Claiming on a Business account? Lets join forces?

[TheyrCriminals]

Hi Guys,

 

Listen to this. My friends were so frustrated with the little development that has been made for RBS/Natwest business claimants since the gold dust penalty ruling that they contacted Cobbets (solicitors for Natwest). Cobbets e-mailed them later and said they believe business accounts fall outside the scope of the OFT test case and that their client will not oppose any application to have the stay lifted. However my friends have been down this road before, even getting a Draft Consent Order signed with Cobbets, applying to have the stay lifted but the Designated Civil Judge for Devon and Cornwall would not allow the stay to be lifted back then. What do you think Cobbets are up to? Any thoughts welcome.

 

TheyrCriminals

Edited April 8, 2009 by TheyrCriminals

[photoman]

Hi Guys,

 

Listen to this. My friends were so frustrated with the little development that has been made for RBS/Natwest business claimants since the gold dust penalty ruling that they contacted Cobbets (solicitors for Natwest). Cobbets e-mailed them later and said they believe business accounts fall outside the scope of the OFT test case and that their client will not oppose any application to have the stay lifted. However my friends have been down this road before, even getting a Draft Consent Order signed with Cobbets, applying to have the stay lifted but the Designated Civil Judge for Devon and Cornwall would not allow the stay to be lifted back then. What do you think Cobbets are up to? Any thoughts welcome.

 

TheyrCriminals

 

 

Okay,

What they are upto is this:

Being a business account, your friends account was never covered by the UTCCR99.

This meant that the grounds for claim for all business claimants was always solely upon the contention that the charges were unlawful as they were penalties under common law.

 

The OFT case was originally brought upon both grounds; the claim that the charges were subject to a test of fairness under UTCCR99, and also the contention that the charges were penalties under common law.

The first round in this case was concerned with the common law aspects, and in this respect the judge has now assessed all the personal account T&C's for the relevant period for all the banks.

He has declared that the terms do not give rise to the charges being considered as penalties under common law (except perhaps for some of Natwests historical terms).

 

This means that the OFT case will now only focus upon the UTCCR.

 

The banks are now using this ruling, and claiming it means that there are no longer any grounds to bring any charges case under common law.

They are trying to claim that this ruling includes business account T&C's. Which in my, (and many others) opinion is wrong, as at no point was there ever any consideration of ANY business account T&C's.

 

If the banks contention of applicability is allowed to ride, then this means that as a business account claimant you would be left without any cause of action. i.e. The UTCCR never applied anyway, and now the contention that they are penalties under common law could also be lost.

 

So, in your friends case, the bank fancy their luck.

They believe that if the stay is lifted in your friends case, the claim will either be struck out, or if it goes to court they would win.

So, they are maybe prepared to let the stay be lifted, and see what happens.

 

If the stay was lifted, and the case were to proceed, a carefully worded statement of case claiming that the OFT case judgement should be discounted as being any kind of precedent on common law (as it only considered and ruled upon "personal" accounts T&C's, and your friends were "business" T&C's), may allow the case to go to trial.

At which point a judge would then look at your friends particular "business" account T&C's and decide if the T&C's were sufficiently different, and if so whether they then did or didn't make the charges penalties.

 

If it is Natwest your friend is dealing with here, to your friends benefit is the fact that even Natwest "personal" account T&C's have not been given a clean bill, so this raises some doubts all round, and maybe makes your case stronger in prompting a judge to allow such a case to trial.

 

However, pursuing the act of first getting the stay lifted, then trying to get the case to trial, and then getting a favourable ruling would be a lot of work and be quite stressful.

I would not recommend it to someone unless they have some experience of the system and perhaps already spent some time in court.... is your friend in such a position ?

 

I would suggest just not contacting them anymore, and just letting the stay remain in place, until there is perhaps a bit more clarity on how courts may view the applicability and crossover of the OFT case regards business T&C's.

 

PM

[MARTIN3030]

Yes agreed.

IMHO far better to get the terms and conditions that applied to the account and compare them with the accounts that Smith looked at.

Theres been suggestions that the OFT are going to be looking into business accounts too-that has to come somewhere down the line.

Hopefully such an outcome will not be as long winded as this case-since the OFT already has some info and also because much of the ground has already been covered during the current case.

There does not appear to be much info available to look at the numbers of stayed Business claims-but its very interesting to see that most of the reclaim sites are still inviting apps for business claims-because they know its only a matter of time.

Cobbetts are trying to play a blinder as PM says.

Unless you are fully prepared to go for it then you will be crazy to anticipate success.

Far better to let the interest add up and wait.

[TheyrCriminals]

Hi Photoman and Martin,

 

Thankyou very much to both of you for the detailed responses above. If Natwest are keen to get the stay lifted could I tell my friends to ask Cobbets if their client is prepared to settle out of court?

 

TheyrCriminals

[MARTIN3030]

Knowing Cobblers (as I do quite well) they will be reluctant to agree unless its on their terms an offer is usually around the 50% mark.

