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Contractual Interest: Full Details of Case against RBS including pleadings

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Hi guys,

 

I have been asked to put details of a case on this board by someone wanting to remain anonymous. The person in question feels that the details of this case may be beneficial to the wider community.

 

Full Settlement Received - £4519.38

Including Simple Contractual Interest - It was forgotten to include contracted interest on the Claimant's particulars of claim. This mistake cost the Claimant around £2000.00.

 

1.) Refund of Charges - £1357.50

Subject Access Request Fee, in the amount of £10.00, that the Claimant was required to pay in the perusal of this case

2.) £100.00 as compensation for the significant inconvenience caused to the Claimant by the Defendant erroneously levying the Charges to the Account;

3.) £500.00 compensation for distress caused to the Claimant by the Defendant erroneously levying the Charges to the Account;

4.) £100.00 to remunerate the Claimant for printing, photocopying, admin, general and other expenses necessarily incurred, and also the time spent in preparation and perusal for this claim;

5.) £150.00 exemplary damages;

6.) £100.00 aggravated damages;

7.) Contractual interest (29.84%, non compounded) - £2201.88

 

 

I have also been asked to anonymise the pleadings, correspondence, notes, etc in this case and post them on these boards. However, I will pass on any questions regarding the case if they are posted here.

 

The documents have been scanned and, as such, clerical errors can be expected in the files. These will be corrected as soon as possible, however due to constraint of time and resources this may not occur until December 2006/January 2007. Please note, that since this case has been settled it

new ideas have been formulated regarding these cases. With this in mind some slight modifications have been made to these files, however, these are only very minor and mainly typos that have been fixed.

 

It is hoped that the posting of these documents will help inspire people, not only to claim, but also to claim contractual interest.

 

PLEASE NOTE: As this thread will be updated regularly (including the updating of individual posts) you might went to check back regularly. It is wished that we had the time and resources to post all of the information we wish now, but sadly that isn't possible.

 

UPDATES:

27/11/2006 2030Hrs

In this case it is important to note that as the Particulars of Claim contained extensive (but concise) and relevant arguements completely different to the "conventional" claim method, the Defendant's defence didn't address many of the pertinent points, and as such, was entirely hopeless.

 

It might be a good idea if everyone, who could, drafted their own Particulars of Claim. This would force the Defendant's solicitor to read through everyone Claim Form in full (at great expense to their client) or risk losing the case because their defence doesn't deal with the intracacies of the Claim.

 

27/11/2006 2030Hrs

Note that these Particulars of Claim are most effective to claim simple contractual interest for the UNAUTHORISED interest rate. It is LESS effective for the AUTHORISED interest rate. See around paragraph 60 odd regarding interest and you will see.

 

These are the Google documents which can be easily exported to Word, Open Office, PDF etc.

Particulars of claim: Particulars of Claim

Defence: Justwon: Defence

Reply to defence: Justwon: Reply to Defence

Application for judgement summary: Justwon: Application for summary judgement

 

If you cannot use the Google software, please email Vampiress for help.

  • Haha 3
  • Confused 1

Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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IN COUNTY COURT A

 

IN THE CASE BETWEEN:

 

X

CLAIMANT

- and -

 

The Royal Bank of Scotland PLC

DEFENDANT

________________________

Particulars of Claim

________________________

 

 

 

PART I - INTRODUCTION AND GENERAL DETAILS AND BASIS OF CLAIM

 

Jurisdiction

1. This section is pled without prejudice to all matters not related to jurisdiction in this court.

2. The Claimant is a customer of the Defendant. The Defendant’s standard terms and conditions for personal customers (hereinafter referred to as the “Terms & Conditions”) prorogate jurisdiction of disputes in these circumstances, where the Claimant’s address isn’t in Scotland, to the courts of England.

3. Separtim: the Defendant:

a. is a company; which

b. was incorporated or formed under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom;

c. has its central management and control exercised in the United Kingdom;

d. has a place of business located within inter a Kingston Upon Thames, a place within England; and

e. accordingly the Defendant is domiciled within England as defined by the terms of s42 Civil jurisdiction and Judgments Act 1982 (as amended) (hereinafter referred to as the “CJJA”). As such this court has jurisdiction by virtue of Rule 1 of Schedule 4 to the CJJA,

4. Separtim: it is unclear whether or not a contract ever existed between the parties hereto relating to the subject matter of this action, Without prejudice to this fact, the Claimant contends that if one did exist it was a consumer contract, within the meaning of Rule 7 of Schedule 4 of the CJJA. Accordingly, this court has jurisdiction by virtue of Rule 8(l) of Schedule 4 of the CJJA.

5. Accordingly, this court has jurisdiction by virtue of Rule 1 and Rule 8(1) both of Schedule 4 to CJJA and also by the Terms & Conditions. Thus, this is a competent action which should be allowed to proceed on the basis of it having a jurisdiction and there being no reason for the court not to exercise its jurisdiction.

 

Factual Background

6. The Defendant is a well known commercial bank with branches in most moderately-sized settlements throughout Scotland and most major towns and cities in the United Kingdom. The Defendant also has branches and places of business throughout the world.

7. The Claimant has an account (hereinafter referred to as ‘the Account”) with the Defendant which was opened during or around May 2000.

8. During the period between 16 June 2000 and 31 January 2003, or thereabouts, the Defendant debited numerous charges to the Account, in respect of “unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. The Defendant has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto).

9. The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant. A copy of the Terms & Conditions is attached hereto.

10. The Claimant was only able to obtain complete details of the Charges by virtue of a Subject Access Request, served upon the Defendant, pursuant to s7 Data Protection let 1998. The cost for said request was £10.00 and the date whereof was 13 May 2006.

11. At various points in time, during the period in which the Defendant levied the Charges to the Account, the Claimant contacted the Defendant — pleading to have the charges refunded or even just reduced as they were consuming a significant portion of her income.

12. On or about 15 June 2006 the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said letter the Claimant made various assertions and arguments to substantiate her request, quoting relevant sources of law and evidence. Claimant concluded therein that the Charges were unlawfully levied to the Account by the Defendant. At this point the Claimant invited the Defendant to present a defence to this claim and set out its reasoning, making reference to any statutes, cases, authorities, opinions, references and/or evidence which it relied upon. As yet the Defendant hasn’t availed itself to this opportunity.

