PSM V Abbey PLC

[psm]

I have just received a copy of the Defence that Abbey have filed with the court. Having read other thread this appears a standard defence, however unlike some other threads i did not get an offer to settle letter.

 

What happens next? Do I have to contact the court or will they automatically send me ther AC.

 

 

Abbey National PC have on the 29/05/2007 filed a Defense with the court

 

This states that:

 

IN THE NORTHAMPTON COUNTY COURT BETWEEN:

XXXXX Claimant

- and -

ABBEY NATIONAL PLC Defendant

 

DEFENCE

 

1. Save as is specifically admitted in this Defense, the Defendant denies each and every allegation set out in the Particulars of Claim.

 

2. lt is admitted that the Claimant has a current bank accounts with the Defendant, account numberto be particularised (the "Account").

 

3. At all times the Account has been subject to the applicable terms and conditions ("Conditions''), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when the Claimant opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defense will refer to the following extracts;

 

(1) ''You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable.''

 

(2)''An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed.''

 

(3)''If you have an unauthorised overdraft you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account”

 

4. Throughout the period that s/he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

 

5. Any overdraft facility on the Account was (and is) subject to the Conditions.

 

6. The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. ln accordance with the Conditions, such fees were debited to the Account.

 

7. In view of the facts and matters referred to in paragraphs 3, 4, 5 and 6 above, the Defendant denies that the amount of £ xxxx.xx or any other, amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied. The Defendant denies that the Claimant is entitled to claim interest of any amount.

 

8. The Claimant's contention that the said fees are unenforceable and/or are ''penalty charges'' is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

 

9. Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

 

l 0. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

 

The Defendant believes that the facts stated in this defence are true.

 

I am duly authorised by the Defendant to sign this statement.

 

Full name:

 

of Abbey National plc

signed

 

position or office held: Paralegal Date: 29 May 2007

[cilin11]

I have just received a copy of the Defence that Abbey have filed with the court. Having read other thread this appears a standard defence, however unlike some other threads i did not get an offer to settle letter.

 

What happens next? Do I have to contact the court or will they automatically send me ther AC.

 

 

Abbey National PC have on the 29/05/2007 filed a Defense with the court

 

This states that:

 

IN THE NORTHAMPTON COUNTY COURT BETWEEN:

XXXXX Claimant

- and -

ABBEY NATIONAL PLC Defendant

 

DEFENCE

 

1. Save as is specifically admitted in this Defense, the Defendant denies each and every allegation set out in the Particulars of Claim.

 

2. lt is admitted that the Claimant has a current bank accounts with the Defendant, account numberto be particularised (the "Account").

 

3. At all times the Account has been subject to the applicable terms and conditions ("Conditions''), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when the Claimant opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defense will refer to the following extracts;

 

(1) ''You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable.''

 

(2)''An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed.''

 

(3)''If you have an unauthorised overdraft you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account”

 

4. Throughout the period that s/he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

 

5. Any overdraft facility on the Account was (and is) subject to the Conditions.

 

6. The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. ln accordance with the Conditions, such fees were debited to the Account.

 

7. In view of the facts and matters referred to in paragraphs 3, 4, 5 and 6 above, the Defendant denies that the amount of £ xxxx.xx or any other, amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied. The Defendant denies that the Claimant is entitled to claim interest of any amount.

 

8. The Claimant's contention that the said fees are unenforceable and/or are ''penalty charges'' is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

 

9. Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

 

l 0. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

 

The Defendant believes that the facts stated in this defence are true.

 

I am duly authorised by the Defendant to sign this statement.

 

Full name:

 

of Abbey National plc

signed

 

position or office held: Paralegal Date: 29 May 2007

 

 

hi PSM

i have had the exact same defence for the abbey on 21/05/2007

and no offer so i think we are just gonna have to go all the way before

we get the money .i haven't had aything for the court yet its now 1/06/07

let me know how you get on

cilin11

[psm]

Can anyone advise me. the Abbey sent me a copy of their defence as stated before, however I have heard nothing from the court. What happens next? Do I have to contact the court or will they contact me?

