Just about to start

[steven4064]

Part 2 of above discussion:

 

Back to the T&Cs. LATER again:

 

Overdrafts

 

Overdrafts are available on request ..... We may refuse to pay a cheque (or allow any other payment or withdrawal) which could have the effect of exceeding the overdraft limit. If we do paya cheque (or allow any other payment or withdrawal) which results in the overdraft limit being exceeded, it will not mena that the overdraft limit has changed, or that we will pay any other cheque (or allow any other payment or withdrawal) which would have the same effect. You agree that if you or any appropriately authorised signatory on the account:

a) formally requests an overdrat limit or an increased overdraft limit and we agree to the request; or

b) informally requests an overdraft by issuing a payment instruction in any form (eg issuing a chan=que or making a card transaction on teh account) which either through exercise of our discretion to pay the item on presentation for payment or through payment being guaranteed to a third party, results i the acount becoming overdrawn when no agreed overdraft limit is in place or which results in the overdraft limit being exceeded;

in either case, this will be treated as a variation to the contract (ie not revoking and replacing any earlier agreement) under which overdraft facilities are provided by us. If they arise through exercise of our discretion to pay items presented for payment or through payment being guaranteed to third parties, they will be an unarranged overdraft.

 

The key word here is variation. By introducing this word they are agaijn trying to hide the fact that it is a breach of contract. (Because if there is no breach of contract there cannot be a penalty for breach of contract, merely a penalty for something else, which may or may not be lawful).

 

I do a lot of work under contracts. A contract variation arises because something has come up which was not envisaged at the time the contract was drawn up. Many engineering companies make most of their profit via contract variations, ie they exploit the fact that the contract was not very thorough and didn't think of everything, particularly the event that is the subject of the variation.

 

In the Nat West case, they have written a contract variation into the contract. I think that makes the thing that is the subject of the variation (going overdrawn) a contract term. Hence going overdrawn is a breach of contract not a contract variation.

 

Again, comments?

 

Steven

[mymoney001]

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

 

Steve

 

I don't think i am qualified to comment,on this matter and would reply on your lead with this matter

 

 

can any one help?

look forward to your comments

 

mymoney

[steven4064]

Hi mymoney

 

I'm sorry, I have sort of hijacked your thread. I hoped Parkvale would give an opinion and you could use any words we come up with in your statement.

 

Steven

 

If this post is helpful, please click the scales

[Parkvale]

Parkys here. steven. Sorry i did look earlier, but got distracted. The big issue here about the T& C's is that they still have not defended one case in a court room involving their penalty charges. The variation of the contract still does not mention specifically the word "service." Which is what the judge in the Lloyds case ruled on .That Lloyds fees were a service fee for allowing you to go overdrawn and not a set charge. I agree with you Steven about your comment " In the Nat West case, they have written a contract variation into the contract. I think that makes the thing that is the subject of the variation (going overdrawn) a contract term. Hence going overdrawn is a breach of contract not a contract variation." The fact Nat West are still paying out as we speak must make you feel easier.

[fendyweather]

Ooooo it does me. Big time............ Fendy xxx

[steven4064]

The fact Nat West are still paying out as we speak must make you feel easier.

 

Yes it does. The problem with the B'ham case was that LLoyds didn't show and the judge went with what he had in front of him. Several recent Nat West defences show that they are aware of the ruling and they have been trying to scare people with it.

 

So far, Nat West have always settled (just) before the case was due in court. I am just trying to cover all bases in case they slip up, forget the date and don't show. I think that what we send to the court has got to make sure that it doesn't leave the hole (no T&Cs = no breach = no penalty) that was left in the B'ham case.

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Hi mymoney

 

I suggest these paragraphs should be inserted in the Statement of Evidence as we discussed.

 

 

- The current Bank Terms and Conditions (November 2006) state in relation to these charges:

 

Operations on the account

 

If at any time we receive 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 discretion 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 whether the withdrawal would cause an agreed overdraft limit to be exceeded, we will look at the cleared balance (plus, where applicable, any unused agreed overdraft facility) on your account at 3.30 pm on the working weekday before we receive the instruction to withdraw funds.

AND

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 account 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.

 

- The leaflet referenced must be considered to form an integral part of the Terms and Conditions. In relation to these charges, it says

 

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 account and you have not contacted us to arrange an overdraft limit in advance, we may not allow you to withdraw money. Also we may not be able to pay your cheques, Standing Orders or Direct Debits... We will charge a fixed fee for each item we do not pay.

