Reply to stock defence and Part 18 issues

[rbrears]

I have been meaning to post this for a while now but just haven't had the time. I'm in a bit of a rush now so won't be going into massive detail but will be back to this thread from time to time if anyone needs explanations/questions.

 

What follows is long - get a cuppa

 

I sued Crap West and, as they seem to be doing in all cases, (as other banks are also doing), their defence said I hadn't pleaded my case fully enough, blah blah, and their lawyers served a Part 18 request for further information of my claim.

 

What follows is:

 

1) An AMENDED Particulars of Claim (which I will call POC from now on in this post). . Given that the bank's lawyers said the claim needed to be properly pleaded I served this on them and asked them, given their request, to agree to the filing of an amended POC. They agreed. (You have to either get the Defendant's agreement or the court's permission). I therefore submitted it to the court and had asked the bank's lawyers to confirm in writing that they consented to the filing of the amended POC, which they did. I sent in a copy of their letter with the amended particulars of claim when I sent it to the court. Voila - amended POC filed and agreed without needing to make an application to the court and pay a fee. (If you file one it will be sealed by the court and returned to you to formally serve the sealed copy on the Defendant).

 

2) A Part 18 request of my own - served on them in writing with the replies to their part 18 request. I gave them 14 days to reply - they settled before the time limit ran out.

 

Here is the Amended POC (sorry that the paragraph formatting hasn't come out properly - no idea how to use the tools here to change fonts, etc - sorry):

 

 

IN THE NORTHAMPTON COUNTY COURT CLAIM NO: XXXXXXXX

 

Between

 

XXXXXXXXXXXXXXX Claimant

And

NATIONAL WESTMINSTER BANK PLC Defendant

 

AMENDED PARTICULARS OF CLAIM

 

 

1. The Claimant has the following account with the Defendant:

 

a) A personal Current Plus Account no. XXXXXXXX sort code XXXXXX (“the Account”);

 

b) During the last 6 years the Defendant automatically debited charges to the Account in the sum of £XXXXXX

 

Full details of each and every charge applied to the accounts are already in the possession of the Defendant, from whom the Claimant obtained such information prior to this claim. However details of all charges, the amounts, dates debited and a description of each is attached to this Particulars of Claim.

 

3. a) The charges are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed alleged actual loss to the Defendant; and instead unduly enrich the Defendant which applies charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of i) the The Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e) and ii); the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and iii) the common law relating to liquidated damages and penalties in contracts.

 

4, a) The Claimant is unable to specifically plead the term of his contract with the Defendant upon which the Defendant relies in levying charges since the Claimant has never been provided with the Defendant’s Terms and Conditions for personal banking. However the Claimant is able to note from the Defendant’s website that it has produced standard terms and conditions for the Account, known as Personal Banking Terms and Conditions, (“the Personal Terms”). Copies of the Personal Terms have been supplied to the Defendant and will be referred to by the Claimant at the trial of his claim.

 

The Personal Terms contain provisions which are, as far as the Claimant is able to identify, the contractual terms upon which the Defendant relies in levying charges to the accounts. The Personal Terms do not contain numbered paragraphs that can be easily referred to and the Claimant therefore sets out the relevant terms below:

 

From the Personal Terms:

“Service charges

 

Service charges for operating the account are charged as detailed in the promotional leaflet insert relating to the account and are subject to annual review. If any changes are made, details of the revised charges will be sent to you at least one month before the implementation date for the changes.

 

Additional services and charges

 

We are entitled to charge for additional services provided to you, whether these relate directly to the account or not. The current charges for the most common additional services are detailed in a separate leaflet ‘A guide to Personal Current Account Fees’ available from any of our branches; details of services not included are also available from any branch. These additional charges, which are normally paid for at the time the service is provided, are subject to annual review. If any changes are made, a revised price list of the most common services will be sent to you at least 30 days prior to the date of their implementation. “

 

The Personal Terms contains the following provision relating to operations on the account.

 

“Operations on the Account

You must always ensure that the cleared balance (plus, where applicable, any unused agreed overdraft facility) on your account at 3.30pm on the working weekday before the day:

– cheques you have issued are presented for payment

– standing orders and direct debits are due to be paid

– you withdraw money from a cash machine

– you carry out a Switch/Maestro or Solo transaction

– you request us to make payments by any electronic means or by telephone

– any other transactions are due to take place, including the application of interest and charges

is sufficient to cover payment of all these transactions.

