Should I be worried???

[MJack]

I have today received a defence from non other than Lyndsey Burgoyne(Corbetts) stating that

"the defence is served without pred to the def case that the part of claim do not disclose reasonable grounds for bringing a claim against the claimant(not sure if that is right is it??-shouldnt it be def??)to recover bk charges referred to in poc"

"in the event the claimant does not particularise properly then the case will be applied to be struck out and for sumary judgment in respect of the same"

 

here are my poc are they ok??

 

 

IN THE BURY COUNTY COURT

 

BETWEEN

 

xxxxxxxxCLAIMANT

 

And

 

The Royal Bank of Scotland plc DEFENDANT

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant has accounts (a)xxxxx (b)xxxxx ©xxxxxxx with the Defendant which was opened on or around (a)9/05 /2003 (b)30/11/2005 ©1990(approx)

 

2. During the period in which the Accounts has been operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Accounts are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £5607.34 and any interest charged thereon;

 

 

b) Court costs;

 

c) Interest pursuant to section 69 County Courts Act £448.58 or at such rate and for periods as the court deems just and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.23

I believe that the contents of these particulars of claim are true

they have also added that the def invites the court to direct a court management conf in order for the court to consider appropiate orders to give the claimant the opportunity to prop particularise my claim...

is this good or not..????

it goes on to ask me to identify the section of the unfair contract term act which specify the contractual provisions pursuat etc and the princples of common law which relates to the same...is this just scare tactice??(cos its working)

Many thanks in this time of plenty of worry...

MJack

 

 

 

[e28bigalbexley]

Hi

I believe you will shortly be recieving an Allocation Questionaire which will be the case management part, http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

they just want a little more detail than you put in the N1. Nothing to worry about.

UCTA is Unfair Contract Terms Act 1977

Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA.

Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable. Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

Also the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and iii) the common law relating to liquidated damages and penalties in contracts.

 

 

Yes scare tactics

There, that better now calm down.

AL:)

[MJack]

cheers bex`s...yes,a little calmer now.

 

Thanks...

Mjack

[justwon]

Hi,

 

I received a PM on this case asking for advice, but haven't checked it for ages as I usually post under a different alias to that in which I post the details of cases that people have asked me to post.

 

As people have said before, you shouldn't be worried about the Defence that Cobbetts have entered on the Defendant's behalf - it's standard.

 

I am sure people here will help you file your reply, which according to the Civil Procedure Rules should be filed along with, and at the same time as the AQ, and served upon the Defendant (or their Solicitors in this case).

 

In regard to e28bigalbexley's post, if you reply to the Defence in the manner he suggests you might want to add why the Defendant's penalty clause is not a “fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

The first thing I would ask is why haven't you claimed contractual compounded interest. I think you should amend your claim ASAP - believe me it will be worth a thousand at least. I also note that your claim may goto fast track due to the amount so, unless you are confident of presenting your case in court to maybe a less than sympathetic judge (where a friend can't represent you), at the same time as applying for contractual interest you might want to apply to limit your case to charges of say 3K plus contractual interest.

 

AFTER, you have amended your claim properly, and if you don't pay court fees I would put a motion to strike out the Defendant's defence (and subsequent Summary Judgement) you can see the first thread that I posted for more info - it should get them to settle faster.

[justwon]

Ohhh.. and in case I didn't say before... good luck.

[justwon]

Ohh.. someone might want to move this thread to the right board.

[MJack]

Hey..

Next step....here goes..

I have today recieved AQ from Cobberts again stating "that I have not shown reasonable grounds for bringing a claim and despite the defendant requesting that i remedy the lack of particularity(good word)pleaded in the POC

 

Case management directions cannot be proposed until the claimant fully particularises my claim.

In light of this,the def may amend its defence or apply a strike out "

 

hoping this is standard,although reassurance from you guys would work wonders for my nerves...

 

Cheers.

 

MJack

[e28bigalbexley]

Hey..

Next step....here goes..

I have today recieved AQ from Cobberts again stating "that I have not shown reasonable grounds for bringing a claim and despite the defendant requesting that i remedy the lack of particularity(good word)pleaded in the POC

 

Case management directions cannot be proposed until the claimant fully particularises my claim.

In light of this,the def may amend its defence or apply a strike out "

 

hoping this is standard,although reassurance from you guys would work wonders for my nerves...

 

Cheers.

 

MJack

 

 

Dont worry its standard:D

Read this

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html

 

AL:)

[MJack]

I have had a notice of date for returning pre-trial checklist today.

It states that the court upon its own motion has made the order of its own initiative without a hearing.

Its ordered that…

Claim is allocated to fast track.

 

2)Disclosure of documents shall be dealt with as follows:

a)the parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4pm 28.02.07

b)Any request to inspect the original of a copy document shall be made by 4pm on 14.03.07

 

Each party shall serve on every party the witness statements of all witnesses of fact on whom the party intends to rely by 4pm 28.03.07

 

Not more than 7 nor less than 3 clear working days b4 the trial,the claimant shall file at court an indexed and paginated bundle of documents which complies with the requirements of Rule 39.5 of the CPR and the practice hithrto,and shall serve a copy of it on the defendant.The parties shall endevour to agree the contents of the bundle before it is filed.The bundle shall also include;

a)0 a case summary of no more than 400 words.

b)a statement of the issues to be decided by court.

c)copies of all authorities and relevant extracts of any authoritative texts or other sources which any party or expert witness intends to rely on or refer to.

 

Completed pre-traail check list to be sent to court no later than 11/04

 

Trial should last 3 hrs.

 

Because the Order has been made without considering representations from the parties ,the parties have the right to set aside,varied or stayed.A partry wishing to make an application must send or deliver the application to the court(together with the appropiate fee)to arrive 7 days of service of this order.

 

And I have a listing questionnaire.

 

what should i do now..!!!!!

 

Is this good or bad...

 

Thanks

 

MJack

[e28bigalbexley]

Hi Jack

Yes i believe you need this http://www.consumeractiongroup.co.uk/forum/abbey-bank/57385-examples-witness-statements-disclosure.html

 

and this http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

You need to make three copies of every thing and list it. It is a lot of work but you will get plenty of help.

 

I will PM a MOD for you to confirm exactly what you need to do.

 

AL:)

[Michael Browne]

See here for Fast Track:

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex305_0806.pdf

 

CPR part 28 here:

http://www.dca.gov.uk/civil/procrules_fin/contents/parts/part28.html

and Part 28 Practice Directions here:

PRACTICE DIRECTION – THE FAST TRACK - This Practice Direction supplements CPR Part 28

 

You can download N265 for Disclosure here:

http://www.hmcourts-service.gov.uk/courtfinder/forms/n265_1005.pdf

[e28bigalbexley]

Thank you Michael

[MARTIN3030]

Things have moved extremely quickly.

Looks like the Judge is forcing Cobbetts hand.There have been lots of instances where the banks do not comply with this order.....the Judges know this....

Anyone following Nat West and RBS claims recently will have noticed the bank taking a more active role in settlement without Cobbetts intervention.

 

However as Fast track HAS been allocated then you need to put together all the documents.

Just out of interest did you file the new draft with your allocation? the one that requests disclosure ?