thm vs NastyWest - HELP!!! CPR18 due tomorrow!!!

[thm]

well, I have been advised to start my own thread and I think this is a good idea as I am getting rather confused with all the diferent threads and links to threads.....sorry for the repetion but my CPR18 is due tomorrow and I am still unsure as to how to proceed, so here goes....

 

My dad started the process of claiming back his charges but miscalculated the interest and never sent a schedule of charges to the bank. By the time I stepped in to help the Bank's solicitors Cobbetts had issued a CPR18. In claiming back my own charges I never got to this stage as the bank refunded well before then. I called the county court where the case had been transfered to to find out what to do about amending the claim amount and I was told to send them a letter detailing the change. I did this and also sent a letter to cobbetts along with a full schedule of charges. We recently received a letter from the county court saying that the allocation questionnaire would be dispensed with unless order by the DJ. Now I need to know:

1) do I need to send a draft order to cobbetts and the judge?

2)I have a template for the CPR18 response, do I use this and send it to cobbetts with the draft order (as the response is due tomorrow)?

 

I have also already sent the bank a nudge letter requesting that they settle out of court for the full amount rather than draw out the process further.

 

Can anyone advise me further on this as I am feeling rather out of my depth and I must admit a little intimidated by it all! My dad's claim amount is over £10,000 so it is very important that we win this!

thanks in advance!

[thm]

This is my response to the CPR18, any pointers/ideas/thing's I've missed?

IN THE LEICESTER COUNTY COURT CLAIM NO. XXXXXXX

 

 

 

BETWEEN XXXXXXXXXXXXXXXXXX

 

Claimant

 

 

 

-and- NATIONAL WESTMINSTER BANK PLC

Defendant

 

 

RESPONSE TO REQUEST FOR FUTHER INFORMATION AND CLARIFICATION

 

NOTE- IMPORTANT

 

This response is served pursuit to CPR 18

 

 

The Response

 

1. In response to Para 2.1 and 2.2 (a)(b); of defendants request please find herewith (attached Schedule one) a break down of the charges applied to the claimants account this includes the claimants account number sort code and the dates of the charges were applied, the reason and the interest accrued on each charge.

 

2. In response to Para 2.2; of the defendants request, the claimant has already explained why the charges should not have been applied but for the avoidance of doubt the claimant alleges that the charges are Penalty charges and are therefore irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79, along with Murray v. Leisure play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

3. In response to Para 2.3(a) Yes, the claimant should not have been charged an amount above the true administrative cost incurred by the respondents,

In response to Para 2.3(b) the claimant should not have been charged for reasons outlined in Para 2.

In response to Para 2.3 ©The claimant argues that each charge debited by the Defendant from the Claimant’s bank account should not have been charged in the amount that was charged. It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant.

4. In response to Para 2.3(d) The Defendants have asked what the claimant should have been charged, to answer this the claimant will need a break down of the administrative cost incurred by the defendant in applying the said charges. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.

5. In response to Para 5, The Claimant specifically pleads that the charges debited to the Claimant’s account by the Defendant are automatically unfair because, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract (which the Claimant pleads is invalid in any event) to the detriment of the Claimant. “Good faith” (as defined by the Unfair Terms in Consumer Contracts Regulations 1999) means that that the Defendant must deal fairly and openly with the Claimant. The Defendant has not dealt fairly and openly with the Claimant. Further, as the contractual term (i.e. each and every charge debited from the Claimant’s account according to the “contract” entered into by the parties pursuant to the Defendant’s terms and conditions, as well as the terms and conditions themselves) was not individually negotiated and was drafted in advance, the Claimant was unable to influence the substance of the term, making it unfair. In the absence of a breakdown of the Defendant's liquidated losses and/or actual costs of each and every charge applied to the Claimant's account, the contractual term in force at the time of the charge forced the Claimant to pay a disproportionately high sum to the Defendant in compensation for the Claimant’s alleged failure to fulfill his obligation.

If the defendant requires any further information, the claimant will be happy to provide this once the discloser of documents/information has been dealt with by the court.

Sincerely,

[hedgey06]

Hi again thm!

 

As the request for further information (CPR 18) has come from cobbetts, you don't actually need to respond to them. You only need to respond to the CPR18 if the court orders you to do so.

 

Bearing that in mind, if the request has come from cobbetts I'd be inclined to send them the letter as suggested by Martin3030 instead (it's the one on the very first post in the cobbetts CPR 18 thread) along with another copy of your schedule of charges. http://www.consumeractiongroup.co.uk/forum/natwest-bank/35672-cobbetts-cpr-18-request.html That should suffice.

 

With regard to the AQ being dispensed with, you can still send the draft order for directions to the court for consideration. It doesn't mean the court will grant them as they very often don't, but it certainly won't hurt. If you do send the draft order for directions to the court, you would send a copy to cobbetts for their information also.

 

Hope this helps

[thm]

I've already sent the response to the CPR part 18 as I was running out of time and panicked! Is the draft order necessary? WIll it help my claim? If not then I would rather not have to do it as all this legalese and jargon is giving me a migraine Do I now just wait for a response from cobblers?

[steven4064]

Hi thm

 

THe draft order is not necessary but is a really good idea and advice is to use it. It's not too late, you send it to the court when they contact you with or without an AQ. let us know when youhear from the court and someone will advise you

 

Steven

 

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[thm]

thanks, got a link to a template I can use? I am completely lost on this forum now, can't seem to find anything! ALso, I did once read a thread that had a template for complaining to courts about Bank's issuing CPR18 - happen to know where I can find that?

:?

[hedgey06]

If you want to complain about cobbett's CPR part 18 request to the court - see here http://www.consumeractiongroup.co.uk/forum/natwest-bank/55874-letter-court-re-cpr18.html although it does need updating a little.

 

With regards to the draft order for directions, see here Allocation Questionnaire - Draft directions order

http://www.consumeractiongroup.c o....tionaires.html