steve1cooke v Natwest ****WON****

[steve1cooke]

I am dealing with my brother's account and have come up against a little problem. We have just received a letter from the court stating:

 

"Before District Judge ***** sitting at Southampton Court ...

 

Upon the Courts own motion. The court has made this order of it's own initiative without a hearing. If you object to the order you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

Upon referral of this case to the District Judge.

 

IT IS ORDERED THAT the Claimant do answer the Defendants attached request for further information by 9th February 2007"

 

This is different to what I have been reading over the last couple of weeks. Any help as to my next move would be greatly appreciated.

[steve1cooke]

By the way, the above thread refers to Cobblers CPR 18 standard request.

 

Please help.

[Michael Browne]

A Part 18 request or request for further information from Cobbetts can be ignored, but an order for further information from the court cannot. What does the 'attached request for further information' say?

[steve1cooke]

It is the standard Cobbetts CPR18 request.

 

Should I answer with the letter in the 'sticky' section. I have already supplied Cobblers with spreadsheets etc - at least twice.

[The cobbett slayer]

It depends on how much your claim is for. If it is less than 5K then it is an unusual step for the court to order a response as Part 18 does not normally apply to the small claims track.

[steve1cooke]

The claim is for less than 5K - just. Pleeeeeeze could somebody point me in the right direction. He was sent single page letter from the court stating the above, plus a photocopy of Cobblers standard CPR16 request.

[steve1cooke]

Sorry, I meant CPR18 request

[Michael Browne]

There's an excellent point by point response by DNA here:

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland-bank/32948-cpr-18-requests-costs-5.html#post267852

 

This may not be exactly the same as yours and therefopre may need to be amended/edited, but should cover most points

[steve1cooke]

Has anybody else had this happen. If so, what would be my next step? I sent in the AQ using the new approach but received this order.

 

Please please help me on this one. Can I send an argument to the judge stating how Cobblers are just wasting time and have done this on numerous occasions with many claiments, paying out soon afterwards in EVERY single case? Would I be held up for contempt for disobeying a direct order?

 

Or do I have to comply with the courts wishes? If so, could anyone point me in the direction of where I might find the information?

[steve1cooke]

Thank you Michael, have just seen your post after filing my last. I shall check out that link and post back.

[cooxie]

I think you may have the answers now, this thread may be useful

 

http://www.consumeractiongroup.co.uk/forum/general/15172-reply-stock-defence-18-a.html#post116506

[steve1cooke]

Does anyone have any idea on how I would tackle sections 4 and 5 of the CPR18 order? I am at a loss for this.

 

I have also drafted a CPR18 request of my own, see below. Your thoughts before I send it?

 

IN THE SOUTHAMPTON COUNTY COURT CLAIM NO: ********

 

Between

 

************ (Claimant)

 

And

 

NATIONAL WESTMINSTER BANK PLC (Defendant)

 

 

REQUEST FOR FURTHER INFORMATION

 

 

NOTE: IMPORTANT

 

1. The defence supplied by the Defendant is not specific to this case; indeed it is a template that has been supplied to many Claimants during recent litigations. The Lincoln County Court of its own motion is considering striking the Defence out as an abuse of process on the basis that it has settled all previous claims of this nature, without pursuing to trial.

2. You are asked to provide a response to this request within seven days, which should be adequate time for an organisation of your size.

3. In the event that you do not provide an adequate response to this request by 30 January 2007 then the Claimant shall apply to the court for an order requiring you to provide the information requested or an order to strike out the defence and find for the Claimant.

 

 

The Request

 

1. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its defence please provide full details (with all relevant supporting documentation) of:

 

a) any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim;

 

b) how charges are applied to the account (whether automatically or by some other means) and when;

 

c) the Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant;

 

d) the justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

2. Of paragraph 6.3.5 of the defence in which the Defendant avers that the charges are applied in return for the provision of a banking service to the Claimant:

 

a) Please identify each and every such service referred to in the Defendant’s terms and conditions and identify the charges, by reference to those terms and conditions, that the Claimant is required to pay for each service identified.

 

b) Please confirm what steps are taken by the Defendant in providing the alleged services referred to in the defence. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the Claimant.

 

c) Please confirm whether charges are applied automatically.

 

Dated: 23 January 2007

 

 

 

What does anybody think of this?

[cheekismo]

I also need answers to Cobblers CPR Part 18 parts 4 and 5, someone please help!!

