Hi RBS forum

After months of persuading my GF is now going after RBS. Well I should say im going after RBS on her behalf.

S.A.R - (Subject Access Request) printed off and awaiting her signature.

skb

Hi Skbuncks.

Whatever you go for, you will be quids in compared to how you would have been.

Just follow the well-tried and tested methods we suggest and you'll soon have those unlawful penalty charges back.

Good luck.

Regards, Rooster.

Cheers Rooster

If anyone hasnt seen this yet then have a read. PMSL

Customer sends bailiffs in to seize bank's computers | the Daily Mail

skb

If you need any further help persuading her, have a read of the RBS successes.

Good luck!

Having spent a couple of hours last night totting up the numbers we have now come to the grand total of £1695 in charges dating back to March 2000. Applying compound contractual interest at the unauthorised borrowing rate of 29.8% gives a whopping £6718.07 in interest compared to £855 at 8%. Still have to calculate the interest that was applied to each of the charges by RBS, but that is a task for another day.

Since many of the charges are older than six years and the total is so high I think it may be worthwhile splitting the claim into old and new charges.

Doing this the totals become:

Older than six years:

Charges £620

Interest at 29.8% £4050.54

Total £4670.54 :o

Charges less than six years old

Charges £1075

Interest at 29.8% £2667.53

Total £3742.53

Next step is to calculate the interest applied to each charge by RBS, then fire off the Prelim for the charges less than 6 years old.

skb

ps. any thoughs are more than welcome

Prelims sent off on saturday

Last six years charges + 29.8 % CI - £3787

Older charges + 29.8 % CI - £4915

Now eagerly awaitin standard template fob offs. I wonder if they will notice that one of the prelims is for charges over 6 years old

skb

Update:

Tuesday the 20th sent off a CCA request for copy of executed agreement and today GF received an email from RBOS saying they were dealing with her request but it may take some time - basically they cant find it yet

Also today their 14 day deadline from the preliminary letter runs out and still no reply or acknowledgement so the LBA's will be in the post tomorrow.

Happy Reading RBOS

skb

Having just sent off my SAR - good luck - will be watching your over 6 years with interest - have'nt decided to claim for these or not yet....

Ginger

Update:

 

Tuesday the 20th sent off a CCA request for copy of executed agreement and today GF received an email from RBOS saying they were dealing with her request but it may take some time - basically they cant find it yet

 

Scrap that, this is the email they sent

Firstly I would like to thank you for your continued patience whilst I have

>investigated your concerns.

>

>I can confirm we have the true copy of the Credit Agreement for you

>flexible

>term loan. I have spoken with Penny at the Church Street branch and she

>will arrange for a copy of this agreement to be sent to you.

>

>Please do not hesitate to contact myself should you have further concerns.

>

>Thank you

>Leigh Milligan

Note that they are talking bout the contract for a loan whereas GF request the contract for her bank account. Gunna wait for the contract to turn up then politely point out its not what was asked for

skb

Ok have received no replies to either the prelims or LBa so come wednesday its time for submitting county court claim.

The principal claim is £1695 (£1075 for last 6 years and £695 old charges)

With CI this becomes £8926 (£3885 for last 6 years and £5042 old charges).

As the claim without interest is less than £5000 can I get this into the small claims track or will it need to be split into 2 claims (old and new charges). If it is possible to get into small claims how do I go about doing it and is there a risk it will go into fast track??

skb

The hunt for a copy of the signed bank account agreement is still underway. So far RBS have sent a coy of GF's loan agreement, which was nice of them but not what asked for. Sent them an email stating this and could we please have a copy of bank account aggreement. Received an email back basically saying they werent sure what I was asking for so replied spelling it out in the clearest way possible. Received this reply on 14th March

Dear Miss XXX

Please accept my sincere apologise for providing the incorrect paperwork.

 

I am currently liasing with another area to enable me to provide the relevant documentation. I will advise you further when I have received the

true copy of the agreement.

 

I would like to take this opportunity to thank you for your continued

patience.

