prushton vs Abbey

[prushton]

Hi thanks for replying. I thought that what I would do is keep my current claim as it is with the estimated charges for the last 6 yrs of the account , then submit another claim at moneyclaim at the same time for the period of the start of the account ie 1988 through to 1995 using section 32 of the statute of limitations. This way the claim for the last 6 yrs on the account should go through unhindered and be relitively straight forward, and if they want to argue the legality of the rest of the charges that I am claiming under section 32 then so be it.

 

They would probably have a hard time proving that they hadnt concealed the true nature of the charges, as you know they are still presenting them as proportionate and fair when in fact they are actually making vast profits from these charges which is illegal.They would also find it difficult to disprove the charges were not fraudulent as they set the level of charges, and would have known that legally they were only entitled to reclaim thier actual costs,and they should have known about the legislation that prevented them from doing so at the time.

 

I suspect that at the time the banks standard terms and conditions were drawn up they consulted with thier legal representatives as to the legality of these charges and i assume therefore that they took a commercial decision to make a profit from these charges and committed a fraud in the process.

 

Your thoughts as ever are appreciated !!!

[prushton]

Today recieved notification that the Abbey intend to defend my claim brought against them for non - compliance to my Data protection act subject access request, they sent 13 mths of statements on the 40th day and gave the usual microfiche argument for not producing the rest . They had until the 19th to reply. Have we had an update from the information commissioner on the Microfiche Argument yet ? if a Mod reads this i would welcome their thoughts

[prushton]

On Tues 17th I will send Letter Before Action to Abbey for Repayment of charges, at least I am getting closer to the court stage which might at least prevoke a positive repsonse from the Abbey , as I havent had one as yet.

[prushton]

Hi karne , thanks for your reply. So the ICO have at last said the Abbey microfiche system is a relevent filing system YEAH !!!!!!!! like you say how the hell did they think it wasnt, but I suppose the argument has done the job for them in that they have managed to delay and frustrate us all.

 

I have been to Plymouth County court today to file court papers for my wifes TSB Mastercard , guess what they dont want to pay either. I spoke to a nice clerk of the court and asked her if the Abbey had filed a defence to

my non - compliance to Data Protection act , they intend to defend it. I would like to see them try in the light of the ICO ruling.

 

As we have covered before I am going to claim back charges for the whole of the period my Abbey account was in operation using the section 32 argument and to this end I sent Pam Speed of the Abbey in Bradford another letter telling her We were extending the scope of our DPA request of the 14th August to include the entire period it was in operation, that should get her attention I have also today sent her a letter before action as well ,so hopefully she should now know that we are not going to go away.

 

If you can let me know when the ICO ruling is available that would be great as a copy will be invaluable in court when they try to argue their case. Thanks again for your help

[prushton]

I recieved a letter today from a customer services manager at the Abbey, who alledgedly after having looked at the unfair terms in consumer contracts regulations feels the Abbey has acted in good faith and that they will not return my charges.so I drafted the following letter. I wondered what peoples thoughts were about the letter?

 

 

19TH October 2006

 

 

Dear Sir,

 

ACCOUNT NUMBER:

 

Thank you for your letter dated 13th October 2006, we note its contents accordingly. It is clear to us, that you have not read The Unfair Terms in Consumer Contracts Regulations 1999. If you had, you would understand why your charges are illegal. We have enclosed a copy of the regulations for your reference.

In your letter you refer to the terms and conditions of the account and the level of charges that will be applied for breaches of the terms and conditions. We draw your attention to page 3 of the above regulations, sections 5 through to section 8, which is self explanatory. We would also draw to your attention page 8 schedule 2 regulation 5(5) 1(e).

This clearly states that the liquidated damages sum must be a genuine pre-estimate of the loss or damage incurred, if it is not then it will be construed as penal and, as a penalty clause, it will not be enforced by the courts. A Default charge will be deemed to be a penalty if:

(a) The sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

(b) There is a presumption that it is a penalty when, a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.

Despite repeated requests for you to do so, you have not provided us with a complete breakdown of your actual costs in relation to each and every one of the charges and we will be asking the judge to order standard disclosure so the court and ourselves may see your actual costs at which point our case will have been proven.

In a recent study undertaken in Australia, it was estimated that the cost of processing a dishonoured cheque by an Australian Bank was (generously) likely to be in the region of $3.00 to $6.00. A direct debit dishonour was estimated to be in the likely region of 54 cents. No data was published by the Australian Banks to confirm or deny this. By reviewing the Banks charges against the above figures, the study estimated that the banks could be charging:

a) Between 5 to 16 times what it actually cost them to process a dishonoured cheque.

b) Between 64 to 92 times what it cost them to process direct debit dishonour.

Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”

Further in an American study ( also referred to in the above Australian study) it had been estimated that the American Banks cost to process a dishonoured cheque was between US$ 0.50 and US$ 1.50 ( estimated actual costs being 11 to 32 times less than the banks actual charge). To process a dishonoured direct debit payment was between US$0.48 AND US$0.65 (estimated actual costs therefore being 9 to 11 times less than the banks actual charge).

1998 American study on cheque dishonour fees by the Consumer Federation of America “Bounced Cheques: Billion Dollar profits 2”.

While there is no published data for the UK Banks, given the findings reported in the American and Australian studies, and the widespread use of computer automation, apparently similarly employed by the banks in the United Kingdom, it is difficult to reconcile how UK Banks can incur costs of between £25 to £39 in respect of:

a) Sending a computer generated letter, if a customer exceeds an authorized overdraft limits (even by a small margin) to advise that customer of the breach and resultant charges, or

b) Returning a dishonoured cheque plus notice to the customer, or

c) The non payment of a direct debit.

In conclusion the Law regarding this matter is not in dispute, the Charges levied against the account are punitive in nature and are not a genuine pre-estimate of the costs incurred by yourselves, and therefore the contractual provision that permits you to levy such charges is unenforceable in law under the unfair terms in consumer contracts regulations 1999 (SI 1999/2083) In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

While we do not take the decision to seek recompense in the courts lightly, it is a course of action we will pursue, as detailed in our letter before action dated 16th of October. We would also like you to note that we have recently been successful in recovering illegal bank charges from our current banking providers after taking legal action in similar circumstances.

We look forward to your response and trust that this clarifies our position.

 

 

 

 

Yours faithfully,

 

 

 

 

 

 

[lesser1010]

i personally wouldn't attempt to enter into any discussion about the law with them i would just follow the tried and tested procedures on this site.

[prushton]

Posted this letter to the information commissioners office in wilmslow today, hoping to speed up response from them regarding Abbeys microfiche system :

 

Dear Sir,

 

Reference: Abbey PLC non – compliance to our Data Protection Act Subject Access Request Dated 14th August 2006

 

 

 

We sent the Abbey Plc a subject Access request on the 14th August 2006 requesting bank statements covering the last 6yrs of our banking history with the Abbey. We subsequently amended this request in a letter dated 7th October 2006. On the last day of the 40 day deadline, we received 13months of statements and were informed that as the account was closed in 2002, the remainder of the information we required was stored on their microfiche system. As such this was not covered by our data protection act access request and would not be subject to the 40 day ruling.

 

We then wrote back to the Abbey informing them of exactly what we require and also that our request did indeed cover the information stored on their microfiche systems. On the 23rd of September we sent the Abbey a letter before action giving them 7 days in which to supply us with the statements we required under our Data Protection Act request of 14th August or we would seek a court order for non –compliance.

 

We also lodged an official compliant with your office via the information commissioner’s web site. To date we still have not received the information we requested and we have filed court papers against the Abbey to force them to comply.

 

We now understand that in September your office visited the Abbey microfiche department and inspected its microfiche systems and in October subsequently ruled that it does indeed constitute a relevant filing system under the Data Protection Act and therefore the information we require is covered by our Data Protection Act request dated 14th August.

 

As court proceedings are on going against the Abbey for non-compliance we are proposing to issue a witness order against the deputy information commissioner to compel him to come to court and inform the court of his findings regarding the Abbeys microfiche systems, unless of course your office are able to confirm to us in writing by return of post that you have completed your investigation into the Abbeys microfiche system and that it is covered by our Data Protection Act Request. We would then be able to produce this in court negating the need for the deputy commissioner to appear before the court.

 

If we were obliged take this action then we would feel it necessary to inform the press. We look forward to your reply.

 

 

Yours faithfully,

[prushton]

I have today filed court papers against the Abbey in the Plymouth county court for repayment of bank charges. I had to amend my schedule of charges to claim for the 13 months of statements that I received under my data protection act subject access request.The Abbey still have not provided me with the rest of my statements i requested ( they are now claiming they have been destroyed as the account was closed in 2002)

 

I have court proceeding in progress to force compliance. They have already notified that they intend to defend my claim, the lady at the courts checked on its progress and said they had filed a defence and i should receive their defence along with allocation papers. Any ideas what to do now ? I would welcome any thoughts and advice about what to put in the allocation questionaire.

[Lula]

Hi P. whast are the dates of the statements that you are claiming for, i find it incredulous (not to say probably illegal) for them to have destroyed the held account information already, if the account was only closed in 2002

[prushton]

Hi, Lula the statements I have recieved cover the period 25/05/2000 through 23/01/2002 in total about 13mths, all microfiche statements. i dont know how long they are required to hold records for ? bankfodder says he can supply an afidavit from a former employee of the Abbeys microfiche records department that states they hold records as far back as 1926. I dont know when this afidavit was done though?

