Gandolfi v NatWest

[gandolfi]

Hello All
An interesting letter (General Form of Judgement or Order) in the post today from the court...I think this is a good thing - should I take any action? The letter reads:

"Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it
IT IS ORDERED THAT
1. Unless the Claimant [NatWest] do within 5 days of service of this order file and serve the allocation questionnaire and pay the fee required by CPR 3.7(2) to the Court the claim herein be struck out and they shall not be entitled to take any further part in the proceedings save in connection with the assessment of costs and the other party do have liberty to apply for summary assessment of costs providing the statement of costs in Form 1 is filed and served within 14 days of service of this order.
Dated 13th June"

So, it seems NatWest haven't responded to my defence or filled in their aq. In their last letter to me they said they wouldn't take any action on their claim until the information we requested (CPR 1 had been sent. According to the court letter (dated 13th June), they only had until 18th June to serve the aq and pay the fee. I'm assuming that hasn't happened.....

Although this seems good, I feel a bit like I'm in limbo now - I'm eager to get my counterclaim for charges underway, and get back the money they owe me (much more than they are claiming from me)!

Anyway, interesting development.......all advice welcomed, as always!
Thanks and best wishes,
Gandolfi

[gandolfi]

Following on from my previous post....

I'm starting to think that it might not be such a good thing if the Judge strikes out NatWest's original claim against me.....

I am worried that a strike out will prevent me from counter-claiming.

The Judge's order says that I can apply to have the order 'set aside, VARIED, or stayed'.......can I request that the Judge varies the order to demand the Subject Access Request/CPR 18 information that will enable me to counterclaim???

[GaryH]

It would be a good thing - it would be excellent!! You'd then just have to file a new claim as normal for what they owe you, but without you owing them anything at all.

Not a lot you can do at the moment, just try to be patient. Wait for them to hopefully default on the order and be struck out. Ring the court on the 6th day from service of the order and check if they have filed the aq or not, if not then get a schedule of costs in.

The only problem it would cause if it was struck out is that they would not then have to comply with the p18. If that turns out to be the case then you should sue for what you have statements for whilst at the same time taking enforcement action on the original Subject Access Request. We'll cross that bridge when/if we come to it though.

[gandolfi]

Great, thanks Gary! Fingers crossed then.....

The Court order was made on 13th June, but it has 25th June at the top of the form (I guess this is the issue date?). I received it on 28th (is that the date of service?) So, they have 5 days to file their aq or 7 days to apply for the order to be set aside or stayed.

After that I can submit a schedule of costs to the Court – is there a guide/template for this on the forum? Not sure what my costs are...

In their last letter to me NatWest asked for a further 21 days to get all of the p18 information to me. They said "we will not take any action regarding the Court proceedings in the meantime"....so in theory they should miss the order deadline anyway. We'll see.

If they do file and pay their aq, I then want to apply to the Court for an order demanding the p18 and hit them with that!

It's starting to get exciting!!!

Thanks again, GaryH!

[gandolfi]

Hi Everyone!

Last week the Court served an order to NatWest demanding their aq within 5 days. I received my copy of the order on 28th June. If that was the 'date of service' am I right in thinking that today is their deadline?

Spoke to the Court this morning and NatWest haven't responded to the order in any way. They seemed sure that their claim against me would be struck out!

It also says on my copy that 'if you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.'

Are they likely to do that do you think? Thursday is the seventh day...

Trying to be patient, but nerves are fraying!!

[GaryH]

As it stands at the moment their claim will be struck out - although in reality if they submit it between now and when it goes up to the judge then it'll probably be allowed.

I don't want to get your hopes up, becouse its not over yet, but this could well be a sign that they do not have a valid or properly execuited agreement - they now know you are going to fight them and they may not fancy it. I've seen it happen before. Its an easier way out for them.

Just be patient!!

[gandolfi]

Originally Posted by GaryH

As it stands at the moment their claim will be struck out - although in reality if they submit it between now and when it goes up to the judge then it'll probably be allowed.

I don't want to get your hopes up, becouse its not over yet, but this could well be a sign that they do not have a valid or properly execuited agreement - they now know you are going to fight them and they may not fancy it. I've seen it happen before. Its an easier way out for them.

Just be patient!!

Thanks GaryH!

That's just as I'd thought - not time to celebrate yet....

It's all good, but really frustrating too - I'd just got myself ready for a scrap!!!

Ah well, they're going to have to deal with me at some point - until they give me ALL my money back!!

Their 21 day extension of the part 18 request ends on Thursday too.....still no sign of the remaining statements or anything else. That'll be 81 days since my original Subject Access Request!

