They've entered a defence!!

[Guest Zooman]

Wissa don't worry, if you need it I will give you my phone number and walk you though it (I'm a bit short of time this week my daughter has two days as an out patient Monday & Tuedasy but we will find time). Chin Up you know the saying s**t happens.

 

Ashley

[Its WAR]

Hi Wissa,

 

You have done nothing unusual. Your claim is just understated. I think Cobbetts kow exactly what your claim is about, they must have had 100s virtually identical.

 

Now, because a defence has been lodged, moneyclaimonline are out of the loop, its Exeter that counts now. This is vital if you want to amend your claim for one reason: If a defence had not been lodged you could only amend your claim through moneyclaim. Therefore your amended particulars of claim would still have to fit in the space and you could not send full particulars. Its lucky the defence has been made. You can now lodge new particulars of claim and include the spreadsheet. The new particulars of claim can be very detailed and take many pages of A4 (use a size 14 font) . I have done this on 3 of my claims. One with Nat West. The only problem is that the amended claim has to first go to the judge and he will decide to accept them (wastes a week) and the claim is re-served (back to day one). Cobbetts will have another 14 days to acknowledge and another 14 to defend. It just slows down your payout.

 

The version you listed a few posts ago, will get the same response as not being particularised enough. To amend you would underline the amendments of your original claim, instead make it clear you are replacing the original wording BECAUSE COBBETTS HAVE ASKED FOR DETAILED PARTICULARS, use their letter to you as evidence that Cobbetts want a more detailed claim form and submit the letter with your amendments. You could even ask Cobbetts to agree your amended particulars before you lodge them with the court. Try using this, I have, I found it elswhere on this site. I an still waiting for Cobbetts response.

 

 

IN THE EXETER COUNTY COURT CLAIM NO XXXXXXXX

 

Between

 

YOUR NAME Claimant

And

NATIONAL WESTMINSTER BANK PLC Defendant

 

AMENDED PARTICULARS OF CLAIM

 

 

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

 

a) Account no.xxxxxxxxx sort code xxxxxxx (“the Account”);

 

b) During the last 6 years the Defendant automatically debited charges to the Account in the sum of £xxxxxx (your total claim of charges and interest on those charges)

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. (you also send cobbetts your spreadsheet)

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 purported 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 relation 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 that 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 £XXXXXXXX;

b) Repayment of DPA fee and costs (say £35.00 this refers to the £10 DPA fee, a bunch a letters, stamps and phone calls = roughly the amended claim fee)

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 £xxx until judgment or sooner payment

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

 

Signed…………………………………….

Claimant

Dated this xxxx day of xxxx 2006

[Plutos]

We're twins! My Natwest moneyclaim is served on the 8th and communication due by the 22nd!

 

I'm a little concerned about the Moneyclaim issues raised on this thread, although I expect it is standard for Natwest to claim they need information due to the tiny box on the form. As such, is it so bad to have put in this non-legal stuff?

 

It would be great to have a moneyclaim thread somewhere - I've seen the templates, but despite hours on the site have relied on odd cases in other sections to complete mine. The trouble is that the site is so good, there's a massive, massive amount of information here. I've probably put in a good 30+ hours here alone but havn't touched a fraction of the content.

 

Hi guys.... well.. this forum seems quite....erm...tense..... Ive just gone through moneyclaim.gov.uk for my Natwest claim. You have a very limited space to provide details and there is no option of attachments etc. The date Natwest is being 'served' is the 8th and I have to expect some sort of communication by the 22nd.

 

I had a friend who has previously claimed (and won) to help me fill out the particulars of the claim. Although this site is packed with help and advice... there aren't many people in the Natwest section of this forum that have got as far as this stage.

 

The writing that I put into my claim was similar to the 'corrected' version of Wissas. I'm sure if they expected more evidence etc, there would be a chance to add it to the claim. I don't feel that this will have a negative impact on the claim as people have filed online and been successful.

 

If moneyclaim is being seen as a bad way of getting our cases across...I'm unsure why it is being suggested... and then when it is used..people being 'told off' for using it.