 

- The Claimant contends that these Terms imply a term requiring that, in the proper running of the Account, sufficient funds (including any agreed overdraft facility) must be maintained in the account to cover withdrawals or the result will be a charge. (It should be noted that this Condition applies even in cases over which the customer has no control ,eg the paying of a Direct Debit where the payment date and amount are controlled by the payee.)

 

- Further, the Claimant contends that, although these charges are referred to as “Fees for operating the account”, the Term is a clear statement that a charge will be imposed if the customer breaks the requirement that sufficient funds be in the account at the time of any withdrawal. The term itself sets out that the charge arises purely on the occurrence of the event and, as such, is a penalty or default charge rather than a fee for operating the account.

 

- Further, the Claimant contends that there is a very strong argument that these charges constitute “disguised penalties” – the OFT report “Calculating fair default charges in credit card contracts - A statement of the OFT's position”, April 2006, says,

“4.21 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 to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism. “

 

- On overdrafts the current Terms and Conditions say:

 

Overdrafts

 

Overdrafts are available on request ..... We may refuse to pay a cheque (or allow any other payment or withdrawal) which could have the effect of exceeding the overdraft limit. If we do pay a cheque (or allow any other payment or withdrawal) which results in the overdraft limit being exceeded, it will not mean that the overdraft limit has changed, or that we will pay any other cheque (or allow any other payment or withdrawal) which would have the same effect. You agree that if you or any appropriately authorised signatory on the account:

a) formally requests an overdraft limit or an increased overdraft limit and we agree to the request; or

b) informally requests an overdraft by issuing a payment instruction in any form (eg issuing a cheque or making a card transaction on the account) which either through exercise of our discretion to pay the item on presentation for payment or through payment being guaranteed to a third party, results in the account becoming overdrawn when no agreed overdraft limit is in place or which results in the overdraft limit being exceeded;

in either case, this will be treated as a variation to the contract (ie not revoking and replacing any earlier agreement) under which overdraft facilities are provided by us. If they arise through exercise of our discretion to pay items presented for payment or through payment being guaranteed to third parties, they will be an unarranged overdraft.

 

- The Claimant contends that the word ‘variation’ is another example of the Defendant attempting to disguise penalties and that charges arising because of these contract ‘variations’ are just another form of ‘disguised penalty’.

 

- The Claimant refers to the fact that normally contract variations arise because some event or circumstance has arisen during the course of the operation of the contract that was not envisaged at the time the contract was executed. In this case, the Defendant has effectively written a contract variation into the contract. The Claimant contends that this has the effect of making the subject of the variation, namely the ‘informal request for an overdraft’ a breach of the implied contract term that the customer must maintain sufficient funds in the account to cover all withdrawals.

This is based on Nat West's current T&Cs and is an attempt to demonstrate that the charges are penalties (or possibly liquidated damages if they can show they are proprtional to their costs - which they can't).

 

Does anyone else have any comment on this?

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Sorry guys, barkingup the wrong tree. Mymoney tells me this is a CREDIT CARD account not a CURRENT account. Hopefully the above post might be useful to someone else. Here is the corresponding text for a CREDIT CARD account:

 

- The Credit Card Agreement (copy attached), which covers this account, states in relation to these charges:

 

1 The card

 

(a) You (and any additional cardholder) must do the following:

• Sign the card when you or the additional cardholder receive it.
  
• Keep the card secure at all times and do not allow any other person to use it.
  
• Memorise the PIN and then immediately destroy any note of it.
  
• Keep passwords secret and take all reasonable precautions to prevent them becoming known to another person and prevent their fraudulent use.

(b) You (and any additional cardholder) must not do the following:

• Go over your credit limit or advance limit.
  
• Use the card before or after the period it is valid for or after you receive notice that we have cancelled or withdrawn the card.
  
• Use the card to carry out transactions for illegal purposes.

2 Using the card account

 

Statements

 

(h) Each month we will send you a statement showing:

• any repayments you have made; and
  
• all amounts charged to your account;

since your previous statement.

You must pay us the minimum payment on or before the payment date shown on your statement. (i) When we tell you, you must also immediately pay us:

• any amount you owe over your credit limit.
  
• any unpaid payments from previous statements.
  
• any late payment charges shown on your statement; and
  
• the amount of any transaction that breaks this agreement.

(j) We may give you notice allowing you not to pay a monthly payment. When this happens we will continue to charge interest on the full balance of your account, including transactions shown on your latest statement.

