Just about to start

[Michael Browne]

1 of these should suit:

Rejecting Offers

[Guest NATTIE]

Just make sure you are only claiming overlimit fees and late payment charges, and interest if you are doing so on these only

[mymoney001]

Thanks all

 

as I have already submitted a claim requesteing cash handling fees do i need to now submit a new calcualtion forn to MCOL with a copy to the bank also.

[mymoney001]

Help please

 

I recently submitted my claim on MCOL and heard nothing from the bank in reply until today, I got home and there was a large envelope waiting for me

 

Here is what was inside.

 

Defence

1. This defense is filed and served without prejudice to the defendant case that the particulars of claim do not disclose reasonable grounds for bringing a claim against the defendant to recover the bank charges (and interest thereon) referred to in the particulars of claim or any other sum. In the event that the claim is not properly particularized then the defendant will apply to strike out the claim and / or for summary judgment in respect of the same.

1. Without prejudice to the non admission set out in the foregoing para if and to the extent that the claimant proves the allegation that the defendant debited charges to the claimants bank account, insofar as such charges were debited on a date more than six years prior to the issue of the claim any remedy in respect of the same whether damages, restitution or otherwise is barred by the operation of the limitation act 1980 and or the doctrine of laches and the defendant will apply to strike out this aspect of the claim and/ or for summary of judgment.
   
2. No admission are made as to what charges have been debited to the claimants bank account.

1. The claimant is put to strict proof of each and every charge the subject of the claim and must identify in respect of each charge (a) the date of the same was debited(b) the amount of the same and © the description of the charge.

1. in relation to the allegation the contractual provisions pursuant to which the charges have been applied are unenforceable for virtue of the Unfair Contract Terms Act 1977(UCTA 1977) and /or the Unfair Contract Terms in Consumer Reg 1999 ( the Regulations) and / or the common law the claimant is required to identify : 5.1 (a) the section of the Unfair Contract Terms Act 1977 (UCTA1977) (b)the regulation and © the principles of common law relied upon by the claimant in alleging that the contractual provision referred to are unenforceable. 5.2 the contractual provision that the claimant alleges are invalid by reference to UCTA 1977 and the Regulation. Until such time as these sections / regulations / provisions are identified the defendant cannot plead to the allegation referred to in Para 5 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual info.

1. In relation to the case of the claimant that the charges are unreasonable within the meaning of section 15 of the supply of goods and services act 1982 the defendant pleads 6.1 the claimant is required to plead and prove the necessary factors (referred to in sect 15 SGSA) concerning the contract between the claimant and the defendant which mean that pursuant to SGSA section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract. 6.2 Further the claimant is required to plea and prove (a) that the bank charges which have been debited are unreasonable (b) all facts and matters upon by the claimant in support of this case and © what charges would have been reasonable. 6.3 in the circumstances no grounds are disclosed for acclaim that the defendant has acted in breach of SGSA section 15. 6.4 In the circumstances ( save as appears below ) the defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA sect 15 as alleged or at all. The defendant reserves its right to plead further to this allegation once ( and if) the defects in the pleaded case refer to in para 6.1-6.3 above are addressed. 6.5 It is the case of the defendant that the contract between the claimant and the defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the claimant and the defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimant and the defendant.

1. The claimants claim for cost not being sufficiently particularized, the defendant is unable to plead and reserve the right to plead upon further particulars.

1. To assist the claimant with the proper particularization of the claim the defendant serves with this defense a request made pursuant to CPR part 18 . If the claimant fails to provide the particulars requested in the time stipulated and / or the defects with the claim referred to in Para 1 above remain then the defendant will apply to the court for ( among other things ) an order striking out the claim.

1. Pending the proper particularisation of the claim the defendant is unable to plead to the claimants claim beyond at this stage denying that the defendant is liable to the claimant as alleged in the claim or at all . the defendant reserves the right to amend this defence to plead further to the claimants claim once or if the claimant properly particularisise the same

1. Save as herein before appears the defendant joins issue with the claimant on the claims and denies that it is liable to the claimant as alleged or at all.

