Hi Redsue

I wholeheartedly agree with you. I submitted my court bundle well within time. N'wide have not sent me theirs. I have written the appropriate letter to both them and the court regarding their non-compliance and they have made no response to me.

I too am furious that the judges ordes seem not to apply to the banks, and they are not penalised at all for not complying. I am sure that it we did not comply with any of the orders, their solicitors would be the first to jump up and down.

My court hearing is in a few days, on the 9th March.

I don't have their bundle and so cannot prepare for anything they might have against me.

Anyway, good luck with your own claim.

Hi Westy,

I split the claims because last summer the general concensus seemed to be to keep the amount under £5000. So I did 2 claims from June 2000 - July 2006. I kept the later charges for a separate claim, because I knew it would be a much more complex issue.

In hindsight, I would probably have done it all together, but it's too late now!

My hearing is set for 9th March.

Mr Bacon seem certain that he won't settle.

Has anybody actually got into court with Nationwide and what was the outcome?

The have not complied with the judges order to supply me with their "bundle". Mine went to them last week recorded delivery, so I have sent them the "bundle non-compliance" letter and cc'd the court.

I can't say I'm looking forward to it, but hopefully I'm thoroughly prepared and will have the satisfaction of getting every penny of my money back!

Hi, I am claiming for 1998-2000 and the hearing is on 9th March. The Nationwide are defending citing the limitation act. I have researched thoroughly and feel I have a good basis for contesting this.

I share your sentiments entirely, they really go out of their way to make life difficult when times are hard, don't they.

Hi Tanz,

I am on my third claim against Nationwide, this final one dealing with limitation issues and contractual interest, as I see your current claim is.

My court date is at Worcester County Court on the 9th March. Just thought I would touch base to see if we can be mutually supportive!

Mandy

Any thoughts on my previous posting would be much appreciated.

With regards to my bundle, I'm obviously putting in all the correspondence regarding the third claim.

I'm in two minds as to whether or not to put in all my correspondence regarding the previous claims.

On the one hand, it clearly shows that they have had ample opportunity to settle before court action on all three occasions and also underlines the fact that they did pay up, thereby implying that they know the charges are unlawful and that they don't want to reach a courtroom.

On the other hand - it emphasises the fact I've made 3 claims! The court may view this as vexacious and abuse of process.

I'd value any advice.

I'm just getting all my info together.

On the point of this being my third claim a (non practising due to illness) solicitor friend stated this: "If pushed, I'd be inclined to argue that each claim is rightly separate because each represents a different period of time in respect of NW's liability. The fact that you have been able to bring three claims also suggests that no Order was made to settle the other claims. NW could always have paid up for the whole 6 years or ask for an Order that you be barred from making similar applications for sums not claimed in the first. I will see if I can find case law on this point."

Do people think I can pull this into a valid defence for bringing 3 claims?

Yep -that's it!

I have found this info regarding the limitation act and wondered if it would be useful, particularly the section on "latent damage".

I apologise if I'm barking up the wrong tree, but wondered if this arguement could be used to extend the 6 years.

http://www.pinsentmasons.com/media/1667939007.pdf

Hi Sue, I'm glad you had a good holiday.

I'm watching your thread as well!

At least having a few of us in the same boat means we can support each other!

I questioned the court clerk as to why I didn't have to fill in an AQ and she told me the judge must have decided it wasn't needed. He just allocated to the small claims court!

My hearing is set for 9th March 2 p.m, so if woolieback land is anywhere near Worcester any company would be gratefully received!!

In a recent email, Mr Bacon declined my offer to settle, so court proceedings continue!

I am just in the process of getting my court bundle together. I would dearly love to be able to claim for paper and ink cartridges!!

Mandy

Cheers Westy!

So basically, I can leave my statement of evidence fairly brief, BUT have every piece of evidence for every concievable argument they may have, in my bundle, in case I need it. Is that right?

I am just in the process of putting together my statement of evidence for my court bundle.

The defence makes no mention of the lawfulness or otherwise of the chages, merely that they have already paid me money (not this claim's money!), and the claim is statute barred.

So, if they are not disputing the unlawfulness of the charges, can I bring it up in my statement?

Also, do I bring up issues such as doctrine of laches, if they have not?

I'm am not sure if I should raise arguments over subjects they have not put in their defence. However, if I leave all of these out of my bundle, I won't then be able to rely on them in court, which would seriously weaken my case.

Hi bong, thanks for that, it's really helpful.

Should I send this to the court manager, quoting my case number?

Should I also send a copy to Nationwide?

Glenn, I've re-read this thread again just now, and there is a lot of mention of the OFT report! Would you mind posting a link to the specific bit for me please?

Thanks

Mandy

LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions.

Laches is derived from the French 'lecher' and is nearly synonymous with negligence.

In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial.

But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.

Legal Definition of 'Laches, Doctrine Of'

Hi Glenn, this is the full text and the link. I realise it is very basic, but I'm just trying to read up and find more info.

Hi, I have come across this info and wondered if it is of any use.

