Natwest have taken us to court - please help

[saintly_1]

The defence and counter claim is what you need not the N224 (Amendment application:)

[peep]

I am posting my defense and counter claim so you can see what i have.

 

 

In the Northanmpton County Court

Claim number: ********

 

 

 

 

 

Between

 

NatWest - Claimant

 

and

 

 

************ - Defendant

************ - Defendant

 

DEFENCE

 

 

1. We deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

 

2. No notice of the intent by the claimant to terminate or default the alleged debt, or to pursue a legal action was received before the claimant commenced such action, neither has adequate information been provided to investigate the claim.

 

3. We object that the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard we wish to draw the courts attention to the following matters;

 

a) A copy of any default or termination notice has not been supplied with the claim

 

b) a copy of the original credit agreement or terms of accounts have not been supplied with the claim

 

c) A description of the nature of any breach has not been supplied with the claim.

 

d) No documents or evidence have been provided to show the amount currently liable under any agreement.

 

4. We deny that we are liable to the claimant as stated in the claim or at all. This claim appears to arise from accounts we opened on or aroundSeptember 2003, with the claimant.

 

5. During the operation of these accounts the claimant debited substantial charges to us in respect of late payments, or returned item fees. It is our belief that these charges were unlawful, for the reasons discussed in our counter claim.

 

6. Further, it is our understanding that a test case has been brought by the OFT against the claimant on substantially the same grounds as discussed at paragraph 5.

 

7. It is our understanding that as a defence to the OFT action, the claimant has, or intends to, file a defence stating that the charges mentioned are not demanded on breach of contract, but are instead service charges in receipt of a service. Further, the claimant has on numerous occasions publicised its belief that this is indeed the case, and it is our understanding that the claimant has filed many defences to individual claims on these grounds.

 

8 indeed, our understanding at the time that the accounts were opened, was that late payment was a service under the contract as represented by the claimant, and that we were entitled to assert this contractual right Consequently, we believe that the claimant should be stopped from claiming that late payment is, or can constitute, a breach of contract.

 

9. If the court should decide that late payment is a breach of contract, and that the claimant is therefore entitled to bring this action, then we assert that these charges were unlawful interest in breach of Consumer credit act 1974 s93.

 

”Interest not to be increased on default.

The debtor under a regulated consumer credit agreement shall not be obliged to pay interest on sums which, in breach of the agreement, are unpaid by him at a rate—

(a)

where the total charge for credit includes an item in respect of interest, exceeding the rate of that interest, or

 

(b)

in any other case, exceeding what would be the rate of the total charge for credit if any items included in the total charge for credit by virtue of section 20(2) were disregarded.”

 

and that any charges in respect of them have been paid under a mistake of law, and that we are entitled to restitution in respect of the difference between these payments (and any interest on these payments) and the actual liquidated costs incurred by the claimant.

 

10. Further, any termination notice or default notice would be inaccurate, to the extent described in paragraph 9, and consequently we respectfully submit that the court is not entitled to enforce the agreement until this mistake has been rectified. There are many examples where courts have found that any inaccuracy invalidates a default notice, for example Woodchester v Swaine where it was found that “Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid. A similarly strict approach was taken in this court in relation to a preliminary notice under Case D of the Agricultural Holdings (Notice to Quit) Act 1977 in Dickinson v Boucher [1983] 269 EGLR 1159..”

 

11. It is noted that if a default is applied that is inaccurate, not only is the claimant prevented from enforcing the debt, but that we have a claim for damages caused by unlawful termination of contract in line with Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

 

 

 

 

Claim No ********

 

IN THE NORTHAMPTON COUNTY COURT

 

BETWEEN

 

*********

*********

 

Claimants

 

and

 

NatWest BANK PLC

 

Defendant

 

PARTICULARS OF CLAIM

 

 

 

 

1. Since about September 2003 the Claimant and the Defendant ("the Bank") have agreed ("the Banking Contract") that the Bank would operate for the Claimant accounts, numbered (sort code) ******** and (sort code) ******** ("the Accounts") at the March branch of the Defendant bank.

