Partial offer rejected - subsequently received scary letter from Court. PLEASE HELP!!

[charlie_spencer]

Dear all,

 

Please please please can someone help me - I'm seriously panicking and don't know what to do next.

 

I've been a regular user of this site for months and have thoroughly researched my actions at every step of the way. I'm now in the predicament where none of the threads seem to address my particular situation.

 

I appreciate that many claimants get anxious and feel that their claim is the unlucky one where the bank play hard-ball and refuse to pay out - I really do feel out of my depth though, so anyone's help would be eternally appreciated!

 

Here's a brief synopsis of my claim:

 

Request for complete list of transactions and charges relating to my account - 29th June 2006

 

Initial request for repayment of charges - 1st August 2006

 

Letter before action - 13th August 2006

 

MoneyClaim action commenced - 29th August 2006

 

Defence submitted by NatWests solicitors (Cobbetts) - late September 2006

 

AQ returned - 13th October 2006

 

Partial offer (£750 - full claim is for £1166.25) received from Cobbetts - 24th October 2006

 

Partial offer rejected - 29th October 2006

 

 

That was 4 weeks ago and I had been hoping to receive a full and final settlement offer between then and now.

 

Then on the 9th November 2006 I received the following letter from Stratford Upon Avon County Court:

 

 

Before DISTRICT JUDGE JONES sitting at Stratford Upon Avon County Court...

 

IT IS ORDERED THAT

 

By 4pm on 4/12/2006 the claimant is to clarify the case by filing and serving the following details in writing:

 

a) The provisions of the Unfair Contract Terms in Consumer Contracts Regulations 1999 to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

b) The provisions of the Unfair Contract Terms Act 1977 to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

c) The provisions of the Common Law to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

In default the claim is struck out

 

Dated 03 November 2006.

 

 

So now what do I do !?

 

I'm confident I've accurately followed every piece of advice offered on this site... but this letter from the County Court frightens me greatly.

 

To make matters worse, I was unexpectedly made redundant a few weeks ago so really wish I'd have accepted the partial offer. There's no use crying over split milk though. I rejected NatWest's/Cobbetts offer, so I guess what matters now is how I proceed in order to claim the full amount I'm seeking.

 

Please can anyone advise me what I should do next?

 

The points raised in the letter are way above my level of knowledge. I'd closely followed every template in all of the correspondence I'd sent to NatWest and Cobbetts... so this letter has really rattled me.

 

I was hoping to receive a full and final offer but now I'm concerned I may receive nothing! Indeed, I've paid out the MoneyClaim court fees so now I'm out of pocket.

 

Perhaps this letter is standard stalling tactics, but the 4th December is fast approaching and I'm running out of time to respond.

 

PLEASE HELP!!! A VERY WORRIED UNFAIR BANK CHARGES CLAIMANT

[natwesttookmymoney]

Hi

 

I understand you're worried but you can take it a bit easier. The points are pretty standard, the sort of thing that Cobbetts often ask for earlier in the proceedings. Did you get a CPR 18 request from them? These are the the sort of things they request.

 

Anyway, without giving this as definitive advice in any way (I don't give advice...I'm a bigmouth, not a lawyer - see my signature) I offer the following for consideration, by you and other, more experienced hands.

 

a. The Claimant refers to the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e)

 

b. The Claimant refers to the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2.

 

c. The Claimant refers to the common law relating to liquidated damages and penalties in contracts. It is an established principle that a party acting in a fiduciary role or with fiduciary responsibility has to place the interests of the party to which it has such responsibility above its own interests. A fiduciary must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents. I it is the Claimant's contention that the Defendant has established and operated its regime of charges as a profit-making scheme, rather than as a means of reclaiming its genuine liquidated losses. The Claimant has asked the Defendant to supply details of its genuine costs and losses incurred in the management of its account and the Defendant has, thus far, failed so to do.

The principle has been established and upheld in the following cases (among others):

 

In the case of Lord Elphinstone v. Monkland Iron and Coal Co [1886], Lord Watson stated that: "There is a presumption (but no more) that a charge is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

 

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. [1904] 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty.

In the case of Commissioner of Public Works v Hills [1906] AC 368, Lord Dunedin formulated the test for Penalty clauses as follows: "The general principle to be deduced …is …that the criterion of whether a sum -- be it called penalty or damages -- is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a 'genuine pre-estimate’ of the creditor's probable or possible interest in the due performance of the principal obligation”

In Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. [1915] A.C. 79 Lord Dunedin said: "1. Though the parties to a contract who use the words "penalty" or "liquidated damages" may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages. This doctrine may be said to be found passim in nearly every case.

