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Natwest purchase protection insurance claim struck out


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First of all I would like to declare my intention to appeal the decision.

 

I made a claim against Natwest for breach of contract on their Advantage Gold Account.

 

I made a payment for a deposit on a course in 2007.

There was a dispute between myself and the company and I asked for the deposit to be returned.

It wasn't. I asked Natwest to refund the £200.

They said no, stating the purchase needed to be made on a credit card.

There is no evidence for this as the claim's department is only contactable by phone.

 

I write to the FOS and complain. They eventually write back and say Natwest don't owe me the money.

 

Fast forward to today, I had an allocation hearing.

The solicitor acting for the bank file a strike out application after the hearing date has been allocated.

They request the notice to strike out be heard at the same time as the allocation hearing.

 

The Judge hears the notice to strike out before allocating the case. Because the case wasn't allocated she awards costs.

 

The Judge found that the contract for insurance was with Royal Sun Alliance and therefore the claim should be made against them.

The claim couldn't be made for the full amount as "I still enjoyed the benefit of the contract" (can you believe that!).

 

In the Judge's considered opinion the contract was for items (which she deemed to mean tangible objects) that didn't cover the deposit I had lost.

The Judge didn't give leave to appeal.

 

The points I will raise in an appeal.

 

1. The contract Natwest provided was a photocopy without my signature. It was also dated 2005. The contract I had with Natwest started in 2000. Can't be legally binding can it?

 

2. An item doesn't have to be tangible (i.e. physical) for it to be classed as an item. (Just looked it up in the dictionary and it gave an example of gossip being an item).

 

3. I won a court case in 2008 for the return of the deposit from the course suppler. This underpins the basis of my claim.

 

4. The insurance isn't separate from the Advantage Gold fee. I derived no benefit from the contract in all the time I had been paying the fee.

 

From my recent experience county courts are terrible when seeking justice.

Is there any chance I can lodge an appeal with the high court?

The amount I was claiming was under £5k.

Another reason why cost shouldn't have been awarded.

 

Has anyone had a similar dodgy experience in the courts?

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Will the high court accept an appeal for a civil case?

 

I realise an unsigned contract is enforceable through conduct. I'm thinking

of Grant v Bragg as I write this. In my circumstances there is a contract through

me paying the advantage gold fee, but I received nothing in return. I was of the

mistaken belief my overdraft facility would be pulled if I stopped the scheme.

I now know this to be wrong as I did stop it and nothing happened to my OD.

 

In appealing can I ask for the claim to be reinstated and summary judgement?

 

Need help with this.

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If an application for is made and you are the losing party to the application, cost are awarded against you, even in Small Claims.

Whatever I post is my opinion and should be taken as such, an opinion. While it is what I believe and is offered in good faith, it should not be taken as a statement of truth

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I just saw CPR 44.9 about cost being awarded before a claim is allocated. The Judge stitched me up good.

Even though I was at an allocation hearing the Judge decided to hear an application to strike out.

 

I've just read that an appeal can only be made if the district judge made an error in law. Or there was an irregularity in proceedings. I never know what such things mean. Is switching a court appointed allocation hearing into a strike out hearing an irregularity? If it is, is there some prior appeal I can rely on?

 

In law the terms and condition of a contract has to be signed for it to be legally binding. If the district judge reached a conclusion on terms and condition that had no contract underpinning them. And said contract wasn't an original contract would that constitute an error of law?

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  • 1 month later...

The following has been lost by Lambeth county court. 2 copies of my allocation questionnaire, 2 copies of an EX107 form. When the court finally sent the tape to the transcriber, the transcriber said it was unintelligible. The court said it would send another copy.

Given the ludicrous decision by DJ Wakem it's no wonder the court doesn't want the hearing transcribed.

 

It seems the county court is a place, where justice goes to die.

Edited by pop_gun
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  • 4 weeks later...

If you have not file your appeal on this matter and you want to appeal I think you should state in your appeal that your application was for unfair relationship under s.140B (2)(a) of the Consumer Credit Act under - CPR 7B (3.1) (5). Make sure you read the CPR 7B and you will know the reason. Although you supposed to have use a different claim form as well. In future, anyone that want to file a claim under CCA should make sure they use proper claim form. CPR 7B 2.1

2.1

 

A claimant must use the Consumer Credit Act procedure where he makes a claim under a provision of the Act to which paragraph 3 of this practice direction applies.

