Pot-less v Natwest.

[pot-less]

My particulars of claim:

 

1. The claimant has an account ******** with the defendant which was opened on **/**/****

2. During the peiod in which the Account has been operating the defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the claimant and also charged interest on the charges once applied. The claimant understands that the defendant contends that the charges were debited in accordance with the terms of contract between itself and the claimant.

3. A list of charges applied is attached to these particulars of claim.

4. The claimant contends that:

a) The charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the defendant; exceed any alleged actual loss to the defendant in respect of any breaches of contract on the part of the claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the defendant which exercises the contractual term in respect of such charges with view to profit.

b) The contractual provision that permits the defendant to levy such charges is enforeceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5) Accordingly the claimant claims:

a) The return of the amounts debited in respect of charges in the sum of £*** and any interest charged thereon;

b) court costs;

c) interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

I believe that the contents of these particulars of claim are true.

 

 

 

I haven't claimed for contractual interest (don't know if that makes a difference) just the 8% added at court stage.

[hagenuk]

Contractual interest would not make any difference. We need to see a copy of the letter that the court say they have sent to you and you should try to get this without delay. The court will send you another if you ask them.

 

From what I can see the Particulars of Claim are perfectly standard and I cannot see why this claim should have been struck out, aside from a slip error (well spotted ukaviator!) but this will merely need correction, however this could be what was wrong.) Point b) should be unenforceable, not enforceable.

 

When you filed your AQ, did you pay the fee?

[pot-less]

Yes - £100. I took it to the court in person, apid in cash and got a receipt.

[hagenuk]

Call the court again and find out what the letter they say they sent actually says as to why the judge was not happy with your particulars of claim and find out what it says about the information the judge wanted.

 

Do you have access to a fax machine? If so, they court may be willing to fax a copy to you.

[pot-less]

I have just rung the court again. My file has been passed back to the district judge so she can't get me a copy of the letter at the moment. She said I should ring back if I've not heard from them next week.

 

Sorry - point b does say unenforceable on my N1 - it was a typing error by me (never was any good at typing!)

 

Attached to my N1 (and all copies of it) were a copy of my schedule, a copy of my prelim letter and a copy of my lba

[hagenuk]

Ok, my advice at this point is to write to the Court. Address your letter to the Court Manager and request copies of all correspondence relating to your claim as you are concerned that a letter has been produced that you have not received.

 

Do not wait until next week and call them again, write and send the letter today and call them before the end of the week.

 

Above all, try not to worry, I am sure that this can be resolved, but you do need to know what that letter contains.

[pot-less]

Thank you hagenuk, I appreciate your help. Will get a letter written up this afternoon.

[pot-less]

I'm not very good at wording letters - does this sound ok for the main part??:

I have been advised that my claim has been struck out due to non-compliance of the Judges request. I am very concerned about this as I have not received any correspondence from the court since the receipt of my Allocation Questionnaire on 09th January 2007. I have, this afternoon, been advised on the telephone by a staff member that a letter was sent out to me on 31st January 2007. I would appreciate it if you could send me a copy of this letter in the hope that I can provide the Judge with the information required and continue my claim

[hagenuk]

Yes, looks good. Get that sent to the court today if you can.

[pot-less]

Finally got a copy of the original letter this mornng. It reads as follows:

 

Before diestrict judge **** sitting at **** county court (address)

 

Upon reading the court fil

 

IT IS ORDERED THAT

 

1 The claim be stayed as it makes no serious attemp to comply with CPR 16.4(1) by settin gout a concise statement of the fact. (stylised particulars do not constitute compliance.) The claimant must amend or substitute its particulars of claim setting out the claimants case in plain english by 4 pm on the 19th February 2007 and in default, the claim be struck out without further notice.

If the above order is complied with the Defendant has permission to file and serve an amended defence in accordance with CPR 16.5 setting out its case in plain english.

 

2 This order was made without a hearing. Any party affected by it may apply 7 days of service for it to be set aside, varied or stayed.

 

Dated 31 January 2007

 

 

The judge has allowed my 14 days (up on 19/03/09 @ 4pm) to get this information to the court!!

 

Please help - I don't have a clue what they want from me. What is a CPR??

[Parkvale]

pot-less,

CPR means civil procedure rules. These are rules under which the courts practise. I am not a legal eagle, but there are a few lawyers on this site that will direct you. Meanwhile have a look through this it might help. PART 16 - STATEMENTS OF CASE

[pot-less]

I'm thinking that my judge may be on the bank's side

[pot-less]

Anyone about that can help me with the details I need to get to the judge?? (please, please, please!)

[indebtstudent]

Pot-less I can't help with the court bit but I do feel it is important to get things in perspective here absolute worst case scenario wouldn't you have recourse to the ombudsmen? I mena if your case never went to court then you're free to go down that route?

 

In any event it seems the kind folk on here seem confident they can get you back on track.

[fendyweather]

Potless, send a private message to Bank Fodder and see if he can point you in the right direction or somebody in the know like: Martin3030, Michael Browne, Nattie. Theyre all utterly ace. If they dont know, Im sure they will know somebody who will know who can help you. Send them a PM.

 

Fendy xx

[Michael Browne]

Here are some expanded POC's. Read it through carefully amending and eidting where necessary

X

CLAIMANT

- and -

 

XXX Bank PLC

DEFENDANT

________________________

Particulars of Claim

________________________

 

The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world.

 

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

 

During the period between XX/XX/XX and XX/XX/XX, 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).

 

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.

T

he 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 xx/xx/xx

 

On or about xx/xx/xx 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.