 

2. The Accounts were current accounts, under which, at all material times, in substance:

 

(1) The Bank agreed to hold monies deposited by or for the Claimant, and to make payments to and on behalf of the Claimant;

 

(2) In return, the Bank was entitled to the use of the monies so deposited, and to be paid interest on monies borrowed by the Claimant.

 

3. At all material times the Account was subject to the Bank's standard terms and conditions ("the Standard Terms"). The Standard Terms were varied from time to time when the Bank issued revised terms.

 

Summary

 

 

 

4. The Bank has debited charges from the Accounts in respect of unauthorised overdrafts, unpaid items and paid referrals, relying on terms of the Banking Contract which were either: (1) a penalty payable on breach of contract and unenforceable at common law and/or (2) unfair terms within the Unfair Terms in Consumer Contract Regulations 1999 (The Regulations") and unenforceable. The Claimant is accordingly entitled to repayment of the sums wrongly debited and interest.

 

The Charges

 

 

 

 

5. At all material times, the Standard Terms, as revised, provided as follows (the best particulars the Claimant can give pending disclosure are set out in Schedule 1).

 

(1) The Claimant would enjoy free banking for everyday services while in credit, and instant access to the money in the Account

 

(2) If the Claimant arranged an overdraft with the Bank, the Bank would charge interest at the rate applicable to a prearranged overdraft, at certain charging dates.

 

(3) Until November 2006 the Standard Terms provided that, if the Claimant did not agree with the Bank a sufficient overdraft to meet the payment of a cheque, direct debit or other item, in advance of it being presented to the Bank for payment from the Account, and the Bank paid that item, and as a consequence the Account went into unarranged overdraft:

 

a. the Claimant was in breach of the Banking Contract,

b. the Bank would be entitled to charge interest at a standard higher rate of interest than the rate for a prearranged overdraft and a fee ("the Unarranged Borrowing Fee and the Paid Referral Fee"). The fees were £28 and £30 respectively.

 

(4) if the Bank returned a cheque, direct debit or standing order or other item unpaid, the Bank would be entitled to a fee in respect of each item (an "Unpaid Item Fee"). The Unpaid Item Fee was £38.

 

(5) Since Nov 2006 the Standard Terms have changed so as to provide that, in the circumstances referred to above:

a. the Claimant would be treated as informally requesting an overdraft without having agreed an overdraft in advance, and,

b. if the Bank agreed to it, the Bank would provide an overdraft or an increase in an overdraft limit to cover the item. c. If the Bank paid the item, the Bank would be entitled to charge the Unauthorised Borrowing Fee in addition to the paid referral fee. The Unauthorised Borrowing Fee is currently £28, the Paid referral fee is £30. and if the Bank returned a cheque, standing order or other item unpaid, the Bank would charge an Unpaid Item Fee. The Unpaid Item Fee is currently £38.

 

Penalty

 

 

 

6. The Unauthorised Borrowing Fee payable until Nov 2006 was payable on breach of contract by the Claimant.

7. The amount of the said Unauthorised Borrowing Fee exceeded any genuine pre-estimate of the damage which would be suffered by the Bank in dealing with a request for an unauthorised overdraft.

8. In the premises until Nov 2006 the Unauthorised Borrowing Fee was punitive and a penalty and unenforceable.

 

The Regulations

 

9. At all material times the Claimant was a consumer within the Regulations.

 

10. At all material times the terms of the Banking Contract providing for the Charges were unfair within Regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations under the Banking Contract.

 

11. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Banking Contact, and of each revision to the Standard Terms.

(1) Until November 2006 the Unauthorised Borrowing Fee was a penalty for breach of contract.

(2) The Charges exceeded the costs which the Bank could have expected to incur in dealing with unauthorised borrowing and/or an unpaid item. They would cover to an extent the cost of providing banking to other customers who did not incur the Charges.

(3) The Charges could be imposed repeatedly, with interest at the Higher Rate of Interest charged on top.

