Funhat vs Natwest ***WON***

[archer_66]

its all happening funhat! lets see what theyve got for you next!

[Holdred]

I'm going down to the court tomorrow with my £100 in hand and the covering letter and draft order from the above posted link.

 

Lets get this part out of the way so I can enjoy my birthday weekend!

[steven4064]

It's not my birthday, but I am going down to the court tomorrow with £100 to file my AQ (19 pages!!)

 

Steven

 

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Any opinions are without prejudice & without liability.

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

[Holdred]

Took my money into the court today, all paid up and the letters passed on.

 

The clerk said that the waiting time for a hearing is probably going to be the end of August now.

 

Least my bit is done, time to let the court tell me what to do now, or for Cobbett's to surrender and give me my money.

[fendyweather]

I tend to think the latter, but they will make ya wait right to the court date for it, or as near as dammit. Lol Lol xxxx NVM, you should plan a late belated birthday party with it around end august, Lol Lol xxxxx

[Holdred]

I have no doubt about it at all. Because of Natwest's ignorance they've added a further £100 onto what they now owe, should have just cut their losses!

[steven4064]

I rang Cobbetts this afternoon and told them that. But, they weren't interested. I guess it is Cobbetts' best interest to keep each case going as long as possible as they are paid by the hour.

 

Steven

 

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Any opinions are without prejudice & without liability.

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[Holdred]

Must be a pretty cushty assignment. Not having to go to court, just recycling the same old rubbish to everyone. Some one is doing alright out of it and it's not Twatwest!

[steven4064]

I also asked the young lady why all the defences were essentially the same. She said it was because all the claims were essentially the same. She though we might all copy them off the internet. I wonder why she thinks that?!!!

 

Steven

 

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Any opinions are without prejudice & without liability.

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[Holdred]

You should have said "Why are your defences almost irrelevant and abusing the legal system when ours are valid and reasonable, and why have you yet to successfully defend a case?"

 

Not really the hallmarks of a good solicitor do you think?

[steven4064]

You should have said "Why are your defences almost irrelevant and abusing the legal system when ours are valid and reasonable, and why have you yet to successfully defend a case?"

 

I did although not in those words. I asked if they would like to settle before I spent another £100 of NatWest's money filing my AQ. When she refused I told her how Cobbetts antics were a waste of public resources as they never defended. She asked why it wasted public money. I aked who she thought paid for all the court time they wasted.

 

Anyway, we'll see. I've asked the court to strike out their defence as an abuse of process.

 

Steven

 

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Any opinions are without prejudice & without liability.

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[Holdred]

Was that to counter the CPR 18 request?

 

I submitted a letter to my court counter acting that with the same thing, hopefully it'll get looked at now the AQ money is paid.

[steven4064]

No, we never got a CPR 18 request from Cobbetts altough we sent them one! In section G (actually section H because it was a N150 not a N149) we asked

 

a) that their defence be struck out as an abuse of process purusant to CPR rule 3.4(2)(b);

 

b) failing that, that the court order NW to comply with my CPR part 18 request;

 

c) failing both the above, that the court should order the draft order for directions.

 

With the supporting documents, the AQ was 19 pages long. For more details see my thread http://www.consumeractiongroup.co.uk/forum/natwest-bank/55856-son-steven4064-natwest.html

 

Steven

 

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[Holdred]

Letter received from the court today:

 

"DISTRICT JUDGE XXXXXXXXXXX has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

 

The hearing of the claim will take place at

 

10:00 on the 16th August 2007

 

at Middlesbrough Country Court and should take no longer than 30 minutes.

 

ORDER:

 

The following directions apply to this claim:

 

1) Each party shall deliver to every other party and to the court office copies of all documents (including experts reports if the court has given permission for expert evidence to be used) on which he intends to rely at the hearing

 

2) The copies shall be delivered by 4pm on Monday, July 2nd 2007

 

3) The original documents shall be brought to the hearing

 

4) Signed statements setting out the evidence of all witnesses (including expert witnesses if permission has been given to use them) on whom each party intends to rely shall be prepared and copies included in the documents mentioned in paragraph 1. This includes the evidence of the parties themselves and of any other witness whether or not the witnesses are going to come to court and give evidence.

 

5) The court must be informed immediately if the case is settled by agreement before the hearing date."

 

Guess it's on now!

