Matt Vs RBS..... Round 2

[matt_smith2000]

Ok this isn't as bad as I first thought. Unfortunately Willow, I don't own a scanner. RSI it is!

 

I'll break this down into two parts, the defence and the request for information.

Defence

 

1. The defence is filed and served without preducice to the defendant's case that the POC do not disclose reasonable grounds for bringing a claim against the claimant to recover the bank charges (and interest thereon) referred to in the POC or any other sum(s). In teh event that the claim is not propperly paticularised, the defendant will apply to strike out the claim and/or for summary judgement in respect of the same.

 

 

Well I thought my POC was damn good actually

 

2 No Admissions are made as to what charges have been debited to the claimant's bank account.

 

3. The claimant refers under para 3 of the POC to having provided the defendent with a copy of the list of charges Blah Blah blah

 

Done on three separate occasions actually, all recodered delivery so tough. Also, they wouldn't have been able to make an offer if they hadn't got the scheduale of charges. these people must think we're thick.

 

4. In relation to the allegation that the contratual provisions pusuant to which the charges have been applied are enforceable by virtue of the UCTA 1977 and/or UCTCR 1999 and/or common law, the claimant is required to identify:

 

4.1 (a)Sections of the UCTA 1977 (b) the regulations of the UCTCR 199 and © the principles of common law relied upon by the claimant alleging that the contractual provisions reffered to are unenforceable

 

4.2 The ciontractual provisions that the claimant allege are invalid by reference to UCTA 1977 and/or regulations.

 

As the request was served pursuant to that old gem, CPR part 18 and the reasons why the request was served are set out in teh response, they can sc&!w themselves, I think.

5 In relation to the case of the claimant that the charges are unreasionable within the meaning of section 15 of the supply of goods and services act 1982, the defendant pleads as follows:

 

5.1 The claimant is required to plead and prove the neccessary factors (referred to in section 15 SGSA) concerning the contract between the claimant and the defendant which mean that pursuant to SGSA section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract.

 

err, isn't this what we want the bank to establish? what the breakdown of the charge is so that its status of reasonability can be established?

 

5.2 The claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable (b) all the facts and matters relied upon the cllaimant in support of this case and c) what charges would have been reasonable

 

Bloody likely!

 

5.3 In the circumstances no grounds are disclosed for a claim that the Defendant has acted in breach of SGSA section 15.

 

5.4 In the circumstances the defendent is unable to plead to this allegation beyond denying that it has acted in breach of SGSA S15 as alleged or at all. The Defendent reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paras 5.1-5.3 are addressed.

 

5.5 it is the case of the defendant that the contract between the claimant and the defendent does not fall within SGSA section 15 because (a) the consideration for the service would be determined bt the contract between the claimant and the defendent and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimant and the defendant.

 

6. The claimant's claim for costs not being sufficiently particularised, the defendant is unable to plead and reserves the right to plead on further particulars

 

Show us yer costs yer bandits!

 

7. To assist the claimant with the proper paticularisation of the claim, the defendant serves with this defence a request made pursuant to CPR pt18. if the claimant fails to provide the particulars requested in the time stipulated and/or the defects with the claims (reffered to in para 1) remain then the defendent will apply to the court for an order striking out the claim

 

Will you now! We all know what the CPR pt 18 is......

 

8. Pending the proper particularisation of the claim, the defendent is unable to plead to the claimants claim beyond at this stage denying that the defendent is liable to the claimant as alleged in the claim or at all. The defendent reserves its right to amend this defence to plead further to the claimants claim once or if the claimant properly particularises the same

 

Like i said, i though my POC was OK

 

Request for Information

 

1 This request is served pursuant to CPR Pt18, alternatively with regard to CPR Rule 27.2 (3)

 

2 the reason why this request has been served are set out in the defence which has been served by the defendent

 

Now at this point, I'm thinking that because CPR Pt 18 doesn't apply to the small claims track and the CPR Pt 18 is based on the reasons set out in the defence, the entire defence is tosh.

 

3 You are asked to provide a response to this request bt 27/2/07

no fear, registered of course

4 If you are unable to provide a reponse by this date then you are asked to contact the defendeants solicitors promptly

As above

 

5 In the event that you do not provide an adequate response to this request then the defendent can allpy to the court for an order requiring you to provide the info requested or an order striking out the claim.

