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Ash
Ash, Solicitor
Category: Law
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Experience:  Solicitor with 5+ years experience
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I need you help. Basically I am representing my mum as a Lay

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I need you help. Basically I am representing my mum as a Lay Representative. We have filed a claim again a large bank. Brief details of claim are copied below so you have the background:
The Bank allowed a total of £28,565 to be withdrawn from my mums personal savings account (i.e. most of her life savings) by her former partner over a period of 6 months and on 11 separate occasions, without my mums prior knowledge or consent. My mum was trapped in an abusive relationship during this time with her partner and could not report the crime until she left him in July 2014. All withdrawals were fraudulent and perpetrated by her partner using forged letters stating she was either "ill in hospital" or simply "away". My mum believes the bank are liable because they did not take all the necessary precautions and reasonable steps to protect her money and prevent the fraud from happening. Most importantly, the bank did not follow their own publically advertised procedure regarding "third party access" to accounts. They also failed to spot a series of very “suspicious activities" on her account, ranging from the fact that her current account was still being used by my mum while she was supposedly "in hospital", the address on her savings account being changed and the large sums of money being withdrawn. The same fraud was undertaken by her partner on my mums personal other saving account. The other bank have since issued £8,900 as a full refund. The bank also withheld vital evidence from the Police investigation into the fraud.
AMOUNT CLAIMED: £40,790.4 (including 8% interest on the £28,565 and £1,942 court fees).
The Banks solictors are defending the claim and their case is based around the bank T&Cs stating that money can be withdraw from an account based on “a written instruction signed by you” and “a copy of your identification”. We obviously believe this is incorrect and is them interpreting the T&Cs in a way that benefits them despite there being no mention of a “Third party” in the T&Cs being allowed to withdraw the funds and also the fact that the letters were fraudulent and not written or authorised by My mum.
We have now been sent a Directions Questionnaire (N181) from the Courts and intend to talk to The Banks solicitors and see if we can negotiate a settlement before it reaches court (as instructed on the guidance notes on the Directions Questionnaire (N181).
What we need to know if as follows:
1. How do we amend the original claim to add a money claim for damages (i.e. circa £30,000) for my mum’s suffering over the last 4 years (i.e. her not being able to leave her partner because he took her financial security away from her when he stole the money and her being forced to waste money on rented accommodation for the past 4 years and the stress and strain this has had on her etc)? Do we need to raise a new Claim form or can we add this to the Directions Questionnaire (N181) in some way? I need to know the detailed procedure on what to do next, step by step.
2. If we do add a claim for damages (circa £30,000) this will increase the total claim to around £70,000. If we do this am I allowed to represent her in court as her Lay Representative?
3. If my mum loses the case and she can’t afford to pay The Banks legal costs because she has no savings (they gave it away after all) is there anyway that The Bank can get the costs back from her. She still works full time for the County Council but only earns around 20k per year.
4. Do you believe The Bank will win this case given the facts stated above?
5. What other advise do you have for preparing this case?
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
1. How do we amend the original claim to add a money claim for damages (i.e. circa £30,000) for my mum’s suffering over the last 4 years (i.e. her not being able to leave her partner because he took her financial security away from her when he stole the money and her being forced to waste money on rented accommodation for the past 4 years and the stress and strain this has had on her etc)? Do we need to raise a new Claim form or can we add this to the Directions Questionnaire (N181) in some way? I need to know the detailed procedure on what to do next, step by step.
No, you need to make a formal application to amend the claim. You need to do this using form n244:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n244-eng.pdf
You need the permission of the Court and you are likely to have to pay the Bank's cost of filing an amended defence because it should have been correct in the first place.
2. If we do add a claim for damages (circa £30,000) this will increase the total claim to around £70,000. If we do this am I allowed to represent her in court as her Lay Representative?
Yes, with permission of the Court and provided your mum is with you in Court.
3. If my mum loses the case and she can’t afford to pay The Banks legal costs because she has no savings (they gave it away after all) is there anyway that The Bank can get the costs back from her. She still works full time for the County Council but only earns around 20k per year.
They can apply for enforcement of costs, such a charge on any property, attachment to earnings etc. The rule is the losing party pays the other sides costs.
