Ladidi v Abbey - settlement offer ** SETTLED**

[Amethyst]

Re: Banks granted unfair charges waiver

I have read all that Cet and I understand that F&F can be overturned and should be automatically by the waiver terms...however I'm not sure about ''in the interests of an early settlement and to ensure a speedy resolution to this claim'' coming from the Claimant. As it isn't intended to be a settlement or a resolution if its not a F&F. I do think backs need covering a little here. The banks don't play particularly nice and I can't see the FSA jumping in.....they hardly jumped in at the major changes to the T&C's and charges which are also prohibited by the waiver.

Re: Banks granted unfair charges waiver

Being blunt about it, I would use a much shorter version, such as the one I posted.

I am not emotionally attached to what I posted and will not be the slightest bit offended if you choose not to use it (not that I would know either way) but my reasoning is as follows.

They will not read anything you send in any great detail and I can assure you that they are also very well versed in the minutiae of the waiver conditions and what they mean in relation to settlement offers now. It is implicit in the waiver conditions that any offers made now will have to be adjusted, should they fall short of what you are due once the test case has reached a conclusion.

Regarding "full and final settlement" this is often found in a letter sent by a party to a contract with a payment or offer of payment in an attempt to settle a dispute between the parties. The cheque, or offer of a cheque is normally for a lesser amount than the disputed sum.

The common view is that if the receiver of the cheque cashes the cheque, or accepts the offer and subsequently cashes the cheque sent then he has been taken to accept the lesser amount as settling the dispute between the parties. A contract having arisen, with the sender proposing the terms of the contract by sending the letter and the cheque/offer, indicating a method of acceptance, that is by cashing the cheque.

This view is incorrect and is supported by previous case law. The correct view is to examine the intention of the receiving party. The intention by the receiving party must be to accept the cheque/offer of payment in settlement/satisfaction of the dispute for there to be a binding contractual settlement of the dispute. In every case, it is a question of fact whether this has occurred or not. (see Stour Valley Builders (a Firm) v Stuart and Another [1993] and The Commissioners of Inland Revenue v Fry [2001])

Given that the waiver expressly sets out that you must be compensated to the full value of any claim, should the test case produce a result that is more favourable to you than any sum they offer in early settlement, then I would consider that mentioning it now is unnecessary – it is already provided for you by the terms of the waiver.

However, timing is key, as Bracken v Billinghurst [2003] showed where an employer, who had been awarded £45,000 as the result of an adjudication, told the building contractor on the other side that it would accept just £6,000 in settlement of this award. The other side decided to send a cheque to the employer for £5,000 in full and final settlement. However, in this case the covering letter stated that if the offer was not accepted the employer should return the cheque. Two weeks passed before the employer cashed the cheque and wrote to the contractor rejecting the offer in settlement and furthermore stated that it would pursue them for the total award. The court held that this was too long a period for it to have held the cheque and not informed the contractor of its intentions. This delay, combined with the clear terms set out in the contractor's letter, meant that there had been accord and satisfaction (i.e. the debt had been settled at only £5,000).

This last case highlights the dangers present in this area and the importance of acting quickly. One cannot treat a sum received as a payment on account without informing the other party of this intention sufficiently quickly.

Therefore, I would accept their offer, with the short version of the email above, safe in the knowledge that the terms of the waiver will protect you against any disadvantage, but also write to them after they have paid you, informing them that you do not accept that the sum they just paid you is in full and final settlement, but that you intend to rely on s.16 a and b of the waiver.

Keep your cards close to your chest, until you have been paid.

[Ladidi]

Re: Banks granted unfair charges waiver

Ok I have tweaked it a bit :tinysmile_twink_t2:

Dear Mr ****

Without Prejudice

I am sending this email in relation to our telephone call we have had today on 23/07/2008 re your offer of 70% of our claim total of £5362.13. As you will be aware this total is to date as of 18/06/2007 when our claim against Abbey was filed into court. We would also like to point out that when you made your offer of 70% you had not taken into account the statutory interest owing on on the £5362.13 which at 23rd July 2008 now totals at £5791.10 including interest due and also my costs of £300.00 and which would not have been payable had your company paid me this sum before we was forced to litigate.


However having had a chance to talk with my husband as I explained in our telephone call and having reviewed the waver terms and conditions we would only consider this as a part payment on account, not in final settlement of our claim.


