Cobbett's file defence; POC do not disclose reasonable gorunds etc

[njb]

Is this Cobbetts latest defence strategy, has anybody had similar??

 

How do I counter their defence??

 

Which interpretation of The Unfair Terms Act 1977 (UCTA 1977) & The Unfair Contract Terms in Consumer Regulations 1999 (the Regulations) will the court uphold??

 

Which sections/regulations/provisions of UCTA 1977 & the Unfair Contract Terms in Consumer Regulation 1999 support the CAG position?

 

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. 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 his claim.

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

4. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are unenforceable by virtue of the Unfair Contract Terms Act 1977 fUCTA 1977'") and/or the Unfair Contract Terms in Consumer Regulations 1999 ("the Regulations") and/or the common law, the Claimant is required to identify:

4.1 (a) the section(s) of The Unfair Contract Terms Act 1977 ("UCTA 1977");

(b) the regulations of The Unfair Contract Terms in Consumer Regulations 1999 ("the Regulations"); and © the principles of common law relied upon by the Claimant in alleging that the contractual provision(s) referred to are unenforceable; and

4.2 the contractual provision(s) that the Claimant alleges are invalid by reference to UCTA 1977 and/or the Regulations.

Until such time as these sections/regulations/provisions are identified the Defendant cannot plead to the allegation referred to in paragraph 6 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual information.

5. 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.

My Particulars of Claim

Money claim for return of penalty charges applied to the Claimants bank account by the Defendant

Value

Charges £2,957.82

Overdraft interest £113.88

Interest under s.69 County Courts Act 1984 £968.37

Court fee £120

Total £4,160.07

Plus interest pursuant to s.69 County Courts Act 1984 from the date of issue to the date of judgement/settlement at £0.89 per day or at such a rate and for such periods as the court deems just.

Particulars of Claim (attached)(to follow)

1. The Claimant has an account xxxxx ("the Account") with the Defendant which was opened xxxxx

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account 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 Account 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 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 £ 2,957.82 and any interest charged thereon;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S. 15 of the Supply of Goods and Services Act (1982).

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

 

[Parkvale]

It looks like the standard cobbetts defense of the moment. Virtually word for word the same as mine,received at beginning of January. Do not worry to much about their defense .The next stage wil be that the court will send you an AQ (allocation questionare.) which will determine which track you will be allocated,small claims, fastrack or multi-track. You can send an answer to their defence. Some of the threads have done this. My own experience is to wait for your AQ to arriveand fill it in as per the template letter and draft directions, found on the template thread. Remember no bank has yet defended their charges in court . Good luck

[njb]

Thanks for the encouraging response. Could you or any reader direct me to threads where Cobbetts have entered the same type of defence? I’m keen to learn how their defence stands up & how it is countered & overcome.

Also, any info on reversal of credit default notices would be very helpful.

[njb]

I received Cobbetts dence on 12th Feb, how long before AQ arrives from court?

[pete_h]

njb,

 

Going through Cobbetts defence -

 

Their point 3 - the answer to this, unfortunately, is to send copies of all relevant bank statements. You may wish to reply that you will provide these as part of your Court Bundle prior to the trial of your claim (which of course we all believe won't ever happen). Sadly they are entitled to require us to provide all evidence that anything's happened at all, i.e. we have to prove we even ever paid a bank charge, even if we got the statements from the bank under a Data Protection Act Subject Access Request in the first place! (Yes I know, it's straight out of Alice in Wonderland).

 

Their point 4 (inc 4.1 and 4.2) - although you've named statutes, they are entitled to know upon which clauses of those statutes your argument is based. I based my PoC on an excellent post by a member called rbrears in which these clauses were all detailed. The details are - "the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e)" and "the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2". I also found these statutes as files via Google and downloaded them to make sure the sub clauses made sense - contact me and I can email them to you if you need them.

 

What I would have done in your case (though I am definitely not a legal expert), is write to the Court, copy to Cobbetts, including the above info and suggest to the Court that you believe you have answered all Cobbetts concerns so you respectfully suggest that a case management conference isn't necessary - Cobbetts are only inviting the Court to hold one (to intimidate you by use of the Court process) - the Court don't have to follow Cobbetts request.

