maxine989 v NatWest ***WON***

[claimb]

Ok thanks again Steven!

[maxine989]

Hi folks... sorry for the delay is responding.

 

Things are soooo busy here at the mo... anyway... my grounds for claiming CI were:

 

The Claimant claims compounded contractual interest on the amounts claimed using the Defendants own current published rates and method specified in the said contract, and as applied by the Defendant to monies it is owed.

 

The Claimant’s grounds for seeking a compounded rate of interest are:

 

'1.That there is an explicit or implied term of mutuality and reciprocity within the contract, and equity dictates that sums owed by the Defendant should be subject to interest under the same terms and at the same rates that the Defendant has itself imposed upon the Claimant throughout the term of the contract.

 

2. That the defendant has and would also continue to be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest. The Defendant is a large corporation with specialist investment capability, as such the Defendant has had use (and would also continue otherwise to have use) of the sums taken to invest and re-lend at commercial compounded rates. It has unjustly profited and would also continue to greatly do so should the Claimant’s entitlement to interest be limited to statutory rates.

 

3. Under the terms of the contract money taken without prior permission constitutes "Unauthorised Borrowing" and is subject to specific rates for such. The Defendant is clearly in a privileged position to have had direct means of withdrawing monies from the Claimant’s account. Since it was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply unlawfully high charges and interest thereon to the Claimant, then the Defendant took the charges and resultant interest from the Claimant without prior permission. By the Defendant’s own definition money taken without prior permission is equivalent to "Unauthorised Borrowing", So, similarly sums taken by the Defendant from the account in such a manner should be deemed subject to interest at the same rates and same manner imposed by the Defendant'

 

My court time is 12.00 tomorrow.

 

I am just bust printing out my bundle ready to take.

 

If I loose then it's my own fault... I just think it is unfair considering all the hassle and stress Nastywest have made us suffer...

 

[maxine989]

Is this Birmingham County Court?

 

Is the CI based on mutuality and reciprocity?

 

It's Walsall gary...

 

What do you reckon my chances are?

 

I have tried to find as much info as I could regarding the grounds for claiming CI. I did my best at the time... and now it's too late to add any other documents I assume??

[maxine989]

You are right in that a person claiming under £5k, if the claim is allocated to the small claims track, will not get costs awarded against them if they lose.

 

The point of Gary's post above is that, if you are claiming CI on the basis of mutuality and reciprocity (or fairness) then there is a test case that says you are not entitled to it and you would lose that aspect if it came to court.

 

If you are claiming CI on some other grounds, then who knows (at the moment).

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

 

If I was awarded the 8% would that still constitute as losing???

[maxine989]

Good luck Maxine! if theres any justice you'll win CI

 

 

Thanks claimb

 

There's no going back now and so I will jsut have to waituntil tomorrow.

 

Although Natwest made me an offer on Friday (which I refused). I haven't got the money... and I can't see how Natwest could have notified the court of this offer being as they only made me the offer on Friday... and the postal strike was on. So unless Natwest turn up at court... there will be no record of this offer.... and like I say, it's not as if they have paid me the offer they made. I haven't got anything in writing about the offer... nor have they credited it to my account. So as far as I can assume... I am still claiming the whole amount at the hearing... not just the difference between the interest.

 

Does this make sense?

 

My head's all over the place with printing the bloody bundle... and the whole house is full of plaster dust from upstairs as my o/h is cutting a door way out of an exsisting stud wall... and it's raining... My head always feels odd when it's dull and raining.

 

I am a sunshiney person... don't like rain and dullness...boo hoo!!

[steven4064]

If I was awarded the 8% would that still constitute as losing???

No. Losing is of the judge finds in favour of the defendant for the whole case. Even if this happens (which it won't 'cos NatWest won't show) you will not get costs awarded against you.

 

BTW, do you have an opening speech planned?

 

Take a look at Reka's thread (http://www.consumeractiongroup.co.uk/forum/abbey-bank/93120-reka-abbey-court.html) particularly post 93.