 

Thank you

Leigh Milligan

So still waiting....thier 12 working days were up on 12th March. Is it now 30 calender days until they being really naughty or is it 40??

skb

Claim update:

An offer of £1025 was received on 22nd March which is below the amount requested (£1075 without interest). Rejection letter (template 4 I think)was sent giving them 7 days to cough up the full amount or court proceedings would ensue. This deadline was up on friday so N1 form going in post tomorrow. POC comes to 3 pages in all.

This is just for the last 6 years of charges have put the older stuff on hold for a few weeks whilst we get the ball rolling on this one.

Claim is for £1075 in charges + £3.96 in debit interest + contractual interest in the first instance at 29.8 % of £2850, in the alternative at 18.25 % of £1267, and failing that in the alternative of s69 interest at 8 % of £429.

skb

Quick question regarding N1 form. I will be doing the talking for the GF when it comes to any hearing etc do I have to state this now or at a later date (AQ time?)

Particulars of claim filed in early April

Particulars of Claim

 

1. The Claimant has a Graduate Royalties Current Account, number xxxxxx (“the Account”), opened at the Defendant’s Church Street branch, Sheffield (sort code xxxxxx).

 

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Card Misuse”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.

 

4. 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.

 

5. A schedule of the charges and overdraft interest applied is attached to these particulars of claim (Appendix 1 to 3).

5b). The defendant has declined to answer the claimant’s written requests for information about any manual intervention necessitated by, and/or any administrative costs incurred as a result of, the said breaches. The claimant avers that the defendant’s default charges are not intended to represent any alleged actual loss, but instead unjustly enrich the defendant, which exercises the contractual term in respect of such charges with a view to profit.

 

6. The Claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults.

 

7. The claimant will further rely on the statement of the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

a. The OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current account agreements.

b. In a consumer contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual consumer in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.

c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.

 

 

8. The Claimant thus contends that:

8a) The charges debited to the Account are

i) are punitive in nature

ii) are not a genuine pre-estimate of cost incurred by the Defendant

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant

iv) are not intended to represent or relate 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.

8b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

8c) 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) (paragraph 8 and schedule 2(1)(e)), the Unfair Contract Terms Act 1977 (section 4) and the common law (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79).

8d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

8e) The Claimant will vehemently refute any contention that the charges made by the Defendant are contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes such contention would be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.

8f) Without prejudice to paragraph 8e) above, in the event that the Defendant’s charges were accepted as a fee for a contractual service, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

 

9. Contractual Interest

a) The claimant claims compound interest on the charges and overdraft interest applied thereon to the claimant’s account ("the principal claim"), at 29.8%EAR. This is the rate currently applied by the defendant to the claimant’s unauthorised use or borrowing of the defendant’s monies, as provided for in the said contract.

The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply penalty charges and interest thereon to the claimant’s account, or to profit in an unlawful manner from the claimant’s account breaches.

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 ("UTCCR"). Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.

b) In the alternative to 9 (a), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of 18.25% EAR, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised;

c) In the alternative to 9 (a) and (b), if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers that the defendant would be unjustly enriched if the claimant’s entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of 18.25% EAR;

d) In the alternative to 9 (a), (b) and ©, if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act (1984) at the rate of 8% a year;

e) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:

Appendix 1 – Compound interest calculated daily at an annual rate of 29.8%

Appendix 2 – Compound interest calculated daily at an annual rate of 18.25%

Appendix 3 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%

 

 

10. Accordingly, the Claimant claims (having first contacted the Defendant about these amounts on the 16th February, 2007):

a) The return of the amounts debited between 5th March 2001 and 3rd January 2007 in respect of charges in the sum of £1075.00, together with interest charged thereon in the sum of £3.96 – totalling £1078.96;

b) Any applicable Court fees;

c) Compound interest at the contractual rate of 29.8% EAR from the date of each transaction to 2nd April 2007 of £2889.06. Further contractual interest at 0.072 % compounded daily from 2nd April 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently £2.85 per day, however as noted herein, this figure is liable to increase over time.

d) In the alternative to 11.c), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, compound interest at the contractual rate of 18.25% EAR from the date of each transaction to 2nd April 2007 of £1281.87. Further contractual interest at 0.046 % compounded daily from 2nd April 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently £1.09 per day, however as noted herein, this figure is liable to increase over time.

e) In the alternative to 10.c) and d), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 2nd April 2007 of £432.90 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.33.

skb

Cobblers acknowledged the claim and filed a defense on 15th May.