4. Do you believe The Bank will win this case given the facts stated above?
Its unfair for me to say, given I havent seen all the evidence. But you appear to have a claim on the face of it.
5. What other advise do you have for preparing this case?
Nothing at this stage. The matter will be set down for a case management conference where the Court will give directions and timetable the case to trial.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
Hi Alex,Thanks for the quick response and answering my questions - you are a super star and that is exactly what I needed to know! :o) Feels like the world is against us at the moment so nice to have some expert help!If you don't mind I have a few more questions for you:1) What is the best way to determine the monetary value of damages given the background to this case? Given your experience and the facts of the case - does £30k seem reasonable given that The Bank has left her penniless and given that the current claim is for around £40k? I'm tempted to push for more in the hope that it will force The Bank to negotiate.
2) If we win the case without adding damaged at this stage, is it possible to raise a new claim for damages in future? That way we would stay under the 50k Small claims court and don't have to pay all of their costs - is that correct?
2) I intend to write to the Banks solictors this week and try to negotiate a settlement (as per the guidance notes on the Directions Questionnaire). Should I make it clear to them at this stage we plan to increase the Claim amount to include other fraudulent transactions and include damages? The aim is to try and force them to negotiate and hopefully settle.Thanks again and I look forward to your reply.Matt
Expert:  Ash replied 1 year ago.
1) What is the best way to determine the monetary value of damages given the background to this case? Given your experience and the facts of the case - does £30k seem reasonable given that The Bank has left her penniless and given that the current claim is for around £40k? I'm tempted to push for more in the hope that it will force The Bank to negotiate.
You need to be able to quantify and justify any claim. If you are claiming an hourly rate thats easy, say £18 per hour (allowable by the Court). But if you have just plucked £30k out of the air you need to justify it.
2) If we win the case without adding damaged at this stage, is it possible to raise a new claim for damages in future? That way we would stay under the 50k Small claims court and don't have to pay all of their costs - is that correct?
No, you can't do that and in any event £10k is the small claims limit. You must include everything in one claim. You can't issue for £30k now and £40k later, otherwise it would be an abuse of process.
2) I intend to write to the Banks solictors this week and try to negotiate a settlement (as per the guidance notes on the Directions Questionnaire). Should I make it clear to them at this stage we plan to increase the Claim amount to include other fraudulent transactions and include damages? The aim is to try and force them to negotiate and hopefully settle.
Yes I would. If you are pleading fraud you need to make it clear in your claim form and have evidence. The court wont accept an allegation of fraud without evidence.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
Hi Alex,Seriously you are a super star and I'm so glad I signed up now!!!I know it's late but I have a few more questions for you if that's ok and then I will let you get some sleep! :o)1) When I write to The Banks solicitors this week to try and negotiate a settlement - should I also include the full Disclosure Report (N263) we have generated? At the moment it's up to around 25 pieces of evidence and I have stated the Relevance alongside each so that they can understand how we plan to use the evidence in court. Should I include immediately or hold back on showing them the bundle of evidence
2) We plan to call a married couple who were friends with my mum and her partner as witnesses to do the confirm the following. Does this sound reasonable?
- CONFIRM MY MUM AND HER PARTNER WERE TOGETHER AT THE TIME OF THE FRAUD. / CONFIRM THE CONTROLLING NATURE OF MY MUMS PARTNER OVER HER / CONFIRM MY MUM DID NOT BENEFIT FROM MONIES OBTAINED FROM THE FRAUD
3)Very rough Ball park - what do you think will be the Banks Costs if we do go to court given the nature of the case? Do you think it's likely to be less than £15k? Given my mum has no assets and only earns £20k a year is there any process we can go down to ensure that she is not liable for costs?? Or can we ask the judge to take account of her poor financial position?Thanks again for all your help tonight and I hope you can answer these for me.Matt
Expert:  Ash replied 1 year ago.
1) When I write to The Banks solicitors this week to try and negotiate a settlement - should I also include the full Disclosure Report (N263) we have generated? At the moment it's up to around 25 pieces of evidence and I have stated the Relevance alongside each so that they can understand how we plan to use the evidence in court. Should I include immediately or hold back on showing them the bundle of evidence
No, you dont send the disclosure report yet, this hasnt been ordered. So wait until disclosure is ordered before you file and serve the disclosure statement.
