Abbey are using the Berwick defence *STRUCK OUT*

[Eddie Murphy]

Hi!

I am claiming nine thousand pounds from the Abbey plus interest. Two days prior to the end of the acknowledgement period Abbey have sent me a copy of their defence which mirrors the Berwick defence. They are siting charges as being part of the terms and conditions when I opened the account. I am a little anxious now as I await a court date. Any helpful comments would be appreciated. I know these charges are unlawful and I hope the Abbey do not prevail over the little guy.

Eddie Murphy

[mattyb13]

what is their defence because the defence lloyds used say that the T&C's were not broken but the charges are actually "Fees for a service"

[KnellyK]

Have a look at this thread,

Lloyds win and Abbey consequences.

It might help!

[GaryH]

Originally Posted by Eddie Murphy

Hi!

I am claiming nine thousand pounds from the Abbey plus interest. Two days prior to the end of the acknowledgement period Abbey have sent me a copy of their defence which mirrors the Berwick defence. They are siting charges as being part of the terms and conditions when I opened the account. I am a little anxious now as I await a court date. Any helpful comments would be appreciated. I know these charges are unlawful and I hope the Abbey do not prevail over the little guy.

Eddie Murphy

Can you post the defence up in full please?

[Eddie Murphy]

Originally Posted by GaryH

Can you post the defence up in full please?

Am unable to scan it in but here it is rewritten:

1. Save as is specifically admitted in this defence, the Defendant denies each and every allegation set out in the particulars of Claim.
2. It is admitted that the Claimat has a current bank account with the Defendant, account number to 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 Defence 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 fess 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 conditiopns 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 seperate occasios, 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. In 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 9954.99 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 the claim interest in the sum of 718.89 or at all.

8. The Claimant's contention that the said fees are uneforceable 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 proprtionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

10. 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

[Eddie Murphy]

Hi!

I have managed to rewrite the defence and have posted it up so please take a look. Thank you for the interest you have shown.

Eddie

[GaryH]

This isn't anything to do with the Berwick or service charge defence. As I'm aware this is the standard one that Abbey have used for 18 months or so.

The defence admits a breach of contract.

Nothing to worry about!

[Robdblynd]

Exactly the same as mine, only the amounts of charges and interest are different.

[Todge]

The Unfair Terms in Consumer Contracts Regulations 1999 s5

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


Surely, IMHO, whether the term (in the banks T&C's (a consumer contract)) is attempting to provide for either a penalty payment or a chargeable additional service, this section applies?

Stick to your guns.

HTH,
T.

[GaryH]

That section of the UTCCR, amongst other things, is used in the arguments against the service charge defence, yes. Here -
GOT A COURT DATE? Important, please read......

As I said though, that defence is not a service charge one so its irrelevant.

I do not envisage that Abbey will even attempt to change their defence now. Even if they do, it will have zero credibility - it'll hold no weight whatsoever and will solely be intimidatory.

[Eddie Murphy]

Many thanks for all responses. Today is the last day for the Abbey to file a defence. Although they've sent me a copy of the defence they have 'filed' there is no sign of acknowledgement from MCOL - will keep you informed.

[Eddie Murphy]

So here's the update. Abbey filed a defence on the last day possible. The case was transfered to my local court and I have been awaiting an allocation questionaire. Instead today I have received notification from the court that the case has been dismissed as the Defendant has commited an abuse of process. They have 7 days to respond! Next move??

[GaryH]

Great!! Which court?

[Buby x]

Hi Eddie Murphy...... Great. Please let us know which court you are using..... Did you ask for the case to be thrown out or did the judge just see sense........
Teresa x

[GaryH]

You've won - all you need to do now is apply for judgement.

You need to fill in form N225 and send it to the court ASAP. Its fairly simple -

http://www.hmcourts-service.gov.uk/c.../n225_0406.pdf

[Eddie Murphy]

Many thanks for your support and invaluable help. For information the court was Reading CC and the claim was struck out before I was even sent an allocation questionaire. I think Reading are just a little bit fed up of seing these cases and the template defences submitted by the banks.

[Eddie Murphy]

o.k. so I have had judgement entered on 10th July and still not received a payment back from the Abbey. I contacted the Court to be advised that as I had requested immediate payment I could move to enforcement now. Can anyone recommend the best method of enforcement. I am also concerned that the court decision has in some way been jeopardised by the initiation of the OFT test case hearing started on 27 July(The defence was struck out). Any views appreciated.

[FightBack]