Abbey defence received, help, docs posted

[Captain Rex]

Defence received.

As a sticky above suggests withdrawing from Abbey claims after a High Court decision on breach of contract can you advise how to proceed.

I see from the recent threads some claims are going forward.

Should I withdraw from the claim, no stay arrived with the defence and I am a hardship case so perhaps none will arrive.

Should I end the case and reclaim after the test case.

Thanks

Edited January 22, 2009 by Captain Rex

[Chromatix]

Reading Mr. Justice Smith's decision from yesterday, he explicitly avoided saying anything about Abbey's terms. This was because the OFT basically screwed up and gave him the wrong terms to examine in Abbey's example.

 

Beyond that, I suspect your case would rest on the UTCCRs. You do perhaps have an advantage there, in that your bank explicitly admits that their "terms and conditions leaflet" actually does contain the contractual terms that apply to your account.

 

I won't advise you on whether to proceed or not.

 

However, do examine your T&Cs for any clause which you must certainly have breached at the time of the first relevant charge. This could be something like "You must have sufficient funds in Your account when you issue an Instruction which causes funds to be withdrawn." If you do find something very similar to that, you might still be able to go ahead with the old "breach of contract" argument.

 

Otherwise, have a look at my list here and see which of those UTCCR clauses you reckon you can make "stick" to your case. I've cut out the obviously irrelevant ones and put commentary by the others.

 

The test case has so far ruled that the contracts' terms invoking the charges are subject to the UTCCR's fairness test. The OFT has then stated that it believes that by applying the fairness test, the charges are found to be unfair. This is, however, subject to appeal.

[Captain Rex]

Account opened in 97 does that mean a leaflet from that time forms the basis of the contract.

If so then Nov 98 T and C state: (b) All debit card payments on your Instant Plus Account require authorisation and we will only authorise them if there are sufficient available funds on your Account.

From 05/02/02 24.3 An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed. If you overdraw your Account when we have not given you an overdraft you are in breach of these Conditions and must immediately pay sufficient money into your Account to put it into credit, taking account of any interest and charges you will have incurred. Similarly, if you exceed the limit of an overdraft which we have given you, you must immediately pay sufficient money into your Account to bring yourself within your overdraft limit.

The first charge claimed is in 2001 so which T and C can be applied. Thanks for the very useful reply.

[MARTIN3030]

Cap Rex,I understand you are eligible under hardship.

Have you started to go down this route ?

There have been some successes with these (unlike Lloyds TSB who have completely ignored their responsibilities)

If you have not already done so,then get the hardship application in.

As has been stated,its widely anticipated that at the end of the day the banks will lose on the fairness issues,allowing the OFT to challenge,but thats not in sight yet.

Do not discontinue your claim.

I suggest reading a few of the ongoing Abbey claimants threads-there are still a few in the later stages.

[Captain Rex]

Otherwise, have a look at my list here and see which of those UTCCR clauses you reckon you can make "stick" to your case. I've cut out the obviously irrelevant ones and put commentary by the others.

 

 

The link is dead Chromatix

[Captain Rex]

Thanks for getting back to me Martin 30 30, yes I have pumped away at the hardship angle but got nothing back on that back from Abbey , so I filed a court claim, I used proof of income support as proof for fee remission on filing so the court must already know I am a hardship case.

As I understood the situation, you plug away with letters pleading hardship until 8 weeks are up then go to FOS or file at court, which is what I did.

Being a hardship case was not actually mentioned by me on the N1 (used the standard template), I will ring up the court tomorrow and ask.

[Chromatix]

Account opened in 97 does that mean a leaflet from that time forms the basis of the contract.

 

The bank will probably claim that newer leaflets supercede the older ones. Look for a clause in the first one you have, which allows itself to be overridden, typically with 30 days' notice. Then look for a clause in the latest one which states that it overrides the older one, and gives a commencement date. If those are missing, then you can probably use the older one!

 

If you overdraw your Account when we have not given you an overdraft you are in breach of these Conditions...

 

That's the kind of clause you need to look for. Good on you for finding it. However, that's a relatively weak one - read very carefully what it states is a breach: the act of going overdrawn. This is, legally speaking, not the same thing as not having enough money to satisfy a transaction, and thus might not cover you for the Unpaid Item Fees.

 

Better would be the stronger obligation of keeping enough money in your account to satisfy transactions that you instruct them to make. If you can find such a stronger statement, that will help you much more. Wording like "you must" is just as good as "you are in breach if you do the opposite".

 

The first charge claimed is in 2001 so which T and C can be applied. Thanks for the very useful reply.

 

The T&Cs that applied at the time of the charge should be used. You might need to separate the charges in groups by date to be watertight about it.

 

I would expect 2001 T&Cs to be covered by the "penalty charge on breach" strategy. You can use either the common-law rules or the UTCCRs for this. This is probably true until the T&Cs were revised, likely in 2006, assuming they did the superceding thing correctly.

Edited January 22, 2009 by Chromatix

[Captain Rex]

GARYH mentions in a sticky on the abbey bank sub site that a high court decision has made the breach strategy unusable for abbey.

The link you posted for UTCCRs does not seem to link to your post.