2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage (Clydebank Engineering and Shipbuilding Co. v. Don Jose Ramos Yzquierdo y Castaneda (1905) A.C. 6).

 

4. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive. Such are :

(a) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach. (Illustration given by Lord Halsbury in Clydebank case.)

(b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid (Kemble v. Farren, 6 Bing. 141). This, though one of the most ancient instances, is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A promised to pay B a sum of money on a certain day and did not do so, B could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable - a subject which much exercised Jessel M.R. in Wallis v. Smith, 21 Ch.D. 243 - is probably more interesting than material.

© There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage" (Lord Watson in Lord Elphinstone v. Monkland Iron and Coal Co., 11 App.Cas. 332).

In Philips v The Attorney General of Hong Kong [1993] 61 BLR 41 the Privy Council upheld the decision of the Hong Kong Court of Appeal that the liquidated and ascertained damages clause in a construction contract was valid and enforceable. Lord Woolf, delivering the judgment of the judicial committee of the Privy Council, cited with approval a passage from Lord Dunedin's speech in Dunlop and emphasised that the test was to be made against the reasonable possible range of losses and that it was not enough to show that in some circumstances the possible loss may be less than the Liquidated Damages rate:

"Except possibly in the case of situations where one of the parties to the contract is able to dominate the other as to the choice of the terms of a contract, it will normally be insufficient to establish that a provision is objectionably penal to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss. Even in such situations so long as the sum payable in the event of non-compliance with the contract is not extravagant, having regard to the range of losses that it could reasonably be anticipated it would have to cover at the time that the contract was made, it can still be a genuine pre-estimate of the loss that would be suffered and so a perfectly valid liquidated damage provision. The use in argument of unlikely illustrations should therefore not assist a party to defeat a provision as to liquidated damages. As the Law Commission stated in Working Paper No 61 (page 30):

‘The fact that in certain circumstances a party to a contract might derive a benefit in excess of his loss does not ... outweigh the very definite practical advantages of the present rule upholding a genuine estimate, formed at the time the contract was made of the probable loss’.

A difficulty can arise where the range of possible loss is broad. Where it should be obvious that, in relation to part of the range, the liquidated damages are totally out of proportion to certain of the losses which may be incurred, the failure to make special provision for those losses may result in the 'liquidated damages' not being recoverable.

In the case of Murray v. Leisureplay (2004), Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages. Even though the decision was reverted on appeal, the appeal itself drew on and further reinforced the principles of penalty charges.

In the case of First Commercial Bank and Others v. the Owners of "Mandarin Container", "Kingdom Container" and "Liberty Container" (2004), the Hong Kong Admiralty court considered whether an uplift in the interest rate payable upon default under a ship mortgage agreement was unenforceable as a penalty provision or whether it was valid and enforceable as liquidated damages. In finding that the uplift was valid, the court examined the principles underlying the exercise of the court’s penalty jurisdiction and noted the modern tendency to respect the contract agreed between the parties, unless the liquidated damages provision could be characterised as unconscionable, oppressive or extravagant.

In the case of Alfred McAlpine Capital Projects Limited v Tilebox Limited [2005], Mr Justice Jackson reconciled two apparent strands to the authorities. One strand was the test that there should be no great disproportion between the damages and the Liquidated Damages rate. The other strand was that the Liquidated Damages should be reasonable.

The important point was that the Liquidated Damages rate need not be right to be reasonable, but would be unreasonable if disproportionate to the likely level of loss.

“There seem to be two strands in the authorities. In some cases judges consider whether there is an unconscionable or extravagant disproportion between the damages stipulated in the contract and the true amount of damages likely to be suffered. In other cases the courts consider whether the level of damages stipulated was reasonable. …

I accept, that these two strands can be reconciled. In my view, a pre-estimate of damages does not have to be right in order to be reasonable. There must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre-estimate is unreasonable.

Although many authorities use or echo the phrase "genuine pre-estimate", the test does not turn upon the genuineness or honesty of the party or parties who made the pre-estimate. The test is primarily an objective one, even though the court has some regard to the thought processes of the parties at the time of contracting.”

----..-----

 

OK, there are others and there needs to be more detail in points (a) and (b). Could you post up a copy of your original particulars of claim so that we can see what you said, what you may have missed out and thus get some idea of why the Court is asking for this?