(4) The cumulative effect of the above would be to increase the debt burden on the customer who incurred Charges, and make it more likely that a further fee and interest would be charged.

(5) The Charges would penalise the customer who had little or no credit. The customer who incurred Charges was likely to be the least able to afford to pay the charge.

(6) The terms relating to Charges were standard terms; they would not be individually

negotiated.

(7) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.

(8) As the Bank knew, the customer had no means of assessing the fairness of the Charges.

(9) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Banking Contract by subordinating the customer’s interests to those of the Bank in a way which was inequitable.

 

12. Without prejudice to the burden of proof, the Claimant will contend that regulation 6 of the Regulations does not apply to the terms for the Charges, and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Banking Contract (which is set out in paragraph 3 above).

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money). Until Nov 2006 the Unauthorised Borrowing Fee was unfair because it was a penalty for breach of contract. Further or alternatively, Regulation 6 only applied to services which were the core subject matter of the contract, which did not include the Charges. Further or alternatively, the Charges were unfair because of their operation and effect as set out in the preceding paragraph, not because they were not value for money.

 

13. By reason of the said matters the terms were not binding under Regulation 8 of the Regulations.

 

14. The Bank wrongly debited the Accounts with Charges totalling some £xxxx between 15th August 2006 and 30th March 2008. Particulars appear from Schedule 2.

 

15. On 17th November 2006 the Claiment firstly demanded repayment of the sums wrongly debited.

 

16. The defendant has not repaid them or any of them.

 

And the Claimant claims

 

(1) A declaration that the sums totalling £xxxx.xx have wrongly been debited from the Account

(2) Payment of the said sum of £[as above]. charged by the Bank thereon.

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of wrongful debit to date in the sum of £xxx.xx, and at the daily rate of xx until judgment or sooner payment.

(4) Court costs.

 

I believe the facts stated in these particulars, comprising of 6 pages, are true.

 

Dated

 

Signed

 

 

 

Schedule 1

 

NatWest personal banking Terms and Conditions Sept 2006

 

I have deleted these for this post as i have not ade any amendments to them, although it will be included in my paperwork.

 

 

 

I wanted to claim contractual interest but cant find anything to help me do this, and i also need to request that they remove all the default notices that have been made againts our credit files. Again any wording about this would be greatly appreciated.

 

many thanks

[peep]

I have a little list of things that i cant find the answers to -

 

1) How much are the court costs?

2) What forms do i submit my defence and counterclaim on? Got it N9B

3) How do i claim contractual interest or the wording for it?

4) When do I demand the bank remove all the default notices that have been made againts our credit files. Again any wording about this would be greatly appreciated.

5) How do i word into my counterclaim that the spreadsheets and list of charges claimed are not complete to date as the info required to do them has not been forthcoming from the bank yet.

 

peep xxx

[gh2008]

I have a little list of things that i cant find the answers to -

 

1) How much are the court costs?

Have a look on the Courts website or give them a ring

2) What forms do i submit my defence and counterclaim on?

I found this on the Court website http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=659

3) How do i claim contractual interest or the wording for it?

I'm not sure that you should be worrying about this should you?? You're just claiming the whole lot aren't you? according to your earlier posts the account was not used and the entire debit balance is made up of unlawfull charges ....

4) When do I demand the bank remove all the default notices that have been made againts our credit files. Again any wording about this would be greatly appreciated.

Have a look at car2403's threads, he has been very successful lately - but this is even more work and you need to do a lot of it yourself. Again I may not worry about that bit right at the moment

5) How do i word into my counterclaim that the spreadsheets and list of charges claimed are not complete to date as the info required to do them has not been forthcoming from the bank yet.

Counterclaim for the full amount outstanding and state that you cannot detail the charges as, although the information has been requested the claimant seems to be trying to obstruct your case by delaying the delivery of the information requested.

peep xxx

 

I don't know if that's of much help as i haven't been there yet....

[nicklea]

hi peep,

 

I was rather concerned by a couple of things in your defence. See below in red.

 

I've taken your defence and tried to rearrange it a bit - see what you think.

