Thread: elppa v NatWest ***WON***

Hi Apple, I think you got the standard Higley respose number 235

The one he sent me (my son really) went as follows:

Para 1: Thank you for your letter ...... Please accept my apologies for any unintended inconvenience or upset.

Para 2: I regret ..... but having reviewd your account ....... no instance where charges have been applied when they were not properly due. They have been associated .... covering funds ..... presented for payment. Accordingly .... charges ..... should stand.

No para 3 like you because they haven't made an offer. Nor similar paras 4 and 5 because I hadn't mentioned OFT.

Para 3: disappointing to note ..... legal action ...... served on our Registered Office ......

Para 4: I suspect ..... unlikely to be the answer .... thank you .... time and trouble to contact us.

Does this sound familiar? I think it seems the same so don't worry about the one you got. Just carry on and go for the court. Don't waste your time with a higher management level, that will just let them know that you are worried and a bit too scared to start court proceedings.

Remember that the Nat West letter has been very carefully crafted to psychologically unsettle the reader and to make me/you/us think that Mr Higley is quietly confident he is in the right. But we know different, don't we? If he was so in the right, why do they cave in every time and pay the amount first asked?

Don't let him scare you. I see from the post above he's not scaring Emma either.

Originally Posted by goforit

If you have a printer you should just send the normal N1 Claim form in. If you want I can give you a hand PM me.

Why do you advise that way of doing it, as MCOL is perfectly satisfactory? It is also better to keep advice on the public forum instead of in PMs so that other people can also learn from it, and if any bad advice is offered by someone can be put it right. Also the person offering advice could put themselves at risk of being sued if the outcome is not what the OP expected or hoped for.

Elppa, I suggest that you claim in the way that you feel most comfortable with. If you need advise as you do your claim you will have nearly 50,000 other members, as well as mods and site helpers to help you.

I am going to change your thread title because I think you are doing fine and not messed up. If you don't like the change just let me know what you would like.

Good luck.

It's either possible or it's not. Text is certainly limited with online claims, but this does not stop you from sending in a list of charges separately (2 copies to the court, one of which is then sent on the bank).

If the OP needs help with particulars, we can do that - although it seems the claim has now been issued - is that correct? - so problem over.

If the claim has now been issued, await your confirmation papers from the court, and as soon as you have them, send in copies of the spreadsheet clearly identified as part of claim reference XXXXXXXX with a short covering letter stating their purpose.

The reason moneyclaimonline only provides such a small space for the particulars is because it was designed for simple cases. I think our claims (I have made a dozen) are more detailed than MCOL envisaged. It may be more appropriate to use the paper form N1 and issue at your local court. Then you can really give Cobbetts a detailed claim and steal their thunder. I found this elsewhere on the forums but havent used it yet, but I will next time soon (tomorrow, I think aginst Halifax with relevant amendments). Its not as convenient to issue the paper way, but as most claims are defended at first, they waste a few days being transferrd from Northampton to your local court , so this way might actually be a day or so faster. Oh, use larger font so the claim takes up more pages. If you think this is long, try to imagine how much Cobbetts will be charging Nat West just to read it at £3 per minute, forget about answering it!!!!

1. The Claimant has the following account with the Defendant:

a) Account no. xxxxxxx sort code xxxxxxx (“the Account”);

b) During the last 6 years the Defendant automatically debited charges to the Account in the sum of £xxxxxxx

Full details of each and every charge applied to the accounts are already in the possession of the Defendant, from whom the Claimant obtained such information prior to this claim. However details of all charges, the amounts, dates debited and a description of each is attached to this Particulars of Claim.

3. a) The charges are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed alleged actual loss to the Defendant; and instead unduly enrich the Defendant which applies charges with a view to profit.
b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of i) the The Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e) and ii); the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and iii) the common law relating to liquidated damages and penalties in contracts.

4, a) The Claimant is unable to specifically plead the term of his contract with the Defendant upon which the Defendant relies in levying charges since the Claimant has never been provided with the Defendant’s Terms and Conditions for personal banking. However the Claimant is able to note from the Defendant’s website that it has produced standard terms and conditions for the Account, known as Personal Banking Terms and Conditions, (“the Personal Terms”). Copies of the Personal Terms have been supplied to the Defendant and will be referred to by the Claimant at the trial of his claim.

The Personal Terms contain provisions which are, as far as the Claimant is able to identify, the contractual terms upon which the Defendant relies in levying charges to the accounts. The Personal Terms do not contain numbered paragraphs that can be easily referred to and the Claimant therefore sets out the relevant terms below:

From the Personal Terms:
“Service charges

Service charges for operating the account are charged as detailed in the promotional leaflet insert relating to the account and are subject to annual review. If any changes are made, details of the revised charges will be sent to you at least one month before the implementation date for the changes.

Additional services and charges

We are entitled to charge for additional services provided to you, whether these relate directly to the account or not. The current charges for the most common additional services are detailed in a separate leaflet ‘A guide to Personal Current Account Fees’ available from any of our branches; details of services not included are also available from any branch. These additional charges, which are normally paid for at the time the service is provided, are subject to annual review. If any changes are made, a revised price list of the most common services will be sent to you at least 30 days prior to the date of their implementation. “

The Personal Terms contains the following provision relating to operations on the account.

