Thread: *** Heathgravet Vs Natwest *** WON **

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Originally Posted by heathgravet

My claim is for 2 personal accounts and 1 business (partnership account). Total incl interest just over £4,000. I do have a further £600 of charges after I submitted my claim which needs to be addressed.

I assumed that I could include the business account and have sent the prelim, lba as per standard templates.

I used paper docs to issue the claim to court.

Cobbetts defended and issued cpr 18 request for more details of POC.

I sent standard response saying no, indimidatory etc.

Both sides have submitted aq (29 sep) and Cobbets have stated in the other info section "case management directions cannot be proposed until the claimant serves a reply to the request for further information which was due on 22 september 2006. In light of this, the defendant may amend its defence or apply to strike out"

They have also sent me a letter stating that "it is our clients contention that your particulars of claim do not properly particularise your claim. For example, our client cannot properly defend a claim where you have not given specific legally recognisable arguments why the charges you claim are disproportionate and unreasonable".

So basically they want amended POC but the issue has arisen about the mix of personal and business accounts.

I was hoping to use the post from rbrears detailing a new POC but that is just for personal accounts so was also hoping for similar for business accounts so I can include that detail too. Some might say that I must remove the business account but logic tells me that Cobbetts are after a revised POC so if I word it right surely the personal and business can be heard together under different points of law.

Your knowledge and judgement here would be fantastic as I have drawn a blank elsewhere.

What are the risks in my strategy? What can Cobbetts argue legally in court? Must I remove the business account? What are the common law elements and statute areas on the business account front?

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Originally Posted by heathgravet

POC...

1. The claimant has 3 accounts ("the Accounts") with the defendant which were opened around 1978, 1993 and 2002.

2. During the period in which the Accounts have been operating, the Defendantdebited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charges interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant

3. A list of the charges applied is attached to these particulars of claim

4. The Claimant contends that:

a) The charges debited to the Accounts are punitive in nature; are not a genuine pre-estimate of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any of the breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead undul enrich the Defendant which exercises the contractual term in respect of such damages with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5, Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £3,559.00 and any interest charged thereon £158.22 (estimate);

b) Court costs (if applicable);

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just @8% £380.38

I believe that the contents of these particulars of claim are true.

My response to the cpr part 18 request was:

I acknowledge receipt of your letter dated 8 September 2006, reference as above.

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.


Obviously since then we have submitted aq's and Cobbetts are still asking for revised POC's.

I feel that, as they have asked, it is a perfect opportunity to run both types of account together and give them all the specific POC per account. The only thing I would have got wrong would be the prelim and lba as they never mentioned Statute for the business account.

Was a schedule of charges for each account sent with the initial claim ?

part 18 - did you send anything with the letter or just the letter on its own ?

Hi Karne

I sent a schedule of charges and obviously the account numbers were on the schedules

I only sent the letter to Cobbetts and nothing else.

Heath

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Originally Posted by heathgravet

obbetts have offered up £2,100 today - usual garb about goodwill, confidentiality etc.

Tying that to my situation, if Cobbetts had spotted a flaw in my case then surely they would be pressing on towards the hearing rather than offering anything up at this stage. I'm probably just one of many and they're using standard procedure for all. But let's not get complacent, I'd rather be prepared for court and issues with my claim!!

Hi Karne

Thanks for sorting the thread out for me and for the posts to help me forward. I've only just looked at it all and need to work on other things tonight so will look properly tomorrow. I'll post a response for you to comment on then.

It appears best to respond to the latest letter detailing all the acts and sections for both personal and business accounts. One thing that concerns me is you have advised Windchest to drop his business claim element which he is doing. What are the specific reasons for this and shouldn't I be doing this? I know I would rather push on, but if it holds lots of risk then... Is it because Cobbetts appear to be following procedure and have not twigged a problem?

I'll respond to their offer by looking at the templates section for refusal.

What should I do about the further charges? Do you think I should amend the claim or leave it and claim again if my managers don't cough up?

Cheers

Heath

Hi Karne

Here is my proposed letter. I feel it is adequate to cover personal and business account charges although it is not specific. I felt that if I made it specific i could make a mistake and I feel in court I could explain it more fully and the court may have a little sympathy with an individual bringing a case against a large corporate. I have also included a CPR part 18 request to put the wind up them.

Dear Sir/Madam

Re: Your ref XXXXXXXXXXXXXXXX

I refer to your letter dated 30 September 2006.

