Angry Cat V Morgan Stanley **WON AT LONG BL**DY LAST!!!**

[angry cat]

Hello-

 

Please can a Legal expert help me!!!

 

I have to complete my Allocation Questionnaire tomorrow against Morgan Stanley.

 

I have posted their Defence under my thread angry cat v morgan stanley, which is listed under Other Institutions.

 

The Morgan Stanley Defence relies upon authorities such as :-

White and Carter (Councils) Ltd v McGregor (1962) AC 413, Export Credits Guarantee Department v Universal Oil Products Co and Procon Inc and Procon (Great Britain) Ltd (1983) 1 WLR399, Indian Airlines v GIA International Ltd (2001)EWHC 2361 and Jeancharm Ltd (t/a Beaver International) v Barnet Football Club Ltd (2003) 92 Con.LR26 in this respect.

 

Can you inform me why MS rely on these authorities/cases?

 

Obviously, I am concerned about going to Court against MS is I am uncertain about the relevance of the cases that they rely upon.

 

Please help me.

 

Thanks

 

angry cat

[jonni2bad]

There are notes for completing the AQ's HERE

 

Check the number of the form you have been given, it should either be N149 or N150. The biggest difference between the two is the number of sections to complete (N150 being slightly more in depth).

 

If you have the N149, under section G (Other information) you should ask that the court orders Standard Disclosure

 

"I would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. I understand that it is in the courts discretion to do so. I believe such an order would bring a rapid end to this litigation."

The same can be entered in Section F of the N150.

Have a read through the whole thread so that you can gain some understanding of the forms and their use.

I am unable to help with the other issues of yur thread.

[angry cat]

Hi Jonni2bad-

 

Thank you for your reply-

The form is an N149 and I have looked at the advice on how to fill the form out.

I will do my best.

 

Obviously though I am extremely worried about the relevance of the cases / legal authorities that MS are reliant upon....!?

 

Hopefully someone out there in the BAG ?

will assist.

 

Re: the other issues, I have today made a formal complaint to the OFT through their Consumer Direct arm at the DTI and tomorrow I intend to telephone the FSA to make a complaint about MS.

 

Finally and once again, can a Legal Eagle help me with the relevance of the 'Authorities that MS are reliant upon'

 

Thanks

 

angry cat

[alanfromderby]

From what I recall seeing elsewhere these cases are mostly business related and certainly don't do anything to prove their case. It is flannel, and should be treated as such.

[angry cat]

Thank You Alan !

 

I hope that you are correct....

 

Anyhow I will submit my Allocation Questionnaire - N149 tomorrow and then start praying LOL

 

Having said that I really am not comfortable about going to Court without knowing the relevance of these cases, that MS are reliant upon.

 

angry cat

[nicsussex]

White & Carter case as follows - don't know if this helps!

 

Where a party is in renunciatory breach of contract, the other party is not bound to accept the breach and sue for damages, but may perform its own obligations under the contract and claim what is due under the contract.

Lord Reid: "The general rule cannot be in doubt. It was settled in Scotland at least as early as 1848 and it has been authoritatively stated time and again in both Scotland and in England. If one party to a contract repudiates it in the sense of making it clear to the other party that he refuses or will refuse to carry out his part of the contract, the other party, the innocent party, has an option. He may accept that repudiation and sue for damages for breach of contract, whether or not the time for performance has come; or he may if he chooses disregard or refuse to accept it and then the contract remains in full effect."

As an exception: "It may well be that, if it can be shown that a person has no legitimate interest financial or otherwise, in performing the contract rather than claiming damages, he ought not to be allowed to saddle the other party with an additional burden with no benefit to himself." Here the contract-breaker could not take advantage of the exception: "Here the respondent did not set out to prove that the appellants have no legitimate interest in completing the contract and claiming the contract price rather than claiming damages; there is nothing in the findings of fact to support such a case and it seems improbable that any such case could have been proved. It is, in my judgment, impossible to say that the appellants should be deprived of their right to claim the contract price merely because the benefit to them as against claiming damages and reletting their advertising space, might be small in comparison with the loss to the respondent…."

Lord Keith said that absent express agreement, an action for the price arises only in two cases. First where the property in the goods has passed to the buyer, and: “The only other case is where parties have contracted for payment on a day certain, irrespective of delivery or the passing of property. This is a clear case of a contractual debt unconditioned by any question of performance by the other party.”

[nicsussex]

Having re-read this - not sure that a) it is very helpful and b) even relevant to the claim you are making - seems like a bit of a smokescreen to me!