[prushton]

I have today received the Abbeys defence to my Data Pprotection Act non -compliance claim currently in progress , You would not believe the incompetence of these people, yes, you guessed it they have stated the usual microfiche rubbish as their defence including a long and laborious description of their archaic microfiche system.

 

If you believed their version, it would remind you of a scene in the last Harry Potter movie where they go down into the bowls of the earth to the bank vaults, where the goblins hold the keys to the vault.

 

 

Obviously Abbey has failed to tell its legal team as to the information commissioners office recent findings regarding Abbeys microfiche systems.

 

 

What next ? I await my court date in eager anticipation of making them look stupid.

[Lula]

FWIW I would take great delight in sending then the IC report that is on a sticky with a virtual raspberry LOL

[prushton]

I had a fruitful conversation with Matt Negus at the information commissioners office in wilmslow today.I told him about the Abbeys defence argument which he thought was incredulous.

 

He managed to locate my online complaint to the information commisssioners office and as my name was at the top of the list he was going to write to the Abbey at Milton Keynes and require them to comply with my Data Protection Act Subject Access request imediately.

 

I also informed him that if necessary if I had not got my statements by the time i got to court with the Abbey I would get the court to issue a witness attendance order for the deputy information commissioner to attend my court hearing and ask Abbey why they hadnt complied.

 

I also tried asking him for the full postal address and the name of the person in charge at the Abbeys microfiche department in Bradford (considering they had visited this department i didnt think it would be a problem but he claimed he didnt know, yeah right!!!!!!!!! ) , so i could compel them to appear in court as well. I will complete my allocation questionaire over the weekend and return it to the court. I am guessing that as the value is only £55 and my statements I wont have to pay to submit it, but I am not holding my breath.

[Lula]

I am ****ing myself laughing here, this is pure class, absolutely brilliant, well done, the ICO will be applying the pressure like nobodys business on shAbbey now, I like your style!!!!!!

[prushton]

Hi Lula thought that might tickle your fancy ( if thats not being too forward) Hopefully they will sit up and pay attention now, I am still at a loss to understand how they intend to defend a non-compliance over the microfiche argument , especially when they get the information comissioners letter sometime soon. I told Matt Negus about all the devious / sneaky litttle tricks the Abbey are getting upto in order to delay sending statements and he said they were aware of this as it represents 90% of their current workload.

[Lula]

LOL no not at all, I will be very interested to hear the outcome of all this especially any comments by the IC's Office, you might like to post this is the sticky at the top regarding the ICo's visit and subsequent adjudication on the matter

[prushton]

I have finally received the Abbeys defence to my claim in the post today ( we progress) I would welcome any thoughts on the points of the defence and possible responses , particulary point 10 the statute of limitation act.

 

 

 

Abbeys defence to claim

DEFENCE

1. Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

.2. It is admitted that the Claimant had a bank account with the Defendant, account number to be particularised ("Account")

3. At all times the Account has been subject to the applicable terms and conditions ("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts:

(1) "You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable."

(2) "An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed."

(3) "If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account."

4. Throughout the period that he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

5. Any overdraft facility on the Account was (and is) subject to the Conditions.

6. The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. In accordance with the Conditions, such fees were debited to the Account.

7. In view of the facts and matters referred to in paragraphs 3, 4, 5 and 6 above, the Defendant denies that the amount of £910.13, or any other, amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied.

8. The Claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

9. Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

10. The Claimant is unable to recover charges alleged to have been incurred prior to 30 October 2000 by virtue of section 5 of the Limitation Act 1980.

11. The Defendant denies that the Claimant is entitled to interest.

12. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

[Lula]

your answer to section 10

 

whilst I acknowledge the impact of the Limitations Act in respect of disputes over contractual issues, you will no doubt be familiar with Section 32 which gives relief to claimants in cases where the defendant has concealed the nature of their actions, acted unlawfully to has made an error or omission.

 

It is my belief that the defendant knew, or reasonably should have known that the charges they were levying were unlawful and this would have been apparent to their legal advisors following the enactment of the UTCCR 1999.

 

I would also draw your attention to the fact that the OFT published its report in April 2006 and the defendant has not provided any indication that it acknowledges the comments therein, further proof of their concealment of the nature of their charges. I will be asking the court for standard disclosure specifically with respect to when the defendant was aware of the investigation being carried out by the OFT and any actions the defendant or its legal carried out upon becoming aware of that investigation.