 

If a sufficient cleared balance (plus, where applicable, any unused arranged overdraft facility) to cover payment is not available on your account by 3.30pm on the working weekday before the day on which these transactions are due to take place, payment of some or all of the transactions may be refused.

However, if at any time such transactions would result, without prior arrangement, in the account being overdrawn or the arranged overdraft limit being exceeded, we may exercise our sole discretion and without contacting you, allow an overdraft to be created or allow the borrowing limit to be exceeded. In these circumstances, the new or excess overdraft is an unarranged overdraft.”

 

b) The Claimant contends that the term “Additional Services and Charges” is not a core term of the contract and therefore falls within the remit of The Unfair Terms In Consumer Contracts Regulations 1999 and that the term is subject to the Unfair Contract Terms Act and the common law as set out in paragraph 3b) of this Particulars of Claim.

 

c) The Claimant avers that the circumstances giving rise to the levying of charges by the Defendant are all breaches of the provision relating to Operations on the Account and which sets out a mandatory requirement in respect of the maintaining by the Claimant of cleared balances on the accounts. As such failure to adhere to that contractual requirement is a breach of the agreement between the Claimant and the Defendant.

 

d) The Claimant further contends that the Defendant is only entitled to be compensated by the amount it would be able to secure in a claim at common law in the event that the Claimant was individually sued for breach of contract by the Defendant. Accordingly the charges that result from the breaches are by their nature as set out in paragraph 3a) of this Particulars of Claim and are therefore unreasonable and/or unenforceable and/or in terrorum in respect of each and every occasion that they have been debited to all of the Claimant’s accounts.

 

e) The Claimant avers that the Provisions relating to “Service Charges and “Additional Services and Charges” provide no details whatever of the extent or type of services that might be provided and that it was not clear from the contract to the Claimant at the time the contract was made that the Defendant would be providing anything other than a free banking service. Further, the leaflets setting out charges referred to therein were not made available to the Claimant at the time the contract with the Defendant was made and are therefore not incorporated into the contract. To the extent that they may be found to be so incorporated and therefore form part of the contract between the Claimant and the Defendant the Claimant avers that the items referred to in such leaflets do not constitute service charges but punitive penalty or default charges for acts of default. Further the Claimant contends that these show that the Defendant has structured the Claimant’s accounts in order to present events of default spuriously as additional services for which a charge may be made and that any puported fees for “services” or “additional services” are no more than disguised penalties. The Claimant avers that no additional services are supplied by the Defendant in realtion to acts of default or at all.

 

f) The Claimant further avers that the sole discretion referred to in the provision relating to Operations on the Account does not refer to or make clear that the Defendant is providing an additional banking service to the Claimant in exercising that discretion, nor that a charge for such alleged “service” will be made. The Claimant also contends that the discretion referred to is limited to allowing payments to be made where insufficient funds are or were in the Account and therefore relates only to the Defendant’s “paid referral fee” and that this discretion has no connection with fees applied immediately for refusing payments or for unarranged borrowing/excess borrowing fees applied later to the Account for being overdrawn or exceeding any overdraft limit in the preceding month, card misuse fees or other fees.

 

5. a) To the extent the it is found that the Defendant’s charges are for the provision of banking services the Claimant contends that the price thereof is unreasonable pursuant to section 15 of the Supply of Goods and Services Act 1982.

 

6. Accordingly the Claimant claims:

a) the return of the amounts debited to all the Claimant’s accounts in the sum of £XXXXXX;

b) Court costs;

c) Interest at 8% per annum pursuant to section 69 of the County Courts Act 1984 on the charges debited to the Account in the sum of £XXXXXX and continuing at the daily rate of £XXXXX until judgment or sooner payment

I believe the facts stated in this Amended Particulars of Claim are true

 

Signed…………………………………….

Claimant

Dated this day of 2006

 

 

Ok - Here's the PArt 18 request:

 

 

 

1. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence please provide full details (with all relevant supporting documentation) of:

 

 

a) any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim;

 

b) how charges are applied to the account (whether automatically or by some other means) and when;

 

c) the Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant;

 

d) the justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

 

2. Of paragraph ? of the defence in which the Defendant avers that the charges are applied in return for the provision of a banking service to the Claimant:

 

a) Please identify each and every such service referred to in the defendant’s terms and conditions and identify the charges, by reference to those terms and conditions, that the Claimant is required to pay for each service identified.