[StudentInDebt]

Does relying on this particular piece of case-law in their defence not mean that they are accepting that a breach of contract took place?

[BotB]

angry cat,

 

Stop losing sleep over those cases. MS legal dept. probably had their trainee solicitor working overtime reading the All England Law Reports to come up with those. I've read your other thread with the MS defence, by the way.

The District Judge hearing your case will want to know what relevance the cases have too. And he won't be sitting in his office looking them up. MS will have to do more than just say they "rely" on them.

 

What you need to keep in mind is that the MS lawyers are relying on bluff, brinksmanship, psychology and plain old fashioned bullying to try to head you off.

Do not believe for a moment that they are going to produce any evidence to demonstrate their charges equate with the "loss" they have incurred on your account. They know they can't justify them - the banks don't want a "test case" because then the game is really up. The people using this site and others to help them reclaim charges are still a small percentage of customers who get stung by charges. They would rather cough up for those few people than have a judgement against them where findings have been made on their charging structures. Why is it do you think, that not a single bank has allowed the Court to adjudicate on this? The first one that does will have shot the entire banking industry in the foot.

 

Where you do need to be careful is, if I have read your other thread correctly, in getting your own case quickly settled now (without strings) as I believe there is just the matter of the Court fee of £50 they have not included in their offer which otherwise amounts to full repayment?

 

I think you should write to them requesting confirmation that their offer is increased to include the Court fees to which you are entitled and whilst you are prepared to accept their offer without admission of liability, the terms and conditions sought to be imposed by their letter of [date] are unreasonable and not acceptable.

 

Think of rugby and the maori chanting! You are getting the legal version! Its highly effective in scaring people off especially if they don't have access to lawyers to chant back!

 

Keep us informed won't you?

[Bookworm]

6 threads merged. Could you please keep all of your queries and updates on the one thread? It would make life easier for everyone if they don't have to go hunting for your info all around the forum, and ultimately helps you. Thanks.

[Bookworm]

Right, now all threads have been joined, things become clearer, and I am sorry to say that some vital info seems to have been missed because of that.

 

What I can see is that they made an offer of settlement in full?

My original claim was for £388.20 which included the penalty fines and the interest that was charged on each fine, from each fine date plus £58.2956 County Court Act 8% interest and my £50 County Court issue fee.

 

Morgan Stanley is prepared to credit your account with the sum of £388.20 in respect of your Claim without any admission of liability on their part provided that you agree to the following Settlement Terms.

 

Yet, you:

Obviously I have rejected derogatory offer

 

???

 

They have made offer of settlement. The only ground for you to refuse at this stage is on the fact that they have tried to impose conditions on YOUR claim. Apart from that, I fail to see what the problem is?

 

My suggestion would be that you immediately respond by saying that you will accept full UNCONDITIONAL settlement, and that this only will result in you withdrawing your claim.

 

EDITED:

 

From Litigation in progress:

£446.495

How have amounts changed? More charges added between letters and filing?

Regardless of the above:

Offer of Settlement

 

Further to your letter of 2 July 2006, we are prepared to offer you £446.50 in full and final settlement of the Claim. This offer is made without prejudice except as to costs.

 

Again, why aren't you attempting dialogue? At this point, all you have to say is you accept the money, but not the conditions and you have WON! So why are you tearing ahead towards court? Am I missing something here?

 

.

[angry cat]

Thank you everyone for the assistance and....

Bookworm thank you as well but-

 

I am not tearing ahead toward Court!

 

Morgan Stanley will not pay my County Court issue fee of £50.00

 

You are correct that the charges uncluding interest add up to £388.20 plus the CCA 8% interest = £446.4956.

However the conditional offer that MS have made is for £446.50 and I requested that MS refund the value of my entire claim which includes the £50 County Court issue fee.

Surely I am entitled to a refund of the £50 that it cost me to issue my claim !

 

angry cat

[surreyscouse]

Hi Angry Cat,

 

This is quite simple if you ask me. Write back to MS solicitors and inform them that you will accept what they have offered plus the £50 court fee without any conditions. They will buckle, for the sake of £50 they still won't want to go to court and almost certainly for nearly £500 (a paltry amount to them) they won't want any details of their fees coming out in court.

 

You are on to a winner here, just stick to your guns and they will settle as above in no time ! You'll be fine

[Bookworm]

Quite right, you are. But your previous post indicated: "My original claim was for £388.20 which included the penalty fines and the interest that was charged on each fine, from each fine date plus £58.2956 County Court Act 8% interest and my £50 County Court issue fee." which was somewhat misleading.