After painstakingly typing it out the received defense is as follows:

1. This defence is filed and served without prejudice to the defendants 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. Without prejudice to the foregoing paragraph, if and to the extent that the claimant proves the allegation that the defendant debited charges to the claimants bank account, insofar as such charges were debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect of the same, whether damages, restitution or otherwise, is barred by the operation of the Limitation Act 1980 and / or the doctrine of laches and the defendant will apply to strike out this aspect of the claim and / or for summary judgement.

 

3. 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 his claim.

 

4. No admissions are made as to what charges have been debited to the claimants bank account.

 

5. In the relation to the allegation that the contractual provisions pursuant to which the charges have been applied are unenforceable by virtue of the UCTA 1977 and/or the UTCCR 1999 and/or common law the claimant is required to identify:

5.1 a) the section(s) of the UCTA and b) the regulations of the UTCCR and c) the principles of common law relied upon by the claimant in alleging that the contractual provisions referred to are unenforceable; and

5.2 The contractual provisions that the claimant allege are invalid by reference to the UCTA and or the UTCCR. Until such time as these sections/regulations/provisions are identified the defendant cannot (save as appears below) plead to the allegation referred to in 5 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual information.

 

6 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 the defendant pleads as follows:

6.1 The claimant is required to plead and prove the necessary factors (referred to in section 15 of 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.

6.2 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.

6.3 I n the circumstances no grounds are disclosed for a claim that the defendant has acted in breach of SGSA section 15.

6.4 In the circumstance (save as appears below) the defendant is unable to plead to this allegation beyond denying that it has acted reach of SGSA section 15 as alleged or at all. The defendant reserves the right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 6.1 to 6.3 above are addressed.

6.5 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 by the contract or determined by the course of dealing between the claimant and the defendant.

 

 

7 If, which is denied, the claimant is entitled to the return of the amounts debited in respect of charges, the defendant denies that the claimant is entitled to claim interest at a rate of 29.8 % or 18.25 %.

 

8 Save as hereinbefore appears the defendant joins issue with the claimant on the claim(s) and denies that is liable to the claimant as alleged or at all.

Now could really need an old copy of the T&C's, am gunna get the GF to dig through her boxes an boxes of old papers an see if she has some. Failing that if anyone has some a copy would be much appreciated.

My thoughts, much as they are, on their defense to follow. If anyone would like to throw in their twopence worth then please feel free

skb

The allocation questionnaire has now been received and is due in on the 8th June. Have drafted the following Reply to the Defence from various sources around the site (Namely Justwon thread)

 

IN THE CASE BETWEEN

 

 

xxxx (CLAIMANT)

 

and

 

THE ROYAL BANK OF SCOTLAND PLC (DEFENDANT)

 

 

 

 

 

REPLY TO DEFENCE

 

 

THE DEFENCE IN GENERAL

 

THE DEFENCE IN GENERAL

 

1. The Defendant’s Defence was served upon the Claimant by Messrs. Cobbetts LLP and dated xx August 2006 (hereinafter referred to as the ‘Defence”). Nothing in this paragraph, Reply or the Particulars of Claim (hereinafter referred to as the “PoC”) should be construed as giving the Defendant the right to plead further at a later date. Nothing in this paragraph, Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

 

2. Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

 

3. The Claimant’s PoC and Statement of Case are repeated, with the following additions, deletions, replacements, amendments, clarifications, etc. For the avoidance of any doubt, all references remain as defined in the PoC, unless it is stated otherwise in this Reply.

 

4. The entirety of the Defence is denied, save as it is otherwise pled, or implied, by the Claimant hereinafter.

 

SPECIFIC REFUTTALS TO THE DEFENCE

 

5. At several points in the Defence the Defendant avers that the Claimant must plead further in this case, than she has done in the PoC.

a. In particular the Defendant calls upon the Claimant to plead details that have already been pled. It appears that the Defendant (and its solicitors) haven’t fully read the PoC.

b. Furthermore the Defendant calls upon the Claimant to plead information (and in some cases evidence) which the Claimant isn’t required to plead at this point.

c. For the avoidance of all and any doubt, it is specifically denied that the Claimant needs to plead further, than she already has, in this case.

d. Any details that the Claimant is required to plead have already been pled.

