Son of Steven4064 vs NatWest ***WON***

[steven4064]

Son of Steven4064 (let's call him Steven4065) sent SAR on 14th December and got all his statements within 4-5 days but nothing else.

 

Sent a reminder on 2 January pointing out that they had until 25th January to comply fully with his request. Letter copied to Data Protection Manager (Alex Lyons) in Edinburgh.

 

From the statements it looks like the claim will be over £1500.

[steven4064]

We received the following reply yesterday:

 

"DATA PROTECTION ACT 1998 I write in response to your letter dated 2 January 2007.

- Manual Intervention

With reference to your request concerning any 'manual intervention' to the administrative charges debited, these charges have been processed in accordance with the terms and conditions of our current agreement with you as a result of the activity on your account. In the event that you breach the terms and conditions, we will take the appropriate action, contacting customers when appropriate, or handling customer enquiries regarding their account status. When a customer has raised a concern in relation to this process, the decision will be communicated to the customer and where appropriate noted on the account.

If you have any problems please do not hesitate to contact us at the above address.

Yours sincerely,

Joyce E Tudor-

Retail Regulatory Risk"

 

 

 

Reminded MsTudor that they have util 23rd to answer the question properly or we'll apply for a court order. See what delaying tactics they try next.

[steven4064]

Would you credit it? (probably yes)

 

They have replied by sending exaclty the same letter again! Anyway, muggins73, we'll take your advice and go straight to the initial request for payment, rather than applying to the court for the missing information (that there have been no manual interventions). Presumably, we can always refer to this unhelpfulness on the N1 (can we?), if we get to that.

[steven4064]

Letter from Stu this morning with a whole load of self-justification and a pile of brochures with terms and conditions for all sorts of Nat West offeings.

 

After wading through the guff there is, as a gesture of goodwill, an offer of £1415.00 in full and final settlement.

 

This is everything we asked for except for £157 interest and in response to our Initail Request for Repayment.

 

Seems Nat West is on the run.

 

Steven

[steven4064]

However...

 

there is a sting in the tail. After waffling on about how wonderful they are in providing all their wonderful services for free they say,

 

"Whilst many of our services are provided without a corresponding charge, we do make charges when customers, by their actions, request an increase to or the creation of an overdraft in excess of their previously agreed limit. By reviewing such requests we provide an additional service to customers, in many instances allowing items to be paid either by creating or increasing an overdraft. These charges can be avoided entirely by arranging suitable borrowing facilities in advance."

 

Now that begs a whole load of questions: If I go overdrawn beacuse they slap an unlawful charge did I really 'request' it (perhaps I was just 'asking for it'). And do they really review my account every time I go overdrawn - I think not. (and if they do, how much does it cost - I bet we'd all like to know that!) And if they really do, why so coy about manual interventions?

 

Then the sting...

 

"Any charges that properly accrue in the future will be applied to your account in line with our published tariff and in accordance with your agreement with the bank. Should you be unwilling to accept any such charges, then we may need to consider if we are prepared to continue to provide you with your existing banking facilities. Instead we may offer you a simple account that does not offer borrowing facilities or other services that can result in charges."

 

Well of course, I don't mind (well almost not) paying charges that 'properly accrue', but that's the whole point, isn't it?

 

We were thinking of accepting the offer (even though it doesn't include interest) but it seems in so doing we would effectively be agreeing to pay their unlawful charges in the future. On another thread NATTIE said we couldn't sign away our rights - quite right too. So, how should we proceed?

 

I am beginningto think we should carry on, accept the offer as a partial offer only, and go for the rest so that we get an unconditional offer. What does anyone else think?

[steven4064]

I think that getting the interest or not is now secondary. The implications of them trying to get us to agree to future charges is the sinister element that has come in. This also seems to be a new tactic.

 

It will be that rather then the interest that makes us press on I think so that we can get an offer wit hno strings attached.

 

Steven

[steven4064]

So the booklet they sent me (NWB 3773 December 2006) contains new T&Cs. It lays out all the unlawful charges VERY clearly (p12) and very helpfully.

