PC23 v Natwest: Help needed **WON**

[Parkvale]

pc23,

Have a look at these might help you. Good luck. http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/

[pc23]

Defence received today. It's five pages long, and I don't think there's anything in there to worry about - but it would be peace of mind if there was someone who could look over it? Most of it's non-admission stuff, relating to not paying anything over six years old, about me particularising my claim and stuff asking me to identify sections in Unfair Contract Terms Act 1977, Unfair Contract Terms in Consumer Relations 1999 and principles of common law on which my case is based. And interestingly there's also the caveat of the defendant having 'right to plead further to the allegation once the Claimant' does X. So I presume I need to prepare my case. This is gonna be fun - but first I have a couple of questions...

 

1. My claim now goes over six years because of the time this is taking; can I claim six years from the date of first letter, LBA or court claim?

 

2. Can anyone point me in the direction of any additional documents to support my case... Have the downloaded zip file. Also is it worth taking along a video tape of the Tonight programme on bank charges and Whistleblower as evidence? Oh, and has anyone got a wav file of the Radio 4 interview.

 

3. The defence asks me to prove why charges are unreasonable (not difficult) but also prove what would have been reasonable. I feel 50p - especially as I rarely get a letter from Natwest on going overdrawn, unpaids and referral charges...

 

And any other advice which you may feel would be really appreciated!!

[Parkvale]

You are still a fair way off appearing in court. You can answer their defence if you wish. Or you can now wait for the court to send you an AQ. Cobbetts defence sounds like the usual stuff. At this moment you don't have to prove anything. So just sit tight. ( http://www.consumeractiongroup.co.uk/forum/general/80486-claiming-beyond-6-yrs.html#post712882

This is a great answer to a defence by josamolly.

• I am a litigant in person. I make this reply to the defence as a response to the banks defence and the also the banks application to have part of this claim dismissed. I make this response from matters within my own knowledge.
  
• It is acknowledged that the defendant denies that the punitive charges were debited unlawfully however it should be noted that the defendant has settled many hundreds of claims without once defending any in a court hearing, this is a clear and systematic abuse of the court system.
  
• I base my claim for Contractual Interest being awarded due to the imbalance in favour of the defendant in applying compounded contractual interest to the penalty charges and the borrowing of my money and no fairness in this being reciprocated by Claimant in their use of my money or any legal redress by the Claimant. This therefore being deemed an unfair term in the contract.

Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

 

1. At several points in the Defence the Defendant avers that the Claimant must plead further than he already has in the Particulars of Claim (‘PoC.’) The Defendant calls upon the Claimant to plead information (and in some cases evidence) which the Claimant isn’t required to plead at this point

 

1.1 For the avoidance of all and any doubt, it is specifically denied that the Claimant needs to plead further than he already has in this case.

 

1.2 The Defendant makes several averments in the Defence reserving its “right” to plead further in this case.

 

1.2.1 It is denied that the Defendant has such a right to plead further in this case, as alleged or at all.

 

1.2.2 Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

 

1.2.3 Nothing in this Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

 

2. In your defence (paragraph 2) you make reference to the Claimant not being able to bring a claim more than 6 years after the date on which the cause of action accrued.

 

2.1 I feel if your client had disclosed their true costs to me, this would have ended any dispute. However although your client has had every opportunity to do so, they have failed to avail themselves in this matter. I am also prepared to argue and show the court that the Limitation Act 1980 restriction does not apply under the specific exemptions in Section 32(1).a, b, and c and therefore my claim is not time barred under s5. I am fully prepared to prove to the court that your client’s charges are punitive in nature, excessive, unfair, not a true reflection of actual costs. And therefore show the court that my claim is not time barred due to your client concealing and or fraudulently concealing and or making a misrepresentation and or making a fraudulent misrepresentation. The Claimant avers that Section 5 of the Limitations Act is not relevant in respect of this claim.

 

3.1 The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large number of staff, including experienced corporate lawyers and accountants.

 

3.1.2 As a company regulated under the Financial Services Authority (“the FSA”), the Defendant has agreed to abide by the Principles for Businesses, as outlined in Chapter 2 of the FSA Handbook:

 

1. Integrity - A firm must conduct its business with integrity.

2. Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

3. Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

4. Financial Market Conduct - A firm must maintain adequate financial resources.

5. Market Conduct - A firm must observe proper standards of market conduct.

6. Customers’ interests - A firm must pay due regard to the interests of its customers and treat them fairly.

7. Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

8. Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

9. Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

10. Clients' assets - A firm must arrange adequate protection for clients' assets when it is responsible for them.

11. Relations with regulators - A firm must deal with its regulators in an open and cooperative way, and must disclose to the FSA appropriately anything relating to the firm of which the FSA would reasonably expect notice.