 

b) Please confirm what steps are taken by the defendant in providing the alleged services referred to in the defence. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the Claimant.

 

c) Please confirm whether charges are applied automatically.

 

 

 

Ok thats it. I hope this is of use not only to my co-Nat West litigants but to all of you dealing with other banks. Obviously if you are not a Nat West cutomer you will need to substitute the quoted paragraphs of your own bank's terms and conditions and make sure that the same points I have made about them still apply. Obviously you may need to change the wording somewhat.

 

Hope this helps

 

And good luck all

 

Oh yes - use this "template" at your own risk - if in doubt take advice.

[Shanks]

Thanks for a great and very informative post.

 

It's always good to hear of yet another success, and yes I might just borrow a couple of those lines if you don't mind :D

 

Cheers

[Ewan]

Excellent post. This will come in handy with RBoS as well.

 

What responce did you get from your part 18 req.? Were they able to provide any evidence of manual intervention?

[texaspete100]

Excellent Post. Will be using this once I get my letter from Corbetts.

 

Can't wait to issue!!!

[rbrears]

I didnt get a reply to the Part 18 request - the case was settled.

[Tobes]

Do you think I could send a part 18 request for my Egg Credit Card now that they have submitted a defence? At what point can I send it and what is part 18 exactly - is there more info on this excellent site?

 

Cheers!

[rbrears]

Yes you can submit a part 18 now since it is a request for further information about their defence. Note that Part 18 is not intended to apply to small claims, but then your case is not a small claim until allocated by the court after the submission of allocation questionnaires.

 

If you want to look at the CPR on Part 18 you can get all the Civil Procedure Rules at LexisNexis® Butterworths | Greenbook.co.uk | index

[Tobes]

thanks

[angphil]

Thank you so much for the help. I was getting really scared and thought they'd get away with it.

 

Thanks again

[Tobes]

hehe they refused to answer my Part 18 request

[rbrears]

Surprise surpise If I was them I wouldnt want to answer it either.

 

Sit back and wait for the money

[Tobes]

hehe thanks again

[thecornflake]

You mentioned the case isn't in small claims until allocation. Is there a situation where a CPR 18 request woul dbe required to be answered before allocation stage or can they wait until allocation and therefore refuse it?

[Its WAR]

Just received cobbits defence of my £2600 claim and will send my reply shortly. Do I really need to send them a statement of how I arrived at my claim? Surely they have the figures on their computer and can see how much they have charged. Isnt it up to them to arrive at a different figure if they do not agree with mine.

[thecornflake]

Just received cobbits defence of my £2600 claim and will send my reply shortly. Do I really need to send them a statement of how I arrived at my claim? Surely they have the figures on their computer and can see how much they have charged. Isnt it up to them to arrive at a different figure if they do not agree with mine.

 

Correct, however it's standard procedure to provide a list of what you're claiming and it gives them a fairly insignificant but possibly annoying argument to put to the court - 'This guy can't even be bothered to list the charges'. They'll do anything they can to discredit you and I wouldn't risk it.

 

There may be an actual rule stating you have to do this, I'm not sure. They may also be able to contest the claim on the basis that you haven't shown how you arrived at the total.

 

This is small claims after all so the whole system is based around as many facts as possible being available before the actual hearing (if it goes to court of course!).

[Chrissielr]

Hi rbrears, I received the standard defence and part 18 request yesterday and am now preparing my next move as per your strategy. This may seem a daft question, but does the amended POC suffice as a response to their part 18 request or do I have to write a separate response?

[rbrears]

Sorry for the absence from my own thread - been on holiday - new york - philly and then a week on rehoboth beach - now back at work

 

Chrissielr - best to do them as separate documents

[Chrissielr]

No worries - what a fab hol!

 

Sent them off anyway and Cobbetts agreed to file, so they went to the court last night. Did Cobbetts tell you they would respond to your Part 18 request once they were in receipt of sealed copy of amended POC?

[rbrears]

If I remember rightly they did say that - but they settled before they needed to answer it.

