Mrs Martinix v NatWest**Won post OFT**

[martinhw]

S.A.R - (Subject Access Request) sent on 15/12/2006

 

Statements received late Dec.

 

Prelim sent 30/12/2003 - £409.00 + Contractual Interest @ 29.50% - Total claim £ 1161.76

 

NatWest reply to prelim on 10/01/07 - currently investigating blah blah blah

 

LBA sent 14/01/07

 

Busy building and preparing POC for N1 so we can file on time.

 

Can someone look this over for me please.....

 

Particulars Of Claim

 

 

1. The Claimant has a bank account, number ****** (“the Account”), maintained at the Defendant’s Totton Branch (sort code **-**-**)

 

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged overdraft interest on the charges once applied.

 

4. 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.

 

5. A schedule of the charges is attached to these particulars of claim (Appendix 1).

 

6. Under the law of penalties, the charges are an unlawful ‘extravagant’ penalty. Referring to the case of 1896, Wilson v Love, a charge is a penalty if it does not reflect an item’s true cost.

 

7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

 

8. The Claimant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate 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) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

c) 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.

 

d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

 

 

9. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest originally charged by the defendant, being 29.50%.

 

d) In the alternative to 9.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s authorised borrowing rate, being 16.99%.

 

e) In the alternative to 9.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Details of interest calculated & rates used are attached to these Particulars of Claim (Appendix 1) as follows:

Column1 – Compound interest calculated daily at an annual rate of 29.50%

Column 2 – Compound interest calculated daily at an annual rate of 16.99%

Column 3 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%

 

10. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate advertised by the Defendant’s website, being 29.84%. The Claimant understands that the unauthorised borrowing rate previously was actually over 33%, but believes that using the current rate gives a fair result.

 

 

 

d) In the alternative to 10.c) if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

[steve5080]

You might want to edit out your account number and sort code out of your post:rolleyes:

[martinhw]

Well spotted Steve - thanx mate

[martinhw]

Filed N1 today at Northampton County Court and paid the £120.00.

 

I did not use MCOL as the POC were too long and we don't live far from the court.

 

Court Clerk looked over the bundle and said all was in order. They will issue a claim number and court date today, and we will get bound bundles and acknowledgement etc via post in a day or two.

[martinhw]

Natwest

Claim Number: 7NN00546

Northampton County Court

Claim Total incl Costs: £1181.78

 

No Court date yet, they have until 19 Feb to respond.

[gizmo111]

Hi MArtin,

 

Good Luck with you claim. If you haven't already could you PM a Mod with your claim details so they can be addded to the litigation section.

 

Thanks

[martinhw]

Hi MArtin,

 

Good Luck with you claim. If you haven't already could you PM a Mod with your claim details so they can be addded to the litigation section.

 

Thanks

 

I have done thanx Gizmo. I will keep all updated with progress.

[steven4064]

In Mrs Martinix's claim, the grounds for reclaiming interest at the contractual rate are that, in applying unlawful charges, NW in effect borrowed money from her and that borrowing was unauthorised. Hence the use of NW's unauthorised borrowing rate.

 

Has anyone succesfully reclaimed interest on these grounds?

 

In our claim against NW we claimed actual interest debited to the account because of charges. That is, when the account was overdrawn, we reclaimed the proportion of the interest which was due to charges up to that point in time (usually all of the interest in fact as the charges soon mount up).

 

In our claim against GE Money (store card) we just added interest at their normal rate (29.9% APR).

[gizmo111]

I only calimed actual interest charged - there has been some successes on contractural - not sure if there are any NW ones

[steven4064]

Hi gizmo. It wasn't the rate so much as the grounds I was interested in.

[martinhw]

The grounds I am using are "mutuality and reciprocity".

In other words this rate was good enough for me when I was charged, so I am asking for this same rate back from the bank.

[steven4064]

Yes, I appreciate that - I just wanted to know whethe anyone else had made a successful claim on those grounds rather than just claimimng back interest that they had actually been charged.

[martinhw]

Cobbetts have acknowledged our claim and intend to defend all of the claim.

[devildolly]

Hi Guys

 

Just a quick note. If you look at Josamolly v natwest, someone on there has won with compounded contractual interest, and a few of us are trying at the moment. Good luck.

[martinhw]

Hi Guys

 

Just a quick note. If you look at Josamolly v NatWest, someone on there has won with compounded contractual interest, and a few of us are trying at the moment. Good luck.

 

Thanx for the vote of support - Good Luck with your claims too

[martinhw]

On the Notice of Acknowledgement from the court it says "The defendant has 28 days from the date of service of the claim form with particulars of claim, or of the particulars of claim, to file a defence."

 

N1 Filed - 3rd Feb

Acknowledgement - 13 Feb

 

By which date are they expected to file defence by?

 

28 days after we filed or 28 days from their acknowledgement?

[martinhw]

By my calculations Natwest have until Sat 03/03/07 to file a defence. This will be 28 days from service.

 

tick.....tock.....tick....tock

[martinhw]

Defence received this morning

 

DEFENCE

1 . This Defence is filed and served without prejudice to the Defendant's case that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Claimant to recover the bank charges (and interest thereon) referred to in the Particulars of Claim or any other sum(s). In the event that the Claim is not properly particularised then the Defendant will apply to strike out the claim and/or for summary judgement in respect of the same.