[steven4064]

To summarise what you will need to provide:

 

1) (Yet another) copy of your schedule

2) Copies of all your statements which have charges on them that are listed in the schedule

3) A statement of evidence

4) The http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

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

[Holdred]

To summarise what you will need to provide:

 

1) (Yet another) copy of your schedule

2) Copies of all your statements which have charges on them that are listed in the schedule

 

Roger.

 

3) A statement of evidence

 

Forgive me if I'm being a bit dim, is there a link for a template letter?

 

4) The http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

I assume I enclose the statement of evidence with the bundle as a complete package?

 

The only thing I seem to be missing is the T & C's from when I opened the account. I'm not having much luck sourcing them either, does anyone have any advice?

[steven4064]

Funhat

 

Stetement of evidence can be found here http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires-3.html#post482194 (ignore the title - the link is correct) and yes, you include the whole lot as a complete package

 

On the T&Cs, when did you open the account?

 

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

[Holdred]

As ever Steve you're a great help

[Holdred]

Schedule, Interest Spreadsheet, Court Bundle, Statement of Evidence all prepared and getting printed tomorrow, anything else I need to include?

[Holdred]

Here's my statement of evidence, does this look ok?

 

Claim Number:xxxxxxxx

 

In the Middlesbrough County Court

 

Between:

 

 

Funhat

(Claimant)

 

 

 

and

 

 

 

 

NatWest Bank Plc

(Defendant)

 

 

 

 

_________________________ ______

 

STATEMENT OF EVIDENCE

 

_______________________

 

 

 

 

 

 

 

1. The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such penalty charges with a view to profit.

 

3. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

4. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include -

 

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach" and;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"

 

5. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

6. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

7. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. On one occasion in December 2002 the balance of the account was £20.43; the bank then applied their charges, which took the account overdrawn by the amount of £1.18, which invoked further charges of £16.95 taking the account overdrawn to £18.12.The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

8. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. The Claimant contends that the charges made by the defendant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to; its actual loss suffered as a result of the Claimants breaches of contract.

 

9. The defendant has declined to answer the Claimant’s written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite repeated requests to do so.

 

10. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

11. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

12. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

13. It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £38, current charge, by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

14. Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

15. The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

16. The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair and unlawful within their interpretation of the UTCCR’s.

 

17. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

18. Further, under the UTCCR:

 

“5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.”

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

The cost of NatWest charges imposed as a penalty by NatWest have risen on numerous occasions during the period of the last six years have increased once during the period in which my account was held, on NO occasion was I given the opportunity to negotiate, or even notified of my account contract to my detriment, and to their advantage. this increase, even though within their T&C NatWest say that they will inform you in writing, Section 1a Alterations and Amendments. This means the bank has unilaterally altered the terms

 

19. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and

unenforceable at law.

 

20. It is also a fact that Nat West has currently already paid out a sum in excess of £1,347,495.00 in RE-PAID BANK CHARGES to its customers.

 

I, the Claimant, believe all facts stated to be true.

 

21. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £1969.91and any interest charged thereon;

 

 

b) Court costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 16th September 2004 to 18th April 2007 of £243.41 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.43.

I, the Claimant, believe all facts stated to be true.

 

Signed, dated.

[hedgey06]

Funhat! Edit your claim number off!!!

 

I'll get someone to take a look for you mate!

[Holdred]

Funhat! Edit your claim number off!!!

 

I'll get someone to take a look for you mate!

 

 

Oops.

 

Thanks

[Holdred]

Today was the last day I could really spare before the date set by the Judge so I went with it, I was really concerned about the postal strike so I sent them both Special Delivery.

 

Hopefully onto the last phase now

[hedgey06]

Soz funhat, meant to post back today that it seems fine (kids took the last of my brain cells and sanity though this morning!) Good luck mate - nearly there now! x

[Holdred]

I had to re-read everything about 3 times just to make sure it was all cushty to send out as I got up at 6am today to be in work before everyone else so I could print everything off, I'm not sure how favourable printing 200 pages would have looked.

 

Now it's time to read everything, re-read everything, read it all again and sit back and wait until the 10th of August or wait for them to admit defeat and a cheque to come through my door.

 

A few months back I was desperate for the money but lady luck has turned me a good hand with a new very well paid job, so this is going to be fun money