13. The Claimant subsequently received a letter from the Defendant, dated 19 June 2006. Therein the Defendant, informed the Claimant that the Charges would not be refunded. Further, the Defendant averred that the Charges were “fair, reasonable and transparent” and were provided for by the Defendant’s “published tariff’ which, it claimed, complied “with all applicable laws and regulations”. Unfortunately, the Defendant, was unable to provide any legal and/or factual basis for its assertions.

14. A letter before action was served personally, at l045hours on 27 June 2006 or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated 11 July 2006, giving its “final response” to the claim, denying a refund of inter a/ia the Charges, to the Claimant.

15. Claimant notes that the Defendant, to date, has made no attempt whatsoever to present a competent defence to the Claimant’s claim.

 

Brief Outline of Claim

16. Claimant as part of her basis of claim, advances that:

a. the Charges have been unlawfully applied to the Account;

b. no contract ever existed between the parties hereto that purports to allow the Defendant to levy the Charges to the Account. In that eventuality the Claimant is entitled to Judgement as sought in paragraph 64.

c. should such a contract exist it could only exist in the form of the Terms & Conditions.

d. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter. In that eventuality the Claimant is entitled to Judgement as sought in paragraph 64.

e. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defendant for services provided then they are irrecoverable as set out hereinafter, due to inter a/ia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable. In that eventuality the Claimant is entitled to Judgement as sought in paragraph 64.

f. the Defendant’s levying the Charges to the Account has resulted in significant inconvenience and distress being inflicted upon the Claimant, which she is entitled to compensation for;

g. the court should award exemplary and aggravated damages, to the Claimant.

17. In support of part of her basis of claim the Claimant contends, and intends to prove that:

a. the Charges are:

i. punitive in nature;

ii. unreasonable;

iii. generally disproportionate;

iv. excessive;

v. unfair;

vi. unlawful;

vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit;

x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and wouldn of incurred but for any alleged breaches of contract on behalf of the Claimant; and

xi. are held in in terrorem to discourage the Claimant from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item.

b. without prejudice to paragraphs 16(b), 21 and 22 of this claim, all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of:

i. the UTCCR;

ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’)

iii. the Supply of Goods and Services Act 1982; and

iv. the common law; and

c. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated.

18. The claimant makes reference to inter alia the following cases, in relation to the notion of stare decisis, to support her case:

a. Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co. [ AC 79 (hereinafter referred to as Dun1op”);

b. Lordsvale Finance PLC v. Bank o/Zambia [ QB 752;

c. Murray v. Leisureplay [ EWCA Civ 963; and

d. Bridge v. Campbell Discount Co. LtLL [ AC 600

e. Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [ EWE-Information Commissioner 281 (TCC) (hereinafter referred to as “McAlpine”)

f. f Commissioner of Public Works v Hills [ AC 368 (hereinafter referred to as “Hills”)

19. Additionally, the Claimant makes reference to inter alia the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin 21 (July to September 2002). as persuasive authorities:

a. Case 4 — Dampcure-Woodcure/30Ltd (hereinafter referred to as “OFT Case 4”)

b. Case 15 — Kids of Wilmslow Ltd (hereinafter referred to as “OFT Case 15”)

c. Case 18 — Legal & General Franchising t/a Parker Estate Agents (hereinafter referred to as “OFT Case IS”)

20. The Claimant reserves the right to raise additional issues at a later date, depending upon inter alia any defences that the Defendant lodges.

 

PART 2- INDICATION OF CLAIMANT’S SPECIFIC REASONING, ARGUMENTS, ETC

 

No contract ever existed between the parties hereto

21. No admissions are made by the Claimant as to the incorporation of any term in any contract between the parties hereto purporting to entitle the Defendant to levy the Charges. If the Defendant intends to rely upon such a term whatsoever as part of any defence it seeks to advance, then the Claimant calls upon it to show that such a contract and term did in fact exist.

22. Furthermore, except as detailed in paragraphs 62 and 63 of these particulars, no admission is made by the Claimant whatsoever as to whether she entered into a contract with the Defendant whatsoever. If the Defendant intends to rely upon such a contract whatsoever as part of any defence it seeks to advance, then the Claimant calls upon it to show that such a contract did in fact exist.

23. The Claimant does not recall ever entering into a contract with the Defendant with respect to the Account.

24. Assuming, the Defendant is unable to show that a contract existed as per paragraphs 21 and 22 then the Defendant cannot claim to have ever had any right whatsoever to levy the Charges against the Account and the Claimant is entitled to Judgement as sought in paragraph 64.

25. For the avoidance of all doubt, the rest of this claim is pleaded without prejudice to the non-admissions plead in paragraphs 21 and 22, and the submissions made in paragraphs 16(b) and 16(d).

 

Charges arise from a breach of contract

26. Should the Defendant be able to show that the Terms & Conditions form part of a contract binding the Claimant in relation to the Account, then it is almost axiomatic that the Charges are a result of breaches of contract on behalf of the Claimant.

27. The Claimant makes particular reference to the following. All of the Charges relate to a case where the Claimant has allowed a request for payment of an item to be presented against the Account, whilst it contained insufficient funds to cover the transaction. This is a clear breach of the Terms & Conditions. Term C4 makes it abundantly clear that, should the Terms & Conditions form part of a contract between the parties hereto then, the Claimant must have funds in her account to cover payment of items presented against it. As such, should the Terms & Conditions form part of contract between the parties hereto then, the Charges can only pertain to breaches of contract. Accordingly, the Charges are penalty charges and cannot be said to merely be service charges.

 

Unfair Terms in Consumer Contract Regulations (S 2083/1999)

28. Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.

29. Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

30. Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails tojuIjIl his obligation to pay a disproportionately high sum in compensation” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).

31. Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effrct oJ’enahling the seller or supplier to alter unilaterally without a valid reason any characteristics oJ’the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as un/air”. The Terms & Conditions allows the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”.

32. Regulation 8(l) of the UTCCR provides that: “.1n unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”

33. Particular reference is made to OFT case 4. Clause W’ had the potential to impose a high financial penalty when payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.

34. Further reference is made to OFT Case IS. In that case Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee offlO per letter sent concerning unpaid fees was deleted.

35. Further reference is made to OFT case 18. In that case, a commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

36. Accordingly, in light of paragraphs 33, 34 and 35, the Defendant is being at minimum fairly and amply compensated for unauthorised lending by the imposition of its unarranged overdraft interest rate. The imposition of further charges is unfair in terms of the UTTCR.