 

Second letter (The request.)

 

1. This request is served pursuant to CPR part 18 alternatively with regard to CPR Rule 27.2(3)
   
2. The reason why this request has been servesd are set out in the defence which has been served by the defendant
   
3. You are asked to provide a response to this request in accordance with CPR part 18 by 9th April
   
4. If you are unable to provide a response by this date you are asked to contact the defendants solicitors promptly and tell them when you will be able to provide a response
   
5. in the event that you do not provide a response to this request by this date the defendant can apply to the court for an order requiring you to provide the information requested or ( in view of the deficiencies in the way that the claim is pleaded) order striking out of the claim.

 

 

In your claim you state the defendant debited charges and interest in respect of purported breaches of contract

 

1. 
   

2.  

   1. 
      

   2.  

       

       

      Yes quite a mouth full and a lot of duplication, how do I respond please

      Mymoney

      
      
   3. Please specify all of the fact relied on by the claimant in support of the contentions in para 3 above , and in particular please identify (a) the section of the Unfair Contract Terms and Conditions act 1977 (UCTA 1977) (b) the regulations of the unfair terms in consumer contracts regulations 1999 © the principles of common law relied upon by the claimant in alleging that the contractual provisions referred to are unenforceable . Please also identify the contractual provisions that the claimant alleges are unenforceable by reference to UCTA / the regulation.
   
   
3. Please provide the particulars in support of your claim 2.1 In relation to each charge please identify (a) the date when the charge was charged (b) the amount of the same © the reason (d) given for the charging of the same . 2.2 In relation to each charge please clarify the following (a) is it the case of the claimant the same should not have been charged . (b) if yes please explain why the claimant contends that the same should not have been charged .© if no is it the case of the claimant that the same amount should not have been charged in this amount.(d) if yes please explain why the claimant contends that the same should not have been charged in this amount and identify the sum the claimant contends should have been charged (e) if no please state the claimant case . In your claim you state that the charges are unenforceable under the unfair terms in consumer contracts regulations 1999 the unfair terms act 1977 and at common law.

[hedgey06]

Bump - can anyone advise on this one????

[Guest NATTIE]

I think bump as well for those that have missed this one but i do think it sounds like a standard defence from Cobbetts.

[hatter]

Help please

 

I recently submitted my claim on MCOL and heard nothing from the bank in reply until today, I got home and there was a large envelope waiting for me

 

Here is what was inside.

 

Defence

1. This defense is filed and served without prejudice to the defendant case that the particulars of claim do not disclose reasonable grounds for bringing a claim against the defendant to recover the bank charges (and interest thereon) referred to in the particulars of claim or any other sum. In the event that the claim is not properly particularized then the defendant will apply to strike out the claim and / or for summary judgment in respect of the same.

1. Without prejudice to the non admission set out in the foregoing para if and to the extent that the claimant proves the allegation that the defendant debited charges to the claimants bank account, insofar as such charges were debited on a date more than six years prior to the issue of the claim any remedy in respect of the same whether damages, restitution or otherwise is barred by the operation of the limitation act 1980 and or the doctrine of laches and the defendant will apply to strike out this aspect of the claim and/ or for summary of judgment.
   
2. No admission are made as to what charges have been debited to the claimants bank account.

1. The claimant is put to strict proof of each and every charge the subject of the claim and must identify in respect of each charge (a) the date of the same was debited(b) the amount of the same and © the description of the charge.

1. in relation to the allegation the contractual provisions pursuant to which the charges have been applied are unenforceable for virtue of the Unfair Contract Terms Act 1977(UCTA 1977) and /or the Unfair Contract Terms in Consumer Reg 1999 ( the Regulations) and / or the common law the claimant is required to identify : 5.1 (a) the section of the Unfair Contract Terms Act 1977 (UCTA1977) (b)the regulation and © the principles of common law relied upon by the claimant in alleging that the contractual provision referred to are unenforceable. 5.2 the contractual provision that the claimant alleges are invalid by reference to UCTA 1977 and the Regulation. Until such time as these sections / regulations / provisions are identified the defendant cannot plead to the allegation referred to in Para 5 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual info.

