Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
THis is Woolwich's defence - same as yours? what was outcome at court?
1. The Particulars of claim do not provide details. The Particulars of Claim are summary and do not provide details of the account held with the Defendant and / or particulars of the precise charges alleged to be unlawful. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course
2. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of her account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft. The Claimant accepted the same when the account was opened.
3. The standard terms and conditions included (in particular but without limitation) the following terms and conditions (which are summarised):
a. The Defendant’s right to charge administrative costs if any cheque, standing order or direct debit cannot be paid because of lack of cleared funds in the account — £30 per item (previously £27.50).
b. The Defendant’s right to charge administrative costs if the Defendant was compelled to pay any items which caused the account to be overdrawn - £30 per item (previously £27.50).
c. The Defendant’s right to charge unauthorised overdraft fees - £3 per day.
d. The Defendant’s entitlement to refuse any transaction where there were insufficient cleared funds in the account and to debit from the Claimant’s account any charges, interest or other money which became payable by the Claimant to the Defendant in relation to the account.
e. The Defendant’s entitlement, if the Claimant went overdrawn without an overdraft limit or exceeded her overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.
f. The Defendant’s entitlement, if a cheque or other item paid to the account was returned unpaid, to debit the account with the amount of that item together with any interest paid by the Defendant on it.
4. The Defendant’s standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the Claimant exceeds her authorised overdraft limit).
5. If and to the extent it is the Claimant’s case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant’s account constitutes a liquidated damages clause, the same is denied.
6. For the reasons set out above and in the premises, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999.
7. Therefore, it is denied that the charges were unlawfully debited from the account.
8. If and to the extent the Claimant incurred charges on her account, this was caused by the Claimant having gone into overdraft without having agreed with the Defendant to increase the overdraft facility and / or her failure to make payments to bring the balance of the account back into credit or back within the authorised overdraft limit.
9. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same.
10. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by the Claimant to have been applied to the account prior to 20 March 2001 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the limitation act 1980.
11. In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, the Defendant has nonetheless suffered loss and damage as a consequence of the Claimant’s breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.
THis is Woolwich's defence - same as yours? what was outcome at court?
. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions
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