If their claim is struck out I want to start pursuing them for the rest straight away!!!

THEY CAN RUN BUT THEY CAN'T HIDE........and other cliches

[gandolfi]

Just spoke to the Court....

NatWest's claim against me has been STRUCK OUT through non-compliance with the Court Order to submit their Allocation Questionaire!!!

Weirdly though....as I started writing this post, there was a knock on the door and the postman gave me a huge packet of statements from NatWest (still incomplete! and no agreements, T&Cs etc).

With the statements are two letters.

1) The first one is saying that further to their previous letter asking for more time, the documents requested under CPR part 18 are yet to be located. They say "our search will continue any [sic] you will be provided with all/any documents that we can locate as and when they arrive."

2)The second is titled "without prejudice" and is a part 36 offer saying they will expect payment of a lump sum that is about 60% of their claim. I have 21 days to consider and respond, after which the offer will be withdrawn.

What should I do? Their claim has been struck out by the Court, but they seem to be unaware.

They are offering to let me pay them half of the debt, when in fact they owe me TWICE the debt in charges and interest!

How should I respond?

[GaryH]

Talk about clutching at straws! IMHO you do not need to reply to the p36. There is no longer a claim if it has been struck out and the only action they can now take is to apply to set-aside the strike out order - which is unlikely.

I'd get a prelim off if I were you, for the amount you know they owe. You can amend your claim at a later date if/when they fully comply or are forced to comply with the S.A.R - (Subject Access Request). Whatever you do, do not estimate.

You also need to reconsider the contractual interest. There is no basis for a claim for the banks contractual rate under the mutuality principle, and there has also recently been a High Court precedent against.

Either drop the CI and claim simple 8% when you get to the court stage, or else do some pretty intense reseach and attempt another route to compound interest - under the equitable jurisdiction, which is a complex but IMHO viable argument. If you want to go for the latter let me know and I'll point you in the right direction of the stuff you need to read up on.

[gandolfi]

Originally Posted by GaryH

Either drop the CI and claim simple 8% when you get to the court stage, or else do some pretty intense reseach and attempt another route to compound interest - under the equitable jurisdiction, which is a complex but IMHO viable argument. If you want to go for the latter let me know and I'll point you in the right direction of the stuff you need to read up on.

Thanks GaryH!

I'm keen to find some way of acheiving a fair balance or redress for the way I've been treated by NatWest. If you can point me in the direction of authoratative information on 'equitable jurisdiction' for compound interest, I'd like to consider it as an option. The logic (in my head) of the situation is:

Firstly, I have been deprived of the benefit of using my money and I have been denied the opportunity to invest it (in property for example). My credit rating has been shot to pieces and I've ended up trapped in expensive, high-interest borrowing, unable to take advantage of low or 0% offers.

Secondly, NatWest have gained the advantage of profiting significantly from the use of my money, taken unlawfully from my account, by re-lending it at compound commercial interest rates.

There is a fundamental unfairness to both of these things - over and above the penalty charges - that I feel needs to be addressed. The bank should not be allowed to profit from its unlawful actions, and I should not be made to suffer as a result of those actions.

If I can take them to Court and get 8% interest, I'll be happy with that. But I don't want to give them the opportunity of getting away with just refunding the charges/debit interest. That's why it's so frustrating that they've opted to allow their case to be struck out - stopping me from counterclaiming.

A couple of important questions before I get to work on the revised spreadsheets and prelim (the extra statements they've sent add quite a bit to the totals!)..........hopeful ly, my case will be more straightforward after this and I can stop asking SO many questions!

1) Now that their case has been struck out, what happens to the £15,000 debt that they were claiming for? And how does it affect my claim for charges/interest (which is quite a bit more than £15,000)? A large part of the debt included interest that I am claiming - do I still go ahead and include everything within my claim and then take off the £15,000?

2) Now that I am starting my own claim (with prelim etc), should I address it to the people I've been communicating with over the Court case, or should I just send it to the standard address? Do I need to include anything about their lack of co-operation in the case (Data Protection non-compliance/not allowing me to Counterclaim etc)?

3) I am claiming for both personal and business accounts - should I combine them into a single large claim?

THANK YOU, as always, for all your help and support!
Gandolfi

[GaryH]

Originally Posted by gandolfi

I'm keen to find some way of acheiving a fair balance or redress for the way I've been treated by NatWest. If you can point me in the direction of authoratative information on 'equitable jurisdiction' for compound interest, I'd like to consider it as an option. The logic (in my head) of the situation is:

Firstly, I have been deprived of the benefit of using my money and I have been denied the opportunity to invest it (in property for example). My credit rating has been shot to pieces and I've ended up trapped in expensive, high-interest borrowing, unable to take advantage of low or 0% offers.

