pop in on your's this time, been reading with interest this morning, and well done on the court date, will be watching with a keen eye to see how things progress.

 

Keep in touch and look forward to hearing some more news

Keep your chin up

Lana

[adamc6671]

Hi Lana

 

Many thanks for that. Unlikely to be too much happening for a while as Court date is still 3 months away. Main problem with that is going to be 'keeping up to speed' for all that while. However I'm sure I will! Much can change in that sort of time, so will have to keep reading and watching. Main hope is that Abbey will settle just before Court date rather than risk becoming a Test Case.

 

Keep your chin up as well;)

 

Adam.

[Vikface]

Hi Adam,

 

Have read with interest your thread and as many others that I find...

 

Best of luck with the coming months, lets hope Abbey pull their finger out soon eh?

 

Keep us up to date,

 

Cheers

Vicky

[adamc6671]

Thanks for that Vicky - will certainly keep you up to date, and I'll watch your thread with interest.

 

All the best - Adam

[adamc6671]

Hi All

 

Have today recieved from Abbey what appears to be a template letter, under unidentifiable signature, from their Triton Square address, stating that they will apply to the Court for a stay pending the outcome of the OFT case. They state it is likely that Tish's case will therefore be 'put on hold', and estimating that it will be 'many months' to finally resolve! They go on to make various assurances about dealing with this case once the OFT case has been resolved.

 

Given that we have an allocation hearing in Court on 23rd Sept, I intend to ask the Court not to grant a stay, on the grounds well published here on CAG.

 

I also have a couple of questions -

 

Do I have to ask in advance for the Court's permission to speak for my OH as her Lay Representative at the Allocation Hearing, or can we just turn up and ask the Judge in Court?

 

Have we the right to demand from Abbey the precise legislation under which they regard it as lawful to take money from this account without the account holders express permission? As far as I am aware NO ONE has the legal right to do this. If they claim they have permission, then it can surely only be under the terms of the Contract that was signed when the account was opened. That is, by definition, a 'consumer contract', and therefore, surely, the UTCCR 1999 MUST apply to this (and indeed all other!) claim, and does NOT require a test case in order to resolve the issue. If they claim to have permission to take money from the account from anywhere other than the contract between us, then the Test Case is not relevant to this claim. If they cannot demonstrate that they have permission to take monies from the account, then they must, surely, have acted unlawfully.

 

Any comments would be greatly appreciated.

 

All the very best - Adam

[adamc6671]

Just bumping!

[ohoh4312]

Hi Adam

 

In answer to your first question, I copied this from a sticky:

 

2.A lay representative can represent anyone in court as long as the claimant is also present. The claim must be issued in the claimants name and all documents must be signed by the claimant.

 

In theory you don't have to give the court notice, just inform the court usher on arrival at court. But you can always mention this in 'Other Information' in the AQ or send a brief letter to the court once you have a hearing date. Permission is at the discretion of the court, but is usually granted.

 

Hope that helps.

 

Question 2 I have no idea on! Sorry, but I hope someone else comes through on it for you.

 

Best regards

 

Jo xx

[adamc6671]

Hi Jo

 

Many thanks - greatly appreciated. Will send a brief letter to Court asking for permission. Hopefully the allocation hearing will still go ahead despite Abbey asking for a stay. Will go to Court armed with all I can find to argue against a stay - human rights etc etc, and my arguement in post 46 (above).

 

Anyone any opinion on my Post 46 arguement?

 

All the best - Adam

[adamc6671]

Hi All

 

Have today sent to Court the Witness Statement for the Allocation Hearing on 21st Sept, and also sent it to Abbey regardless of their intention to request a stay on this claim!

 

One question - given Abbey's stated intent to apply for a stay on this case, is it advisable to write to the Court, and to Abbey, in advance of the allocation hearing to object to a stay, or would I be better off going to the hearing armed with the necessary info (3 copies of each document as advised on CAG) in the hopes of catching Abbey 'on the hop'?

 

Also, any comments on the last paragraph of my Post 46 (above) would be greatly appreciated.

 

Many thanks - Adam