Redrob V's Abbey

[Redrob]

OK, I'l just sit and wait then. Should I not have received a copy of the n1 form back with a seal on it? have only had 2 letters back from court, notice of issue and notice of acknowledgement.

 

Just been reading through your thread Icy, looks like your case against Abbey will soon be over, hope I can pick your brains when I need to. At the moment I have very little idea what happens next. I have read threads and see a lot of talk about allocation questionaires, which may or may not be required, and court bundles but not really clear on exactly what goes in these or how it comes to 200odd pages.

 

Obviously I will find the info when I need to, I know it's all on here somewhere, just hope I don't end up missing something out.

[ICY]

i am subscribed to your thread so will keep an eye on it if you need any advice then post on here and i along with plenty of others will see you right

[Redrob]

I have today received Abbeys defence. Have to say I'm a little concerned as it seems to be different from others I have seen on here. Can someone take a look for me. I've taken the time to type it all out below, it's quite a lot, don't blame me, blame Abbey.

Thanks in advance for your comments

 

 

INTRODUCTION

1. In this Defence:

1.1 References to Paragraph numbers are, save where otherwise indicated, references to paragraph numbers of the Particulars of Claim.

1.2 The Defendant’s Account Conditions (a copy of which is annexed as Annex A) will be referred to as “the conditions”

1.3 References to an “unauthorised” overdraft are to an overdraft permitted by the defendant without prior application and arrangement under clause 6.1 of the Conditions.

2. It is admitted that the Claimant held the following account with the Defendant, namely that bearing xxxxxxxx. (“the account”). It is admitted and averred that the contractual provisions between the Claimant and the Defendant in relation to the Account are set out in the Conditions.

3. It is denied that those charges payable and that rate of interest applicable upon a customer going into unauthorised overdraft or exceeding an authorised overdraft constitute a penalty at common law. It is denied that those charges and that interest are payable on a breach of contract.

4. The true position is as follows:

4.1 Each and every payment instruction presented by or on behalf of the Claimant to the Defendant which would, if honoured, take the Account into unauthorised overdraft or beyond an authorised overdraft, constituted a request (in law, an offer) by the Claimant to the Defendant for a loan of the requisite amount on the terms set out in the Conditions (alternatively on the Defendants usual terms as to such overdrafts as at the date of the payment instruction in question).

4.2 The Defendant was free to accept or reject each such request.

4.3 If the Defendant honoured the payment instruction in question, the Defendant thereby accepted the Claimant’s offer.

4.4 Accordingly, the Claimant became bound to pay interes and charges in relation to that loan at the stipulated rate.

4.5 That liability does not, at common law, constitute a penalty.

5. It is denied (if it be alleged) that, on a proper construction, clause 6.3 of the conditions provides that a customer going into unauthorised overdraft or exceeding an authorised overdraft constitutes a breech of contract (for which the customer is liable to pay damages). It is averred that clause 6.3 of the Conditions operates as a trigger to bring into effect certain other provisions of the Conditions.

6. It is denied that those charges payable upon the Defendant dishonouring a payment instruction presented by the Claimant by reason of the state of the Account (namely that had the Defendant honoured the instruction in question, it would have taken the Account into unauthorised overdraft or beyond an authorised overdraft) constitute a penalty at common law. Such charges are not payable on a breach of contract. They are, by clause 6.4 of the Conditions, a fee

7. The Defendant understands the Claimant’s allegation to be that the fees and interest payable in respect of an unauthorised overdraft or an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not binding on the Claimant by reason of regulation 8(1) of the Unfair Terms in Consumer Contract Regulations 1999 (“the 1999 Regulations”)

8. Regulation 6(2) of the 1999 Regulations provides that:

“In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate –

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange”

9. The fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are: (i) set out in plain intelligible language in the Conditions, and (ii) amount to the “price or remuneration” in respect of that provision of such overdraft or such dishonouring.

10. Accordingly, by regulation 6(2) of the 1999 Regulations, the provisions of the Conditions as to the fees and interest payable in respect of an unauthorised overdraft and in respect of dishonouring of payment instructions are not liable to assessed for fairness under those regulations.

11. It is denied that paragraph 1(e) of schedule 2 to the 1999 Regulations is applicable. As pleaded above, the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breach of contract by the claimant.

12. Alternatively, if (contrary to the Defendants primary case pleaded above), the provisions of the Conditions as to the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of dishonouring of payment instructions fall to be assessed for fairness under the 1999 Regulations, the Defendants case is as follows:

(a) Regulation 5(1) of the 1999 Regulations provides that:

“A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

(b) Regulation 6(1) of the 1999 Regulations provides (so far aas presently relevant) that:

“…the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract and to all the other terms of the contract and to all the other terms of the contract…”

© It is denied that the conditions breach that provision of the 1999 Regulations. In particular, (i) the Defendant’s charges and interest rates are published and provided to its customers from time to time and are expressed in clear language; (ii) the incurring of charges and interest in respect of an unauthorised overdraft and an overdraft beyond that agreed and fees in respect of the dishonouring of payment instructions is a result of the claimant’s actions; and (iii) the Defendant’s charges and interest rates are not, in the circumstances, excessive in relation to the value of the services provided in relation thereto.

(d) The Defendant reserves the right to plead further in this regard on the provision of full and proper particulars of the basis on which the Claimant contends that the Conditions contravene regulation 5(1) of the 1999 Regulations.

13. Save as expressly pleaded to above, each and every allegation contained in the Particulars of Claim is denied as if the same were individually traversed.