 

You might also like to propose that due to the fact that these cases never go to trial the Court considers making an Order against Cobbetts -

 

"It is submitted that the Defendant has no intention of defending this claim, and I think it reasonable to infer that filing a defence is solely an attempt to dissuade me from pursuing my legitimate right of seeking a judgement from a court. The pattern of the hundreds of cases settled by the banks in identical circumstances would seem to support this contention. May I respectfully suggest that the Court issues the following order, which I understand has been used by the County Court in Lincolnshire.

 

”IT IS ORDERED THAT

 

The court of its own motion is considering striking out the defence in this action as an abuse of process.

 

The basis for this is the fact that the defendant is settling all claims of this nature where claimants are seeking the reimbursement of bank charges, with no claims proceeding to a contested hearing.

 

The court considers the authority of Mullen-v-Hackney London Borough Council [1997] 2 AIIER 906 relevant.

 

If the defendant objects to the proposed strike out it is ordered to file, within 14 days of the date of service of this order, a schedule setting out all claims of this type in England and Wales which have proceeded to a final contested hearing, and the outcome of such hearings, together with a schedule of all such claims which it has compromised before final hearing, after proceedings have been issued.

 

Upon receipt of any such objections the court will consider listing the claim for an on notice hearing of the strike out issue.

 

In the absence of any such files being returned in time, the defence herein will be struck out and judgement entered for the amount claimed by the claimant, together with the appropriate costs claimable on the small claims track”."

 

That should upset Cobbetts.

 

All the best, and lots of patience,

 

Pete

[bobandsuzzi]

exactly the same as mine

just wait for AQ to arrive

Bob

[njb]

njb,

 

Going through Cobbetts defence -

 

Their point 3 - the answer to this, unfortunately, is to send copies of all relevant bank statements. You may wish to reply that you will provide these as part of your Court Bundle prior to the trial of your claim (which of course we all believe won't ever happen). Sadly they are entitled to require us to provide all evidence that anything's happened at all, i.e. we have to prove we even ever paid a bank charge, even if we got the statements from the bank under a Data Protection Act Subject Access Request in the first place! (Yes I know, it's straight out of Alice in Wonderland).

 

Their point 4 (inc 4.1 and 4.2) - although you've named statutes, they are entitled to know upon which clauses of those statutes your argument is based. I based my PoC on an excellent post by a member called rbrears in which these clauses were all detailed. The details are - "the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e)" and "the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2". I also found these statutes as files via Google and downloaded them to make sure the sub clauses made sense - contact me and I can email them to you if you need them.

 

What I would have done in your case (though I am definitely not a legal expert), is write to the Court, copy to Cobbetts, including the above info and suggest to the Court that you believe you have answered all Cobbetts concerns so you respectfully suggest that a case management conference isn't necessary - Cobbetts are only inviting the Court to hold one (to intimidate you by use of the Court process) - the Court don't have to follow Cobbetts request.

 

You might also like to propose that due to the fact that these cases never go to trial the Court considers making an Order against Cobbetts -

 

"It is submitted that the Defendant has no intention of defending this claim, and I think it reasonable to infer that filing a defence is solely an attempt to dissuade me from pursuing my legitimate right of seeking a judgement from a court. The pattern of the hundreds of cases settled by the banks in identical circumstances would seem to support this contention. May I respectfully suggest that the Court issues the following order, which I understand has been used by the County Court in Lincolnshire.

 

”IT IS ORDERED THAT

 

The court of its own motion is considering striking out the defence in this action as an abuse of process.

 

The basis for this is the fact that the defendant is settling all claims of this nature where claimants are seeking the reimbursement of bank charges, with no claims proceeding to a contested hearing.

 

The court considers the authority of Mullen-v-Hackney London Borough Council [1997] 2 AIIER 906 relevant.

 

If the defendant objects to the proposed strike out it is ordered to file, within 14 days of the date of service of this order, a schedule setting out all claims of this type in England and Wales which have proceeded to a final contested hearing, and the outcome of such hearings, together with a schedule of all such claims which it has compromised before final hearing, after proceedings have been issued.

