Taylors v Nationwide 3rd Time

[Guest bong]

The defence is:

1. This is the third claim brought by the Claimant for refunds of account charges from the defendant since June 2006.
   
2. The total amount of charges and interest debited to the Claimant's account since 1 July 2006, was £6941.79
   
3. Without prejudice to arguments concerning its liability to do so, the Defendant had refunded the sum of £6934.05 to the claimant together with interest totalling £2284.67 prior to the issue of this claim.
   
4. Further charges of 7.74 and interest thereon of £3.82 was refunded to the Claimant on 15 Nov 2006.

 

tm is that a typo in para 2 - does it actually read 1 July 2006?

[taylormandy]

tm is that a typo in para 2 - does it actually read 1 July 2006?

 

Hi Bong

 

Yes, that is exactly how it reads.

[Guest bong]

Hi again.

 

If it were me, I think I would make an application to have the defence struck out on the basis that it is no defence - it makes no admissions or denials, it is just a statement of facts that have no relevance to the claim.

 

You would have to guess at what they are getting at to understand it. Is it that they think you are being vexatious? or because its outside of 6 years? or because they believe its already been included in one of their previous refunds? Who knows, but its not a defence because it doesn't make any sense. I expect the judge might give them a chance to amend it though, so on that basis I don't know whether you should just proceed with the AQ as normal and see what the judge makes of the defence when he allocates the case.

 

Maybe someone with a bit of experience with these things, like alanfromderby or Glenn UK might be able to offer some advice.

[Guest bong]

sorry mandy I've just seen that its already been allocated without you having filed an AQ. I think I would ask the court how that happened without you filling in a questionnaire and then as you say, write to NW just pointing out that the defence bears no relation to your claim and doesn't in its present form amount to any defence, so do they wish to settle? maybe?

[taylormandy]

Cheers bong, that's exactly what I needed to know!

I'll make a start on this and keep you updated.

Thanks for your help.

[taylormandy]

To update:

 

I contacted Mr. Bacon to invite him to settle - but he has declined!

 

I have copied his reply to me:

 

Thank you for your letter of 23 December.

I do not agree with your interpretation of the Limitation Act 1980. Far from concealing the nature of the charges from you, Nationwide has been completely open and transparent. You have received advance notice each time a charge has been debited to your account and the reason for the charge was made abundantly clear.

I enclose a copy of an application for permission to amend Nationwide’s Defence that I have sent to the court.

Yours sincerely

etc etc

 

 

I cannot open his second attachment regarding his request for permission to change the defence, so will update when I can.

 

My feeling is that they are going to try and defend my claim by saying it is time barred, before I can even try and prove the unlawfulness of the charges.

 

I really would value advice.

Shall I just get on and prepare my court bundle now? It is obvious they are not backing down.

[Guest bong]

hi mandy, redsue had exactly the same experience if I remember correctly - they sent her the defence and when she opened the attachment it was an empty document. she had real trouble getting hold of a copy - Nationwide wouldn't give her one and the court said the file had gone up to the judge for allocation. I'd keep on at them for a copy of the amended defence and let the court know you want it aswell.

 

Have you had any luck asking the court about your AQ?

 

Also what did you say in your letter of 23 Dec?

[taylormandy]

Hi Bong, thanks for the quick response.

Here is a copy of my letter of 23rd Dec.

ACCOUNT NUMBER: xxxxxxxxxxxxx

Please find enclosed form N236, informing you of my decision to proceed with my claim.

In your defence you state that this is my third claim and that you have already refunded the amount of £9230.28. Whilst I accept that this is the case, the monies refunded to date are in response to my first two claims.

This claim is regarding charges debited between September 1998 and June 2000.

Your defence does not address the issues in my current claim and it will therefore proceed.

