Gandolfi v NatWest

[gandolfi]

Originally Posted by GaryH

Ok, we're talking fast track here then.

Bad on the one hand, becouse of the costs risk which I trust you are fully aware of, but very good on the other becouse we've got disclosure and a few other nice little provisions of the CPR that we can torment them with, that aren't available in small claims.

So basically you need to put forward and amended defence which includes a counterclaim, yes?

What was the last you heard from the court? You handed the AQ back and haven't heard anything since, is that correct?

Forget the prelim letter. They've sued you. You've a right to counterclaim without giving them advance notice.

That's great, thanks GaryH.

Yes, I submitted the AQ and have not heard back yet (apart from a letter saying that the case is transferred to my local court. As I said before, apparently NatWest haven't seen my defence yet and they are having an argument with the court over its whereabouts.

So, yes....amended defence and counterclaim needs to be prepared.

Should I still send the letter demanding disclosure of all information (after their failure to comply with my S.A.R - (Subject Access Request))? Should I include anything else in that letter (CCA request etc)?

I cannot be here much over the weekend, but will be back all day Monday, to act on any advice given.

Thanks and best wishes,
Gandolfi

[GaryH]

Ok, well you have two choices now then -

1) File an amended defence along with a c/c for the estimated amount, or

2) Get a request off for the documents you require giving them a deadline of a week. Personally I would do this as a formal request under CPR part 18.

If it were me I would definately much favour the latter. You need to see the whole picture before you file your counterclaim really, and I'm not at all keen on estimated amounts.

As your not here to decide I'll assume your going to request the info first.

Part 18 is a provision which allows a party to request any information or clarification from the other which is necessary to prepare their case - which is ideal in your situation. You serve a preliminary request to the other side giving them a "reasonable" time to respond, then if they don't respond you can apply for an order from the court which would oblige them to comply. As they have already had 40 days plus to find and supply the info under your S.A.R - (Subject Access Request), and as you need it as a matter of urgancy, I would say a week is reasonable, after which you can apply for an order.

Most of what the request will consist of is already there in the letter you posted previously - that can form the basis of your request. I'll put it into a part 18 compliant format for you and post it up later today.

[gandolfi]

Thanks, GaryH, that sounds like a good solid plan to me!

I will be able to drop in (in-between work) over the weekend if there are any updates.

All best,
Gandolfi

[GaryH]

No problem.

I don't forsee to much of a problem with this by the way, IMHO - they may even fold upon receipt of the part 18, although obviously you should'nt get your hopes up too high. I can't see any reason why this would be any different to a straight claim for charges, except obviously most of the refund will be swallowed up!

I'll post the part 18 later on.

[GaryH]

Sorry mate (again!) - I'm on this now though so give me an hour and we'll have the p18 ready to go.

[gandolfi]

No problem, GaryH!
It's great that you are helping me and giving your time.
I'm really looking forward to taking the next step with added confidence as a result of your advice.
Cheers!
Gandolfi

[GaryH]

Send a covering letter to Cobbetts, based on the one posted on the previous page -

Gandolfi
xxxxxxxxxx
xxxxxxxxxx

xxxxxxxxxx

National Westminster Bank
xxxxxxxxxx
xxxxxxxxxxx
7th June 2007
Copy sent to Court
Re: Claim Number: xxxxxxxxx

URGENT ATTENTION REQUIRED

Dear Sir/Madam

I am writing with regard to the Court claim filed by your company against me on 12 March 2007. 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 bank charges which I believe to be unlawful contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and the common law.

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), which asked for detailed 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 wished to file an amended defence and issue a counterclaim as soon as this information was supplied.

As stated in my Subject Access Request letter, you were given 40 days in which to comply. 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, xxxxxxxxxxxxx Business Current, xxxxxxxxxx Personal Current, xxxxxxxxxxxxx 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 fully particularised defence and counter-claim, I require specific information regarding these accounts to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to provide this information under Part 18 of the Civil Procedure Rules.

Please find enclosed a preliminary request for information and clarification under part 18. This request supersedes the Data Protection request made on 10th April 2007. The information must be furnished by the 19th June 2007, which gives you seven working days to provide what has been requested. I consider this period more than adequate in view of the fact that the same information was requested by way of the Data Protection Act request dated [date].

Should you choose to ignore this request, fail to comply in full, or fail to comply on time, this will be reported to the Court and an order enforcing your compliance will be sought without delay.

Yours faithfully,

Part 18 request to attach;

CLAIM NUMBER: *******

In the XXXXXXX COUNTY COURT

Between:

[YOU]

Claimant

-And-

NatWest BANK PLC

Defendant

_______________________

REQUEST FOR INFORMATION AND

CLARIFICATION UNDER CPR PART 18
_________________________ ___

DATE OF SERVICE: [date sent]

To enable me to file a fully particularised defence and counter-claim, I require specific information regarding the accounts cited in the Claimant's Particulars of Claim to be provided forthwith. The information must be furnished by the 19th June 2007, which gives you seven working days to provide what has been requested. If you fail to comply, this will be reported to the Court, and an order enforcing your compliance will be applied for forthwith.