Also, did you reply specifically to Cobbett's CPR18 request, if you got one?

 

Any Mods or experienced operators out there got anything to help with this?

 

Best

 

Westy

[charlie_spencer]

Blimey - thanks for all that! So you reckon I should reply to the court's letter rather than sit it out and see if Cobbetts send me the full and final offer before the 4th December??

 

As requested here's my particulars of claim. Inccidentally, this went to both the court and also Cobbetts.

 

 

 

Dear Sir or Madam,

 

Claim No: ********

 

In response to the defence received from Cobbetts on the 4th October, I enclose my Particulars of Claim addressing their Request for Further Information.

 

I would like to make it very clear to the court that the bank has had full details of the claim on at least two previous occasions and that I am now supplying them with a further one.

 

I would also like to make it clear to the court that Cobbetts request is a standard letter which is being distributed to all claimants regardless of the way that their claim is constructed and that it is designed only to frustrate and to intimidate.

 

 

PARTICULARS OF CLAIM

 

1. The Claimant has an account ******** with the Defendant which was opened on or around March 1996.

 

2. During the period in which the Account has been operating the Defendant 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 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 a genuine pre-estimate of cost 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 such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £874.85 and any interest charged thereon;

 

b) Court costs;

 

c) The claimant claims interest under s.69 of the County Courts Act 1984 at the rate of 8% per annum from 18/11/02 of £171.40 and interest at the same rate up to the date of the judgment or earlier at a daily rate of 20p.

 

Amount of Charges: £874.85

Amount of s.69 Interest: £171.40

Amount Claimed: £1,046.25

Court Fee: £120.00

Total Amount: £1,166.25

 

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

 

Yours sincerely...

 

 

 

And yes I did get a CPR 18 request from Cobbetts. My reply to them and the court was as follows:

 

 

 

Dear Sir or Madam,

 

Claim No: ********

 

I Acknowledge the receipt of the defence posted on behalf of National Westminster Bank plc.

 

I am not prepared at this stage to answer the CPR Part 18 Request. I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative

 

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. However, for clarity, I confirm the charges I am claiming were applied to the following account:

 

Account number: ********

Sort Code: ********

 

Please also find enclosed a breakdown of all charges I am claiming.

 

Yours sincerely...

 

 

 

Hope that helps. And as Westy suggested, if there are any Mods or experienced operators out there that can help - that really would be incredibly appreciated.

 

Thanks.

[sharongrant1805]

Hi,

 

I have just been reading your thread, and its gettig quite scary for you. I would just reply to the court with the info westy gave you above, and you should be home free. Its been an eye opener for me, as i am still at the stage of waiting for snatchwest to respond to my money claim.

 

will be watching you thread!!!!!

 

Good Luck

 

Sharon

[charlie_spencer]

Thanks Sharon. And tell me about it getting scary!!!

 

I'm sure I've followed all of the rules and guidance offered throughout this site so really wasn't expecting all of this.

 

I don't understand. I replied to Cobbetts CPR 18 request straight away (sent this to the court and Cobbetts). And besides, as the claim is for less than £1,500 - it was my understanding that the claim would be allocated to the small claims track, thus the CPR 18 request was not applicable.

 

Can anyone one else or any moderators please help?

[Lager_Lou]

Yep - good luck, we're all behind you

[ataction]

Just had this to my watched threads. I rejected offer today.

[charlie_spencer]

Thanks Lou, I think I'm going to need all the good luck I can get!

[natwesttookmymoney]

Hi, again, Charlie

 

I'm working on some more info for (a) and (b) but I have to get some paying work done so it'll be a bit later before I get back to you. Have a look at the basic court bundle (Basic Court Bundle), which has all the case law and statutes you can shake a stick at. You'll notice that I lifted the case law out of it.

I've got another couple of thingies that I've collected over the past few weeks and I'll save you the time by bringing them together.

But yes, there's absolutely no question that you MUST reply to the Court. If you don't then your case will almost certainly be struck out.

It ain't about luck, it's about preparation - and having all the friends available here on good ol' CAG!

[charlie_spencer]

Thanks very much 'natwesttookmymoney' - I appreciate your help.

 

So why do you think I've been sent that letter from the court? I'm pretty certain my Particulars of Claim were spot on - at least I followed the template and advice given here.

 

I thought that after you rejected a partial claim, they usally came back to you with a full and final settlement. I certainly wasn't expecting that legal heavy letter!

