BankHater Business v Natwest

[BankLover_not]

Hi Guys,

 

I have been advised to start my own thread here so here goes.

 

Just to let you know i have been helping my dad's friend on his business account which we submitted to court a couple of weeks ago and got the obligatory stay imposed. Within the last 7 days NatWest has written to the court to ask that the stay be lifted. I read on another post before this has happened with Natwest so we are being very cautious with this (the claim is £10,000). We now expect to get allocation questionnaires sent and have to pay the newly increased allocation questionnaire fee of £200, with an additional allocation questionnaire 'listing fee' of £100 - buggers!!!! I'm hoping we don't get to the trial stage and that, fingers crossed, they will settle, does anyone know what the chances of Natwest settling are?

 

Hope it doesn't get to the hearing stage because that will then cost my dad's mate another £500 hearing fee!!!!!! I really hope the banks dont use the newly increased court fees as a cynical way of pushing the poorer people out of the court market!

 

Good luck to everyone with their business accounts (and thoose too with personal accounts) and remember, as has been written on these posts several times before - DON'T GIVE UP

 

BankLover_not

[BankLover_not]

Hi Again,

 

The POC we used for the business account was one we got off the CAG website, we had looked at many. We are basically using S.4 Unfair Contract Terms Act (1977), S.15 Sales of Goods and Services Act and common law. We are not obviously relying on the UTCCR (1999). The type of charges we are reclaiming are unpaid item charges, unpaid cheque charges and referral charges.

 

We have today received Cobbetts (Natwest solicitors) defence through and I'll be honest and say I don't like the look of it, I'm worried. It says they are inviting the court to hold 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. Whilst they deny every part of our claim they are also saying they can not pleade to certain parts. They also say we can't use UTCCR in our claim - we never put that in the POC anyway!!

 

I am worried because in the last paragraph they refer to defects in the pleaded case must be addressed.

 

Any help or guidance would really be appreciated at this moment in time.

 

Many Thanks

 

BankLover_not

[hedgey06]

Hi Banklover_not......... welcome on board the nat west forum!

 

Firstly, as you're probably already aware Cobbetts have started to have their own stays lifted on business claims, so don't worry too much about that part at the moment.

 

Secondly, with regards to Cobbett's defence and their claim that you can't use UTCCR even though you didn't include this in your PoC, you'll find that Cobbetts tend to send out a templated defence depending on whether you're:

 

a) a consumer who file via MCOL

b) a consumer who filed via N1

c) a business claimant who filed via MCOL

d) a business claimant who filed via N1!!!

 

There are another few variables within their templates (e.g., particularly if you have pre-6 year charges in your PoC) - but as you're a business claimant, I'm sure we've seen the defence you've received before. You could:

 

a) post the defence up on this thread so that we can have a look at it for you. We have quite a few business claimants in the Nat West forum so somebody will be able to comment on the defence you've received.

 

b) post it to me or another site helper and we'll make sure that (if necessary) it's flagged up for further comment.

 

Best of luck

Hedgey x

[zootscoot]

We are basically using S.4 Unfair Contract Terms Act (1977), S.15 Sales of Goods and Services Act and common law.

 

Neither UCTA or SGSA are applicable to any bank charge claims business claims are based solely on the common law.

 

It says they are inviting the court to hold 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.

 

That is quite standard in their defences although your POC may need changing.

 

Within the last 7 days NatWest has written to the court to ask that the stay be lifted. I read on another post before this has happened with Natwest so we are being very cautious with this (the claim is £10,000).

 

Natwest are obliged by the FSA waiver conditions to ensure that claims unaffected by the test case are progressed swiftly so you shouldn't read too much into their application to lift the stay.

 

If you have a copy of their T & Cs then I'll see if I can put a revised POC together for you.

 

All the best

 

Zoot

[elsinore]

subscribing

[andrew1]

subscribing

 

If you are new to the forum, you can subscribe to a thread by going to the thread tools at the top of the posts and clicking on 'subscribe to thread..... :D

 

Hi els

[steven4064]

I have some 2001 business T&Cs for Nat West here.

[elsinore]

If you are new to the forum, you can subscribe to a thread by going to the thread tools at the top of the posts and clicking on 'subscribe to thread..... :D

 

Hi els

 

Yes, but in this case I wanted the OP to know that I was subscribing.

 

Hi Andrew:D

[BankLover_not]

Hi Everyone,

 

Thanks for all your comments. Zoot I am troubled by your advice that SGSA and UCTA are not supposed to be used. I read on more than one of the recommended POCs on SAG and elsewhere that UCTA and SGSA should be used. Obviously confused, and very worried now.

 

BankLover_not

[zootscoot]

Thanks Steve,

 

I'll get working on this tommorrow.

[zootscoot]

Hi Everyone,

 

Thanks for all your comments. Zoot I am troubled by your advice that SGSA and UCTA are not supposed to be used. I read on more than one of the recommended POCs on SAG and elsewhere that UCTA and SGSA should be used. Obviously confused, and very worried now.

 

BankLover_not

 

The generic template for business claims do not make reference to UCTA or SGSA?