37. Separtim without prejudice to paragraph 16(b), 21 and 22 hereinbefore, regardless of whether or not this court finds that the Charges are remuneration to the Defendant for services rendered rather than compensation for damages arising from a breach of contract, if a term of contract exists between the parties hereto that purports to allow the Defendant to levy the Charges to the Account then such a term of contract is unfair, and hence unlawful and unenforceable, by virtue of regulation 5(I) of the UTCCR.

38. Accordingly, in light of the averments made hereinbefore regarding the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR. As such the Claimant is entitled tojudgement as sought in paragraph 64.

 

Unfair Contract Terms Act 1977

39. Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 64 of these particulars.

40. Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.

41. Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

Common law

42. The authorities mentioned in paragraph 18 and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the cases of Dunlop and Hills are powerful authorities in favour of the Claimant. Additionally, the case of McAlpine seems to re-affirm the views in these cases. Accordingly, the Claimant is entitled to judgment as sought in paragraph 64 of these particulars.

43. Lord Dunedin formulated the test for Penalty clauses as follows, in Hills “The general principle to be deduced is ... that the criterion of whether a sum -- be it called penalty or damages -- is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a ‘genuine pre estimate’ of the creditor’s probable or possible interest in the due performance of the principal obligation”

44. It was further noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

45. Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.

b. The essence of a penalty is a payment of money as “en terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests which would prove helpful, or even conclusive:

i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;

ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

46. In McAlpine, the aforementioned common law principles were held to generally be correct. Furthermore, it was held that where there was a substantial discrepancy between the level of damages stipulated in the contract and the level of’ damages which is likely to he suffered it can he said that the agreed pre-estim ate is unreasonable”

 

Response to possible service defence

47. This section is merely meant as a response to the possible defence, that the Defendant may attempt to raise, that the Charges are merely remuneration for services rendered and that the law on Penalty charges is irrelevant. This section is plead without prejudice should the Defendant not plead such a defence, or this court not find that the charges are merely remuneration for services rendered and provided for by an enforceable term of contract between the parties hereto. Furthermore, this section is plead without prejudice to the caveat of paragraph 25 of this claim.

48. Should this court, being of competent jurisdiction, find that the Charges are remuneration for services rendered by the Defendant, then they are irrecoverable as set out in this section hereinafter, due to in a/ia the fact that any terms which provide for the Charges are unfair and the Charges themselves are unreasonable. In that eventuality the Claimant is entitled to Judgement as sought in paragraph 64.

49. In particular, the Charges are unreasonable in the terms of sl5 Supply qf Goods and Services Act 1982. The Claimant submits to this honourable court that a charge of £20.00 for the administration resulting from the Claimant going over her authorised overdraft limit by £0.01 isn’t reasonable by any stretch of the imagination. The same can be said for a charge of £30.00 for an item which is returned as unpaid.

50. Furthermore, the Charges, regardless of their de facto nature are unfair by virtue of Regulation 5(I) of the UTCCR. Particular reference is made to the fact that any term of contract which purports to allow the Defendant to levy the Charges to the Account, contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the Claimant, who in this case is a consumer.

 

Distress and inconvenience suffered by the Claimant

51. The Defendant was aware, due to the transactions on the Account, that the Claimant’s income derived solely from state-funded benefits. The amount of these benefit’s was determined, by the relevant authorities, to be the minimum amount that the law stated the Claimant required to live on. Despite, this the Defendant unlawfully and erroneously levied the Charges to the Account. As such, due to the Defendant’s unlawful actions, the Defendant’s was left with significantly less than the “legal minimum” to live on. In some cases the majority of the Claimant’s income was debited from the Account, by the Defendant, in the way of the Charges, which were unlawful. As such, the Claimant’s standard of living was significantly suppressed due to the Charges.

52. [Removed from public file]. This impoverished condition is caused by inter alia a significant portion of the Claimant’s income being consumed by the Charges. [Removed from public file].

53. Accordingly the Claimant is entitled to compensation for Distress caused by the Defendant as detailed in paragraph 64(d) of these particulars.

54. The Claimant has spent significant time, effort and money in researching this case, and also in corresponding and pleading with the Defendant in attempt to have the Charges refunded to the Account. Accordingly the Claimant is entitled to compensation for inconvenience caused by the Defendant as detailed in paragraph 64© of these particulars.

 

Other relevant facts

55. Parliament has noted that the average default charge, in the banking industry, has increased by over 50% from £12 in 1998 to nearly £19 in 2003. It could be considered strange that the industry’s costs have risen so dramatically, when compared with the rate of inflation. Also, continued advances in IT should have reduced costs by automating processes.

56. The Claimant has never been the subject of debt recovery action, or been pursued for payment of debt, by the Defendant. In addition, the Defendant has never been required to undertake any work other than sending automated letters to the Claimant with regard to Unpaid Items, Unarranged Overdrafts and Referral Charges.

 

Aggravated and Exemplary Damages

57. The facts contained hereinbefore indicate that the Defendant’s behaviour, included but was not limited to:

a. levying disproportionate and unlawful charges against the Account;

b. refusing to refund the Charges when it was made clear to the Defendant that the Charges were unlawful; and

c. causing significant distress and inconvenience to an unemployed single mother.

58. As such the Claimant contends that the Defendant’s behaviour is:

a. objectionable; and

b. is such that the court show profound disapproval of

59. Accordingly, the Claimant asks the court to grant aggravated and exemplary damages as detailed in Paragraphs 64(f) and 64(g) of these particulars.

 

Implied and/or imposed contractual term regarding interest

60. Defendant charges interest to the Claimant, via the Account, at its published “unarranged overdraft rate” of 29.84%. The Defendant claims that it is entitled to charge this rate, by virtue of the Terms & Conditions.

61. The unarranged overdraft rate is charged to the Claimant, via the Account, when the Claimant draws money from the Account whilst she hasn obtained permission from the Defendant for exceeding any overdraft limit that she has. It is in effect, a rate that the Defendant charges the Claimant when she draws funds from the Defendant when she has no right for doing so.

