Gandolfi v NatWest

[MARTIN3030]

Yes Els EVERYTHING is available for bedtime reading.

I have a bedroom full of the stuff.

[elsinore]

Yes Els EVERYTHING is available for bedtime reading.

I have a bedroom full of the stuff.

 

You might as well have, you obviously never sleep in it!

 

Els

[MARTIN3030]

Ha Ha...you are not wrong.

theres 3 bedrooms but only one with a bed.

The master bedroom is called "The Barclays Suite ":lol:

 

And I cant even sleep on my sofa-its full of their stuff too.

[gandolfi]

 

However, on this specific point the Appeal judges disagreed with Smith J (see para 113 of their judgment)

 

http://www.judiciary.gov.uk/docs/judgments_guidance/abbey-judgment-260209.pdf

 

Yes, Els...it seems that they are not disagreeing substantially - just about whether the Banks are providing an ancillary service of consideration in addition to just paying a debit. They do say in 113 (iii)

 

"It is particularly relevant that (unlike interest) the magnitude of these charges does not appear to bear a direct relationship to the services provided."

 

Which nicely preempts the OFT conclusion!

 

I will definitely read the appeal Judgement. I've dipped into Smith's judgement, but I find it really difficult. Need to take the bull by the horns though....

 

Am I right in thinking that there are three main things I need to read from the OFT case:

 

i) Smith's original Ruling

ii) Smith's Ruling on Historical Terms, and

iii) The Appeal Judgement

 

Are these documents located somewhere together on the site?

 

Many thanks,

Gandolfi

[elsinore]

"It is particularly relevant that (unlike interest) the magnitude of these charges does not appear to bear a direct relationship to the services provided."

 

Which nicely preempts the OFT conclusion!

 

Yes, I liked that bit too!

 

 

Am I right in thinking that there are three main things I need to read from the OFT case:

 

i) Smith's original Ruling

ii) Smith's Ruling on Historical Terms, and

iii) The Appeal Judgement

 

Are these documents located somewhere together on the site?

 

Bookie very kindly tidied the whole story here

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/113391-oft-banks-documentation.html

 

Els

[gandolfi]

I've asked this question in 'legalities' section too...

 

Does anyone know if there is a formal procedure for requesting that the Court, Bank and Solicitor amend their contact details for you to a correspondence address?

 

I don't want to move Courts, just to have my mail sent to my current address. I still own the house for the address that they have been using, I just don't live there at the moment - I'd prefer not to have to rely on Royal Mail forwarding services if possible...

 

Many thanks,

Gandolfi

[Rhia]

Well if you are able to pick up your mail and it is your house why do you need to? I don't think there is anything unlawful in that. Do you neccessarily have to change courts if you change address?

[gandolfi]

Well if you are able to pick up your mail and it is your house why do you need to? I don't think there is anything unlawful in that. Do you neccessarily have to change courts if you change address?

 

At the moment, I'm living a few hundred miles away, so I can't pick up mail. I'm relying on Royal Mail redirection. Would prefer them to send stuff directly to alternative address. Wondering if I have to do this formally through the Court, or if I just write and tell them all...?

[Rhia]

Hmmm a tricky one then. I really don't know what to say on this one. I think I would first find out if you have to change the court - after all once the case has started it makes sense to leave it where it's already been heard...unless you don't like what they're saying.

[elsinore]

When we moved home last year, I simply wrote to all parties involved in my claim, advising the change of address and requesting confirmation.

 

You don’t have to change courts but you can apply to do so, giving reasons, if it suits you. Your opponents can object, giving reasons, but, as a LIP, you are likely to be favoured. There are rules surrounding transfer of proceedings but I can’t raise the DCA website at present. I’ll try later.

 

Els

[elsinore]

Re above:

 

PART 30 - TRANSFER - Ministry of Justice

 

Els

[gandolfi]

Hi Everyone

Long time no speak....still here though.

 

Feeling a bit

and more than a little :?