 

NATTIE, what is your opinion on post 8. Am I right to continue to get an offer with no strings. I know what they are trying to do but, surely, getting us to effectively sign to accept the charges in the future doesn't make them any more lawful. And there is an implied 'or else' in there too. Or else what?

 

Also, the sentence about reviewing informal overdraft requests is obviously nonsense. But further, it is an attempt to deceive us into believing they do something for the money they take. I think that one could argue that the two things (deceptive claim to provide a 'service' and the attempt to 'persuade' us to accept the charges 'or else') probably constitute an abuse of position and hence are an offence under s4 of the Fraud Act 2006, or are dangerously close to doing so.

 

I am thinking of writing to the CEO of NatWest along these lines and pointing out that his staff (Stu et al) are putting him in a position where he personally could be prosecuted under s12 of the same act.

[steven4064]

The interest on our claim is the actual interest charged by NatWest on the overdraft when the overdraft consisted entirely of charges. That doesn't seem unreasonable. We have certainly not claimed contractual interest on all teh charges whatever as some are trying.

[steven4064]

The interest adds up to over £150.

 

Would they insist I repayed £150? Yes they would.

 

LBA went today.

[steven4064]

Quick update. Sent Letter before Action on 17 Feb but unfortunately (stupid me!!!) left the date the same as for the initial request for payment - 27 January. Nat West responded with an identical response to the one they sent in reposnse to the initial request except that it said, "Thank you for your letter of 25 January..."

 

So we have degenerated into complete confusion!

 

We have decided that the best thing to do is to ignore the last 2 letters and send the LBA again with the correct date. The 14 days now ends on 31st March.

[steven4064]

Let's hope we don't just go round in circles.

 

On another tack, (see http://www.consumeractiongroup.co.uk/forum/legalities/56427-theft-act-15a-there.html) I am thinking of sending the follwoing to the CEO of RBOS group (owners of Nat West):

 

Sir Fred Goodwin

The Royal Bank of Scotland plc,

36 St Andrew Square,

Edinburgh,

EH2 2YB

 

Dear Sir Fred,

 

My son has recently been in correspondence with the Customer Relations department of Nat West with a view to reclaiming charges imposed on his account for unauthorised overdrafts and refused direct debit payments, which he, along with many others, believe to be unlawful. In his latest response, Stuart Higley says the following,

 

“Whilst many of our services are provided without a corresponding charge, we do make charges when customers, by their actions, request an increase to or the creation of an overdraft in excess of their previously agreed limit. By reviewing such requests we provide an additional service to customers, in many instances allowing items to be paid either by creating or increasing an overdraft.”

 

The Nat West booklet NWB3773 spells out that a charge is applied to the account of a customer who makes an “informal request” for an overdraft by inadvertently going overdrawn, etc, or indeed by going overdrawn because of a charge imposed on the account by the bank itself. The above paragraph implies that someone reviews this “informal request” as part of the services offered by the bank. Now everyone knows that no one does any such thing. All that happens is that the computer automatically imposes the penalty charge. This paragraph is dishonest, and the dishonesty is an attempt to justify an unlawful act (the imposition of a penalty for breach of contract) by the bank.

 

I would like to draw your attention to section 4 of the Fraud Act 2006, which say that an offence has been committed if a person

 

(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b) dishonestly abuses that position, and

© intends, by means of the abuse of that position—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

 

Section 12 of the same Act says that if the offence is committed by a corporate body with the consent of “a director, manager, secretary or other similar officer of the body Corporate” then that officer is also guilty of an offence and liable to be proceeded against.

 

Now it seems to me that Mr Higley’s letter could be putting you and other directors of Royal Bank of Scotland group in a position where you might be open to prosecution under this Act since Nat West is obviously in a position where it is expected to safeguard customers’ financial interests and, as I pointed out above, Mr Higley’s letter constitutes dishonest abuse of that position with a view to making a gain for the bank and causing a loss for the customer.

 

I felt that you ought to be made aware, if you are not already, of the possible consequences of actions by your staff.

 

Yours sincerely

 

Steven4064

 

Any comments anyone?

 

[steven4064]

Nattie, maybe you're right. Perhaps I should just stick to the plan :(

[steven4064]

Claim handed in to court today.

[steven4064]

Quick update - letter from Cobbetts saying they are going to defend (yeh, right!)

