adelita and Abbey

**Happyolddog** · 18th November 2008, 17:09:PM

Re: hi everyone

Hi Adelita,

Welcome to LB, If you go to the library section of this forum you will find template letters to download and adjust for your own case. Everybody on here will offer advice and help you get back all of the unlawful charges.

Best wishes,
Hod..Liam..

**Guest** · 18th November 2008, 19:14:PM

Re: hi everyone

Hi and welcome to the site.

Take a look here and if any of this is unclear, come back to us.

Legal Beagles

The section on the N150 is on post #6 - and there are links on that post which will direct you to another page with full details on how to fill it in.

Try not to worry about it - many thousands of people have done this before you and got paid in full.

**adelita** · 18th November 2008, 19:54:PM

Re: hi everyone

Originally posted by Cetelco View Post

Hi and welcome to the site.

Take a look here and if any of this is unclear, come back to us.

Legal Beagles

The section on the N150 is on post #6 - and there are links on that post which will direct you to another page with full details on how to fill it in.

Try not to worry about it - many thousands of people have done this before you and got paid in full.

hi there and thanks for taking the time to respond

im not sure if i am doing something wrong but ive tried clicking on the above link and the following is coming up?????

adelita, you do not have permission to access this page. This could be due to one of several reasons:

Your user account may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.

Log Out

any advice would be much appreciated

**Happyolddog** · 18th November 2008, 20:06:PM

Re: hi everyone

Use this link.........

http://www.legalbeagles.info/forums/...highlight=N150

**Amy** · 18th November 2008, 20:12:PM

Re: hi everyone

Originally posted by adelita View Post

adelita, you do not have permission to access this page. This could be due to one of several reasons:

Your user account may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.

You just need to log in again, it does that sometimes.

Alternatively, just use Happy's link.

**adelita** · 19th November 2008, 13:47:PM

Re: hi everyone

Originally posted by Happyolddog View Post

Use this link.........

http://www.legalbeagles.info/forums/...highlight=N150

thanks for your help

it worked
mazzy
------------------------------- merged -------------------------------
hi everyone

thought i would update everyone on whats happened

i received the allocations queationaire from abbey today!!!!!!!!!!!!!

on there they are asking the courts to stay the case pending the final determination of the test case including any appeals

they are also calling in a witness ( a bank officer )

my questions are as follow

can they ask for the case to be stayed if they are aware that this is a financial hardship claim?????
if they are going to have a bank fficer as a witness are bank officers classed as expert evidence????
they estimate that the final hearing will take 3 days, i was under the impression it would only take a few hours

UNDER FEE they ticked no, they havent attached a fee for filing the allocation questionaire, and the courts are asking for £200 from me???

what does all this mean??????

i still have not filed my allocations questionaire

any advice is much appreciated

**TUTTSI** · 19th November 2008, 14:12:PM

Re: hi everyone

Hi Adelita

Firstly, welcome to the home of Legal Beagles.

I note that you are stating that you are possibly a financial hardship case. It would be a good idea if you could start a thread in our Hardship section where you can be given the best guidance. http://www.legalbeagles.info/forums/...play.php?f=106

There has been a few of us who have presented Abbey with all of our Hardship details and have had interim payments, following the FSA waiver rules. One of those cases was mine and after presenting my hardship claim I was given an interim payment of 65%.
http://www.legalbeagles.info/forums/...play.php?f=222

Take a read of these threads then post up your details with your case so that we can best advise. It may be that all you need to contact Ronan Coyle at Abbey - Legal with your court details and provide a letter together with all evidences which put you in the Financial Hardship catorgory, an Income and Expenditure summary. Ronan's phone number and address is on my thread and you could always phone him to advise that you intend claiming under the FSA Hardship rules. We all found Ronan very helpful and he did in fact sort out our claims.

Please shout if you need more help.