“Operations on the Account
You must always ensure that the cleared balance (plus, where applicable, any unused agreed overdraft facility) on your account at 3.30pm on the working weekday before the day:
– cheques you have issued are presented for payment
– standing orders and direct debits are due to be paid
– you withdraw money from a cash machine
– you carry out a Switch/Maestro or Solo transaction
– you request us to make payments by any electronic means or by telephone
– any other transactions are due to take place, including the application of interest and charges
is sufficient to cover payment of all these transactions.

If a sufficient cleared balance (plus, where applicable, any unused arranged overdraft facility) to cover payment is not available on your account by 3.30pm on the working weekday before the day on which these transactions are due to take place, payment of some or all of the transactions may be refused.
However, if at any time such transactions would result, without prior arrangement, in the account being overdrawn or the arranged overdraft limit being exceeded, we may exercise our sole discretion and without contacting you, allow an overdraft to be created or allow the borrowing limit to be exceeded. In these circumstances, the new or excess overdraft is an unarranged overdraft.”

b) The Claimant contends that the term “Additional Services and Charges” is not a core term of the contract and therefore falls within the remit of The Unfair Terms In Consumer Contracts Regulations 1999 and that the term is subject to the Unfair Contract Terms Act and the common law as set out in paragraph 3b) of this Particulars of Claim.

c) The Claimant avers that the circumstances giving rise to the levying of charges by the Defendant are all breaches of the provision relating to Operations on the Account and which sets out a mandatory requirement in respect of the maintaining by the Claimant of cleared balances on the accounts. As such failure to adhere to that contractual requirement is a breach of the agreement between the Claimant and the Defendant.

d) The Claimant further contends that the Defendant is only entitled to be compensated by the amount it would be able to secure in a claim at common law in the event that the Claimant was individually sued for breach of contract by the Defendant. Accordingly the charges that result from the breaches are by their nature as set out in paragraph 3a) of this Particulars of Claim and are therefore unreasonable and/or unenforceable and/or in terrorum in respect of each and every occasion that they have been debited to all of the Claimant’s accounts.

e) The Claimant avers that the Provisions relating to “Service Charges and “Additional Services and Charges” provide no details whatever of the extent or type of services that might be provided and that it was not clear from the contract to the Claimant at the time the contract was made that the Defendant would be providing anything other than a free banking service. Further, the leaflets setting out charges referred to therein were not made available to the Claimant at the time the contract with the Defendant was made and are therefore not incorporated into the contract. To the extent that they may be found to be so incorporated and therefore form part of the contract between the Claimant and the Defendant the Claimant avers that the items referred to in such leaflets do not constitute service charges but punitive penalty or default charges for acts of default. Further the Claimant contends that these show that the Defendant has structured the Claimant’s accounts in order to present events of default spuriously as additional services for which a charge may be made and that any purported fees for “services” or “additional services” are no more than disguised penalties. The Claimant avers that no additional services are supplied by the Defendant in relation to acts of default or at all.

f) The Claimant further avers that the sole discretion referred to in the provision relating to Operations on the Account does not refer to or make clear that the Defendant is providing an additional banking service to the Claimant in exercising that discretion, nor that a charge for such alleged “service” will be made. The Claimant also contends that the discretion referred to is limited to allowing payments to be made where insufficient funds are or were in the Account and therefore relates only to the Defendant’s “paid referral fee” and that this discretion has no connection with fees applied immediately for refusing payments or for unarranged borrowing/excess borrowing fees applied later to the Account for being overdrawn or exceeding any overdraft limit in the preceding month, card misuse fees or other fees.

5. a) To the extent that it is found that the Defendant’s charges are for the provision of banking services the Claimant contends that the price thereof is unreasonable pursuant to section 15 of the Supply of Goods and Services Act 1982.

6. Accordingly the Claimant claims:
a) the return of the amounts debited to all the Claimant’s accounts in the sum of £xxxxxxx;
b) Court costs;
c) Interest at 8% per annum pursuant to section 69 of the County Courts Act 1984 on the charges debited to the Account in the sum of £xxxxxxx and continuing at the daily rate of £xxp until judgment or sooner payment
I believe the facts stated in this Amended Particulars of Claim are true

Signed…………………………………….
Claimant
Dated this xxth day of xxx 2006

Then when Cobbetts have earnt ten times more in fees just reading your claim, they have a huge workload to defend it. When the also try on the part 18 request, you send them your version:


Please find my request pursuant to CPR part 18 you are asked to respond by xxxxxx 2006. (the same date they ask you for your answers)

• In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence please provide full details (with all relevant supporting documentation) of:
  
  
  a) any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim;
  
  b) how charges are applied to the account (whether automatically or by some other means) and when;
  
  c) the Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant;
  
  d) the justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.
  
  
  2. Where the Defendant avers that the charges are applied in return for the provision of a banking service to the Claimant:
  
  a) Please identify each and every such service referred to in the defendant’s terms and conditions and identify the charges, by reference to those terms and conditions, that the Claimant is required to pay for each service identified.
  
  b) Please confirm what steps are taken by the defendant in providing the alleged services referred to in the defence. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the Claimant.
  
  c) Please confirm whether charges are applied automatically.

Please note however, I consider that upon allocation this case will be referred to the Small Claims Track, accordingly I consider your CPR Part 18 request to be intimidatory as Part 18 would not apply. Having been in touch with other Nat West claimants I am aware of your recently devised tactics and attempts to cause claimants in person to give up. I shall not be responding to your requests designed to intimidate. I shall of course respond to the order of the Court leaving the matters to be settled by the court.

Yours faithfully