Robertxc v Clydesdale Bank - Court Update

[Robertxc]

I had my preliminary hearing against Clydesdale yesterday, at which their agent stated an interim defence.

 

Additionally, Clydesdale have demanded that I produce in court a statement showing details of my account number and sort code, as well as a list of all the charges I'm claiming for and the dates they were applied. Cue baffled expressions from me and the sheriff. The sheriff asked the agent if Clydesdale were seriously contending that they didn't know my account number? The agent said "Apparently not, my Lady." I then produced Clydesdale's letter of settlement to me, which was sent on the 31st of August:

Dear Mr CheekyChops

 

I refer to the above court action. I have today filed the Defender's Response to the Summons indicating that the Bank intends to defend the claim and state a defence.

 

I am of the view that the Bank has a valid defence to the claim, which failing a valid counterclaim for its common law damages. However, given the value of your claim it is uneconomical for the Bank to proceed to a Court Hearing. The Bank is therefore prepared to offer you the sum of £734.96 in full and final settlement of your claim against the Bank for all bank charges levied against your accounts numbers 50206446 and 50206175. Please note that interest is awarded at the discretion of the court.

 

This offer is made without any admission of liability and is made purely on a commercial basis. This offer is without prejudice to the Bank's whole rights and pleas and may not be referred to without the Bank's written consent.

 

In all the circumstances the Bank believes this to be a fair offer. Should you wish to accept it, please sign and return the enclosed duplicate of this letter, along with the Incidental Application and Joint Minute by Thursday 7 September 2006.

 

You should take independent legal advice or contact your local Citizens Advice Bureau if you are unclear on any of the terms of this letter.

Yours sincerely

 

Kirstie A Lawyer

As you can see, this letter contains several references to my account numbers, and the sum offered - £734.96 - is what I am claiming for anyway. When asked about this anomoly by the sheriff, the agent just shrugged his shoulders and said that he was just following instructions. The sheriff then asked me if there would be any problem in producing this stuff, to which I replied "No. I'll just print out the schedule of charges from my statement of claim, and add in the sort code". Now it was the sheriff's turn to to shrug her shoulders. "Fair enough", she said, "Do that then ".

 

At this point, the agent produced his master-stroke: Clydesdale's defence...

 

The following is copied verbatim from the piece of paper which the agent gave the sheriff:

 

The Bank's defence will be that:

 

1. The contractual relationship between the Pursuer and the Bank was governed by the Bank's standard Terms and Conditions.

 

2. Those Terms and Conditions provided that charges would be applied to the Account if the customer went over his authorised overdraft limit, and for returning items unpaid due to insufficient funds being in the account.

 

3. It is denied the charges represent a contractual penalty or fine and it is denied that the charges are unfair within the meaning of the Unfair Terms in Consumer Contract Regulations 1999,

 

4. It is the Bank's position that the charges were service charges debited in accordance with the applicable Terms and Conditions in place with the Pursuers.

 

5. Esto, there has been a breach of contract, which is denied, the charges are not unconscionable nor extravagant and are thsrefore liquidated damages, rather than a penalty.

 

6. The Terms and Conditions are fair having regard to: 1) the cost to the Bank of maintaining administrative systems relating to unauthorised overdrafts, unpaid cheques and direct debits, and abuse of cheque and debit cards for rhe purpose af keeping the level of overdrawing under review and controlled as far as possible; 2) the increased risk of loss to the bank arising from such unauthorised transactions and the associated costs of enforcement and recovery systems; and 3) the need to operate standard procedures and to set standard charges in order to avoid the substantial costs of individual assessment In relation to each particular case.

Obviously, the Admins and Moderators of this forum have been trying to get one of the banks into court properly for some time now, so this may present a good opportunity to do that. I have to say however, that their defence as it stands is probably going nowhere, so it'll be interesting to see what they come up with later. The proof hearing is on the 19th of December. In the meantime I have to send them my account number and sort code, and they have to submit a proper defence. One thing I was careful to raise with the sheriff was the issue of witnesses. I have the right to call witnesses to support my case, and I made sure I got the agreement of the sheriff to call witnesses from Clydesdale. We reckon we've identified the people we want to get in to talk about their charging regime, and the sheriff made it clear that it would be preferable if they came voluntarily, but I can issue a summons if necessary. A summons is served by Sheriff Officers on the individual, and carries with it some pretty severe penalties for failing to appear. The sheriff did make it clear that it probably wouldn't be reasonable for me to send a summons to the Chief Executive, but other than that, I can call whoever I like.