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Unfair relationships don't come into it - no credit was given. Sounds to me like the judge was correct - the expression "item" must mean goods as opposed to services, and what you bought was services. You also did have the benefit of the insurance because any goods you bought on the card were insured. To say you didn't have the benefit of it is like saying you should get your car insurance premium refunded at the end of the year because you haven't made a claim on it.

 

Don't waste your time on an appeal, you'll just get lumbered with more costs.

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Gaston you obviously haven't understood the claim as I've presented it. I had my current account upgrade to a advantage gold account in 2000. In 2005 Natwest changed the terms of the advantage gold account to include purchase protection insurance. As with any standard contract there was an exemption clause (a exemption clause limits the liability of the contract provider). The exemption clause does NOT contain a provision for deposits. In 2007 I made a claim for a deposit. the bank refused to honour the terms of it's contract.

The contract is unenforceable for non performance. In other words there was no benefit in having the advantage gold account. Natwest have not provided any evidence to suggest I received a benefit. This falls under The Consumer Credit act 1974 s127 (now repealed).

The word "item" was used to present a list of items (pardon the pun) the contract wouldn't cover. There are 60+ items listed. These are the items refered to. District Judge Wakem used the word out of context and meaning. Gaston, look up the meaning of the word item and you'll find that an item can be anything. Gaston, you betray your ignorance of the english language in your last post. Are you a district judge by chance?

Edited by pop_gun
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Bossy, I intend to use the Unfair Contract Terms Act 1977. In particular 3(1) and 2(i),(ii) in the appeal. I would like to use CCA 127 65(1). I was given credit in the form of an overdraft (I never thought of it that way until you raised the matter). I've also cited the Human Rights Act 1998 6(1) in regards to the original hearing. I would also like to use the judgement in Wilson v First County Trust Ltd 2003 which marries the two pieces of legislation.

My appeal hearing takes place on the 31st october 2012 in the lambeth county court. I would like a witness to the proceedings if anyone would be interested. I'm willing to pay transport cost and lunch for anyone willing to turn up.

Edited by pop_gun
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Gaston you obviously haven't understood the claim as I've presented it. I had my current account upgrade to a advantage gold account in 2000. In 2005 Natwest changed the terms of the advantage gold account to include purchase protection insurance. As with any standard contract there was an exemption clause (a exemption clause limits the liability of the contract provider). The exemption clause does NOT contain a provision for deposits. In 2007 I made a claim for a deposit. the bank refused to honour the terms of it's contract.

The contract is unenforceable for non performance. In other words there was no benefit in having the advantage gold account. Natwest have not provided any evidence to suggest I received a benefit. This falls under The Consumer Credit act 1974 s127 (now repealed).

The word "item" was used to present a list of items (pardon the pun) the contract wouldn't cover. There are 60+ items listed. These are the items refered to. District Judge Wakem used the word out of context and meaning. Gaston, look up the meaning of the word item and you'll find that an item can be anything. Gaston, you betray your ignorance of the english language in your last post. Are you a district judge by chance?

 

What has the enforceability or otherwise of the contract got to do with it? Natwest aren't trying to enforce it, it's you trying to sue them. Why don't you post up exactly what events were insured against by the contract? No doubt the insurable events related only to goods (such as loss or theft), and inapplicable to services. And you had the benefit of being insured, just because you didn't make a (valid) claim on the insurance doesn't mean you never had a benefit.

 

Do come back and tell us what happens on your appeal, as most people who lose simply abandon their thread.

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What has the enforceability or otherwise of the contract got to do with it? Natwest aren't trying to enforce it, it's you trying to sue them. Why don't you post up exactly what events were insured against by the contract? No doubt the insurable events related only to goods (such as loss or theft), and inapplicable to services. And you had the benefit of being insured, just because you didn't make a (valid) claim on the insurance doesn't mean you never had a benefit.

 

Do come back and tell us what happens on your appeal, as most people who lose simply abandon their thread.

 

An appeal deals with why the Judge was wrong in the original hearing. The Judge can be questioned on a error of law or a point of fact.

The Defendant (Natwest, using Cobbetts solicitors) produced a 42 page terms and conditions for the advantage gold account. This was the only thing they produced at the hearing. If the contract was unenforceable it couldn't be relied upon as evidence. Do you now see the importance of enforceability?

 

Here is the exemption clause. Almost verbatim and covering every item listed.