 

It seems to me that the OFT's case was brought on very narrow and limited questions - most of which shouldn't even apply to my own case, but which we all get stuck with in the broad sweep of media and public interpretation. I never really wanted them to act on my behalf anyway!

 

I was waiting for the SC decision yesterday, hoping that it would release my complex claim from the (unjustified) stay for a straightforward home run.....

 

As you probably know, I am counter-claiming against Natwest. My counterclaim includes both Personal account and Sole Trader business account charges over many years.

 

My particulars of claim didn't use the UTCCR (because of the business account). I suspect that the bank will now try to lift the stay, and have my counterclaim struck out.

 

I need to prepare the alternative argument(s) and actions against this, so that my claim can be considered for fairness by the Court on an individual basis. Some of the things I plan to include (hopefully with your help..?) will be:

 

1) The January 2009 Judgement regarding Natwest's historic terms (2003 and before) and their potential to be regarded as penalties

 

2) The Supreme Court's indication of potential other routes (UTCCR Clause 5.1..? I need to read more about this!)

 

3) To request an order from the Court for full disclosure by the banks of their charges and the related costs in providing the relevant 'service', so that I can prove that they are not proportionate to their costs

 

4) To request an order from the Court for Natwest to comply fully with the SAR and CPR18 request for information (which they have failed to do for the last two years)

 

5) It may also be necessary for me to amend my POC to include new alternative arguments, so I will need to find out how to do this and what I need to change.

 

Is there anything else that I should be doing to protect myself from early actions by the Bank...?

 

I know that there has continued to be a huge amount of work going on here by the site team during what has felt like a period of hibernation. It now feels as though this forum has been woken up and we can all start fighting for ourselves again.

 

Looking forward to building new strategies! Any help with the points above would be hugely appreciated.

 

Stay strong, keep fighting

Gandolfi

[Wally]

Hi Gandolfi

My case is fairly similar to yours although it is all personal and no business. I have just been asking, will we now have to pay the charges back to them? I am hoping that Martin Lewis will come up with something but I'm with you, I think they will try and stike our claims out.

[photoman]

Hi Gandolfi

My case is fairly similar to yours although it is all personal and no business. I have just been asking, will we now have to pay the charges back to them? I am hoping that Martin Lewis will come up with something but I'm with you, I think they will try and stike our claims out.

 

Wally,

 

Have you already had some form of "out of court" settlement ?

 

If so, such would have been just that. "Out of court", normally agreed to as being "Without prejudice", without liability, and declared as an end to matters as such. And so no, they can't try and claim them back.

Check the terms of any agreement, and if unsure, post them up here.

 

regards

 

PM

[Wally]

Hi

No there was no settlement at all.

The actually went to 2 courts to try and get their charges back off us, the last Judge nearly threw it out because he said he didnt think Shoosmiths knew what they where doing but unfortunately he gave them a second chance. Its still sitting in Court with a stay on it.

[askl]

Hi Everyone

Long time no speak....still here though.

 

Feeling a bit

and more than a little :?

 

.................

 

As you probably know, I am counter-claiming against Natwest. My counterclaim includes both Personal account and Sole Trader business account charges over many years.

 

My particulars of claim didn't use the UTCCR (because of the business account). I suspect that the bank will now try to lift the stay, and have my counterclaim struck out.................

Gandolfi

 

Gandolfi, Hi you may remember my thread;

£25,400 penalty charges claimed by NatWest

 

I'm back in court on 15 January '10 for a hearing to strike out NatWest's Claim for £3.5k bank charges from 2001, and about £25k interest thereon.

 

I'm going to be looking for help after Xmas festivities have died down ....

[gandolfi]

Hi Everyone

 

I've just looked back over my own defence/counterclaim and noticed the following clause that I included in my argument:

 

In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.

 

Can anyone shed any light on this already existing alternative to the penalty argument within my claim...? Does this still apply? What does it mean exactly?

 

Many thanks,

Gandolfi

[clavileno]

Hi Everyone

 

I've just looked back over my own defence/counterclaim and noticed the following clause that I included in my argument:

 

In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.