Do you know what period your friends account covers ?

I am assisting one member with a pre 2003 business claim.

We have advised Cobblers that Smiths October rulings and the Jan/Feb judgements, claimed he was not convinced that Natwests historical terms and conditions were incapable of being penalty charges under common law.

Cobblers have said that Smiths rulings on those terms and conditions were not applicable to Business accounts.

Seems they want it both ways !!

 

Smiths observations on RBS and Natwest are covered in paras 120-130 of the October publication

 

 

He looked at 2001 terms and said there were similarities to 2004 ones.

I strongly suggest you ask your friend to look at these paragraphs to see if theres any obvious connections with your friends account.

I also suggest that you tell him to inform Cobbetts that he will be seeking a copy of the original terms and conditions that were applicable to the account (even if it WAS post 2001/2) since there is every likelyhood that these terms will be completely different to those that Smith looked at.

He needs to get these terms and conditions before making any decision.

Cobblers will then know what he is up to and are quite likely to make the 50% offer.

Without that potential evidence then Cobblers will assume they can go on to ask for a strike out.

A carefully worded letter should do the trick-I mean at least put them in the picture.

If they again say that the Judgement did not apply to Business accounts,then he can say that this is an admission that Smith did not condider them.

 

If they claim that the ruling on post 2002 accounts deemed penalty charges to be ruled out,then he can say-well if Smith was not concerning himself with looking into business terms and conditions in October-its reasonable to say that the NONE of his decisions were applicable to business accounts.

 

I will see what I can find-can you confirm what years his charges cover ?

 

 

heres the link to check the paras.

 

 

 

1. [PDF] Neutral Citation Number: [2008] EWHC 2325 (Comm) Case No: 2007-1186
    
    
   148k - Adobe PDF - View as html
   In my judgment in this action dated 24 April 2008, [2008] EWHC 875 (Comm) (my " ... of being penal, leaving in dispute a relatively small number of terms ...
   www.judiciary.gov.uk/docs/judgments_guidance/oft-oct-judgment.pdf
   

Edited April 8, 2009 by MARTIN3030

[TheyrCriminals]

Hi Martin,

 

Many thanks for your reply. I see totally where you are coming from with your argument, it makes alot of sense. The charges they are claiming between 2001-2003 total around £3500 (without statutory interest). They have a further load of charges amounting to £5,000 from 2004-2007. In addition they tried to get statements going back pre-2001 as they have paid numerous charges then as well but Natwest said they dont have the records going back that far. However they have since dug out their own statements for that period and the additonal charges pre-2001 total around £2,600 (without interest).

 

TheyrCriminals

[MARTIN3030]

Thats great.

Whats the plan-are they being claimed sep to keep in small claims ?

If so he should not run them at the same time-Cobbetts will seek to get them amalgamated in one and say it should go outside SCT-(with a vulnerability to costs)

 

The older ones from 2001-presumably he will need to address these with section 32 Limitation in the Pocs.

Its essential that this is done or Cobbetts will ask for a S/0

[TheyrCriminals]

Hi Martin,

 

I have asked them how they are prcoeeding and they have not yet added the pre-2001 charges to the claim, but they were gong to do do it by amending their PoC. However I think what you are saying is that that is not the best way to proceed and the pre-2001 charges should be submitted to court as a separate claim, is this right?

 

TheyrCriminals

[MARTIN3030]

Yes I would say so.

Theres nothing to stop amending the POCs-you would need to show that the defendants were given the correct pre action protocols to address that though (if its not been done already for additional charges)

 

Limitation would begin from when they became aware of this-which would have to corroberate with any other action if you understand this point ?

 

I am not aware of any of Cobbetts cases being involved with limitation but no doubt they would fight it.

 

I think a claim tied in with charges under limitation that was tied in with others might be a little difficult to deal with-but thats just an opinion.

[TheyrCriminals]

Hi,

 

Do we have any legal cases yet where the stay has been lifted or the claim settled since Smith's RBS/Natwest penalty ruling? Also how can my friends get a copy of the terms and conditions that the pre-2001 charges would have been governed by.

 

TheyrCriminals

[MARTIN3030]

I am not aware of any such cases,It seems they are aware they are on shaky ground and will probably make an offer at the mention of you applying to have the stay lifted using Smiths judgements on NW charges as an arguement.

 

You are entitled to have a copy of the terms and conditions since they will feature in your defence...you need to make a formal request.

[TheyrCriminals]

Hi Martin,

 

Is there a template for this formal request?

 

TheyrCriminals

[photoman]

I would suggest that you make a formal request under CPR 31.

 

This is a call for disclosure of documents; of both those upon which they intend to rely in their case.... and also any documents that may adversely affect their own case (ie: documents which you have called for).

 

Basically... if they are claiming they had a contractual right to these charges, you want to see the actual contract (and terms and conditions) which supposedly gave them this right.