 

I presume that NatWest won't have sent in a court bundle (they never do) despite having been ordered to by the court. You should ask for their defence to be struck out - THis from reka's thread

My opening will be to respectfully request that the defence be struck out pursuant to CPR 3.4 (2) © and (b) as no documents were supplied as stipulated in the court order and the fact they have also failed to atend. If thats granted the i will request wastage costs.

The relevant bit of the CPR is

3.4 (2) The court may strike out a statement of case if it appears to the court – (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order

Estimate your costs - time(suggest at least 30 hours)@£xx/hour, travel to court, time off work, photocopying, postage, phone calls, £10 for S.A.R - (Subject Access Request) - put them in writing so that the court can have a copy. Take a draft wasted costs order http://www.consumeractiongroup.co.uk/forum/bank-templates-library/85726-wasted-costs-order.html (although leave out point 4).

[maxine989]

Thanks Steven... that is useful stuff.

 

Cobbetts didn't send in a bundle... I checked with the court... but when I investigated further into this I found that it is quite normal for banks not to send in a bundle and this is because they have already sent in their defense. Unless the banks want to add anything further to what is already stated in their defence then they do not have to send anything... so they haven't really failed to comply...

 

I have already made an itemised schedule of expenses incurred which inclused a brief introduction on wasted costs. I was going to take it with me and discuss it if given the opportunity.

 

I will go and look further now into creating an openinf speech. I assume it will be ok to have a few notes with me in court to work from... nerves and all that!!

[maxine989]

What does this refer to exactly?

 

CPR 3.4 (2) © and (b)

[steven4064]

What does this refer to exactly?

 

CPR 3.4 (2) © and (b)

It's in the second quote on my post above.

 

You say that the banks don't sedn in a bundle because they have already submitted a defence - but that's not good enough - they will have been sent an order telling them to submit decided cases, etc they intend to rely on and they never do that - hence the reference to CPR 3.4(2)© and (b)

[maxine989]

Silly me... of course... didn't see first time... sorry Steven.

 

Thanks for clarifying all of that for me. It is interesting to know that banks should file a bundle... hmmm...

[maxine989]

Ok folks...

 

I have everything ready to go tomorrow.

 

last thing I am doing now is printing off an up to date schedule of charges.

 

I will be at court at 12.00 tomorrow...

 

Fingers crossed!!!

[steven4064]

We'll be thinking of you Maxine, all the best

 

Post as soon as you can to let us know how you got on

[marianiamh]

Good luck we are just at the AQ stage and thats frightening enough! Good Luck get em robbers by the balls!

[maxine989]

My First Court Experience.

 

My hearing was 12.00. I got there with plenty of time to spare (so that I could read through the notes I had made for my opening speech and points I wanted to raise). As I sat and waited a young girl from Cobbetts came over to me and introduced herself… ‘S**T!!’, I thought… ‘they’ve sent representation’. She gave me two sheets of A4 which was a skeleton argument against me claiming contractual interest. I saw her hand one to to the usher to forward on to the Judge. She informed me that the full refund of charges had been credited to my account that morning and that there was no use me continuing with the claim anymore as I do not have a chance at claiming contractual. I told her that as Natwest have left it until the 11th hour before refunding me my money I may as well try my luck. I have incurred wasted costs and so shall ask the judge to consider those. She asked me if I had a copy of the costs so she could maybe make an offer on those. I had only got the one copy with me and stupidly didn’t give it to her.

 

We were both informed judge Anson was covering other cases because of someone else being absent and so Deputy District Judge Stacey was going to hear the case later on in the day and so we were told to come back at quarter to two.

 

I dashed off to photocopy the wasted costs sheet to give to the judge and cobbetts and went to find somewhere to pass the time away. While I was waiting in a café, before going back to the court, I thought about my opening speech and how I could respectfully ask for the defence to be struck out being as the defendant had not submitted their skeleton argument 14 days prior to the date as requested in the order.

 

I got back to the court and was led straight in to a small room where the Judge greeted me and the cobbetts girl and stated the reasons why we were all here. Before I had any time to speak, the Judge said he had read through the court bundle and that it was a well put together argument… however as he usually deals with contract law he can clearly see that this case is pointless… there was no evidence in the terms and conditions that show an implied term of mutuality and reciprocity my claim was irrelevant in the eyes of the law. If it had been an explicit precedent for this term then it might be a different story.