Charges

 

(k) If you do not keep to any of these conditions, you may have to pay our administration charges as set out in our published tariff. The published tariff also includes details of other charges you may be required to pay. We will apply these charges to your account. We may change our charges from time to time to reflect the costs incurred by us. When dealing with changes to our charges we will comply with condition 8.

 

- The Claimant contends that these Terms require that, in the proper running of the Account, the credit limit must not be exceeded and the minimum payment must be made on or before the payment date OR the result will be a charge.

- Further, the Claimant contends that, although these charges are referred to as “administration charges”, the contract Term is a clear statement that a charge will be imposed if the customer breaks either requirement that the credit limit must not be exceeded or that payments must be received on time. The term itself sets out that the charge arises purely on the occurrence of the event and, as such, is a penalty or default charge rather than an administration fee.

- The Claimant contends that there is a very strong argument that these charges constitute “disguised penalties” – the OFT report “Calculating fair default charges in credit card contracts - A statement of the OFT's position”, April 2006, says,

“4.21 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 to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism. “

 

Steven

 

(ps I've no idea why mosti s in blue but some has come out in black)

[livelylad]

6 threads merged please stick to one for this claim.

[mymoney001]

Sorry guys, barkingup the wrong tree. Mymoney tells me this is a CREDIT CARD account not a CURRENT account. Hopefully the above post might be useful to someone else. Here is the corresponding text for a CREDIT CARD account:

 

- The Credit Card Agreement (copy attached), which covers this account, states in relation to these charges:

 

1 The card

 

(a) You (and any additional cardholder) must do the following:

• Sign the card when you or the additional cardholder receive it.
  
• Keep the card secure at all times and do not allow any other person to use it.
  
• Memorise the PIN and then immediately destroy any note of it.
  
• Keep passwords secret and take all reasonable precautions to prevent them becoming known to another person and prevent their fraudulent use.

(b) You (and any additional cardholder) must not do the following:

• Go over your credit limit or advance limit.
  
• Use the card before or after the period it is valid for or after you receive notice that we have cancelled or withdrawn the card.
  
• Use the card to carry out transactions for illegal purposes.

2 Using the card account

 

Statements

 

(h) Each month we will send you a statement showing:

• any repayments you have made; and
  
• all amounts charged to your account;

since your previous statement.

You must pay us the minimum payment on or before the payment date shown on your statement. (i) When we tell you, you must also immediately pay us:

• any amount you owe over your credit limit.
  
• any unpaid payments from previous statements.
  
• any late payment charges shown on your statement; and
  
• the amount of any transaction that breaks this agreement.

(j) We may give you notice allowing you not to pay a monthly payment. When this happens we will continue to charge interest on the full balance of your account, including transactions shown on your latest statement.

Charges

 

(k) If you do not keep to any of these conditions, you may have to pay our administration charges as set out in our published tariff. The published tariff also includes details of other charges you may be required to pay. We will apply these charges to your account. We may change our charges from time to time to reflect the costs incurred by us. When dealing with changes to our charges we will comply with condition 8.

 

- The Claimant contends that these Terms require that, in the proper running of the Account, the credit limit must not be exceeded and the minimum payment must be made on or before the payment date OR the result will be a charge.

- Further, the Claimant contends that, although these charges are referred to as “administration charges”, the contract Term is a clear statement that a charge will be imposed if the customer breaks either requirement that the credit limit must not be exceeded or that payments must be received on time. The term itself sets out that the charge arises purely on the occurrence of the event and, as such, is a penalty or default charge rather than an administration fee.

- The Claimant contends that there is a very strong argument that these charges constitute “disguised penalties” – the OFT report “Calculating fair default charges in credit card contracts - A statement of the OFT's position”, April 2006, says,

“4.21 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 to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism. “

 

Steven

 

(ps I've no idea why mosti s in blue but some has come out in black)

 

Hi All

I am now getting very nervous the court date is due.

 

Original notice of allocation 16th May, scheduled court date for 11th July 2007.

 

I then rec'd a notice of application Details :

 

"Take notice that the application will take place on 20th July when you should attend . 30 mins has been allowed for the application

 

Note : this case may be released to another Judge, possibly at adifferent court.

 

I hav rang the courts but still not rec'd any information about application

 

I have submitted my court bundle on time. Since then I have rec'd 2 standard letters from the customer care centre offering to repay £141 of the amount being claimed, which I have replied with a decline letter, stating prepared to accept provided that it is part of full settlement.