We would also like to draw your attention that according to the terms of the waiver:-


(16)
if the firm attempts to resolve a relevant charges complaint after 27 July 2007:
The Financial Services Authority
(a) the firm must not seek agreement from the complainant that the resolution is in full and final settlement of the matter;
(b) in relation to such complaints, if the outcome of the test case produces a result that is more favourable to the complainant, the firm must take all reasonable steps to pay any difference in the amount of compensation actually received by the complainant and that that the complainant would have been entitled if his claim has not been settled by the firm then; and
(c) the firm must explain the implications of its approach and commitment;

(15)
to the extent that sums are ultimately to be paid to complainants in respect of relevant charges complaints that have been stayed, the firm must include in these sums an element of compensation in respect of interest charged to or lost by the customer as a result of being out of money during the stay period;


As I have previously said and will reiterate it again, we will accept the 70% offer as part payment with interest totalling £4053.46 and this is not in any way a full and final settlement conclusion. We would also like to draw you to fact that we would like this payment to be made to us by cheque

We shall look forward to hearing from you soon.

[Amethyst]

Re: Banks granted unfair charges waiver

See Cetelcos post above, personally I would combine the two but Cets better at letters lol.

[Ladidi]

Re: Banks granted unfair charges waiver

ok, I have had a go at writing a nice reply..


Dear Mr ****

Without Prejudice

I am sending this email in relation to our telephone call we have had today on 23/07/2008 re your offer of 70% of our claim total of £5362.13. As you will be aware this total is to date as of 18/06/2007 when our claim against Abbey was filed into court.

After having a chance to talk with my husband as I explained in our telephone call and having reviewed the waver terms and conditions we would only consider this as a payment on account, not in final settlement of our claim.


We would also like to draw your attention that according to the terms of the waiver:-


(16)
if the firm attempts to resolve a relevant charges complaint after 27 July 2007:
The Financial Services Authority
(a) the firm must not seek agreement from the complainant that the resolution is in full and final settlement of the matter;
(b) in relation to such complaints, if the outcome of the test case produces a result that is more favourable to the complainant, the firm must take all reasonable steps to pay any difference in the amount of compensation actually received by the complainant and that that the complainant would have been entitled if his claim has not been settled by the firm then; and
(c) the firm must explain the implications of its approach and commitment;

(15)
to the extent that sums are ultimately to be paid to complainants in respect of relevant charges complaints that have been stayed, the firm must include in these sums an element of compensation in respect of interest charged to or lost by the customer as a result of being out of money during the stay period;


As I have previously said and will reiterate it again, we will accept the 70% offer as part payment with interest totalling £4053.46 and this is not in any way a full and final settlement conclusion. We would also like to draw you to fact that we would like this payment to be made to us by cheque

We shall look forward to hearing from you soon.




Has anyone got any thoughts on this???

Re: Banks granted unfair charges waiver

so all in all, all I need is a very carefully and nicely chose email to send off to them accepting their 70% part offer plus interest of course :tinysmile_twink_t2: if I can push enough for it and make it known that I will be wanting the rest at a very much later date when all is concluded :tinysmile_grin_t:

Anyone got any help with that very carefully worded statement I need to fire off to them?

Short and sweet is best, something like this.

Dear

Ladidi -v- Abbey
Claim Number:

Thank you for your email of (date)

Your offer of £xxxx.xx is not acceptable as you have failed to take into account the statutory interest owing on the £xxxx.xx, which today amounts to £xxxx.xx and my costs of £xx.xx. and which would not have been payable had your company paid me this sum before I was forced to litigate.

However, in the interests of an early settlement and to ensure a speedy resolution to this claim I will accept an immediate payment of £xxxx.xx to be made to me at the account details previously provided to you, please telephone me if you do not still have them.


Yours sincerely

Re: Banks granted unfair charges waiver

Hi Everyone,

I dont know wether this is good news or bad news, but here goes.

In light of the banks being given a further waiver, I emailed the Legal dept with in depth conversation/written/emailed letter as to our current circumstances. Anyway, not expecting that much of a good reply except everything on hold blah blah. They got back to me today and offered to settle our case for 65% of the value. The total value when we submitted it to court in June last year was £5362.13 They was offering a paltry £3485.38 we declind this straightway and they made another offer of 70% stating they would not go higher than this, this was their legal person, anyway as I was at work and speaking ont he phone at the time I said I would have reveiw this and talkit over with my husband and would get back to him. I have not been able to do this, but felt the best people to ask would all you loverly people on here

Does anyone have any sound advice for me or what legal terminology I can use to force them to up their offer?