 

So my previous advice still stands: Write to them reiterating that you will cancel your court action on full unconditional settlement of your claim, including interest and County Court fees. Dont let them try and bully you in accepting their terms. You are suing them, NOT the other way round, as they have a habit of forgetting.

 

If you need inspiration in what to send, have a look at Mjanet's thread and feel free to copy away! lol

[angry cat]

Hi Surreyscouse and thanks for your advice-

 

Yes, I will write to the MS Law Dept today-

but I have to submit the Allocation Questionnaire and there is no time to wait for MS to reply.

 

Therefore, do I just go ahead and submit the AQ or should I submit it but complate section A entitled Settlement and tick the box YES that I wish the claim to be postponed for a month?

 

angry cat

[surreyscouse]

I would personally. This would give MS solicitors more than enough time to respond to your letter to them. if they don't then see them in court (can't see that happening though !)

[Bookworm]

Submit the AQ. It won't cost you anything and will not allow them to wriggle out on a technicality. You can cancel your claim at any time, so just do it.

 

It occurred to me as well that when you contact them, you demand in very uncertain terms that they immediately desist with their retaliatory action in defaulting you, and that if you have to go to court, you will have no hesitation in bringing their attempts at intimidation to the attention of the judge, and leave it to him/her whether the timing was sheer coincidence.

[angry cat]

Hi Bookworm

 

sorry if I confused you !

 

I will write to MS today and I will also submit the AQ.

 

You know, I almost accepted the MS offer and even considered keeping the matter confidential but they have and are being so unfair to me!!!!

Morgan Stanley know full well that I am in Dispute with them and I even sent them a Notice Pursuant to section 10 of the Data Protection Act.

They have intructed two DCA's and I have made a formal complaint to the OFT.

 

Their actions have been really unfair and it seems as though the left hand doesn't know what the right hand is doing at MS

 

I am very angry with them-

 

However, I will get on now and write the necessary letters.

 

Thanks

 

angry cat

[Bookworm]

Cool. Keep us posted.

[angry cat]

Thank you so much Guys for all your help, support and advice-

 

A special Thanks to Jonni2bad for help with filling out the Allocation Questionnaire and to Bookworm for the good advice.

 

I have just returned from the post office and the AQ has been sent off to the Court also I have mailed the letter to MS Law division, hopefully the letter is good enough!!?

My letter is a follows:-

 

"WITHOUT PREJUDICE

 

Thank you for your letter dated 05 July 2006.

 

I will reiterate that I was forced to issue Court action because Morgan Stanley failed to pay ALL the monies that are owed to me. I will not withdraw the action until Morgan Stanley has paid the total amount of the Claim including section 69 County Courts Act 1984 interest and the County Court issue fee of £50.00. May I remind you that my Litigation was entered into, is a result of your previous failure to enter into a sincere dialogue with me to resolve my dispute.

 

However, I am prepared to cancel my Court action on full UNCONDITIONAL settlement of my claim, including interest and my County Court fees to which I am entitled. Whilst I would be prepared to accept the full settlement of my Claim including the £50.00 County Court issue fee without admission of liability, the terms & conditions sought to be imposed by your letter 05 July 2006 are unreasonable and not acceptable.

 

Furthermore I demand that you immediately desist with your retaliatory action in defaulting me and that if I have to go to Court, I will have no hesitation in bringing your attempts at intimidation to the attention of the judge, and leave it to him/her whether the timing was sheer concidence.

 

In closing and again as mentioned, I am willing to accept the figure of £496.50 in settlement ot this Claim with no other terms implied with this acceptance. No more, no less.

 

Yours

 

angry cat"

 

I will also send another letter of complaint to MS tomorrow quoting sections 2.6 and 2.8k of the OFT debt collection guidance. basically because they have been bandying the debt around between two DCA's without advising me, also for not ceasing debt collection activity whilst the value of the debt is in dispute.

 

Okay- wish me luck

 

Thanks

angry cat

[angry cat]

Hi Guys!

 

I keep on thinking about the cases/authorities that MS are reliant upon? and....

I wonder if, because approximately 10 (but not all) of the penalty fines were levied on my account whilst I had a PPI insurance claim in place. There was no continuity between the MS chosen insurer and MS, therefore the insurance payments were often late going into my account - thus the penalties. Could it be that MS are quoting these cases because they are trying to load the blame onto their contracted insurer?

what do you think?

