Abbey's new "no breach" defence

[GaryH]

Try for it without a hearing if you like, although its likely you'll be called to one anyway.

[HarryFour]

Today I received two letters from Abbey. One was the new 'service charge' defence with what appears to be the more common 15 para defence. Statement of truth signed by 'Vivian Roux' Paralegal.

The other letter was what appears to be a standard letter about the general situation with the OFT case along with a FOS consumer fact sheet.

I am going to ring the court today to see if this case is being stayed or not.

I have a couple of questions...
1. I have read elsewhere that CPR Part 18 requests are not valid in relation to the new 'service charge' defence. Why ?
2. My claim (which I'm doing on behalf of my Mum) relates only to the period 2001-present. My Mum is unsure when the account was 1st opens, but it well before 2001. Do I need to know so I can include a copy of the original T&C's from then, or will T&C's for the time-frame in question suffice ? i.e 2001-on.

Many thanks
Harryfour

[yourturntopay]

I received a new defence from Abbey this morning. How do i respond to it - the claim was field via MCOL

1 On 27 July 2007 a test case was issued in the high court between the OFT and a number of banks (Namely Abbey Nationals, Barclays Bankplc, Clydesdale Bank plc, HBOS plc, HSBC Bank plc, LLoyds TSB bank plc, Nationwide Building Society, and the Royal Bank of Scotland Group plc (which owns National Westmister Bank plc and The Royal Bank of Scotland plc) in relation to the recovery by personal current account customers of charges paid by them to the banks in circumstances where they seek to make payements for which they have no available funds, commonly known as unarranged overdraft charges.


2 Pursuant to the Order of District Judge Murdoch dated 13th August 2007, the defendant request that this claim is stayed until further Order pending the final decision in the test case.


3 The defendant intends to defend this claim and we will file a full defence within 28 days of the stay of proceedings expiring.

4 In the meantime, it is denied that the claimant is entitled to the relief claimed or any relief whetrher as pleaded or at all.

[Redrob]

I'm seriously considering applying for Abbey's defence to be struck out as suggested in the fist post, but you say...

Originally Posted by GaryH

If you are going to use this application, you do so at your own risk.

Other than the fee, what do I stand to lose? Whats the potential downside?

[GaryH]

Same as any template really - you'll always see a disclaimer somewhere or other on nearly everything on this site, or in peoples sigs. An application to strike out a defence is obviously an aggressive strategy, hence the disclaimer.

That said, I firmly believe its the right course of action to take, or else I would never have posted it, and incidently, I'm printing off the same application for my claim as we speak!

If the claim is small claims track then I cannot foresee any risk other than possibly losing the fee. If its above 5k and likely to go fast track then if you were unsuccessful you could end up paying the other sides costs.

[Redrob]

Good, thats pretty much what I expected, just wanted to be sure. I've now managed to get some old T&C's, not quite from when I opened the account but they'll do, so I'll get this done and in the post Tuesday.

Just have to make sure I don't get my hopes up too much. It seems to me like a very good argument, and the defence seems to bear no relevance to the T&C's the account is operated under, even now as the new T&C's havent come into effect yet.

[elliejay39]

Do we need to include a precis of the old defence? (as suggested in the evidence section of your template Gary) If so whats the best way of going about that?

Ellie

[GaryH]

Preferably, yes. I have a copy, but its somebody elses with a name and claim number on the front so I'll have to get permission before I pass it on. In the meantime see if anyone else on the forum has a copy they can send you.

[BANKAVENGER]

hi,

i'm slightly confused at the moment feel like my head is going to explode!!!!
i recieved a copy of abbeys new defence dated 6th aug statement of truth is signed by willem basson (paralegal).

i have just submitted my AQ on friday now waiting to find out what the court is going to do. Dont know whether to applie to get there defence stuck off. My claim is well over 5K and dont think i could risk having to pay there fee's also do i still email my CPR 18 or not.

Any help is much appreciated
thanks
claire

[GaryH]

I don't think I could advise you with total confidence to apply to strike out if your claim is fast track material as in the event you were unsuccessful you'd be looking at costs. Its a small risk, IMHO, as I think - a) Abbey would not defend (they'd probably settle instead), b) that even if they did the application would still be successful - but their is still a risk.

No - a part 18 as per the other sticky thread is not valid if you have the new defence, as it relates specifically to the old one. The new defence does not admit a breach and contend the charges are a reasonable pre-estimate, as the old one did. This is presumably why they changed the defence, so as to avoid the glaringly obvious need for disclosure of information relating to the "administrative expenses" their charges were *allegedly* proportionate to.

I'll draft another part 18 relevant to the new defence, and there is also something else you can do to harrass them. Watch this space.

[BANKAVENGER]

Hi Garyh,

Thanks for that i think i'm going to apply to get there defence stuck out. How come my defence is different to every one elses its signed by a different person is only five pages long and has 13 sections.

Thanks from a very confused
Claire

[ohoh4312]

Elliejay - I have a copy of the old defence that I would be quite happy to email you. Let me know if you still need it.

Jo xx

[bp]

well mine is all done for the time being. I've applied for the defence to be truck out. AQ completed so Tues i'm off to court to hand it in.

Gary h i'm intrigued by your last comment. Can't wait to see what you have up your sleeve!

I did email our dear Inga a while ago who did say that she would be applying for a stay and in no way was i going to get a penny and the matter of penalty charges needed to be clarified which is why they are going to court, i did ask that if the matter was not clear at all, why did they apply charges and why do they continue to do so if they are unclear about the whole thing. Never got a reply.

[BANKAVENGER]

Hi,

Shall i wait to see if the court put on a stay on my case before i apply for the defence to be stuck out or doesnt it make any difference its just that i've shelled out £350 already and cant really afford much more.

thanks
claire

[Redrob]

OK, filling out the form atc...

I have a question, my overdraft has varied a bit since I had the account so where it says

i) There was an express term of the agreement that the overdraft would have a maximum limit of £XXXX


Should I actuall put

.....would have a maximum limit of £1500, although this varied over time

[GaryH]

Just put what it is now, or what it was when the last charge was taken. Don't put that it varied.

[Redrob]

Well, I've filed my N244 today. Was told I should get an answer in the next 2 weeks, which surprised me, expected it to take a bit longer than that, but we'll see.

Should I be sending a copy to Abbey? I haven't done so yet, but do have an extra copy that I can send.

[GaryH]

How many copies did you file at the court?

[Redrob]

Just the one, took it there myself. I had three copies but she only took one of them.

[GaryH]

Send a copy to Abbey then.