 

6. The Defendant makes several averments in the Defence reserving its “right” to plead further in this case.

a. It is denied that the Defendant has such a right to plead further in this case, as alleged or at all.

b. Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

c. Nothing in this Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

 

7. Paragraph 1 and 3 of the Defence: (The Defendants contention that this claim is not suitably particularised and the statement of claim does not disclose reasonable grounds for the claim to be brought). The Claimant disagrees with this contention entirely, it is the Claimant’s case that the Claim is properly particularised in the first instance and fully discloses grounds for bringing a claim against the Defendant. The claims particulars clearly state the statutory and common law provisions on which this claim relies, and the Claimant will of course elaborate upon the claim particulars at such time as is required upon the direction of the court. Further, a full schedule of the charges which form the sum claimed from the defendant was filed with the N1 form at Sheffield County Court on the day of issue for inclusion alongside the claims particulars. Additionally, the Defendant was served with this information on two occasions previously within a 56 day period allowed by the claimant to attempt to resolve the issue prior to the commencement of this litigation. As is known to the Defendant, I am a litigant in person in this claim. It is respectfully submitted that the contentions of the Defendant are highly likely to be an attempt to distress and intimidate, rather than presenting any valid or reasonable objections to the clarity of the Particulars of Claim.

 

8. Paragraph 2 of the Defence: (The Defendants contention that the claim, or parts of the claim, are barred by virtue of the Limitations Act 1980, and/or the doctrine of Laches). Without admission that the claim or any aspect of the claim is time barred by virtue of the Statute of Limitations Act the Claimant avers that the aforesaid Limitation Act has no relevance to this claim as the Claimant first contacted the defendant for the repayment of bank charges levied on her account on the 16th February 2007. The first charge included in the schedule of charges is dated 5th March 2001. The defendant was then allowed a 56 day period by the claimant to attempt to resolve this issue prior to the commencement of litigation on the 14th April 2007. All the charges claimed in the PoC therefore fall within six years of the date of the first request for repayment.

 

9. Paragraph 4 of the Defence: (Defendant’s non-admission of charges being applied to the Account). It is the Claimant’s case that the Defendant has previously admitted that the charges detailed in Appendix 1 to 3 of the PoC were, in fact, levied against the Account.

 

10. Paragraph 5 of the Defence (Defendant’s case in relation to the Unfair Contract Terms in Consumer Contracts Regulations (1999) (herein referred to as UTCCR), Unfair Contract Terms Act 1977 (herein referred to as UCTA) and Common Law) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

a. The Claimant has given an indication of the factors and evidence which she intends to rely upon in the PoC.

b. Any details that the Claimant is required to plead have been pled already.

 

10.1. Paragraph 5a) of the Defence: (Defendants case that the Claimant is required to identify the relevant sections on the UCTA) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

a. The Claimant has given an indication of the factors and evidence which she intends to rely upon in the PoC.

b. Any details that the Claimant is required to plead have been pled already.

c. For the avoidance of doubt the reasoning and relevant sections of the UCTA already referred to in the POC are reiterated here:

i. Any term of contract between the parties hereto purporting to entitle the Defendant to levy the Charges to the Account is unenforceable by virtue of section 4 of the UCTA. Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable. Under Section 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

 

10.2. Paragraph 5b) of the Defence: (Defendants case that the Claimant is required to identify the relevant sections on the UTCCR) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

a. The Claimant has given an indication of the factors and evidence which she intends to rely upon in the PoC. For the avoidance of doubt the reasoning and relevant sections/regulations of the UTCCR referred to in the POC are reiterated here:

i. Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto. Regulation 5(l) of the UTCCR provides as follows: “A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

ii. Paragraph 1(e) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” as being part of a “indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).

iii. Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as unfair”. The Terms & Conditions allows the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”.

iv. Regulation 8(l) of the UTCCR provides that: “An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”

v. Accordingly, in light of the averments made herein and in the PoC regarding the charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR.