1. In relation to the case of the claimant that the charges are unreasonable within the meaning of section 15 of the supply of goods and services act 1982 the defendant pleads 6.1 the claimant is required to plead and prove the necessary factors (referred to in sect 15 SGSA) concerning the contract between the claimant and the defendant which mean that pursuant to SGSA section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract. 6.2 Further the claimant is required to plea and prove (a) that the bank charges which have been debited are unreasonable (b) all facts and matters upon by the claimant in support of this case and © what charges would have been reasonable. 6.3 in the circumstances no grounds are disclosed for acclaim that the defendant has acted in breach of SGSA section 15. 6.4 In the circumstances ( save as appears below ) the defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA sect 15 as alleged or at all. The defendant reserves its right to plead further to this allegation once ( and if) the defects in the pleaded case refer to in para 6.1-6.3 above are addressed. 6.5 It is the case of the defendant that the contract between the claimant and the defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the claimant and the defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimant and the defendant.

1. The claimants claim for cost not being sufficiently particularized, the defendant is unable to plead and reserve the right to plead upon further particulars.

1. To assist the claimant with the proper particularization of the claim the defendant serves with this defense a request made pursuant to CPR part 18 . If the claimant fails to provide the particulars requested in the time stipulated and / or the defects with the claim referred to in Para 1 above remain then the defendant will apply to the court for ( among other things ) an order striking out the claim.

1. Pending the proper particularisation of the claim the defendant is unable to plead to the claimants claim beyond at this stage denying that the defendant is liable to the claimant as alleged in the claim or at all . the defendant reserves the right to amend this defence to plead further to the claimants claim once or if the claimant properly particularisise the same

1. Save as herein before appears the defendant joins issue with the claimant on the claims and denies that it is liable to the claimant as alleged or at all.

Second letter (The request.)

 

1. This request is served pursuant to CPR part 18 alternatively with regard to CPR Rule 27.2(3)
   
2. The reason why this request has been servesd are set out in the defence which has been served by the defendant
   
3. You are asked to provide a response to this request in accordance with CPR part 18 by 9th April
   
4. If you are unable to provide a response by this date you are asked to contact the defendants solicitors promptly and tell them when you will be able to provide a response
   
5. in the event that you do not provide a response to this request by this date the defendant can apply to the court for an order requiring you to provide the information requested or ( in view of the deficiencies in the way that the claim is pleaded) order striking out of the claim.

 

In your claim you state the defendant debited charges and interest in respect of purported breaches of contract

 

1. 
   

2. 1. 
      

   2.  

       

      Yes quite a mouth full and a lot of duplication, how do I respond please

      Mymoney

       

      Crikey.... why they couldn't just say "Could you send us a list of the charges you claim where unlawful" ....

       

      Can't give you any advice 'cos i'm not a lawyer - but that's what they rely on I suppose.

      
      
   3. Please specify all of the fact relied on by the claimant in support of the contentions in para 3 above , and in particular please identify (a) the section of the Unfair Contract Terms and Conditions act 1977 (UCTA 1977) (b) the regulations of the unfair terms in consumer contracts regulations 1999 © the principles of common law relied upon by the claimant in alleging that the contractual provisions referred to are unenforceable . Please also identify the contractual provisions that the claimant alleges are unenforceable by reference to UCTA / the regulation.
   
   
3. Please provide the particulars in support of your claim 2.1 In relation to each charge please identify (a) the date when the charge was charged (b) the amount of the same © the reason (d) given for the charging of the same . 2.2 In relation to each charge please clarify the following (a) is it the case of the claimant the same should not have been charged . (b) if yes please explain why the claimant contends that the same should not have been charged .© if no is it the case of the claimant that the same amount should not have been charged in this amount.(d) if yes please explain why the claimant contends that the same should not have been charged in this amount and identify the sum the claimant contends should have been charged (e) if no please state the claimant case . In your claim you state that the charges are unenforceable under the unfair terms in consumer contracts regulations 1999 the unfair terms act 1977 and at common law.

