Cahoot CC allocation questionnaire questions (originally posted in Abbey Forum)

keytar · 2nd July 2008, 11:30

Hi all,

I've just got Abey's defence for my claim against Cahoot Credit Card charges from the court and now have to fill out an Allocation Questionnaire by Friday. I thought I'd post their defence as it is different to the one I had from them for my bank account.

Can anyone help me with what I should put in the allocation questionnaire (G extra information bit)?

I've already done this for bank charges and wondered if it would be different and whether the draft order would still apply?

They state in 13 that the burden of proof of each charge has to be provided by me, so do I need to provide more evidence than the list of charges I have already submitted?

and in 11 say i need to provide more detail on my wasted costs so I'm assuming I should include my detailed time/activity log?

Is there anything else I should watch out for? they say that the charges aren't penalties, that the Regulations don't apply and that the charges were fair and proportionate to their costs.

I assume it is therefore a case of showing they do apply and asking them to demonstrate the charges were proportional to their costs?

Thanks for reading in advance!

BETWEEN:

Keytar -and- ABBEY NATIONAL PLC T/A CAHOOT
---------
DEFENCE
---------
1 Save as specifically admitted in this Defence, the Defendant denies each and every allegation set out in the particulars of claim.

2 It is admitted that the Claimant had a credit card account with the Defendant, numbered XXXX XXXX XXXX XXXX (¨Account¨)

3 At all times the Account has been subject to the applicable terms and conditions (¨Conditions¨), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he obtained the Account.

Fees applied as a ¨Penalty¨

4 It is denied that the amounts debited to the Account constituted a ¨penalty¨ as is claimed by the Claimant. All fees and charges are imposed by virtue of the Conditions and the particulars of the applicable fees and charges were provided by the claimant.

5 The fees and charges applied to the Account were imposed for specific services provided by the Defendant. For example, the Claimant was at all times aware that he would be charged a fee should he choose not to make the monthly payment. The claimant was entitled to not make a payment in accordance with the Conditions. However, as the Claimant was aware that fees would be payable should they choose not to do so, the Calimant's contention that the said fees are unenforceable and/or are ¨penalty charges¨ is denied.

6 In addition, the fees and charges cannot be said to be penalties as they represent and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's purported breach of the Conditions and are a genuine pre-estimate of the damage/costs suffered by the Defendant.

7 Further, or in the alternative, even if the said fees are not proportionate to the Defendant's expenses incurred (which is denied), the Claimant remains liable to pay suc fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

Unfair Terms in Consumer Contracts Regulations 1999

8 The fees and charges applied to the Account were fair and reasonable and not rendered unlawful by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 (¨Regulations¨). The sums applied by the Defendant constitute the price payable by a consumer for the services provided. On this basis, they are excluded from any consideration of ¨fairness¨ by virtue of Regulation 6 of the Regulations.

9 In the event that the Regulations do apply and teh fees and charges were subject to an assessment, the fees and charges would not automatically be deemed unfair. The whole of teh circumstances whereby the Claimant agreed to take out the Account will need to be taken into consideration.

¨Cost of Time¨

10 In paragraph 19(5) of teh Particulars of Claim the Claimant claims £XXX for ¨wasted costs¨ in relation to preparing this claim.

11 The Defendant contends that paragraph 19(5) of the Particulars of Claim is insufficiently particularies in relation to how the purported losses have been calculated, merely stating that XX hours of time has been expended conducting research and preparation in relation to this claim at a rate of £XX per hour.

12 The Defendant avers that there is simply no legal basis for the Claimant to rely upon to claim such purported lost time as damages. Part 24.14(2) of the Civil Procedure Rules (Small Claims) states that ¨the court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses¨. Accordingly, the Defendant avers that there is no legal basis for such costs as damages.

13. No admissions are made as to the amounts claimed by the Defendant and the Claimant is put to strict proof of the same.

14. For the reasons above, the Defendant denies that the Claimant is entitled to the relief sought or any relief.

The Defendant believes that the facts stated in this Defence are true etc etc etc.

any comments or advice would be much appreciated

keytar · 3rd July 2008, 18:39

I didn't get any replies but I thought I should share what I decided to use in the end:

On the form:
Please find the following attached to this questionnaire:
1) Section G - Other Information
2) Draft Order for Directions
These Attachments were sent to the Defendant on XXXX

As an attachment stapled to the Allocation Questionnaire:

XXXX-v- Abbey National Plc
Claim No:
Date

N149 Allocation Questionnaire

Section G - other information

I should like to re-iterate that this case is in relation to Credit Card Charges and not Bank Charges.

The court should note that the test case initiated by the OFT, Claim No. 2007 Folio 1186, clearly states it is testing the law in relation to current account overdraft charges, and not credit card charges. No credit card issuer has been acted against by the OFT in this test case.

Details of OFT claim – “The OFT has initiated an investigation under Part 8 of the Enterprise Act 2002 into the fairness or otherwise for the purposes of the Unfair Terms in Consumer Contract Regulations 1999 of certain terms contained in each Defendant Bank’s personal current account arrangements providing for charges to be imposed upon customers who seek to make payments for which they do not have available funds.”

If the court is in agreement, it is respectfully suggested that special directions may be given as per the attached draft order.

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.

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

As the law relating to contractual penalties is long established, I believe the outstanding issues to be of fact. Accordingly, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

In the XXXX County Court Claim number: XXXXX
Between
XXXXX
and
Abbey National - Defendant
Draft Order for Directions:
The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:
a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;
b) Copies of any statement or other document relied upon as showing that each and every charge has been made;
c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;
d) Copies of decided cases and other legal materials to be relied upon.
If the Claimant fails to comply with this order, the claim will be struck out without further order.
2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;
a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;
b) Whether such charge is accepted to be a penalty, and if not why not;
c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;
d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.
e) Any witness statements
f) Copies of decided cases and other legal materials to be relied upon.
If the Defendant fails to comply with this order, the Defence will be struck out without further order.

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