orfoster vs Natwest

[orfoster]

Hey, Im confused about how to respond to this NatWest defence. Im helping someone claim back their charges and the defence is different to the one I had, no CPR18 either. The defence reads.

1. This defence is filed and served without prejudice to the defendants case that the particulars of claim do not disclose reasonable grounds for bringing a claim again the defendant to recover the bank charges (and interest thereon) referred to in the particulars of claim or any ofther sum. In the even that the claim is not properly particularised the the defendant will apply to strike out the claim for summary judgement in respect of the same.

 

2. On allocation the defendant invites the court to direct that there be 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.

 

3. No admissions are made as to what charges have been debited to the claimants bank account.

 

4. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are unenforceable by virtue of the unfair contract terms act 1977 and or the common law, the claimant is required to identify.

4.1 (a) the sections of the unfair contract terms act 1977. (b) the regulations of the unfair contract terms in consumer regulations 1999 and © the principles of common law relied upon by the claimant in alleging that the contractual provisions referred to are unenforceable; and

4.2 the contractual provisions that the claimant allege are invalid by reference to UCTA 1977 and or the regulations.

Until such time as these sections/regulations/provisions are identified the defendant cannot (save as appears below) plead to the allegation referred to in paragraph 4 above. The defendant therefore reserves its right to please further to the allegation once (and if) the claimant identifies the relevant contractual information.

 

5. In realtion to the case of the claimant that the charges must be reasonable within the meaning of section 15 of the supply of goods and services act 1982 the defendant pleads as follows;

5.1 The claimant is required to plead and prove the necessary factors referred to in section 15 SGSA concerning the contract between the claimant and the defendant which mean that pursuant to SGSa section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract.

5.2 Further, the claimant is required to plea and prove (a) that the bank charges which have been debited are unreasonable; (b) all facts and matters relied upon by the claimant in support of this case and © what charges would have been reasonable.

5.3 In the circumstances no grounds are disclosed for a claim that the defendant has acted in breach of SGSA section 15.

5.4 In the circumstances (save as appears below) the defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 5.1-5.3 above are addressed.

5.5 It is the case of the defendant that the contract between the claimant and the defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the claimant and the defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimand and the defendant.

 

I think I just have to respond acknowledging the defence and nothing more at this point, is that right? and is this standard cobbetts rubbish? its abit different from when i did it.

I think now I just have to wait for the allocation questionaire.

 

Cheers

O

[bankoftoon]

think you are right

 

would resend charges breakdown to Cobbettes & the Court

 

and wait patiently:rolleyes:

 

sod

[fendyweather]

Did you receive this defence from Cobbets direct or from the courts ??? If it was from Cobbetts then you can just ignore and await defence from courts with instructions, but if it was from courts, then you need to complete anything they have asked for, but a lot of the time now, they are doing away with AQ. Fendy xxxxxxxxxxx MY ADVICE WOULD BE SIT BACK AND WAIT. FOR NOW.

[orfoster]

It was initially from Cobbetts but have now received it from the courts + AQ. Never mind, will fill it all in now and get it over with. Cheers.

[Parkvale]

Defence looks ok. Just take directions from the court now. Good luck.

[orfoster]

Hi,

 

I have prepared for court with three copies of bundles ready to be submitted on the 4th June, Court date is 18th June, i doubt it will go that far but still will have to get everything in all the same. I don't think NatWest have communicated with the other depts like cobblers. By only offering from Mr Bigley's office and not litigation or Cobblers like other people have had so i rejected the offer telling them its in the court process etc. The couple of questions I have;

Do I need to put all statements to do with bank charges in each pack, so do i need 3 copies of statements??

Do i send one pack (bundle) off to Cobblers or take all 3 into the courts??

and finally I have asked for T&C's for the account but they haven't answered yet so do i use the standard T&C's for standard accounts as this is just a standard current account or do i need the T&C's from the date of account opening?

 

Sorry those questions may sound stupid but am unsure and don't want anything to go wrong at this stage. claim for £1769. @ 8%.

 

Have followed the strict guidance of the site till now.

 

Thanks.

[steven4064]

Do I need to put all statements to do with bank charges in each pack, so do i need 3 copies of statements??

 

Yes, you should include copies of all statements (at least those with charges on) in each bundle

 

Do i send one pack (bundle) off to Cobblers or take all 3 into the courts??

 

Send one to Cobbetts, one to court

 

and finally I have asked for T&C's for the account but they haven't answered yet so do i use the standard T&C's for standard accounts as this is just a standard current account or do i need the T&C's from the date of account opening?