My reasons for proceeding are that I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now. I have also been informed on numerous occasions by Mr. Huntley that I cannot claim for these charges because they occurred more than six years ago. I also consider this assertion to be deceptive as I interpret the Statute as follows –

 

The Limitation Act 1980 section 32(1) states that:

 

....(1) …. where in the case of any action for which a period of limitation is prescribed by this Act, either-

• (a) the action is based upon the fraud of the defendant; or
  
• (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
  
• (c) the action is for relief from the consequences of a mistake;

• the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

• (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

My interpretation is that the limitation period runs from when I found out that the charges are unlawful (as per the OFT pronouncement on 5th April 2006), and that the act is a forward looking limitation and not retro-active. Furthermore, I state that I was mistaken in paying the charges applied to my account as I was acting under the mistaken belief that the sums were lawfully due.

As the Claimant in the proceeding I will be raising s.32(1)(b) and/or s.32(1)© of the Limitation Act 1980 to establish the basis of my claim in court.

 

 

I spoke to a court clerk who said that she assumed the reason I didn't get an AQ was because the judge must have reviewed the case and decided he would allocate directly to small claims.

 

Mandy

[Guest bong]

seems you can't do very much until you've seen the amended defence. You've got about 5 weeks before your bundle has to be in so there's still time - keep plugging away at NW and the court for a copy of the defence and then consider your options.

[taylormandy]

Cheers - will do!

[taylormandy]

I have today received a copy of Nationwide's application to change it's defence.

It reads: "The defendent seeks permission to amend its defence to show that it contends that any claim for a refund incurred more than 6 years before the issue of proceedings is statute barred."

 

Their defence reads as before except they have added: Insofar as the claim relates to charges debited to the Claimant's account before 1 July 2000, it is barred by virtue of the provisions of the limitation Act 1980.

 

They have also added: The interest paid to the Claimant has been calculated at the rate of 8% per annum from the date on which the charges and interest were debited to the Claimant's account to the date on which they were refunded. As all interest paid by the Claimant to the Defendant has been refunded, the Claimant's claim for further interest at the rate of 24.9% is denied.

 

They did NOT asked permission on form N244 to add this sentance about the interest, just the time limitation. Should they be allowed to do this?

 

Also, as far as I was aware, I'm not just asking for the interest I paid back, I'm charging them interest for using MY money for all of this time. I have not been repaid the interest on charges from 1998-2000, and therefore it is still owed to me?

 

Can I dispute their application to change their defence, because in my view, they should have noticed the time limitation factor before?

 

If so, how?

 

I'd be grateful for any advice.

[Guest bong]

Mand when is their application going to be heard? did they ask for it to be dealt with by hearing?

[taylormandy]

Hi Bong

They have asked for it to be dealt with without a hearing.

[dolly]

Can't believe you are back again!!!

[taylormandy]

Can't believe you are back again!!!

 

Hiya Dolly!

 

Yes - it's me again!!

 

Not so straightforward this time, but I'm determined to get every last penny back!

 

Hope you are well.

Mandy

[taylormandy]

So does anybody have any thoughts on whether or not I can dispute Nationwide's application to change their defence? If so, how?

[Guest bong]

Either you need to do a reply to the amended defence (I don't think you can be accused of leaving it too late since its only just been amended) or try and address these issues in your witness statement with the court bundle. I think I'd go with the former.

 

I'd write something along these lines -

 

Part x of the defence is not relevant to the claim. The claim is for charges incurred between x date and x date, whereas the defendant states that charges have been refunded for the period x date to x date.

 

re defence of limitation - Part x of the defence states that the claim is time barred. The claimant contends that the defendant has deliberately concealed the facts relevant to the claimant's right of action and seeks to invoke postponement of the relevant limitation period under section 32(1)(b) of the Limitation Act 1980. The facts relevant to the claimant's right of action are that the defendant's default charges are unreasonably disproportionate to the (costs of the services provided) / (defendant's losses in relation to the account breaches). The claimant discovered the concealment in xxxx 2006, as a result of becoming aware of the report on default charges published by the Office of Fair Trading. The claimant further contends that the claim is for relief from the consequences of having mistakenly paid the charges, and seeks to invoke postponement of the relevant limitation period under section 32(1)© of the Limitation Act 1980. The mistake was in presuming that the defendant was not unlawfully profiting from the default charges in the manner described.

