wehavetheright v Natwest **WON**

**wehavetheright** · 3rd February 2007 22:39

Hi guys,
this is my first posting of my court claim issued against Natwest. So far it's been smooth(ish) going despite the pathetic attempts at Cobblers to delay the process. After having filed my claim - Natwest came to me offering £3,000 odd, (basically the full amount of the claim, less interest icon

). However my claim is around £4,200 and I of course have duly rejected this offer and sent the usual letter etc.

At the same time Green & Co which is their in house solicitors based in Kendal Court, Telford have been trying to recover the amount of my overdrawn account - which of course is comprised solely of the amount of charges I am reclaiming (basically my account is overdrawn by £4,200 which is exactly what I am claiming back in unlawful charges. It's quite obvious of course what they are trying to do. I have written back to them saying of course you are quite aware this account is in dispute icon

and I have issued a county court icon

claim for these charges, and that in fact I don't owe Natwest anything, rather they owe me £4,200! I am enjoying all this it is quite hilarious.

However, since I've sent this letter off, I received a letter from Moorcroft their debt collectors icon

saying I had 7 days to pay the full amount or they would start litigation proceedings. Oh hilarious. I have written back to them informing them that this account is already in dispute and until it is resolved they are not able to proceed with any legal action. I have further pointed out to them that this matter is already before the courts, and that Natwest are the Defendants!! I am not in any way intimidated by these people they are pathetic.

Now, since my letter to Natwest rejecting their "kind" offer, I have received in the post a service of the Defendant's Defence from Cobblers.

So far there has been no mention of CPR Pt 18, and I have had a good look at the thread regarding this. I am aware of the stalling tactics employed by Cobblers, but I wanted to post the full Defence here so that everyone might have a look - I'm trying to deciphere the legal diaorrhea and to see also if anyone else has received this particular Defence. I didn't file my claim MCOL rather as an N1 so perhaps that's why I haven't recieved a CPR request, or maybe that's on it's way!!

Anyway - here it is in all it's ridiculous entirety -

1. This Defence is filed and served without prejudice icon

to the Defendant'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 Claim is not properly particularised then the Defendant will apply to strike out the claim and/or for summary judgement 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 particularise the claim.

3. No admissions are made as to what charges have been debited to the Claimant's bank account.

4. In relation to the allegation that the contractural provisions pursuant to which the charges have been applied are unenforceable by virtue of the Unfaire Contract Terms Act 1977 ("UTCS 1997") and/or the Unfair Contract Terms in Consumer Regulations 1999 ("the Regulations") and/or the commonlaw, the Claimant is required to identify:

4.1 a the sections of the unfair contract terms act 1977 b the regulations of the unfair contract terms in consumer regulations and c the principles of comon law relied upon by the Claimant inalleging tha tthe contractural provision(s) referred to are unenforaceable; and

4.2 the contactural provision(s) that the Claimant allege are invalid by reference to the UCTA 1977 and/or the Regulations.

Until such time as these sections/regulations/provisons are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 4 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractural information.

5. In relation to the case of the Claimant that the charges are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982 ("SGSA") the Defendant pleads as follows:

5.1 The Claimant is required to please 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 service under the contract.

5.2 Further, the Claimant is required to plead and prove a) that the bank charges which have been debited are unreasonable; b) all facts and matters relied upon by the Claimant in support of this case and c) what charges would have been reasonable. (!!!)

5.3 In the circumstances no grounds are disclosed for a claim that the Defendant has acted in breach of SGSA section 15.

5.4 In the circumstances (save as appears below) the Defendant is unablel 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 5.1-5.3 above are addressed.

5.5 It 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 service would 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 dealings between the Claimant and the Defendant.

6. 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.

-----------------

Well I haven't digested the full extent of the defence but it seems to be saying that - I haven't properly particularised the claim in the POC - which is absolute rubbish and is a known Cobblers tactic, that I must state exactly what acts or law I am relying on - which of course they are fully aware of it's in the POC and they state it themselves, the most amusing defence is the bit where they seem to be saying in 5.2 that it is me that is required to prove that the charges are unreasonable!!!! IT is of course up to them to prove that the charges are reasonable - and in fact I must ask them to disclose exactly what charges they actually do incurr...

Anyway if anyone could shed any further light on this it would be most appreciated. It's interesting that Cobblers have sent this to me direct - I would expect the Court would send this to me in due course. I consider it an intimidatory tactic by them to send it to me first. Basically any correspondence they send to me I do not acknowledge or respond to - I will only respond and deal with the Court - it is them that have the power not the Defendant's Solicitors!!!

Has anyone else received this particular Defence?

Will let you know what happens in the next step!!

Thanks all and POWER TO THE PEOPLE!!!!

Similar Threads:

**chuck2001** · 3rd February 2007 23:18

Hi, this is a prety standard defence. Mine was very similar and yes when they sent me a copy the court were very suprised as they said it should have gone via them.

So in due course you will recieve another copy from the court with the allocation questionaire. Upon recieving defence from cobbetts I just sent an acknowlegement letter to say that I had recieved it.

All the best you are approaching the home straight.

Chuck

**natwesttookmymoney** · 3rd February 2007 23:54

Hi, wehavetheright (Do you have a shorter name you go by? Like 'we' for instance?

)

It is a pretty standard defence: I received one exactly like it, even though my POCs extended to three pages and went into excruciating detail.

Did you file your claim via MCOL or by N1 to your local court? If the former, then they have a point because the MCOL form doesn't have enough room for full and proper particulars.

Westy

**Movingon** · 4th February 2007 01:21

If you like, submit a response to the defence on your allocation questionnaire. Remind them that without their exact costs you cannot state what charge would be reasonable and in the absence of that information you claim the entire sum. You will of course be willing to accept a reduced settlement if they submit their detailed costs which they incurred directly as a result of each of your breaches; you are willing to pay for exactly the sums lost and no more. Re: point 5, they should again show their costs incurred in providing their services, and detail the exact nature of the service provided, such that you can submit a detailed response to their request for what would be a reasonable charge for this service.

RE: POC icon

, if you particularised properly as per the guidance on this site then you're right there is nothing further to particularise; however as monkey says above if you used MCOL you may need to submit more detail.

They have asked for the exact provisions in the Acts you quote which support your case; I don't know these off by heart but reading the Acts can often throw up stuff which supports you. Other than that, there are PLENTY of people here who DO know them.

Another thing you can do - look on the HM Courts Service website for Civil Procedure icon

Rules, Part 16.5. It details EXACTLY what MUST appear in the Defence. See if they missed anything out, and if they did, ask respectfully that the court strike out their defence on the basis of CPR Pt 16.5
because <things> are missing. Obviously replace <things> with the things that are missing.

**natwesttookmymoney** · 4th February 2007 02:20

"however as monkey says above if you used MCOL you may need to submit more detail."

Monkey??

Who he?

Westy

**wehavetheright** · 4th February 2007 12:52

Thanks everyone for your replies. I filed the POC icon

as part of an N1 and of course they have the full schedule of charges. I will await the allocation questionnaire icon

and respond accordingly!! Anyone know the exact provisions of the Act we are relying on? I will research it further on the site, but if anyone has anything to add here would be much appreciated!

Maybe I should go by the shorter name of "Righty??" or something!!!

Thanks again everyone, always supportive and helpful!!

**natwesttookmymoney** · 4th February 2007 14:32

Would this help? It has the relevant acts, sections thereof and the appropriate bits of NatWest terms and conditions icon

.

PARTICULARS OF CLAIM

1. The Claimant has an account, number xxxxxxx, sort code 54-41-19, ("the Account") with the Defendant which was opened on or around DATE.

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged 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 (“the Schedule”) applied is attached to these Particulars of Claim.

4. The Claimant contends that:

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

b) The contractual provision that permits the Defendant to levy icon

such charges is unenforceable by virtue of
i) 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 and Case Law relating to liquidated damages and penalties in contracts.

c) 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.

5. The Defendant has produced standard terms and conditions icon

for the Account, known as Personal Banking terms and conditions icon

, (“the Personal Terms”). Copies of the Personal Terms are believed to be in the possession of 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:

In Section 1b:

“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.”

In Section 1a:

“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.

In Section 1b:

“Operations on the Account
You must always ensure that the cleared balance (plus, where applicable, any unused agreed overdraft icon

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 4 b) 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 4a) of this Particulars of Claim and are therefore unreasonable and/or unenforceable and/or in terrorem in respect of each and every occasion that they have been debited to the Claimant’s account.

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.

g) the Claimant further avers that the ‘sole discretion’ referred to involves no actual discretion or intervention by the Defendant the Defendant’s staff but is an automated process, conducted by computers or other electronic equipment purchased in whole or in part for the purpose and is used in this manner in the management of all the Defendant’s personal and/or business banking accounts.

6. Accordingly the Claimant claims:

a) the return of the amounts debited to the Claimant’s account in respect of charges in the sum of £xxxxx (xxxx xxxxxx xxxxxx Pounds Sterling) and any interest charged thereon, detailed in the attached Schedule and amounting to £xxxx (xxxxx xxxxxxxx xxxxxx Pounds and xxxxx Pence) as at [date of claim] and accumulating at 17.95 per centum per annum (the Defendant’s current advertised ‘authorised overdraft rate’), calculated daily;

b) Court costs;

c) administrative costs and other costs incurred in the course of researching, preparing, presenting and pursuing the claim;

d) 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.

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

Full name: YOUR NAME

SIGNED………………………………………………… ……………………………………(Claim ant)

Westy

**wehavetheright** · 4th February 2007 14:48

Wow what a ledg you are Westy! Thanks for this...

**Destinyofsouls** · 4th February 2007 15:38

Can we not include a letter with this asking for the judge to strike out the defence as in the Lincoln( I think) case? for ' abusing the court system'
I understand that most banks don't even reply to any letters at all, so would it not be best to let the judge now that you have tried to settle out of court but the defendants have not replied until now. Not only is this unprofessional but also contravenes the OFT dispute guidelines.