Secondly, NatWest have gained the advantage of profiting significantly from the use of my money, taken unlawfully from my account, by re-lending it at compound commercial interest rates.

There is a fundamental unfairness to both of these things - over and above the penalty charges - that I feel needs to be addressed. The bank should not be allowed to profit from its unlawful actions, and I should not be made to suffer as a result of those actions.

Your quite right, it is totally unjust and unfair that you should only be entitled to only simple interest when a) they've re-invested your money earning themselves compound rates, and b) you've had to borrow money at compounded rates to replace the money they have been in wrongful possession of.

Unfortunately though the law is the law and the law is long settled that there is no jurisdiction for a court to award compound interest at common law or statute. This situation is widely recognised as unfair and the law commission have in fact recommended a change in the law via future legislation to allow the courts discretion to award compound interest. Not much good for you at this present time though!

Becouse there is no power to grant compound in common law or statute, there is no possibility of getting compound interest on any of the basis' its commonly claimed on on this forum - I.e contractual mutuality, fairness, etc. This is especially true since the recent High court precedent although to be honest I've been saying this for the last 6 months - only to be shouted down and told that I "didn't understand contract law"!.

You may be able to get it in equity though - the 'equitable jurisdiction' to award compound interest. Invoking the equitable juristiction relies on the existance and breach of a fiduciary or other trust relationship - so your first hurdle is to establish one exists between you and the bank.

This is difficult to establish - it is settled that the customer/banker relationship is not a fiduciary one (Foley v Hill), although there are occasions where the relationship is principle/agent, such as the payment of cheques, etc (Westminster v Hilton). You would need to argue that a trust arose upon payment of the charges - that the banks conscience was affected upon receipt becouse they know they had no legal right to take the money.

If you were successful in doing that, then you would need to pursuade the judge that the rate claimed is equitable under the circumstances - this is not likely at all IMHO if you claimed the higher 30% rate. You'd need to go for the lower authorised rate. You'd need to argue that full restitution requires that compound interest is awarded becouse they would be unjustly enriched otherwise, by virtue of a) in the first paragraph above. Although it stands to reason that this would be the case, its difficult to offer anything concrete on this becouse you are not privy to how when and where the bank would have re-lent your money.

In other words, its a long shot, and there are many hurdles to overcome and many points at which the argument could be rejected. Its a complex area and one you'd need to fully research and understand first. I'll help you where possible if you decide to go for it, but I'm certainly no lawyer and I only know what I've researched and picked up from Zoot. Particularly as your in the fast track with costs exposure, you need to think long and hard about whether you really want to pursue it.

Have a read of the Westdeutsche case. Summary -

http://pntodd.users.netlink.co.u k/cases/cases_w/westdeut.htm

full judgement -

http://www.ucc.ie/law/restitution/archive/englcases/westdeutsche.htm

[GaryH]

Originally Posted by gandolfi

1) Now that their case has been struck out, what happens to the £15,000 debt that they were claiming for? And how does it affect my claim for charges/interest (which is quite a bit more than £15,000)? A large part of the debt included interest that I am claiming - do I still go ahead and include everything within my claim and then take off the £15,000?

I don't think there is now any way in which they can enforce the debt. In other words there is no debt. You need to seek other advice on this though as I'm not 100% sure. Ask someone like Laiste, or if not I'll try to find out for you.

2) Now that I am starting my own claim (with prelim etc), should I address it to the people I've been communicating with over the Court case, or should I just send it to the standard address? Do I need to include anything about their lack of co-operation in the case (Data Protection non-compliance/not allowing me to Counterclaim etc)?

Standard address. Don't refer to their claim. Treat it as completely seperate.

3) I am claiming for both personal and business accounts - should I combine them into a single large claim?

No - you cannot use the consumer regs for business claims, plus the terms will be different. Keep them seperate.

[gandolfi]

Thanks GaryH!!
I'll look into all the things you've directed me towards, but I sense that it is likely to be beyond my capabilities and probably too risky

To ask a slightly simplistic question though.......if I ask for the contractual rate (11% is what they are charging me on the debt) from the beginning in the ways advised elsewhere on the site (perhaps incorrectly as you suggest), but provide the Judge with 8% in the alternative, is that also a risk?

