BankHater Business v Natwest

[steven4064]

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?

Two points: We had the same thing with GE Money - godwill offer of charges but flat refusal to pay interest. So we just poressed on with LBA and court and guess waht? THey paid up the interest too.

 

Secondly, the common law applies just as much to consumer accounts. It is just that, for business accounts, that's all there is. For consumer accounts you have (for the time being at least) the UTCCR 1999 as well.

[andrew1]

Thanks Steven, It's interesting isn't it? I have written back, despite the fact they say it's their final position blah blah, and stated that they might feel they have no legal obligation to me, but if and when I take it to court I will request full disclosure and they will have to let the court and DJ know what their liquidated loss is, they can either tell me, the court or pay up in full - their choice. Failure to pay up will mean taking the N1 route which I am happy to do, but it will also mean that if they choose to play silly beggars and take this to the court steps and THEN decide to pay up, I will inform the court of their intimidation and waste and abuse of the court process. What do you think the odds will be they'll pay up as a ' goodwill gesture' before then?

 

I feel quite strongly (rightly or wrongly) about this because it goes right back to the very beginning of the forum principle with bank claims that it relates to Common Law - why should common law not hold water? It's almost like this aspect has been over-shadowed by the OFT & UTCC

 

Sorry Bank_lover not - didn't mean to hijack your thread..

 

.

[BankLover_not]

That's fine Andrew,

 

But can we all please just stick to helping me from now on.

 

Many Thanks.

 

BankLover_not

 

 

 

 

 

 

(joke)

[bambers]

Hi

 

I am in a very similar position to you. Against Natwest for £17,000 on our business account 2002-2006 - Limited company.

 

I have had a judgement against them in default, but they applied to have that set aside and asked for a stay at the same time.

 

I attended the hearing today and they sent an agent to represent them. The judge allowed the set aside but would not allow the stay. We are now waiting for allocation questionnaires. The judge agreed with me that the defence was full of holes but advised we take legal advice and also that we consider filing a (not sure what its called CPR 36??) to make an offer to pay what we consider reasonable charges and just claim for the difference, in order to protect our costs. He also advised that we ought to try and mediate with cobetts!! - I guess this would be very difficult, they are still saying they don't know details of the account or charges we are claiming for, after being sent them 3 times!

 

Just thought you might llike to know we are in almost exactly the same boat - and could possibly help each other

 

regards

 

Bambers:|

[elsinore]

He also advised that we ought to try and mediate with cobetts!! - I guess this would be very difficult, they are still saying they don't know details of the account or charges we are claiming for, after being sent them 3 times!

 

 

Hi bambers, well done for holding off a stay.

 

What grounds did Cobbetts use to have the judgment set aside?

 

Els

[elsinore]

Also , as this thread is Bankover_not's, I'll ask if your post can be moved to create your own thread.

 

Els

[andrew1]

That's fine Andrew,

 

But can we all please just stick to helping me from now on.

 

Many Thanks.

 

BankLover_not

 

 

(joke)

 

 

Many a true word said in jest eh els?

[bambers]

Hi

 

They fully accepted it was a clerical error on their part (they failed to acknowledge service after we re-issued POC ommitting UTCCRs) but they argued they had "a real prospect of defending the claim" - pretty basic really - I tried to argue that they did not intend to defend the claim and had been settling many claims of this nature prior to hearing, but the judge seemed to think this irrelavant and that they could not be blamed for seeing the commercial aspect of settling claims prior to court. I pointed out all the usual 'abuse of court process' charges were within statue of limitations (they say not - probably a template error), but all the same he has given the 3 weeks to put forward a "proper defence".

 

We got cost for today though £120.

 

Any advice?

 

Bambers - annoyed and confused!!!

[BankLover_not]

Hello again guys,

 

I spoke to a solicitor today who was very kind and gave me almost an hour of his time - free! He even did quite a bit of research for me and came back to me later.

 

I am concerned however because he affirmed that business claims rely on common law only but if I have mentioned in my POC s.4 Unfair Contract Terms Act 1977 and s.15 Sales of Goods and Services Act 1982, as I did do, then he told me that iot might be a good idea to make an official ammendment and pay the £40. The reason being that if I have put pleadings in my case that should not be relied on or will be thrown out as they have no relevance so apparently the other side can ask for costs 9wasted costs or asomething). However I remember you saying Zoot that I shouldn't worry about this. Do you still think I should let it go or do this official amemdement asking if Cobbetts will agree to it.