[mcb1975]

Hi,

 

You wrote

 

"A Part 18 request of my own - served on them in writing with the replies to their part 18 request"

 

Apologies if I missed something from your very helpful post - but where were your replies to the part 18 request? Was the extended POC effectively your reply to their part 18 request?

 

Also, how do you serve the Part 18 to them? Will copying and pasting the details you posted suffice along with the main letter, or does it need to be more formal?

 

Also, at this point, I take it you are only dealing directly with the banks solicitor? Should you hold off paying the court the extra £100 at this stage, and should you forward any correspondence you have written to the banks solicitors to the court?

 

Thanks.

[pete_h]

What an excellent original post rbrears!!

 

Just to update slightly, Natwest have removed the Terms from their website so you won't be able to say that that's where you got them from.

 

I wonder why (NOT!!) - in my view it's to stop us copying and pasting their own words and firing them back at them.

 

To other posters I'd say DON'T WORRY - you just have to go into the branch and pick up a printed copy of the Terms - check they havent been altered since they original post though.

 

I'd do it soon though - I wouldn't be surprised if they got their lawyers to redraft the wording soon to present the situation of customers exceeding overdrafts etc as being merely being a circumstance under which an agreed prearranged fee is charged which is how they'd like their gross overcharging [problem] to be viewed by the Courts (rather than as breaches of contract attracting cost reimbursement only).

 

Best of Luck,

 

 

Pete

[pete_h]

Response to Haydn's comment

 

Hi Haydn

 

I only give this advice as a non lawyer, albeit as someone who has been involved in major £ claims in the construction industry, but at the same time I've never done the nitty gritty in the courts -

 

You ask "Do I really need to send them a statement of how I arrived at my claim? Surely they have the figures on their computer and can see how much they have charged. Isnt it up to them to arrive at a different figure if they do not agree with mine".

 

The basic principle of civil cases such as these is that we have to show that the banks are wrong "on the balance of probabilities" ie at proof better than 50/50 we are right. Also the Claimant (us) has to make the running - they call this legal principle "He who asserts must prove" - ie just as in a criminal case the defendant can sit back till we make a proper case against them. The defendant shouldn't have to work out and provide the case against themselves. If someone had sued you you'd expect them to prove their case without any help from you.

 

Please don't think I'm a bank sympathiser- I'm trying to help my daughter get over £1000 back from the t@@ts!!! We just have to play by the rules................................AND WIN!!!!!!!!!!!!!!

 

Very best of luck with your claim,

 

Regards,

 

Pete

[JonCris]

What an excellent original post rbrears!!

 

Just to update slightly, NatWest have removed the Terms from their website so you won't be able to say that that's where you got them from.

 

I wonder why (NOT!!) - in my view it's to stop us copying and pasting their own words and firing them back at them.

 

To other posters I'd say DON'T WORRY - you just have to go into the branch and pick up a printed copy of the Terms - check they havent been altered since they original post though.

 

I'd do it soon though - I wouldn't be surprised if they got their lawyers to redraft the wording soon to present the situation of customers exceeding overdrafts etc as being merely being a circumstance under which an agreed prearranged fee is charged which is how they'd like their gross overcharging [problem] to be viewed by the Courts (rather than as breaches of contract attracting cost reimbursement only).

 

Best of Luck,

 

 

Pete

 

If you got their terms form their website then you can still use it in your argument. You would include it in your "statement of truth" & are they really going to deny they exist. Although they might like to I think not

 

Also I know there are amongst us some great computer nerds who will know how to display the original website page. I understand that any page displayed at some time on the internet can be reinstated by someone who unlike me knows what they are doing.

[CrispDust]

rbears are youn saying that the POC you show albeit adapted to your own case, is typical of what we should be putting on N1?

If so then MCOL is useless!

If this is typical of any N1 POC submission then why isMCOL limited to so few characters?

Or do you put this POC somewhere else.

 

Good draft though, very comprehensive,

[rbrears]

My only point is that if you issue an N1 you can put in the relevant box - "See attached Particulars of Claim" and then append the particulars in full. Its just not possible to fit that on MCOL.

 

The only reason for doing it is as drafted in my thread above is to avoid receiving the usual defences asking for the claim to be properly pleaded.

 

Having said this almost everyone seems to be getting settlements anyway and I'm not sure if they are even replying to the bank's requests for further information or proper pleadings - so maybe MCOL is getting the results we want despite its shortcomings.