STATEMENT OF TRUTH

I believe that the facts stated in this Defence are true

Signed Willem Basson

Position: Paralegal

Dated 01 August 2007

[kia]

redrob it is exactly the same ive just checked for you its word for word dont worry to me it looks fairly standard to me does that put your mind at rest then hope so xxxkia

[Bigmac versus]

Normal as can see, their defence is that there wasnt a breach of contract nor are they penalties simply FEES.

 

TERMS AND CONDITIONS REQUIRED FOR YOU.

[Redrob]

Reading another thread, it seems to me that Abbey have now changed their defence and are now not admitting that a breech of contract occurred and saying that they are fees for a service, which is what other banks were doing anyway. Is this correct?

 

How do I get a copy of the terms and conditions? I opened the account in September 2001, they don't seem to be on the archive in the link from Sticky section. If I ask at the Abbey will I get the ones from when I opened the account or just the latest ones?

[Redrob]

Received my allocation questionaire yesterday. Half expected it to have been dispensed with.

[Redrob]

Received 3 letters from Abbey today,

 

One a copy of their allocation questionaire, which surprised me as I only received mine Tuesday, deadline is 20 Aug, don't they usually file onthe last day?

 

Also a letter informing me that they will be asking for a stay and that this means it is "likely" that my case will be put on hold. From what I have read, most claims are proceeding as normal so dunno where they get the definition of likely from.

 

I've also seen some new terms and conditions. Fees are now being called "instant overdraft request fee" pretty much in line with their defence in my claim. Has any one else seen these new T&C's?

 

Anyway,

 

I'm filling in my N150 allocation questionaire and I have a couple of questions I hope someone can help me with.

 

Section D What amount of the claim is in dispute?

 

Do I put the figure that was on my N1 form? Interestst is increasing daily so it is a bit higher now. Also, in the guide it says not to include costs. I've allready had Abbeys allocation questionaire and they have included the £120 court fee. What about the £100 allocation fee?

 

Obviously I am the only witness but what should I write under the "Witness to which facts" column?

 

Should I include the draft directions or just write in the space provided at the end requesting standard disclosure?

 

Should I include anything to pre-empt the inevitable request by the bank for a stay in light of the test case?

[Redrob]

Can anyone help please.

[kia]

ill try bumping it see if that helps other than that maybe gary h might be able to help xxxkia

[ohoh4312]

Hi Redrob

 

From reading various posts, here is my opinion:

 

What amount is in dispute? The total amount you claimed for on the N1.

The daily rate has already been specified, and will be taken into account at Judgement. Also the AQ fee is automatically added at Judgement.

 

Witness to which facts? Witness to all facts.

 

Include the draft directions for disclosure.

 

Don't know on pre-empting the stay - you could add the argument against the stay and state that you wish this to be considered should the bank request for an indefinate stay pending the High Court Case. Make sure it is worded against the banks decision, not the Courts, at this stage.

 

Oh dear - trying, but not "au fait" with everything yet! :o

 

Hope this helps a little.

 

Best regards

 

Jo xx

[kia]

hope this helped xxxkia

[Redrob]

I need to get my allocation questionaire completed today, can any one help with the question of if I should be including anything to argue against a potential stay? Should I just include a paragraph asking for an opportunity to argue against a stay if (when) the bank asks for one?

[Redrob]

Well I've today applied to have the defence struck out as suggested here. This new defence denies that a breach of contract has occured but the T&C's clearly state that an unauthorised overdraft is a breach of contract, so it seems to me like a very good argument. Guess we'll see soon. Was told by the clerk that I should hear something in the next 2 weeks.

[paul321]

i think i will watch this with intrest

[Redrob]

I phoned the court yesterday, as it was a month since I filed my application and was told to expect to hear within 2 weeks.

 

Usual story about back logs, although she said they are now starting to catch up a bit so should hear in another couple of weeks.

 

She did say that most of these cases are being stayed, I said I didn't think Medway CC was staying them and she said it is being done cases by case, but most are being stayed.

[Redrob]

Had a letter from the court today, my case has been stayed. Should my application to have the banks defence thrown out have been ruled on first? It's now 2 months since I filled N244.

 

What is the success rate of getting these stays lifted, I know some have been successful and some not, but does anyone have an idea of the ratio?

[Bigmac versus]

Very unlikely to have a stay lifted im afraid, unless you can appeal on grounds of Hardship and be able to prove this with paperwork showing calculations etc, missed payments for mortgage/rent.

Like most people the waiting game now begins again.......only this time there is an end in sight, keep your chin up your day will come along with many thousands of others.

 

Regards

George

[Redrob]

Likely to be at least another year isn't it? Also I suspect that even if, as we all assume, the banks do lose, isn't it likely that a "fair" figure will be agreed and we'll only get the difference.

[Bigmac versus]

Hi the test case will be Jan/Feb 08 it may rumble on due to appeals etc but remember we dont mind paying the true costs as that is all we ever wanted wasn't it.

I know what you mean, instead of the £2 or £3 it actually does cost it may be a little higher.

We all wait AGAIN.

[kia]

dont mind half although would like all but hey half is better than none so it wont be that long then hopefully feels like longer cos there charging us still in last three months nearly 400 pounds so now were behind on mortgage again cos our wages arent high enough for charges too kia:mad:

[Redrob]

I haven't been here in quite some time. Can someone point me to a thread that shows where stayed cases currently stand? I've tried to find it myself but finding the forum a bit difficult to navigate at the minute.

 

I haven't heard anything since my case was stayed nearly 3 years ago.

[kia]

well i think all the stays were lifted after the big court case which was kinda lost by us where u stand now i couldnt tell u maybe someone else can but i think claiming it back now it quite diffucult and no guarantees u will win so is quite risky but im sure someone else might be able to advise more than i can xxxkia