Some people seem to suggest that the contractual is worth asking for as long as the 8% is given in the alternative. Is that correct, or do I risk my entire claim being thrown out completely if I give both options? I don't want to jeopardise the main part of my claim (which is complicated enough as it is).

[GaryH]

There is now a precedent against contractual interest on the implied term basis - I.e mutuality, fairness or whatever - so claiming it on that basis is completely futile. The bank would just settle the charges + 8% and defend the rest.

It would'nt harm the rest of your claim, as far as I can see, but its just pointless.

Here's a summary of the recent High Court judgement;

Halliday v HBoS #1
Halliday v HBoS #2

[GaryH]

and probably too risky

Thats the main thing, becouse of the probable allococation to the fast track.

I certainly don't think its beyond your capibilities, but you would have to do a lot of research and reading of cases, etc.

[gandolfi]

Hello Everyone
Long time no post - have been on hols....

As you know from previous posts, NatWest's claim against me was struck out last month because they failed to comply with Court order to submit their aq. Weirdly, I got a bundle of statements back to 1992 on the day it was struck out - the information that I needed to counterclaim.

So, I'm now fully loaded with all the info (spreadsheets/letters etc) I need to launch my own claims (personal and business) against them. I rang the Court today, to check that NatWest hadn't appealed against the strike out (they hadn't). I also rang NatWest to see the status of the claim from their end....

.....they say they may be applying to REINSTATE THE CLAIM against me (apparently the Court didn't get the fax they sent to comply with the order - yeah, right)

Anyway, I'm going ahead with my own claims regardless and will be sending letters out asap to get the ball rolling. If they reinstate their case against me I'll just counterclaim with reference to the new claims. Is that the right way to do it?

GaryH - hoping you will be able to help. Laiste has been v. busy and hasn't been able to answer my questions regarding the status of the debt that NatWest were claiming from me. I just need to know where I stand now that their claim has been struck out - does the debt still exist?? Is there anyone else who could advise please? They were claiming c£14,000 from me and I will be claiming c£28,000 from them.

Finally, a bit of OFT related panic.......does the OFT case relate to business claims as well as personal? Will it affect or delay my claim do you think?

Thanks everyone!
Gandolfi

[gandolfi]

sorry - double posted

[steven4064]

Current CAG advice is to carry on as usual. THe OFT case is mainly testing the UTCCR1999 which do not apply to business accounts. However, as a subsidiary, it is also testing whether charges are penalties, which does.

When it comes to it, if NatWest try to hide behind the OFT case or if your claim gets stayed then you should try to get things going again by countering that the OFT case mainly does not apply.

I'm just about to launch a small business claim myself (I've just gone past the lba deadline) so we'll try together!

[gandolfi]

Originally Posted by steven4064

I'm just about to launch a small business claim myself (I've just gone past the LBA deadline) so we'll try together!

First of all CONGRATULATIONS on your WINS(!!!) steven4064. Fantastically well done you!!! An inspiration for the rest of us!)

I'm moving forward with all of my claims now...personal and business both at LBA stage, ready to go...

Hoping you may be able to reassure me that the following LBA wording is OK - I've adapted it slightly to include a request for T&Cs under CPR4.6(C). Is that right?

Also, I've included the default removal request in the letter - do I need to add anything to that or is it OK as it is?

Many thanks again.
The letter reads as follows:


Dear Sir/Madam,

Re: ACCOUNT NUMBER: xxxxxxxxxxx

Further to my previous letter (2nd August 2007), I am writing to ask you to refund the charges that you have levied from my account over the last xxxx years. I now understand that the regime of fees which you have been applying to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to Statute.

I would draw your attention to the terms of the contract that you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner that complies with UK law. I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I calculate that you have taken £xxxx plus £xxxx that you have charged me in overdraft and loan interest for the sum that you have taken. Total £xxxx. I enclose a schedule of the charges that I am claiming with this letter.

If you dispute that I am entitled to a refund of these charges, I request that you forward within the above-mentioned time scale, a copy of the Terms and Conditions that were in force at the time my account was opened, and any subsequent amendments to those Terms and Conditions. These are requested under CPR Pre-Action Protocol 4.6(c), and failure to provide them will be brought to the attention of the court, should it be necessary to commence a county court action.

Additionally, you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges that you had applied unlawfully to my account. In addition to full payment of the sum mentioned above, I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

If you do not comply fully within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

Yours faithfully,


Gandolfi


any amendments/suggestions welcomed

[gandolfi]

bump....

If anyone can help with the wording of the letter in my previous post, I'd really appreciate it - want to get it sent off asap

Thanks!