 

10.3. Paragraph 5c) of the Defence: (Defendants case that the Claimant is required to identify the relevant Common Law) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

a. The Claimant has given an indication of the case law which she intends to rely upon in the PoC.

b. The law states that a clause is a penalty if it provides for “a payment of money stipulated as in-terrorum of the offending party”. i.e. it is punitive, designed to scare or coerce or it is used as a threat. This is supported by case law, such as Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

 

10.4. Paragraph 5.2 of the Defence: (Defendants case that the Claimant is required to identify the contractual provisions that the Claimant allege are invalid by reference to the UCTA and or the UTCCR) is denied in its entirety, and it is denied that the Claimant must identify the Contractual provisions which are Penalty clauses. However for the avoidance of doubt a non-exhaustive list of the Contractual provisions which were breached by the Claimant and that led to subsequent Penalty Charges are as follows (copies of which are also attached to this Reply to the Defence):

 

a. Contractual Term C.4….you should only issue instructions to us to withdraw funds from the account when there are sufficient funds available to cover the withdrawal, or, where an overdraft limit has been agreed, the withdrawal will not cause that limit to be exceeded.

b. Contractual Term D.1.2…. The overdraft limit should not be exceeded and we may refuse to pay a cheque (or allow any other payment or withdrawal) which could have that effect.

c. Contractual Term G.3….You (and any additional card holder) must not use the card if to do so would overdraw the account without our prior agreement, or would increase any borrowing on the account to more than we have agreed.

 

 

 

11. Paragraph 6 of the Defence: (Defendants case that the Claimant is required to plead further in relation to the Supply of Goods and Services Act 1982 (herein referred to as SGSA)), is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub- paragraphs below.

 

a. Any details that the Claimant is required to plead have been pled already.

b. It is Denied that the Claimant is required to plead further than she already has.

c. The Claimant will vehemently refute any contention that the charges made by the Defendant are contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes such contention would be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.

d. The details requested in 6.2(a) of the Defence were already pled in the PoC. Paragraph 6.2(b) is denied since any facts and matters in relation to any basis of claim arising under s15 Supply of Goods and Services Act 1982 have already been pled.

e. Paragraphs 6.3, 6.4, 6.5 (including parts (a) and (b) of the Defence are specifically denied.

f. Paragraph 6.2© and 6.5 of the defence: SGSA Section 15 states the following “Implied term about consideration (1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge (2) What is a reasonable charge is a question of fact. The claimant does not concur with the defendant’s view that an implied term was not capable of arising or arose. Section15 of the Supply of Goods and Services Act 1982 stipulates that such a term is implied in any contract where consideration for services is left to be determined by the contract. The fact that the defendant’s prices fluctuate from time to time as the defendant sees fit to increase its prices means that the consideration is left to be determined in a manner agreed by the contract – i.e. as and when the defendant periodically reviews its price list. The claimant has therefore only contracted to pay a reasonable charge. The case as to whether the charge was reasonable or not can only be determined by reference to the actual costs or losses incurred by the defendant. As the defendant has not provided these details and may claim that it is under no duty to reveal this information, the claimant has to refer the matter to the court to determine whether a charge of £30 for example is reasonable for examining a cheque to see whether it is supported by a cheque card and deciding that the Defendant is bound to honour it.

g. The claimant also refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that the default charges at the current level were unfair within their interpretation of the UTCCR. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this; “4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

12. Paragraph 7 of the Defence: (Defendants denial that the Claimant is entitled to claim interest at the rates specified in the PoC) is denied in it entirety. The Defence does not comply with CPR 16.5(2), in that when denying an allegation it does not provide an alternative version of events.

 

13. Paragraph 8 of the Defence: (Defendants denial that it is liable to the Claimant is as alleged or at all) is denied in its entirety.