 

Upon receipt of any such objections the court will consider listing the claim for an on notice hearing of the strike out issue.

 

In the absence of any such files being returned in time, the defence herein will be struck out and judgement entered for the amount claimed by the claimant, together with the appropriate costs claimable on the small claims track”."

 

That should upset Cobbetts.

 

All the best, and lots of patience,

 

Pete

 

Hi Pete

Thanks for that most comprehensive advice, I'll cetainly reply accordingly.

Cheers

NJB

[jimmyay]

I was speaking to a source in the courts at the weekend and the judges are so sick of Cobbetts predictable standard excessive defence which invokes practically the whole law of contract and makes a CPR 18 request ( which annoys them greatly ) for small claims cases, that the courts have issued guidelines internally to the effect that judges can choose to strike out the action as abuse of process, or request that a proper defence with full disclosure is put in within 14 days.every time the action is withdrawn as the banks cough up. the courts aren't usually made aware of what settlement is reached, they just know that the action suddenly dies a death after their direction to Cobbetts. And apart from an ocassional pained letters threatening to get a judgement set aside, or appeal judges decision to strike out, which have never materialised, the defendents never wish to escalate and leave the courts decision as final. actually they would like a ruling. However , another source says that the banks are nowddefending some claims and settlements/ judgements in the order of £12 (as with credit card charges) as a reasonable charge are being considered. I naturally informed my source of this site so the judges can get fully up to speed.

[Parkvale]

jimmyjay,

Great detective work .Lets hope all the courts act as one and present a united front against cobblers. What a surprise that in their desperation they are now hiding behind the OFT £12 recomendation .They are so cynical. It will very interesting to see how they defend even that charge in a court room . Because we all know the

banks biggest enemy is FULL DISCLOSURE. That is the stake to their heart that they

fear most .

[pete_h]

Let's not also forget that the £12 is NOT a figure that the OFT endorse for credit card charges. It is just the figure that they regard as a trigger for further legal action if the credit card companies exceed it. Courts should NOT be using it as some kind of independently approved reasonable charge figure.

 

I recommend that all Claimants download the pdf file of the report from the OFT website. I referred to in in my (successful) claim - "the Office of Fair Trading’s report “Calculating fair default charges in credit card contracts”dated April 2006 in particular but not limited to - paragraphs 1.1 , 1.19 and 5.14, which extend the principles to bank charges, and paragraphs 1.3, 1.15, 1.16, 3.1 to 3.27 and 4.21, which address legal issues." (Check these clauses for yourself before referring to them - I'm not a lawyer)

I also printed out the BBC website for the Money Programme "Bank Robbery" where typical maximum possible costs per event were estimated at £2.50 - see http://news.bbc.co.uk/1/hi/business/6169539.stm and http://news.bbc.co.uk/1/hi/business/6170495.stm and sent that too. I love the fact that one of the experts is ex NatWest.

 

I only did the above because Cobbetts alleged in their defence that I hadn't demonstrated that the charges were unfair so they were inviting me to amend my PoC free of charge as far as I was concerned.

[Parkvale]

pete h,

Good idea about the bbc money program info. Cobblers are trying every trick in the book . What we must not forget as you quite rightly point out .The OFT figure is a

recomended figure for credit card charges. Not bank charges. Where the figure is

thought to be much lower than £12.

[pete_h]

Parkvale,

 

Thanks for that.

 

One point in your post that I too believed before I read the OFT report I must respectfully disagree with - the £12 is not "recommended" for credit cards as such. It's the figure that the OFT used when they said to the credit card co's "If you charge above this figure we shall take legal action against you". It's just the first stage for the OFT at the moment and it doesn't mean they think it's fair - it's just less unfair than the £25 a time the card co's charged before. They say in the report that all the same legal arguments apply to bank charges as to credit card charges. Common sense says that it can't cost a lender substantially more to have a credit card limit exceeded than an overdraft limit. We know from the BBC report that the actual cost is a MAXIMUM £2.50.

Both the OFT and BBC reports would be very useful documents to include if a claim went to trial - they are completely independent and make our claimant's case.