 

Anyhow, because MS are being totally unfair to me and have instructed 2 DCA's to pursue me I have sent the following letter, plus a copy to the latest DCA- Buchanan Clark & Wells-

 

"Aileen Johnston

Customer Liaison Office

Morgan Stanley

Consumer Banking International

PO Box 2598

Glasgow

G68 9YW

 

WITHOUT PREJUDICE

 

Dear Ms. Johnston

 

COMPLAINT RE: ACCOUNT XXXXXXX

 

I am writing this formal letter of Complaint to you because I am of the opinion that Morgan Stanley Bank have and are treating me unfairly.

 

I have exercised my "Right" in asking for a refund of the Unlawful Penalty Charges that were levied on my account together with the Penalties associated interest. Since making my complaint that requested the repayment of charges dated 15 April 2006, I have kept Morgan Stanley fully informed. Together with the fact that on the same day 15 April 2006 I wrote an additional letter to Morgan Stanley's Customer Care department, this was in ralation to a 'Notice of Default' from Ms. Bennion customer cate assistant.

 

My letter to Morgan Stanley's Customer Care department dated 15 April 2006 clearly conveyed my Dispute 'I am concurrently pursuing a complaint that may lead to legal action' 'I request that Morgan Stanley freeze any action against me. I formally advise you, that I am making a record of this request, so that should Morgan Stanley continue with their actions against me and I incur a Default or any additional costs in the interim I will petition the county court for those costs and reversal of any Default registered' 'It is very clear that the amount owed is in dispute.

 

I also referred Morgan Stanley to The Banking Code Section 13.6 of which Morgan Stanley is committed to adhere to-

 

We may give information to the Credit Reference Agencies about personal debts you owe us if:

 

The amount owed is not in dispute.

 

The office of Fair Trading provides a Code of Guidance that is in relation to debt collection: OFT 664: Response to consultation paper and final guidance on unfair business practices dated July 2003

 

Physical/Psychological harassment

 

2.6 Examples of unfair practices are as follows:

e. not informing the debtor when their case has been passed on to a different debt collector.

 

2.7 Dealings with debtors are not to be deceitful and/or unfair

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

On the 24 May 2006 I received a letter dated 19 May 2006 from Ms. Bennion whose title is now pre-litigation department 'You have not complied with the terms of the Default Notice and as a result your account has now been closed'.

 

As you know, I wrote to you on 23 May 2006 and your subsequent reply was dated 30 May 2006. However, one of your remarks puzzled me 'In view of the value of our continuing relationship with you'. Clearly Morgan Stanley does not value our continuing relationship because you have closed my account and the very next day 31 May 2006 I received a letter from Shoosmiths solicitors/recovery agent that Morgan Stanley had instructed demanding £5,665.65. I enclose a copy letter that I had sent to Shoosmiths for your information.

 

I was then contacted by yet another recovery agent that had also been instructed by Morgan Stanley, namely Buchanan Clark & Wells. Your additional instructed recovery agent BCW sent me a communication pretending to be something that they are not The Telegrame Bureau - Urgent Message - Start of message - please call Adam Wedderburn on 01789 203 727 ext 1888. Stop. - End of message.

 

Lastly, because you are treating me so unfairly, your deceptive and/or unfair methods/practices, your failure in your 'Duty of Care' to me a long term customer of Morgan Stanley. I have had to make a formal complaint to The Office of Fair Trading.

 

Yours sincerely"

 

angry cat

[BotB]

I keep on thinking about the cases/authorities that MS are reliant upon? and....

Could it be that MS are quoting these cases because they are trying to load the blame onto their contracted insurer?

what do you think?

 

 

We've already told you. Its all froth. Stop worrying. You think anyone would have got a bean out of these banks if all it took was quoting a handful if commercial law cases? They've already caved in, all you're arguing about now is £50 court fees and whether they can impose some ridiculously petty conditions.

[Bookworm]

Oh, and STOP saying "without prejudice" on top of your letters. If it ever got in front of a judge, you DO want to be able to show them, which by stating "without prejudice", you are effectively stopping yourself to do so.

[angry cat]

Okay BotB-

I'll stop worrying...Thanks

 

Bookworm, I write 'Without Prejudice' on the letters because I am afraid that MS will use my words against me, I know that the legal profession analyses letters, word by word and line by line.

I was of the understanding that in the case of a county court judge, who basically sits as judge and jury, can actually look at documents entitled 'Without Prejudice'.

 

However, I will of course take heed of your wise advice and in future write my letters even more carefully with carefully chosen words and leave out the W' o' P.

 

I will keep you all posted.

 

Thanks

 

angry cat

[Bookworm]

Without Prejudice