**Amy** · 19th November 2008, 14:35:PM

Re: hi everyone

Originally posted by adelita View Post

UNDER FEE they ticked no, they havent attached a fee for filing the allocation questionaire, and the courts are asking for £200 from me???

what does all this mean??????

Abbey does not have to pay the fee for filing the AQ, you will as you are the one bringing the case. However, that said you should apply using an EX160 as you may well qualify for remission or exemption from the fee.

**Budgie** · 19th November 2008, 15:35:PM

Re: hi everyone

Hi Adelita,

Please could you post up copies of your Particulars of Claim that you filed with the Court and a copy of the Abbey's defence.

That way we can best advice you as to how to proceed .

You must file you AQ on time otherwise you risk having your claim thrown out. But don't worry we will help you to complete this properly. I agree that involving ROnan Coyle may be a good idea but let's get the AQ sorted first.

Make sure that you remove any personal contact details or information from anything that you post up on the site.

Budgie

**adelita** · 19th November 2008, 16:30:PM

Re: hi everyone

Originally posted by Budgie View Post

Hi Adelita,

Please could you post up copies of your Particulars of Claim that you filed with the Court and a copy of the Abbey's defence.

That way we can best advice you as to how to proceed .

You must file you AQ on time otherwise you risk having your claim thrown out. But don't worry we will help you to complete this properly. I agree that involving ROnan Coyle may be a good idea but let's get the AQ sorted first.

Make sure that you remove any personal contact details or information from anything that you post up on the site.

Budgie

first of all i want to say a big thankyou to all advising

your support is much welcomed

where should i post the details??? here or where tuttsi suggested???

**Budgie** · 19th November 2008, 16:34:PM

Re: hi everyone

Hi Adelita

Post it on this thread ( keep it all together ) and I will move your thread into the hardship area later in ( the one that Tuttsi suggested ). I will also rename your thread to make it easier for you to find.

Hope that's all OK

Budgie

**adelita** · 19th November 2008, 18:25:PM

Re: hi everyone

Originally posted by Budgie View Post

Hi Adelita,

Please could you post up copies of your Particulars of Claim that you filed with the Court and a copy of the Abbey's defence.

That way we can best advice you as to how to proceed .

You must file you AQ on time otherwise you risk having your claim thrown out. But don't worry we will help you to complete this properly. I agree that involving ROnan Coyle may be a good idea but let's get the AQ sorted first.

Make sure that you remove any personal contact details or information from anything that you post up on the site.

Budgie

THANKS BUDGIE

MY PARTICULARS OF CLAIM ARE AS FOLLOW

1. The Claimant had a current account with the Defendant which was opened on or around 2000 to 2005, with sort code XXXXXX and account number XXXXXXXXXX

2. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant or in respect of various purported services provided by the Defendant. The Defendant also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:
a) Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but
instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
b) Insofar as they purport to be services provided by the Defendant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Defendant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.
Whereas, at all material times the Claimant was a consumer within the meaning of the Regulations and the Defendant was a supplier within Regulation 3(1), and
The banking contract was conducted on the Defendant's standard terms
The terms imposing the charges levied by the Defendant are contrary to the requirement of good faith. Furthermore The terms imposing the charges cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-
• Bank accounts have become a basic essential service
• The Defendant is a wholly dominant partner in a non-negotiable standarddform contract.
• There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
• These banks exercise a collective dominance in the market.
• The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
• The charges exceed actual costs by several thousand percent
• They are applied unilaterally in a standard form contract without the possibility of negotiation
• The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
• The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
• The customer had no means of assessing the fairness of the Charges at the time of entering the contract
• The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
• Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniosities which then trigger more charges. Therefore the Defendants have caused much of the claimant's impecuniosities and it is the Defendants who are causing the charges to be levied with a view to their own profit.
• The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
• The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
• The Defendant's charges structure depends upon the impecuniosities and vulnerability of its poorer customers to provide free-banking services for those in a better position.
• The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.
• As established by the High Court (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.