What is not covered: Any item covered

under any other insurance policy. The first £50 of any claim. Travellers

cheques, tickets of any kind, financial negotiable indstruments, cash or

equivalent, buildings, food, beverages, fuel, animals living plants or

perishable goods. Motor vehicles, mechanically propelled or assisted

vehicles, caravans, trailers aircraft, gliders and hang glinders, hovercraft,

sailboards, surfboards, jet skis or boats and other mechanically propelled or

assisted watercraft, or parts or accessories for any of them.

 

 

Trade or business purchases.

 

 

Household improvements of a structural nature. Sports equipment whilst in

use.

 

 

The following items will not be covered for loss, theft or damage in

transit unless they are carried in hand or are under the personal supervision of

the insured: computer equipment, jewellery, audio, photographic or video

equipment, furs, precious stones, watches, gold, silver or other precious metal

articles, medal, stamp or stamp collections.

 

 

Items purchased for or gifted to and in the possession of any person other

than a member of your household.

 

 

Any purchase delivered to you by courier or posted to you until the goods are

received., checked for damage by you, and accepted at your address.

 

 

Wear and tear, damage by moths, vermin or atomspheric conditions.

 

 

Inherent product defects, electrical and mechanical failure, or failure to

operate in any item in accordance with the manufacturers instructions.

 

 

Any goods that have had attempted repair or cleaning since purchase.

 

 

Any loss or damage resulting from radiation and radioactive contamination, or

any related event. Any loss as a direct or indirect act of terrorism

 

You can see that the policy is quite clear in what it won't cover. Almost all high value goods are excluded from coverage. Even everyday common goods aren't covered (e.g. toasters, kettles, Ipad, Iphones etc etc) in most circumstances.

One of the items not listed are deposits. Which is what my claim was for. There's no ambiguity.

 

You can view the terms and condition yourself if you don't believe the quoted terms. Just walk into any Natwest branch and request a copy.

Gaston, the problem with you is you want to believe the bank and a district judge were right, because to do otherwise would destroy your trust in the institutions you rely on. Better to pretend than to confront.

Edited by pop_gun
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I'm not sure that is true.

 

You are suing them aren't you? They are not trying to enforce the contract.

 

As the Defendant they have to enforce the contract, otherwise why were they taking denominations of

£6, £9 and £12.95 per month, over the course of 9 years?

 

Your next question will be why did I sign up for the advantage gold account?

 

I signed up because I was informed I would get an overdraft facility on my account (among other things). I did get the overdraft facility but this wasn't dependant on me having the advantage gold account. I didn't know this at any

time while i had the account. I became dependant on my overdraft facility. It was only when I got myself back in the black that I cancelled the account.

 

Misrepresentation?

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No that wasn't going to be my next question. :)

 

My next question was going to be is that "enforcement" of the contract or merely you just fulfilling the terms and your obligation to pay a monthly fee...

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No that wasn't going to be my next question. :)

 

My next question was going to be is that "enforcement" of the contract or merely you just fulfilling the terms and your obligation to pay a monthly fee...

 

This read like you've hit a brick wall.

 

Hopefully the Bank will hit the same wall in the appeal. :-)

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Not really. Think should should seriously consider the meaning of "enforcement" being going any further with the line of thoughy.

 

You are so desperate to appear 'right', you've lost sight of what is wrong.

 

I have no real desire to argue with you. I genuinely believe your post before this one was poorly worded and therefore unintelligible to any right thinking person. could you rephrase, if it's worth doing so.

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You can see that the policy is quite clear in what it won't cover. Almost all high value goods are excluded from coverage. Even everyday common goods aren't covered (e.g. toasters, kettles, Ipad, Iphones etc etc) in most circumstances.

One of the items not listed are deposits. Which is what my claim was for. There's no ambiguity.

 

You can view the terms and condition yourself if you don't believe the quoted terms. Just walk into any Natwest branch and request a copy.

Gaston, the problem with you is you want to believe the bank and a district judge were right, because to do otherwise would destroy your trust in the institutions you rely on. Better to pretend than to confront.

 

LOL! You know nothing whatsoever about me. Simply because I state a view that doesn't coincide with yours means I must have some illicit purpose? There's none so blind as those who won't see...