[steve1cooke]

OK. This is the one - a long one at that. I have cobbled (no pun) together a reply to the CPR18 request, which I have included below. Would some of you experienced guys out there have a look and point out all of the faults and ommissions before I send it off? I will send a copy to Cobblers, along with the request for information listed earlier in this post, along with a copy to the court.

 

Here goes....

 

IN THE SOUTHAMPTON COUNTY COURT CLAIM NO: ********

 

Between

 

********* (Claimant)

 

And

 

NATIONAL WESTMINSTER BANK PLC (Defendant)

 

 

 

Response to CPR Part 18 request dated 18 December 2006

 

 

2.1 I refer the Defendant to the attached spreadsheet/document, previously supplied on at least four separate occasions, in which I have listed the following:

(a) the date when each charge was charged;

(b) the amount of the same; and

© the reason given by the Defendant for the charging of the same.

 

 

2.2 The answer to this point is clear. I contest the legality of your client’s charges and need to see a breakdown of your client’s charge structure to ascertain exactly what level of disproportionate charging has taken place. However, this request has been ignored throughout this the process of this claim. This information, which NatWest appears reluctant to offer, is the matter of contention in this case. Were you to offer a full breakdown of the costs incurred to NatWest Bank PLC where there has been a charge, then and only then could we come to a clear understanding whether such a high charge is disproportionate or not. It is my belief that they are disproportionate and as such contrary to common law and consumer regulations. If you could supply us and the courts with this information we would clearly understand exactly how disproportionate or otherwise they are.

 

However, you have consistently been reluctant to share with myself or the courts a breakdown of such costs appertaining to each charge. Therefore, for further clarification, I raise the following points and ask for a more detailed response from you to help us settle this matter.

 

If NatWest Bank PLC are claiming their charges are ‘fair and reasonable‘, I contest this. Moreover, I believe they exceed each transgression and are disproportionate contrary to common law and consumer legislation.

Without the benefit of a detailed breakdown of your costs, I believe the charges should have represented the Defendant’s liquidated losses and not the fixed charges applied by the Defendant according to the terms and conditions in force at the time the charge was made.

 

NatWest claim their charges are ’fair and reasonable’. However, their method of charging its customers is an automated process. As such and being that the process operates many thousands of times each day and millions each year, it is fair to assume that the cost of it is spread over this huge number of transactions and is shared equally between them. Without a clear breakdown of your client‘s costs, one can only assume this cost. As it is automated and spread across a wide range of customers I assess that this cost is most probably less than a few pence per transaction. Until you can clearly offer evidence to the contrary, you have no defence.

 

If NatWest Bank PLC do not contest this issue and are instead claiming that their charges are the price of a contractual service, then I claim that their price exceeds what is reasonable as required by S.15, Supply of Goods and Services Act 1982. In it, S.15 says that where no price is agreed at the time the contract is made, that a reasonable price will be implied. I believe this not to be the case when charging more than a few pence per automated refusal. A bank is a High Street business. Normal mark-ups on the High Street businesses are 100%, so it would not be reasonable for Banks to mark up significantly higher than this without a full and detailed explanation to their customers.

 

It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant. The Claimant reminds the Defendant that it has been put to strict proof in previous correspondence and/or the Particulars of Claim that the amount charged for each charge debited does truly reflect the Defendant’s costs and that they are not making a profit 3from such charges – in the absence of any documentation to support the Defendant’s contention that each charge debited represents the Defendant’s liquidated losses, the Claimant contends that the Defendant has no defence to the claim that each charge is disproportionate and therefore unenforceable in common law, or by the previously claimed Acts, Statutes and Regulations pleaded.

 

 

3. The charges are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed alleged actual loss to the Defendant; and instead unduly enrich the Defendant which applies charges with a view to profit.

The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of i) the 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 relating to liquidated damages and penalties in contracts.

 

 

4.1 – 4.3 The Claimant is unable to specifically plead the term of his contract with the Defendant upon which the Defendant relies in levying charges since the Claimant has never been provided with the Defendant’s Terms and Conditions for personal banking.

The Claimant is aware that the Defendant contends that the charged applied to the Claimant’s account were due to a breach of contract on the part of the Claimant strictly according to the terms and conditions applied to the operation of the Claimant’s account. However, the Claimant has pleaded that the Court make a declaration that the contract between the Claimant and Defendant is invalid in light of the claim that the Defendant’s charges are disproportionate and therefore unenforceable and/or invalid. This decision will be made by a Judge at the final hearing of this matter. It is therefore not for the Claimant to reply as to whether the charges applied were or were not due to a breach of contract by the Claimant.