In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.
5. Accordingly the claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ 4087.70
b) Interest charges which have been paid on the above charges in the sum of £ 199.09
c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, 30/11/2001 to 20/10/2008 of £240.24 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.90 pence

Amount owed £4087.70 + £199.09 = £4286.79

£240.24 at 8% interest a year for a period of approximately 6 years = £1441.44

Total amount £4087.70 + £1441.44 = £5529.14 and also daily interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.21

(d) Court costs or other costs as allowed by the court.

The defendant has been aware that the claimant has been on benefits for a number of years as she has three children to support and look after.
The defendant still proceeded to take her benefits when they incurred the charges on her. The category of benefit that the Claimant is receiving is deemed as inalienable under the Social Security Administration Act 1992 (s.187) which states as follows:
187.-(1) Subject to the provisions of this Act, every assignment of or charge onn(a) benefit 8S defined in section 122 of the Contributions and Benefits Act;
(b) any income-related benefit; or
(c) child benefit,
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a
beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.

WOODS V. THE ROYAL BANK OF SCOTLAND 1913 1 S.L.T.499
"A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set-off against the same. "

The defendant is also in breach of the data protection act subject access request as they have failed to prOVide all the information required, for example, the claimant is still waiting to receive a copy of the original contract from when she opened the current account, the original terms and conditions, bank statements and manual interventions.
The claimant seeks the help of the court to reclaim the money owed to her as she is still facing financial hardship, the claimant is currently in receipt of income support, child tax credits and child benefit.

THIS IS THEIR DEFENCE

INTRODUCTION

1. In this Defence
1.2 References to an "unauthorised" overdraft are to an overdraft permitted by the Defendant without prior application and arrangement under clause 6.1 of the Conditions.

2. It is admitted that the Claimant held an account with the Defendant, account number xxxxxx ("the Account"). It is admitted and averred that the contractual provisions between the Claimant and the Defendant in relation to the Account are set out in the Conditions.

3. It is denied that those charges payable and that rate of interest applicable upon a customer going into unauthorised overdraft or exceeding an authorised overdraft constitute a penalty at common law. It is denied that those charges and that interest are payable on a breach of contract.
4.The true position is as follows

4.1 Each and every payment instruction presented by or on behalf of the Claimant to the Defendant which would, if honoured, take the Account into unauthorised overdraft or beyond an authorised overdraft, constituted a request (in law, an offer) by the Claimant to the Defendant for a loan of the requisite amount on the terms set out in the Conditions (alternatively on the Defendant's usual terms as to such overdrafts as at the date of the payment instruction in question).

4.2The defendant was free to accept or reject each such request

4.3 If the Defendant honoured the payment instruction in question, the Defendant thereby accepted the Claimant's offer.

4.4 Accordingly, the Claimant became bound to pay interest and charges in relation to that loan at the stipulated rate.

5. It is denied (if it be alleged) that, on a proper construction, clause 6.3 of the Conditions provides that a customer going into unauthorised overdraft or exceeding an authorised overdraft constitutes a breach of contract (for which the customer is liable to pay damages). It is averred that clause 6.3 of the Conditions operates as a trigger to bring into effect certain other provisions of the Conditions.

6. It is denied that those charges payable upon the Defendant dishonouring a payment instruction presented by the Claimant by reason of the state of the Account (namely that had the Defendant honoured the instruction in question, it would have taken the Account into unauthorised overdraft or beyond an authorised overdraft) constitute a penalty at common law. Such charges are not payable on a breach of contract. They are, by clause 6.4 of the Conditions, a fee.

7. The Defendant understands the Claimant's allegation to be that the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not binding on the Claimant by reason of regulation
8(1) of the Unfair Terms in Consumer Contract Regulations 1999 ("the 1999 Regulations").

8. The Regulations, by regulation 1, came into force on 1 October 1999 and are of no application to any event occurring before that date

9. Regulation 6(2) of the 1999 Regulations provides that;

"In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate -
(a) to the defenition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."

