BankHater Business v NatWest

[hedgey06]

This one might help Bundle for stay hearing along with this one Skeleton argument for stay hearing - but I feel one of your strongest arguments is definitely the fact that your claim doesn't include the UTCCR's, which is what the test case is actually looking at. x

[BankLover_not]

Hi Hedgey,

That's all very helpful, and I agree that as it is a business account it is not covered by the test case. NatWest even say this in their application!! Not quite sure why the court just doesn't lift the stay, especially as both parties are agreeing to have it lifted!!!! Some sort of court intervention, can't work it out.

Once again, thanks very much for your help hedgey, greatly appreciated.

BankLover_not

[bambers]

Hi all

I now have to complete the allocation questionairre but am unsure which road to go down, the judge said it will be a multitrack claim due to size 17k, so shall I attach the standard terms of disclosure or should I try the new strategy (which mainly seems to be based around personal accounts & smaller claims)?
Also should I be attaching anything else?

I'm a bit confused and don't want to make a mistake.

thanks in advance

Bambers

[bambers]

Hi Bankhater

In respose to your current situation, NatWest sent an agent (not a solicitor) to our hearing to have the decision set aside and the stay applied.
It was clear that the judge was not going to allow the stay due to the account being a business one.

What I did was sent a letter to the court by special delivery a few days before the hearing date outlining why the stay should not be applied eg Business account / UTCCRs not relied on/ etc. The time allocated to the hearing was 5 minutes. (it actually took 15mins)

The judge had pre- read this and decided a stay was not appropriate. You also need to prepare a schedule of your out of pocket expenses for attending the hearing and you will be awarded them.

I understand it is frustrating now that NatWest are saying they also want the stay lifted. I think that they are the ones who could request that judgement be made without a hearing, perhaps you could also request this.

hope this helps

Bambers

[steven4064]

Originally Posted by bambers

Hi all

I now have to complete the allocation questionairre but am unsure which road to go down, the judge said it will be a multitrack claim due to size 17k, so shall I attach the standard terms of disclosure or should I try the new strategy (which mainly seems to be based around personal accounts & smaller claims)?
Also should I be attaching anything else?

I'm a bit confused and don't want to make a mistake.

thanks in advance

Bambers

Hi Bambers

The 'new' strategy, as you say, is for small claims and is actually based on standard disclosure. That is, it is trying to get the judge to effectively order standard disclosure (or at least the information you would get from standard disclosure) for a small claims hearing.

You have various options: Yes, you should include standard terms of disclosure.
You might also consider a draft order for the banks defence to be struck out for taking the p*$$. In that case, in section G of the AQ (Section H if is a N150) youcould put something like

Please find the following documents attached to this allocation questionnaire;
1A) Section G (H) - other information
1B) List of settled cases
1C) Text of order made by Lincoln County Court
1D) Mullen -v- Hackney BC (1997)2 A11ER 906
2A) Draft Order for directions


This allocation questionnaire and its attachments were sent to the defendant on xx/xx/xx

then attach something like this

1A) Section G or H* – Other Information

The Claimant respectfully requests that an order may be made as follows;

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

Since May 2006, I am aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

Please find attached a copy of an order made by LincolnCounty court (attachment 1C) in at least 10 cases similar to my own involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

2. In the alternative, should the court not be minded to strike out the defence and if the claim is to proceed to allocation, the Claimant respectfully suggests that directions may be made for standard disclosure as per the attached draft order (attachment 2A).

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information.

As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact. Accordingly, I respectfully would estimate that the hearing of the claim should last no longer than one hour.

(* Section G in N149, H in N150 AQ)

The settled cases and case law are available on this site. If you can't find them, I'll point out where they are. Or, you could just go with standard disclosure.

[bambers]

Thanks so much Steven, thats reassuring advice, I'll get on with it now.

Will keep posting progress for benefit of Bank Hater, who is just a few steps behind me!

kind regards

Bambers

[steven4064]

Here are the attachments:

1A) In my previous post
1B) List of settled cases
1C) Text of order made by Lincoln County Court
1D) Mullen -v- Hackney BC (1997)2 A11ER 906
2A) Draft Order for directions - You already have this (standard disclosure)

[bambers]

Steven

Just a quick query on the AQ. (its an N150)
F. Proposed Directions - does the attached Draft Direction count & therefore answer - yes? (q. Have you attached a list of the diections you think appropriate for the managment of the claim?)

can't work it out from the guidance

thanks

Bambers

[steven4064]

That's what I did - ticked 'yes' (and 'no' for agreed with other parties)

Just a bit of extra detail. Our section H for our NatWest claim actually had 3 options:

1) order to stirke out for taking the P*$$
2) order to comply with CPR 18 request (sent earlier)
3) order for 'new' directions (this was a personal account)

the court actually went with option 3. And NW then caved in - which is the intention of all 3 options of course.

[BankLover_not]

Hi Bambers,

Thank you very much for that piece of advice, it has certainly given me with a bit more confidence and shed some light on the matter. Feel free to carry on using this thread if it helps your own claim. Even though I am a novice at all this stuff if I can help in anyway then please let me know.

Just to clarify when you did go to the hearing, other than the business claim and UTCCR point, what else did you rely on or was it just that point.

Once again, many thanks for sharing your experience.

BankLover_not

[bambers]

Hi Bankhater

The stay hearing was at the beginning of this month.

These are the points I made to the judge regarding the stay:

1.The claim relates to a business account not a current account - there is no evidence to suggest the outcome of the test case will have any bearing upon business accounts

2. The test case is based around whether bank charges are a breach of the UTCCRs. This case does not rely on these regs as they do not apply to business consumers.

3. We stand to suffer financially, for what could be several years before the test case is fully concluded - with interest accruing as a result of the unlawful charges

4. Staying the case may cause some of the charges in our claim to extend outside the limits of the limitation act 1980, thus predjudicing our changes of succeeding with the case at a later date

5. The claim was filed before the OFT announcement

6. When it suits NatWest they wish to stay the issue of charges, yet they still wish to continue charging them in the meantime.

Send in your pre-court letter to the judge outlining the above. It will ensure you get everything in without worrying about saying it on the day.
Don't worry about the hearing, just have all your info in order for the judge to look at if or when he asks eg. bank statements, list of charges, your POCs, don't forget a breakdown of your costs for the hearing, time off, travel, parking etc. Even the agent they sent to represent NatWest helped us before and after in the waiting room!

Hope this helps


Bambers

[bambers]

Hi All - especially Steven

I am so annoyed and frustrated. I did everything as we discussed with the allocation questionnaire and the court have now ordered a stay again pending the test case! - instead of strike out/hearing date or disclosure. (remenber this is a business account)
I now have to apply to have the stay lifted again - this clearly seem to be a court mistake as I have already had the stay lifted by a previous judge at the same court which was done at a hearing. I am totally at a loss as what to do next.
please can anyone advice?????
Bambers

[steven4064]

You could write to the court and remind them that the saty was lifted by the previous judge and all the stuff about the test cae not applying to business accounts because it only relates to the UTCCR, etc. You could even attach the OFT PoC.

Ask if it is a mistake. See if that does anything.

[bambers]

Thanks Steven, I'll try this tomorrow and let you know the result.
kind regards
Bambers

[TheyrCriminals]

Hi People,

Has anyone read the Abbey defence? It appears they go further than the 'service fee' defence. They now claim that every time you go over your overdraft (or make an Instant Overdraft Request as they now label it) you are in actual fact making an offer to the bank which the bank then decides whether to accept or not(i.e to pay the item or return it unpaid).

Any thoughts on this anyone?

TheyrCriminals