Whilst I believe that I have given ample detail for a defence solicitor to handle the case and the court has not requested me to provide further details, I will now give a more detailed response to your “Request” dated 8 September 2006.

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.


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 contract. Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd set down four guidelines:

1) The name of the clause in the contract is not conclusive. A court will look beyond the clause's title and at its substance. Is the clause a reasonable pre-estimate of the likely loss following a breach? Or does it instead constitute undue pressure on one party to perform its side of the contract?
2) The essence of a penalty is a payment of money that intimidates the offending party. This is compared with the essence of liquidated damages being a genuine pre-estimate of damage.
3) The question of whether a predetermined sum is or is not a penalty is a question of construction: in construing the clause a court will consider all the facts surrounding the negotiations at the time the contract was entered into, not at the time of the breach.
4) In construing the clause, the following tests are suggested:

• a clause will be a penalty if the predetermined sum is extravagant and unconscionable in comparison with the greatest loss which could conceivably be proved to have followed from the breach;
• a clause will be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is greater than that which ought to have been paid;
• a clause will be presumed a penalty when a lump sum is said to be payable by way of compensation for a number of breaches, some of which may occasion serious damage and others not so serious damage; and
• a clause will not necessarily be a penalty where a precise pre-estimation of the predetermined sum is impossible.

I trust that this has adequately given specific legally recognisable arguments why the charges I claim are disproportionate and unreasonable.

A copy of this letter will be filed at the Court.

Given your request for further information, which I have now complied with, I have a request of my own.

THE REQUEST

This request is served pursuant to CPR Part 18

You are asked to provide a response to this request in accordance with CPR Part 18 by 21 October 2006

• In relation to each and every breach by the Claimant which resulted in a charge being levied 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 schedules attached to 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.

Dated 7 October 2006

Yours faithfully


Your comments would be greatly appreciated.

Heath

Response to further info sent as above.

Case transferred to Southend county court.

Case stayed until 23 October for judge in "boxwork".

Is anyone else stayed? What is likely to happen now - I want my money back now not later!!

Any advice welcome on this one!

Heath

thats not bad news, just means the judge has your file in his list and probably a fair few others on the same issue which he'll sit down an go through in 'boxwork' on the 23rd October. So I would expect a week or so after you'll hear whats happening.

http://www.consumeractiongroup.co.uk...ork#post296025

got the same order yesterday

Originally Posted by hmcs liverpool annual report explains boxwork a bit
In Liverpool DJs and deputy DJs are allocated a daily amount of boxwork (including provisional assessment
and special procedure divorces). These are normally attended to during the day. Any especially urgent
matters are identified by a yellow cover sheet and are brought up by a member of staff and are normally
dealt with by the DJ there and then. Birkenhead, which has more DJs than the remaining ‘satellite’ courts,
manages to complete boxwork on a daily basis without arrears.
In the other courts there is provision for distinguishing the urgent work. The DJs have to fit in the boxwork
during the working day which can, not infrequently, cause problems, particularly when a DJ is sitting alone.
In Wigan & Leigh some concern was expressed by the DJs that the Deputy DJs do not always do their fair
share of boxwork. This situation would ease if a new fulltime DJ were to be appointed.


Quote:
Originally Posted by a day in the life of a judge
An average day starts well before the morning list is due to begin. This is for two reasons. Not only do I have the day’s case papers to read but also have to deal with ‘paper orders’ known as ‘boxwork’. These are orders made in the absence of parties such as directions for the conduct of a case, dealing with enforcement of judgments, considering whether to allow petitions for divorce or judicial separation to go ahead to the pronouncement of decrees and determining applications for adjournments of hearings.

Hi All

Just returned from Devon to find a lovely cheque for the full claim. Well chuffed with that especially as I had some doubts due to the business accounts and personal accounts being on the same claim.

Many thanks to all those that helped me.

One question however...

After I lodged my claim, the bank hit me with about another £600 of charges. The letter from Cobbetts states that the goodwill payment is in "Full and final settlement of your claim against the client". By accepting this, will it stop me making a further claim against them for the rest?

Cheers

Heath

CONGRATULATIONS

No it wont stop you claiming for the rest, in your acceptance letter you could always try asking them to add it on to save you both the hassle of a second claim.

I wouldnt sign their letter just write on of your own accepting in in settlement of the specific claim number for the avoidance of doubt.