 

I have spent hours and hours reading this site and similar sites.. I have spoken to people who have claimed their money back (or are in the process of doing so) and hopefully have started the process correctly... As I understand it.... to put it in basic terms... I have calculated what I feel I am owed in charges/interest.. I have sent the 2 letters with time between them for them to respond.... and after no success..I have filed a claim online.... If this isn't the correct way of doing it.. too many people are doing it this way as to their interpretation of the forums.

 

I wish everyone luck with their claims and fingers crossed... Natwest will not use me as an example of how to break someone before court dates!

[Bookworm]

There's nothing wrong with MCOL as such. It is a useful tool, and particularly for people who might be too intimidated otherwise into going into a court.

 

I have had 3 successful claims so far, all done through MCOL, and I have another 2 ongoing. Out of those 5, only 1 (Barclays) has asked for a schedule of charges, which I then sent to them and added a copy when I sent back my AQ. No big deal.

 

I am 100% convinced that the vast majority of people on this forum would not have pursued their claim further if they had had to do it another way than online.

 

For more complicated issues, whether be DPA non compliance, or loooooong list of charges and cumulated interest, an N1 is probably better. But for a simple straightforward claim, there is absolutely no reason to shy away from MCOL. And I think the majority of people who have had their money back will agree.

[Guest Lueeze]

Dont get me wrong Im not saying "do not use MCOL" but we have had numerous discussions about MCOL and agree with many that users file online nnot even realising what they are doing to a certain extent. Its much harder to take time out an d file in person, but after using both I found in person is the best way, and I had a good chat to the lady behind the counter which was interesting to say the least...

 

How are you doing Wissa?

 

Lou x

[Wissa]

Last week I started a thread because I have massively cocked up my MCOL claim and Nat West have therefore been able to enter a defence. The letter from their solicitors (Cobbetts) says the defence is due to the particulars of claim being "incoherent and do not disclose any legally recognisable claim". Luckily, they have allowed me 14 days to rectify this problem and I have already received some great help (and well deserved abuse!) on my previous thread.

 

I have rang Exeter court (where the case is set to be heard) and requested an N422 form but this has not arrived and it's been a week. Cobbetts sent me an Allocation Questionnaire which it looks to me like it does the same job as an N422 (ammend the particulars of claim).

 

I have taken a few days off work to sort this mess out and would be very grateful for any help that you guys can offer.

 

Who do I send the AQ to? Is it Cobbetts or the court or Natwest?

 

Someone said I should write to Cobbetts and attach an ammended claim. Is MCOL any more use or do they think they've done their bit?

 

Please help, damsel in distress!

[jonni2bad]

Hi

 

I have merged the threads - there is no reason to start new ones in relation to the same claim, it gets confusing for people who are following it. If you ever post something and believe you do not have an answer that suits, or an answer at all, within a couple of days, then feel free to ask a moderator for assistance by sending a link to the thread.

 

Back on to your case - are you saying that you have not yet amended the claim?

 

The Allocation Questionnaire does not do the same thing - it is intended to allow the judge to see the complexity (or lack) of the case in question to Allocate the court's time for a hearing, among other things.

 

Phone the court and ask if they have (a) received your request and (b) sent out the forms. Can you collect them? If so, get them asap.

 

If you now respond to the AQ (which is sent to the Court) it would suggest you are going ahead with the claim as it is.

[Wissa]

Thank you, I am hanging on the telephone as we speak to Exeter courts who unfortunatley are not answering their phone. thread #29 from haydn gives me a very comprehensive letter format to use, is this any good in place of the N244?

[Wissa]

I have dowloaded the N244 form, thanks to the help of Northampton County Courts, I don't understand it and would appreciate any help in filling it in.

 

The first section reads :-

 

You should provide this information for listing the application

1. How do you wish to have your application dealt with

a)at a hearing?

b)at a telephone conference?

c) without a hearing?

 

There are tick box's by the side of each question.

My instinct is to tick at a hearing?

[Wissa]

The next 2 questions are:-

 

Level of judge

Parties to be served

 

The level of judge I have no idea about, but I would pressume that Parties to be served are Nat West?

[angrycustomer]

Wissa,

 

I made the same error as you but I followed all the information giving on the site and filled in the N244 form at Exeter Crown Court last Wednesday and they were very helpful. I also sent Cobets a copy of the admendment and all my correspondence to Natwest and there reponse just to cover myself. I gave the courts all copies as well.

