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please see below a slightly amended version of the letter before action - amended free by a barrister at law (my lovely boyfriend)
I am writing to ask you to refund to me the charges which you have levied from my account over the last 6 years.
I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations. If you say that they are not then please demonstrate this by letting me have a full Breakdown of the costs to which you have been put to as a result of my breaches in order to reassure me that your penalties really do reflect your costs.
It has been confirmed that your particularly high level of penalties are considered to be unfair per se, by the OFT who reported on the 5th April 2006, and are therefore presumed to be unlawful in the absence of specific proof to the contrary.
Your responsibilities
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.
I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.
Your concealment of the true nature of your charges has prevented me from asserting my right until now.
Amount owed
I calculate that you have taken £xxx in levies and further, due to those levies, have charged me overdraft interest to the sum of £xxx leaving a total owed of £972.42.
Target dates re resolution
I hope that you will enter into a sincere dialogue with me about this matter - I am writing this letter on the assumption that this is preferable than mere standard response letters/leaflets.
I will give you 14 days to reply to me accepting unconditionally my request in principle and letting me know a date by which I will receive payment.
If you do not respond, or you do not respond positively within this time period, I shall send you a letter, before any action, giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.
After that, there will be no further communication from me and I shall issue a claim at the expiration of the second deadline.
I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.
Which, of course, you could reasonably claim.
This means (and if your BF would kindly correct me if I'm wrong) that you would no longer be bound by the statute of limitiations as the reasons behind your claim were deliberatly concealed from you, until such a time as they were brought to your attention by a third party.
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1. They admit you have the account
2. The account is governed by a written contract
3. They admit that they have applied various charges
4. The charges were applied in accordance with the terms of the contract
5. It is denied that any terms of the contract are a disproportionate penalty. The defendant reserves the right to plead further on this issue following receipt of the claimants response to the defenses request for further information.
6. It is denied that the charges applied pursuant to the contract were "unfair" or otherwise unenforceable
7. It is denied that the claimant is entitled to the relief claimed or to any other relief.
8. Save as is expressly admitted above, each allegation contained in the particulars of the claim is denied.
They request further information as follows:
Of:
'The banks charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law"
1. Please identify with precision the contractual terms that the claimant alleges to be a disproportional penalty'.
2. Please specify all of the facts relied on by the claimant in support of this contention.
Thanks for all your help - It would be great to have your BF look at this as Natwest are the only bank who have won a case so far based on the 'service charges' defence.
Natwest are owned by RBS and they have the same litigation department. So far I'm furthest down the RBS road than anyone and when I saw what you posted it looked identical to my response. You may find this post useful: http://www.consumeractiongroup.co.uk...?t=3663&page=3
(scroll down a couple of posts to see the response from them).
This means (and if your BF would kindly correct me if I'm wrong) that YOU WOULD NO LONGER BE BOUND BY THE statute of limitations as the reasons behind your claim were deliberatly concealed from you, until such a time as they were brought to your attention by a third party.
Do you mean by this that it might be possible to claim back more than 6 years' charges? (or am i just being thick?)
If ever you are going to regret something regret doing it don't regret not doing it.
Barclays : £2740 lba on its way Halifax: £1270 first request on its way GM (HFC): £1950 + interest first request on its way Barclaycard me: - awaiting statements Barclaycard him: - awaiting statements Citicard: awaiting statements
Natwest are owned by RBS and they have the same litigation department. So far I'm furthest down the RBS road than anyone and when I saw what you posted it looked identical to my response. You may find this post useful: http://www.consumeractiongroup.co.uk...?t=3663&page=3
(scroll down a couple of posts to see the response from them).
That's good - Another Natwest-related thread to bookmark!
It seems like the defence is exactly the same as the example I quoted - I'm personally waiting for the first RBS/Natwest case to happen where they use this defence to see what happens while I start claiming from other companies.
I haven't been following Natwest as I don't bank with them. Have they settled other peoples claims? If so then that is the argument to be used in response. Why pay up and not defend in court if they they claim to are right and working within the law. If they truely thought they had a legal leg to stand on they would of been in court defending themselves along with the rest of the banks.