Once these documents are produced, then and only then can the merits of either your claim or theirs be assessed by the courts, to see if such contracts and terms were lawful.

 

PM

[TheyrCriminals]

Hi Photoman,

 

Thanks for that. Is the request under CPR 31 made to the Court on Application? Or is it made to Natwest directly?

 

TheyrCriminals

[MARTIN3030]

Yes that would be the best way.The actual terms and conditions would not be covered under a SAR since they are not "Subject" data.

A separate request under the Consumer Credit Act for a copy of your original agreement with the terms and conditions would also not be a bad idea for the cost of a quid.Certainly its worth a shot.

I will have a look to see if I can find anything,since there does not appear to be any shortage of NW terms and conditions doing the rounds....as in the case of Barclays-who have done their best to get them all from the public domain.

[MARTIN3030]

PART 31 -- DISCLOSURE AND INSPECTION OF DOCUMENTS

[MARTIN3030]

Have a read here;

It explains in good detail.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[TheyrCriminals]

Hi Martin,

 

Would it be possible to make a request under the Consumer Credit Act 1974 requesting the original agreement, the original terms and conditions and also the terms and conditions as they were updated over the years?

 

TheyrCriminals

[MARTIN3030]

I am sure that since the account is, or was regulated under the Consumer Credit act they would have to supply you with the request.I dont think they would be obliged to give any of the updated ones,but certainly in a CPR 31 request you could ask for a copy of the original agreement with associated terms and any subsequent terms that later applied,since this would be a party to the documents needed to conduct your claim.

Cobblers arent famed for making things easy for the claimant..so the request would need to be watertight-and specific enough to leave them in absolutely no doubts as to what you were asking for.

[TheyrCriminals]

Hi Martin,

 

Thanks for the reply and thanks also to the above posts, they have been very informative and useful.

 

TheyrCriminals

Edited April 13, 2009 by TheyrCriminals

[TheyrCriminals]

Hi Martin,

 

Can you please post a link where I will find a template for a letter to Natwest making a formal request under the Consumer Credit Act 1974 asking the bank for the original terms and conditions and the original agreement at the time the account was opened? Or is there not one?

 

TheyrCriminals

[MARTIN3030]

Theres nothing unique about it (I mean making an application as a business user OR personal app.)

Have a look in the bank temps library.

Dont forget to send the £1.00.

And make sure that you also include a request for any tariff notices or published lists of fees and charges that were applicable-remind them that these are part of any such terms and conditions.

[skippy176]

I have read the following quote which is supposed to be from Smith's April 08 judgment :-

'the terms now generally used by the banks' in relation to business accounts could be enforced.

 

Could someone tell me what paragraph it is as I have trawled through it (cross -eyed now) but can't find it.

 

Thanks

[MARTIN3030]

Since the April Judgement was concerned with penalties under consumer terms,I cant see how this could have been said.I have also looked and cannot find it.

Whats your source for this ?

[skippy176]

It was a "This is Money" article from 11 Aug 2008.

I have pasted it below :-

 

Confusion over whether business bank account holders can reclaim their bank charges may force the Financial Ombudsman to launch an official inquiry into the issue.

 

This is Money first reported in April that business bank account customers will no longer be able to reclaim unfair bank charges due to a landmark ruling in the High Court.

 

 

Although the High Court bank charges battle pertains to mainly to personal accounts, the judge at the centre of the case said at the time that business account charges are not penalties as such and can be enforced by banks.

 

The Financial Ombudsman's Service (FOS) has been processing business bank account claims since then, but is seeing an increasing number of small banks refusing to take part in the negotiation of business account reclaims.

Emma Parker from the FOS said: 'The judge said he didn't think that business account charges were penalties. It's a technicality, but it's affecting the stance of some of the smaller banks. The big banks are still settling claims on a goodwill basis but smaller banks are taking a step back. 'We're not at a point where we will have to have a formal inquiry yet, but that may be on the cards.'

 

The issue of business bank account charges has been frustrating for those small businesses wishing to reclaim their charges over the past few months as the High Court has refused to clarity its ruling.

Official bodies such as the FOS, the Financial Services Authority or the Office of Fair Trading also do not know whether these customers can technically continue to reclaim.

 

Up until the April ruling, business account holders were able to continue reclaiming despite the general waiver granted to banks on reclaims as, unlike personal accounts, business accounts are covered by common law instead of consumer law.

However each type of customer can still suffer charges of up to £39 a time for incursions into 'unauthorised' overdrafts.

 

The judge said in the small print of his ruling in April – which is now being appealed by the eight High Street banks involved – that 'the terms now generally used by the banks' in relation to business accounts could be enforced.

 

Some commentators have suggested the phrase 'now generally used' means only charges levied over the past 18 months cannot be reclaimed – and those customers with charges going back over a longer time period may still be successful. The situation will remain unclear however until one of the official bodies mentioned above clarifies the meaning of the original ruling.