 

Good Luck

[dave]

I just wanted to say, don't worry about the cock-up - we all cock-up sometimes.

 

I think you got more of a *telling-off* than you deserved to be honest!

[danmoz98]

I just wanted to say, don't worry about the cock-up - we all cock-up sometimes.

 

I think you got more of a *telling-off* than you deserved to be honest!

 

Would there be any chance you could have a quick look at the last post of my thread (a few down) and clarify whether I'll be okay with this.

 

After reading this thread I'm worried I'm making mistakes.

[Wissa]

Thanks for your support, it really does spur you on when people in the same boat are achieving their aim.

 

Did you actually go into Exeter Crown Court, and if so which department do i need?

[angrycustomer]

Just go into the court then go to the 2nd level were the admin office is on the left hand side. They will take all your forms and cheques to process through the system. Hope that helps you. It took me all 5 to 10 minutes to sort it all out.

 

Hope you sort it soon

[Bilgeman]

Wouldn’t it be nice to be able to get away with putting, at the end of your completed amendment, something like:-

‘Whilst I have complied with this request I feel that it’s pertinent to point out that there are hundreds of other similar claims being made by people around the country at the moment, most of which are being settled out of court in an apparent attempt to avoid a test case which might open the floodgates for future cases. I contend that a company (such as Cobbetts as an example) must be aware of this because of the very fact that they are the solicitor for (Nat West) instructed to act in many similar cases. In my humble opinion there can be only two reasons for their submitting this defence.

1) They genuinely do not know what the claim is about. This is as frightening as it is unlikely

&

2) They are using both intimidatory (is that a word?) and delaying tactics in order to frighten the claimant into giving up and, at the same time, wasting the time of the Courts in a cynical and boorish manner. As this is happening in hundreds of cases around the country right now, the Court is losing a lot of time through these fabricated and fatuous defences. I wonder what the Court’s view is on this and whether anything could be done about it.’

I imagine there are people on this site who could couch that in more suitable language.

[Bilgeman]

I wonder if anyone has had the nerve to call their bluff by writing back and saying the above and, if so, what was the outcome? Would it be a given that the case would be mandatorily struck out or would the Courts say, 'Come on, now, you know you're in the wrong so pay up'?

[Bilgeman]

In fact, I'm very tempted to send this to the Court anyway. Does anybody have any thoughts on this?

 

Would it put the Court's back up, impress them or just be ignored?

 

I wonder

[punterstuff]

This is off of moneyclaim... Natwest have entered into defence... as expected..... I have a package to collect that I assume is the paperwork to complete as to why I want my bl00dy money!!! Keep on keeping on! x

 

 

The following information relates to your claim:

Claim Description

Claim Number

Status of this Claim

Natwest charges claim

6QZ51534

Defence

You are unable to take any further action online on this claim.

 

The Defendant disputes the whole amount you have claimed. Your claim cannot proceed online and will be transferred to the appropriate court for continuation. You will receive confirmation to where the claim has been transferred to shortly.

[Isobel Daly]

Hi Wissa, how is it going? Not seen you about lately.

[dave]

Wouldn’t it be nice to be able to get away with putting, at the end of your completed amendment, something like:-

 

‘Whilst I have complied with this request I feel that it’s pertinent to point out that there are hundreds of other similar claims being made by people around the country at the moment, most of which are being settled out of court in an apparent attempt to avoid a test case which might open the floodgates for future cases. I contend that a company (such as Cobbetts as an example) must be aware of this because of the very fact that they are the solicitor for (Nat West) instructed to act in many similar cases. In my humble opinion there can be only two reasons for their submitting this defence.

 

1) They genuinely do not know what the claim is about. This is as frightening as it is unlikely

 

&

 

2) They are using both intimidatory (is that a word?) and delaying tactics in order to frighten the claimant into giving up and, at the same time, wasting the time of the Courts in a cynical and boorish manner. As this is happening in hundreds of cases around the country right now, the Court is losing a lot of time through these fabricated and fatuous defences. I wonder what the Court’s view is on this and whether anything could be done about it.’

 

I imagine there are people on this site who could couch that in more suitable language.

 

We're already on it ;-)

 

"Vexatious defendents"

[Bilgeman]

Well, yes, I've seen it mentioned in the forums but I can't help wondering if anyone's actually tried it and what the reaction was