10. The fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are: (i) set out in plain intelligible language in the Conditions, and (ii) amount to the "price or remuneration" in respect of that provision of such overdraft or such dishonouring.

11. Accordingly, by regulation 6(2) of the 1999 Regulations, the provisions of the Conditions as to the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and in respect of the dishonouring of payment instructions are not liable to assessed for fairness under those regulations.

12. It is denied that paragraph 1(e) of Schedule 2 to the 1999 Regulations is applicable. As pleaded above, the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breach of contract by the Claimant.

13. Alternatively, if (contrary to the Defendant's primary case pleaded above), the provisions of the Conditions as to the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions fall to be assessed for fairness under the 1999 Regulations, the Defendant's case is as follows:
(a) Regulation 5(1) of the 1999 Regulations provides that:

"A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

(b) Regulation 6(1) of the 1999 Regulations provides (so far as presently relevant) that:

" ... the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract .... "

(c) It is denied that the Conditions breach that provision of the 1999 Regulations. In particular, (i) the Defendant's charges and interest rates are published and provided to its customers from time to time and are expressed in clear language; (ii) the incurring of charges and interest in respect of an unauthorised overdraft and an overdraft beyond that agreed and fees in respect of the dishonouring of payment instructions is a result of the Claimant's actions; and (iii) the Defendant's charges and interest rates are not, in the circumstances, excessive in relation to the value of the services provided in relation thereto.

(d) The Defendant reserves the right to plead further in this regard on the provision of full and proper particulars of the basis on which the Claimant contends that the Conditions contravene regulation 5(1) of the 1999 Regulations.

14. Save as expressly pleaded to above, each and every allegation contained in the Particulars of Claim is denied as if the same were individually traversed.

STATEMENT OF TRUTH

I believe that the facts stated in this Defence are true.

Signed: L .1L8W L.J Blacker

Name; Laura Blacker

POSITION; PARALEGAL

DATE 03/11/2008

THEIR ALLOCATIONS QUESTIONAIRE IS AS FOLLOWS

1.Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage

they ticked no

2. ticked no to month onth stay

3. NO to mediation appointment

4. Reasons;
this is a bank harges claim
There is currently litigation taking place between the OFT and Abbey National Plc and others (Claim no. 2007, Folio 1186) (lithe Test Case") to decide the complex legal and factual issues surrounding bank charges.
Therefore, the Defendant respectfully submits that it will not be in a reasonable position to enter into any negotiations to settle this claim until those complex legal and factual issues are resolved and asks that the Court be minded to stay the claim until the determination of the Test Case, to include any appeals (please refer to Section I for more detail).

PAGE 2
B LOCATION OF TRIAL
no reason to be heard at a particular court

C pre-action protocals
no

D CASE MANAGEMENT INFORMATION

WHAT AMOUNT IS IN DISPUTE

£0.00

APPLICATIONS
Have you made any applications in this claim?
no

witnesses

bank officer
witness to which facts

charges aplied to current account held by the defendant

PAGE 3

DO YOU WISH TO USE EXPERT EVIDENCE AT THE TRIAL OR FINAL HEARING

NO

TRACK

WHICH TRACK DO YOU CONSIDER IS MST SUITABLE

SMALL CLAIMS

PLEASE GIVE BRIEF REASON FOR YOUR CHOICE

In the interests of commerciality, the Defendant consents to the entirety of this claim being disposed of on the Small Claims Track.