62. Using, that reasoning and maintaining the principal of equity, mutuality and reciprocity between the parties, the Claimant contends that she is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law. had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

63. If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself, in similar circumstances. If no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

 

PART 3 CONCLUSION

 

Details of Judgement Sought by Claimant

64. Accordingly the Claimant seeks:

a. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £1357.50

b. the return of the Subject Access Request Fee, in the amount off £10.00, that the Claimant was required to pay in the perusal of this case

c. an award of £100.00 as compensation for the significant inconvenience caused to the Claimant by the Defendant erroneously levying the Charges to the Account;

d. an award of £500.00 as compensation for distress caused to the Claimant by the Defendant erroneously levying the Charges to the Account;

e. an award of £100.00 to remunerate the Claimant for printing, photocopying, admin, general and other expenses necessarily incurred, and also the time spent in preparation and perusal for this claim;

f. an award of £150.00 to the Claimant, for exemplary damages;

g. an award of £100.00 to the Claimant, for aggravated damages;

h. court costs; and

i. interest, either:

i. pursuant to the implied and/or imposed term of contract between the parties hereto as detailed in paragraphs 62 and 63. Claimant calculates interest at said rate up until 17 July 2006 as being £2075.88, details whereof are provided in Schedule B and Schedule C, attached hereto. Interest per day thereafter, or part thereof, is £1.20; or

ii. should this court not find that the Claimant is entitled to interest in accordance with the Defendant’s “Unarranged overdraft rate” then, at the Defendant’s Debtor Interest Rates” as all detailed in Schedule D and Schedule E, attached hereto. Interest, in that case, up until 17 July 2006 amounts to £928.72. Interest per day thereafter, or part thereof, is £0.54.

iii. should this court not find that aforesaid implied and or imposed contractual term does exist, Claimant claims interest pursuant to s69 County Courts Act. Interest, in that case, up until 17 July 2006 amounts to £556.54, as detailed in Schedule F and Schedule G, attached hereto. Interest per day thereafter, or part thereof, is £0.32.

65. In conclusion total amount sought by the Claimant is £2317.50, plus interest of £2075.88 until 17 July 2006 and £1.20 per day thereafter, or part thereof.

 

Statement of Truth

The Claimant believes that the contents of these particulars of claim are true

 

SIGNED

 

Date: 20 July 2006


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Case subsequently transferred to County Court B


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

Share this post


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IN COUNTY COURT B

 

BETWEEN:

 

 

X

 

 

 

 

 

Claimant

 

 

 

 

 

- and -

 

 

 

 

THE ROYAL BANK OF SCOTLAND PLC

 

 

 

 

 

Defendant

 

 

 

 

 

 

 

DEFENCE

 

 

 

 

1. So far as it is material to the issues in the claim the Defendant pleads to the Particulars of Claim as follows.

2. Insofar as the Particulars of Claim contain non-admissions and/ or require the Defendant to prove mailers set out therein, it is denied (for the avoidance of doubt) that any such burden rests on the Defendant and the Claimant is required to prove each and every allegation upon which she relies. The Defendant reserves the right to test such allegations and the evidence relied upon in support thereof by way of cross-examination at the trial of this claim.

3. Insofar as the Particulars of Claim contain legal submissions, commentary and argument, they: (a) are not proportionate within the meaning of CPR 1.1: and (b) go beyond and therefore do not comply with CPR 16.4. Whereas the factual and legal case of the Defendant is set out herein, the Defendant reserves the right to and will make submissions, verbally and/ or in writing, at the trial of this claim.

4. The Claimant states: “The claimant contends that said charges were unlawfully deducted from the aforementioned account and, as such, seeks a refund of the same and also damages, interest and costs”

4.1 If the Claimant is to bring such a claim against the Defendant then she must identify the account(s) (giving details of the name and number of the account) to which the charges and fees have been applied.

5. No admissions are made as to what charges have been debited to the Claimants bank account.

Existence of Contract

6. The Claimant’s claim is based in contract. Despite this and contrary to CPR Part

16 PD paragraphs 7.3-7.5, the Particulars of Claim do not plead full and necessary particulars concerning the contract between the Claimant and the Defendant. Further, the Claimant does not identify the bank account(s) which have been operated by the Claimant with the Defendant and from which (it is alleged) bank charges have been improperly debited. In the circumstances (pending the proper particularisation of the claim) no admissions are made as to whether there is (or has been) a contract between the Claimant and the Defendant. The remainder of this Defence is pleaded without prejudice to this non-admission.

7. The Defendant presumes from the Particulars of Claim that the Claimant accepts that the charges have been debited in accordance with the terms of a banking contract subsisting between himself and the Defendant but challenges the right of the Defendant to rely upon these terms because (it is alleged) that the terms are unfair and/or amount to unenforceable penalty clauses.

Unfair Terms in Consumer Contract Regulations

8. In relation to the allegation that the contractual provisions pursuant to which the

charges have been applied are invalid pursuant to the Unfair Contract Terms in

Consumer Regulations 1999 (“the Regulations”) the Defendant pleads as follows.

8.1 The Claimant is required to identify the contractual provision(s) that she

alleges are invalid by reference to the Regulations. Until such time as

these provisions are identified the Defendant cannot (save as appears

below) plead to the allegation referred to in paragraph 6 above. The

Defendant therefore reserves its right to plead further to the allegation

once (and if) the Claimant identifies the relevant contractual provisions.

8.2 Schedule 2 to the Regulations is an Indicative and non-exhaustive list of terms which j be regarded as unfair (emphasis supplied).

8.3 If the Claimant is to rely upon paragraph 1(e) of Schedule 2 to the

Regulations then she is required to plead and prove in relation to each

bank charge that she seeks to recover the mailers referred to in paragraph

6.1 above and all facts and mailers relied upon in alleging that the sums paid are disproportionately high.

8.4 In the circumstances no grounds are disclosed for a claim that the

contractual provisions (whatever they are alleged to be — see paragraph

6.1 above) falls foul of the Regulations and in particular paragraph 1(e) of Schedule 2.

8.5 The Defendant is therefore unable (save as appears below) to plead to this

allegation beyond denying that any bank charges have been applied

pursuant to terms which contravene the Regulations. The Defendant

reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 6.3 above are provided.

8.6 Without prejudice to paragraph 6.5 it is the case of the Defendant that the Regulations have no application because the charges amount to payment for services provided by the Defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judged by reference to principles of fairness under the Regulations.

Unfair Contract Terms Act 1977

9. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Contract Terms Act 1977 (“UCTA 1977”) the Defendant pleads as follows.

9.1 The Claimant is required to identify the contractual provision(s) that she alleges are invalid by reference to UCTA 1977. Until such time as these provisions are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 7 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.