 

 

So to what i am being asked to provide:

 

2.1 Scheduale of charges (only for the fourth time!)

 

2.2 In relation to each charge, clarify (a) is it the case of the claimant that the same should not have been charged (b) if yes; please explain why the claimant contends that the same should not have been charged © if no; iis it the case of the claimant that the same should not have been charged in this amount? 9d) if yes;please explain whay the claimant contends that the same should not have been charged in this amount and identify the sum the claimant contends should have been charged (e) if no; please state the claimants case.

 

3. In your claim, you state that the charges are 'unenforceable under the UTCCR 199, the UCTA 1977 and at common law' and 'they must be reasonable inder s15 of the supply of goods and services 1982"

 

4. Please specify all of the facts relied on by the claimant in support of the contentions in para 3 above, and in particular please identify (a) the sections of the UCTA 1977 (b) the regulations od the UCTCR 1999 and © the principles of common law relied upon by the claimant in alleging that the contratual provisions referred to are unenforceable. Please also identify the contractual provisions that the claimant alleges are unenforceable by reference to UCTA/ the regulations

 

 

 

 

 

Phew!!!!!!

 

 

 

My response thus far is:

 

Dear Sir/Madam

 

I acknowledge receipt of the defence posted on behalf of Royal Bank Of Scotland plc.

 

With reference to the request you made for 'further information', served pursuant to CPR part 18, I anticipate that the claim will be allocated to the small claims track. The consequence of this is that I would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative.

 

Furthermore I consider that the CPR Part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. I have to date received one part settlement offer from your Client, thus showing that full particulars of my claim have been received, as your Client would not have entered into discussions of settlement from figures plucked out of thin air.

 

However, for clarity, I confirm the charges I am claiming were applied to the following account:

 

Account name: Matt and xxxxxxxxx

ACCOUNT NUMBER: xxxxxxxx

SORT CODE: xx-xx-xx

 

I enclose a copy of the schedule of charges, previously issued to your Client on two separate occasions. This schedule now includes the revised amounts of interest pursuant to s.69 of the County Courts Act 1984 at 8%.

 

What do you think?

[Guest willowb]

because CPR Pt 18 doesn't apply to the small claims track

Actually that request is ok up until allocation by the Judge....I'll find a thread for you which you can use to send your own CPR 18 request;)

 

Everything else is pretty standard....RBS recently stated in their defence that my POCs were 'embarrassing'....ahem....two weeks later they have settled out of Court!!! Most of it, if not all is generic:)

 

Wxxx

[Guest willowb]

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland-bank/32948-cpr-18-requests-costs.html

 

Enjoy!

 

Wxxx

[matt_smith2000]

Is the letter of response OK though?

 

Do i send the letter of response as above, and send them a separate cpr 18.

 

Confused!

[Guest willowb]

Sorry Matt, yes the letter is fine (edit your full names hun;) )....had a few glasses of red last night....do forgive me for getting 'carried away' lol.

 

I agree that using the CPR 18 request is an intimidatory method used by a few sols to 'put the legal jargon fear of God' up people!!! and the Judge wouldn't expect you as a LiP to be able to answer all of the requests, the way they are requested. (But if you are going to send your own then take that bit out of your letter).

 

Having said that Rbrears response by sending his own (he is a sol himself! the link in post#53) CPR request may just hurry along the procedings as they WILL NOT be able to answer without making their case for Defence fall apart....rbrears template is near the end I think, it's easily adjusted to suit. Send a copy to the Court and a copy of theirs also.....it's always best to do this as it helps the Judge to allocate....brownie points!

 

I hope this had made it clearer?

 

It's only a matter of time now before they start making serious offers, wait and see!

 

Wxxx

[matt_smith2000]

Hello Willow. I'm a process sort of person, an like to get things absolutely clear in my head before I carry on.

 

My options are, send the letter as it is, or

• Scrap this letter, and draft an ammended POC, as per rbrears thread.
  
• Send this to the court and to Cobbetts, stating that the POC have been amended as per the CPR18 served by Cobbetts. Also, send a copy of Cobbetts CPR18 request. (does this serve by way of an answer to their CPR18?)
  
• Cobbetts would then have to agree to the the changes, as they had requested the changes. There would be no cost associated with the courts, as Cobbetts had requested the changes, not me.
  
• In parrallel with the above, I send Cobbetts and the courts a CPR 18 of my own, as per rbrears thread.
  
• This would then have the dual effect of answering my bit of their CPR18, whilst I have served a CPR18 on them.

Is this correct?

