lioness v Morgan Stanley ~~SETTLED~~

[lioness]

A claim that I issued at court on 13 September 2006 and settled on 12th October 2006.

Will date each post as it happened.

[lioness]

13th September 2006

claim started today at MCOL against Morgan Stanley.

This one's a biggy (by my standards anyway). £764.52 charges and interest, £158.81 county court interest, £80 court costs.
TOTAL £1,003.33.

[lioness]

15th September 2006

Notice of Issue of claim received from court. Defendant has until 3rd October to reply.

[lioness]

20th September 2006

Morgan Stanley acknowledged claim online at MCOL today. They have 28 days to reply from date of service, which takes us to 17th October.

[lioness]

22nd September 2006

letter from Morgan Stanley (Victoria Maschio, Law Division) confirming that they intend to defend the claim, that they disagree with my legal analysis, but "nonetheless" hoping that I can "resolve my claim more amicably and quickly by following this procedure than by court proceedings, especially given my continued custom, the value of my claim and the simplicity of the issue in dispute. Morgan Stanley are prepared to credit my account with £1,003.33 in respect of [my] claim without any admission of liability on their part provided [I] agree to the settlement terms:"

1. the offer is accepted in full and final settlement of my claim and the subject matter (including any future claim against Morgan Stanley in relation to default charges applied in accordance with the T&C) costs and expenses.

2. I sign and date a copy of this letter confirming my agreement and return it to Victoria Maschio

3. I write to the court within 2 days of accepting the offer informing them that I have reached settlement with MS and that I wish to withdraw in its entirety the claim I have brought

4. Send a copy of that letter to Morgan Stanley

5. The details and terms of the offer together with any prior discussions or correspondence related to my claim remain confidential between myself and MS.

This offer is available for acceptance up to and including 4pm 4th October 2006."

[lioness]

25th September 2006 my reply

Dear Ms Maschio

Thank you for your letter of 20 September 2006 in relation to my claim.

I too am hopeful that settlement can be reached between us.

Nevertheless, it remains my view that the money (subject of this claim) is legally mine and as such you are not in a position to impose “terms� on me for its repayment. My terms are quite simply that you send me a cheque or a bankers draft (please do not credit my Morgan Stanley account) to fully satisfy my claim. When the cheque has cleared I will withdraw my claim at court and notify you of the same. I see no justification for this to remain confidential between us.

[lioness]

29th September 2006 their reply

Dear lioness

WITHOUT PREJUDICE SAVE AS TO COSTS

T/y for your letter dated 25 September.

Morgan Stanley are prepared to make a payment of £1,053.33 [so she's throwing in an extra £50 for my silence!] in respect of your claim without any admission of liability on their part provided that you agree to the following settlement terms.

The letter goes on to include the same terms as before - except that she's changed the bit about writing to the court within 2 days of accepting the offer to writing to the court as soon as the payment has cleared in my account.

Offer available for acceptance up to and including 4pm 12 October. Still wants to credit my MS account and agree to no future claims against MS and confidentiality - THEREFORE I CANNOT AGREE!

[lioness]

10th October 2006 my reply

Dear Ms Maschio

County Court Proceedings (claim no. xxxxx)
Account no. xxxxxxxxxxxxxxxx

T/y for your letter of 28/9/06

As at today's date I will accept a cheque of £1,007.75 to withdraw my Claim. May I remind you that I am claiming county court interest, which should be added to the above figure for each further day that it remains unpaid, at a daily rate of 17 pence.

In order to prevent a future action for the penalty charge of £12 debited to my account on 22/9/06, you may consider it economical to refund this at the same time.

When the cheque has cleared I will withdraw my Claim at court and notify you of the same. I do not agree to your settlement terms and I consider that they would not be granted should this go to a court hearing.

Y/S
lioness

[lioness]

12th October 2006 their reply

Dear lioness

Without prejudice etc..

"Morgan Stanley are prepared to make a payment (by cheque) of £1,019.92 in respect of your claim. This includes county court interest to date [yep, she's even added on one days worth since I wrote!] and, as a gesture of goodwill, a refund of the £12 fee applied to your account on 22/9/06."

Terms - I will sign and date a copy of their letter and return it, I will write to the court as soon as payment is cleared in my account withdrawing my claim and send a copy to MS counsel.

Nearly there.......come on cheque.......

[lioness]

12th October 2006 my reply

Thank you for your letter of 11/10/06.

I enclose a signed and dated copy of your letter of 11/10/06 confirming my agreement to the payment offered.

I look forward to receiving a cheque by return and thank you for resolving this to my satisfaction.

[lioness]

17th October 2006 their DEFENCE

THE DEFENCE

1. Defendant denies that it acted improperly or unlawfully - specifically that it debited the account unlawfully or in breach of the claimant's rights in respect of the account.

The Agreement

2. Claimant applied for c/c on xx date. Claimant signed credit agreement confirming agreement to be bound by the terms and conditions of the MS credit agreement (copy attached)

3. The Agreement entitles the defendant to charge default fees if the claimant commits breaches of the Agreement (CURRENT terms and conditions attached)

4. Reasonable steps were taken to bring the fees to the claimants attention during the course of the claimants application for a MS c/c.

The fees

5. Claimant breached the Agreement 24 times between xx date and xx date as described in the attached schedule ("The Breaches").

6. Defendant admits that 24 default fees were debited to claimants account by the defendant between xx date and xx date in respect of the breaches.

7. In each case the defendant was authorised by the claimant to debit the fees in respect of the breaches pursuant to the Agreement

8. It is denied that the fees are penalties or otherwise unenforceable

9. The fees represent a genuine pre-estimate of the loss that would be suffered in the event of a breach of the Agreement by the defendant. Defendant has at all times complied with its obligations under the Agreement by continuing to provide credit facilities and associated services to the claimant, including an online account centre, access to customer service representatives, convenience cheques and other services. The defendant will rely upon authorities such as

a) White and Carter (Councils) Ltd v McGregor (1962) AC 413
b) Export Credits Guarantee Department v Universal Oil Products Co and Procon Inc and Procon (Great Britain) Ltd (1983) 1 WLR 399
c) Indian Airlines v GIA International Ltd (2001) EWHC 2361 and
d) Jeancharm Ltd (t/a Beaver International) v Barnet Football Club Ltd (2003) 92 Con.LR 26

in this regard.

10. Further or alternatively the fees are not unreasonable, extravagant or unconscionable when compared with the losses, costs and other expenses that were incurred by the defendant as a result of the breaches. The defendant will produce evidence of its losses, costs and other expenses in support of this position. Accordingly the fees are properly recoverable as liquidated damages.

Statement of Truth & signature

Attachments

1. Schedule of fees and breaches
2. Copy of application form
3. Current terms and conditions and credit card agreement regulated by the Consumer Credit Act 1974

[lioness]

19th October 2006

Cheque received from Morgan Stanley (Glasgow - Paul Mulholland) today!!! All in order (£1,019.92 including county court interest to 11/10/2006). Also very nice letter - last paragraph "Thank you for taking time to provide us with your comments. We do take customer feedback on board as an integral way to improve our procedures and products."