Clydesdale's detailed defence

[Robertxc 604]

Received last week, this is Clydesdale's detailed defence to my claim. A bit disapointing to be honest, they seem to be going over ground that most of the other banks abandoned months ago.

 

ROBERTXC

 

PURSUER

 

Against

 

CLYDESDALE BANK PLC, a company registered under the Companies Acts and having its registered office at 30 St Vincent Place, Glasgow G1 2HL

 

DEFENDER

 

1. Admitted the parties are as designed in the instance. Admitted they have a place of business within this Sheriffdom. Admitted the Pursuer is a consumer within the meaning of paragraph 3 to schedule 8 of the Civil Jurisdiction and Judgments Act 1982 as amended. Admitted the Pursuer is domiciled within the Sheriffdom of Fife. Admitted this court accordingly has jurisdiction. To the knowledge of the Defender there are no proceedings pending before any other court involving the present cause of action between the parties hereto. To the knowledge of the Defender there is no agreement between the parties prorogating jurisdiction of the present cause to another court. Quoad ultra denied except insofar as coinciding herewith.

 

2. Admitted the Pursuer has a current account with the Defender under explanation that it is a joint account with Mrs Robertxc. Quoad ultra denied. Explained and averred that at all material times the contractual relationship between the pursuer and Mrs Robertxc ("the Customers") and the Defender was governed by the Defender's standard terms and conditions for current account customers from time to time in force. The terms and conditions have been amended from time to time, however at all material times these terms and conditions provided that:

(1) the Customers must obtain the Defender's agreement before overdrawing on the Account;

 

(2) If the Defender made payments from the Account or paid cheques which were guaranteed by the associated cheque guarantee card when there were insufficient funds available, any overdraft created or any overdraft which exceeded an agreed overdraft limit would be unauthorised;

 

(3) If the Customers drew cheques or authorised or made payments without sufficient money available in the Account, taking account of any overdraft Limit and allowing for uncleared cheques, the Defender might return the payments and make a charge for doing so;

 

(4) charges and interest applicable to the Account were published in the form of tariffs and up-to-date tariffs were available in branches;

 

(5) where appropriate, written details of overdraft charges and debit interest incurred on the Account during the previous charging period (i.e., the previous month) would be sent to the Customers at least 14 days before the charges and interest were deducted from the Account;

 

(6) If the Account had an unauthorised overdraft, additional charges might be levied which would be debited to the Account on the day on which the unauthorized overdraft was created;

 

(7) If the Defender increased a charge for a basic account service, the Defender would give the Customers at least 30 days' notice. At all material times the Defender's tariffs of charges for current account customers set out the charges from time to time applicable pursuant to its standard terms and conditions in respect of:

(1 ) unauthorised overdraft daily fees;

 

(2) unauthorised overdraft monthly fees;

 

(3) unpaid cheque or direct debit charges;

 

(4) card abuse fees (payable where a cheque or debit card is used to guarantee a transaction and payment would have been refused but for the guarantee).

3. Denied.

 

4. Denied. Castaneda and Others v. Clydebank Engineering and Shipbuilding Co. Ltd (1904) 12 SLT 498 is referred to for its terms, beyond which no admission is made. Quoad ultra denied except insofar as coinciding herewith.

 

5. Denied that the Defender's charges represent an unfair penalty charge in terms of theUnfair Terms in Consumer Contract Regulations 1999, 5.1. 1999 No 2083 ("the UTCC"). Explained and averred Paragraph 1 (e) of the Schedule 2 of the UTCC provides that "a term requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation may be regarded as unfair." The Charges are not compensation, but rather a fee for the service provided by the Defender in extending facilities to the Customers, all as envisaged by the agreement in place between the Defender and the Customers. Further and without prejudice to the generality of the foregoing:

(1 ) the terms and conditions were fair having regard to the following matters:

(a) the cost to the Defender of maintaining administrative systems relating to unauthorised overdrafts, unpaid cheques and direct debits and abuse of cheque and debit cards for the purpose of keeping the level of overdrawing under review and controlled as far as possible;

 

(b) the increased risk of Loss to the Defender arising from such unauthorised transactions and the associated cost of enforcement and recovery systems;

 

© 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;

(2) the terms and conditions complied with all relevant requirements of the Banking Code as the Banking Code was in force from time to time. Quoad ultra denied except insofar as coinciding herewith.