 

When you put in a defence it will automatically be transferred from Northampton to your local court so you don't need to worry about that.

 

 

First of all – is the claim in joint names? You keep saying WE, if there is just one defendant (you or your partner) then you should be saying I instead of we.

DEFENCE

 

 

1. We deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

 

2. No notice of the intent by the claimant to terminate or default the alleged debt, or to pursue a legal action was received before the claimant commenced such action, neither has adequate information been provided to investigate the claim.

 

If this was issued in Northampton Court then they don’t need to do this so you can’t use this

3. We object that the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard we wish to draw the courts attention to the following matters;

 

a) A copy of any default or termination notice has not been supplied with the claim

 

b) a copy of the original credit agreement or terms of accounts have not been supplied with the claim

 

c) A description of the nature of any breach has not been supplied with the claim.

 

d) No documents or evidence have been provided to show the amount currently liable under any agreement.

4. We deny that we are liable to the claimant as stated in the claim or at all. This claim appears to arise from accounts we opened on or around September 2003, with the claimant.

 

5. During the operation of these accounts the claimant debited substantial charges to us in respect of late payments, or returned item fees. It is our belief that these charges were unlawful, for the reasons discussed in our counter claim.

 

6. Further, it is our understanding that a test case has been brought by the OFT against the claimant on substantially the same grounds as discussed at paragraph 5.

 

7. It is our understanding that as a defence to the OFT action, the claimant has, or intends to, file a defence stating that the charges mentioned are not demanded on breach of contract, but are instead service charges in receipt of a service. Further, the claimant has on numerous occasions publicised its belief that this is indeed the case, and it is our understanding that the claimant has filed many defences to individual claims on these grounds.

 

It seems to me like you are arguing for the bank in this point – you do want it to be a breach of contract

8 indeed, our understanding at the time that the accounts were opened, was that late payment was a service under the contract as represented by the claimant, and that we were entitled to assert this contractual right Consequently, we believe that the claimant should be stopped from claiming that late payment is, or can constitute, a breach of contract.

 

 

[nicklea]

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx.

 

2. The claimants particulars of claim as very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16

 

3. Further more the claimant offers no particulars in relation to how the sums are calculated.

 

CPR Request

 

4. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice. (Attached marked CCM X)

 

5. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially since I am a Litigant in Person in this case. All I have received in relation to my request is ................... ADD WHAT EVER THEY SENT***********

 

6. I respectfully request that the claimant be ordered to disclose the requested documentation that has not been disclosed so far and that the court grant permission to amend this defence accordingly.

 

Background

 

7. Since about September 2003 the Defendant and the Claimant ("the Bank") have agreed ("the Banking Contract") that the Bank would operate for the Defendant accounts, numbered (sort code) ******** and (sort code) ******** ("the Accounts") at the March branch of the Claimant bank.

 

8. The Accounts were current accounts, under which, at all material times, in substance:

 

(1) The Bank agreed to hold monies deposited by or for myself, and to make payments to and on behalf of myself;

 

(2) In return, the Bank was entitled to the use of the monies so deposited, and to be paid interest on monies borrowed by myself.

 

9. At all material times the Account was subject to the Bank's standard terms and conditions ("the Standard Terms"). The Standard Terms were varied from time to time when the Bank issued revised terms.

 

 

 

The default notice

 

10. Since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist there are procedures which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

11. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

12. Notwithstanding point 11, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

13. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Counterclaim

 

14. The Bank has debited charges from the Accounts in respect of unauthorised overdrafts, unpaid items and paid referrals, relying on terms of the Banking Contract which were either: (1) a penalty payable on breach of contract and unenforceable at common law and/or (2) unfair terms within the Unfair Terms in Consumer Contract Regulations 1999 (“The Regulations") and unenforceable. I am accordingly entitled to repayment of the sums wrongly debited and interest.

 

The Charges

 

15. At all material times, the Standard Terms, as revised, provided as follows (these are the best particulars we can give pending disclosure).