Well done Traisi-I was going to point out myself that it looked as if Closey had
missed Dave's point governed by the Limitations Act 1980 which states-
32.--
(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
((b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; ............
The Act basically says that the limitation of 6 years can be ignored if the banks have deliberately concealed the way their charges are compiled. Dave must have been salivating when he read that line in Closey's letter which on reflection, may mean that Closey was already aware of the Act.
I haven't been following Natwest as I don't bank with them. Have they settled other peoples claims? If so then that is the argument to be used in response. Why pay up and not defend in court if they they claim to are right and working within the law. If they truely thought they had a legal leg to stand on they would of been in court defending themselves along with the rest of the banks.
Good point. To clarify without babbling on as I have on other threads -
1) Natwest won one case a while back in court claiming the chrages were fees for a service. Reputedly mainly because solictor was crap though.
2) This seems to be different to other bank's defences although I could be wrong on this one - actually I think most don't ever get to filing a defence.
3) Natwest HAVE refunded amounts but only small - up to around £500. All claims higher than that are awaiting court cases. None have reached that time yet.
4) I hate Natwest and am in severe financial trouble (spot the link here).
5) Due to all above points I cannot afford to lose if my case goes to court.
6) Despite point 5, I estimate that in 6 years I may well have paid over £10,000 in charges and am seriously considering full court claim. This would be a life-changing amount of money for my family, especially considering the estimated £13,000 total claims I could make from 3 credit card companies.
Oh, and I havn't included GE Money, T-Mobile, Sky, etc etc.
I continue to watch all Natwest cases with great interest and give utmost thanks to all those running the forum and generally helping each other out.
If this seems a somewhat strangely laid out and profoundly worded post I have a strange headache and have been reading legal documents now for about 12 hours. At work.
OK, this is what I managed to find out from my BF:
From his recollection (remember this is not his field of law) you are only statute barred after six years. Your six years starts from your date of knowledge. So in other words if I found out about reclaiming bank charges, but then waited with that knowledge for six years before making a claim I would be statute barred.
So in theory this six year period relates to how long we have to make a claim NOT how far back we claim for.
They are also trying to say that they are working within a contract, however there is an act (which apparently is very complicated) called the Unfair Contract Terms Act, which covers you not having a term in a contract which breaks the law. It sounds obvious, but law, of course is not always that straight forward.
My BF advice to me is to wait and see what they come up with and take it from there.
I know there have been some law books purchased....do any of them cover the Unfair Contract Terms Act?
BLOODY HELL!!!!! Of course!!! This is what the sheriff was trying to explain to me!!! Sometimes I'm so stupid. He was practically beating me over the head with it. closey is right, the limitation is from when you become aware of it, not from when it was done unto you. I wonder if we've all been thinking along American lines where the statute of limitations (7 years, I believe) relates to criminal activity (although, not murder, I think), and means that if you can get away with it for 7 years you're scot free.
The only thing I'm not sure about is what the difference is between "you should have known about it", versus "it was kept from me". In other words, is it the case that the 6 year limit applies from when you could reasonably have been expected to know that the charges were unlawful. Or does the 6 year clock start ticking from when you make the bank aware of it. Interestingly, I had a sheriff tell me, in relation to Nationwide actually, that I had 5 years to claim "without prejudicing your case" (his exact words). An interesting comment, because he didn't say "until you can no longer claim".
This is why I love this forum. So many different people contributing great ideas and experiences.
Robertxc v. Abbey- £3300 Settled in full Robertxc v. Clydesdale- £750 Settled in full Nationwide v. Robertxc- £2000 overdraft wiped out, Default removed by order of the sheriff Robertxc v. Style Card- Default removed by order of the sheriff Robertxc v. Abbey (1)- Data Protection Act action. £750 compensation Robertxc v. Abbey (2)- Data Protection Act action. £2000 compensation, default removed
The opinions on this post are those of Robertxc and not necessarily the opinions of the group and do not constitute sound legal advice. You are advised to seek professional legal advice.
Barrister letter
- amended free by a barrister at law (my lovely boyfriend)
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Originally Posted by dave