[bungle900]

I don't know for sure but it sounds like the standard timewasting response in asking for more info ie. cpr 18 request personally i would reply with the cpr18 response letter - see sticky (by Martin3030)

at top of natwest forum - hope this helps and best of luck

regards

Mat

[Parkvale]

Hatter,

 

I Acknowledge the receipt of the defence posted on behalf of National Westminster Bank PLC.

I am not prepared at this stage to answer the CPR Part 18 Request. I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative. As I understand the above I shall not be replying to this request unless asked to do so by the courts and your deadline of the **** for this request will not be met.

 

 

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. However, for clarity, I confirm the charges I am claiming were applied to the following account:

Account Name:

Account number: ********

Sort Code: ******

Please also find enclosed a breakdown of all charges I am claiming. I will however point out that a copy of this breakdown has been sent to your client on two occasions and was filed with the N1 when I approached the courts to make this claim.

 

Is part of your claim over 6years ? Because they mention the limitations act. Don't be put off by their defence because that is what they are aiming to do. Scare into sibmission. The defense looks standard to me.

[fendyweather]

Yaaaaaaaaaaaaaaaay for Parkvale. Always to the rescue of us mere mortals.

 

Fendy xx

[mymoney001]

Thanks every one for the information especially Parkvale, thought it was time to call it day but you have restored my faith, will proceed with the letter and let you know how I get on

 

Many Many Thanks Mymoney...

[Parkvale]

Pleasure, onwards and upwards.

[mymoney001]

Hatter,

 

I Acknowledge the receipt of the defence posted on behalf of National Westminster Bank PLC.

I am not prepared at this stage to answer the CPR Part 18 Request. I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative. As I understand the above I shall not be replying to this request unless asked to do so by the courts and your deadline of the **** for this request will not be met.

 

 

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. However, for clarity, I confirm the charges I am claiming were applied to the following account:

Account Name:

Account number: ********

Sort Code: ******

Please also find enclosed a breakdown of all charges I am claiming. I will however point out that a copy of this breakdown has been sent to your client on two occasions and was filed with the N1 when I approached the courts to make this claim.

 

Is part of your claim over 6years ? Because they mention the limitations act. Don't be put off by their defence because that is what they are aiming to do. Scare into sibmission. The defense looks standard to me.

 

Hi All

 

I have recently submitted my AQ to the courts and the suppporting docuemnts i.e draft / charges ect. do i now have to submit anything esle or is it case of waiting and see what happens

[Parkvale]

Wait and see. Ihave been waiting 11 weeks since my AQ was received by the court.

Give the court a ring occasionally

[mymoney001]

Hi Can you provide me with some assistance with this issue

 

Identified some differences when I rec’d a copy of Cobbetts AQ today which I am not sure about.

 

1 . Pre action protocols ( part 2)

 

EXCHANGE OF INFORMATION OR DOCUMENTS WITH THE OTHER PARTY – ANSWER : No

 

2. Amount of claim in dispute = £ 6078.66

 

This is the original figure I was claiming which broken down is

£ 4739.35 claim

£ 1089.31 interest at 8%

 

Total = £5828.45

 

£ 250 court cost added at time of submitting on MCOL

 

Less cash handling fee £185

 

I realized I was not able to claim back the cash handling fees of £185 so I then recalculated the charges and completed a new schedule of charges, I then sent a copy to bank and a copy to the courts MCOL, but they have quoted the original figure. On my AQ I have stated the recalculated figure and included a copy of the schedule of charges.

 

 

3. Which track do you consider to be most suited for your claim.

 

I have stated that the small claims is more suited as the claim is under £5K

 

Cobbetts have stated fast track.