 

 

THE DEFENCE IN GENERAL

 

14. The Defence should be struck out. The Claimants reasons for making this allegation are detailed below.

 

a. The Defence does not comply with CPR 16.5(2), in that when denying an allegation it does not provide an alternative version of events.

b. The Defence does not disclose any reasonable grounds for defending this claim.

c. The contractual terms that allow the Defendant to impose the charges referred herein are liquidated damages clauses which only allow the Defendant to recoup its actual loss, or a genuine pre-estimate thereof. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

d. It is the Claimants firmly held belief that the charges are

 

I. punitive in nature

II. are not a genuine pre-estimate of cost incurred by the Defendant

III. exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant

IV. are not intended to represent or relate 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.

V. unlawful by virtue of the above

 

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this Reply to Defence are true.

 

Signed

 

 

 

Any commnets or further guidance on the content would be appreciated. Have still to formulate a reply to defence paragraph 5.2 as of yet I do not have an old copy the T&C's

skb

I'm just following your thread - it's really interesting, as your just a few weeks in front of me.

My gf has similar issue with her bank accounts - she's had a lot taken off....

Cheers Atlantic, have now 'browsed' Mcuths thread and found a couple of gems:

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/46500-royalties-ts-cs.html

have also came across his reply to defence, which while similar to what I already have has some parts I intend on plagarising.

Parachute Account to the rescue.

Way back in last year when I was fighting against the mighty Lloyds I opened a parachute account. This account was with RBS and was a basic Cashcard account (the only one they would give me). I have now dug out the Terms and Conditions that came with said account. These T&C’s contain the terms for all account types and date from May 2006. I have taken the liberty of typing out the relevant sections here and comparing them to the current T&C’s available from RBS here (pdf version here)

The Terms from May 2006 are all in red and the current terms are in blue.

Terms and Conditions for all Current Accounts.

C.4. Normally, you should only issue instructions to us to withdraw funds from the account when there are sufficient funds available to cover the withdrawal, or, where an overdraft limit has been agreed, the withdrawal will not cause that limit to be exceeded. However, if at any time such instructions would result, without prior agreement, in the account being overdrawn or the agreed 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 excess overdraft is an unarranged overdraft.

C.4 If at any time you issue instructions to us to withdraw funds from the account where:

· there are insufficient funds available to cover the withdrawal; or

· the requested withdrawal would cause an agreed overdraft limit to be exceeded;

we will treat your instructions as a request for an unarranged overdraft. 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.

Terms and Conditions for Specific Current Accounts.

(Interest Paying Current Account, R21 Account, Royalties, Royalties Gold, Royalties Premier and Key Account).

D.1.2. The overdraft limit should not be exceeded and we may refuse to pay a cheque (or allow any other payment or withdrawal) which could have that effect. If we do pay a cheque (or allow any other payment or withdrawal) which results in the overdraft limit being exceeded, it will not mean that the overdraft limit has changed, or that we will pay any other cheque (or allow any other payment or withdrawal) which would have the same effect.

D.1.2 We may refuse to pay a cheque (or allow any other payment or withdrawal) which could have the effect of exceeding the overdraft limit. If we pay a cheque (or allow any other payment or withdrawal) which results in the overdraft limit being exceeded, it will not mean that the overdraft limit has changed, or that we will pay any other cheque (or allow any other payment or withdrawal) which would have the same effect.

D.1.3. You agree that if you or any other appropriately authorised signatory on the account:

a) request an overdraft limit or an increased overdraft limit and we agree to the request, or,

b) carry out a payment instruction in any form (eg issue a cheque or make a card transaction on the account) which, either through exercise of our discretion to pay the item on presentation for payment or through payment being guaranteed to a third party, results in the account becoming overdrawn when no agreed limit is in place or which results in the overdraft limit being exceeded;

In either case, this will be treated as a variation to the contract (ie not revoking and replacing any earlier agreement) under which overdraft facilities are provided by us, either with our prior agreement or which arise through exercise of our sole discretion to pay items presented for payment or through payment being guaranteed to third parties.