1. In respect of my alleged indebtedness to the Claimant please provide:

a) True copies of the original signed agreements between myself and National Westminster Bank, as referred to in paragraphs 1) and 3) of the particulars of claim.

b) All 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).

c) A true copy of any Default Notice/s issued in respect of these accounts, as referred to paragraph 3) of the particulars of claim;

2. I believe my alleged indebtedness to the Claimant to be comprised in full by bank charges which amount to contractual penalties contrary to common law and statute. Therefore, in order that I may prepare and file a fully particularised counterclaim to the Claimant's action, please provide:

a) Full Terms and Conditions and charges tariffs relating to each account, from the date when the accounts were opened and including any revisions or amendments to the present day.

b) A full and comprehensive statement history for each account, providing each and every statement sheet from the time the accounts were opened until the present day.

c) Specific details of all 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.

d) 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 or 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.

Copy the court, perhaps with a covering letter.

If they don't comply properly or on time, then I'll help you with the application.

[gandolfi]

GaryH, you are a star!!! Thank you!

I will get it in today's post with a copy to the court.

I just have two small queries...

1) The claimant's address on the claim form is not Cobbetts (I've not had anything from them), but an address in Telford (collections dept?, I think). Should I send it to that address?

2) In paragraph '2' of the CPR Part 18 request, it says 'I believe my indebtedness to the claimant to be comprised in full by bank charges...'. The calculations I have done so far show that the debt is made up of 50% charges/50% debited interest on those charges (does not include additional CI – just interest they have charged me).
Is it still OK to go with your wording in the letter or should I amend it to say 'comprised in full by bank charges which amount to contractual penalties contrary to common law and statute and the interest debited from my account in respect of those charges'?

Thanks again, GaryH! I really do appreciate it.
Gandolfi

[GaryH]

No problem.

1) Yes, your right. Sorry Cobbetts was an assuption on my part. Send it to whatever address they've given on the claim form.

2) Yes, your suggested amendment is fine.

[gandolfi]

Originally Posted by GaryH

No problem.

1) Yes, your right. Sorry Cobbetts was an assuption on my part. Send it to whatever address they've given on the claim form.

2) Yes, your suggested amendment is fine.

That's great, thanks Gary. I've prepared the letter.

Just wanted to confirm one other thing. The CPR Part18 request only asks for information on the accounts that are shown in their particulars of claim (business and loan). However, my personal account will also be part of my counterclaim. They transferred funds from my personal account to the business account (and closed the personal account), so they are connected.
Can I amend the first line to the following, so that it is included:

'To enable me to file a fully particularised defence and counter-claim, I require specific information regarding the accounts cited in the Claimant's Particulars of Claim as well as information regarding my Personal Current Account (No xxxxxxxxxxxxxx) to be provided forthwith.'

I think that is everything.....apart from my worry that I haven't yet told them how much I am likely to be claiming in total. If they are going to back down, I'd like them to know how much I am expecting to have refunded so that they can make an offer....Should I be doing anything about that? It seems unlikely that they will comply with the Part 18, doesn't it? I'd like to provide them with an escape route (ie. to pay-up what they owe me), if possible...

Will be sending this off today anyway,
BIG THANKS to you GaryH!
Best wishes,
Gandolfi

[gandolfi]

GaryH.....Apologies for my repeated posts in the last few minutes...want to try and catch the post, if I can.

I noticed that the letter refers to the Unfair Terms in Consumer Contracts Regulations 1999. Is it OK to use this even though their claim is for sole trader business debts? On the S.A.R - (Subject Access Request), I only referred to Common Law and Statute - I left out references to consumer law, as suggested elsewhere.

Just wanted to check.....part of the counterclaim will be for personal account, but their claim against me is for business only.
Thanks!
Gandolfi

[steven4064]

If it is for a business account you should leave out any reference to the UTCCR 1999. Although if you leave them in the DJ will jsut dismiss them as irrelevant and move onto tyhe next bit. It's better to get it right thougfh
Steven

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[GaryH]

Sorry, I didn't realise it was a business account. As Steven's post above then, take it out. Replace with Unfair Contracts (Terms) Act 1977 if you like. Not strictly necessary mind you, its not a statement of case after all.

With regards to the other post above, yes, that should be fine. Its necessary to prepare your case so I can't see a problem with obtaining information relating to the other account as well.

[gandolfi]

Thanks Steven and welcome to the thread

OK, so do you (and GaryH if you are out there) think that the following amendment would be better...?

Instead of:
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 bank charges which I believe to be unlawful contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and the common law.

I write:
'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 bank charges which I believe to be unlawful contractual penalties that are contrary to Statute and unlawful at Common Law.'

I'm reluctant to amend the letter without GaryH's go-ahead...

Thanks and best wishes,
Gandolfi

[GaryH]

Fine.

[gandolfi]

Originally Posted by gandolfi

Thanks Steven and welcome to the thread

OK, so do you (and GaryH if you are out there) think that the following amendment would be better...?

Instead of:
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 bank charges which I believe to be unlawful contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and the common law.

I write:
'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 bank charges which I believe to be unlawful contractual penalties that are contrary to Statute and unlawful at Common Law.'

I'm reluctant to amend the letter without GaryH's go-ahead...

Thanks and best wishes,
Gandolfi

Sorry GaryH, my post crossed with yours.

So, the final amendment will be:

'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 bank charges which I believe to be unlawful contractual penalties contrary to the Unfair Contracts (Terms) Act 1977 and the common law.'

Cheers!