2) We plan to call a married couple who were friends with my mum and her partner as witnesses to do the confirm the following. Does this sound reasonable?
If it supports your case then yes.
- CONFIRM MY MUM AND HER PARTNER WERE TOGETHER AT THE TIME OF THE FRAUD. / CONFIRM THE CONTROLLING NATURE OF MY MUMS PARTNER OVER HER / CONFIRM MY MUM DID NOT BENEFIT FROM MONIES OBTAINED FROM THE FRAUD
3)Very rough Ball park - what do you think will be the Banks Costs if we do go to court given the nature of the case? Do you think it's likely to be less than £15k? Given my mum has no assets and only earns £20k a year is there any process we can go down to ensure that she is not liable for costs?? Or can we ask the judge to take account of her poor financial position?
If the claim is over £25,000 in costs it will be multi track. As such the banks costs will be anywhere from £25,000 to £50,000. As soon as you issue a claim you are potentially liable for the other sides costs. It makes no difference whether she can afford it or not - the Court will say you shouldnt have issued a claim.
I would suggest mediation to get a settlement as 90% of mediation settle.
Does that help?
Alex
Customer: replied 1 year ago.
you really are worth your wait in gold and yes this has been a huge help and should really help us.I know I said I didn't have any other questions but a few more just came into my head and I promise this is it:1) The bank account T&Cs (in the GENERAL section) state the following:"Depending on your particular type of account, you can instruct us to make a withdrawal or payment from your account by:
a) written instruction signed by you
b) using your card"However, they do not define anywhere in the T&Cs the account "type" so by default I believe the T&Cs are ambiguous and cannot be used to argue the Banks case. Would you agree and how is it best to argue this? Should we call an expert in T&C writing and if so do you know any?Also, where it says “a written instruction signed by you” it does not specify that a third party is allowed to use this instruction. I assume it can be argued that it is a written instruction presented by the person who write it and not a "third party?The word "third party" is used in the T&Cs but never anything to do with withdrawing money. Also, there is no mention that a passport can be used as evidence to withdraw money. Again how would you argue this?2) The T&Cs make no mention of Power Of Attorney or "third party access to accounts" and yet The Banks website states clearly that if you need to access an "Third parties account" it should be by Power of Attorney (POA), Court of Protection Order or Deputyship Application Form. Therefore how is a customer suppose to know what The Banks policy is when they clearly contradict each other?3) The Bank is unable to provide the signed cashier slips for all of the fraudulent withdrawals (i.e. they have only been able to supply 7 out of the 11 signed slips and letters). They have also failed to provide several letters that supposedly authorised the withdrawals. Given this, should The Bank be forced as a minimum to refund these given that they have no records at all and clearly this must be a breach of their own procedures etc?4) Should we press on the point that the Bank hindered a police investigation into this case by not providing the forged letters when requested by the police which caused the police to close the case? How do you think we should do this>?Sorry again for yet more questions but I promise this is it tonight - brain cant cope anymore! :o)Thanks again as well for your time on help - it's a real relief to have this support
Expert:  Ash replied 1 year ago.
1) The bank account T&Cs (in the GENERAL section) state the following:
"Depending on your particular type of account, you can instruct us to make a withdrawal or payment from your account by:
a) written instruction signed by you
b) using your card"
However, they do not define anywhere in the T&Cs the account "type" so by default I believe the T&Cs are ambiguous and cannot be used to argue the Banks case. Would you agree and how is it best to argue this? Should we call an expert in T&C writing and if so do you know any?
I wouldnt agree, I dont think they need to say account type. If you need to know what the account type is, you could have asked for clarification on terms and conditions.
Also, where it says “a written instruction signed by you” it does not specify that a third party is allowed to use this instruction. I assume it can be argued that it is a written instruction presented by the person who write it and not a "third party?
The word "third party" is used in the T&Cs but never anything to do with withdrawing money. Also, there is no mention that a passport can be used as evidence to withdraw money. Again how would you argue this?