[Parkvale]

pete h,

Humble pie i solemnly eat pete .(pardon the rhyme):o I have never really gone through the OFT report in great depth,because i have not disputed any cc charges. Good points, and correct me if i am wrong. The OFT are due to report on bank charges sometime in March .

[pete_h]

Parkvale,

 

We're all learning here so the humble pie diet isn't necessary!

 

I only got the OFT report because Cobbetts said I hadn't provided evidence that the charges were unfair. It's a long read and pretty repetitive - the intro tells you what it's going to say, then the main part says it again but in more detail then the summary says it again for a third time. Could just be me, but I can't see it hitting the best seller shelves in WH Smith anytime soon!

 

I didn't know the bank charges report was due so soon - good news!

[muggins73]

Hi Pete

Thanks for that most comprehensive advice, I'll cetainly reply accordingly.

Cheers

NJB

 

Hi njb,

Feel free to answer their defence, but as long as you have indeed particularised you POC as per the template provided by this forum, then there REALLY is no need at this stage.

Like many others of my fellow comrades, this is pretty std scare mongering tactics from Natwest. IMHO wait for the AQ fill it in and then wait for instruction from the judge. These are the only people whom you are to answer to at this stage, not Natwest.

Have a look and see my thread and see it's not worth the hassle http://www.consumeractiongroup.co.uk/forum/natwest-bank/31683-muggins73-natwest.html

[muggins73]

Something else I've just remembered.

I am presuming that you enclosed a spreadsheet with your N1, so they have had all the information they need.

 

You will shortly receive another copy of the defence from the court (probably a couple of weeks) along with the Allocation Questionnaire. Complete that as per the example in the Bank template Library.

 

You may also wish to include, in the section for more information, that you wish to ask the judge to consider making the attached order.

 

Then attach the order shown below.

 

 

 

 

 

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

 

 

Between

 

 

XXXXXXXX - Claimant

 

 

and

 

 

 

XXXXX - Defendant

 

 

 

 

 

Draft Order for Directions

 

 

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

• 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.

 

 

 

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

• 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.

• f) Any witness statements.

• g) 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.

[Wardle32]

Pete H- your response to Point 3 (sending all our bank statements to them). Can't we just send the spreadsheet we've already done- this has all the dates / name of the charge and amount on it. As I understand it, the only extra info they want is how much we think they should be charged?

 

[EDIT: This ihas been answered since I updated the page!]

[pete_h]

Muggins - I believe that the claimant has to specify clauses, sub clauses etc for the defendant to know what they are expected to defend. If Cobbetts pursued this the judge would be likely to order a more particularised claim, something that njb would find more time-consuming than just replying with the clauses I listed. I don't believe that the template is detailed enough in this respect to be honest. On the other hand NW appear to have changed tactics and started to offer settlements at the LBA stage - perhaps the "battles" you and I both went through October to January aren't happening so much these days?

>

However, if you look at the Lloyds bank thread their lawyers are pretty aggressive in challenging PoC's which don't give the required info. NW could just as easily switch tactics again.

 

Wardle - I believe that if it ever got to Court stage you'd have to send the bank statements, but only then. My post said that njb would say he'd send them with the court bundle (but not till then, and we don't really believe it'd ever happen).

[muggins73]

My advice is meerly a suggestion, one that is either accepted or not.

 

All I know is that when I thought about jumping through hoops for Natwest with regards to their defence, asking me for exactly the same informtion as njb, (but didn't in the end due to some much appreciated pep-talk and alot of valium!), the judge didn't instruct me to do so either.

 

You are right, pete, in what you say, that our battle appears to be a distant memory as tactics are always changing.

However, the bottom line is, as it has always been, that Natwest does not want to, however much they make a song and dance, disclose how they go about charging us.

IMHO providing the schedule of charges were sent with the N1 claim form and this form was completed using the template, the 'required info' has already been provided. The template has worked for so many others why should it be any different now? The answer is simply, scare tactics.

 

I said it once and I'll say it again, wait 'til the judge actually instructs you to further extend you POC. Natwest did pursue this further with my claim through their AQ and the judge still decided to ignore it and Natwest paid up in full three weeks later.

 

The choice, as always, is not down to me, it is up to the individual to make. I can only help provide them with the information to make an informed decision:)