Bank Charges SJ hearing 30th March, advice??

[supasta1]

I have a SJ hearing on Tuesday in Manchester, part of this claim is to do with an overdraft made up from bank charges and my counter claim for these charges!! The other side want to get my cc chuked out and get SJ for their claim.

 

My cc was based on the old arguements, how do i convince the judge that i still have a case and successfully stop the application for SJ being granted??

 

Any advice welcome

 

I have the following letter from Natwest with regard to bank charges, how can i use this at court to my advantage??

Dear Supa,

 

Thank you for your letter of ***** I am sorry that you have concerns regarding the charges that have been applied to your account.

 

We explain all of our terms and conditions including our fees and charges at account opening and they form the basis of your agreement with us. Full details are available at any time on our website and in our branches, and updates are sent out regularly to our customers. For your conveniance, I am enclosing our current terms and conditions (including fees and charges) that apply to your account.

 

NatWest has for a number of years provided many every day banking services to customers free of charge when accounts are in credit or within a previously agreed overdraft limit. These services include access to our branch network, cheques, direct debits, standing orders, UK debit card transactions and UK ATM withdrawals. It is also important to us that our customers have every opportunity to arrange suitable borrowing facilities with us should they require extra funds whether through our branches, online or via our UK based call centres.

 

Whilst many of our services are provided without a corresponding charge, we do make charges when customers, by their actions, request an increase to or creation of an overdraft in excess of their previously agreed limit. By reviewing such requests we provide an additional service to customers, in many instances allowing items to be paid either by creating or increasing an overdraft. These charges can be avoided entirely by arranging suitable borrowing facilities in advance.

 

For these reasons, we do not agree with the basis of your complaint. We believe that the charges we levy are for providing services and that they are not penalties or charges for default. Furthermore we believe that these charges are fair, reasonable and transparent.

 

However, having reviewed your case and as a gesture of goodwill and without admission of liability or error, in this instance we are prepared to offer the amount of £****.** paid direct to your account.

 

To accept this offer in full and final settlement of your complaint please let me know by completeing the attached form and returning it to us in the reply paid envelope provided. If you would like to discuss this offer please contact the number quoted above.

 

Any charges that properly accrue in the future will be applied to your account in line with our published tariff and in accordance with your agreement with the bank. Should you be unwilling to accept any such charges, then we may need to consider if we are prepared to continue to provide you with existing banking facilities. Instead we may offer you a simple account that does not offer borrowing facilities or other services that can result in charges.

 

I trust this will resolve your complaint, however for the sake of completeness i am enclosing a leaflet explaining the options available to you should you wish to take matters further.

 

Financial services authority guidelines state that we can regard your complaint as closed if we do not hear from you within eight weeks of this letter. If you do need to take your complaint forward, please let me know within this time.

 

I look forward to hearing from you

 

Yours sincerely

 

NatWest

[supasta1]

this was my counter claim provided to me by steven4064 with thanks:

 

1. The Defendant has an account number xxxxxxxx (Sort Code xxxxxx) ("the Account") with the Claimant.

 

2. During the period in which the Account has been operating the Claimant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant or in respect of various purported services provided by the Claimant (“the Charges”). The Claimant also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Defendant.

 

3. A list of the charges applied and interest levied thereon total £yyy.yy. A schedule is attached to these particulars of claim.

 

4. The Defendant contends that:

 

a) Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Defendant.

 

b) Insofar as they purport to be services provided by the Claimant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Claimant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

 

5. Whereas, at all material times the Defendant was a consumer within the meaning of the Regulations and the Claimant was a supplier within Regulation 3(1), and

the Banking Contract was conducted on the Claimant’s standard terms, the terms imposing the charges levied by the Defendant are contrary to the requirement of good faith. Furthermore the terms imposing the charges cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the Defendant in that:-

·Bank accounts have become a basic essential service;

·The Claimant is a wholly dominant partner in a non-negotiable standard-form contract;

·There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts;

·These banks exercise a collective dominance in the market;

·The charges of all banks are highly similar in nature and in cost and so the consumer in general and the Defendant in particular has no real choice between banking service providers and was forced to acquiesce to the Charges;

·The Charges exceed actual costs by several thousand percent;

·The Charges are applied unilaterally in a standard form contract without the possibility of negotiation;

·The Claimant raises the charges or restructures its charging scheme at will without discussion with its customers in general and the Defendant in particular;

·The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract;

·The Defendant had no means of assessing the fairness of the Charges at the time of entering the contract;

·The Charges reflect a markup of several thousands of percent on the costs of dealing with the Defendant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%;

·Many of the Claimant’s charges are levied on previous charges incurred in preceding months. Therefore the Claimants are themselves causing the impecuniousity which then triggers more charges. Therefore the Claimants have caused much of the Defendan's impecuniousity and it is the Claimants who are causing the charges to be levied with a view to their own profit;

·The Claimant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking";

·The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges;

·The Claimant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position;

·The overall charging regime operated by the Claimant is disproportionately applied to a minority of its customers, often those who are least able to afford it; and

·As established by the High Court (OFT v Abbey & 7 Others) customers in general and the Defendant in particular received no service or benefit in return for the imposition of the Charges.