I havent seen all the evidence so would be unfair to give a legal view on how to argue something, especially when I havent seen the particulars of claim or defence.
2) The T&Cs make no mention of Power Of Attorney or "third party access to accounts" and yet The Banks website states clearly that if you need to access an "Third parties account" it should be by Power of Attorney (POA), Court of Protection Order or Deputyship Application Form. Therefore how is a customer suppose to know what The Banks policy is when they clearly contradict each other?
I agree, there is a conflict here.
3) The Bank is unable to provide the signed cashier slips for all of the fraudulent withdrawals (i.e. they have only been able to supply 7 out of the 11 signed slips and letters). They have also failed to provide several letters that supposedly authorised the withdrawals. Given this, should The Bank be forced as a minimum to refund these given that they have no records at all and clearly this must be a breach of their own procedures etc?
Yes it would appear so on that basis alone.
4) Should we press on the point that the Bank hindered a police investigation into this case by not providing the forged letters when requested by the police which caused the police to close the case? How do you think we should do this>?
Well that doesnt really get you anywhere. its useful information but thats it. You are not suing them because they messed up a Police investigation, I assume you are suing them because of their own failures to follow procedure. If that is the case, I dont see how it helps.
Alex
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.
HI Alex,Apology for not getting back to you on your last response and for rating your previous correspondence - I will do that for you now.In the meantime I have now sent a response to the solicitors trying to negotiate a settlement but they came back with the following:Without Prejudice Save as to Costs.
Dear XXXX,
Thank you for your e-mail.
I confirm that whilst my client is sympathetic to your position, it remains of the belief that your claim has no merit, for the reasons set out within my client's Defence. However, for the avoidance of doubt, my client has acted in accordance with the Terms and Conditions which governed your savings account at the time the Transfers were made (a copy of which has been annexed to my client's Defence). The terms and conditions provide that a customer can instruct the Bank to make a withdrawal or transfer by a) written instruction signed by the customer, or b) using the customer's card. It is evident that Mr XXX provided both a written instruction containing a signature which matched yours and your savings account cash card. Furthermore, the signature contained on the third party authorities provided by Mr XXX, matched the mandate held by my client and therefore, my client had no reason to believe that the same had been forged.
In addition, Condition 13.1 of the terms and conditions provides that a customer is responsible for transactions for his/her account if:
1. After becoming aware of the customer delayed unreasonably in notifying the Bank that the transaction was unauthorised; and
2. If the customer failed to tell the Bank the transaction was unauthorised within 13 months of the date on which the transaction occurred.
By your own admission it took some 3 years to report the alleged unauthorised transfers and as such, you remain liable for the same under the terms and conditions.
Notwithstanding the above, the Transfers made by Mr XXXXX were made into accounts to which you also had access to and, in the funds which were transferred into the Business Account, you would have received the benefit of since they were used for business purposes. In any event, your cause of action is in fact against Mr XXXXX (or in the event he has passed away, his estate), and not my client.
For the reasons set out above, I believe that your claim is and wholly without merit and is liable to be struck out. My client would therefore invite you to withdraw your claim against it, within the next 7 days. If you do so, it will forgo its costs of the proceedings to date. However, in the event you proceed with your claim, I put you on notice that I have instructions to proceed with an Application to Strike Out your Claim.I now have a couple of questions for you:1) would a judge really Strike Out my claim without seeing the full details of my claim and all the evidence?
2) Has the Solicitor made any legal mistakes in your opinion in her response to us?
3) In order for the T&Cs Defence to hold water - I assume that they would need to prove with evidence to the judge that the T&Cs were part of the contract when my mum opened the account? According to her they were never provided because she opened the account in her branch and the lady did not get her to sign anything and she was not provided with any T&Cs.
4) The Defence have failed to address several Particulars of the Claim, specifically items 6, 7 and 8. Are they allowed to just ignore them?
5) Will the new domestic violence and coercive control law that came in last week help my mums case given she did not report the fraud for 3 years until she left the relationship? At the time she was threated with physical abuse and hence did not report itSorry for all the questions but as you can see from their response it looks like it will go to court so need all the help we can getMatt
Customer: replied 1 year ago.