2. No admissions are made as to what charges have been debited to the Claimant's bank account.

3. On allocation the Defendant invites the Court to direct that there be a case management conference in order for the Court to consider the making of appropriate orders to give the Claimant the opportunity to properly particularise the claim.

4. In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:

4.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in the nature of a penalty the Claimant will need to plead and prove (a) the clause(s) pursuant to which the charges were applied;

(b) that the charges were applied due to a breach of contract by the Claimant; and © identifying in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to. As presently pleaded the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the Particulars of Claim have been applied pursuant to an unenforceable penalty clause.

4.2 Until such time as the Claimant pleads the matters referred to in paragraph 4.1 above the Defendant is unable to plead to the claim brought against it and therefore (pending the provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the Claimant's bank account pursuant to unenforceable penalty clauses.

5. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Contract Terms Act 1977 ("UCTA 1977") and/or the Unfair Contract Terms in Consumer Regulations 1999 ("the Regulations") and/or section 15 Supply of Goods and Services Act 1982 ("SGSA").

5.1 The Claimant is required to identify the contractual provision(s) that are alleged to be invalid by reference to UCTA 1977 and/or the Regulations. Until such time as these provisions are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 5 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.

5.2 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to section 4 UCTA 1977 then it is the case of the Defendant that the section is not applicable as any contractual provisions relating to charges do not relate to the Defendant's liability for negligence or breach of contract.

5.3 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to the Regulations the Defendant pleads as follows:

5.3.1 Schedule 2 to the Regulations is an Indicative and non-exhaustive list of terms which may be regarded as unfair" (emphasis supplied).

5.3.2 If the Claimant is to rely upon paragraph 1(e) of Schedule 2 to the Regulations then the Defendant will require the Claimant to plead and prove in relation to each bank charge that is sought to be recovered the matters referred to in paragraph 5.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high.

5.3.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be - see paragraph 5.1 above) falls foul of the Regulations and in particular paragraph 1(e) of Schedule 2.

5.3.4 The Defendant is therefore unable (save as appears below) to plead to this allegation beyond denying that any bank charges have been applied pursuant to terms which contravene the Regulations. The

Defendant reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 5.3.2 above are provided.

5.3.5 Without prejudice to paragraph 5.3.4 it is the case of the Defendant that the Regulations have no application because the charges amount to payment for services provided by the Defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judged by reference to principles of fairness under the Regulations.

5.4 In relation to the case of the Claimant that the charges are unreasonable within the meaning of SGSA section 15 the Defendant pleads as follows:

5.4.1 The Claimant is required to plead and prove the necessary factors (referred to in section 15 SGSA) concerning the contract between the Claimant and the Defendant which mean that pursuant to SGSA section 15 there is an implied term that the Claimant pay a reasonable charge for the service under the contract.

5.4.2 Further, the Claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable; (b) all facts and matters relied upon by the Claimant in support of this case and © what charges would have been reasonable.

5.4.3 In the circumstances no grounds are disclosed for a claim that the Defendant has acted in breach of SGSA section 15.

5.4.4 In the circumstances (save as appears below) the Defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 5.4.1-5.4.3 above are addressed.

5.4.5 It is the case of the Defendant that the contract between the Claimant and the Defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the Claimant and the Defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the Claimant and the Defendant.

6. If, which is denied, the Claimant is entitled to the return of the amounts debited in respect of charges, the Defendant denies that the Claimant is entitled to claim interest at a rate of 29.50%. or 16.99%.

7. Save as hereinbefore appears the Defendant joins issue with the Claimant on the claim(s) and denies that it is liable to the Claimant as alleged or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true. I am duly authorised by the Defendant to sign this statement.

[martinhw]

Could someone please help me look at the defence ? pretty please

[gizmo111]

Could someone please help me look at the defence ? pretty please

 

Looks pretty standard to me - when is AQ due in by?

[martinhw]

All we have had so far was this defence from Cobblers.

We have not had anything from the court about it yet.

[martinhw]

Received Allocation Questionnaire today.

 

Completed and sent to the court.

 

As I am now aware that Cobbetts read our threads, I have sent you a copy too.

 

Now come on Cobbetts, settle up - You KNOW it's the right thing to do!!

[martinhw]

Received the AQ today and reads as follws:

 

The claimant has not shown that she has reasonable grounds for bringing the claim and despite the Defendant requesting that the Claimant remedy the lack of particularity pleaded in the Particulars of Claim, the Claimant has failed to do so.

 

Case management directions cannot be processed until the Claimant fully particularises her Claim. In light of this, the Defendant may amend its Defence or apply to strike out.

[alf]

Hi

 

Did you send a copy of your Schedule of Charges to Cobblers, and the court, as they always try this one ie lack of claim particulars. They did it on all 3 of my claims, so i sent (recorded) Schedule + a copy of the POC to both of them to cover my back.

 

Good Luck

[Parkvale]

Good point alf. Martin maybe cobblers if they are reading this. Could you please put in a link to your successes thread. Oh dear just as i thought you have not got one.