 

Steven

[steven4064]

Thanks hedgy - not worried, just impatient!

 

Steven

[steven4064]

Update:

 

Received Cobblers defence this morning. Usual nonsense. On allocation, they want the court to direct there be a case management conference to give us the opportunity to "properly particularise the claim" - cheek!!

 

Anyway, letter off to Cobbetts later today (cc Court) with a copy of the scehdelue since "it is clear they have not been adequately briefed by their client" (OK , I KNOW I am supposed to be patient, etc, etc but I am allowing myself this one dig).

 

Letter to court (cc Cobbetts) acknowledging receipt of defence and

 

"Since Nat West have not defended any of now many hundreds of such cases, we believe they have no intention of defending this case. The request for a case management conference to give me 'the oprotuinity to properly particularise the claim' is an attempt to intimidate me and to delay. I therefore respectfully ask that this request be struck out as an abuse of process"

 

What do you think?

 

Steven

[steven4064]

Actrually I'm thinking of changing the last bit of the letter to the court:

 

Replace: "I therefore respectfully ask that this request be struck out as an abuse of process"

 

With: "I therefore respectfully suggest that, on allocation, this request and possibly the whole defence be struck out as an abuse of process"

 

What does anyone think?

 

Also I have now had time to read the defence which seems to rest completly on s15 of the Supply of Goods and Services Act 1982, which clause is concerned with the reasonableness of consideration, ie the reasonableness of the charges. They have completely ignored the LAWFULNESS question.

 

Also, presumably, to prove reasonableness don't they have to divulge their costs. Otehrwise there is the possibilty of "undue enrichment". Do these people actually KNOW what they are doing?

 

I have also amended the letter to Cobbetts:

 

"Thank you for your letter of 11 May enclosing the Defendant’s Defence. I notice that you do not believe my Particulars of Claim to be properly particularised, a circumstance that I can only surmise has come about because of inadequate briefing by your client. I therefore attach for your information a copy of the schedule of charges that accompany my claim. I believe the basis of my claim is adequately covered in my Particulars of Claim. "

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Thanks Parkvale. I have been following your thread with interest (no pun intended!).

 

I will take your advice and not push the court except for using the new AQ strategy. (My court told me they are still issuing AQs BTW)

 

I'm still going to send my tongue-in-cheek letter to Cobbetts though.

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Having given my word to Parkvale that wewouldn't push the court, we decided that we would push Nat West. We habe added to the letter a few posts back because Cobblers spent most of thier letter to us waffling about the Supply of Goods and Services Act 1982.

 

Revised version:

 

Dear Cobbetts,

 

Re SoS4064 - v Nasty West

 

Thank you for your letter of 11 May enclosing the Defendant’s Defence. I notice that you do not believe my Particulars of Claim to be properly particularised, a circumstance that I can only surmise has come about because of inadequate briefing by your client. I therefore attach for your information a copy of the schedule of charges that accompany my claim. I believe the basis of my claim is adequately particularised in my PoC.

 

With reference to s15 of the SGSA 1982, the facts that determine the difference between a reasonable charge and undue enrichment are exactly the same as those that determine whether a charge for breach of contract is lawful, namely the actual cost to National Westminster Bank arising from any activities by them that resulted in charges to my account. Despite several requests for them to do so, National Westminster Bank have not supplied me with any breakdown of such costs.

 

At allocation, therefore, I shall be asking the court for an order requiring National Westminster Bank to disclose the breakdown of their costs so that the regime of charges applied to my account can be tested against the common law on penalties and liquidated damages in contracts, the legislation quoted in my PoC and the SGSA 1982.

 

 

Yours faithfully

 

 

SoS4064

 

 

What do you think?

Steven

 

If this post is helpful, please click the scales

[steven4064]

Final version sent yesyerday:

 

Cobbetts

 

Dear Sirs,

 

SoS4064 -v- National Westminster Bank plc

Claim Number: xxxxxxx

 

Thank you for your letter of 11 May enclosing the Defendant’s Defence. I notice that you have submitted a standard defence without taking notice of my specific PoC, since the items you say I need to identify are quite clearly identified therein.