 

A couple of people have asked me about the following paragraph in Clydesdale's offer letter:

This offer is without prejudice to the Bank's whole rights and pleas and may not be referred to without the Bank's written consent.

As far as I'm concerned, if they want confidentiality from me, they should get my agreement before they send me anything, otherwise I'll feel free to do as I please with their letter. Note also the contradiction which follows later:

You should take independent legal advice or contact your local Citizens Advice Bureau if you are unclear on any of the terms of this letter.

What am I supposed to make of this? Am I supposed to get their written permission before discussing it with a lawyer? This is the sort of nonsense that lawyers like to put into letters to try to scare non-lawyers into thinking that BAD THINGS will happen to them if they don't behave and do as they're told. The letter doesn't say what the consequences of discussing their offer might be, but as they say in hospital: DFKDFC

[ozzywizard]

Very interesting read, keep it up and good luck. The account number defense was so funny and yet so unbelievable. Would love to know what the sheriff was thinking when you defended with the letter. Bet his face was a picture.

[hoogie32]

Thats a brilliant read,

 

Keep up the good work

[JMio]

Good man - thanks for posting that!

[Robertxc]

Clydesdale's defence so far is a variation on the 'manual intervention' argument that's been tried (and abandoned) by most of the banks at some point. Essentially, they're saying that the £30 they charge for not paying a direct debit is a fee for a service, and not a penalty. They specifically mention that it's a liquidated loss, which is something they're going to have to corroborate in court.

 

Note also the following:

The Terms and Conditions are fair having regard to: 2) the increased risk of loss to the bank arising from such unauthorised transactions and the associated costs of enforcement and recovery systems

Here they seem to be suggesting that if you bounce a cheque or direct debit they're going to make you contribute towards someone else's bad debt!

 

There are any number of holes in this defence, and I'm aware that it is similar, if not identical, to the defence which others have received. We're going to be disecting it over the next couple of weeks and coming up with a proper strategy. In the meantime, anyone who has a court date against eith Clydesdale or Yourkshire, should keep a close eye on the CD/YB forum, and PM one of the Mods if they're unsure about what to do.

[Piggy bank]

Thanks for the good work Robertxc. Personally, I have my preliminary hearing aginst clydesdale in Edinburgh next month.

 

Do you know if they have only used this defence in Scotland so far?

[arthur071169]

Re the analysis of this defence, if there can be established a 'standard' offence that we can use as our starting point when (if) court action occurs, it would be *very* usefull if it could be posted to us all.

Especially if the case falls in favour of one of us.

I am aware that 'perhaps' the board is being trawled by a bank rep so this could become a problem, ...

we do not want them prepping prior to a case especially if we have a full hand of winning cards to deal in the court.

 

If even ONE claim has been won, does this not set precedent *if* future claims are consistent and against the same banking rules and guidlines that they claim are not being broken?

 

Arthur071169

 

Clydesdale's defence so far is a variation on the 'manual intervention' argument that's been tried (and abandoned) by most of the banks at some point. Essentially, they're saying that the £30 they charge for not paying a direct debit is a fee for a service, and not a penalty. They specifically mention that it's a liquidated loss, which is something they're going to have to corroborate in court.

 

Note also the following:Here they seem to be suggesting that if you bounce a cheque or direct debit they're going to make you contribute towards someone else's bad debt!

 

There are any number of holes in this defence, and I'm aware that it is similar, if not identical, to the defence which others have received. We're going to be disecting it over the next couple of weeks and coming up with a proper strategy. In the meantime, anyone who has a court date against eith Clydesdale or Yourkshire, should keep a close eye on the CD/YB forum, and PM one of the Mods if they're unsure about what to do.

