mcnab v Abbey Business

[mcnab]

Hi, I'm new here, but after the 2 formal requests to the bank, I am asking the courts to instruct Abbey Business to refund 2700 pounds in bank charges.

I have been sent a "General Form of Judgement or order" by the District Judge at my local Court.

It States;

"IT IS ORDERED that;

1) The claimant by 4pm on 6 June 2007 file and serve on the Defendant full details of:

i) What charges were levied by the defendant
ii) When they were levied.
iii)How much they were.
1v) Why they were unfair or a penalty.
v) What a fair charge would have been."

Items i) - iii) will be covered by my spread sheet and copy statements.

Any suggestions for the best form of words for the items iv) and v)???

Thanks and I'll keep you posted!

I put this on the business claim thread too.



Edit, I'm guessing I send the court bundle as templated minus the parts that refer to "the consumer"; thing is, that leaves it a little thin......?

[Celicaman]

Hi Mcnab, i havent seen this before, but we will try to work it out.

What details did you send to the bank in your prelim and LBA letter ( Just letter details, omitt identifying info)
Did you use the CAG template letters
DId you send the bank a copy of charges with all the dates, amounts, charge datails on.
Did you file MCOL or N1 to file your POC ( think its N1 )

All this seems a bit strange as the way i read it its the bank saying they havent got the details.......... as you have to 'serve on the defendant'
CM

[mcnab]

I used the template letters from the Martin Lewis site and enclosed a spread sheet detailing the charges thus;

Statement numbers, Date, Description, charge amount, interest (worked out using the Martin Lewis calculator).

Charges claimed are £15, £20, £30 and £32 and are for unauthorised overdraft, Paid/Unpaid Item, Insufficent funds and Paid/Unpaid SO.

Recieved a letter in reply stating the charges were standard etc.

Then filed using Money claim online, again using Martin's template, but omitting the paragraph relating to "consumer regulations".

Then recieved the above notice!!! It does say "File and serve on the defandant" so I guess the court want me to 'file' that information with them as well as Abbey?

The notice also says the case will be tracked in the small claims court.

[Celicaman]

ok, i see your post on the other threads as well, seems a bit quiet on Cag at the moment, cos bank hols i suppose. Somebody will see it and give info as well

I think i know whats going on.
Have you sent banks solicitors a copy of the charges list, they dont auto get one from the bank, it could be that and also you must send to the court the same list of charges ( two copies), detailed as sent to the solicitors.
Basically it is not enough just to lodge a claim and a judge look at it and say yes/no.
Each claim is individual and he has to look at each on its own merits so must have the relevant info of the whys & whats.
There are some templates to fill in to send each, but they have asked for Q's IV & V which i find unusual.

I dont think this is court bundle time

Somedody will reply more on this, i ve got couple things in mind but im not sure yet.Will see who has a look.
Have you posted a thread in the Abbey threads area, all banks issue differently so may have a different view.
CM

[lateralus]

ok, well at first look (and i know very little about business claims) they want a fuller explanation - i think it is do-able - plenty of time to get it perfect and in by 6 june.

first off - i'd redo the poc's using the business version of the n1
Business accounts;Partics of claim ( 1 2 3)

next on the charges levied - i know in hsbc-business statements they list total charges and on business claims only this is a mixture of reclaimable and legitimate charges and they must be broken down - would this apply to abbey's charges?
1,2,and 3 will pretty much be covered as you say by a full schedule of charges - the name, date, and amount of each charge clearly listed.

4 i'm sure there is stuff in the bundle which would cover

and 5 again - there is reference to tv and newspaper reports on how much is should be - it's in the bundle.


check here for further info:
Business Claims - basic guide



i think the best way of approaching this might be an extended witness statement with those bits added on.

Examples of Witness Statements / Disclosure by List / Draft Directions / Case Summary
Karnevil


lets chew on this a bit and i will see if garyh will take a look if he's around. i've asked gary to have a look although he's offline at the mo.

[Celicaman]

There you go, M
I called for the Cavalry as it was a bit out of my depth,
The power of CAG, dont ya just love it

Good Luck

And just in case your wondering, when the cavalry comes over the hill, Latties the one with the Feather plume in her cavalry hat and riding side saddle

CM

[lateralus]

i'll be right behind gary - he's the one with the big gun!!!!! lol

[Michael Browne]

iv) Why they were unfair or a penalty.

The claimant makes reference to inter alia the following cases to support his case:
a. Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co. [ AC 79 (hereinafter referred to as Dun1op”);
b. Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [ EWE-Information Commissioner 281 (TCC) (hereinafter referred to as “McAlpine”)
c. Commissioner of Public Works v Hills [ AC 368 (hereinafter referred to as “Hills”)

The authorities mentioned above make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the cases of Dunlop and Hills are powerful authorities in favour of the Claimant. Additionally, the case of McAlpine seems to re-affirm the views in these cases. Accordingly, the Claimant is entitled to judgement as sought in his particulars of claim.

Lord Dunedin formulated the test for Penalty clauses as follows, in Hills:

“The general principle to be deduced is ... that the criterion of whether a sum -- be it called penalty or damages -- is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a ‘genuine pre estimate’ of the creditor’s probable or possible interest in the due performance of the principal obligation”

It was further noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.
b. The essence of a penalty is a payment of money as “in terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.
c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests, which would prove, helpful, or even conclusive:

i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;
ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

In McAlpine, the aforementioned common law principles were held to generally be correct. Furthermore, it was held that where there was a substantial discrepancy between the level of damages stipulated in the contract and the level of’ damages which is likely to he suffered it can he said that the agreed pre-estimate is unreasonable”

v) What a fair charge would have been."

The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. 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.

[Celicaman]

And the guy with the cannon following gary is micheal browne lol

Cheers MB, i'll use that in my business claims as well

[Russjo]

Great post Michael, will certainly be putting that by for future reference

[GaryH]

All sorted now I see.

Can I just ask which court issued the order please?

[mcnab]

Bradford Crown Court! I'm thinking of going for a belt and braces approach for iv and v.

Michael's ideas cut and pasted....... plus highlights from the witness statement stating that now would be a good time for Abbey to give an indication of how the cost of charges are arrived at.

[Celicaman]

dont ya just gotta love it when a plan comes together
Go Get em floyd, er i mean Mcnab

CM

[lateralus]

what happened next?

[mcnab]

What happened next? Well I sent Abbey and the Court the letter and all the statements and copies of letters etc. and so far I have heard nothing!

But no doubt something will drop on the doormat any day now.......it would be nice if it's a cheque rather than the court date.....!