GOT A COURT DATE? Important, please read......

[GaryH]

Preparing for Court

 

Its highly unlikely that your claim will get as far as court, but even so, you should still prepare exactly as you would if you knew it was going to - I.e. get a good, solid bundle in ON TIME, and make sure that you know your arguements. Particularly in relation to Lloyds service charge defence. Read this thread -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/81799-issues-raised-llloyds-bank.html

 

What to include in your bundle

 

Clearly this will depend to a certain extent upon which specific directions have been ordered (see this thread), but, IN ADDITION to everything else which you would normally submit, you should include;

 

1) A detailed Witness Statement, which specifically includes arguements which tackle the service charge arguement and "cloaking". The new Lloyds witness statement is now in the templates library, here -

 

Lloyds Witness statement

 

2) Your account T&C's. Ideally those from when the account was opened, and covering right through to the present day. If you haven't got them, attempt to get them from your branch or the Lloyds website.

 

We now have a T&C library up and running. Here -

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/101412-document-library-work-progress.html

 

This is by no means complete though and we still need lots more. Please continue to try to obtain any and scan them to us using the e-mail address in my sig. If a postal address is required please PM me.

 

3) The full OFT report. No need to print out the whole thing, but you do need the front cover, section 1 "overview" and most importantly, section 4.21 "Disguised penalties". You should put this in INSTEAD of the OFT report summary from the Basic Bundle in the templates library.

 

Plus, the OFT report "Anayasis of Unfair Terms in Schedule 2". Particulary relevant is section's 5.8 -

 

Analysis of Unfair Terms in Schedule 2

 

Plus this -

 

Scots Law commission report

 

4) The McNamara interview. The transcript is fine.

 

5) Any correspondance or documents published by Lloyds which refers to their charges as - "Penalties", "defaults", "imposed when you breach your agreement", etc. Check your old T&C's if you have them and include anything which suggests that the charges are imposed as a result of a breach of your account agreement.

 

I have a letter in which Martin Orton states that Lloyds' charges exist - "in order that we can recoup our costs". This was in response to a direct request to justify their charges, and no mention was made in the letter of them being any sort of "service charge". Print it off from here to include in your bundles -

 

Orton letter

 

Here's another letter which refers to Lloyds charges as covering "staff" and "administrative" expenses -

 

Admin Costs p1

Admin Costs p2

Admin Costs p3

 

Simularly, if anyone else finds anything useful such as that, or in their old T&C's, etc, please let me have a copy so I can distribute it for others. Obviously you should block out personal details, and also I am happy to pay any postage costs if necessary.

 

6) Additional Case Law - See the attachments / link at the foot of this post. These are essential for Lloyds claims.

 

When you've submitted your bundle

 

In most cases they will pay around now, but if not, and if they don't submit documents, then on the day of the deadline for submissions (which will be stated on the directions order), you should inform the court of their non-compliance immediately.

 

Send the letter here -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/58011-directions-non-compliance-letters.html

 

Also, if a court date is imminent you should have a good read of the guidance notes.

 

Court guidance notes

 

______________________________________________________

 

Additional case law;

 

http://www.consumeractiongroup.co.uk/forum/cases-library/95231-director-general-fair-trading.html

Bridge_v_Campbell_Discount[1].doc

Dunlop_Pneumatic_v_New_garage[1].doc

[GaryH]

Trowbridge, by any chance?

 

Good order - not quite as good as the draft we propose, but it still requires them to submit things that they would really rather not.

 

They are in default now - send the non-compliance letter.

[GaryH]

You need to get your bundle in by the end of this month - although you may want to hold off for the time being and see what happens. They had to comply with their part by 4 days ago, so I would suspect that they'll pay up pretty soon, or alternatively the judge may even strike out the defence.

 

For now, just send the (second) non-compliance letter to SC&M and to the court. Remove the bit that says "I can confirm my documents were filed and served......" becouse clearly you haven't yet.

 

If they haven't settled by the end of next week then you should start to get your bundle up together.

[GaryH]

"18. However, and without prejudice to paragraph 18 above, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982."

 

am i right in thinking it should be "However, and without prejudice to paragraph 17 above", not 18?