 

6. The Defendant is further forced to conclude that the Charges do not represent a service provided nor do they represent any true cost of dealing with the Defendant's "delinquency" episodes. Rather, they reflect a markup of several thousands of percent on the costs, and are levied by the Claimant with a view to their own profit. If the Claimant disagrees with this conclusion, the Defendant puts the Claimant to strict proof thereof.

 

7. In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Defendant under Regulation 8(1). For the avoidance of doubt, Regulation 5(1) says:

 

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

and Regulation 8(1) says:

 

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

8. Further, the Claimant is a bank whose main business is in the lending of money at interest for profit and, since the transfer of the Charges from the Account, the Claimant has been able to use that money in profitable business. Since the Charges are unfair and therefore contrary to statute, the Defendant contends that she is entitled to compound interest at the Claimant’s normal unauthorised borrowing rate on the money taken from her account - namely the Charges and interest levied thereon – in restitution for the time-value of the money.

9. In this, the Defendant claims the authority of Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and Another HOUSE OF LORDS [2007] UKHL 34. LORD NICHOLLS OF BIRKENHEAD said:

“112. If the House takes this opportunity I venture to repeat there can only be one answer on this important question of law. Nobody has suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest is necessary to achieve full restitution and, hence, a just result. I would hold that, in the exercise of its common law restitutionary jurisdiction, the court has power to make such an award. I agree with the thrust of Mummery LJ's observations on this point in NEC Semi-Conductors Ltd v Inland Revenue Commissioners [2006] STC 606, 642-643, paras 172-175. To that extent I would depart from the decision on the Westdeutsche appeal.

113. If this approach is adopted the unfortunate decision in the London, Chatham and Dover Railway case will be effectually buried in relation to the payment of interest for non-payment of a debt and in relation to the payment of interest for having the use of money in personal restitution cases. The law will achieve a principled measure of consistency between contractual obligations and restitutionary obligations. The common law in Australia has developed in this way. The common law in England should do likewise.”

10. This interest amounts to £xx.xx and is included in the Schedule attached to these particulars of claim.

 

11. The Defendant therefore (counter) claims for £xxxx.xx against the Claimant’s claim and court costs.

 

12. The Defendant is aware that the above-mentioned High Court case (OFT v Abbey & 7 Others) has gone to appeal. If the court is minded to stay this counterclaim pending the final outcome of that case, the Defendant respectfully requests the court to stay the Claimant’s case also, since the two cases are inextricably linked.

[gandolfi]

Hi supasta1

Subbing to your thread....

Any progress this week?

Gandolfi

[pinny24x7]

Hi Supasta

 

Subbing also to this thread, checked your defence and counterclaim and wanted to point out number 12 this still relevant as the appeal is now over?

 

12. The Defendant is aware that the above-mentioned High Court case (OFT v Abbey & 7 Others) has gone to appeal. If the court is minded to stay this counterclaim pending the final outcome of that case, the Defendant respectfully requests the court to stay the Claimant’s case also, since the two cases are inextricably linked.

[gandolfi]

Hi Supasta

Wondering how you got on in court....had everything crossed for you.

Let us know what happened.

All best,

Gandolfi

[brokestudent111]

Good luck with the case!

 

I found a similar letter to the one you have from natwest. This was another 'full and final' request to repay some bank charges, but this one was back from 2006. This time they mentioned nothing about the charges being payment for a service, nor that they were being used as cross-subsidy.

 

The paragraph that caught my attention was "We believe our charges are fair, reasonable and transparent. We consider that the amounts debited to your account have been applied strictly in accordance with your agreement with us and our published tariff, which we are satisfied, complies with all applicable laws and regulations. We are also committed to ensuring the transparency of the information that we give to our customers about the operation of our accounts."

 

Don't know if this letter is of use to anyone.

[supasta1]

Just to update this thread so people are not left wondering what happened. It did not get into the court room, we settled before we went in and had to sign a tomlin order.

 

We agreed to pay them a small amount in f&f to settle the whole claim on the condition that we dropped our counter claims.

 

My husband is starting his own claim against Natwest to attempt to get his charges repaid, i am sure he will be starting his own thread in due course.

 

Is there any news on the other bank charges cases that were due to be heard last month?? I cannot find any news on them. Has it gone all quiet on the bank charges front????

 

If any one has any info or links to live threads then please let me know.

 

Thanks

[HomerJSimpson]

Congratulations on getting a partial victory, hope the small sum you paid in full and final settlement was substantially smaller than the claim against you.

 

The tomlin order - is that a gagging clause?

[Ganymede]

 

The tomlin order - is that a gagging clause?

 

 

 

No, it's similar to a Consent Order so prevents a CCJ being entered and basically stays the claim on certain terms.