It would be very helpfull if someone could setout for me, in chronological order, what happens next. Am I supposed to wait to be contacted by the court, and if so how long might this take or do i have to apply for something?

[psm]

Hi

 

Sorry to butt in on your thread but have noticed it is very active and knowledgable. I need a little advice. I am pursuing the abbey for over £3k I have received their defence (without covering letter) but have not heard anything else, either from Abbey or the Court. What do I do next? Is the clock running from the date I get the defence and can I run out of time? I am getting concerned, from reading other threads people get a questionaire soon after they get the defence. What should/can I do?

[Lula]

PSM, do you have your own thread? if you dont then you need to start one, the copy of the defence that you received came from Abbey, when you receive a copy of one from the court you will receive the Allocation Questionnaire and a timescale to have it back by

[lisa11]

Hi everyone, just to let you know I am in the same position with you with Abbey. They are sending out the same standard defence template and are relying on their T & C's only.

 

3 days after recieving their defence document I have recieved a letter offering me 65% of my claim if I dont go to court - which I am declining.

 

I have rung the bank charges team this morning who advises me that if you recieve a defence - which everyone now does it will go all the way!!!!

 

I am just in the process of sending the decline letter to Abbey and to include in my court bundle.

[pjw140177]

Hi,

 

I recieved a defence from abbey (cahoot). I had to do an AQ. and sent off letters and reminders. It felt like it was never going to end. Then I requested a stay and so did Abbey, the Judge then set a deadline and I then sent them a reminder letter by fax. It was then I received my offer which I accepted if they also paid my costs. I received my cheque today for £4595.60. So don't give up as they will pay out in the end.

 

Phil

[psm]

Hi all

 

I have received today a "Notice of Transfer of Proceedings" transfering my case to my local court. Attached to the notice was the Abbey defence and a document stating:

 

Without Hearing

 

IT IS ORDERED THAT:-

 

1. The filing of an allocation questionaire be dispensed with in this case unless the district judge at the court of transfer orders otherwise.**

 

Note: Any Party affected by this order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of service of this order.

 

** Please note that an allocation fee may be payable in this instance. Please contact the court of transfer for further details.

 

Date order drawn: 7th June 2007

 

What does this mean and is it in my favour not to challenge it?

[psm]

Have received a court date for 17th August allocated to the small claims track, allocation questionaire dispensed with. BUNDLE!!!!!!!!

Wrote to the Abbey offering to save them more time and expense by settling now for, what I thought was, the full amount of my claim in fact it was 15p less. Abbey wrote back saying they did not think offering to settle for 15p less than the full ckaim was in the spirit of seeking a settlement, they then proceded to offer me approx 55% of my claiM. I wrote back stating that if they wanted to lecture me about the spirit of reaching a settlement they should stop levying me with the self same charges I am currently disputing and as a sign of their goodwill should refund them. Am still waiting for a reply.

[psm]

I am having a little difficulty understanding what I can include in my bundle. I have downloaded the CAG basic bundle and included corespondence, Schedule of charges and bank statements

 

Can I charge additional interest to cover from the last date on the schedule of charges to the date of the hearing?

 

As the Allocation Questionaire was dispensed with do I need to include anything else in my bundle, such as:

 

Witness Statement

Case Summary

disclosure by list

 

Do I understand correctly that all Court generated documents and letters headed "Without Predjudice" should not be included in the bundle.

 

I have read through quite a number of threads and have not come across a difinitive list of what might be included in the court bundle, does one exist?

 

I would like my husband to represent me in court how should i go about achieving this?

[psm]

I have started to put together my bundle and am using the "Witness Statement to go in your Bundle" kindly supplied by GaryH, however there are a couple of section's that do not relate to my circumstances that I have had to amend. Could someone take a look at them and advise me?