 

Part x of the defence is not relevant to the claim. Further, part x of the defence was not a matter pled in the original defence and the defendant has not requested permission to include this paragraph in its amended defence. Notwithstanding this, for the avoidance of doubt and as already stated at 1 above, the claim is for charges incurred between x date and x date. The interest paid to the claimant in a separate action, as pled in the amended defence, is irrelevant to this claim - the two actions do not overlap in any context.

 

Obviously you might want to change some of my wording or you might have your own views on how you can word it better. these are just my suggestions.

 

good luck

[taylormandy]

Hi bong, thanks for that, it's really helpful.

Should I send this to the court manager, quoting my case number?

Should I also send a copy to Nationwide?

[Guest bong]

I haven't actually done one before so I'm not sure. I'd guess that you just send 3 copies to the court manager and they'd send one to the bank. If no-one else confirms it here you could always post a query in the general forum.

[taylormandy]

I am just in the process of putting together my statement of evidence for my court bundle.

 

The defence makes no mention of the lawfulness or otherwise of the chages, merely that they have already paid me money (not this claim's money!), and the claim is statute barred.

 

So, if they are not disputing the unlawfulness of the charges, can I bring it up in my statement?

 

Also, do I bring up issues such as doctrine of laches, if they have not?

 

I'm am not sure if I should raise arguments over subjects they have not put in their defence. However, if I leave all of these out of my bundle, I won't then be able to rely on them in court, which would seriously weaken my case.

[natwesttookmymoney]

Hi, Mandy

 

Quickly: don't leave ANYTHING out of your bundle that you may wish to rely on in court. Don't get involved in arguing anything they haven't raised prior to getting to Court, but be prepared for them to raise anything, even if it hasn't already been discussed.

Not that it will get that far - or very unlikely, anyway.

 

Limitations Act - from memory, the rebuttal to 'statute barred' is in Section 32, which talks of deliberate concealment. And you only became aware of the unlawfulness after the OFT Report was published in April 2006 - which wasn't 6 years ago.

 

Westy

[taylormandy]

Cheers Westy!

 

So basically, I can leave my statement of evidence fairly brief, BUT have every piece of evidence for every concievable argument they may have, in my bundle, in case I need it. Is that right?

[redsue]

taylormandy - good luck with this I'm keeping an eye on how things are going with you - I'm just waiting for the judge to allocate time for a hearing - their defence to my claim was along the same lines - not actually defending anything more a statement of fact (with major errors in) I suggest Mr Bacon should take a holiday as the stress seems to be getting to him

[taylormandy]

I'm just getting all my info together.

On the point of this being my third claim a (non practising due to illness) solicitor friend stated this: "If pushed, I'd be inclined to argue that each claim is rightly separate because each represents a different period of time in respect of NW's liability. The fact that you have been able to bring three claims also suggests that no Order was made to settle the other claims. NW could always have paid up for the whole 6 years or ask for an Order that you be barred from making similar applications for sums not claimed in the first. I will see if I can find case law on this point."

 

Do people think I can pull this into a valid defence for bringing 3 claims?

[taylormandy]

Any thoughts on my previous posting would be much appreciated.

 

With regards to my bundle, I'm obviously putting in all the correspondence regarding the third claim.

I'm in two minds as to whether or not to put in all my correspondence regarding the previous claims.

 

On the one hand, it clearly shows that they have had ample opportunity to settle before court action on all three occasions and also underlines the fact that they did pay up, thereby implying that they know the charges are unlawful and that they don't want to reach a courtroom.

 

On the other hand - it emphasises the fact I've made 3 claims! The court may view this as vexacious and abuse of process.

 

I'd value any advice.