Quote:
Originally Posted by GuidoT 
If possible you should post your DCC here so that it can be commented on. |
Thanks GuidoT!
Got my head around the defendant/counterclaimant thing, bit confusing....
Here is the text of the Amended Defence and Counterclaim that I've ended up with. Hope it's OK as I probably won't be able to amend anymore in time for deadline. Obviously, if there are any glaring errors then do let me know, but your opinions would be much appreciated.
Here it is:
Claim Number xxxxxxx
Gandolfi: Amended Defence and Counterclaim – 2nd January 2007
In response to the Court's order (xx/xx/xxxx), I hereby file and serve an amended defence and counterclaim.
Amended Defence
1) I defend this Claim in full, including all outstanding debts listed in the Particulars of Claim.
2) The proportion of the Claim that related to Account No: xxxxxx was struck out by the Judge at the Application Hearing on xx/xx/2007. This was on the basis of the Claimant's letter (shown to the Defendant at the hearing), which stated that the account was closed, no further payment was required and that this part of the Claim was discontinued.
3) The remainder of the Claim, relating to A/c: xxxxxxx (Business Current Account), is defended in full on the grounds that;
a) the Claimant is unwilling or unable to supply basic information in support of its case to the Defendant when formally requested; and
b) any indebtedness to the Claimant by the Defendant consists entirely of unlawful bank charges and is therefore subject to a Counterclaim for the recovery of those charges.
Each of the above points of defence are detailed below.
Claimant's Failure to Provide Basic Documentation Relating to its Claim
4) National Westminster Bank began its case against me ten months ago, in March 2007. Since then, the Claimant has continually hindered the progress of my Defence by failing to provide vital information when formally requested. My intention from the beginning has been to defend this claim in full. However, my ability to file a fully particularised amended defence and counterclaim depended on information that I requested from the Claimant on several occasions and which they have been unwilling or unable to supply.
5) Firstly, the Claimant did not comply with my Subject Access Request (Data Protection Act 199
of xxth April within the 40-day deadline. Included in this request for information was a request for a full statement and account history of my relationship with the bank. Because of their failure to comply, I made a formal CPR18 Request for Information to the Claimant on xxth June 2007. A copy of this request was also sent to the Court at that time.
6) Three of the critically important items (in a list of several) requested in the CPR 18 Request were;
a) True copies of the original signed agreements between myself and National Westminster Bank, as referred to in paragraphs 1) and 3) of the Claimant's particulars of claim, and for my Personal Current Account.
b) A true copy of any Default Notice/s issued in respect of these accounts, as referred to in paragraph 3) of the particulars of claim.
c) Full Terms and Conditions and charges tariffs relating to each account (including the Personal Current account), from the date when the accounts were opened and including any revisions or amendments to the present day.
The Claimant's response to these requests was wholly inadequate. An incomplete statement history was not delivered to me until xx/xx/07 – the same day that the Claimant's case was struck out by the Court because the Claimant failed to comply with an 'unless order'. This was 84 days after the original Subject Access Request was made under the Data Protection Act 1998 and 21 days after the CPR18 request was made. I have still not received a wholly complete statement history.
7) Furthermore, vital information that was requested in my CPR18 request – copies of original signed agreements and default notices that are referred to in the Claimant's Particulars of Claim, as well as full Terms and Conditions and charging tariffs for the accounts – has still not been supplied by the Claimant. The Claimant's letter, dated xx August, informed me that
"unfortunately the bank cannot locate the original signed agreements for the Accounts claimed or your personal current account. We have been unable to retrieve the documents from our off-site storage and now believe that they are currently lost. This also includes a true copy of the Default Notices and full terms and conditions for the Accounts"
As well as obstructing my right to issue a counterclaim, the defendant's continued unwillingness or inability to supply the basic documentation that is fundamental to supporting its case suggests that it is unable to substantiate any valid claim against me whatsoever. If the Claimant either cannot or will not provide the essential information requested then the claim has no realistic prospect of success and allowing the claim to proceed is futile, not in the interests of justice, and contrary to the overriding objectives.
I therefore respectfully request that the Claimant's claim be struck out.
Unlawful Bank Charges
9) As stated in my original Defence, the debt is also in dispute because I believe it is made-up entirely of unlawful penalty charges. Accumulated, disproportionate penalty charges – and the interest levied upon them throughout my relationship with Nat West – are the very basis of my indebtedness to them. I now understand that the regime of penalties which Nat West have been applying to my accounts in relation to direct-debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to statute.
I therefore intend to claim back all unlawfully applied charges and the interest levied upon them by the bank. In this respect, I refer the Court to my Counterclaim as set out below.
Counterclaim
10. The Defendant had two bank accounts with the Claimant:
Account No: xxxxxxxxxx (Business Current), and
Account No: xxxxxxxxxx (Personal Current)
Branch sort code xxxxxx
The Business Account was opened in xxxx, the Personal Account in xxxx. Both accounts were governed by the Claimant’s Banking Terms and Conditions (the contract).
11. The Defendant admits to breaches of the terms of the contract that required the Defendant to stay within any agreed overdraft limit.
12. The Defendant’s breaches of contract have led to the Claimant debiting the accounts with numerous default charges, and interest on the default charges, between xx/xx/xx and xx/xx/xx. A schedule of the charges and interest on the charges for each account is attached to this Counterclaim.
13. The Defendant seeks the refund of said charges along with the additional interest levied by Claimant on said charges. In addition the Defendant claims interest on the full amounts as detailed in paragraph 24 and in the attached schedules of charges and interest.