 

 

The NatWest have failed to comply with the courts notice of allocation

 

"The defendant shall within 14 days thereafter file and serve a respose to the claimants schedule stating in respect of each item claimed"

 

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

 

 

I have submitted a letter to the court Requesting:

 

IN THE XXX COUNTY COURT CLAIM NO. XXX

 

BETWEEN]

 

 

 

Mr xxxxx

 

 

and

 

NATIONAL WESTMINSTER BANK PLC Defendant

 

I respectfully request that the defence be struck out and judgement be entered pursuant to CPR 3.4 (2) © and (b) as no documents were supplied as stipulated in the court order by DISTRICT JUDGE xxx on xxx th May 2007.

 

3.4 (2) The court may strike out a statement of case if it appears to the court – (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or © that there has been a failure to comply with a rule, practice direction or court order[/font]

 

The following directions were applied,

 

The copies shall be delivered by 4pm 1st June 2007.

 

I have allowed a further 14 days since the order for the defendants solicitors to comply.

 

A letter was sent to Cobbetts solicitors with all the relevant witness statements and documents , a copy which I submitted to court before the deadline.

A courtesy phone call was made today at 3.15pm to obtain the information but was told that no file could be found with that ref no.

I would like further costs to be added which I have incurred , which I can supply on request.

 

yours faithfully

 

Still no reply, any advice any one, is there anything else i should do before going to court on 20th

 

Mymoney

[steven4064]

I don't think you need do anything else - your letter looks pretty good to me. that ought to be that - NatWest were ordereed to provide documents by a certain date or their defence would be struck out. They have not provided them so their defence should get struck out. What more can be said?

[mymoney001]

Today i have rec'd a general form of judgement order from the courts

 

reads as follows :-

 

Before Deputy district Judge xxxx sitting in xxx county court

 

it is ordered that:

 

Small claims hearing adjourned and further drection wil be given at the conclusion of the defendants application to strike out listed at 10.45 on 20th July.

 

 

what does this mean and has anyone rec'd a similar copy if so how do you respond

[steven4064]

We think the court may have made a mistake - ring them tomorrow and see if they mean "claimant's application to strike out" and then post back

[steven4064]

Wayne

 

got your message - please post Cobbetts strike out request as soon as you can

[mymoney001]

got your message - please post Cobbetts strike out request as soon as you can

 

Witness statement to follow

 

Details of Defense from cobbetts

1 this defense is filed and served without prejudice to the defendants case the part 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 Part of claim or any other sums. In the event the 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

2. Without prejudice to the non – admission set out in the foregoing par, if and to the extent that the claimant proves the allegation the defendant debited charges to the bank account , insofar as such charges were debited on a date or dates 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 judgment.

3. No admissions are made as to what charges have been debited to the

claimants account.

4. 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. The date the same was

debited the amount of the sum and the desc applied to each.

5 In relation to the allegation that the contractual provisions pursuant to which the

charges have been applied are unenforceable by virtue of the UCTA1977

and/ or UCTCR 199 and or common law the claimant is required to identify

5.1 (a) the section of the UCTA 1977 (b) the regulation of the UCTCR1999 and © the principles of common law relied upon by the claimant in alleging that the

contractual provision referred to are unenforceable and

5.2 the contractual provision that the claimant alleges are invalid by ref to UCTA 1977 and or reg.

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 allegation once and if the claimant identifies the relevant contractual info.

6. In relation to the case 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 as follows:

6.1 The claimant is required to plead and prove the nesses say 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 plead and prove that the bank charges

which have been debited are unreasonable all facts and matters relied upon

by the claimant in support of this case and what charges would have been

reasonable

6.3 In circumstances no grounds are disclosed for the claim that the defendant has acted in breach of SGSA section 15.

6.4 In the circumstances the defendant is unable to plead to this section to the allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all.

The defendant reserves its right to plead further to this allegation once the

defects In the pleaded case referred to in Para 6.1- 6.3 above are

addressed.

6.5 It is the case of the defendant that the contact btw the claimant and the defendant does not fall within SGSA section 15 because the consideration for the service would be determined in a manner agreed by the contract or determined by the course of dealings btw the claimant and the defendant.

• The claimants claim for cost not being sufficiently particularized the defendant is unable to plead and reserves the right to plead upon further particulars

• To assist the claimant with the proper particularization of the claim the defendant

serves with the defense a request made pursuant to CPR part 18. if the

claimant fails to prove the particulars requested in the time stipulated and or

the defects with the claim ref to in Para 1 remain the defendants will apply

to the court for among other things and order striking out the claim

• Pending the proper particularization 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. The defendant reserves its right to amend this defense to plead further to the claimant claim once or if the claimant properly particularize the same.