 

Is this a new tactic from Cobbetts, or perhaps the court or the judge assigned to my claim are tightening up on these claims?

 

If any moderators or experts on this would like to contribute... that'd be great! Thanks.

[natwesttookmymoney]

Hi, Charlie

 

I'm getting there with some ideas, which will follow shortly.

 

As it says in the FAQs and step-by-step stuff, you MUST be prepared to go to Court. While it's unlikely the Bank will go that far, if they smell blood in the water, they'll be after you. If there's ANY chance they can get the case struck out, they will go for it and you will have to argue a case. So be prepared, and maybe signal to others in your area that you may need a 'buddy' or possibly a 'Mackenzie Friend'.

 

The Court is merely ordering you to provide further information. They've asked for it and you have to supply it: simple as that. Nothing scary, if you're ready for it. They want more info, probably to be clear that you do ahve a case and aren't just a chancer, and here we are helping you to provide it!

 

What more could you wish??

 

Westy

[natwesttookmymoney]

OK, Charlie, here's the next instalment. It's to be inserted into the text previously supplied, right at the top. The first paragraph will show where it should go. BUT REMEMBER - I'm not a lawyer, I will accept no liability for what I'm saying, this is just suggestions, not advice.

 

a. The Claimant refers to the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e)

 

The Defendant has produced standard terms and conditions for the Account, known as Personal Banking Terms and Conditions, (“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.“

 

 

i) The Personal Terms apply to all personal bank accounts operated by the Defendant. They are thus standard and were not individually negotiated and do cause a significant imbalance in the rights and obligations of the parties, to the detriment of the consumer, i.e., the Claimant, who has had no opportunity to individually negotiate or discuss the charges levied by the Defendant for breaches of the Personal terms. The Claimant has asked for details of the costs incurred by the Defendant, whether by manual intervention or other means of exercising its discretion, but the Defendant has failed to provide anything other than standard responses, claiming that its charges are ‘transparent, fair and reasonable’.

 

ii) The Claimant contends that the basis for the level of charges is commercial competition, not the actual costs it incurs. A recent report into banking in Northern Ireland (where the Defendant also operates) supports this contention. The Claimant will provide a copy of the relevant parts of this Report if required.

 

iii) The Claimant contends that the terms, as they relate to the matter at issue, are also in breach of the Unfair Terms in Consumer Contracts Regulations 1999, specifically (but not limited to) schedule 2. 1. ©, which states “Terms which have the object or effect of-

 

© making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;”

 

and schedule 2. 1. (e), which states

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;”.

 

iv) 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.

 

iv) 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.

 

v) 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 terrorum in respect of each and every occasion that they have been debited to the Claimant’s account.

 

vi) 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.

 

vii) 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.

 

viii) 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.

 

 

More to follow.

[natwesttookmymoney]

Charlie-

 

This one's a bit more difficult and we need some more help.

 

ANY MODS AVAILABLE TO HELP??

 

anyway, here's a suggestion for the next bit:

 

b. The Claimant refers to the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2.

 

Section 3 states:

 

“3 Liability arising in contract

(1) This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.

(2) As against that party, the other cannot by reference to any contract term—

(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or

(b) claim to be entitled—

(i) to render a contractual performance substantially different from that which was reasonably expected of him, or

(ii) in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.”

 

The Claimant contends that the ‘services’ that the Bank (the Defendant) claims to provide in its Personal Terms in respect of the Claimant’s breaches thereof are, in fact, no performance at all, in breach of 3(2)(ii) above.

 

 

Anything to add/take away/disagree with, anyone??

 

Westy

[Allyxia]

Blooming Laura - Westy you have excelled yourself here mate - well done.

 

Ok Ive had a breif look at this - And wont be able to repsond properly until tomorow (as the courts are closed this should not be a problem).

 

Charlie - westy has covered everythingyou need to know and need to repsond to the court.

 

It us up to you how you want to send it however rather than send it as one big long letter you could repsond more simply like this:-

 

a) The provisions of the Unfair Contract Terms in Consumer Contracts Regulations 1999 to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

Please refer to enclosure titled 1

 

b) The provisions of the Unfair Contract Terms Act 1977 to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

 

Please refer to enclosure titled 2

 

c) The provisions of the Common Law to which he refers and the facts upon which he relies to demonstrate that the charges are unenforceable thereunder.

 

Please refer to enclosure titled 3

 

Then insert the completed part from the court bundle (as westy linked above).

 

That way your letter is correctly documented and indexed as opposed to one long reference letter. Though westy is correct in all the information he has enclosed!!