 

With reference to s15 of the SGSA 1982, the facts that determine the difference between a reasonable charge and undue enrichment are exactly the same as those that determine whether a charge levied for breach of contract is lawful, namely the actual cost to National Westminster Bank arising from any activities by them that resulted in charges to my account. National Westminster Bank has not supplied me with any breakdown of such costs despite my requests on date1 and date2 for them to do so.

 

At allocation, therefore, I shall be inviting the court to make an order requiring National Westminster Bank to disclose the breakdown of their costs so that the regime of charges applied to my account can be tested against the common law on penalties and liquidated damages in contracts, the legislation cited in my PoC and the SGSA 1982, as appropriate.

Yours faithfully,

 

SoS4064

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Thats the way steven. Pile the pressure on Cobblers.

 

Stevepm has had this

 

absolutely brilliant idea

 

that we should send Cobbetts a CPR Part 18 request. I am just about to send them one today and we didn't even get one from them, just the nonesense reproduced above. THis is what i am sending them (and handing in to court today along with the AQ for our GE Money case)

 

IN THE TOYTOWN COUNTY COURT CLAIM NO. XXXXXX

 

 

 

BETWEEN:

 

 

 

SonofSteven4064 Claimant

 

 

-and –

 

 

NATIONAL WESTMINSTER BANK PLC Defendant

 

 

 

REQUEST FOR FURTHER INFORMATION UNDER CPR PART 18

 

 

 

DATE OF REQUEST: 30 May 2007

 

 

1. The attached schedule lists the charges that the Claimant is claiming from National Westminster Bank plc.

 

2. Please provide the following information:

 

2.1 Pursuant to what contractual provision each charge in the schedule was made, producing a copy of the contractual document(s) relied upon;

 

2.2 Whether such charges are accepted to be a penalty, and if not why not;

 

2.3 If such charges are alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters showing that such was a proper estimate of such loss;

 

2.4 If such charges are not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters showing the basis upon which the charge was calculated and all evidence to show that the charge was fair and reasonable.

 

3. Please supply the above information by 15 June 2007

What do you think?

Find a post from Stevepm somewhere and click his scales

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Now that could be one hell of an idea,

that would cause havoc with the banks I think, it will be great to know what other more learned members think of that, that might be the big gun we are all looking for....woaah..it would be nice to say to the Banks "look what we have got" .....our CPR is bigger than yours:D:D

 

sparkie

 

Yes

 

RESPECT TO STEVEPM

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

Brilliant - right back atcha' cobblers!!!

 

Just a thought - but can we get this to Bankfodder as well???? Strikes me that this is an opportunity for all - regardless of who we're claiming against!!

 

But it is particularly sweet using it against Cobblers - I haven't seen solicitors for other banks using it on small track claims the way Cobbetts do.

 

I think we ought to wait and see what Cobbetts do. Hopefully, they will throw the towel in!

 

Steven

[steven4064]

In their defence they have asked me to expand on various statements in my PoC which I can only do if I have this information. For example, a large part of their defence concerns s15 of the SGSA 1982. They ask me what I consider reasonable, a question I can only answer if I have the information I have requested in my CPR 18 request. s 15 says "What is a reasonable charge is a question of fact"

 

A lot of the charges on my statements jsut said 'charges' because they were the sum of penalties and Advantage Gold charges. I want them to clarify which contractual provision gave rise to each.

 

The claim has not yet been allocated to a track (although I have to admit it will probably be allocated to the SCT)

 

Steven

[steven4064]

I'm not legally trained either, I just read Part 18:

 

18.1 (1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case

 

and thought that I could get the additional information I need to answer Cobbetts questions in their defence. I am aware that Part 18 does not apply on the Small Claims Track (CPR 27)

27.2 (1) The following Parts of these Rules do not apply to small claims –

…

(f) Subject to paragraph (3), Part 18 (further information);

…

(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so

 

but my claim has not yet been allocated to any track.

 

As a lay person it seems completely reasonable for me to put in a part 18 request for the additional information I need.

 

In stevepm's case the court "of its own initiative...." has ordered him to respond to Cobbetts part 18 request. Again it seems very reasonable...

 

Steven

 

If this post is helpful, please click the scales