10 Save as hereinbefore appers the defendant joins issue with the claimant on the

claims and denies that it is liable to the claimant as alleged or at all.

LC Burgoyne

Dated 26th March 2007

[mymoney001]

Witness statement include with defence

Application notice

Part A

The defendant Natwest Bank

Intend to apply for a n order that part of the claimant statement of case is struck out.

The part of the statement of case discloses no reasonable grounds for bringing a claim of this amount under CPR 3 .4 /2a

Part B

We wish to rely on the attached witness statement .

I am a solicitor having conduct of this matter on behalf of the defendant on whose behalf I am authorized to make this witness statement

I make the witness statement from facts within my own knowledge save where otherwise stated. Where otherwise stated those facts are provided to me by the defendant

I make the witness statement in support of the defendants application dated 31 May 2007 for an order that part of the claimants claim be struck out. The grounds of the application are that the defendant believes the fact ref to in part of the claimant claim do not disclose any legally recognizable claim against the defendant.

Back ground of application

The clainm was issued by the calaimant under CPR part 7 on 21 Feb 2007 LCB1 page 5 and the claim form was served on the Natwest bank

The claimant caims the return of charges taken from his credit card account in respct of penalty charges in the sum of £4739 together with statutory interst under s .69 county courts act 1984 at an anuuaul rate of 8%

Following the defendants request for further information served on 26 March 2007 the claimant provided a schedule of charges he wished toclaim. The schedule is attached at LCB1 page 6-8 . Upon receipt of the schedule it came to the defendants attention that the claimant was in fact only claiming £377 charges and the remaining part of the claim relates to interest that has accrued on the account.

Pursuant to sect 69 of the county court act 1984 the claimant is entitled to claim interest at a rate of 8% a year from the date that the charge was incurred until the date of issue of the claim form, and also interest at the same rate up to the date of judgement or earlier payment at a dialy rate of £ 0.22p . The defendant calculates th interest pursuant to hia claim and accruing from the date of each charge was incurred until May 2007 total £77.89

It is the defendants view that the additional interest included within the claim has accrued on the account primarily and extensively due to the claimants transactions and only a small part of such interest is as a consequence of charges levied on the account.

Application to strike out

Pursuant to part 3.4 2a CPR a court may strike out a part of a statement of case if it appears to the court that the statement of case discloses no reasonable grounds for bringing the claim.

I respectfully submit that the interest figures detailed within the fourth column of the claimants schedule of charge accrued in line with the claimants banking contract with the defendant and as a consequence of the claimants spending on the account and is not recoverable in contract and or within these proceedings.

I respectfully submit that the claimants has no real prospect of succeeding on this part of

The claim in relation to interest on the basis that the claimant has suffered no losses due to a breach of contract by the defendant.

Accordingly I would ask the court to strike out this part of the claimants claim in pursuant to CPR 3.4 2a

[steven4064]

Wayne

 

I am very confused. This is the story so far as far as I can tell. Please can you confirm that I am right.

 

1) You filed using MCOL mid September (post 12)

 

2) 9/10/06 You received Cobbetts defence and CPR 18 request (post 13)

 

3) 27/03/07 You received the same Defence and CPR 18 request (post 29)

 

4) 17/04/07 You replied to CPR 18 request (post 40)

 

5) 23/04/07 Yuo received Cobbetts AQ (post 42?)

 

6) 18/05/07 You received court order for full disclosure (bundle) (post 44)

 

7) 24/05/07 You submitted your bundle to court (post 60)

 

8 ) 01/06/07 Cobbetts bundle due in (no response of course)

 

9) 18/07/07 Order that case was adjourned so that defences application to strike could be considered (post 62)

 

10) You PMd me that court office said tis was because of an interest calculation on your statement of evidence (there is no such calculation)

 

11) 19/07/07 You collected Cobbetts defence from court - which is not the same as the one you receievd in posts 13 and 29 even though it is dated 26/3/07 - and nothing else was given you.

 

Is that right?

[mymoney001]

Wayne

 

I am very confused. This is the story so far as far as I can tell. Please can you confirm that I am right.

 

1) You filed using MCOL mid September (post 12)

 

2) 9/10/06 You received Cobbetts defence and CPR 18 request (post 13)

 

3) 27/03/07 You received the same Defence and CPR 18 request (post 29)

 

4) 17/04/07 You replied to CPR 18 request (post 40)

 

5) 23/04/07 Yuo received Cobbetts AQ (post 42?)