[matt_smith2000]

Does anyone have a standard set of Ts & Cs for RBOS IPCA i can have.

 

They're not on the website (suprose suprise) and I can't find anything in my filing box on them.

 

I need it for updating my POC

 

regards

[Guest willowb]

I think you may be complicating matters, don't forget that you could deal with this request by sending a letter like.....

 

CPR Part 18 REQUEST

Claim No: XXXXX in XXXX County Court

 

I acknowledge receipt of your defence & request for further information and clarification.

 

I would like to advise you that I am a litigant in person in this matter, and so do not feel that I am adequately qualified to understand or respond to the points you raise in your letter. Consequently, I have decided that I will await the hearing on xx/xx/xx, at which I will ask the judge for guidance on the best way to respond to you.

 

I anticipate that the claim would be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative

 

However, for clarity, I enclose a schedule of charges and I confirm the charges I am claiming were applied to the following account:

Account Name: XXXXX

Account numbers: XXXXX

Sort Code XXXXX

Amount XXXXX

 

Yours sincerely

I have extracted parts of the thread below for clarity, I know that you have read it, but for the benefit of anyone else who it may help.

 

Your POCs are fine so why change them?

 

If you do decide to respond to their request then here's the template from DNA (just cross check it and amend if required).....this is a much as I know to date, there may be other research into this so please feel free to pm a mod to check your thread out!.....if you are going to go down this road then I would advise some 'higher' form of guidance.

 

1. In your claim you state "the Claimant is claiming the return of money taken by the Defendant in charges".

 

2. Please provide the following particulars in support of your claim.

 

2.1 In relation to each charge please identify

 

(a) the date when the charge was applied;

 

(b) the amount of the same; and

 

© the reason(s) given for the charging of the same.

 

I refer the Defendant to the attached spreadsheet/document I have prepared in which I have listed the following:

 

(a) the date when each charge was charged;

 

(b) the amount of the same; and

 

© the reason given by the Defendant for the charging of the same.

 

2.2 In relation to each charge, please clarify the following:

 

(a) Is it the case of the Claimant the same should not have been charged?

 

The Claimant is aware that each charge has been debited by the Defendant from the Claimant’s account pursuant to the terms and conditions signed by the Claimant when the account was opened. However, please see my replies below.

 

(b) If yes; please explain why the Claimant contends that the same should not have been charged?

 

The Claimant does not contend that the same should not have been charged; merely that the charge made should have represented the Defendant’s liquidated losses and not the fixed charges applied by the Defendant according to the terms and conditions in force at the time the charge was made.

 

© If no; is it the case of the Claimant that the same should not have been charged in this amount?

 

This is exactly the Claimant’s case. Each charge debited by the Defendant from the Claimant’s bank account should not have been charged in the amount that was charged. It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant. The Claimant reminds the Defendant that it has been put to strict proof in previous correspondence and/or the Particulars of Claim that the amount charged for each charge debited does truly reflect the Defendant’s costs and that they are not making a profit from such charges – in the absence of any documentation to support the Defendant’s contention that each charge debited represents the Defendant’s liquidated losses, the Claimant contends that the Defendant has no defence to the claim that each charge is disproportionate and therefore unenforceable in common law, or by the previously claimed Acts, Statutes and Regulations pleaded.

 

(d) If yes; please explain why the Claimant contends that the same should not have been charged in this amount and identify the sum the Claimant contends should have been charged.

 

The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.

 

(e) If no; please state the Claimant’s case.

 

The Claimant has already stated a case in the Particulars of Claim (or as amended) and repeats the same claims as if they were repeated in this reply. The Claimant also refers the Defendant to the answer at 2.2© above.

 

3. In your claim you state that "the Bank’s charges are a disproportionate penalty and therefore unenforceable s they are contrary to common law".

 

4. Please provide the following particulars in support of your claim:

 

4.1 Please specify the clause(s) pursuant to which the charges were applied

 

Answer to follow – I can’t find a copy of the terms and conditions to reply to the request for specific clauses.

 

4.2 Please specify whether the charges applied were due to a breach of contract by the Claimant.

 

The Claimant is aware that the Defendant contends that the charged applied to the Claimant’s account were due to a breach of contract on the part of the Claimant strictly according to the terms and conditions applied to the operation of the Claimant’s account; however, the Claimant has pleaded that the Court make a declaration that the contract between the Claimant and Defendant is invalid in light of the claim that the Defendant’s charges are disproportionate and therefore unenforceable and/or invalid. This decision will be made by a Judge at the final hearing of this matter. It is therefore not for the Claimant to reply as to whether the charges applied were or were not due to a breach of contract by the Claimant.