 

I discussed my second point in my grounds for claiming contractual interest:

2. That the defendant has and would also continue to be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest. The Defendant is a large corporation with specialist investment capability, as such the Defendant has had use (and would also continue otherwise to have use) of the sums taken to invest and re-lend at commercial compounded rates. It has unjustly profited and would also continue to greatly do so should the Claimant’s entitlement to interest be limited to statutory rates.

The judge said this was an ingenious argument (ah thanks...!!), but… that banks are a business and are out to make profit. My brain was a bit frazzled and so didn’t think quick enough to argue back about them making a profit from my unlawfully taken money.

 

It was all coming to an end far too quickly… the judge was leading everything and so I tried to mention the fact that Natwest/Cobbetts hadn’t complied with the order to disclose all evidence intending to rely on in court. The judge waved the copy of the skeleton argument regarding contractual interest and said… ‘did you get a copy of this?’

“Yes…” I said “at 5 to twelve… not 14 days ago, like we were both ordered to comply with”.

“Well there you go” he said as he began tidying up the paper and bringing the hearing to an end… “so you got a copy in the end didn’t you”.

 

I wanted to say, well what’s the point of the order then… but I didn’t really have any point arguing that as it was all done and dusted.

 

As we left the room where the hearing had been held. The girl from Cobbetts turned to me and said… “If you try to claim that wasted costs order… we’ll issue one against you”. Charming!! I thought… she was practically giving it to me earlier in the day.

 

So… What have a learned?

Well… Nastywest played a dirty tick by putting the money in my account the morning of the hearing, therefore making my claim only relevant to the interest.

I now know that it all depends on the judge you get on the day and his/her attitude towards this bank business… and if claiming contractual… then a better argument is needed. One major factor that seems very annoying is that the order to submit all documents 14 days before the hearing is pointless as the banks were able to swan in with their argument on the day of the hearing. It seems very unfair… one rule for the little person and another rule for the big company. Also… I have learned it is worth trying to get the wasted costs settled before the court date, taking that, the refund and the 8% and running for the hills… ha!!

 

I am glad I went because I would never have known what my chances were for going the whole hog. I haven’t lost anything and I have just checked my bank on-line to see I have just over two grand sitting in it… Super duper!!

 

So there you go folks… that was the court hearing.

 

So what’s next? Barclaycard!! I am still going for the contractual. I will research more and try to expand on my grounds for claiming it in my POC… and after all, there is always some claims that are won by default because the banks are over run with claims and didn’t respond to court within the timescale. I have won two other claims with contractual by obtaining judgments after they didn’t acknowledge… So in my opinion it is still worth going for.

 

Time for sitting in the garden with a glass of wine me thinks!!

[steven4064]

Time for sitting in the garden with a glass of wine me thinks!!

Absolutely!

 

Ok, you may not have got everything you wanted but you did WIN

For what it's worth it seems to be a brilliant performance on your part - so well done. As you know, there is now a decided case on CI, so you were never going to get it, not realistically.

 

However, credit cards are another story. You don't have to come up with an ingeneous arguement that they used your money to make loads of money. On credit cards accounts, they charge you compound contractual interest on the charges they put on your account. Therefore claiming CI is perfectly legitimate and you will get it because it is just the interest you actually paid.

 

When you 've finished your wine, geta SAR in the post!

[GaryH]

Well done. The first time in court is always daunting. Next time it'll be a piece of cake.

 

If you really want to go for contractual again on another account you should spend some time reading up on the equitable jurisdiction.

 

Trying to claim it on any sort of common law or contract law basis - unjust enrichment, fairness, mutualty, etc is ultimately futile becouse compound interest simply isn't available at common law or in statute. Especially now since the High Court judgement banks won't pay it anymore.

 

You need to go down the fiduciary route. Thats the only way you can get compound interest and its a valid, if complex, route to claiming it. Spend some time researching some cases and it'll all become clear.

 

Have a read of this post and the links contained in it. Westdeutsche v Islington is the main authority you need to try to get an understanding of -

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/81525-gandolfi-natwest-5.html#post975659

[steven4064]

With respect Gary, for a credit card you just need to claim back the interest they actually charged you on the charges

[GaryH]

Crossed posts.