14. In support of his basis of claim the Defendant contends that:
i. The charges are excessive in that they are not truly reflective of any actual or genuine pre-estimated loss incurred by the Claimant in respect of any alleged breaches of contract on the part of the Defendant. If the Claimant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the counterclaim by providing evidence of its actual losses, or pre-estimate of costs in relation to the Defendant’s accounts breaches. Since the Claimant has been invited to do so prior to the issue of this counterclaim, and has failed to do so, the Defendant thus contends the Claimant’s charges to be indefensible, unenforceable at law, and unauthorised.
ii. The charges are excessive in that the Claimant is being at minimum fairly and amply compensated otherwise for unauthorised lending by the imposition of unauthorised overdraft interest rates.
iii. The charges are devised and enforced by the Claimant with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Defendant, but instead unduly enrich the Claimant which conducts its regime of charging with a view to profit.
iv. The charges are punitive in nature in that they are used in "in terrorem" to discourage the Defendant from presenting items on the account for payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforceable under common and/or statutory law.
15. Accordingly the Claimant’s default charges are:
a. A penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Claimant and therefore contrary to common law.
b. Unfair and unreasonable under section.4 of the Unfair Contract Terms Act 1977.
c. In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.
16. The Claimant has declined to answer the Defendant’s written requests for information about any actual administrative costs incurred as a result of the said breaches. However, in a letter dated xx August 2007, the Claimant admits that no manual intervention was involved and that all administrative activity in relation to said breaches was automated. It might therefore reasonably be assumed that the administrative costs for such automated responses would be minimal in comparison with the excessive charges imposed by the Claimant.
17. The Defendant contends that the Claimant failed to conduct itself in a manner befitting such a position of great trust. The Claimant had a duty of care to safeguard all money entrusted to it by the Defendant, yet it repeatedly took sums that despite several requests has still failed to lawfully justify. This amounts to a failure of the Claimant's fundamental duties of trustworthiness, transparency, diligence and care.
18. The Defendant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:
The precedent for the law relating to contractual penalties was set in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Co Ltd (1915) AC 79. Additionally, in the case of Murray v Leisureplay (2005) EWCA Civ 963 it was held that a contractual party may only recover damages in respect of its actual loss or liquidated losses.
19. The Defendant draws attention to a report from the Competition Commission entitled "Northern Irish Personal Banking," published on 20/10/2006. The Defendant contends that it is not unreasonable to draw close comparisons between the functions and practices of Northern Irish and mainland UK Banks. This is thus reasonable evidence that the Claimant is aware that the income derived from its default charges are; excessive, do not truly reflect the actual costs incurred in dealing with such breaches, and unduly enrich the Claimant.
20. The Defendant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:
a. The OFTs recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.
b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.
c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the Claimant in a claim for damages arising from account breaches of the said nature.
21. In so far as any charges relating to the period before 2001, the Defendant wishes to invoke section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant deliberately concealed the true cost of administering the contractual breaches committed by the Defendant and thus essential facts relevant to the Defendant 's right of action have been concealed and continue to be concealed by the Claimant. The facts relevant to the Defendant’s right of action under s.32 (1)(b) are that the Claimant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges. Thus the Claimant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.
Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where;
b). "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".
The Defendant could not reasonably have discovered the Claimant’s deliberate concealment of the facts before the report of the OFT was published on 5/4/2006.
22. Alternatively, in so far as any charges relating to the period before 2001, the Defendant seeks to rely upon section.32 (1)(c) of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties.
Section 32(1)(c) of the 1980 Act postpones the commencement of the limitation period where;
c). "the action is for relief from the consequences of a mistake"
The Defendant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.
23. In respect of paragraphs 21 and 22, section 32 of the Statute of Limitations act (1980) stipulates that:
"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".
24. Accordingly, the Defendant Counterclaims:
a) In relation to Business Current A/c xxxxxxx, the return of £xxxx taken by the Claimant in charges and £xxxx of debit interest applied by the Claimant on the charges between the period xx/xx/1991 and xx/xx/2007, as detailed in the attached schedule of charges and interest
b) In relation to Personal Current A/c xxxxxxx, the return of £xxxx taken by the Claimant in charges and £xxx of debit interest applied by the Claimant on the charges between the period xx/xx/1994 and 29/10/2004, as detailed in the attached schedule of charges and interest
c) In relation to Business Current A/c xxxxxxx, Statutory interest as prescribed by s.69 of the County Courts Act 1984 at the rate of 8% a year, from 5/4/1991 to 2/1/2008, of £xxxx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £xx, as detailed in the attached schedule of charges and interest, or at such rate and for such periods as the court deems just.
d) In relation to Personal Current A/c xxxxxxx, Statutory interest as prescribed by s.69 of the County Courts Act 1984 at the rate of 8% a year, from xx/xx/1994 to 2/1/2008, of £xxxx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £xx, as detailed in the attached schedule of charges and interest, or at such rate and for such periods as the court deems just.
e) The removal of any default entry/entries from the register.
f) All court fees and expenses.
In summary, the Defendant Counterclaims:
£xx,xxx Charges and Interest paid on charges
£x,xxx Statutory Interest at 8% (and at a daily rate of £xx)
£xx,xxx Total
I believe that the contents of these particulars of claim are true.
Signed:
Let me know what you think - it's all printed out now and I'm away from home....but if there is something that definitely needs changing I will have to find a way...
Very best,
Gandolfi
Re: Gandolfi v NatWest 