6. Denied.

 

7. Denied.

 

IN RESPEFT WHEREOF

 

Lyndsey M Solicitor

 

Solicitor

 

Clydesdale Bank Plc

 

30 S t Vincent Place

 

Glasgow

 

G1 2HL

 

SOLICITOR FOR DEFENDER

[SR7133 93]

I am likely to receive a similar defence early next month - I take it that your argument will basically be that the charges are unfair under the UTCC, that they are a penalty rather than a "fee" and that the Bank should provide details of their true charging costs?

[Robertxc 604]

I am likely to receive a similar defence early next month - I take it that your argument will basically be that the charges are unfair under the UTCC, that they are a penalty rather than a "fee" and that the Bank should provide details of their true charging costs?

Pretty much. This is also known as the 'Rhubarb defence' (because it's a load of rhubarb). I'll be responding and asking for clarification of various bits. I'll post more later.

[Piggy bank 1]

Hi Robert and SR7133. I'm right behind you.

 

Apologies for the slight digression on the above, my preliminary hearing is in Edinburgh a week after SR7133 (I might just pop along!), and I today received my offer of settlement letter from Lyndsey M. The settlement letter was very similar to the one in Robertxc's original thread at http://www.consumeractiongroup.co.uk/forum/yorkshire-bank-clydesdale-bank/37345-robertxc-clydesdale-bank-court.html

Basically, they offered the total sum of the charges, but not the interest I calculated, nor the costs. Naturally, I don't intend to take them up on this. Did you write to them to state that you wouldn't take them up on the settlement offer Robert?

 

Back to their defence: I have used the same GovanLawCentre statement of claim with the detailed Scottish jurisprudence, so will no doubt receive the same defence as above.

Interesting how they are trying to pad out the defence to make it look more valid. The substance remains very insubstantial.

 

Will be very interesting to see how this pans out. Keep us posted.

[Robertxc 604]

I rejected their first offer, and then accepted their second - almost identical one - as full and final for this case only.

[Piggy bank 1]

So they sent you a second offer after the preliminary hearing, and you're no longer due in court for a proof hearing?

[Robertxc 604]

Thier second offer was pretty much identical to their first. I think the only difference was that they were offering to pay my costs as well. The proof is still on, unless they agree to settle on the basis of this claim only. I'm drawing up a detailed response to their defence with the help of some of the legally qualified Mods and Site helpers. In the meantime, if you get one of these, I'd appreciate t if you could let me know. I doubt you'll get one until after the preliminary hearing.

[Piggy bank 1]

Thanks for clarifying. I doubt I would receive this defence until after the preliminary hearing as well, but will let you know any further details I might get during the coming weeks.

 

I will write to them for now rejecting their offer of settlement. I calculated interest as part of my claim because for every charge interest will have been claimed untill the moment of repayment, and want to pursue this interest as well as the costs.

 

On a final note, I'm not 100% sure I understand how your proof hearing is still scheduled if you've accepted their second offer of settlement. Would they not inform the court that a settlement has been reached and the case taken off the rota? My settlement offer certainly includes a 'joint minute' for this purpose, to be signed by Clydesdale and me. I take it you didn't sign this joint minute then?

[Robertxc 604]

Nothing's settled until I have cleared funds in my possession. Also, it's not for them to tell the court that it's settled - I'm the pursuer, so that's my job.

[Piggy bank 1]

Couldn't agree more! So how did you accept their second offer - in writing?

[Robertxc 604]

Yes. Never phone. Always write.

[Piggy bank 1]

Excellent. However, don't you think then that even if both you and Clydesdale bank show up for the proof hearing, they will confirm to the sheriff that you have agreed to a settlement, and hence it is unlikely to come to arguing the legal points in the claim and their defence against it?

[Robertxc 604]

My proof hearing isn't until December, so if it is settled, it will be done long before then. If you're close to settling (i.e. you're waiting for a cheque to clear), and the proof hearing date arrives, all that will happen is that it will be adjourned for a fortnight for settlement to happen. You should NEVER agree to end your case until you have actual cleared funds in your possession, because it's very difficult to get it back into court if for some reason payment doesn't arrive.

[Piggy bank 1]

Well, let's hope you have your money in your account by then!