 

4. Trial or hearing

 

Cobbetts have estimated 3 hours

 

 

5. Costs

 

Cobbetts have estimated cost incurred to date of £300.00

 

what do i need to do now

Mymoney

[fendyweather]

http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=37&Itemid=78

 

Here you go. Click on the link above. It will tell you everything you need to know help wise about completing the AQ. It is likely that the claim will be allocated to small claims because its under 5K without interest on. Cobbets can ask the courts for all they like i.e. fast track but it doesnt mean theyre going to get it.................... and even if they do, your'e still home and dry because under Fast Track they will be made by court to actually disclose the actual breakdown of costs of your charges, and that my dear friend, to date, is something they have never ever ever ever done and wont do, because they cant. SO EITHER WAY, dont worry. Youre home and dry. Just ensure you send the AQ back within the time scales given, and dont worry about a thing..................the money is yours, you just got to submit the AQ on time, and wait for court date, they will settle before ................ Have courage and faith........ and stop worrying......... Lol Fendy xxx

[mymoney001]

Thanks Fendyweather, was not to sure of where this was all going,

 

thanks for your help, just need to wait for the court date

[fendyweather]

Exactly, and Im positive they will settle before then. It might even be the morning of the trial, but believe me, they will settle rather than appear in court. THE END IS NIGH.......... THE MONEY IS ALMOST YOURS AGAIN. Lol, take pleasure from the fact you are almost there. Fendy xxx

[mymoney001]

Hi All,

 

At the court stage, and yesterday rec’d a letter from the courts, nervous about what I have to do and the thought of going to court, I only have a week to prepare the information

Do I need to request more time??????

 

1. Judge has considered the statements of case and allocation questionnaires filed and

allocated the claim to the small claims track ( the claim net of interest being for less

than £5000)

 

2.The claimant shall by 4 pm on 25th May 2007 send to the defendant and the court :

 

a) A schedule setting out each charge repayment of which is sought , showing the date , amount and reason given ( if any) for the charge being made.

b) Copies of any statements or other documents relied upon as showing that every charge has been made

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise.

d) Copies of decided cases and other legal materials relied upon.

 

If the claimant fails to comply with the order the claim will be struck out without further notice

 

3. The Defendant shall by 4pm on the 1st June 2007 file and serve a response to the

claimants schedule, stating in respect of each item claimed.

 

a) Pursuant to what contractual provision such charge was made , produce a copy of the

Contractual document relied upon.

 

b) Whether such charge is accepted to be a penalty, and if not why not.

c) If such charge is alleged to be a pre-estimate of the defendants loss incurred by the claimant’s actions ( whether or not such action is treated as a breach of the contract between the parties) all facts and matters intended to be relied upon as showing that such was a proper estimate of loss and all evidence to b adduced at trial as to what the true cost of dealing with this matter was.

d) If such charge is not alleged to be a pre-estimate of the defendants loss occurred by the claimants actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

e) Any witness statements

f) Copies of decided cases and other legal material to be relied upon

 

 

 

 

 

 

If the Defendant fails to comply with this Order the defence will be struck out without further notice.

 

4. The hearing of the claim will take place at 10.00 am on the 12th July 2007 and should

take no longer than 30 minutes .

 

The parties shall notify the court forthwith upon compliance with paragraphs 2 and 3

above if it appears that a longer time estimate is required . They shall thereupon seek

a fresh trial date when more time will be available

 

 

The court must be informed immediately if the case is settled by agreement before the

hearing date.

 

Worried about what to do, Help greatly needed.

[Parkvale]

Iam afraid hard work starts here. You will need to put in your court bundle by the 25th May which is not along time away. Read this and ask as many questions as you like.

http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html. On the positive side they are good directions, because Nasty West will not defend them, but you cannot take that chance so you need to do what the court is asking. Good luck.