 

4.3 Please identify in each case the particular breach of contract (by reference to appropriate term(s) of the contract that the charge related to.

 

Again, I need to see the relevant terms and conditions to refer to.

 

5. In your claim you state that the charges are "invalid under the Unfair Contract Terms Act 1977 s4 and the Unfair Terms in Consumer Contracts Regulations 1999 para 8 and sch 2(1)(e) and "unreasonable within the meaning of the Supply of Goods and Services Act 1982 s15".

 

6. Please specify all of the facts relied on by the Claimant in support of the contentions in paragraph 5 above, and in particular please identify the contractual provision(s) that the Claimant alleges are invalid by reference to the Unfair Contract Terms Act 1977/the Regulations.

 

The Claimant specifically pleads that the charges debited to the Claimant’s account by the Defendant are automatically unfair because, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract (which the Claimant pleads is invalid in any event) to the detriment of the Claimant. "Good faith" (as defined by the Unfair Terms in Consumer Contracts Regulations 1999) means that that the Defendant must deal fairly and openly with the Claimant. The Defendant has not dealt fairly and openly with the Claimant. Further, as the contractual term (i.e. each and every charge debited from the Claimant’s account according to the "contract" entered into by the parties pursuant to the Defendant’s terms and conditions, as well as the terms and conditions themselves) was not individually negotiated and was drafted in advance, the Claimant was unable to influence the substance of the term, making it unfair. In the absence of a breakdown of the Defendant's liquidated losses and/or actual costs of each and every charge applied to the Claimant's account, the contractual term in force at the time of the charge forced the Claimant to pay a disproportionately high sum to the Defendant in compensation for the Claimant’s alleged failure to fulfil his obligation.

 

 

 

Now rbrears template for your own request....

 

1. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence please provide full details (with all relevant supporting documentation) of:

 

 

a) any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim;

 

b) how charges are applied to the account (whether automatically or by some other means) and when;

 

c) the Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant;

 

d) the justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

 

2. Of paragraph ? of the defence in which the Defendant avers that the charges are applied in return for the provision of a banking service to the Claimant:

 

a) Please identify each and every such service referred to in the defendant’s terms and conditions and identify the charges, by reference to those terms and conditions, that the Claimant is required to pay for each service identified.

 

b) Please confirm what steps are taken by the defendant in providing the alleged services referred to in the defence. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the Claimant.

 

c) Please confirm whether charges are applied automatically.

 

 

 

Wxxx

[matt_smith2000]

So could I answer with your CPR response letter template, and also issue my own CPR Pt 18 to Cobbetts?

 

I have drafted the following:

 

IN THE NORTHAMPTON COUNTY COURT Claim No. abcdefgh

 

Between:

 

Matthew Smith Claimant

 

-and-

 

The Royal Bank of Scotland PLC Defendant

 

 

REQUEST FOR FURTHER INFORMATION AND CLARIFICATION

 

 

 

1. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence please provide full details (with all relevant supporting documentation) of:

 

a) any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim;

 

b) how charges are applied to the account (whether automatically or by some other means) and when;

 

c) the Defendant’s assessment of the cost to it of sending any letter making any telephone call or otherwise administering the account, with details of how the cost to the Defendant is calculated and what items of expense are included, or such other costs as are foreseeable in the context of contractual damages and the remoteness thereof and which can be specifically identified and defined and which can be reasonably attributed to each and every breach on the part of the Claimant;

 

d) the justifiably objective principles upon which all such costs are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

 

2. If the charges are applied in return for the provision of a banking service to the Claimant:

 

a) Please identify each and every such service referred to in the defendant’s terms and conditions and identify the charges, by reference to those terms and conditions, that the Claimant is required to pay for each service identified.

 

b) Please confirm what steps are taken by the defendant in providing the alleged services. Please provide copies of all notes, memoranda, or other information retained by the defendant to demonstrate the provision of the alleged services to the Claimant.

 

c) Please confirm whether charges are applied automatically.

[matt_smith2000]

Also Willow

 

I've really got to thank you for all the help received so far. There are so many things done intended to put the frightners on, and at first glance do. My wife keeps cursing me saying that we should have accepted their first offer, the pessimist she is. But I think we'll pull through!