Hi Alex,Sorry to hassle you but did you get the e-mail I sent you yesterday? I would like to response to their solicitor tomorrow if possible so would be great if you could answer for me so I can prepare my response.Also, do you do any freelance work outside of Justanswer (i.e. would you be willing to review the case remotely like you do now but offer more in depth legal advise)?Thanks in advanceMatt
Expert:  Ash replied 1 year ago.
Sorry I didnt see the reply. Sadly its against site rules me for me to do work outside JA.
1) would a judge really Strike Out my claim without seeing the full details of my claim and all the evidence?
No, you need to show your claim has some merit. No matter how weak.
2) Has the Solicitor made any legal mistakes in your opinion in her response to us?
No, the Solicitor is acting on instructions.
3) In order for the T&Cs Defence to hold water - I assume that they would need to prove with evidence to the judge that the T&Cs were part of the contract when my mum opened the account? According to her they were never provided because she opened the account in her branch and the lady did not get her to sign anything and she was not provided with any T&Cs.
Yes indeed.
4) The Defence have failed to address several Particulars of the Claim, specifically items 6, 7 and 8. Are they allowed to just ignore them?
No, but they can't rely on items not in the defence.
5) Will the new domestic violence and coercive control law that came in last week help my mums case given she did not report the fraud for 3 years until she left the relationship? At the time she was threated with physical abuse and hence did not report it
No, its not retrospective.
Does that clarify?
Alex
Customer: replied 1 year ago.
Hi Alex,I just want to say a MASSIVE THANKS again for your help on this - I can't stress enough how much both me and my mum appreciate it.The answers are great but as usual I have a couple more questions for you:1) If they cannot provide any evidence to the Judge that my mum physically signed a contract with the bank (which included the T&Cs they refer to in their Defence) would they automatically lose the case because it's the backbone of their Defence? As I said according to my mum the lady in branch opened the account for her using the PC (as she already had an existing account) and my mum didn't sign anything
2) If they say they sent my mum T&Cs in the post after they opened her account in branch (which is often standard practice) I assume we can argue that it was not part of the contract my mum signed up to (as she wasn't given them and she didn't sign for them when she opened the account in branch)?
3) If their T&cs are valid - Is their argument that my mum didn't tell them for 3 years about the transactions likely to hold up in court given my mum's testimony to the police that she could not report it because her partner threatened to "kick her head in"? Is there some legal protection for her given she was threatened and if she had reported it to the bank/police at that time she was at risk of physical abuse?
4) In the directions questionnaire it states "You must attempt to agree proposed directions with all other parties. Whether agreed or not a draft of the order for directions which you seek must accompany this form" - can you send me a link to a template form because I can't find one anywhere.Thanks again and I hope you can answer these few remaining questions for me.Matt
Expert:  Ash replied 1 year ago.
that my mum physically signed a contract with the bank (which included the T&Cs they refer to in their Defence) would they automatically lose the case because it's the backbone of their Defence? As I said according to my mum the lady in branch opened the account for her using the PC (as she already had an existing account) and my mum didn't sign anything
It's a matter of evidence for a judge to decide.
2) If they say they sent my mum T&Cs in the post after they opened her account in branch (which is often standard practice) I assume we can argue that it was not part of the contract my mum signed up to (as she wasn't given them and she didn't sign for them when she opened the account in branch)?
It's not valid it had to be at time of contract
3) If their T&cs are valid - Is their argument that my mum didn't tell them for 3 years about the transactions likely to hold up in court given my mum's testimony to the police that she could not report it because her partner threatened to "kick her head in"? Is there some legal protection for her given she was threatened and if she had reported it to the bank/police at that time she was at risk of physical abuse?
Again, it's a matter for a judge.
4) In the directions questionnaire it states "You must attempt to agree proposed directions with all other parties. Whether agreed or not a draft of the order for directions which you seek must accompany this form" - can you send me a link to a template form because I can't find one anywhere.
As you are in person you don't need to worry about directions at this stage,
Alex
Customer: replied 1 year ago.
thanks again - that's great and once again thanks for your help today. No doubt I will be in touch again soon.Matt