D.1.3 You agree that if you or any appropriately authorised signatory on the account:

· formally requests an overdraft limit or an increased overdraft limit and we agree to that request; or

· informally requests an overdraft by issuing a payment instruction in any form (eg issuing a cheque or making a card transaction on the account) which, either through exercise of our discretion to pay the item on presentation for payment or through payment being guaranteed to a third party, results in the account becoming overdrawn when no agreed overdraft limit is in place or which results in the overdraft limit being exceeded

then in either case, this will be treated as a variation to the contract (ie not revoking and replacing any earlier agreement) under which overdraft facilities are provided by us. If the facilities are provided with our prior agreement, they will be an arranged overdraft. If they arise through exercise of our discretion to pay items presented for payment or through payment being guaranteed to third parties, they will be an unarranged overdraft.

Highline/Cashline Card – Conditions of use.

G.3. You (and any additional card holder) must not use the card if to do so would overdraw the account without our prior agreement, or would increase any borrowing on the account to more than we have agreed.

This now becomes Section H in the new Terms and Conditions

H.3 If by using the card you (or any additional cardholder) instruct us to make a debit to the account where there are insufficient funds available to cover the debit or the requested debit would cause an agreed overdraft limit to be exceeded, we will treat your instructions as an informal request for an unarranged overdraft. If an unarranged overdraft arises in such a case (whether through exercise of our discretion to make the payment or through payment being guaranteed to third parties) condition D1.3 above will apply

It is quite clear where the breaches of contract arise under the old Terms

C.4. …..you should only issue instructions to us to withdraw funds from the account when there are sufficient funds available to cover the withdrawal, or, where an overdraft limit has been agreed, the withdrawal will not cause that limit to be exceeded

D.1.2. The overdraft limit should not be exceeded…………..

G.3. You (and any additional card holder) must not use the card if to do so would overdraw the account without our prior agreement, or would increase any borrowing on the account to more than we have agreed.

skb

............I shall post the above T&C's just as soon as I can get my works scanner working

skb

yes - parachute account is vital - I had a direct debit "refused" from my RBS account a couple of weeks ago even though I had enough money to cover it, and it did start me wondering about being so vulnerable when taking them to court......

Post 16 - Reply to defence edited to reflect changes and updates. Namely paragraph 10.4 - contractual terms and Final section - the defence in general - move to strike out the defence

Allocation Questionnaire and RtoD to be printed out today ready for sending in the morning to courts and cobbets (dealine in thursday I believe)

skb

Claim has been allocated to the small claims track, court date of 15th August in sheffield. Hearing expected to last no longer than 30 minutes.

The draft order included with the AQ and the reply to defence both appear to have been ignored, which is a crying shame as I spent ages writing the RtoD.

skb

The GF submitted her court bundle by hand to Sheffield CC on Tuesday 31st July and sent off a copy to cobbetts.

All seemed to be well and we were preparing to apply for summary judgement against rbs for non submission of their bundle (hadnt received anything by friday) when on saturday she received a letter from the court (dated 2nd August so after the deadline for submission of court bundles) saying the case had been stayed pending the results of the OFT test case.

Needless to say we are not amused, to put a stay on the case 2 weeks before the hearing and after the submission of court bundle seems to me to be deeply unfair and down right rude. Obviously she wants this stay removed and judgement brought against rbs for not submitting their bundle on time. She has invested a lot of money in this so far (£220 in court fees plus all printing and postage etc) and cant afford to wait around for a couple of years for the outcome of the test case. Neither does she want to have to throw more cash at it to try and get the stay removed when the request may well be denied so what can she do now??

Is there a way to remove the stay without having tho pay more cash over? Will she be able to file for summary judgement as rbs didnt submit on time?

skb

Ok, sent off a request to remove the stay together with an application for remission of the £35 costs and a covering letter explaining the situation to sheffield court.

Yesterday received this reply:

Dated the 20th August,

Dear Sir/Madam,

Re: skbs GF-v- Royal Bank Of Scotland Plc

Case No:

Further to your letter received by the Court on 10 August 2007, the District Judge has requested the matter be listed. The Court therefore needs £65.00 from you in respect of the application fee. Please send this to the Court and the matter will be listed accordingly.

Yours Faithfully

Miss T

Courts Section

Im confused because they have made no mention of the application to remove the stay or of the application for remission from fees.

What exactly is a listing and why do we have to pay £65 for the privilege? Can we get around having to pay the fee because that is £65 we cant afford to pay??

skb