ok, i have been reading every defence i could find on here but i there are a few things different in mine to the ones that i have read so i will copy it here in the hope that some kind, wonderful person will have a glance over it and reassure me that i havent made some dreadful mistake in my POC and lose my case:???: here goes,
1 the defence is filed and served without prejudice to the defendants case that the particulars of claim do not disclose reasonable grounds for bringing a claim against the defendant to recover the bank charges (and interest thereon) referred to in the particulars of claim or any other sum(s). In the event that the claim is not properly particularised then the defendant will apply to strike out the claim and/or for summary judgement in respect of the same.
2 on allocation the defendant invites the court to direct that there be a case management conference in order for the court to consider the making of appropriate orders to give the claimant the opportunity to properly particularise the claim.
3 in relation to the allegation that the bank charges amount to an unenforceable penalty the defendant pleads as follows:
3.1 In order for the claimant to sustain a claim that the charges debited by the defendant are in the nature of a penalty the claimant will need to plead and prove (a)the clause(s) pursuant to which the charges were applied; (b)that the charges were applied due to a breach of contract by the claimant; and © identifying in each case the particular breach of contract (by reference to appropriate term(s) of the contract that the charge related to. As presently pleaded the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the particulars of claim have been applied pursuant to an unenforceable penalty clause.
3.2 Until such time as the claimant pleads the matters referred to in paragraph 3.1 above the defendant is unable to plead to the claim brought against it and therefore (pending provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the claimants bank account pursuant to unenforceable penalty clauses.
4 In relation to the allegation that the contractual provisions pursuaant to which the charges have been applied are invalid pursuant to the unfair terms in consumer contracts regulations 1999 ("the regulations").
4.1 the claimant is required to identify the contractual provision(s) that the claimant alleges are invalid by reference to the regulations. Until such time as these provisions are identified the defendant cannot (save as appears below) plead to the allegation referred to in paragraph 4 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual provisions.
4.2 In relation to the case o the claimant that the contractual provisions are invalid pursuant to the regulations the defendant pleads as follows:
4.2.1 Schedule 2 to the regulations is an indicitive and nonexhaustive list of terms which may be regarded as unfair (emphasis supplied).
4.2.2 If the claimant is to rely upon paragraph 1(e) of schedule 2 to the regulations then the claimant is required to plead and prove in relation to each bank charge that is sought the matters referred to in paragraph 4.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high.
4.2.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be - see paragraph 4.1 above) falls foul of the regulations and inparticular paragraph 1(e) of schedule 2.
4.2.4 The defendant is therefore unable (save as appears below) to plead to this allegation beyond denying that any bank charges have been applied pursuant to terms which contravene the regulations. The defendant reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 4.2.2 above are provided.
4.2.5 Without prejudice to paragraph 4.2.4 it is the case of the defendant that the regulations have no application because the charges amount to payment for services provided by the defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judged by reference to principles of fairness under the regulations.
5 Save as hereinbefore appears the defendant joins issue with the claimant on the claim(s) and denies that it is liable to the claimant as alleged or at all.
Thats it folks in its entirety - signed by lynsey clare burgoyne