 

3.1.3 This document is produced under the powers given to the FSA within the Financial Services and Markets Act 2000, and provides a benchmark by which financial companies should operate within the United Kingdom. Paragraph 9, places a duty on companies to “take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment”. The Claimant contends that a bank’s fiduciary responsibility is encapsulated in law, and therefore if such a regulated company informs a customer that it is entitled to levy a charge against an account, it would be reasonable to expect the account holder to believe that the actions of the bank are lawful, and that the charge does relate to it’s internal costs, as they continue to contend is the case.

 

3.1.4 In addition and without prejudice to the above, as a Litigant in Person, the Claimant could not reasonably have discovered that the making of such payments was a mistake before the report of the Office of Fair Trading (“the OFT”) was published on 5th April, 2006, and the up swell of public information regarding unlawful bank charges during 2006.

 

3.1.5 It is worth noting that the Defendant and its peers will not allow the issues involved in these claims to be judged on merit in court, which would resolve the issue of the lawfulness (or otherwise) of banks’ penalty charges.

 

3.1.6 In support of this, the Claimant will also rely on Kleinwort Benson Ltd v Lincoln City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Southwark and Others; Kleinwort Benson Ltd -v- Birmingham City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Kensington And Chelsea And Others [1998] UKHL 38; [1999] 2 AC 349; [1998] 4 All ER 513; [1998] 3 WLR 1095; & Deutsche Morgan Grenfell Group Plc (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)[2006] UKHL 49 (on appeal from [2005] EWCA Civ 78)

 

4. Regarding the reference to the doctrine of laches in Paragraph 2 of the Defence. Again, it is submitted that, given the reputation of National Westminster Bank and their duties as outlined by the FSA above, after being made aware of the possibility of challenging these charges, the Claimant took the following actions:

 

4.1 The Claimant made a Subject Access Request (“S.A.R - (Subject Access Request)”) under s7(1) of the Data Protection Act 1998 (“Data Protection Act”) to the Defendant on 14th November 2006 to obtain bank statements for this account.

 

4.2 A preliminary refund request was sent to the Defendant on 2nd December 2006. This request gave the Defendant 10 working days to reply, which it decided not to do so.

 

4.3 As the reply had not been received, despite the Claimant giving ample opportunity and more time to take into account the festive season, a Letter Before Action was sent to the Defendant on 5th January 2006. This letter gave the Defendant a further 14 working days to settle the amount in dispute before court action would commence.

 

4.4 The Defendant did not make a timely reply to the Claimant’s letter of 5th January 2007, and thus the claim was prepared and taken to Luton County Court on 25th January for issue on 27th January 2007.

 

4.5 On 6th February 2007 in a reply to the letter dated 4th December 2007 (some 2 months later), the Defendant made a conditional settlement offer which did not satisfy the Claimant’s requests in full.

 

4.6 In a letter of 13th February2007, the Claimant advised the Defendant that the conditional settlement offer of 6th February 2007 did not meet the Claimant’s requests in full, but would be accepted in partial settlement without any conditions.

 

4.7 Further to the above, it is submitted that the doctrine of laches cannot be applied as the Claimant has not unreasonably delayed in asserting his equitable right.

 

5. Paragraph 3 of the Defence - it is the Claimant’s case that the Claim is properly particularised in the first instance and fully discloses grounds for bringing a claim against the Defendant.

 

6. Paragraph 4 of the Defence - if no admission is made of the charges that have been debited to the account, does the Defendant require further proof? Submitted with the PoC, at Appendix 1, was a full schedule of charges & interest paid, complete with 66 pages of statements showing the application of each and every charge and interest deduction.Since the Defendant supplied the statements and the data contained therein it is contended that no further evidence in support of the application of the charges is required.

 

7. Paragraph 5 of the Defence is denied in its entirety, and it is denied that the Claimant must identify the Contractual provisions which are Penalty clauses

 

8.Paragraphs 6.1 & 6.2 of the Defence – the Defendant’s case in relation to the Unfair Contract Terms Act 1977 (UCTA) are denied in their entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub paragraphs below.

 

8.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UCTA.

 

8.2 The Defendant’s interpretation of s4 UCTA contained within paragraph 6.2 of the Defence, is specifically denied.

 

9. Paragraph 6.3 of the Defence – the Defendant’s case in relation to the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub-paragraphs below:

 

9.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UTCCR

 

9.2 Paragraph 6.3.1 of the Defence is admitted, insofar as it quotes the title of Schedule 2 to the UCTCCR. The Claimant contends that the emphasis of “may” by the Defendant is irrelevant. By virtue of the fact that Schedule 2 is a “non-exhaustive” list, it is implied that any clause can be deemed to be unfair, providing it meets the criteria of any item contained within Schedule 2.

