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

[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

 

[steven4064]

GaryH

 

No criticism taken. Just the cut and thrust of debate!

 

Yes, it is possible that Cobbetts will "back heel it" and that court might not order it. It is also possible that Cobbetts might not take the risk.

 

Steven

 

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[steven4064]

Now here's a (possibly) interesting development. We receieved the AQ today but they haven't sent us a N149 (AQ - small claims tack) they have sent a N150. I wonder if this is in response to our CPR part 18 request. Any thoughts, anyone? Am I reading too much into it?

 

Steven

 

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[steven4064]

Just a quick update re N150 vs N149.

 

I spoke to the court this morning. Apparently you get a N149 if your claim is £1500. So nothing sinister after all!

 

Steven

 

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[steven4064]

USEFUL TIP:

 

You don't have to cram everything you want to say in section G the little box. It is quite OK to use a seperate sheet of paper and write "see attached" in the box.

 

So I am going to "help the judge manage the claim" by:

 

1) asking for the defence to be struck out as abuse of process

 

If the court thinks that will not server to settle the claim justly

 

2) either asking for my CPR part 18 request to be ordered

 

OR, failing that

 

3) asking for the draft directions to be ordered

 

What do you think?

Steven

 

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[steven4064]

Gary and Scott

 

Thanks for the input. I have another wrikle - I might reverse the draft order as in this case from Bath http://www.consumeractiongroup.co.uk/forum/show-post/post-891835.html

 

What do you think?

 

Steven

 

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[steven4064]

OK Chaps (and any chapesses that might be watching), what about this for section G:

 

Please find the following documents attached to this allocation questionnaire;

1A) Section G - other information

1B) List of settled cases

1C) Text of order made by Lincoln County Court

1D) Mullen -v- Hackney BC (1997)2 A11ER 906

2A) Request for Further Information pursuant to CPR Part 18

2B) Draft Order for directions

 

 

This allocation questionnaire and its attachments were sent to the defendant on **/**/**

 

and then for attachment 1A:

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by Lincoln County court (attachment 1C) in at least 10 cases similar to my own involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

 

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed to allocation, the Claimant respectfully requests that the Request for Further Information pursuant to CPR Part 18 submitted to the court on 30 May 2007 by the Claimant be ordered (attachment 2A).

The information requested in the CPR Part 18 request is necessary for the court to determine whether the charges made by the Defendant constitute penalties under the common law, whether they constitute unfair terms under the Unfair Terms in Consumer Contract Regulations 1999 and under the Unfair Contract Terms Act 1977 and, should the charges be found not to be penalties but to be charges fro the provision of credit services, that they are reasonable pursuant to the Supply of Goods and Services Act 1982.

3. In the alternative, should the court not be minded to strike out the defence nor to order the CPR Part 18 Request for Further Information, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2B).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in Leicester, Derby, Chesterfield, and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, I believe that the outstanding issues are are of fact. Accordingly, I respectfully request that this claim is allocated to the small claims track, and would estimate that the hearing of the claim should last no longer than one hour.

 

Steven

 

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[steven4064]

and revised draft order for directions:

 

Draft Order for Directions

 

 

 

1. The Defendant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is 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 intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

2. The Claimant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;
  
• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

Steven

 

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[steven4064]

Gary

 

I wasn't proposing to use the directions from Bath, just the sequence, ie making them cough up first - see above. The court is Leigh in Lancashire.

 

Steven

 

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[steven4064]

Thanks Gary

 

It seemed more logical following on from a request for the CPR 18 order. I take your point though and change it back

 

Steven

 

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[steven4064]

Can anyone lend me a big stapler - the AQ runs to 19 pages!!

 

Also SoS4064 used to have 2 NW credit cards. We didn't include these on the initial claim but guess what....?

 

Steven

 

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[steven4064]

In case it is interesting to anyone else - Nat West sent a copy of the T&Cs from when the account was opened.

 

Steven

 

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[steven4064]

Got a letter from Cobbetts asking for a copy of our schedule. Haven't they got enough copies already?!!!

 

Steven

 

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[steven4064]

Thanks charged-case

 

I wrote to Borehamwood but heard nothing for 14 days so I wrote to Cobbetts and told them that I hadn't received them and was requesting them under CPR Pre-Action Protocol 4.6©. They came two days later.

 

They were for 2002. I tried to post them on the NatWest T&Cs thread but my quota is exceeded. Hopefully someone is fixing it. Watch this space. If they are any use to you PM me your e-mail and I will send them to you as a pdf.

 

Steven

 

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[steven4064]

I assume we need T&Cs for every year that the claim relates to, to play it safe. I remember receiving updated T&C's (usually tucked in with statements), and not just when my account was altered to an Adv. Gold one. Pity I threw them all away!(but not the statements)

 

I think you only actually need the ones from when your account was opened. I don't think they can't change the T&Cs themselves without your permission and you signing something, eg if you move to AG. There are certain parts they can change because the change itself is in the T&Cs - penalty levels (I mean 'fees' of course), for example.

 

If the worst came to the worst, and you got to go to court, I think you could prabably use the latest ones. The wording has changed over the years as they have progressively tried to disguise the penalties but the basic content doesn't seem to have changed a lot.

 

Steven

 

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[steven4064]

I have created a simple web site here for the various Nat West T&Cs I have. I have also put a file detailing why the charges are penalties which can be used in a statement of evidence.

 

Steven

 

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[steven4064]

Recieved Cobbetts AQ "which has today (21 June) been filed at court". It was due on the 18th!!! How do they get away with it?

Steven

 

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[steven4064]

Perhaps their heart just isn't in it???!!!

Do you think so?

 

Steven

 

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[steven4064]

As this claim is in waiting mode, SoS4064 sent off a SAR for statments from 2 NatWest Credit cards he used to have. Guess what? THey sent him another copy of all the statements from his current account! That is, the ones that are listed on his current court claim.

 

Given what we know, I suppose we should expect nothing less from NatWest!

 

Steven

 

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[steven4064]

Today we received an offer for charges+interest+court costs+s69 interest and a cheque.

 

They obviously don't want to have to comply with any of the 3 different draft orders we sent in - Awhhhh!

 

Steven

 

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[steven4064]

Cheers Gary

 

Steven

 

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[steven4064]

Thanks hedgey - it also means that yours cannot be long now

 

Steven

 

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[steven4064]

Even now though they wanted SoS4064 to sign a confidentiality agreement and they said that "any overdraft charges that properly accrue in the future will be applied to your account".

 

Of course he has written back and told them that he will only accept the cheque as a full and final settlement if they write dropping the confidentiality clause and that he will only send the discontinuance notice once he has recieved such a letter and once the cheque has cleared. he also wants the £100 allocation fee repaid.

 

He also told them that he reserves the right to reclaim any charges applied to his account unlawfully in the future.

 

Steven

 

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[steven4064]

Bit late for the confidentiality agreement though eh? Surely they read these threads!!! xx

Well, quite!

 

Steven

 

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[steven4064]

thanks April

 

We've had a slight glitch - when we looked at the offer more carefully we discovered they had not included AQ costs - so we have had to go round the loop again of accepting as partial settlement only!