Yes your right - I've corrected it, thanks.

 

and secondly am i right in thinking that the statement of witness should be sent with the court bundle no matter what or does it only get sent if expressly asked for by the judge in the directions

Put it in the bundle no matter what.

[GaryH]

Hi Pen,

 

To be honest I always think its better to get it in early. It saves any last minute rushing around, for one thing, but also a bundle arriving at SC&M might just be the kick up the bum they need to settle.

 

Would you like me to send you the Martin Orton letter?

[GaryH]

Yep, no problem.

[GaryH]

I got into a protracted but ultimately pointless exchange of correspondance with him last year, when I was absolutely fuming about being charged what turned out to be a total of around £200 for being a quid short on a S/O payment. In one letter I directly demanded that he justify Lloyds charges - the response mentioned nothing of service charges, only that the charges are to recoup their costs. This is obviously a pretty significant contradiction to the usual party line and so it makes a useful addition to a court bundle.

 

PM me your e-mail and I'll send you a scan if you like.

[GaryH]

Hi GaryH

 

Sorry to jump in, but I submitted my AQ with draft order of directions, and now have a notice of a pre trial review on 7th June (Cambridge). Do I need to prepare the bundle for this court date, if not is there anything else I need to prepare?

 

Thanks

Soc

Sorry Soc, I missed this somehow.

 

No need for a full bundle. Treat it as a prelim hearing - http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html#post553523

 

You could send the draft order to Lloyds to be agreed in advance of the review. They will probably not respond, but it may prompt them into settling or at very least it'll show the court that they're uncooperative. See this thread - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/40192-maryt-lloyds-trying-get.html#post424100

[GaryH]

Bumpty-bump!

[GaryH]

Bump

[GaryH]

I have requested it as a sticky.... I think I might have reached my "quota" though:rolleyes:

[GaryH]

PM me your e-mail address, I've cleared some room.

also i was given all of 2 days notice by a court to file my bundle!!! can you believe it?

Very strange. If your not going to make it in time call the court - I'm sure they'll grant you an extention under the circumstances. Having said that, if its the standard small claims directions then a day late won't hurt.

[GaryH]

Referring back to this in post #1;

Simularly, if anyone else finds anything useful such as that, or in their old T&C's, etc, please let me have a copy so I can distribute it for others. Obviously you should block out personal details, and also I am happy to pay any postage costs if necessary.

Has anyone had a look at their old T&C's, etc? It would be very useful if we could compile some material which contradicts the "no breach" argument.

[GaryH]

I'd hold off on the bundle for the time being if I were you. You've got at least a month before you need to think about that. I can send you the letter though, all you need to do is click on my name, it'll take you to my profile where there's a "send personal message" link.

[GaryH]

Is the extra point this ?

Furthermore,the claimant's claim appears to be misconceived in that the Claimant is seeking a refund of overdraft interest. There is no claim for refund of the authorised rate interest as it is contractually due and is a core term of the agreement between the bank and the claimant.As such the defendant denies that they are indebted to the claimant for the sums claimed under this heading.

The defendant will rely on the case of Emerald meats (London) Ltd.-v- AIB Group (UK) Plc [2002] EWCA Civ 460, which is authority for the proposition that a customer entering into overdraft arrangement could expect to pay interest on the basis of the standard practice adopted by the Bank

If so, what interest are you claiming?

 

Also, you do not counerclaim. You are the claimant, the defendant would be the one to counterclaim if at all.

 

You don't need to reply to the defence if thats what you mean, just press on with the AQ, if you've got one.

[GaryH]

I have just read the back of one of my statements dated 1999. which states

 

Interest rates and limits.

any interest rates on your statement are current. the rates do not take into account of the compounding of interest over the year or of any chargers or fees

 

if your account becomes overdrawn without our agreement or if it goes over your agreed limit we will normaly charge a higher rate of interest-Lloyds TSB unarthorised borrowing rate+plus any fees for unauthorised borrowing.