 

Thanks.

 

BankLover_not

[BankLover_not]

Hi Bambers,

 

Just seen your thread. Nice to meet you. If I can be of any help then please ask away, we are at the early stages of our court claim but have already had dealings with Cobbetts. You are more than welcome to stay on this thread you never know we may be able to help each other.

 

BankLover_not

[zootscoot]

Hello again guys,

 

I spoke to a solicitor today who was very kind and gave me almost an hour of his time - free! He even did quite a bit of research for me and came back to me later.

 

I am concerned however because he affirmed that business claims rely on common law only but if I have mentioned in my POC s.4 Unfair Contract Terms Act 1977 and s.15 Sales of Goods and Services Act 1982, as I did do, then he told me that iot might be a good idea to make an official ammendment and pay the £40. The reason being that if I have put pleadings in my case that should not be relied on or will be thrown out as they have no relevance so apparently the other side can ask for costs 9wasted costs or asomething). However I remember you saying Zoot that I shouldn't worry about this. Do you still think I should let it go or do this official amemdement asking if Cobbetts will agree to it.

 

Thanks.

 

BankLover_not

 

Its up to you. Many people have had money returned without problem using the same POCs so you might want to wait and see if you get an offer in the next few weeks. Or you can make an application to amend using form N244 to be on the safe side.

[BankLover_not]

Thanks Zoot,

 

I'll weigh it all up. Much appreciated.

 

BankLover_not

[BankLover_not]

Hello,

 

We have received notification from the court that the judge wants a stay application hearing. Cobbetts contacted us to ask us to put in writing to the court to agreee to have the stay lifted which we did promptly (Cobbetts had originally asked to have the stay lifted), now the court has listed a hearing on the 3rd December 2007 to hear the stay application. What should we do? Do I need to be concerned about this?

 

Any help or advice would be greatly apprecicated.

 

BankLover_not

[hedgey06]

Given that your claim is a business claim, the stay shouldn't have been granted in the first place as you're not including the UTCCR's in your claim. A couple of business claims in the RBoS forum recently had their stays lifted without any problem (barneybubble and lANCASTERCHELSEA) so it's worth having a look at their threads.

 

However, have a look in the templates library for further info on the stay hearing (e.g., requesting that the stay is lifted, etc.). If you click on the link in my signature regarding stays you'll also find additional info that may be useful for the hearing. And whilst you don't need to be worried about the hearing, you do need to be prepared for it so read up as much as poss!

 

Best of luck x

[BankLover_not]

Hello hedgey,

 

Thanks for your help, I will look at your links and do some research.

 

BankLover_not

[hedgey06]

This one might help http://www.consumeractiongroup.co.uk/forum/bank-templates-library/114505-bundle-stay-hearing.html along with this one http://www.consumeractiongroup.co.uk/forum/bank-templates-library/115276-skeleton-argument-stay-hearing.html - but I feel one of your strongest arguments is definitely the fact that your claim doesn't include the UTCCR's, which is what the test case is actually looking at. x

[BankLover_not]

Hi Hedgey,

 

That's all very helpful, and I agree that as it is a business account it is not covered by the test case. Natwest even say this in their application!! Not quite sure why the court just doesn't lift the stay, especially as both parties are agreeing to have it lifted!!!! Some sort of court intervention, can't work it out.

 

Once again, thanks very much for your help hedgey, greatly appreciated.

 

BankLover_not

[bambers]

Hi all

 

I now have to complete the allocation questionairre but am unsure which road to go down, the judge said it will be a multitrack claim due to size 17k, so shall I attach the standard terms of disclosure or should I try the new strategy (which mainly seems to be based around personal accounts & smaller claims)?

Also should I be attaching anything else?

 

I'm a bit confused and don't want to make a mistake.

 

thanks in advance

 

Bambers:rolleyes:

[bambers]

Hi Bankhater

 

In respose to your current situation, Natwest sent an agent (not a solicitor) to our hearing to have the decision set aside and the stay applied.