But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.

Is this saying that as I was ignorant of the unlawfullness of the charges and therefore my ability to claim them back, the doctrine of laches cannot be used against me?

So does anybody have any thoughts on whether or not I can dispute Nationwide's application to change their defence? If so, how?

Data Protection Team,

Nationwide Building Society

Kings Park road,

Moulton Park

Northampton NN3 6NW

Tel 01604 855060

Fax 01604 854933

Ali, this is where you send your S.A.R request, when as Janquinny says, you are clear about what you are doing.

Sorry Jan, obviously typing at the same time!

Ali, this should help. Try keeping your posts to just the one thread. It's much easier to help you then.

http://www.consumeractiongroup.co.uk/forum/welcome-our-forum/53241-cant-find-what-youre.html

Ali, I'm not sure about your first query, I hope somebody will help shortly on that.

However, you cannot go straight to court action after only the S.A.R.

That is only asking for your information.

Only when you have had a negative response to the preliminary letter and the letter before action, and waited 14 days after each can you file a claim.

This because you have to demonstrate to the court that you have seriously attempted to negotiate a settlement with the bank before court action.

Let us know how far you have got, and what letters you have sent and we will try to help.

Can't believe you are back again!!!

Hiya Dolly!

Yes - it's me again!!

Not so straightforward this time, but I'm determined to get every last penny back!

Hope you are well.

Mandy

Hi Bong

They have asked for it to be dealt with without a hearing.

I have today received a copy of Nationwide's application to change it's defence.

It reads: "The defendent seeks permission to amend its defence to show that it contends that any claim for a refund incurred more than 6 years before the issue of proceedings is statute barred."

Their defence reads as before except they have added: Insofar as the claim relates to charges debited to the Claimant's account before 1 July 2000, it is barred by virtue of the provisions of the limitation Act 1980.

They have also added: The interest paid to the Claimant has been calculated at the rate of 8% per annum from the date on which the charges and interest were debited to the Claimant's account to the date on which they were refunded. As all interest paid by the Claimant to the Defendant has been refunded, the Claimant's claim for further interest at the rate of 24.9% is denied.

They did NOT asked permission on form N244 to add this sentance about the interest, just the time limitation. Should they be allowed to do this?

Also, as far as I was aware, I'm not just asking for the interest I paid back, I'm charging them interest for using MY money for all of this time. I have not been repaid the interest on charges from 1998-2000, and therefore it is still owed to me?

Can I dispute their application to change their defence, because in my view, they should have noticed the time limitation factor before?

If so, how?

I'd be grateful for any advice.

Cheers - will do!

Hi Bong, thanks for the quick response.

Here is a copy of my letter of 23rd Dec.

ACCOUNT NUMBER: xxxxxxxxxxxxx

Please find enclosed form N236, informing you of my decision to proceed with my claim.

In your defence you state that this is my third claim and that you have already refunded the amount of £9230.28. Whilst I accept that this is the case, the monies refunded to date are in response to my first two claims.

This claim is regarding charges debited between September 1998 and June 2000.

Your defence does not address the issues in my current claim and it will therefore proceed.

My reasons for proceeding are that I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now. I have also been informed on numerous occasions by Mr. Huntley that I cannot claim for these charges because they occurred more than six years ago. I also consider this assertion to be deceptive as I interpret the Statute as follows –

The Limitation Act 1980 section 32(1) states that:

....(1) …. where in the case of any action for which a period of limitation is prescribed by this Act, either-

• (a) the action is based upon the fraud of the defendant; or
  
• (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
  
• (c) the action is for relief from the consequences of a mistake;

• the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

• (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

My interpretation is that the limitation period runs from when I found out that the charges are unlawful (as per the OFT pronouncement on 5th April 2006), and that the act is a forward looking limitation and not retro-active. Furthermore, I state that I was mistaken in paying the charges applied to my account as I was acting under the mistaken belief that the sums were lawfully due.

As the Claimant in the proceeding I will be raising s.32(1)(b) and/or s.32(1)© of the Limitation Act 1980 to establish the basis of my claim in court.

I spoke to a court clerk who said that she assumed the reason I didn't get an AQ was because the judge must have reviewed the case and decided he would allocate directly to small claims.

Mandy

To update:

I contacted Mr. Bacon to invite him to settle - but he has declined!

I have copied his reply to me:

Thank you for your letter of 23 December.

I do not agree with your interpretation of the Limitation Act 1980. Far from concealing the nature of the charges from you, Nationwide has been completely open and transparent. You have received advance notice each time a charge has been debited to your account and the reason for the charge was made abundantly clear.

I enclose a copy of an application for permission to amend Nationwide’s Defence that I have sent to the court.

Yours sincerely

etc etc

I cannot open his second attachment regarding his request for permission to change the defence, so will update when I can.

My feeling is that they are going to try and defend my claim by saying it is time barred, before I can even try and prove the unlawfulness of the charges.

I really would value advice.

Shall I just get on and prepare my court bundle now? It is obvious they are not backing down.