[steven4064]

Hi mymoney

 

In fact what the judge has ordered is pretty much what people on this site try to get judges to order (see end of second post in http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html)

 

Here's what you need:

 

a) A schedule setting out each charge repayment of which is sought , showing the date , amount and reason given ( if any) for the charge being made.

 

This is just the schedule you have sentthem before

 

b) Copies of any statements or other documents relied upon as showing that every charge has been made

 

This is copies of all the statements that you used to compile the schedule

 

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise.

 

This is a witness statement that I will post below from another thread - you will need to modify to suit your case. Also make sure you attach a copy of the terms and conditions that relate to your account

 

d) Copies of decided cases and other legal materials relied upon.

 

This is the basic court bundle (http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html)

Hope this helps. It is a fair bit of work but everything you need is here.

 

Steven

[steven4064]

Sample statement of evidence (not all will apply and some will need modification):

 

STATEMENT OF EVIDENCE

 

 

- The Claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising out of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

- The Defendant contends that the charges levied are legitimate fixed price contractual services, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

- The Claimant believes a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty.

 

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. Add an example of a charge incurred due to going over by a small amount, for example -On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence.I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

- In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915], Lord Dunedin stated that a clause is a penalty if it provides for “a payment of money stipulated as in-terrorum of the offending party”, i.e. if it is designed to scare or coerce or is used as a threat.

 

- The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously. Here, add in details of any correspondence in which the bank referred to the charges as ‘penalties’, ‘defaults’ or ‘exist to cover costs’, etc. For example -In correspondence with Lloyds TSB’s ‘Customer Service Recovery’ department in July 2006, Martin Orton, who is manager of the department, stated this in a letter: “As you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs”. This was in response to a direct and plain request to justify Lloyds TSB’s charges. Throughout the letter, no mention was ever made of the charges as being the cost of any sort of ‘service’.(If anyone wants a copy of this letter, drop me a PM with your address and I'll post it to you.)

 

- Additionally, the [claimant believes there to be a high possibility that the] terms and conditions of [his / the claimants] account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the defendant that the claimant is aware. However, the bank has failed to provide me with a copy of the account contract, despite repeated requests to do so, so unfortunately this cannot be proved. A right of subject access request for this document was submitted to the defendant under the Data Protection Act 1998, on 8th September 2006. The defendant has failed to comply. Here, if your account contract states the charges as ‘breaches’ use the text in black. The blue bit was true in my case and I’ve left it there as an example. If it applies to you, keep it in, if not, take it out.

 

- The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR’s. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

- As pleaded above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

- However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

- Further, under the UTCCR:

5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

 

- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

- The cost of Lloyds charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

- Following on from the above, the claimant does not accept The Defendants contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. A penalty however, is unenforceable.

 

- The law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848.

 

- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.

 

- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 -

“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach”

 

- Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

- In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.

 

- On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

- In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65.

 

- The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

- For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

- It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out this completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

- In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.

 

- Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

- On 22nd May 2006, the house of commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house discribed such default charges as "exorbitant" and "excessive".

 

- The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

- As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that they make profits from these fees. The Defendant seemingly contends that their charges are not subject to an assessment of fairness. This implies they can set these fees at whatever level they like without regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant’s own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, and unduly and substantially enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

 

I, the Claimant, beleive all facts stated to be true.

 

Signed, dated.

Documents attached in support of this statement

• Letter from Martin Orton, Lloyds TSB Customer Recovery Centre - or any letter or material in which the charges are described as 'defaults', 'penalties', 'covers costs', etc.
  
• Account Contract - if applicable. See para 8
  
• Office of Fair Trading report, April 2006
  
• House of commons early day motion, May 2006
  
• Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day
  
• BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission
  
• Australian Default charges report, Nicole Rich - http://www.clcv.net.au/downloads/Med...20Report .pdf
  
• Transcript of telephone communication with Lloyds TSB 'personal banking' department.
  
• Data Protection Act Subject Access Request for evidence of manual intervention
  
• Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.