9.2 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to section 4 UCTA 1977 then it is the case of the Defendant that the section is not applicable as any contractual provisions relating to charges do not relate to the Defendant’s liability for negligence or breach of contract.

Penalty Charges

10. In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:

10.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in the nature of a penalty she will need to plead and prove (a) the clause(s) pursuant to which the charges were applied; (b) that the charges were applied due to a breach of contract by the Claimant; and © identifying in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to. As presently pleaded the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the Particulars of Claim have been applied pursuant to an unenforceable penalty clause.

10.2 Until such time as the Claimant pleads the matters referred to in paragraph

8.1 above the Defendant is unable to plead to the claim brought against it and therefore (pending the provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the Claimant’s bank account pursuant to unenforceable penalty clauses.

Supply of Goods and Services Act 1982

11. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to section 15 Supply of Goods and Services Act 1982 (“SGSA”) the Defendant pleads as follows.

11.1 The Claimant is required to plead and prove the necessary 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.

11.2 Further, the Claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable; (b) all fads and matters relied upon by the Claimant in support of this case and © what charges would have been reasonable.

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

11.4 In the circumstances (save as appears below) the Defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 9.1-9.4 above are addressed.

11.5 It is the case of the Defendant that the contract between the Claimant and the Defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the Claimant and the Defendant 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.

12. If (which is denied — see above) the Claimant establish her claims against the Defendant then it is denied that damages for distress and inconvenience and/or personal injury are recoverable. Such damages are not recoverable as a matter of law. If the Claimants persist in such a claim then the Defendant will (in order to

narrow the issues which have to be considered in the proceedings) apply to strike out this part of the claim.

13. The Claimant’s claim is pleaded in contract and therefore exemplary damages are not recoverable.

14. Save as hereinbefore appears the Defendant joins issue with the Claimant on her claim(s) and denies that it is liable to the Claimant as alleged or at all.

Statement of Truth

 

The Defendant believes that the facts stated in this Defence are true. I am duly

authorised by the Defendant to sign this statement.

 

Full name: ?????????????? (NOT Lynsey Burgoyne)

Name of Defendants solicitor LLP, Ship Canal House, King Street,

Manchester M2 4W’

Signed

DATED this 18th day of August 2006


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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IN COUNTY COURT B

 

CLAIM NO:

 

IN THE CASE BETWEEN:

 

X

CLAIMANT

and

 

The Royal Bank of Scotland PLC

DEFENDANT

________________________

REPLY TO DEFENCE

________________________

 

THE DEFENCE IN GENERAL

1. The Claimant is unable to fully reply, or even completely comprehend, the Defendant’s Defence, which was served upon the Claimant by Messrs. Cobbetts LLP and dated ig August 2006 (hereinafter referred to as the ‘Defence”). In particular the Defence makes reference to non-existent paragraphs within itself (for example paragraph 8.5 of the Defence requires the Claimant to provide information supposedly detailed in a non-existent paragraph 6.3 contained therein— evidently an impossible task). Therefore, until the Defendant better particularises its Defence the Claimant cannot fully reply to it. The Claimant reserves her right to plead further when, and if the, Defendant rectifies the Defence (should it be allowed to by virtue of a relevant statute). Nothing in this paragraph, Reply or the Particulars of Claim (hereinafter referred to as the “PoC”) should be construed as giving the Defendant the right to plead further at a later date. Nothing in this paragraph, Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

2. Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

3. The Claimant’s PoC and Statement of Case are repeated, with the following additions, deletions, replacements, amendments, clarifications, deletions, etc. For the avoidance of any doubt, all references remain as defined in the PoC, unless it is stated otherwise in this Reply.

4. The entirety of the Defence is denied, save as it is otherwise pled, or implied, by the Claimant hereinafter.

SPECIFIC REBUTTALS TO THE DEFENCE

5. At several points in the Defence the Defendant avers that the Claimant must plead further in this case, than she has done in the PoC.

a. In particular the Defendant calls upon the Claimant to plead details that have already been pled. It appears that the Defendant (and its solicitors) haven’t fully read the PoC.

b. Furthermore the Defendant calls upon the Claimant to plead information (and in some cases evidence) which the Claimant isn’t required to plead at this point.

c. For the avoidance of all and any doubt, it is specifically denied that the Claimant needs to plead further, than she already has, in this case.

d. Any details that the Claimant is required to plead have already been pled.

6. The Defendant makes several averments in the Defence reserving its “right” to plead further in this case.

a. It is denied that the Defendant has such a right to plead further in this case, as alleged or at all.

b. Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

c. Nothing in this Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

7. Paragraph 1 of the Defence is admitted.

8. Paragraph 2 of the Defence (Defendant’s contention that the Claimant is required to prove certain facts/points) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. It was denied in paragraph 16(b) of the PoC that a contract existed between the parties hereto, which purported to allow the Defendant to levy the charges to the Account. In the PoC, the Claimant called upon the Defendant to show that a contract existed. It is almost axiomatic that the Defendant, should it wish to rely upon the existence of such a contract as it implies in paragraph 7 of its defence, must show that such a contract existed.

b. It was denied, in effect, in inter alia paragraphs 16©, 27 and 47 of the PoC that the Charges were “consideration paid under a contract for services”, contrary to the Defendant’s averments in paragraph 8.6 of the Defence. The Claimant alleged in the PoC, and continues to allege, that should the Defendant attempt to advance a Defence that the Charges were remuneration for services rendered, then the burden of proof to show that this is in fact the case lies with the Defendant.

9. Paragraph 3 of the Defence (Defendant’s contention that the PoC is protracted and doesn’t comply with the CPR) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. The Claimant’s case is that CPR 1.1, referring specifically to cost, has no bearing upon the length or content of Particulars of Claims.

b. Even if it be the case that, this court finds, the contents of the PoC go beyond the provisions of CPR 16.4 the PoC still comply with CPR 16.4.

c. The Claimant presumes from paragraph 3 that the Defendant has no objection to her making further “submissions, commentary and argument” at the trial of this claim.

d. Nothing in this paragraph, Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

e. Nothing in this paragraph, Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or given the Defendant the right to do so.