Many Thanks

Ladidi

I think you have received some excellent advice above, but the simple truth is, only you can decide if 70% is enough for you to settle now.

If it is, then take the money, given that as Ame and Budgie have pointed out, if the outcome of the test case (when it is finally concluded) should mean that you have been disadvantaged by accepting this offer, you will be paid any difference in the amount of compensation actually received and that that you would have been entitled if you had not accepted this offer.

In short, you cannot lose.

I think what is very telling however, is that suddenly certain banks seem awfully keen to settle, which speaks volumes for their confidence as to the final outcome.

Finally, do not worry about any guff they send you regarding full and final settlement, should you accept this offer. Full and final settlements are rarely binding and you will have little trouble overturning any such agreement.

[Amethyst]

Re: Banks granted unfair charges waiver

so all in all, all I need is a very carefully and nicely chose email to send off to them accepting their 70% part offer plus interest of course :tinysmile_twink_t2: if I can push enough for it and make it known that I will be wanting the rest at a very much later date when all is concluded :tinysmile_grin_t:

Anyone got any help with that very carefully worded statement I need to fire off to them?

lol go on woman have a bash we can have a play with it later

[Amethyst]

Re: Banks granted unfair charges waiver

Halifax Bank Charges - The Consumer Forums

Do we accept Natwests' offer? - MoneySavingExpert.com Forums


oops sorry got sidetracked will look later xxx if anyone fancies pulling together stuff so we can get a clearer picture espesh off CAG as its a right pest on mis user. apparently theres quite a few on MSE but not being an afficionado on there I get well lost instantly lol.

[Ladidi]

Re: Banks granted unfair charges waiver

so all in all, all I need is a very carefully and nicely chose email to send off to them accepting their 70% part offer plus interest of course :tinysmile_twink_t2: if I can push enough for it and make it known that I will be wanting the rest at a very much later date when all is concluded :tinysmile_grin_t:

Anyone got any help with that very carefully worded statement I need to fire off to them?

[Amethyst]

Re: Banks granted unfair charges waiver

All this stalling and dragging out of this case is a real pain, the only people to benifit are the judges, the FSA, FOS and the banks solicitors. If I get an offer of 50% I will be sure to take it, because at the speed this is going we might not see a conclusion in our lifetimes.

Well the waiver terms say they can't make the offers as F&F so if you accepted ensure the door is open to have the rest paid on conclusion of test case. Whensoever that may be.

[Amethyst]

Re: Banks granted unfair charges waiver

Hmmm well what bud said (and he'll correct me later I am sure lol) was that the FSA have an good inkling of the judgement to come and of course as the banks have had to input of the PIL revisions etc thats going into the court later this week (25th? I think) they have a fair idea too - so the waiver expects further appeals (ie why its going on to January when the appeals are in Oct) so doesn't sound good to banks and the FSa maybe putting pressure on the pay out hardships as they are getting so much poo over it. (lol sorry bud thats not what you said at all but its in Ame language)

Anyway going to have a read about some other places, see what terms are being stuck on these offers etc.

[Happyolddog]

Re: Banks granted unfair charges waiver

All this stalling and dragging out of this case is a real pain, the only people to benifit are the judges, the FSA, FOS and the banks solicitors. If I get an offer of 50% I will be sure to take it, because at the speed this is going we might not see a conclusion in our lifetimes.

[Ladidi]

Re: Banks granted unfair charges waiver

I reckon there is something in the air or something is very definitely on the horizon :tinysmile_twink_t2:

[Amethyst]

Re: Banks granted unfair charges waiver

Rightio Ladidi, just been talking to Bud on phone as he's had to go out. You want to have a go at a letter asking for what you want using the bits out of the waiver that's quoted above and we'll have a look tonight.

It looks like there MIGHT be a bit of a pattern emerging - as I said in above posts a number of 50% plus offers seem to be coming through - Lloyds, Halifax and Abbey mainly.....I guess they might be counting on people have been waiting soo long they'll snap their fingers off - so we need to make sure peeps don't and if things are accepted make sure its under the terms listed above so the remainder can be reclaimed after the test case.

For SOME people in extreme hardship then depending on the exact circumstances then it might be worth accepting anyway but only in extreme circumstances - for example where to decline would mean the loss of home or bankruptcy etc.

Will be interesting to get a couple others who are borderline hardship with abbey to get in touch and see what they come back with.