 

Could anybody have a look at my CPR pt 18 type request to make sure its OK. I intend to send a response to their CPR pt 18 as per Willows template above, and in a separate letter send my own CPR pt 18 type letter as per the template above.

[Guest willowb]

Hi Matt, no problem:) ....can you pm a mod with a link to your thread? or a site helper? I wouldn't want to go 'yeah great go for it' without a second opinion....ok?

 

Wxxx

[matt_smith2000]

Bankfodder say yes

 

Good enough for me! I will send both letters tomorrow.

 

Not long now. I can sense it. AQ form (N149) completed by my superb wife. I will take the trip to Rotherham County Court on payday (i.e. the 27th) which would give Cobbetts plenty of time to consider things over with their 'client'.

[Guest willowb]

Bankfodder say yes

Bloomin 'eck! talk about going to the top!!!! .....cool!

 

 

Good luck

Wxxx

[matt_smith2000]

Both letters sent.

 

I sense this week is going to be better than last week. Got myself into a right old flap with things last week. I'm feeling more relaxed now the letters are sent.

[matt_smith2000]

A quick question about Directions.

 

 

I have all the templates for issuing directions as part of the AQ. But I have been given the N149, which doesn't have a section for inserting directions.

 

Can this be done with an N149? Can I take print a set of Directions off and take it to the court with my AQ and fee ?

 

Cheers

[Guest willowb]

I don't know Matt, maybe ask somewhere like here http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html?

highlight=allocation+questionnaire

 

There should be someone who knows.....Karnevil is your best bet.

 

Wxxx

[matt_smith2000]

Thanks Willow

 

Sorted. It can. AQ Complete. Draft Order printed. Ready for submission on Monday.

[matt_smith2000]

Hello

 

A quick question for anybody.

 

Once the AQ has been submitted using the new strategy, how soon would the judge normally order the directions? (is it days, weeks?? I'm just trying to establish some kind of timeline, rough though it may be).

 

Once ordered, when I send the information, do I send it to the court, or both the court and Cobbetts? (I think both just to be courteous, also, I may well start getting ink cartridges ready for the printer!!!)

 

Thanks

[matt_smith2000]

OK

 

The AQ is due on the 4th March, making the absolute deadline for submission Friday 2nd March (4th March is a sunday), although I will phone the courts up tomorrow just to make sure.

 

Not heard a peek out of Cobbetts or RBOS since the acknowledgment of defence and request for info from me was sent, or their copy of the AQ.

 

The AQ is complete, using the new strategy for filling in AQs.

 

The draft directions have been printed off, and are ready for attaching to the AQ.

 

The documents that make up the requirements of the statement of evidence have been downloaded and ammended to suit, just in case. Copies of Cobbetts and RBOS correspondance filed under theiving banks.

 

Christ, this is dragging innit.

 

Its gotta be close now. Mbdiss was almost at the same point as me, so just maybe tomorrow or thursday post should bring something.

[matt_smith2000]

AQ submitted. The deadline is Sunday 4th.

 

RBOS haven't submitted an AQ yet. I spoke to the court, and they said that even if their AQ is submitted say on Monday, Tueday or Wednesday, the District Judge will still accept it.

 

How unfair is that eh.

 

Still, once the DJ accepts my draft directions (fingers crossed that he/she does) it should be all over within 28 days of issuing the directions.

 

The court bundle is looking OK at the minute I think. i've checked, double checked and triple checked it against the templates and threads on CAG.

[Guest willowb]

Well done Matt, you're thorough I'll give you that!!!

 

My guess is you'll have this settled within a month!

 

Wxxx

I have had a glass of wine, so am feeling feisty...lol

[matt_smith2000]

Good call. I think I might open the pinot grigio in the cooler, actually. Kids are scrapping downstairs at the minute, so it'll be straight to bed for them.

[Guest willowb]

get them to bed and pour that pinot!!!!!!

 

 

Night night

Wxxx

[matt_smith2000]

Got a copy of Cobbets AQ today. There was no additional info, so at least they're not pulling the same trick as I did witht he draft directions.

 

A quick question, which I believe is important. Should I have forwarded cobbetts with a copy of my AQ, or do I let the courts do that, seeing as cobbetts have sent a copy to me.

 

I'm going to have a read of some more threads anyway.

[Guest willowb]

Hiya Matt,

 

I've never forwarded a copy to the defendant, the Court has always done it. In fact Cobbetts is the only firm to have forwarded one to me, non of the others ever have:confused:

 

Wxxx