 

When I started this course of action I was using the standard letters from moneysavingexpert.com. These letters were rather basic and did not request the defendant to justify the legitimacy and legal status of its charges. Therefore I have had to change the section 4 to read as follows:

 

4. On [date] I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant repay me the default charges that had been applied to my account plus, as I believe I had been unlawfully deprived of the money, interest at the statutory rate.

Because I have not used CPR Part 18 I have had to remove section 20 from the statement and tack the last sentence:

"Therefore, my estimate of £0.25 - £1.50 is based upon the following"

to the end of section 19

I have had to dispense with the first paragraph of section 21, as I did not use the Subject Access Request when I first started this course of action. Section 21 (now renumbered 20) it now starts as follows:

"It is submitted that the Defendant’s charges are applied by a completely automated and computer driven process. This process consists of a computer system;"

Any help and advise would be greatly appreciated.

 

[charleyfarley]

hi psm,

 

two thoughts...

 

1.the estimate from .25 to £1.50 is a huge spread, so if you could provide a little more info that would help.

2 I'd leave out the last sentence about computers.you've said it already in the first sentence,although you could say something like "which requires no manual intervention"

[Lula]

Can you clarify (cos I am a bear of very little brain) why you are estimating the cost of a breach? the Whistleblower for CYNthesys said it was in the region of £1.50 probably lower per breach and a global organisation such as abbey must have the process so automated that in reality the cost is likely to be less than a £1

[feater]

Lula

 

This is the estimate given in the basic court bundle witness statement. I have also used the same. Is this incorrect?

[Lula]

I think so yes, but never having needed to do a witness statement I dont know

[psm]

The estimate was included in the template titled "Witness Statement to go in your bundle" I found on a thread as supplied by GaryH.

 

While I am at it I have a court date of mid August and as I was double checking my bank statements and schedule of charges I noticed that I missed two refunds of £30 each from Abbey on one of my statements which amounts to an error of £61.42p.

Can I amend the amount I am claiming at this late stage and if so how?

[feater]

Hi

 

Same thing happened to me but for just under 200 quids worth. I have completed at N244 form to ask the judge if I can amend my POC. You have to pay £35 to do this and it's non refundable so you'll need to decide if it's worth if for effectively one charge.

[psm]

I have just finished my court bundle (133 Pages) I have 2 small queries:

 

1. In the bundle witness statement template, posted by GaryH 08/07/07, it states:

 

As submitted in the proceeding paragraphs, the Defendant's charges greatly exceed and are disproportionate to the loss incurred as a result of the claimant's breach of contract. It is submitted that clause xx of the account agreement amounts to an unfair term under schedule 2 (1)(e) and is thus unenforceable by virtue of regulation 8.

Am i correct in assuming this refers to secetion 24.4 of the 2002 Account terms and conditions?

2. Where do I find a copy of the Charges Tariff

 

 

 

[psm]

I am currently in the final stages of compiling my court bundle; during the final read through I noticed that the section, reproduced below, section 25 of the Template 1st Witness Statement, relating to The Competition Commission is a bit confusing. In the body of the text it refers “Some relevant parts of the report are reproduced as follows” it then refers to

Appendix 4.6

Policies on setting unauthorised overdraft charges

When you compare the passages highlighted in italics (9, 12, 13, 17, 24 & 25) to the equivalent paragraphs on Appendix 4.6 they are completely different.

Are the relevant parts, referred to, in the main body of the report?

What relevance has Appendix 4.6 got to the statement and should it be included at all?

There is also a reference to appendix 4.8 in passage 24 below, do we need to include a copy of appendix 4.8 in the bundle?

25. The Competition Commission

Northern Ireland Competition Commission report from October 2006 revealed that figures contributed by eight banks, including the Defendant, Abbey Plc, showed that around 12% of the banks annual revenue is generated by "overdraft charges". The report clearly demonstrates that the banks make significant profits from their penalty charges and that they know about it, depend upon it and that they calculate for it. It is submitted that this report is clear evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to specific events of default.