 

6) 18/05/07 You received court order for full disclosure (bundle) (post 44)

 

7) 24/05/07 You submitted your bundle to court (post 60)

 

8 ) 01/06/07 Cobbetts bundle due in (no response of course)

 

9) 18/07/07 Order that case was adjourned so that defences application to strike could be considered (post 62)

 

10) You PMd me that court office said tis was because of an interest calculation on your statement of evidence (there is no such calculation)

 

11) 19/07/07 You collected Cobbetts defence from court - which is not the same as the one you receievd in posts 13 and 29 even though it is dated 26/3/07 - and nothing else was given you.

 

Is that right?

 

 

 

Steve

 

Let me clarify the situtaion

 

Item 1 and 2 are from the 1st natwest claim and the second claim commenced mid Feb 2007 and currently still in progress with Cobbetts

so from item 3 to 11 is 2nd claim (natwest CC claim)

 

documents colleted today witness statement which has just been posted and defence docuemnts which has also been posted

next stage due in court tomorrow

 

Defence posted in 13 is for the previous claim Bank ac

and defence in post 19 is for the current claim NWCC

 

Hope this clarifies things

[steven4064]

The thing I notice is that Cobbetts never obeyed the order of 18/05/07 - so I think you should ask the court to strike out he defence on that basis (it may be what the court are doing anyway if they meant 'claimant' rather than 'defendant' in th order in post 62 - but let's make sure)

In the Toytown County Court Calim No. 123456

 

Between

 

 

mymoney Claimant

 

 

 

And

 

 

 

 

Nat West bank plc Defendant

 

 

APPLICATION TO STRIKE OUT THE DEFENCE

 

 

the Claimant respectfully requests the court to strike out the defence pursuant to CPR Rules 3.4(2)© and (b).

 

On 18 May 2007 the court made an order that

 

"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."

 

The defendant failed to serve a response by 1 June 2007 or indeed since. Therefore the clamant requests that the defence be struck out accordingly pursuant to CPR Rule 3.4(2)© -

3.4 (2) The court may strike out a statement of case if it appears to the court –

© that there has been a failure to comply with a rule, practice direction or court order

 

Further, the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached.

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Therefore the clamant requests that the defence be struck out pursuant to CPR Rule 3.4(2)(b) -

3.4 (2) The court may strike out a statement of case if it appears to the court –

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings

 

The attachment referred to can be found here in the file "NatWest cases"

 

I'm not suire of the layout of the letter and, because it is an application, you may have to fill in a form and pay.

[steven4064]

Zootscoot has pointed out the discrepancy in your interest calcs that the defence have picked up on.

The claimant caims the return of charges taken from his credit card account in respct of penalty charges in the sum of £4739 together with statutory interst under s .69 county courts act 1984 at an anuuaul rate of 8%

 

Following the defendants request for further information served on 26 March 2007 the claimant provided a schedule of charges he wished toclaim. The schedule is attached at LCB1 page 6-8 . Upon receipt of the schedule it came to the defendants attention that the claimant was in fact only claiming £377 charges and the remaining part of the claim relates to interest that has accrued on the account.

 

Pursuant to sect 69 of the county court act 1984 the claimant is entitled to claim interest at a rate of 8% a year from the date that the charge was incurred until the date of issue of the claim form, and also interest at the same rate up to the date of judgement or earlier payment at a dialy rate of £ 0.22p . The defendant calculates th interest pursuant to hia claim and accruing from the date of each charge was incurred until May 2007 total £77.89

 

It is the defendants view that the additional interest included within the claim has accrued on the account primarily and extensively due to the claimants transactions and only a small part of such interest is as a consequence of charges levied on the account.

As you pointed out in your PM you are in court in the morning.

 

It is just possible that Cobbetts may show up.

 

As far as I can tell they never responded to the court order of 18 May - so you should use the first part of the application above (CPR Rule 3.4(2)©) as your opening statement

 

If they don't show up then you could use the second part as well (CPR 3.4(2)(b))

 

You can also ask for wasted costs on the grounds of their unreasonable behaviour - calcualte your costs as about 30 hours at £9.25/hour plus photocopying, postage, paper, say £290.

 

Either way, you ought to have something to say about the interest problem - probably that the defence is correct. You will have to settle for £377 costs + £77+ in interest.

 

All the best, let us know how you got on as soon as you can.