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

[steven4064]

Thanks hedgy - not worried, just impatient!

 

Steven

[hedgey06]

Nothing wrong with impatience........... that's a feeling I'm too aware of!!! Get your 'to do' list written up........... gives you something to look forward to!!! xxx

[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

[hedgey06]

Think you're a star!!!

 

And there's nothing wrong in getting a little dig in either.......... it's not as though they don't get plenty of digs in right back at us!!!

 

Get your letter sent - cheque's not too far off from the sounds though!! xxx

[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

 

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[Parkvale]

I think you have to play the patience game steven. The majority of the courts in the country are now realising that the banks are wasting court time. Alot of the directions from the courts are heavily weighed in favour of the claimants. My own claim is one. They have left the bank between a rock and a hard place with their directions. I also have a limitation argument, but the court has left the bank in a very awkward position with the clock ticking away. So i would tend not to try and push the courts and let it run its course.

[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

 

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[Parkvale]

I sent the new AQ strategy. The judge ignored it and put his own directions forward. Which were very good, but i waited 11 weeks for them. So you can't rush a good thing. By all means have a swipe at Cobblers and recipricate. In my own claim i am half expecting them to send me the cheque back for the second time.

[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

 

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[Parkvale]

Steven looks good to me. Keeping the pressure on Cobblers is deffo the right stratergy. The courts are swamped and pushing them to much will possibly delay their process. Cobblers on the other hand will be wanting to shift cases forward, because if they start losing control it will him them in their pockets. Good luck.

[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

 

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[Parkvale]

Thats the way steven. Pile the pressure on Cobblers. I can see the cheque writing clerk getting their pen out.

[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

 

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[Sparkie1723]

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

[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

 

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[hedgey06]

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!!

[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

[hedgey06]

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

 

.............. and hopefully a lot earlier than they have been doing!!!

[GaryH]

The part 18 provisions simply allow requests for information and clarification. Part 18 requests are strictly confined to matters necessary to prepare your case or help you clarify or understand the case you have to meet. It does not stretch to disclosure, which is what the above is - a disclosure order. Cobbetts would simply backheel it and unfortunately the court would be highly unlikely to order it on application.

 

Even if it was acceptable within the part 18 provisions then we should not be issueing part 18's in SCT claims IMHO - it would make us as bad as them. Part 18 does not apply to small claims.

[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

[Sparkie1723]

I agree with you steven.

You have merely asked for further information and clarification your request does not even border disclosure, it is a request, the only thing I would add is that you just make it a request without mentioning CPR18 it is only if Cobbetts or Bank fail to give you that further info do you then mention to them the CPR 18 if they still do not give the info you apply apply for an order under CPR18for them to supply that infomation you would not be asking the court for a disclosure order.

I have just been all through this with Cobbetts and the RBOS in a High Court multi track case, that I handled myself it ended 50/50 I won but lost my claim for loss.

This is only my view I am not a legally trained person and I could be wrong and most probably be proved to be so, but everyone to their view.

 

sparkie

[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

 

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[scott150663]

hi

 

i believe that if your claim is under £5k it will be dealt with in the small claims court and the cpr18 request is not required by either party unless directed by the judge..............

 

if the claim is for more than £5k the judge can allocate fast track or multi-track in either of there 2 scenarios either party can request a cpr18 but only the judge can direct either party to complete the cpr18.......you can respectfully request the judge to tell the defendant (banks solicitors) to complete the cpr18.........

 

If the judge orders the defendant to complete the cpr 18 you will be home & dry as u will ask 4 disclosure of costs which they will not supply therefore they will pay out..........

 

As a thought as cobbletts send out a cpr18 u could write to the judge saying u will complete the request to speed up the court process and save court time as the defendant always settle before the court date in all previous cases................as such could i respectfully ask the judge to ask cobbetts to complete a cpr 18 request to save court time if cobbetts refuse ask for the defence to be struck out

 

 

Scott

[GaryH]

My last post wasn't intended as a critisism.

 

What you are asking for in that request is an abbreviated form of disclosure - its the same as the draft directions order. To my interpretation this is not the intent of part 18. Part 18 is solely meant to provide means of clarifying matters referred to in the claim or defence.

 

The practice directive to part 18 (below) is more relevant than the rule, the rule as posted above concerns orders of the courts own initiative;

1.1 Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served. The date must allow the second party a reasonable time to respond.

1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.

1.3 Requests must be made as far as possible in a single comprehensive document and not piecemeal.

1.4 A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document.

1.5 If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case,

(1)state that it contains a Request made under Part 18, and

(2)deal with no matters other than the Request.

1.6 (1)A Request (whether made by letter or in a separate document) must –

(a)be headed with the name of the court and the title and number of the claim,

(b)in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made,

©set out in a separate numbered paragraph each request for information or clarification,

(d)where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates,

(e)state the date by which the first party expects a response to the Request.

(2)(a)A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document.

(b)To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right.

©Where a Request is prepared in this form an extra copy should be served for the use of the second party.

1.7 Subject to the provisions of paragraphs 3.1 to 3.3 of the Practice Direction to Part 6, a request should be served by e-mail if reasonably practicable.

Obviously if you have a good argument that the request you propose is relevant to clarify matters raised in the defence then thats for you to argue in your N244 part C statement when it comes to applying for the order.

 

All I'm saying is that it is virtually inconceivable that Cobbetts will comply with the preliminary request, not least becouse they have at least 2 perfectly valid reasons not to. The notion that they are suddenly going to disclose on the back of a part 18 is fanciful to say the least. They'll just backheel it.

 

If you can satisfy the court that the request is relevant within the provisions of part 18 then you may get it ordered on application, but given your likely to be allocated to the SCT its still unlikely IMHO.

[steven4064]

i believe that if your claim is under £5k it will be dealt with in the small claims court

 

Normally, yes but not necessarily. Leaflet EX307 gives 3 tests for a claim to be allocated to the small claims track:

 

1) the amount should not be more than £5000 (although some cases > £5000 can be allocate to the SCT)

 

2) It will usually involve consumer claims, accident claims, etc

 

3) The amount and type of preparation needed to be able to deal with the case justly - it adds that the claim should require only minimal preparation for the final hearing, it will not normally involve a lot of witnesses or difficult points of law.

 

So, for example, a case 6 years old based on s 32 of the LA 1980 might be considered to be outwith this conditin and allocated to the Fast Track. Maybe other considerations might incline to DJ to allocate a claim to the FT even if

 

Steven