 

9.3 Paragraph 6.3.2 of the Defence – the Defendant’s contention that the Claimant is required to plead further - is denied in its entirety. Evidence is not required to be pled in a PoC. In any event, the Claimant has given an indication of the factors and evidence which he intends to rely upon in the PoC.

 

9.4 Paragraph 6.3.3 of the Defence – the Defendant’s contention that the PoC disclose no reasonable grounds for a claim under the UTCCR - is denied in its entirety.

 

9.5 Paragraph 6.3.4 of the Defence is denied in its entirety.

 

9.6 Paragraph 6.3.5 of the Defence – the Defendant’s contention that the UTCCR have no application - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

9.6.1 If the Defendant wishes to contend that the Charges are consideration for services rendered, then it is required to plead and prove the nature of the service provided.

 

9.6.2 In any event, even if the Charges are consideration for a service it is the Claimant’s contention that the UTCCR still apply, as detailed in the PoC.

 

10 Paragraph 6.4 of the Defence – the Defendant’s case in relation to the Supply of Goods and Services Act 1982 (“the SGSA”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the subparagraphs below.

 

10.1 Denied that at this time the Claimant is required to plead further than he already has.

 

10.2 In response to paragraph 6.4.4 (c ) The Claimant is not in a position to determine what level the penalty charges should be. The Defendant can only levy a charge which is a genuine pre-estimate of its liquidated losses or the actual liquidated losses. It is therefore denied that the Claimant can suggest an appropriate fee. However, when determining the liquidated losses it would be reasonable to take account of the fact that the charges are applied automatically to the Claimants accounts; the charges are applied by way of systems put in place to manage the whole of the account along with those of the millions of other accounts operated by the Defendant.

10.2 Paragraphs 6.4.3, 6.4.4, 6.4.5 of the Defence are specifically denied.

11. The PoC outlines three interest rates that the Claimant will take the Court's direction on which rate should be applied – these are 29.50% compounded (unauthorised borrowing rate), 16.99% compounded (authorised borrowing rate) and 8% simple interest as allowed by s.69 County Courts Act 1984.

 

11.1 It is further submitted that Paragraph 7 of the Defence does not comply with CPR 16.5(2)

 

11.2 In relation to entitlement to interest, the Defendant charges interest to the Claimant, via the Account, at its published “unarranged overdraft rate” of 29.50%. The Defendant claims that it is entitled to charge this rate by virtue of the Terms & Conditions.

 

11.2.1 In maintaining the principal of fairness and balance, the Claimant has at no time disputed the interest charged by the Defendant, either unauthorised or authorised, nor has the Claimant attempted to seek any restitution on the interest charged.

 

11.3 The unarranged overdraft rate was charged to the Claimant, via the Account, when the Claimant drew money from the Account whilst he had not obtained prior permission from the Defendant for exceeding any overdraft limit that he had. It is in effect, a rate that the Defendant charged the Claimant when he drew funds from the Defendant when he had no right for doing so.

 

11.4 Using the reasoning as outlined in 11.3 and maintaining the principal of equity, mutuality and reciprocity and fairness and balance between the parties, the Claimant contends that he is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law, had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

 

11.4.1In addition the Defendant has had the enjoyment of this money to use as they so wished. It is averred that the Defendant has been able to re-lend the money unlawfully taken at the rates set out in the contract including the rate for unauthorised overdraft.

 

11.5 If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself in similar circumstances.

 

11.6 Without prejudice to 11.5, if no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

 

[pc23]

So should this go to the bank's solicitors or the court?

[Parkvale]

BOTH.

[pc23]

Had an offer from Natwest for all my charges requested in my original letter. But none of those since, my court fees or statutory interest. Should I ask for any of these (I was thinking court fees & other charges since original letter) or just take the offer?

[Michael Browne]

Up to you, I'd want the lot. See here:

Rejecting Offers

[pc23]

I seem to remember reading somewhere that the courts get annoyed with people going after just interest... Is this right?

[Michael Browne]

Except it's not just interest, it's further charges since your original letter and court costs and interest. But it's still your choice.

[pc23]

Have now had all my charges fully refunded by Natwest!

[Guest NATTIE]

congratulations!!

[pc23]

Thanks, lots of debts now cleared!!

[zootscoot]

 

Congratulations!!!!!!!!

:D

Don't forget to fill out the survey

Enjoy your payout!

[ripoffstopper]

Well done pc23, what interest was paid in the end please? Cheers ROS

[pc23]

No, total pay out was for £8220. All charges.

[hellhasnofury]

No, total pay out was for £8220. All charges.

 

Well done pc23, it is truely a great site:grin: