Thread: Fat Controller v RBOS

totally different account. i had current account with rbos and a loan with them. claimed back charges from current account, didn't effect my loan with them even though it was in arrears with them at the time.

Probably best to start a new claim once this one has been successful.

I thought I would post the Cobbetts defence to see if it differs from earlier versions. My POC was from the templates library for an N1. Schedules were sent at every stage.



DEFENCE

1. This defence is filed and served without prejudice to the Defendant's case that the POC do not disclose reasonable grounds for bringing a claim against the Defendant to recover the bank charges (and interest thereon) referred to in the POC 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 contractual provisions pursuant to which the charges have been applied are unenforceable by virtue of the Unfair Contract Terms Act 1977 (“UCTA 1977”) and/or the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”) and/or the common law, the Claimant is required to identify:

4.1 (a) the section(s) of the UCTA 1977; (b) the regulations of the UTCCR 1999 (“the Regulations”); and (c) the principles of common law relied upon by the Claimant in alleging that the contractual provision(s) referred to are unenforceable; and

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

Until such time as these sections/regulations/provisions 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 contractual information.


5. In relation to the case of the Claimant that the charges must be reasonable 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 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.

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 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 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. The Claimant’s claim for costs not being sufficiently particularised, the Defendant is unable to plead and reserves the right to plead upon further particulars.

7. 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.
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All comments wellcomed.
If anyone sees any potential problems please let me know.

FC

BUMP

Any advice on this defence?

Any words of wisdom?

Any points I should be wary of?


All comments wellcomed.

FC

Thanks Atlantic, I have downloaded the Australian report and am busy wading through it.

I received my aq (N149) from the court today with a return date of 18 June. I have used the PDF format from the HMCS website and attached seperate sheets for section G - other information and for the draft order for directions.

All relevant info available on :

http://www.consumeractiongroup.co.uk...ionnaires.html

FC

Got my aq through and filed at court on 06 June with the draft order for directions from the library. Cobbetts have until 18 June to file theirs.

Yesterday received offer from Sandy Watt for full amount of charges only. Sent back rejection letter 5 from the templates library adding the full amount of charges + interest + court costs should she wish to settle in full.

I await further developments!

FC

Atlantic

Its not about 'bottle' its about individual circumstances and yours are different to mine. You chose what was right for you and good luck to you.

Received Cobbett's aq yesterday. Nothing of any significance in it. Just the same old " claim not fully particularised, Claimant has no grounds to bring a claim".

We'll see about that mateys!!

FC

Hi All

Recd court date today for early August. I will leave it a few days then contact cobbetts for settlement talks.

Will keep you informed !

FC