10. Paragraphs 4 and 4.1 of the Defence (Defendant’s case that the Claimant must provide further details in PoC and quote from the PoC) are admitted, insofar as they allege what the Claimant states in her Claim Form, but are otherwise denied in their entirety subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

a. It is denied that the Claimant hasn’t identified the number and name of the Account. It is further denied that the Claimant is required to identify the name and number of the Account.

b. The Claimant’s contention is that the Defendant has raised the issue of the non-inclusion of the account name and number as a means to delay the case and prevent it being dealt with expeditiously and/or fairly. In doing so the Defendant has acted contrary to its obligations under CPR 1.1 (2)(d) and CPR 1.3.

c. The Defendant averred in the Defence that the length of the PoC was “disproportionate” but later on in the same Defence attempted to argue, in contradiction to itself, that the very same PoC doesn’t include enough information.

d. The Claimant has already furnished the Defendant with the name and number of the Account.

e. Furthermore, the Defendant has written to the Claimant and quoted the very details that the Defendant requests in its Defence (i.e. name and number of the Account).

f. Accordingly, the parties being fully aware of the Account in question, the name and number of the Account, being of no significance to the merits of this case, wasn’t included in what, the Defendant admits, was an already extensive Statement of Case.

11. In relation to paragraph 5 of the Defence (Defendant’s non-admission of charges being applied to the Account), it is the Claimant’s case that the Defendant has previously admitted that the charges detailed in Schedule A of the PoC were, in fact, levied against the Account.

12. Paragraph 6 of the Defence (Defendant’s contention that the PoC do not contain full and necessary particulars) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. The Defendant’s allegation that the Claimant hasn’t pled the account number is addressed in Paragraph l0.a of this Reply and can be taken to be repeated here.

b. It is denied that the Defendant’s claim is based in contract. It is further denied that the Claimant was under an obligation to provide details of a contract.

c. It was the Claimant’s primary basis of claim that no contract existed between the parties hereto allowing the Defendant to levy the Charges to the Account. No contract was initially relied upon. Nevertheless, the Claimant pled in the PoC that if this court found that a contract did exist, then it could only exist in the form of the Terms & Conditions. The Claimant constructed a secondary basis of claim on the basis of there being a contract between the parties hereto in the form of the Terms & Conditions and attached a copy of the same to the PoC.

d. Accordingly, the Defendant’s allegation is ill-founded.

e. Insofar, as the Defendant doesn’t wish to contend that a contract existed between the parties hereto, the Defence should be struck out.

13. Paragraph 7 (Defendant’s contention that the Claimant accepts that charges have been debited in accordance with a contract) is denied in its entirety, except to the extent that g of the Claimant’s basis of claim relates to unenforceable penalty clauses.

14. Paragraph 8 of the Defence (Defendant’s case in relation to the UTCCR) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

a. Denied that the Claimant must identify the Contractual provisions which are invalid under the UTCCR. In any event, this is a moot issue in light of the fact that:

i. the Claimant denies that a contract ever existed between the parties hereto purporting to allow the Defendant to levy the charges to the account;

ii. the entire Terms & Conditions were attached to the PoC; and

iii. any details that the Claimant is required to plead have been pled already.

b. Paragraph 8.2 of the Defence is admitted, insofar as it quotes the title of Schedule 2 to the IJTCCR. The Claimant contends that the emphasis of ‘may” by the Defendant is irrelevant. By virtue of the fact that Schedule 2 is a “non-exhaustive” list, it is implied that any clause can be deemed to be unfair, providing it meets the criteria of any item contained within Schedule 2.

c. Paragraph 8.3 of the Defence (Defendant’s contention that the Claimant is required to plead further) is denied in its entirety. Evidence is not required to be pled in a PoC. In any event, the Claimant has given an indication of the factors and evidence which she intends to rely upon in the PoC.

d. Paragraph 8.4 of the Defence (Defendant’s contention that the PoC disclose no reasonable grounds for a cliam under the UTCCR) is denied in its entirety.

e. Paragraph 8.5 of the Defence is denied in its entirety.

f. Paragraph 8.6 (Defendant’s contention that the UTCCR have no application) of the Defence is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

i. If the Defendant wishes to content that the Charges are consideration for services rendered, then it is required to plead and prove inter cilia the nature of the service provided.

ii. In any event, even if the Charges are consideration for a service it is the Claimant’s contention that the UTCCR still apply, as detailed in the PoC.

15. Paragraph 9 of the Defence is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. Denied that the Claimant must identify the Contractual provisions which are invalid under the UC In any event, this is a moot issue in light of the fact that:

i. the Claimant denies that a contract ever existed between the parties hereto purporting to allow the Defendant to levy the charges to the account;

ii. the entire Terms & Conditions were attached to the PoC;

b. The Defendant’s interpretation of s4 UC contained within paragraph 9.2 of the Defence, is specifically denied.

16. Paragraph 10 of the Defence is denied in its entirety.

a. Denied that the Claimant must identify the Contractual provisions which are Penalty clauses. In any event, this is a moot issue in light of the fact that:

i. the Claimant denies that a contract ever existed between the parties hereto purporting to allow the Defendant to levy the charges to the account;

ii. the entire Terms & Conditions were attached to the PoC;

iii. any details that the Claimant is required to plead have been pled already.

b. Insofar, as the Claimant relies upon the fact that the Charges are unenforceable penalty charges paragraphs 10.1(b) and 10.1© of the Defence have been complied with (see inter alia paragraphs 26 and 27)

17. Paragraph 11 of the Defence is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub- paragraphs below.

a. Any details that the Claimant is required to plead have been pled already.

b. Denied that the Claimant is required to plead further than she already has.

c. The details requested in 11.2(a) of the Defence were already pled in the PoC. Paragraph 11 .2(b) is denied since any facts and matters in relation to any basis of claim arising under s15 Supply of Goods and Services Act 1982 have already been pled. The Defendant has been previously informed of the details requested in 11.2© of the Defence.

d. Paragraphs 11.3, 11.4, 11.5 (including parts (a) and (b) of the Defence are specifically denied.

18. Paragraph 12 of the Defence (Defendant’s contention that damages for personal injury are irrecoverable) is denied in its entirety. The Claimant is somewhat amused at the allegation that “damages [for personal injury] are not recoverable as a matter of law”. If the aforementioned allegation were to be true then every single claim for personal injuries would be incompetent. Furthermore, the Defendant hasn’t provided a rationale for this, its most preposterous, allegation.

