In the Northampton
county court
Claim 6QZ8XXXX
Between:
My friend
-and-
National Westminster Bank PLC
( <<<<The claim was actually against RBS tho?)
DEFENCE
1. This Defence is filed and served without prejudice to the Defendat’s case that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Claimant to recover the bank charges (and
interest thereon) referred to in the Particulars of Claim or any other sum(s). In the event that the Claimant does not properly particularise his claim then the Defendant will apply to strike out the claim and/ or for summary judgement in respect of the same.
2. without prejudice to the non-admission set out in the foregoing paragraph, if and to the extent that the Claimant proves the allegation that the Defendant debited charges to his bank account, insofar as such charges were debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect of the same, whether damages, restitution or otherwise, is barred by thew operation of the Limitations Act 1980 and/or the doctrine of laches and the Defendant will apply to strike out this aspect of the claim and/or for summary judgement.
3. The Claimant states: “The Claimant is claiming £1000.00 taken by the defendant in way of charges for the last
6 years”.
3.1 If the Claimant is to bring such a claim against the Defendant then he must identify the account(s) (giving details of the name and number of the account) to which the charges and fees have been applied.
4. No admissions are made as to what charges have been debited to the Claimant’s bank account.
5. The Claimant is put to strict proof of each and every charge the subject of the claim and must identify in respect of each charge (a) the date of the same was debited (b) the amount of the same and (c) the description applied to each charge.
6. In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:
6.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in nature of a penalty he will need to plead and prove (a) the clause(s) pursuant 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 charge related to. As Presently pleaded 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.
6.2 Until such time as the Claimant pleads the matters referred to in paragraph 5.1 above the Defendant in 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.
7. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Contract Terms Act 1977 (“UCTA 1977) and/or the Unfair Contract Terms in Consumer Regulations 1999 (“the regulation”) and/or section 15 Supply of Goods and Services Act 1982 (SGSA)
7.1 The Claimant is required to identify the contractual provision(s) that he alleges are invalid by reference to UCTA 1977 and/or Regulations. Until such time as these provisions are identified the Defendant cannot (save as appears below) please to the allegation referred to in paragraph 7 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.
7.2 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to section 4 UCTA 1977 then it is the case of the Defendant that the section is not applicable as any contractual provisions relation to charges do not relate to the Defendants liability for negligence or breach of contract.
7.3 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to the Regulations of the Defendant pleads as follows:
7.3.1Schedule 2 to the Regulations is an Indicative and non-exhaustive list of terms which may be regarded as unfair” (emphasis supplied).
7.3.2If the Claimant is to rely upon paragraph 1(e) of Schedule 2 to the Regulations then he is required to plead and prove in relation to each bank charge that he seeks to recover the matters referred to in paragraph 7.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high.
7.3.3In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be – see paragraph 7.1 above) falls fould of the Regulations and in particular oaragraph 1(e) of Schedule 2.
7.3.4The 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 pleas further to this allegation once (and if) the particulars referred to in paragraph 7.3.2 above are provided.
7.3.5Without prejudice to paragraph 7.3.4 it is the case of the Defendant that the Regulation have no application because the charges amount to payment 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 judged by reference to principles of fairness under the Regulations.
7.4 In relation to the case of the Claimant that the charges are unreasonable within the meaning of SGSA section 15 the defendant pleads as follows:
7.4.1The Claimant is required to plead and prove the necessary factors (referred to in section 15 SGSA) concerning the contract between the Claimant and the defendant which mean that pursuant to SGSA section 15 there is an implied term that the Claimant pay a reasonable charge for the service under the contract.
7.4.2Further, the Claimant is required to pleas and prove (a) that the bank charges which have been debited are unreasonable; (b) all facts and matter relied upon by the Claimant in support of this case and (c) what charges would have been reasonable)
7.4.3In circumstances no grounds are disclosed for a claim that the Defendant has acted in breach of SGSA section 15
7.4.4In the circumstances (save as appears below) the Defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 7.4.1-7.4.3 above are addressed.