**natwesttookmymoney** · 4th February 2007 15:42

Originally Posted by Destinyofsouls

Can we not include a letter with this asking for the judge to strike out the defence as in the Lincoln( I think) case? for ' abusing the court system'
I understand that most banks don't even reply to any letters at all, so would it not be best to let the judge now that you have tried to settle out of court but the defendants have not replied until now. Not only is this unprofessional but also contravenes the OFT dispute guidelines.

You can always ask but you're in the judge's hands.

I've asked twice fot eh bank's defence to be struck out because, quite simply, they haven't submitted one. Instead, I've got a court hearing date on 15 August, with full disclosure by early March. which may sort it out - we'll see.

I would love it, love it if we could get the banks booted into touch for their clear and manifest abuse of process and the system.

Westy

**Destinyofsouls** · 4th February 2007 15:47

Westy,
Great POC icon

you posted above! I assume this could be used for all banks, substituting their own t & c's?

**natwesttookmymoney** · 4th February 2007 20:57

Hi, Destinyofsouls

I see no reason why not. Indeed, many other banks make things easier by actually numbering their T&Cs!

It's not all my own work. I what collated from POCs on the site, plus what Cobbetts - Natwest icon

's solicitors - were asking for to gum the works up, various people's responses, a few bits and bobs, some analysis of the banks' computerisations - and a little dash of my own humour! After all, all work and no opportunity for a laugh makes for a very dull life.

And I have had some fun with Cobbetts' responses. Just my luck to have a judge that wants to see more.

Harumph!

Anyway, anyone who wants to use the stuff, on a non-commercial and personal basis, is free to do so.

Westy

**Destinyofsouls** · 5th February 2007 12:03

Thanks Westy,
If this POC icon

was sent originally instead of the template, would this not stop Cobblers sneding their stupid 'embarrassed POC ' rubbish in, as it states quite clearly the statutes and laws etc..

**Movingon** · 5th February 2007 12:31

No it wouldn't - they don't even read them I don't think; they just automatically reply with the same sh!t, over and over...

**Destinyofsouls** · 7th February 2007 17:39

As a matter of interest, if you read through it all you will see me progress from cacking myself to the smooth, suave and sophisticated CAGer you see before you now!

Excellent Westy.

**wehavetheright** · 3rd April 2007 11:43

OK, so my thread appears to have been hijacked by other threads?! That's okay, but I will now give an update on my case. Have received the Order from the judge after having sent the AQ.

He has ordered:

1. Allocate claim to small claims track....

2. The Claimant do by XXX date clairfy the claim by filing in court and serving on the Defendant the following information;

a) copies of any statement or other document relied upon as showing that each and every charge has been made.

b) a statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise.

c) copies of any decided cases and other legal materials to be relied upon.

and if the Claimant fails to comply with this order the Claim will stand struck out without further order.

3. Subject to the Claimant complying with paragraph 2 the Defendant do by XXXX date clairfy the Defence by filing in court and serving on the Defendant the following information;

a) pursuant to what contractural provision each charge identified in paragraph 2 was made.

b) whether such charge is accepted to be a penalty and if not why not.

c) if such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a beach of contract between the parties) all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

d) if such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions the facts and matters relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial to show that the charge was fair and reasonable.

e) the statements of any witnesses whose evidence is to be relied upon at the hearing.

f) copies of any decided cases and other legal materials to be relied upon.

and if the Defendant fails to comply with this order the Defence will stand struck out without further order and judgement be entered for the Claimant for the sum claimed.

4. Any party affected by this order may apply to have it set aside icon

, varied or stayed provided that any such application is made to the Court in writing nomore than seven days after the date on which this order was served on that party.

5. The court is of the view that this matter ought to be settled by sensible negotiation or mediation and will take into account the failure of either party to follow such a course when dealing with the question of costs.

So there you have it. It seems Natwest icon

are scre&&£**d - so long as I do my part of course! I understand 2a - bank statements, but what about 2b and 2c - not sure if this is the court bundle stuff or what. Any advice greatfully appreciated as I have to get this stuff to court before the Easter break!

I can smell victory in the air already... getting closer and closer now!

Thanks in advance to all those who offer guidance and words of wisdom... your help is all greatfully appreciated!!!

**Karnevil** · 3rd April 2007 12:12

cleaned up your thread

Help to comply with directions - http://www.consumeractiongroup.co.uk...ionnaires.html
posts 2/3/4

**wehavetheright** · 3rd April 2007 12:15

thanks Karnevil!

Actually, just having had a quick look at that thread (it's been a while!) - I've realised that the Judge has accepted my Draft order for directions - as this is what I included in my aq icon

! So it is working! Shall send back what is mentioned in the posts --- cheers!

**ukaviator** · 3rd April 2007 14:37

Where is the case being heard?.. i have seen very simular order from Leicester county court icon

.

**wehavetheright** · 3rd April 2007 14:45

Willesden county court icon

, london!

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