All pre-litigation correspondance between the parties

 

 

 

Steven

[mymoney001]

Help tie running out

 

'Special' directions -

Increasingly in many penalty charges claims, more specific 'special' directions are being ordered, such as those proposed in the new strategy for AQ's. They generally look like this, although can vary slightly -

 

Quote:

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

b) copies of any statement or other document relied upon as showing that each and every charge has been made;

c) a statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

d) copies of decided cases and other legal materials to be relied upon.

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

 

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

b) whether such charge is accepted to be a penalty, and if not why not;

c) if such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

d) copies of decided cases and other legal materials to be relied upon.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

To comply with these directions, you need to submit to the court office and other side everything which is asked for in the claimants part of the order. In the example given above, this would be;

 

 

 

a) A schedule of charges

b) Statements or account info provided under your subject access request

c) A statement of evidence

d) Cases and statutes, as found in the Basic Court Bundle

 

Take notice of the strict deadlines given in orders of this type - its even more important than ever to get everything ready and submitted in plenty of time.

 

Useful thread;

kaz v lloyds visa ***WON***

 

I have reveiwed the infromation and believe I fit in to thjis catagory is this all I will need to complete my court bundle Mymoney

[Parkvale]

Please explain a little clearer about "this catagory" http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html#post553523

[steven4064]

Hi All (particularly Parkvale for comments)

 

I attached the statement of evidence above which is the same as that to be found via the link on your last post. Having looked at it more carefully, I wonder if the first part needs tweeking to make the breach of contract more obvious in light of the Birmingham case. What do you think?

 

The latest Nat West T&Cs (which is what we may have to rely on if we can't find the ones current at the time the account was opened) have tried to obfuscate the breach of contract. Section 1b says

 

Operations on the account

 

If at any time we receieve instructions to withdraw funds from the account where

- there are insufficient funds available to cover the withdrawal, or

- the requested withdrawal would cause an agreed overdraft limit to be exceeded

we may exercise our sole dsicretion and, without contacting you, either (1) refuse to pay some or all of the item and/or (2) allow an overdraft to be created or allow the borrowing limit to be exceeded (in which case, the new or excess overdraft is an unarranged overdraft).

For the purposes of assessing whether you have sufficient funds available to cover the withdrawal, or whertherthe withdrawal would cause an agreed overdfraft limit to be exceeded, we will look at the cleared balace (plus, where applicable, any unused agred overdraft facility) on your account at 3.30 pm on the working weekday befreo we receive the instruction to withdraw funds.

 

LATER

 

Fees, Interest and Other Charges

 

Fees for operating the account and interest rates and charges payable are charged as detailed in the leaflet 'A guide to Personal Current Account Fees' relating to the accounbt and are subject to review from time to time. If any changes are made, details of the revised charges will be sent to you at least 30 days before the implementation date for the charges.

In the leaflet (which MUST form part of the T&Cs) referrenced they say

 

Unarranged borrowing - interest and fees

Interest

 

We would encourage you to agree an overdraft limit with us so you can avoid any unnecessary charges. If there is not enough money in your acount and you have not cojntacted us to arrange an overdraft limit in advance, we may not allow you to withdraw momey. Also we may not be able to pay your chaeques, Standing Orders or DirectDebits... We will charge a fixed fee for each item we do not pay.

 

It then goes on to give details of interest rates and the various types (and amounts) of fees - unarranged borrowing, paid referral, etc.

 

There is no specific contract term that says that we must not try to withdraw money when there are insufficient funds available to cover the withdrawal, or if the requested withdrawal would cause an agreed overdraft limit to be exceeded.

Presumambly, however, we can argue that this regime (even though obviously designed to obscure the fact) constitutes an implied term that requires us to manage the account properly and that, if we do not, a penalty will be incurred. That is, that although the words 'breach of contract' or anything like them, do not occur in the T&Cs, the implied term that we must manage the account well and the penalties associated with not doing so, do constitute a penalty for breach of contract.

 

What do you (or anyone else) think?

 

Steven