Thanks for your replies! Still not heard from the court but with the postal strikes I doubt I will for a while - I recieved a letter today postmarked 3/10/07 so so the backlog must be massive:(
How's the move going Dee? I presume you're out of London now - i'm lost out of London!
Hope your lot are all better now Jo!
I have no scanner so I've typed up the defence - took all day with a very active 5 month old bouncing all over me!
It's still all babble to me though:( Is it standard?
In this defence:
1.1 References to paragraph numbers are, save where otherwise indicated, references to paragraph numbers of the particulars of claim.
1.2 The defendant’s accounts Conditions will be referred to as “the Conditions”.
1.3 References to an “unauthorised” overdraft are to an overdraft permitted by the defendant without prior application and arrangement under clause 6.1 of the conditions.
2. It is admitted that the claimant held the following account with the defendant, account number to be particularised (“the Account”). It is admitted and averred that the contractual provisions between the Claimant and the Defendant in relation to the Account are set out in the Conditions.
3. It is denied that those charges payable and that the rate of interest applicable upon a customer going into unauthorised overdraft or exceeding an authorised overdraft constitute a penalty at common law. It is denied that those charges and that interest are payable on a breach of contract.
4. The true position is as follows:
4.1 Each and every payment instruction presented by or on behalf of the Claimant to the Defendant which would, if honoured, take the Account into unauthorised overdraft or beyond an authorised overdraft, constituted a request (in law, an offer) by the Claimant to the Defendant for a loan of the requisite amount on the terms set put in the conditions (alternatively on the Defendant’s usual terms as to such overdrafts as at the date of the payment instruction in question).
4.2 The defendant was free to accept or reject each such request.
4.3 If the defendant honoured the payment instruction in question, the Defendant thereby accepted the Claimant’s offer.
4.4 Accordingly, the Claimant became bound to pay interest and charges in relation to that loan at the stipulated rate.
4.5 That liability does not, at common law, constitute a penalty.
5. It is denied (if it be alleged) that, on a proper construction, clause 6.3 of the Conditions provides that a customer going into unauthorised overdraft or exceeding an authorised overdraft constitutes a breach of contract (for which the customer is liable to pay damages). It is averred that clause 6.3 of the Conditions operates as a trigger to bring into effect certain other provisions of the Conditions.
6. It is denied that those charges payable upon the Defendant dishonouring a payment instruction presented by the Claimant by reason of the state of the Account (namely that had the Defendant honoured the instruction in question, it would have taken the Account into unauthorised overdraft or beyond an authorised overdraft) constitute a penalty at common law. Such charges are not payable on a breach of contract. They are, by clause 6.4 of the Conditions, a fee.
7. The Defendant understands the Claimant’s allegation to be that the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instruction are not binding on the Claimant by reason of regulation 8(1) of the Unfair Terms in Consumer Contract Regulations 1999 (“the 1999 Regulations”).
8. The Regulations, by regulation 1, came into force on 1 October 1999 and are of no application to any event occurring before that date.
9. Regulation 6(2) of the 1999 Regulations provides that:
“In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate –
(a) to the definition of the main subject matter of the contract, or
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange,”
10. The fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are: (i) set out in plain intelligible language in the conditions, and (ii) amount to the “price or remuneration” in respect of that provision of such overdraft or such dishonouring.
11. Accordingly, by regulation 6(2) of the 1999 Regulations, the provisions of the Conditions as to the fees and interest delete as appropriate payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and in respect of the dishonouring of payment instructions are not liable to assessed for fairness under those regulations.
12. It is denied that paragraph 1(e) of schedule 2 to the 1999 Regulations is applicable. As pleaded above, the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breach of contract by the Claimant.
13. Alternatively, if (contrary to the Defendants primary case pleaded above), the provisions of the Conditions as to the fees and interest payable in respect of and unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions fall to be assessed for fairness under the 1999 Regulations, the defendant’s case is as follows:
(a) Regulation 5(1) of the 1999 Regulations provides that:
“A contractual term which has not been individually negotiated shall be 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.”
(b) Regulation 6(1) of the 1999 Regulations provides (so far as presently relevant) that:
“…the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract….”
© It is denied that the conditions breach that provision of the 1999 Regulations. In particular, (i) the Defendants charges and interest rates are published and provided to its customers from time to time and are expressed in clear language; (ii) the incurring of charges and interest rates in respect of an unauthorised overdraft and an overdraft beyond that agreed and fees in respect of the dishonouring of payment instructions is a result of the Claimants actions; and (iii) the Defendant’s charges and interest rates are not, in the circumstances, excessive in relation to the value of the services provided in relation thereto.
(d) The Defendant reserves the right to plead further in this regard on the provision of gull and proper particulars of the basis on which the Claimant contends that the Conditions contravene regulation 5(1) of the 1999 Regulations.
14. Save as expressly pleaded to above, each and every allegation contained in the Particulars of Claim is denied as if the same were individually traversed.