 

(1) I would enjoy free banking for everyday services while in credit, and instant access to the money in the Account

 

(2) If I arranged an overdraft with the Bank, the Bank would charge interest at the rate applicable to a prearranged overdraft, at certain charging dates.

 

(3) Until November 2006 the Standard Terms provided that, if I did not agree with the Bank a sufficient overdraft to meet the payment of a cheque, direct debit or other item, in advance of it being presented to the Bank for payment from the Account, and the Bank paid that item, and as a consequence the Account went into unarranged overdraft:

 

a. I was in breach of the Banking Contract,

b. the Bank would be entitled to charge interest at a standard higher rate of interest than the rate for a prearranged overdraft and a fee ("the Unarranged Borrowing Fee and the Paid Referral Fee"). The fees were £28 and £30 respectively.

 

(4) if the Bank returned a cheque, direct debit or standing order or other item unpaid, the Bank would be entitled to a fee in respect of each item (an "Unpaid Item Fee"). The Unpaid Item Fee was £38.

 

(5) Since Nov 2006 the Standard Terms have changed so as to provide that, in the circumstances referred to above:

a. I would be treated as informally requesting an overdraft without having agreed an overdraft in advance, and,

b. if the Bank agreed to it, the Bank would provide an overdraft or an increase in an overdraft limit to cover the item. c. If the Bank paid the item, the Bank would be entitled to charge the Unauthorised Borrowing Fee in addition to the paid referral fee. The Unauthorised Borrowing Fee is currently £28, the Paid referral fee is £30. and if the Bank returned a cheque, standing order or other item unpaid, the Bank would charge an Unpaid Item Fee. The Unpaid Item Fee is currently £38.

 

Penalty

 

16. The Unauthorised Borrowing Fee payable until Nov 2006 was payable on breach of contract by I.

17. The amount of the said Unauthorised Borrowing Fee exceeded any genuine pre-estimate of the damage which would be suffered by the Bank in dealing with a request for an unauthorised overdraft.

18. In the premises until Nov 2006 the Unauthorised Borrowing Fee was punitive and a penalty and unenforceable.

 

The Regulations

 

19. At all material times I was a consumer within the Regulations.

 

20. At all material times the terms of the Banking Contract providing for the Charges were unfair within Regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations under the Banking Contract.

 

21. Without prejudice to the burden of proof, I will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Banking Contact, and of each revision to the Standard Terms.

(1) Until November 2006 the Unauthorised Borrowing Fee was a penalty for breach of contract.

(2) The Charges exceeded the costs which the Bank could have expected to incur in dealing with unauthorised borrowing and/or an unpaid item. They would cover to an extent the cost of providing banking to other customers who did not incur the Charges.

(3) The Charges could be imposed repeatedly, with interest at the Higher Rate of Interest charged on top.

(4) The cumulative effect of the above would be to increase the debt burden on the customer who incurred Charges, and make it more likely that a further fee and interest would be charged.

(5) The Charges would penalise the customer who had little or no credit. The customer who incurred Charges was likely to be the least able to afford to pay the charge.

(6) The terms relating to Charges were standard terms; they would not be individually

negotiated.

(7) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.

(8 )As the Bank knew, the customer had no means of assessing the fairness of the Charges.

(9) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Banking Contract by subordinating the customer’s interests to those of the Bank in a way which was inequitable.

 

22. Without prejudice to the burden of proof, I will contend that regulation 6 of the Regulations does not apply to the terms for the Charges, and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Banking Contract (which is set out in paragraph 3 above).

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money). Until Nov 2006 the Unauthorised Borrowing Fee was unfair because it was a penalty for breach of contract. Further or alternatively, Regulation 6 only applied to services which were the core subject matter of the contract, which did not include the Charges. Further or alternatively, the Charges were unfair because of their operation and effect as set out in the preceding paragraph, not because they were not value for money.

 

23. By reason of the said matters the terms were not binding under Regulation 8 of the Regulations.

 

24. The Bank wrongly debited the Accounts with Charges the exact amount of which will be able to be detailed when the Claimant complies with my CPR Part 18 requestbetween 15th August 2006 and 30th March 2008.

