Allocation Questionnaire

[Ultravox]

I have a claim against the Halifax, registered with HMCS Money Claim online. My local court (Gloucester) has sent an allocation questionnaire which will expire on 7th December, after which - unless I respond - the case will be struck out. Any point in returning it at this stage?

[EXC]

Re: Allocation Questionnaire

When did you first register your claim with Money Claim Online?

[Amethyst]

Re: Allocation Questionnaire

And is it bank charges or credit card charges ? I assume by the 'any point' comment its bank charges - in which case YES it is worth completing and returning to stop your case being struck out. WIll need to see your original Particulars of Claim entered on MCOL too.

[Ultravox]

Re: Allocation Questionnaire

Thanks for both of these replies. Yes, it is bank charges and I lodged it two weeks ago in anticipation of a favourable outcome at the Supreme Court:cry:! The Particulars of Claim was a template downloaded from another site, used when I successfully claimed against another building society, but does not refer to Reg. 5, in case you were wondering ... I'm having problems viewing the POCL on MCOL.

[Amethyst]

Re: Allocation Questionnaire

Cool. Yes you still want to get your Allocation Questionnaire in, have you had an acknowledgement / defence from the Bank yet ? Bit fast to have received an AQ if u only claimed two weeks ago really and they havent given you much time. On MCOL does it have any info about acknowledgement/defence ?

If you tell us which site or link us to the template we can check out what it was you entered.... (we're not adverse to the odd link)

Basically we'll need to amend the POC to reg 5 so can ask for permission to do that and submit the new extended one alongside the AQ.

[Ultravox]

Re: Allocation Questionnaire

Original POCL states:
"The Claimant has had a c/a [...] with the Defendant, conducted on their standard T&Cs since [...]. The Defendant from [...] to the present day has applied charges to the CLaimant account, totalling not more than [...<£2000] over the past six years. The bank's charges are a disproportionate penalty and therefore unenforceable. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop, etc., along with Murray, etc. The Defendant's charges are also contrary to the Unfair Terms in Consumer Contract Regulations 1999, para. 8 and sch. 21 (1) (e). The Claimant has asked the Defendant to refund their charges, etc."
Sorry for abbreviations, but wanted to keep it short.

[Amethyst]

Re: Allocation Questionnaire

Okay with that POC the claim could be at risk of being struck out so I suspect thats why you have an AQ so early, you need to ask to amend the POC's and remove the penalty argument (dunlop etc) asap and add in more on UTCCR and 5.1, we can use the AQ to do this.

Okay the AQ (N149)
A - Yes (postpone for a month to discuss settlement - give you a bit of breathing space to see what the OFT intends to do regarding the test case basically)

B - straightforward - your local court if its not there already.

C - small claims track - YES

D - 0

E - no

F - straightforward

G - Other information - here you can attach 'further particulars of claim' as MCOL space is short (then if they want you to go the formal route you can do an N244 aplication following) also any other information you require from the bank - eg. have you got statements / breakdown of the charges etc. So will consider wording on that while I get a revised POC sorted for you.

H - yes, unless you are exempt but you tick yes anyway and attach an EX160 if you are

I - sign it.

[Amethyst]

Re: Allocation Questionnaire

Original POCL states:
"The Claimant has had a c/a [...] with the Defendant, conducted on their standard T&Cs since [...]. The Defendant from [...] to the present day has applied charges to the CLaimant account, totalling not more than [...<£2000] over the past six years. The bank's charges are a disproportionate penalty and therefore unenforceable. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop, etc., along with Murray, etc. The Defendant's charges are also contrary to the Unfair Terms in Consumer Contract Regulations 1999, para. 8 and sch. 21 (1) (e). The Claimant has asked the Defendant to refund their charges, etc."
Sorry for abbreviations, but wanted to keep it short.

To word section G of the AQ I need to know if you did get a list of charges off the bank originally, I'm thinking no as you have claim an amount not over £2k on that POC, if so we need to ask for that and amend a bit of wording of the following as you'll have no schedule of charges or final amount of claim.