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/105213-guide-business-claims.html

 

Its nothing to get too worried about provided you have mentioned the common law also. If the hearing cmc goes ahead just take along a revised POC and ask the court to adopt those. There shouldn't be too much of a problem

[BankLover_not]

Hi Zoot,

 

Went to the business section again and below is the first POC for business accounts i cam to, at the bottom is the reference to SGSA:

 

In the XXXX County Court

 

Between:

 

You

Claimant

 

 

v

 

 

 

Bank Plc

Defendant

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant [has] [had] an account1("the Account") with the Defendant which was opened on or around 2[and closed on or around 2 ]

 

2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. 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.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related 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.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the common law. The precedent for the law relating to contractual penalties was set in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Co Ltd (1915) AC 79. Additionally, in the case of Murray v Leisureplay (2005) EWCA Civ 963 it was held that a contractual party may only recover damages in respect of its actual loss or liquidated losses.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 3and any interest charged thereon;

 

b) Court costs;

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

 

I believe that the contents of these particulars of claim are true

 

 

Signed: DON'T FORGET TO SIGN IT

 

 

Date:

[zootscoot]

OK thanks for pointing that out, I have removed it.

[photoman]

Yes, but in this case I wanted the OP to know that I was subscribing.

 

Hi Andrew:D

 

 

Ditto

 

Photoman

[zootscoot]

Hi BLN,

 

Could you post the exact description of the charges as stated on the statments.

 

Thanks

[BankLover_not]

Hi Zoot,

 

The charges as they appear on the statements are:

 

1) Paid referral

2) Referral Charge

3) Unpaid item

4) Unpaid cheque charges

[BankLover_not]

That should be:

 

1) Paid referral fee

2) Referral charge

3) CHQ return fee

4) Unpaid Item

[zootscoot]

Thanks!

 

So no unauthorised borrowing fees?

[photoman]

BLN

 

You are honoured to have such valuable help from Zootscoot.

However on another thread I saw you refer to them as a he..... Zoots actually a she !

 

Appears you've also already acquired some useful subscibers, so sure you'll get lots of help.

 

Hi to Steven, Andrew1 and Elsinore (notice you've become a site helper now, lucky CAG).

 

PM

[BankLover_not]

Hi Zootscoot,

 

I offer my apologies to you, as photoman points out, i did mention your name in another post and i referred to you as a he not a she, please accept my apologies and i hope no offence has been taken.

 

No I can not see any unauthorised borrowing charges on the statements. Does any of this help you at all?

 

Thanks for everyone's interest and help thus far.

 

BankLover_not

[zootscoot]

No worries I'm always getting mistaken for a man on here

 

I have done a new POC and put it in the templates library here:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/118013-new-poc-natwest-business.html

 

 

I woudn't do anything for the moment until you here from the court. If they do have a case management conference then take along a copy of the new PoC and the draft orders for directions if you have not submitted them already.

 

It is quite normal for Natwest to request a CMC and then settle just before hand.

 

As this is a business claim and you can only rely on penalties rather than UTCCRs, the charges imposed since the restructuring of the T &Cs are a little more vulnerable. As the claim is fast track you might consider dropping any later charges before the claim gets to court to avoid any costs implications. I would hold out for a full offer for as long as possible first.

 

All the best

 

Zoot

[BankLover_not]

Thank you Zoot,

 

I will look over your revised Business POC and take on board your advice.

 

Thanks again for your help.

 

BankLover_not

[BankLover_not]

Hi Zoot,

 

Thanks again for the help so far. Just to let you know the charges range from October 2001 - June 2005. So I'm hoping Natwest's change in T&C's won't affect the claim detrimentally, what are your thoughts? In addition my girlfriend's brother had a business account but a lot of his charges are Unarranged Borrowing Fees, Lloyds TSB have put loads of these charges on his business account between 2001 - 2006. The reason I am mentioning this is that you asked me before about Unarranged Borrowing Fees, are these not reclaimable?

 

Thanks.

 

BankLover_not

[zootscoot]

Thanks again for the help so far. Just to let you know the charges range from October 2001 - June 2005. So I'm hoping NatWest's change in T&C's won't affect the claim detrimentally, what are your thoughts?

 

No they shouldn't have any affect on your claim at all so you could remove any reference to them if you do need to amend your POC.

 

The reason I am mentioning this is that you asked me before about Unarranged Borrowing Fees, are these not reclaimable?

 

It depends on the wording of the T & Cs for each bank. With business claims because you can only rely on the common law, you have to establish a clear breach of contract. You could raise the argument of disguised penalty but this is less straight forward and may not succeed in court. Having said that the banks so far have paid out on all charges.

[andrew1]

Actually Zootscoot, this is an interesting take on claims. I know this is not a business account I am referring to but I wrote to HBOS about a credit card account and argued the point that they were obliged under common law not to exceed a liquidated loss and unless they could confirm exactly what their liquidated loss was the penalties should be refunded in full + interest - they have written back stating " With regard to your comments regarding our 'liquidated loss' I must advise you that we are under no legal obligation to provide this information to our customers and therefore I am not in a position to respond to the request for information you have requested"

 

They also refuse to pay ANY interest, but have made a 'goodwill Offer' to refund charges only.

 

 

Why is common law okay for a business, but not for a consumer account?

 

 

Just curious.