 

I wouldnt enter at this any further information than that. AS for returning it to court, Send it recorded delivery on 1st.

 

I feel that this is court dealing rather than a new game being played by cobblers. It is also nothing new to what I had to take regarding my CCJ removal the other day (its just worded differently to mine thats all!!).

 

Even though my hearing was a matter between me and the court the bank still settled quickly due to the risk of disclosure of their information. It is must thoughts that Cobblers would have been sent something along the lines of please provide the court with the relevant information which you are going to use to defend (in other words they will be asked to provide a breakdown of their charges). This is something they wont do and I suspect you will have your cheque next week (in full dont worry about holding out here you did the right thing).

 

I hope this puts your mind at rest!!!

[livelylad]

Charlie i dont need to answer mate you have good replies here well done Westy and Allyxia

[charlie_spencer]

Westy, you're a legend. Thank you so much for all your help.

 

It's going to take me a while to go through all that and to compile a suitable letter. It's pretty complicated!

 

As far as I see it, I now have all the information for parts a, b and c that the court are looking for elaboration on. Hopefully a Moderator or someone who's been in a similar situation can help with regards to the point b text you've kindly provided.

 

Lastly, do you think that's all this letter from the court is - the court seeking confirmation that I do in fact have a case and aren't just a chancer?

 

I sincerely hope so, and that the court sees sense and decides that my claim against NatWest is valid and fair. This has been going on for 6 months now!!!

 

Any experts out there able to help or add to this?? Please...!

[charlie_spencer]

Allyxia - great idea about the formatting. Thank you! And livelylad - thanks also for looking over everything.

 

So does everyone think the responce to point b. (below) is adequate??

 

 

b. The Claimant refers to the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2.

 

Section 3 states:

 

“3 Liability arising in contract

(1) This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.

(2) As against that party, the other cannot by reference to any contract term—

(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or

(b) claim to be entitled—

(i) to render a contractual performance substantially different from that which was reasonably expected of him, or

(ii) in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.”

 

The Claimant contends that the ‘services’ that the Bank (the Defendant) claims to provide in its Personal Terms in respect of the Claimant’s breaches thereof are, in fact, no performance at all, in breach of 3(2)(ii) above.

 

 

Thanks,

 

Charlie

[natwesttookmymoney]

Hi, Charlie

 

I agree with Ally - including it in a bundle is probably better.

 

Just one other thought - you did submit your spreadsheet with details of the charges to the Court? Please excuse me if it's a bit bleedin obvious but you never know.

 

Anyway, you're welcome - it's helped me with preparing my own claim for anything they may throw against me, anyway!

[charlie_spencer]

That's ok, and yes I did submit a copy of my charges spreadsheet to the Court.

 

Thanks again for all your help. Charlie

[debijay]

When i compiled my spreadsheet, i just put 'charges' against each sum and not actually what the bank referred to it as! Just last week i decided to shred all the statements and now Cobbetts are asking for a description against each sum! should i ask the bank to re-send my statements? Do they have to send them again if i ask them? This is getting too deep for me with all the information they've asked for. I need help badly. I have copied and pasted all the help and advice above in this thread and am going to go through it and see what i can use.

 

 

Debijay

[Allyxia]

Debijay I would start you own trhead Hon that way you will getmore answer to any question you ask. But in a nutshell yes I would get hold on my statement again and itemise them properly in the spreadsheet.

 

Charlie I will be online around 11am tomday and I can go through indexing the court bundle with you properly - trust nme here it is going to be better than sending a 6 or so odd page letter!!!

 

Allyx

[charlie_spencer]

Online at 11am tomorrow - that's very kind of you. Will you be in line in teh chat room here or on MSN?? Only I use a Mac and I suspect the CAG chat room will be a little tempremental.

 

I would appreciate a little more info on putting that bundle together though!

 

Thanks, Charlie

[Allyxia]

Hi Charlie - Ive just gota finish sorting my hair out - I have MSN if you want. Can you give me until 12:15? Will PM you will my detaisl in the mean time!!

[Its WAR]

The court is probably fed up with the banks backing down and are trying a different tack. Maybe this judge has a relationship with a bank manager and is testing you. One thing though....make sure you send a copy of your reply to Cobbetts, they need to see you are prepared to go all the way. and they will back down when they read it.

[charlie_spencer]

That's a good point - thanks. I will also send a copy of my reply to Cobbetts, and you never know. Hopefully they'll back down at the very last moment.