 

25. On 17th November 2006 I firstly demanded repayment of the sums wrongly debited.

 

26. The defendant has not repaid them or any of them.

 

And I claim

 

(1) A declaration that the Chargeshave wrongly been debited from the Account

(2) Payment of the said sum that will be detailed when the Claimant complies with my CPR Part 18 requestcharged by the Bank thereon.

(3) I also claim compound interest at the claimant’s standard rate for overdrafts for the restitution of the time value of the charges and interest thereon on the basis that the Claimant has been unduly enriched by having the use of this money. The authority for this is Sempra Metals v Inland Revenue Anor. [2007] UKHL 34. Lord Nicholls of Birkenhead in the leading statement said:-

“There can only be one answer on this important question of law. Nobody has suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest is necessary to achieve full restitution and, hence, a just result. I would hold that, in the exercise of its common law restitutionary jurisdiction, the court has power to make such an award.”

(4) In the alternative to (3) above, if the court should find that I am not entitled to compound interest then Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of wrongful debit to date anduntil judgment or sooner payment.

(4) Court costs.

 

I believe the facts stated in these particulars are true.

 

Dated

 

Signed

[ukaviator]

To be able to start your counterclaim, you need to fill in the form N11 and file as The Defendant. You can defend the claim and go on the offensive by making a counterclaim, technically known as a "Part 20" claim because it is regulated by Part 20 of the CPR. (Civil Procedure Rules).

 

Once the amount you are claiming from charges is known, the refund is deducted from the amount you owe, fill in form N9A, it's an admission form, and should be filled in very carefully as the details on this form will be used to decide what payments should be made to the creditor.

 

The £300 left to pay after the charges are refunded, are you able to settle this amount straight away?

 

The list of fees can be found here:

 

Fees

 

You add a paragraph in your Defence and Counter claim, as well as the POC when you file your Counterclaim.

 

I would use the Sempra Metals case for your Compound interest claim.(Sempra Metals v Inland Revenue Anor. [2007] UKHL 34).

That can be found here:

 

http://www.consumeractiongroup.co.uk/forum/cases-library/106112-sempra-metals-irc-july.html

[peep]

Thank you both for the above information, it is priceless and very much appreciated.

 

I am currently filling in form N11 for my defence.

Is the counterclaim put on this form as above or is there a different form for it to be place on?

[nicklea]

Put it all on the same form for your defence. Your counterclaim is, essentially, part of yuor defence

[peep]

Nicklea

 

Thank you so much for all your help xxxxxx

[peep]

Just one more query before i send this paperwork in, I have just spoken with the courts who stated that i have to specify an amount in my counterclaim or they could charge me over £1000.

I queried this and explained baout not having been furnised by the defendant as explained above but she said that we had to specify the amount. or they wouldnt know how much to charge us.

 

Any ideas on what i should do?

 

 

peep

[ukaviator]

Hi

 

It maybe an idea to call your bank and ask the person there for the info over the phone. When you call don't type your account number in, or the call will be sent elsewhere or to collections. If you just wait a few seconds, one of their staff will answer. Explain that you need your information now, they may help. My friend did this over the weekend with Capital One, and got everything he needed over the phone with 1 call.

 

Have you completed the defence yet?

[peep]

Unfortunatle i tried to do this last Friday and was told that they had no files on my accounts, as my accounts are with Shoosmiths.

We pressed the issue but the woman just was not having any of it.

 

I have completed my defence now and its ready to post (recorded delivery) and a copy to shoosmiths.

 

Its just this one point thats stopping me now because i may have to amend it if she is right.

 

Nothing is ever simple

 

Many thanks

[ukaviator]

The amendment would cost about £35 to do. Have you tried Shoosmiths for your info?.

[pt2537]

Unfortunatle i tried to do this last Friday and was told that they had no files on my accounts, as my accounts are with Shoosmiths.

We pressed the issue but the woman just was not having any of it.

 

I have completed my defence now and its ready to post (recorded delivery) and a copy to shoosmiths.