 

Anyway, I didn't ask you to post the exemption clause, I asked you to post the operative clause which shows what the insurance policy covers. That might help. Meanwhile, as others have suggested to you, you might want to research the judicial interpretation of what enforcement of a contract means. Simply collecting payments you are contractually obliged to pay is not enforcement. Forcing you to pay by legal action is enforcement (there's a bit of a clue in the word, you see).

 

Cobbetts must be loving this, they'll be coining it in fees.

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You are so desperate to appear 'right', you've lost sight of what is wrong.

 

I have no real desire to argue with you. I genuinely believe your post before this one was poorly worded and therefore unintelligible to any right thinking person. could you rephrase, if it's worth doing so.

 

 

Sorry about that. I blame my phone and the fact I was posting during a very boring training session on fatal accident claims so wasn't able to give it my full attention.

 

Anyway, as Gaston says you have misunderstood the meaning of "enforcement" in the context of Court action.

 

Please explain how the contract has been "enforced" by the Defendant?!

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LOL! You know nothing whatsoever about me. Simply because I state a view that doesn't coincide with yours means I must have some illicit purpose? There's none so blind as those who won't see...

 

Anyway, I didn't ask you to post the exemption clause, I asked you to post the operative clause which shows what the insurance policy covers. That might help. Meanwhile, as others have suggested to you, you might want to research the judicial interpretation of what enforcement of a contract means. Simply collecting payments you are contractually obliged to pay is not enforcement. Forcing you to pay by legal action is enforcement (there's a bit of a clue in the word, you see).

 

Cobbetts must be loving this, they'll be coining it in fees.

 

Here is a link you should read http://www.gosford.nsw.gov.au/community/community_information/insurance/iPolicies.html

 

Take note, a operative clause is a general statement of the insurer's obligation. It doesn't SHOW (lol) what an insurance

policy covers.

Even when you have the time to get it right, you fail miserably.

 

You still fail to understand what it is I've written. I suspect comprehension isn't one of your strong suits.

Let me state the facts again. Non performance of a contract or an agreement renders it unenforceable.

In short there was no contract.

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Sorry about that. I blame my phone and the fact I was posting during a very boring training session on fatal accident claims so wasn't able to give it my full attention.

 

Anyway, as Gaston says you have misunderstood the meaning of "enforcement" in the context of Court action.

 

Please explain how the contract has been "enforced" by the Defendant?!

 

Please read post 14 again. In it I was presenting a scenario the bank had to adopt in order to legitimise their defence.

 

The whole argument would be raise if I needed to question the Judge's error in using evidence that requires further proof

as to the claims the Defendant makes of it.

The real meat of my argument is the contractual liability the bank assumed in it's terms and conditions but won't pay for.

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Here is a link you should read http://www.gosford.nsw.gov.au/community/community_information/insurance/iPolicies.html

 

Take note, a operative clause is a general statement of the insurer's obligation. It doesn't SHOW (lol) what an insurance

policy covers.

Even when you have the time to get it right, you fail miserably.

 

You still fail to understand what it is I've written. I suspect comprehension isn't one of your strong suits.

Let me state the facts again. Non performance of a contract or an agreement renders it unenforceable.

In short there was no contract.

 

Except that the bank did perform - you paid for insurance, you got insurance. The fact it didn't cover the event you want it to cover is down to your failure to understand it. I notice you still haven't posted the actual operative clause of your policy, just some general guidance from a different jurisdiction. I understand exactly what it is you've written, which is why I know it is fundamentally flawed and has no merit.

 

Have you actually got permission to appeal or is that application being heard on 31 October as well?

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I read post #14 and you said this:

 

As the Defendant they have to enforce the contract, otherwise why were they taking denominations of £6, £9 and £12.95 per month, over the course of 9 years?

 

 

However, the above is not enforcement of the contract.

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Except that the bank did perform - you paid for insurance, you got insurance. The fact it didn't cover the event you want it to cover is down to your failure to understand it. I notice you still haven't posted the actual operative clause of your policy, just some general guidance from a different jurisdiction. I understand exactly what it is you've written, which is why I know it is fundamentally flawed and has no merit.

 

Have you actually got permission to appeal or is that application being heard on 31 October as well?

 

I'm literally stunned when I read your posts.

 

You have a list of items and events the policy doesn't cover, yet you still assert I wasn't covered in the event of something or other. You can't even name the clause or event that's supposedly in the contract.

 

I had thought I had presented my claim in such a way as to verify it's merits. Unfortunately it's not foolproof, as you are now proving.

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