 

Ideally you should use the T&Cs current when you opened the account. However, if you don't have them (or don't get them in time) put the most recent ones in. See here for my take on the current T&Cs and why the charges based on them constitute penalties. (I could still do with a second opinion on this - someone). In your statement of Evidence, you should state that you have asked for T&Cs at the time you opened the account but NatWest have not supplied them.

 

Steven

[orfoster]

Yes, you should include copies of all statements (at least those with charges on) in each bundle

 

 

 

Send one to Cobbetts, one to court

 

 

 

Ideally you should use the T&Cs current when you opened the account. However, if you don't have them (or don't get them in time) put the most recent ones in. See here for my take on the current T&Cs and why the charges based on them constitute penalties. (I could still do with a second opinion on this - someone). In your statement of Evidence, you should state that you have asked for T&Cs at the time you opened the account but NatWest have not supplied them.

 

Steven

 

Thanks for your reply.

 

So what I need to have three copies of are as follows;

1. Standard Court Bundle with statements, all letters sent and received all of the cases i guess means getting the spreadsheet showing example claims that have been settled. Also additional docs The McNamara Interview, Australian Default Report, BBC Commission conclusion. So i take one of these into court, send one to cobbetts and keep one for myself.
   
2. I need to do a statement of evidence to send in seperate or does this go with the court bundle also?? i've done the allocation questionnaire bit this is full court date, i've left the letter at home but im sure its said its been allocated to the small claims court already so this isn't allocation hearing.

Is that all correct, its just a few points im stuck on preparing. Im suprised NatWest haven't settled up just yet but still nothing on T&C's which i guess i will need to add to my court bundle?? Thanks again for your help.

[steven4064]

Thanks for your reply.

 

So what I need to have three copies of are as follows;

1. Standard Court Bundle with statements, all letters sent and received all of the cases i guess means getting the spreadsheet showing example claims that have been settled. Also additional docs The McNamara Interview, Australian Default Report, BBC Commission conclusion. So i take one of these into court, send one to cobbetts and keep one for myself.
   
2. I need to do a statement of evidence to send in seperate or does this go with the court bundle also?? i've done the allocation questionnaire bit this is full court date, i've left the letter at home but im sure its said its been allocated to the small claims court already so this isn't allocation hearing.

Is that all correct, its just a few points im stuck on preparing. Im suprised NatWest haven't settled up just yet but still nothing on T&C's which i guess i will need to add to my court bundle?? Thanks again for your help.

 

I think the cases referred to are those listed in the court bundle and so printing the court bundle covers that. Someone will correct me if I'm wrong about that.

 

The copies have to be with Cobbetts and the court 3 days before the hearing date.

 

You will find some stuff for the statement oif evidence on this thread: http://www.consumeractiongroup.co.uk/forum/natwest-bank/18091-just-about-start.html (about page 3)

 

Steven

 

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[orfoster]

1. Judge has considered the statements of case and allocation questionnaires filed and

allocated the claim to the small claims track ( the claim net of interest being for less

than £5000)

 

2.The claimant shall by 4 pm on 25th May 2007 send to the defendant and the court :

 

a) A schedule setting out each charge repayment of which is sought , showing the date , amount and reason given ( if any) for the charge being made.

b) Copies of any statements or other documents relied upon as showing that every charge has been made

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise.

d) Copies of decided cases and other legal materials relied upon.

 

If the claimant fails to comply with the order the claim will be struck out without further notice

 

3. The Defendant shall by 4pm on the 1st June 2007 file and serve a response to the

claimants schedule, stating in respect of each item claimed.

 

a) Pursuant to what contractual provision such charge was made , produce a copy of the

Contractual document relied upon.

 

b) Whether such charge is accepted to be a penalty, and if not why not.

c) If such charge is alleged to be a pre-estimate of the defendants loss incurred by the claimant’s actions ( whether or not such action is treated as a breach of the contract between the parties) all facts and matters intended to be relied upon as showing that such was a proper estimate of loss and all evidence to b adduced at trial as to what the true cost of dealing with this matter was.

d) If such charge is not alleged to be a pre-estimate of the defendants loss occurred by the claimants actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

e) Any witness statements

f) Copies of decided cases and other legal material to be relied upon

 

Im almost certain the only thing i had on my letter was whats in orange above. I will check though. I think it just says all documentation to support the claim. Is that right? So you say 3 days before the claim but they've told me i have to have it all in by the 4th June and the court date is 18th June?? Im getting confused.

[steven4064]

a) A schedule setting out each charge repayment of which is sought , showing the date , amount and reason given ( if any) for the charge being made.

b) Copies of any statements or other documents relied upon as showing that every charge has been made

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise.

d) Copies of decided cases and other legal materials relied upon.