 

Its just this one point thats stopping me now because i may have to amend it if she is right.

 

Nothing is ever simple

 

Many thanks

 

Peep,

 

you dont need to send a copy to shoosmiths, the court will do that .

[peep]

Ok - here we go for round two

 

Today we have received the Allocation Questionnaire (small claims track).

 

We are the defendants in this case so i was wondering if the paperwork has to be filled in differetly then if we are the claiment.

 

We have completed a defense and counterclaim which have previously been submitted.

 

Any advice would be appreciate

[peep]

Bumping for some advice please

[saintly_1]

No the paperwork is filled in just the same http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

 

saint

[peep]

As the defendant in this claim is there a fee i have to pay for this allocation questionair?

It says not on the form but the site says differently.

 

Thanks

[pt2537]

if you are just the defendant, and there is no counter claim, then No there is no fee payable

 

if you are counterclaiming for charges etc then you will need to pay a fee

[peep]

Thanks for the reply - the fee payment will be sent, just as well i asked.

 

 

 

One last thing - do i send a copy of the paperwork to Shoosmiths as this time i am enclosing a schedule of charges that i am counter claiming?

Would if hurt if i did?

 

thanks

 

peep

[peep]

Hey guys - well today we have received 2 letters this morning from Shoosmiths and i must admit i am now totally miffed.

 

The first letter is to us and says -

 

 

Dear Sir and Madam

 

(Accounts and claim details)

 

We write further to the above matter and our letter dated 27th March

 

Please be advised that to date we have still yet to receive the requested information from our client to allow us to respond to your part 18 Request and are currently chasing them the same.

 

We hope to be in a position to provide you with the applicable documentation by 4pm on 30th May 2008

 

Finally please find enclosed a copy letter we have today filed with the court for your records.

 

Yours faithfully

 

Shoosmiths

 

 

The attached letter says -

 

Dear Sirs

 

(Account and court details)

 

We refer to the above matter and the allocation questionnaire that is due tobe filed on or before 2 May 2008.

 

On considering the Defendants Defence and countercliam we note that the issues raised by the Defendants relate to the application of bank charges. It would seem that the defendants counterclaim is in fact a claim for set-off and not a counterclaim as the defendants suggest. As you will be aware the issue of bank charges is currently being considered by the commercial court in the case OFT-V-Various institutions to determine the issues of legal principle in relation to the recovery of bank charges debited to bank current accounts. In the circumstances we would be obliged if the court would make an order as per the attached.

 

In the circumstances of our request the Claiment does not intend to file an allocation questionnaire or defence to the counterclaim at this stage in the interest of costs and proportionality. We confirm no discourtesy is intended to the court.

 

Finally, the court will note that the defendants have requested disclosure of various documents pertaining to this matter. We have requested the same from our client and are endeavouring to provide disclosure as requested.

 

If we can be of any further assistance to the court then please do not hesitate to contact us.

 

Yours faithfully

 

Shoosmiths

[gh2008]

what's the order they have requested?

[peep]

I have no idea what order they have applied for, but i thought it may have been a Stay?

 

so todate they have failed to provide any information whatsoever to us or the court other then the initial court notice.

 

They applied for court action without having any evidential documentation to comply with the proceedings and bring about their case.

 

They have received from us a request for repayment of charges, LBA and schedules of charges caimed, on multiple occasions prior to and during this court claim. Therefore they knew that we were initiating court proceedings and they requested that we postpone them until the test case is heard. Therefore they are missleading the court that we are infact setting off instead of having a valid claim and defence.

 

They have no intention of submitting a counterclaim or defence - can they actually choose to do this without any penalty?

 

I would like to appeal against the request for a stay but cant find anything that helps me to do this.

 

Again any help in drawing up a letter in response to this would be greatly appreciated

 

Also now that the claim has been transfered to my local court - is there any way of following the status of it through MCOL?

 

Peep xx

[citizenB]

I too would be well n truly miffed peeps. The tricks these rotters get up to are endless. {{{}}}