 

Oh yes, and I'll change you to WON.

[GaryH]

With respect Gary, for a credit card you just need to claim back the interest they actually charged you on the charges

Yes, although I think Max will have been intending to claim the compounded cash advance rate as well - instead of the 8%.

[muggins73]

Congratulations Maxine

What a long 'ole slog, but you've finally got there, Absolutely, fan-blinkin'-tastic news I'm so so pleased for you well done xx

[maxine989]

Well done. The first time in court is always daunting. Next time it'll be a piece of cake.

 

If you really want to go for contractual again on another account you should spend some time reading up on the equitable jurisdiction.

 

Trying to claim it on any sort of common law or contract law basis - unjust enrichment, fairness, mutualty, etc is ultimately futile becouse compound interest simply isn't available at common law or in statute. Especially now since the High Court judgement banks won't pay it anymore.

 

You need to go down the fiduciary route. Thats the only way you can get compound interest and its a valid, if complex, route to claiming it. Spend some time researching some cases and it'll all become clear.

 

Have a read of this post and the links contained in it. Westdeutsche v Islington is the main authority you need to try to get an understanding of -

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/81525-gandolfi-natwest-5.html#post975659

 

Thanks for the info Gary. I will begin reading up on it all.

 

I will be claiming interest from barclaycard at their rate, which is 27.9 at the mo. I have two cards with them (mastercard & Visa) with a total claim reaching £3750.00. I am hoping that I get the CI with this one after reading what you and Steven have said about credit cards. I don't want the CI for greed... I want to be able to pay the cards off and close the accounts.

 

I have read somewhere that they are settling quicker these days. I hope so!! Lets hope it doesn't drag on as long as it did to get my statements... (which was 8 months!!!)

 

Do you have any advice on wording the POC for credit card claims (for the interest section)??? Any help would be fab!

 

 

Absolutely!

 

Ok, you may not have got everything you wanted but you did WIN

For what it's worth it seems to be a brilliant performance on your part - so well done. As you know, there is now a decided case on CI, so you were never going to get it, not realistically.

 

However, credit cards are another story. You don't have to come up with an ingeneous arguement that they used your money to make loads of money. On credit cards accounts, they charge you compound contractual interest on the charges they put on your account. Therefore claiming CI is perfectly legitimate and you will get it because it is just the interest you actually paid.

 

When you 've finished your wine, geta S.A.R - (Subject Access Request) in the post!

 

Thanks Steven,

 

I knew there wasn't much chance in getting the CI at this stage... but I wanted to have the court experience and see what it was all about. It may sound a bit daft, but I thought it would help to inform me as I still have quite a few claims to begin. (Also I will be helping my parents claim their charges at some point).

 

The glass of wine went down nicely in what bit of sunshine we had yesterday... I could only have the one though as I am almost 5 months pregnant, don't want any drunken babies...

 

I will get the Barclaycard claim started very soon... I have already got to the LBA stage with them, but some of the months were estimated as they took forever to send me all of my statements. I have them all now so will file the N1 for the actual amount over the next few days.

 

I didn't realise the difference between claiming CI on credt cards... very useful to know, thanks.

 

Congratulations Maxine

What a long 'ole slog, but you've finally got there, Absolutely, fan-blinkin'-tastic news I'm so so pleased for you well done xx

 

Hi Muggins

 

Thanks for the congrats... At last eh!! Only took since November!! I will pop accross to your post and see how you are getting on.

[GuidoT]

Just read your post 164 (not your whole thread), you did well, it is very daunting the first time in court.

 

To my mind CI is not now recoverable, unless as you say you succeed by default, due to the banks failure to comply with directions.

[maxine989]

Cheers GuioT

[maxine989]

Yes, although I think Max will have been intending to claim the compounded cash advance rate as well - instead of the 8%.

 

Hi Gary.

 

I've done my Barclaycard POC.

 

I am hoping to get down to the court before 4 today to file it...

 

Could you take a quick peek if you have time please?

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/49090-maxine-barclaycard-14.html

[livelylad]

Thread moved to success forum.