i would be grateful if you could look over this.i wasnt sure what terms to include to p4 so i included them all .would this be ok for my business account. Thanks!
I acknowledge receipt of your Request For Further Information (Part 18 of the Civil Procedure Rules). Please note that 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. However, as a courtesy, please find my response detailed below:
1. In your claim you state: “the defendant debited charges and interest in respect of purported breaches of contract”.
2. Please provide the following particulars in support of your claim:
2.1 In relation to each charge please identify (a) the date when the charges was charged; (b) the amount of the same; and © the reason(s) given for the charging of the same.
I refer the Defendant to the attached spreadsheet/document I have prepared 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 In relation to each charge, please clarify the following;
(a) Is it the case of the Claimant the same should not have been charged?
The Claimant is aware that each charge has been debited by the Defendant from the Claimant’s account pursuant to the terms and conditions signed by the Claimant when the account was opened. However, please see my replies below.
(b) If yes; please explain why the Claimant contends that the same should not have been charged?
The Claimant does not contend that the same should not have been charged; merely that the charge made 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.
© If no; is it the case of the Claimant that the same should have been charged in this amount?
This is exactly the Claimant’s case. Each charge debited by the Defendant from the Claimant’s bank account should not have been charged in the amount that was charged. 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 from 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.
(d) If yes; please explain why the claimant contends that the same should not have been charge in this amount and identify the sum the claimant contends should have been charged.
The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.
(e) If no; please state the claimant case.
The Claimant has already stated a case in the Particulars of Claim (or as amended) and repeats the same claims as if they were repeated in this reply. The Claimant also refers the Defendant to the answer at 2.2© above.
3. In your claim you state that the charges are "unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, the unfair Contract Terms Act 1977 and at Common law" and they must be reasonable under s15 of the Supply of Goods and Services Act 1982
4. Please specify all of the facts relied on by the Claimant in support of the contentions in paragraph 3 above, and in particular please identify (a) the section(s) of the Unfair Contract Terms Act 1977 ("UCTA 1977"); (b) the regulations of the Unfair Contract Terms in Consumer Regulations 1999 ("the regulations"); and © the principles of common law replied upon by the Claimant in alleging that the contractual provision(s) referred to are unenforceable. Please also identify the contractual provision(s) that the claimant alleges are unenforceable by reference to UCTA/ the regulations.
The Claimant specifically pleads that the charges debited to the Claimant’s account by the Defendant are automatically unfair because, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract (which the Claimant pleads is invalid in any event) to the detriment of the Claimant. “Good faith” (as defined by the Unfair Terms in Consumer Contracts Regulations 1999) means that that the Defendant must deal fairly and openly with the Claimant. The Defendant has not dealt fairly and openly with the Claimant. Further, as the contractual term (i.e. each and every charge debited from the Claimant’s account according to the “contract” entered into by the parties pursuant to the Defendant’s terms and conditions, as well as the terms and conditions themselves) was not individually negotiated and was drafted in advance, the Claimant was unable to influence the substance of the term, making it unfair. In the absence of a breakdown of the Defendant's liquidated losses and/or actual costs of each and every charge applied to the Claimant's account, the contractual term in force at the time of the charge forced the Claimant to pay a disproportionately high sum to the Defendant in compensation for the Claimant’s alleged failure to fulfil his obligation
If the defendant contests this does not amount to a breach of contract the claimant will contest that charges appear to represent an unfair term of contract which is contrary to the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2 (1) (e).The claimants account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. These charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:
Indicative and non-exhaustive list of terms which may be regarded as unfair:
1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation
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 £35 per automated refusal? A bank is a High Street business. Normal mark-ups on the High Street businesses are 100%. It would not be reasonable for Banks to mark up significantly higher than this without a full and detailed explanation to their customers.
Also the claimant alleges that the charges are Penalty charges that are irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd  AC 79.along with Murray v. Leisure play  EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.
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.