This is an outline of a POC which you will need to replace your original POC with. I'll get someone else to double check it all make sure I havent missed anything obvious. I'm not sure on para 7 may want something adding like moore-bicks note to courts following HC judgment ( ''there is much to be said for continuing the existing stays pending a decision by the House of Lords and/or the outcome of the investigation by the OFT.” )

This is used at your own risk and has not been independently checked by a Solicitor. Professional standard POCs will be available sometime in the next two weeks and you will be able to amend if necessary at that point. This should stop your claim being struck out immediately.

In the xxxxxxxxxxxx County Court

MR XXXXXXXXXXXXXXXX
CLAIMANT
and
BANK
DEFENDANT

PARTICULARS OF CLAIM


1: The Claimant held a personal current account, conducted on the Defendant's standard terms and conditions, since XX/YEAR account number ******** hereinafter referred to as “the Account”, maintained at the Defendant's ****** Branch sort code **-**-**.

2. During the period in which the Account (s) operated the Defendant levied various charges to the Account(s) for unauthorised overdraft (list titles of charges you are claiming) hereafter the ''Relevant Charges''

3. A detailed schedule of charges levied is enclosed with this claim. ( use the Legal Beagles stautory interest spreadsheet - Legal Beagles)

4: It is the Claimant's contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 (“the 1999 Regulations”), under Regulations 5(1) of the 1999 Regulations, and by analogy to paragraph (e) of SCHEDULE 2 to the 1999 Regulations:

Indicative and Non-Exhaustive List of terms which may be regarded as unfair

Schedule 2 (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

4) The Claimant accept that the Relevant Charges were debited in accordance with the terms of the contract (“the Relevant Terms”) but contends that none of the Relevant Terms were individually negotiated. Contrary to the requirement of good faith, the Relevant Terms under which the Relevant Charges have been applied are contrary to the requirements of good faith, as they cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the Claimant.

5) In particular, the Claimant submits that the Relevant Terms are unfair because they:

a. were not available to the Claimant in advance, which resulted in the Claimant becoming irrevocably bound to terms with which the Claimant had no real opportunity of becoming acquainted before the conclusion of the contract;

b. require the Claimant to subsidise the running and/or operation costs of accounts other than that of the Claimant.

c. gave the Defendant priority over the Claimant's other debtors with regards to the application and payment of the Relevant Charges to the Account.

d. gave the Defendant control over the use of the Claimant’s salary or benefits, and allowed for the automatic application of the Relevant Charges, with little or no notice to the Claimant.

e. the Relevant Charges forced the Claimant into a cycle of debt, where the Relevant Charges directly or indirectly gave rise to the application of additional charges to the account, without any restriction or limitation.

6) The Claimant therefore contends that the terms are unfair under The Unfair Terms in Consumer Contract Regulations – Regulation 5 para (1 and (2) and as such are thus not binding on the Claimant under Regulation 8.

7) The Claimant avers that following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the defendants or otherwise to generally decide the issues raised by the Claimant in (3), (4) and (5) above. The Claimant therefore contends that it would be appropriate for the Court to apply a general stay in the immediate claim pending resolution of the issues raised.

8) The Claimant has been in communication with the Defendant regarding the disputed amount. See appendix 1 for copy of letter sent to the claimant on **** ***** 2008 , appendix 2 for the claimant’s response on *** *****l 2008, (add in communication in the lead up to making the claim)

9). Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ xxx.xxx(charges total) and any interest charged thereon;

b) Any Court costs incurred by the Claimant;

c) The Claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of charges to (the date you are issuing the claim) of £xxx.xx and also interest at the same rate up to the date of judgment or settlement at a daily rate of £xx.xx per day

Statement of Truth:

The Claimant believes that the facts stated in this Particulars of Claim are true.


Signed:
Dated

[Ultravox]

Re: Allocation Questionnaire

This is fantastic, thanks. All charge notifications have been saved in archives in my on-line account records, so I can print off a list of them? I will have to submit the Allocation Questionnaire by end of today by hand.

[Amethyst]

Re: Allocation Questionnaire

Yes you can print them off from online and may need to get a spreadsheet sorted ref interest etc.