 

is the usual list of documents required to support the claim -youwill see it again and again.

 

Steven

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[orfoster]

This is a copy of the letter I had from the court;

 

Notice Of Allocation to the Small Claims Track (Hearing)

 

Deputy District Judge XXXXXX has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

 

The hearing of the claim will take place at 14:00 on the 18th June. @ the court address and should take no longer than an hour.

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

Each Party shall deliver to every other party and to the court office copies of all documents (including any experts report) on which he intends to rely at the hearing no later than 4th June 07.

 

The original documents shall be brought to the hearing.

Is this the standard letter the courts would send? I will do the above and thats what I will take into the courts and send off to Cobbetts.

[orfoster]

Just abit worried that it doesn't seem to be NatWests policy that they get this close to court. Haven't seen many other people getting as far as this. Its just strange that i've still been getting letters from Stu Higley and not litigation but have been getting letters from Cobbetts. Do you think they both are in contact with eachother?

[steven4064]

If you read the threads you will see that it is quite common for Cobbetts to go this far. I suspect that NW and Cobbetts don't talk to one another - they shouldn't both be writing to you - either Cobbetts are acting for NW of not

 

Steven

 

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[bydganwil]

Hi there,

 

I'm at the same stage - court bundle has to be with the court by 7th June for hearing on the 21st.

 

Are they going to cough up before do you think?

 

Cheers

 

Rob

[steven4064]

I'm at the same stage - court bundle has to be with the court by 7th June for hearing on the 21st.

 

Are they going to cough up before do you think?

 

They'll certainy cough up before the 21st though maybe not before 7th, unfortuately

 

Steven

 

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[orfoster]

I've been looking through at all the other threads at the same point or settled and can see they are coughing up after we hand in bundles etc.

 

A question i have now is with the T&C's do i need the terms for just when i started the account with them?? and thats it? they still havent sent them to me so may need to use the current ones and add them onto the bundle?? When i add the T&C's do i need to add anything to the statement of evidence or just literally put the terms in with the bundle? thanks

[steven4064]

IMHO there should be a brief commentary on the T&Cs in the statement of evidence that show that the charges are in fact penalties directly resulting from breaches of T&Cs.

 

I drafted such a statement based on the current (Nov 2006) T&Cs (http://www.consumeractiongroup.co.uk/forum/show-post/post-867010.html) but I would have liked some comments from other more experienced CAGGERS before using them. Anyone?

 

Steven

 

ps - I've changed the link (see next post) it is near the bottom of page 2 of the thread - I don't know why it didn't work before.

 

[orfoster]

Thanks for that, i will use that but the link doesnt seem to work. where is it in the forum?

[steven4064]

I have altered the link - see ps to previous post.

 

As I said in previous post I really would like someone else to comment before it is used.

 

Anyone?

 

Steven

 

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[orfoster]

NatWest sent a letter on the 25th April offering the full amount of charges £1554.92 but the claim was issued on the 5th March so they offered the full amount but didn't include interest of court costs of £220 it is right that we declined that offer isn't it?

[orfoster]

v Statement of Evidence & relevant sections of NatWest Terms & Conditions (Nov 2006)

 

 

v Correspondence

 

 

v Latest Schedule of Charges

 

 

v Statements

 

 

v Transcript of Peter Mc Namara Interview

 

 

v Relevant Case Law

 

 

v Early Day Motion from the House of Parliament

 

 

v Dunlop v New Garage

 

 

v UTCCR 1999

 

 

v UCTA 1977

 

 

v SOGA 1982

 

 

v OFT Statement Summary

 

 

Australian Report into Bank Charges

 

Sorry about the format, this is the order my court bundle is in just if it makes a difference.

[orfoster]

OK abit confused now. Submitted Court bundle to courts and cobbetts on the 4th June as indicated and the court date is 18th June. I've heard nothing back from Cobbetts, aren't they supposed to send a bundle back to me as well or do i just wait till the day or the settlement now?

[steven4064]

They don't usually bother as they never really intend to defend. If things go as usual, you should get an offer soon

 

Steven

 

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Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site.

[orfoster]

Well what an idiot, just realised that i forgot to hand in a witness statement!!! Court date is Monday @ 14.00 but I will visit the court tomorrow with the witness statement and see if they add it, if not never mind at least i tried. NatWest have still not sent any information and I have also in the same covering letter with my witness statement told the judge this.

 

Well still nothing from Cobbetts for a payment so maybe I will have to attend court.