19. Paragraph 13 of the Defence is denied in its entirety.

20. Paragraph 14 of the Defence is denied in its entirety.

THIS CASE IN GENERAL

21. The Defence should be struck out. The Claimant’s reasons for making this allegation are detailed below.

a. The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide an alternative version of events.

b. For the avoidance of any and all doubt, the Claimant’s primary basis of argument is that no contract ever existed between the parties hereto purporting to allow the Defendant to levy the Charges against the account. The Defendant hasn’t denied this allegation, dealt with this allegation or met the criteria of CPR 16.5(3)(b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As such no reasonable grounds are disclosed for defending this claim and the court should seek to give effect to its overriding objective, as detailed in CPR 1.1, 1.2 and 1.4, and strike out the Defence.

c. By virtue of CPR 16.5(5) the Defendant is taken to admit certain allegations contained within the PoC. In particular, the Defendant is taken to admit:

i. that no contract ever existed between the parties hereto purporting to allow the Defendant to levy the charges to the account.

ii. that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the IJTCCR.

iii. that the description of the Charges in paragraph 17(a) of the PoC are true.

d. The Defence is:

i. unreadable;

ii. does not disclose any reasonable grounds for defending this claim,

iii. does not adequately deal with many of the material allegations contained within the PoC (see in particular 21.c.i of this reply); and

iv. accordingly it should be struck out

 

I believe the facts contained in this reply to be true.

 

SIGNED

X

Claimant

DATE:


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Application Notice

 

[Ask for this to be heard at a hearing]

 

Order sought

 

(1) The Defendants Defence be Struck Out

(2) Judgement be granted in favour of the Claimant, as sought in the Particulars of Claim.

 

[Note 2: Paragraph 2 should have “Summary” inserted at the beginning of it]

 

Because

 

(1) The Defendants Defence discloses no reasonable grounds for defending the claim.

(2) The Defendants Defence does not adequately deal with most of the pertinent grounds contained within the Particulars of Claim.

(3) The Defendants Defence has no reasonable prospect of success.

(4) Allowing the Defendant to proceed with its frivolous and vexatious Defence

 

 

Part C

 

I (We) wish to rely on the following evidence in support of this application:

 

(1) All abbreviations/references remain as defined in the Particulars of Claim and the Reply to Defence unless it is stated otherwise below.

(2) The Defence, at many points, is unreadable at points and refers to non-existent paragraphs.

(3) The Defence discloses no reasonable grounds for defending this claim.

(4) The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide the Defendant’s reasons for doing so and doesn’t provide an alternative version of events. Furthermore, it is the case of the Claimant that the Defendant cannot deny an allegation without providing an alternative explanation/view on the matter in question.

(5) The Defence does not deny that no contract existed between the parties hereto purporting to allow the Defendant to levy the Charges to the Account. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 16.5(3)(b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. There being no contract allowing the Defendant to levy the Charges is the Claimant’s primary basis of claim. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all,

(6) The Defence does not deny that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the UTCCR. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3)(b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.

(7) The Defence appears to be full of nothing but procedural arguments. At several points it requires the Claimant to plead further despite there being no requirement for her to do so, as she has plead all details and particulars which she is legally obliged to. At some points the Defence calls upon the Claimant to provide information which she has already provided in the PoC. The Defence makes irrelevant and fallacious arguments concerning the CPR (such as the PoC not complying with CPR1 .1). The Defence doesn’t provide one valid substantive defence. The Defence seems to blindly deny allegations contained within the PoC, but doesn’t comply with CPR 16.5(2) so these denials are irrelevant (see paragraph (4)).

(8) The Defence is both frivolous and vexatious. The Defendant (and its sister company National Westminster Bank also almost exclusively represented by Cobbetts LLP in cases of this nature) has had many cases concerning its default charges raised against it by consumers. These cases are usually settled for the full amount just before the court trial date. This ensures that the Defendant isn’t required to justify its charging regime but does result in a lot of wasted court time, considering these matters could easily be settled for the full amount when the claims are initially issued (or even at the letter before action stage).

(9) Accordingly, this court should seek to give effect to its overriding objective and strike out the Defence at this early stage so that no more valuable court resources are wasted in dealing with a claim, where the defence to which has absolutely no prospect of success and the Defendant will almost certainly settle for the full amount anyway.

(10) Particular reference is made to paragraph 21 of the Claimant’s Reply to the Defence.

(11) In view of the above averments and the Statement of Claim the Defence should be struck out and summary judgement granted in favour of the Claimant, as sought.

 

[NOTE: Paragraph 9 of Part C needs refining]


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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There was a directions hearing scheduled in this case.

 

About 3 or 4 working days before that hearing the application (copied above) was sent to the Court and RBS's solicitors (COBBETTS!!!).

 

Lynsey Burgoyne, a junior solicitor from Cobbetts from Cobbetts phoned the Claimant's representative the day the application was faxed to Cobbetts, asking to speak about a settlement (i.e. without prejudice). When asked about the Application Notice she said that she hadn't received it. It was agreed that both Lynsey Burgoyne and the Claimant's representative would speak about 10 minutes later.

 

45 minutes later Lynsey Burgoyne phoned the Claimant's Representative, said that she had got the Application from the admin stagg and offered full settlement, with the usual conditions that RBS/NatWest attach. After 2 conversations, it was agreed to drop the confidentiality clause.

 

 

It is unclear exactly what prompted settlement. A £2,000.00 offer, made by Cobbetts on 9 October 2006, had previously been rejected by the Claimant.


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Wow what a victory! i've been waiting for this type of claim as i am in a very similar position with RBS at the moment and I would be most grateful for copies of the above in word format please.:D

 

Any idea who was representing at the time please?.

 

Regards.


CaLL Me On INTeRNeT CaLLS @ "NoBBY_ONLiNE":D

 

NB: Any advice given ?(if any) is given freely and without constraints,it and any information is based upon personal knowledge and personal experiences and/or views it should therefore only be regarded as advice and not a statement of the law, for that you should seek professional legal advice!.

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I assume that this went through a Small Claims court? I ask because I am contemplating a case against the RBoS, and as they are showing the usual degree of intransigence applying compunded contractual interest to the claim. This might concentrate their minds...


Prelim letter sent to RBoS 8/8/06 letter passed to another department...and Tommy fob off arrived

LBA sent 29/8/06 £2646.64 claimed - no reply

Claim entered 26/09/06 £2716 + interest. Not acknowledged so Judgment requested 17/10/06

Judgment in default 28/10/06:lol:

Cheque finally arrived 24/11/06, ring Group Litigation on a daily basis - you know it makes sense...:D

GE Money prelims sent for ERCs and charges on 2 accounts 18/10/06

LBAs on 2 accounts sent 5/11/2006

 

2nd claim against RBoS in 10/11/06, with threat of compounded contractual interest, c'mon now, concentrate...