 

The Claimant subsequently received a letter from the Defendant, dated xx/xx/xx. 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.

 

A letter before action was sent on xx/xx/xx or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated xx/xx/xx, giving its “final response” to the claim, denying a refund of inter alia the Charges, to the Claimant.

 

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

Claimant as part of his 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.

 

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.

 

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 due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable.

 

In support of part of his 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 would not have 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. 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.

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

 

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.

 

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.”

 

Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to fulfil 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).

 

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

 

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.”

 

Accordingly, 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.

Unfair Contract Terms Act 1977

 

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.

 

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.

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

 

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 case of Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co are powerful authorities in favour of the Claimant. Accordingly, the Claimant is entitled to judgement as sought in these particulars.

 

It was 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”.

 

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 “in 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.

 

 

Details of Judgement Sought by Claimant

 

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 £XXXX

 

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. court costs; and

 

d. interest pursuant to s69 County Courts Act. Interest, in that case, up until xx/xx/xx amounts to £XXXX, as detailed in Schedule, attached hereto. Interest per day thereafter, or part thereof, is £00.xxp

 

Statement of Truth

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

SIGNED

[fendyweather]

Like I said POTLESS the man is ace. Told ya. !!! And kind to give him time to doing this too. WHAT A STAR MICHAEL BROWNE. WE LOVE YA. !!!!!

[pot-less]

Wow! Thanks very much for all of that.

Will have a good read through it and make the necessary alterations (and then post back on here to make sure I've done it properly no doubt!!)

 

Thanks very much - you are a star!

[pot-less]

Right - bear with me here. I'm starting to confuse myself again.

 

I "think" the only bits I need to take out are:

 

The Defendant has also charged interest upon these charges once applied.

This sentance as I am not claiming the overdraft interest back

 

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 xx/xx/xx

This paragraph as I did not get an SAR

 

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

And this point for the same reason as above!

 

Does that sound about right??

 

The "brief outline of claim" section has me a little bewildered with all of its professional speak. Is there anything I may need to remove from this section??

 

What does 'in terrorem' mean - My computer keeps putting red wiggly lines under it??

 

and last but not least (for the moment anyway! ) on my N1 I appear to have got the S69 daily interest rate at 91p - which by the calculation method I have since found is quite wrong (too high) I copied and pasted that onto there originally not realising I should have changed it - Have I buggered it up? would it be ok to just give the correct rate on these expanded POC's that I send back?

 

Thanks very much!

[Michael Browne]

The "brief outline of claim" section has me a little bewildered with all of its professional speak. Is there anything I may need to remove from this section??

No

 

 

In Terrorem

Latin meaning "in fear." This phrase is used to describe provisions in contracts meant to scare a person into complying with the terms of the agreement.

 

would it be ok to just give the correct rate on these expanded POC's that I send back?

 

Yes. 91p daily rate equates to charges of £4136

[pot-less]

Yes. 91p daily rate equates to charges of £4136Today 14:54

As I thought - Waaaaay more than my claim! Oops.

 

Fingers crossed for me then, Assuming all else is right I will hand deliver that to the court hopefully tomorrow!

 

Thanks for coming to my rescue again!

[pot-less]

Sorry - 1 last question

for this part -

d. interest pursuant to s69 County Courts Act. Interest, in that case, up until xx/xx/xx amounts to £XXXX, as detailed in Schedule, attached hereto. Interest per day thereafter, or part thereof, is £00.xxp

Do I put in a schedule dated today or the date of my original claim?

I know the interest amount would be a bit different between the two - I have sent "up to date" versions everytime a schedule has been required but have since learned that I should have changed the date on my computer to show the same interest as my original one.

[Michael Browne]

have since learned that I should have changed the date on my computer to show the same interest as my original one.

Yes submit a schedule as per the original date of filing your claim.

 

The daily rate will take care of the intervening additional interest. Come settlement make sure this is included.

[pot-less]

Right, it's all printed out and ready to go (but my daughter is ill so i'm not able to take it this afternoon - will be tomorrow now)

 

Does it need a covering letter to the court do you think?

Should I flag up the change in S69 daily rate as I had previously got it wrong? (I have changed it on the new particulars but should I write and let them know I made a mistake?)

[pot-less]

This is really getting me down now. I have just received the following from the court:

 

DISTRICT JUDGE BLAH BLAH has considerd the statements of case and allocation questionnaires submitted in this claim and has decided that a hearing is necessary before a final decision about allocation can be made.

 

DISTRICT JUDGE BLAH BLAH orders you to attend at (time) on the (date) at Blah blah county court.....(address)

 

THE REASON FOR THE HEARING IS AS FOLLOWS:

 

1 The issues raised are not suitable for determination in Small Claim Track. The court propose to allocate to Fast track.

 

IMPORTANT NOTICE

This hearing will take place by way of a telephone conference.

The Defendant's Legal Representative is ordered to arrange the telephone conference.

Please quote telephone number 01234567890 then arranging your telephone conference.

Time estimates for hearings must be accurate as they will not be allowed to over-run. In the event that a time estimate is insufficient then please contact the Court. Please note that time has been allocated for the Judge to reads all papers in advance of the hearing.

 

NOTE: Note If you fail to attend the hearing, the court may order you to pay the costs of the other party, or parties that do attend. Failure to pay those costs within the time stated may lead to your statement of case being struck out.

 

I have used all of the same information as everyone on here (cust, copied, pasted etc) so why am I the one that's not getting any results?? Why is my judge on the banks side??

 

I'm thinking of jacking it all in! I don't have the confidence for this, I haven't a clue what to say or do. I truly am out of my depth!