[prushton]

Hi Lula , Hows Things ? thanks for your input into the response to Abbeys defence.I was thinking along similiar lines myself. I have read the statute of limitations act 1980 particularly section 5 their defence refers to and I may be being a bit thick here ( but I dont think I am ) but section 5 says:

 

"An action founded on simple contract shall not be brought after the expiration of six years from the date the cause of action accrued".

 

I read this to mean that the six year period mentioned starts from the time you become aware of the problem or could have reasonable known that there was a cause for action. If you take the various things that have reared their heads over the last few years say, endowment mis- selling / opting out of the state pension system and now bank charges etc the time limit for claims against the companies was after people became aware of the problems. You could not possibly have been aware of these problems in advance of their discovery. I have just been reading options for reform - The statute of limitations act in which the problems of the current statute of limitations are discussed here is the link its quite a long document but seems to reach the conclusion that i have above .

 

http://www.lawcom.gov.uk/docs/cp151pt4.pdf

 

Also it states that the limitation period is suspended on issue of proceedings, sections 13 and 14 seem to deal with existing statute and proposed statute and raise some relevent points, have a look and let me know what you think.

[prushton]

Lula , take a look at this as well its very relevent to section 32 of the statute of limitations. House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

 

 

[prushton]

I have hit a tricky situation, in that I have a claim for non-compliance by the Abbey for my statements but they have destroyed my statements as they were older than 6yrs.

 

we have exchanged allocation questionnaires and really my question is:

 

As my statements have been destroyed I am unable to persue the Abbey for non-compliance , but as they did not tell me they had destroyed them until after I had filed my claim, I have obviously incurred court costs and mail costs as a result, should I let the claim just run its course and wait till it gets to court and then ask for the costs or should I tell the court I cannot get my statements as they were destroyed and that all I want now is my costs?

 

I would appreciate any thoughts on this .

[prushton]

I do not have any statements prior to 2000 , the majority of charges would be from 1995 - 2000. I have tried the information commissioners route but they have been told by Abbey that they have destroyed my statements prior to 2000 as they are only required to hold statements for 6 yrs and as such they deem their role to have been completed.

 

I am aware that they have told other CAG members that they have destroyed their statements, only to have them sent in the post later. I do not have Bankfodders avfidavit, but he is willing to supply it to me.

 

I am unsure as to what to do next? I need the statements to claim the charges , but if they have destroyed them then i am left with no alternative but to recover just my costs.

[prushton]

Hi , thanks for your reply. I wonder if it is possible to put out a request to CAG members who have been told that their statements have been destroyed by the Abbey and subsequently have received them, for details so i can point this out to the judge.

 

I have worked long and hard on trying to get these statements and they suddenly turn round and say they have destroyed them ( I am not convinced they have)

 

I am going to write to the judge and request that he put them to strict proof that they have destroyed them, by providing documentry evidence or requiring them to swear an afidavit to the effect.

[prushton]

Hi , I thought I might send the following letter to the judge. I would appreciate your thoughts on this .

 

Re: Mr. Paul Rushton vs. Abbey National Plc

Case No.: 6PL04174

Dear Sir,

I filed the above claim on 29th September 2006. It was in response to the defendant’s refusal to supply me with 6 yrs of bank statements as per my Data Protection Act Subject Access Request of 14th August 2006.

The Defendants know why I require these statements in that I have brought a claim against them for recovery of illegal default bank charges (Case number 6PL04626 issued on 30/10/06) levied against the account. Despite my best efforts, through the information commissioner’s office to get the defendants to provide these statements I still have not been provided with them.

On the 24th October the defendants, in a telephone conversation, casually inform me that they are not required to hold account information for longer than 6 yrs and subsequently the records have been destroyed. On the 23rd of August I received a letter from the defendants, stating that:

“We can only provide you with transaction details since year 2000 to 31st December 2002.

“Any earlier transactions have been archived onto microfiche, which is not covered by the Data Protection Act. These archived transactions will not therefore be supplied to you.”

Through my membership of the Consumer Action Group (A forum for recovery of Bank charges) I am aware that the defendants have told other members that their records have been destroyed, only for these allegedly destroyed records to mysteriously turn up in the post.

I respectfully request that you put the defendants to “strict proof” that they have destroyed my statement records by providing either documentary evidence to support their claim or that they be required to swear an affidavit to the effect.

I have, despite the late disclosure of the defendants alleged destruction of my bank statements still incurred costs regarding this matter. I still intend to recover those costs in this case.

[Lula]

Nice one Paul, I am still waiting for statements prior to 2000, I think that theyhold them for a lot longer than 6 years, as a microfiche hardly takes up any space at all - I for one dont beleive them, it might be worth a trawl through the banking code to see how long they are required to keep these documents for