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Wow what a victory! i've been waiting for this type of claim as i am in a very similar position with RBS at the moment and I would be most grateful for copies of the above in word format please.:D

 

Any idea who was representing at the time please?.

 

Regards.

 

A family member of the Claimant.

 

PM me your e-mail address please.

  • Haha 1

Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Many Thanks PM on it's way.:D


CaLL Me On INTeRNeT CaLLS @ "NoBBY_ONLiNE":D

 

NB: Any advice given ?(if any) is given freely and without constraints,it and any information is based upon personal knowledge and personal experiences and/or views it should therefore only be regarded as advice and not a statement of the law, for that you should seek professional legal advice!.

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Well done.

Crikey my brains hurts just scanning through that, never mind the actual detail.

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I assume that this went through a Small Claims court? I ask because I am contemplating a case against the RBoS, and as they are showing the usual degree of intransigence applying compunded contractual interest to the claim. This might concentrate their minds...

 

It wasn't allocated at the time of settlement - that was the purpose of the settlement hearing.

 

If I were you and wanting to stay in Small Claims I would claim about £2,500 - £3,500 at a time as if, the amount is borderline and, the case is complicated the judge may allocate to Fast or Multi Track. However, people on these forums can advise you how to avoid this.

 

I would always charge compound contractual interest. However, if claiming back more than 6 years the amount of interest becames massive in comparsion to the claim!


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Congratulations on the win. I hope you can complete our survey for us.

 

Could you send the word documents to me please at my Vamp gmail in my sig? Thanks.


[

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Yes it is. The claim that I have in mind was for around £750, but with CCI applied it alarmingly gets to over £4K as it is based on charges over six years old.


Prelim letter sent to RBoS 8/8/06 letter passed to another department...and Tommy fob off arrived

LBA sent 29/8/06 £2646.64 claimed - no reply

Claim entered 26/09/06 £2716 + interest. Not acknowledged so Judgment requested 17/10/06

Judgment in default 28/10/06:lol:

Cheque finally arrived 24/11/06, ring Group Litigation on a daily basis - you know it makes sense...:D

GE Money prelims sent for ERCs and charges on 2 accounts 18/10/06

LBAs on 2 accounts sent 5/11/2006

 

2nd claim against RBoS in 10/11/06, with threat of compounded contractual interest, c'mon now, concentrate...

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Yes it is. The claim that I have in mind was for around £750, but with CCI applied it alarmingly gets to over £4K as it is based on charges over six years old.

 

I would advise splitting. Do the earliest ones first.


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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It wasn't allocated at the time of settlement - that was the purpose of the settlement hearing.

 

If I were you and wanting to stay in Small Claims I would claim about £2,500 - £3,500 at a time as if, the amount is borderline and, the case is complicated the judge may allocate to Fast or Multi Track. However, people on these forums can advise you how to avoid this.

 

I would always charge compound contractual interest. However, if claiming back more than 6 years the amount of interest becames massive in comparsion to the claim!

 

 

Congratulations on a very nice win. You mention above claiming back more than 6 years, Are you aware of any cases which have succeeded in doing this ?

 

I will PM my email address, if you can send me word format copies I would be very grateful.


Alliance & leicester:Settled 8/9/06 http://www.consumeractiongroup.co.uk/forum/alliance-leicester-successes/19700-tamadus-l.html?highlight=tamadus

Capital One:Settled 22/9/06 http://www.consumeractiongroup.co.uk/forum/capital-one/16644-tamadus-capital-one.html?highlight=tamadus

MBNA 2 accounts:Settled 22/9/06 http://www.consumeractiongroup.co.uk/forum/other-institutions-successes/13831-tamadus-mbna-i.html?highlight=tamadus

Smile:Settled 15/11/06

Egg Card:S.A.R - (Subject Access Request) sent 2/10/06

GE Money:S.A.R - (Subject Access Request) sent3/8/06 LBA sent 26/9/06

Abbey:ERC prelim sent 14/9/06. LBA sent 2/10/06. Now it's getting interesting so keep watching

Barclaycard:In criminal default watch this space

Lloyds TSB:In criminal default watch this space

 

If my comments have been useful please click the scales and let me know.

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Congratulations on a very nice win. You mention above claiming back more than 6 years, Are you aware of any cases which have succeeded in doing this ?

 

I will PM my email address, if you can send me word format copies I would be very grateful.

 

Vampire has uploaded the files to her google account. Please see the end of my first post on this thread for details.

 

I believe seminole has successfully gone back more than 6 years so will refer to his expert advice on that matter.


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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Mindblowing !!!

 

Congratulations, indeed !!!

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fantastic result and very very professional work.

 

i am in the process of reclaiming contractual interest & charges for a friend with natwest

 

i have already filed the summons and the AQ, am I too late to use this/


Halifax - £2500

Legal & Trade - Webt to courtfor Breach CCA, Complained to OFT they ruled in my favour, So did court, 2k written off.

NatWest - Contactual Interest - Won:p

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fantastic result and very very professional work.

 

i am in the process of reclaiming contractual interest & charges for a friend with NatWest

 

i have already filed the summons and the AQ, am I too late to use this/

 

You could use some ideas on the application for summary judgement if you want to finish and get your money quick, and don't mind paying the £35.00 fee if your not entitled to an exemption/remission.


Advice, information, data, opinions, etc of JustWon, The Bank Action Group and The Consumer Action Group are offered informally, without prejudice & without liability.

Use your own judgment. Seek advice of a qualified insured professional if you have any doubts.

 

If I don't respond please don't think I am ignoring you as, due to other commitments, I have little time to spend on the board.

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An excellent result well done. I shall use some of your info. I wonder if Tommy is watching.;)


 

 

 

 

 

I am not a legal expert my advice is given without prejudice and is purely my opinion only. If you are in doubt please seek professional advice.

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An excellent result well done. I shall use some of your info. I wonder if Tommy is watching.;)

 

:D

 

See me....

 

 

...Feel me...

 

:cool:

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:confused:

 

 

 

 

 

I am not a legal expert my advice is given without prejudice and is purely my opinion only. If you are in doubt please seek professional advice.

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:confused:

sorry mate - giving away my age.

 

The Who - "Tommy."

 

Pinball Wizard also came from that !!

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