PAGE 4
E TRIAL OR FINAL HEARING
HOW LONG DO YOU ESTIMATE THE TRIAL TO TAKE
THEY ANSWERED 3DAYS

F PROPOSED DIRECTIONS
NO

G COSTS 0.00
H FEE NO

PAGE 5
I OTHER INFORMATION
THEY TICKED NO
HAVE YOU SENT THESE DOCUMENTS TO THE OTHER PARTIES
THEY LEFT BLANK
DO YOU INTEND TO MAKE ANY APPLICATIONS IN THE NEAR FUTURE
THEY TICKED NO

IN THE SPACE BELOW, SET OUT ANY OTHER INFORMATION YOU CONSIDER WILL HELP THE JUDGE TO MANAGE THE CLAIM

As the Court will no doubt be aware, there is currently litigation taking place between the OFT and Abbey National Plc and others (the "Banks") (Claim no. 2007/ Folio 1186) ("the Test Case") to decide the complex legal and factual issues surrounding bank charges.
The first stage of the Test Case ("Phase lA") was a preliminary issues hearing before Mr Justice Andrew Smith. This hearing focused on certain preliminary issues and concluded on 8 February 2008. Phase lA did not deal with all the preliminary issues identified for reasons of case management.
Mr Justice Andrew Smith handed down his Phase lA judgment on 24 April 2008. He held that the Banks' charging terms relating to bank charges considered at that hearing were not penal. He also found that they did not fall within the exemptions of Regulation 6(2) of the UTCCRs, and were thereforeassessible for fairness.
At a CMC on 22 and 23 May 2008/ Mr Justice Andrew Smith granted the Banks leave to appeal against the UTCCR element of the Phase lA judgment.
A further hearing ("Phase 1B") was ordered to deal with the Banks' historic terms relating to bank charges. This hearing was heard on 7 - 9 July 2008. Prior to this hearing the Banks conceded that, based on the reasoning contained in the Phase lA judgment, the Banks' historic terms do not fall with the Regulation 6(2) exemption; therefore the remaining point was whether the historic terms relating to bank charges were penal.
Mr Justice Andrew Smith handed down his Phase 1B judgment on 8 October 2008and held that in relation to Abbey, most of their historic terms relating to bank charges were not capable of being penalty clauses (and that he would hear submissions from Abbey regarding its remainder). These submissions would be heard in a Phase 1B(ii). This is scheduled for one day on 9 December 2008.
The Phase lA appeal was heard between 28 October and 6 November 2008. We await the Court of Appeal's decision. The Banks filed an Appellant's Notice relating to elements of the Phase 1B judgment on 29 October 2008. At the CMC in May, Mr Justice Andrew Smith was keen to ensure that a first instance hearing on the substantive issues would be held before the end of 2008 ("Phase 2").
The Test Case proceedings remain live and the Defendant remains of the view that it remains the most appropriate and efficient mechanism for the resolution of the issues relating to the fairness of bank charges in the claim before you.
The Defendant respectfully submits that this claim should be stayed pending the final determination of the Test Case, including any appeals.

i HAD TO TYPE THE LLOCATIONS QUESTIONAIR FROM ABBEY AS IT WOULD NOT PASTE ONTO HERE

ANY ADVICE IS MUCH APPRECIATED AS I DONT KNOW WHAT TO DO NEXT

KIND REGARDS

ADELITA

**Budgie** · 19th November 2008, 18:34:PM

Re: hi everyone

Excellent work Adelita.

I have to pop out for a while but will have a good read through later this evening.
Am sure others will comment in the meantime.

I am fairly sure that the best course of action will be to submit your AQ and Stress the hardship issues relating to your claim.

Will respond in more detail later

Rgds Budgie

**adelita** · 20th November 2008, 09:07:AM

Re: hi everyone

Originally posted by Budgie View Post

Excellent work Adelita.

I have to pop out for a while but will have a good read through later this evening.
Am sure others will comment in the meantime.

I am fairly sure that the best course of action will be to submit your AQ and Stress the hardship issues relating to your claim.

Will respond in more detail later

Rgds Budgie

thanks budgie

you are all so kind here

i am so glad i found this site, i dont know what i would of done with out all the advice everyone is giving me, well i know for starters i would be pulling my hair out by now

I still havent got a clue on how i should fill in my aq, but i do know that at least i can be reasured by you all

thankyou and kind regards

mazzy

adelita and Abbey

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