 

In response to the further question made by the defendant the claimant will not be able to respond to these until the claimant has disclosure and inspection of documents as the claimant will be requiring a copy of his contract with the respondents

 

I hope this response has covered all aspects of your request for further information satisfactorily? For a fair and reasonable hearing I would expect you on behalf of NatWest to offer a detailed summary of how their costs appertain to each charge as listed, or offer a settlement in full for my claim. With this in mind, I also enclose a ‘Request for further information’.

 

 

 

OK - that's it. Does it need tidying up or can it go as shown? Please help me on this one.

 

Many thanks in advance.

[Deller]

This seems pretty good to me Steve, what was the outcome of DNA's reply??

[steve1cooke]

Thanks Deller,

 

Emailed letters (and instructions) off to my brother last night. He will post (recorded delivery) today, so with a bit of luck, it should be over fairly soon. Will keep you updated. If successful, maybe the letters above could be posted as a sticky. I had a hell of a job trying to put everything together from all the threads. Maybe having the basics all in one place will help somebody else.

 

Re DNA's reply? Lost on that one.

 

Regards

 

Steve

[Deller]

You did a good job Steve.

[steve1cooke]

Hello again,

 

Have just spoken with Cobblers, but not LB as she seems to be constantly unavailable, and eventually (after I mentioned that I had sent the same to the Court and that they had received it??) got from them confirmation that they have received the bundle (most of which is above - posts 12 & 14).

 

I then pointed out that there was a request for further information from me and would they be likely to provide a response by the deadline (tomorrow). They said they would have to consult with their clients to find out what the NatWest wanted to do, which would take 2-3 weeks. When pressed, although I was not told this in so many words, I was given the impression that the NW would not respond positively to this request.

 

Now my question. Should I now write to the court and request that their defence is struck out and the case be awarded to me? If so, is there any previous instance of this happening, or a template I can amend, as I don't want to get the Court's back up so that I look like the bad guy?

 

Any help much appreciated, as ever.

 

Steve

[JeniL]

Oh my goodness.... i can't offer you any suggestions I'm afraid steve, but I can't believe that NW are still working so hard (lol) on these requests, yet settling in full, is it me or is this just a great example of how NW waste their millions of revenue???

 

I am waiting for NW to file a defence and fear i have all your problems to come

 

Just wanted to say good luck and dont let them throw you....

[steve1cooke]

Hi JeniL,

 

Thanks for the support. I would just like to get the Court to agree that they have to release information on their charges, or pay what they owe. Put up or shut up type of thing. Once I have confirmation from one of the big boys re my last post, the letter will be on it's way to the Court.

 

Answers anyone ?? ;-)

[JeniL]

hang on in there ...

 

C'mon guys help needed here ....

[steve1cooke]

*** Bump ***

 

I hope you don't mind me bumping, but does anybody have an answer to post #18 in this thread.

 

Help much appreciated.

 

Steve

[natwesttookmymoney]

Hi, Steve

 

Simply, you have to give them reasonable time to reply.

How long is 'reasonable'? Three weeks. Did you specify a time to respond? Did the Court? Don't take too much notice of Cobblers saying 'we're going to take three weeks' - it's not, ultimately, up to them, it's up to the Court. I would be surprised - but not gobsmacked - if they dfailed to comply with the Court's request.

 

When did they receive your reply to the Part 18 request?

 

And do you ahve any more hearings upcoming?

 

Best wishes

 

Westy

[nwhessian]

Im very intrested to see where this case goes, i think i am about a week or so behind you so have all this to come very soon!

Did you send the draft order with your AQ?

Just thinking this may be putting the courts back up a bit being offered advice on their own job?

[natwesttookmymoney]

" Just thinking this may be putting the courts back up a bit being offered advice on their own job?"

 

Fear not - it's perfectly in order to request directions and to supply a draft.

 

Far from putting the Courts' backs up (so far), it seems to be quite welcome: at least three judges (as far as I'm aware) have simply taken the wording in its entirety, simply deleting 'draft'. Another has obviously familiarised him or herself with our approach as there's an order on another thread tat is, word for word, the draft order on the 'Allocation questionnaire - new strategy' thread.

 

So, relax!

 

W