This is going to be a long post, I'm afraid. I am at a crucial stage and am about to submit all info to the bank/court regarding my Defence/Counterclaim.
Guido T has helped enormously to get me this far. His advice has been to file an amended defence and Counterclaim asap. However, I read on a separate thread
ILLEGAL CCJ on ACCOUNT - DESPERATE!**WON AT LAST**
that an informed Counterclaim can't be filed until the bank supplies the information required in my S.A.R - (Subject Access Request). I have adapted a letter (below) from posts 51 & 52 of that thread to apply to my own case (with acknowledgements and thanks to Laiste and Electric Lemon).
I now have two choices.......your advice would be very helpful...
1) I send the first of the following two letters and go straight ahead with my Counterclaim.
My worry is that, so far, the bank have not received ANY specific details of my claim for refund of charges/interest etc. I trust and value Guido T's advice to file the counterclaim now, I just want to make absolutely sure that this is my best and only choice of action.
2) My second option is to send both letters, giving the bank 14 days to either settle in full or to comply with my request for full disclosure.
The problem with the second option is that time is short and I do not want to be defeated in Nat West's action against me because I haven't submitted an amended defence/counterclaim in time.
Anyway, here are the letters with some ?????questions????? shown like this in the text.
Any comments/additions/amendments/advice welcomed. Thankyou!
LETTER ONE
Mr Gandolfi
XXXXX
XXXXX
1st June 2007
National Westminster Bank
Copy sent to Court
Re: Claim Number: XXX XXXXX
Account Numbers: XXXXXXXX and XXXXXXXX and XXXXXXXX
Request for full disclosure of account information
Dear Sir/Madam
I am writing with regard to the Court claim filed by your company against me. I filed a defence to the Court on 11th April 2007, stating that the amounts are now in dispute as I believed they were made up of unlawful bank charges. I subsequently requested more time to particularise my defence on the grounds that I was awaiting your response to my Data Protection/Subject Access Request letter (10th April), for information regarding my relationship with National Westminster Bank. (a copy of this letter was supplied to the court with my defence), I informed the Court that I intend to file an amended defence and issue a Counterclaim as soon as the requested information was supplied.
As stated in my letter, you were given 40 days in which to comply with my request. The deadline for providing the requested information passed on 24th May. Despite my request for a complete list of charges and transactions relating to my banking history with your organisation – including the following accounts, XXXXXXXX Business Current, XXXXXXXX Personal Current, XXXXXXXX Business Loan – you have failed to supply the information required. Your response has been wholly inadequate and incomplete.
My Business Account was opened in 1989, yet you have only sent bank statements from 29/03/01 to 29/12/06. The Business Loan began in July 2001, yet you have only provided statements from 4/10/02 to 30/9/04. You have provided no information whatsoever regarding my Personal Current Account.
Furthermore, you have made no response to my request for information or evidence regarding any manual intervention in relation to my banking history and have not disclosed any indication or notes which have either caused or resulted in that manual intervention.
********To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith.*****???? or ???? ******* I therefore have no option but to submit my amended defence and Counterclaim on the basis of the information that is available to me.****** ????? Which should I use??????
Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supercedes the Data Protection request made on 10th April 2007. The information must be furnished by the XXth June 2007, which gives you fourteen days to provide what has been requested.
If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an order enforcing your compliance will be sought.
The following information is required:
1) I hereby request all data that National Westminster Bank hold on me from all relevant filing systems, to include a complete list of all transactions and charges on my accounts held/formerly held with National Westminster Bank. I also require a transcript of all recorded phone calls pertinent to these accounts and all notes made in relation to those calls.
2) Additionally, where there has been any event in my accounts history which has required manual intervention by any member of National Westminster Bank, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts held/formerly held with National Westminster Bank.
If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.
3) I also require true copies of all original signed agreements between myself and National Westminster Bank.
4) Full Terms and Conditions and charges tariffs relating to each account, from the date when the accounts were opened and including any revisions to the present day.
5) Documents relating to any insurance added to the accounts, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
6) A true copy of any Default Notice issued in respect of these accounts.
7) Specific details of the fees/charges levied by National Westminster Bank in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
I also enclose details of my intended Counterclaim for unlawful charges and interest on those charges based on the bank statements that are currently available to me.
Please note that if my request for full disclosure of the information requested above is not supplied by XXth June, I will proceed with an amended defence and Counterclaim using the attached calculations.
I look forward to your co-operation in this matter. Additionally, as the information requested contains sensitive personal details, I expect it to be sent by guaranteed next day delivery, to ensure its safe arrival.
Yours faithfully,
LETTER TWO
Mr Gandolfi
xxxxxxxxxx
National Westminster Bank
xxxxxxxxxx
Copy Sent to Court (Claim Ref: XXXX)
[date]
Request for repayment of charges
Dear Sir/Madam,
ACCOUNT NUMBERS: XXXXXXXXX Business Current, XXXXXXXX Personal Current, XXXXXXXX Business Loan
My request
Further to my enclosed letter requesting all information on my accounts' history with your organisation and in relation to your County Court claim (Ref: XXXXXX) I am writing to ask you to refund to me the charges which you have levied from my accounts over the last 16 years.
I now understand that the regime of fees which you have been applying to my accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations.
??????....do I leave the reference to Consumer regulations in - part of my claim is for Personal Acc/part for Business Acc??????or do I just use non-consumer??????.
The charges debited to the accounts are punitive in nature; are not a genuine pre-estimate of cost incurred by the bank; exceed any alleged actual loss to the bank in respect of any breaches of contract ; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the bank which exercises the contractual term in respect of such charges with a view to profit. The precedent for this was Dunlop Pneumatic v New Garage [1915] AC 79.along with Murray v. Leisure play [2005] EWCA Civ 963.
If you say that this is not the case, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.
Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.
Your responsibilities
I would draw your attention to the terms of the contracts which you agreed to at the time that I opened my accounts. It is an implied term of those contracts that you would conduct yourselves lawfully and in a manner which complies with UK law.
I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary
????is there an alternative to fiduciary - not sure that it is right????
I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now.
What I require
I calculate that you have taken £XXXX plus £XXXX which you have charged me in overdraft and loan interest for the sum which you have taken. Total £XXXXX .
I enclose a schedule of the charges which I am claiming with this letter. In addition, I claim £XXXX compound interest on the amounts claimed using the same rate that you have applied, and continue to apply, to the debt that has been caused by your unlawful charges. The grounds for claiming this rate is based in equity and a legal requirement for fairness.
[????This contractual section needs more work!!!??? Any advice????]
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 which 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.
My targets to resolve this matter
I hope that you will enter into a sincere dialogue with me about this matter. In addition to my request for information on my accounts as detailed in the enclosed letter, I will give you 14 days to reply to me accepting, unconditionally, my request for repayment in principle and letting me know a date by which I will receive payment.
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 file a Counterclaim to your action in the county court.
If you do not respond, or you do not respond positively, within this time period, there will be no further communication from me and I shall issue a counterclaim without delay.
Yours faithfully,
Apologies for long post. Thanks for bearing with me. Any thoughts on how to proceed?
Re: Gandolfi v NatWest 
Re: Gandolfi v NatWest 
to Nat West (copy enclosed) asking for full disclosure of all transactions and charges, as well as evidence of manual intervention on my account. I have kept the majority of my bank statements and will therefore, in the meantime, calculate my claim for repayment of charges and interest (plus contractual interest for the bank's use of my money), on the basis of the information that is available to me.