 

Can anyone shed any light on this already existing alternative to the penalty argument within my claim...? Does this still apply? What does it mean exactly?

 

Many thanks,

Gandolfi

 

Section 15 of that Act says:

 

15 Implied term about consideration

 

(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.

 

(2) What is a reasonable charge is a question of fact.

 

The way this is written seems intended to make sure that a customer can't try to ensure that a supplier provides goods or services at a stupidly low price.

 

But, as written, there is in my opinion no logical reason why it should not be reciprocal. In your case, you would have to convince the court that the consideration (i.e. the charge) for the service is not determined explicitly by the contract (which I believe it is not), and that the charge being levied by the supplier is not reasonable.

 

So, yes, that approach takes everybody back to the same old chestnut of "are these charges reasonable."

 

The problem is working out what is reasonable, within the meaning of the act and any precedent-setting judgements which have flowed from it.

 

For instance, if every bank charges £20-30 to bounce a DD, I can't see how a court could accept that your bank charging £30 to bounce a DD would be considered "unreasonable". It is NOT the same - in my opinion - as trying to argue that the charge is unreasonable compared to the cost of provision.

 

The legislation is aimed at stopping either side from getting a nasty shock - sellers don't want to be stuck supplying goods for nothing, whilst customers don't want to find that the ball of string they ordered in good faith is apparently going to cost £10,000.

 

So, I don't really see how this piece of legislation actually helps you in your particular case. Others might disagree.

[gandolfi]

Section 15 of that Act says:

 

15 Implied term about consideration

 

(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.

 

(2) What is a reasonable charge is a question of fact.

 

The way this is written seems intended to make sure that a customer can't try to ensure that a supplier provides goods or services at a stupidly low price.

 

But, as written, there is in my opinion no logical reason why it should not be reciprocal. In your case, you would have to convince the court that the consideration (i.e. the charge) for the service is not determined explicitly by the contract (which I believe it is not), and that the charge being levied by the supplier is not reasonable.

 

So, yes, that approach takes everybody back to the same old chestnut of "are these charges reasonable."

 

The problem is working out what is reasonable, within the meaning of the act and any precedent-setting judgements which have flowed from it.

 

For instance, if every bank charges £20-30 to bounce a DD, I can't see how a court could accept that your bank charging £30 to bounce a DD would be considered "unreasonable". It is NOT the same - in my opinion - as trying to argue that the charge is unreasonable compared to the cost of provision.

 

The legislation is aimed at stopping either side from getting a nasty shock - sellers don't want to be stuck supplying goods for nothing, whilst customers don't want to find that the ball of string they ordered in good faith is apparently going to cost £10,000.

 

So, I don't really see how this piece of legislation actually helps you in your particular case. Others might disagree.

 

 

Thanks Clavileno

 

I'm wondering if there are any precedents set? When this was included in the templates, there must've been some strong arguments for it to be used.

 

My understanding is that just because all banks charge a similar price, doesn't make any of them fair. Justice Smith implied that refusing to pay an item was NOT a service - so, it must be unfair to claim that the charge is for a service. Furthermore, the bank's claim that it is to 'cover administration costs'. This, we now know, is not true. So, that is also unfair.

 

The level of the charges is decided upon with a view to cross-subsidy and profit, not in relation to the service performed. Also, unfair.

 

Can these things not be brought into the argument when using this legislation? I'm fairly ignorant when it comes to finer points and legalise, but want to pursue all possibilities.

 

As I begin to rebuild my case, I hope to use some/all of the following:

 

1) The fact that Justice Smith singled out Natwest's historical charges as still being open to the penalty argument. This should allow me to force them to present their 'administrative costs' in Court.

 

2) Misrepresentation of the true motivation for the charges regime - saying they are to cover costs, when they actually cross-subsidise free banking and create profit.

 

3) Unreasonable under Sales of Goods Act (early days with these arguments for me)

 

As always, any help or advice welcome. No choice but to carry on fighting. Need to really start preparing arguments.

 

Many thanks,

Gandolfi