In the blah blah
county court
between
Mr Elmo claiment
-and-
Mint Credit Cards
Defence
1. This defence is filed and served
without prejudice to the defendant's case that the particulars of claim do not disclose resaonable grounds fo bringing a clam against the defendant to recover the bank charges (and
interest thereon) referred to in the particulars of claim or any other sum(s). In the even tthat the claim is not properly particularized then the defendant will apply to strike out the claim and/or for summary judgment in respect of the same.
2. On allocation the defendant invites the court to direct that there be a case management conference in order for the court to consider the making of appropriate orders to give the claimant the opportunity to properly particularize the claim.
3. no admissions are made as to what charges have been debited to the claiaments bank account.
4. in relation to the allegation that the bank charges amount to an unenforceable penalty the defendant pleads as follows:
4.1 in order for the claimant to sustain a claim that the charges debited by the defendant are in the nature of a penalty the claiment will need to prove (a) the clause(s) pirsiant to which the charges were applied ;(b) that the charges were applied due to a breach of contract by the claimant; and (c) identifying in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charges related to. As presently pleased the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the Particulars of Claim have been applied pursuant to an unenforceable penalty clause.
4.2 Until such time as the Claimant pleads the matters referred to in paragraph 4.1 above the Defendant is unable to plead to the claim brought against it and therefore (pending the provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the claimants bank account pursuant to unenforceable penalty clauses.
5. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations").
5.1 The claimant is required to identify the contractual provision(s) that the claimant alleges are invalid by reference to the regulations. Until such time as these provisions are identified the defendant cannot (save as appears below) plead to the allegation referred to in paragraph 5 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual provisions.
5.2 In relation to the cae of the claimant that the contractual provisions are invalid pursuant to the regulations the defendant pleads as follows
5.2.1 Schedule 2 to the Regulations is an indicative and non-exhaustive list of terms which
may be regarded as unfair (emphasis supplied)
5.2.2 if the claimant is to rely upon paragraph 1(e) of Schedule 2 to the Regulations then the claimant is required to pleas and prove in relation to each bank charge that is sought the matters referred ot in paragraph 5.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high
5.2.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (what ever they are alleged to be - see paragraph 5.1 above) falls foul of the Regulations and in particular paragraph 1(e) of Schedule 2.
5.2.4 The defendant is therefore unable (save as appears below) to plead to this allegation beyond denying that any bank charges have been applied pursuant to terms which contravene the Regulations. The Defendant reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 5.2.2 above are provided.
5.2.5
without prejudice to paragraph 5.2.4 it is the case of the Defendant that the Regulations have no application because the charges amount to paying for services provided by the Defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judge by reference to principles of fairness under the regulations.
6. The claimant's claim for costs not being sufficiently particularized, the Defendant is unable to plead and reserves the right to plead upon further particulars
.
7. Save as hereinbefore appears the Defendant joins issue with the Claimant on the claim(s) and denies that it is liable to the Claimant as alleged or at all.
Statement of truth.........
POC for Mint CC
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Originally Posted by hedgey06