7.4.5It is the case of the Defendant that the contract between the Claimant and the Defendant does not fall within SGSA section 15 because (a) the consideration for the servicewould be determined by the contract between the Claimant and the Defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealing between the Claimant and the Defendant.
8. To assist the Claimant with the proper particualrisation of his claim(s) the Defendant serves this Defence a request made pursuant to CPR Part 1. If the Claimant fails to provide the particulars requested in the time stipulated and/or the defects with the claim(s) (referred to in paragraph 1 above) remain the then Defendant will apply to the Court for (among other things) an order striking out the claim.
9. Pending the proper particularistion of the claim(s) the Defendant is unable to plead to the Claimant’s claim(s) beyond at this stage denying that the Defendant is liable to the Claimant as alleged in the Claim or at all. The Defendant reserves its right to amend this Defence to plead further to the Claimants claim(s) once or if the Claimant properly particularises the same.
10. Save as hereinbefore appears the Defendant joins issue with the Claimant on his claim(s) and denies that it is liable to the Claimant as alleged or at all
Statement of Truth BLAH BLAH BLAH…
LC BURGOYNE
4 Jauary 2007
Our Client: National Westminster Bank PLC
>>(HOWEVER THE CLAIM IS AGAINST RBS??)
We are instructed on behalf of the above named
We enclose by way of service
1 Defence
2 Request for Further information
We confirm we have filed a copy of the same with the Court. Would you acknowledge receipt
REQUEST FOR FURTHER INFO & CLARIFICATION
NOTE IMPORTANT
1. This request is served pursuant to CPR Part 18 alternatively with regard to CPR Rule 27.2 (3)
2. The reason(s) why this request has been served are set out in the Defence which has been served by the Defendant.
3. You are asked to provide a response to this request in accordance with CPR Part 18 by 18 January 2007.
4. If you are unable to provide a response by this date then you are asked to contact the defendants solicitors promptly and tell them when you will be able to provide a response.
5. In the event that you do not provide an adequate response to this request by this date (or such other date as may be agreed with the Defendants solicitors) then the Defendant can apply to the Court for an order requiring you to provide the information requested or (in view of the deficiencies in the way that the claim is pleaded) an order striking out the claim(s).
THE REQUEST
1. In your claim you state:”The Claimant is claiming £1000.00 taken by the Defendant in way of charges for the last 6 years”.
2. Please provide the following particulars in support of your claim:
2.1 To what account(s) (giving details of the account name, number and sort code) were the charges applied.
2.2 In relation to each charge please identify (a) the date when the charge was charged; (b) the amount of the same; and (c) the reason(s) given for the charging of the same.
2.3 In relation to each charge please clarify the following: (a) is it the case of the Claimant the same should not have been charged? (b) If yes; please explain why the Claimant contends that the same should not have been charged? (c) If no; is it the case of the Claimant that the same should not have been charged in this amount? (d) If yes; please explain why the Claimant contends that the same should not have been charged in this amount and identify the sum the Claimant contends should have been charged. (e) If no; please state the Claimant’s case.
3. In your claim you state that “[the Defendant’s] charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law”.
4. Please provide the following particulars in support of your claim:
4.1 Please specify the clause(s) pursuant to which the charges were applied;
4.2 Please specify whether the charges applied were due to a breach of contract by the Claimant;
4.3 Please identify in each case the particular breach of contract (by reference to appropriate terms(s) of the contract) that the charge related to.
5. In your claim you state that the charges are: “invalid under the Unfair (Contract) Terms Act 1977 s.4 and Unfair Terms iun Consumer Contracts Regulations 1999 Para,8 and Sc.2(1)(e)” and “unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15”
6. Please specify all of the facts relied on by the Claimant in support of the contentions in paragraph 5 above, and in particular please identify the contractual provisions(s) that the Claimant alleges are invalid by reference to UCTA/the Regulations.
DATED 4 January 20007
Help! 12 Page Letter Recvd From Cobbetts
and dont know what to write back:-?
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Originally Posted by Sparkie1723