 

How can that say that is not a penalty. if it's not a penalty why bother with the compounding higher rate of interest. maybe I will also include this with my court bundle if they hit me with arguments over CI

 

Gary is this the sort of thing you are looking for if so as soon as i can get at my old paperwork in the garage i will look to see what i can come up with

 

Yes, definately. What they discribe there is a penalty. They're penalising you for exceeding an agreed (contractual) limit. If you could e-mail it to me Pen then, and anything like it, that would be great.

I've checked my son's statements going back to 2001 but nothing is on the back. Not sure if this helps at all which I found on a letter dated in March 2001. It reads as follows:

 

When you borrow more than your agreed limit, we automatically charge interest at the highter Lloyds TSB Unauthorised Overdraft rate.

Dealing with unauthorised overdrafts involves us in extra costs. And when we have to deal with your account in circumstances like this there is a charge of £10, which we debit from your account.

Yes, again this might be useful too. They are referring to extra costs involved when you exceed your limit again - therefore this IMO would make the argument for disclosure even stronger.

 

This bit is very good -

We charge this fee each time your account goes over the agreed limit by £10 or more - and on each day your overdraft goes up by a further £10 or more. These charges continue until your overdraft goes below the agreed limit.

The charge is used to coearce or threaten you not to exceed your OD limit. Therefore the charge is held "in-terrorem" - I.e. its a penalty!

 

Can I have a copy if I send you my e-mail address, or address if you haven't got a scanner? Block all the personal details out though.

 

I have a letter in which Martin Orton states that Lloyds' charges exist - "in order that we can recoup our costs". This was in response to a direct request to justify their charges, and no mention was made in the letter of them being any sort of "service charge". Please PM me with either your address or your e-mail address and I will post/send this to you to include in your bundles.

 

Thanks for the copy Gary.

Do you think we should highlight the "recoup" sentence so that it stands out for the Judge to clearly see it or is that deemed not necessary?

Can do, although its not really necessary.

[GaryH]

Tis indeed. Thank you.

[GaryH]

To GARYH.

 

4) A detailed Witness Statement, which specifically includes arguements which tackle the service charge arguement and "cloaking". See the post below.

 

Apologies for my ignorance in this - but I take it I am the witness here?? So all my details should be included in the example letter you have shown?

 

Thanks

Yes, you are a witness.

 

Hi Gary, I'm new to this site and just reading through posts, I have filed a claim with MCOL, Lloyds have filed their defence so I am now just waiting to hear from the court, do you know on average how long this takes. Also I don't live in England, I used my mothers address in England to file my claim, do I have to appear in person or is she able to represent me? Any comments would be appreciated. Thanks:confused:

Have you recieved an allocation questionnaire along with a copy of the defence? If not you'll get that next.

 

See these threads -

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

http://www.consumeractiongroup.co.uk/forum/general/57708-draft-order-allocation-questionnaires.html

 

You also need to have a good read of the FAQ's and step by step instructions;

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/24031-frequently-asked-questions.html

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31460-example-step-step-instructions.html

 

then start your own thread here -

 

http://www.consumeractiongroup.co.uk/forum/newthread.php?do=newthread&f=11

[GaryH]

Hi Pen,

 

Thanks, I'll send you my address.

 

Yes, charges on loans are also reclaimable, assuming they're late payment charges, etc (you know - the usual 'default' type ones).

 

Glad to hear you got the bundle off ok - at least you'll be able to just send of pretty much a duplicate next time.

[GaryH]

Leeds I take it?

 

First of all you need to start a thread - http://www.consumeractiongroup.co.uk/forum/newthread.php?do=newthread&f=11

 

Post the order up in full and someone should be along to help you:)

[GaryH]

No, not for a prelim - you don't need a bundle.

 

There are a couple of bits and pieces you should take, see this thread (top bit) -

http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

[GaryH]

Hi John,

 

Not essential I don't think - Barclays don't specifically defend on the basis that the charges are a service - but its still useful to include. Just add section 4.21 alongside the summary.

 

No need for a statement of evidence, but it would be advisable to include a witness statement. Use the one in this thread amended to suit.

 

HTH

[GaryH]

No problem.

[GaryH]

Yes, the date you sign the statement.

 

Ooops! Yes, so it should! I'll change it now, thanks.

[GaryH]

'Tis correct.