[Robertxc]

Thanks for the good work Robertxc. Personally, I have my preliminary hearing aginst clydesdale in Edinburgh next month.

 

Do you know if they have only used this defence in Scotland so far?

I'm not sure. I do know that at least three of the Moderators are pursuing this bunch, and I believe that all the claims are being handles by CB/YB from Glasgow, so it stands to reason that the defences will be the same.

[SR7133]

Extremely interesting developments - the defence they put forward in court is almost identical to what they said in their reply letter rejecting my claim for repaying my charges.

 

I have a Preliminary Hearing on 13th November 2006 and will be ready for this defence.

 

When it comes to witnesses from the Clydesdale Bank I would be very interested as to who you are thinking about citing - I had thought about this eventuality but never got beyond this as they went & settled.

 

I think that at some point they are going to give a claim a "run" in court but not sure if they will if it means putting CB employees in the witness box.

 

SR7133

[Robertxc]

Re the analysis of this defence, if there can be established a 'standard' offence that we can use as our starting point when (if) court action occurs, it would be *very* usefull if it could be posted to us all.

Especially if the case falls in favour of one of us.

I am aware that 'perhaps' the board is being trawled by a bank rep so this could become a problem, ...

we do not want them prepping prior to a case especially if we have a full hand of winning cards to deal in the court.

 

If even ONE claim has been won, does this not set precedent *if* future claims are consistent and against the same banking rules and guidlines that they claim are not being broken?

 

Arthur071169

To be honest, I'd be gobsmacked if the bank weren't reading all this stuff, but so what? It is a public forum, and there's no realistic prospect of filtering out the bank watchers, so why bother trying? If you must use a game analogy, it might be better to think of it as a game of chess, rather than cards. With chess all the pieces are in full view, and everyone can see all the angles. If anything really sensitive needs to be discussed, there are all sorts of ways of doing it privately. The argument we use to recover bank charges is well known and well tested. The various banks' defences are all pretty well known too, so it's pretty much a matter of everyone holding their nerve until they settle. Obviously, we're always on the lookout for new strategies from the banks, and whenever one appears there's generally quite a bit of behind the scenes debate among forum's legal types to see if it's any sort of threat.

[kaiser_solsay]

Hey Robertxt,

 

Just read through this thread. As you are aware I just won £1,669 back from the Nationwide....but the Clydesdale seem to be a little more focussed with their defence in comparison. I shall read your progession with interest and will draw as much from it a possible for my own case. I posted my second letter to them yesterday requesting full payment of the £1,900 in fees applied to my account over the past 6 years....and I fully expect a '****-off' letter back.

 

I look forward to your developments.

 

Thanks again

[caro]

The defence looks very similar to my English version, but mine runs to about 7 pages including the counterclaim. Given the variation in English and Scottish Law, it is interesting that Kirstie Ross seems to deal with claims on both sides of the border.

[JulesTools]

She may not do when I submit a claim to the Law Society re my joint account claim:D

[Robertxc]

Probably more effective if you do it to The Law Society of Scotland.

 

[caro]

I have just checked both the Law Society and Law Society of Scotland, and she is on the Scottish one but not the one for England and Wales.

[JulesTools]

Not up on these things but...... does this allow her to practice in england or not??

[Robertxc]

Not up on these things but...... does this allow her to practice in england or not??

No, it does not. I wouldn't stop her instructing an English solicitor however.

[caro]

Not up on these things but...... does this allow her to practice in england or not??

I imagine it doesn't stop her doing the claims on behalf of the company as she works for them. I should think it is all above board. I can't imagine YB jeopardising their cases, defences, counterclaims etc by not following court procedures. Although on the surface some of the things they do seem odd, when you delve further into the law, some of the things they come up with are actually quite clever, although extremely intimidating.

[Bigmac versus]

Great thread, will watch for updates robertxc, good luck.

[mel5]

Wish we could swap court dates, Robert.

 

My proof hearing is on the 1st December. I'll be watching this thread closely for tips on what to do.

 

I'm desparately hoping that they will settle before that.

 

Mel5

[Robertxc]

Don't worry mel, we'll make sure you're properly prepared for the 1st.