It was clear that the judge was not going to allow the stay due to the account being a business one.

 

What I did was sent a letter to the court by special delivery a few days before the hearing date outlining why the stay should not be applied eg Business account / UTCCRs not relied on/ etc. The time allocated to the hearing was 5 minutes. (it actually took 15mins)

 

The judge had pre- read this and decided a stay was not appropriate. You also need to prepare a schedule of your out of pocket expenses for attending the hearing and you will be awarded them.

 

I understand it is frustrating now that Natwest are saying they also want the stay lifted. I think that they are the ones who could request that judgement be made without a hearing, perhaps you could also request this.

 

hope this helps

 

Bambers

[steven4064]

Hi all

 

I now have to complete the allocation questionairre but am unsure which road to go down, the judge said it will be a multitrack claim due to size 17k, so shall I attach the standard terms of disclosure or should I try the new strategy (which mainly seems to be based around personal accounts & smaller claims)?

Also should I be attaching anything else?

 

I'm a bit confused and don't want to make a mistake.

 

thanks in advance

 

Bambers:rolleyes:

Hi Bambers

 

The 'new' strategy, as you say, is for small claims and is actually based on standard disclosure. That is, it is trying to get the judge to effectively order standard disclosure (or at least the information you would get from standard disclosure) for a small claims hearing.

 

You have various options: Yes, you should include standard terms of disclosure.

You might also consider a draft order for the banks defence to be struck out for taking the p*$$. In that case, in section G of the AQ (Section H if is a N150) youcould put something like

Please find the following documents attached to this allocation questionnaire;

1A) Section G (H) - other information

1B) List of settled cases

1C) Text of order made by Lincoln County Court

1D) Mullen -v- Hackney BC (1997)2 A11ER 906

2A) Draft Order for directions

 

 

This allocation questionnaire and its attachments were sent to the defendant on xx/xx/xx

then attach something like this

1A) Section G or H* – Other Information

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by LincolnCounty court (attachment 1C) in at least 10 cases similar to my own involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

 

2. In the alternative, should the court not be minded to strike out the defence and if the claim is to proceed to allocation, the Claimant respectfully suggests that directions may be made for standard disclosure as per the attached draft order (attachment 2A).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information.

 

As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact. Accordingly, I respectfully would estimate that the hearing of the claim should last no longer than one hour.

 

(* Section G in N149, H in N150 AQ)

The settled cases and case law are available on this site. If you can't find them, I'll point out where they are. Or, you could just go with standard disclosure.

[bambers]

Thanks so much Steven, thats reassuring advice, I'll get on with it now.

 

Will keep posting progress for benefit of Bank Hater, who is just a few steps behind me!

 

kind regards

 

Bambers

[steven4064]

Here are the attachments:

 

1A) In my previous post

1B) List of settled cases

1C) Text of order made by Lincoln County Court

1D) Mullen -v- Hackney BC (1997)2 A11ER 906

2A) Draft Order for directions - You already have this (standard disclosure)

[bambers]

Steven

 

Just a quick query on the AQ. (its an N150)

F. Proposed Directions - does the attached Draft Direction count & therefore answer - yes? (q. Have you attached a list of the diections you think appropriate for the managment of the claim?)

 

can't work it out from the guidance:-?

 

thanks

 

Bambers

[steven4064]

That's what I did - ticked 'yes' (and 'no' for agreed with other parties)

 

Just a bit of extra detail. Our section H for our NatWest claim actually had 3 options:

 

1) order to stirke out for taking the P*$$

2) order to comply with CPR 18 request (sent earlier)

3) order for 'new' directions (this was a personal account)

 

the court actually went with option 3. And NW then caved in - which is the intention of all 3 options of course.

[BankLover_not]

Hi Bambers,

 

Thank you very much for that piece of advice, it has certainly given me with a bit more confidence and shed some light on the matter. Feel free to carry on using this thread if it helps your own claim. Even though I am a novice at all this stuff if I can help in anyway then please let me know.

 

Just to clarify when you did go to the hearing, other than the business claim and UTCCR point, what else did you rely on or was it just that point.

 

Once again, many thanks for sharing your experience.

 

BankLover_not