 

Some relevant parts of the report are reproduced as follows;

 

Appendix 4.6

Policies on setting unauthorised overdraft charges

 

"9. The answers were consistent across all the banks that responded, that unauthorized overdraft charges were set in the same way as other fees and charges. Thus banks tended to look across all their products and all their charges and sought to ensure their products were competitive with their rivals. This would be assessed through price comparisons, and also by monitoring account recruitment and retention. In the main, the clearers paid particular attention to the other clearers. The non-clearers set their pricing UK-wide and so particularly monitored the UK wide banks and the banks based in Great Britain. However, that said, there were clear examples of banks concluding that it would be profitable to raise charges above competitors (eg see paragraphs 20 and 22 in Annex 1).

 

12. Most of the banks made reference to monitoring of their costs, and sought to recover cost increases through their charges. However, as such costs tended to arise across a range of bank activities there was no direct feed through from particular cost increases to particular charges, but would be spread across the charging structure with regard to competition on these charges.

 

13. None of the banks told us that their charges were determined mainly by estimates of costs.

 

17. [] states “as is always the case the biggest impact in terms of service income price increases lies in penal charges such as unpaids and referral items, and I have had little option but to concentrate on these in an attempt to achieve the [] targeted increase in income". []

 

24. Some inference on unauthorized overdraft charges can be seen in the banks’ moves to fee-free accounts, as analysed in Appendix 4.8. As covered previously, Ulster’s proposals for fee-free banking rebalanced to an extent the loss of fee-income from transactions with an increase in unauthorized overdraft charges. BoI had developed proposals for a similar fee-free account where income loss would be approximately offset by increased unauthorized overdraft charges.

 

25. Charges are a significant source of revenue for the banks on PCAs. [] said that increased unauthorized overdraft fees were part of the strategic imperative to turn the PCA into a profitable business over time. The charges were significantly less than a number of its competitors. "

 

Appendix 4.6 of the report titled “Unauthorized Overdraft charges” is attached in support of this statement as exhibit ***.

 

Any advise would be greatly appreciated

[ICY]

You need to keep all your posts in the one thread, you have 3 threads running for the same claim, it is much easier for people to help you if they can view the claim history without having to go into other threads

[psm]

I know, I am just getting a bit concerned as my court date is 17 August and bundle is due in 14 Days before. Will not start any other threads and hope the three running can be merged. Any thoughts on my problem?

[psm]

Useful replies seem to be thin on the ground

[psm]

Have re read appendix 4.6 and finally got my head around it! Things tend to get very confusing when you are preparing the court bundle and you become wracked with doubt about the simplest things. Have finally completed my bundle and am on the verge of sending it off to abbey, special delivery. Should i send a covering letter with it with a final attempt at settlement? If so is there any examples i can crib from?

[psm]

Bundle went into court and sent to abbey 27/07/07. Abbey have till 03/08/07 to submit theirs, so only have to wait till monday to find out my fate, if nothing received by 1st post monday I will be straight down the court to apply for judgement. With regard to the OFT test case, surely the courts will have to continue hearing cases until the OFT case commences, in case the banks pull out or am I clutching at straws?

[psm]

Today is the last day for Abbey to comply to the District Judge's orders to deliver to me and the court all papers thay will rely on for their court case on the 17th August. If I have not received said papers by end of play today should I:

 

1. Send non compliance reminder letter to the abbey giving them 7 days to comply.

 

2 or go by pass this step and go straight to the court with a non compliance letter requesting judgement.

 

In normal circumstances I would have gone for option 1 and toughed it out for a further 7 days. However in light of the OFT test case and the total uncertainty of if or when a stay might be imposed should I go for option 2. Any help or advice would really help settle my nerves. I have till the courts open on Monday to decide.