StevePM v NastyWesty ***WON***

[stevepm]

Thanks michael but how do you get a mod to look at things normally I can manage but I think this time I will take all the help I can get but you have given me a good start thanks

Steve

[Michael Browne]

Click on a Mods name and then 'Send Private Message'

 

alanfromderby

jonni2bad

Bookworm

seminole

 

Include the link to your thread:

http://www.consumeractiongroup.co.uk/forum/natwest-bank/93262-natwest-direction-hearing-25-a.html

[stevepm]

Ok Guys and Gals now I really am becoming P***** since the judge ordered me to complete most of the CP 18 I have been battling. I have had some very good advise from Michael but on section remains unanswered.

 

 

Please identify in each case the particular breach of contract by reference to appropriate terms.

 

 

Well I have read the T&C of NatWest and in my limited experience I cannot say which T&C have been broken, this is under the current terms i.e. November 06. If the bank has re-written these to avoid the above they have been clever.

 

 

Anyone got any advise or no where I have missed the point.

 

 

[hedgey06]

Hi Steve, the only advice I can give you is the same as last night......... PM a mod with a link to this thread. Tis the best way forward. xxx

[stevepm]

Have not had a reply from a MOD at thispoint it is probably me not so good at this sort of thing i.e chat forums etc

[hedgey06]

Steve, don't worry - I've just PM'd a mod with a link to your thread also, so hopefully you should get some additional advice soon.

 

Good luck mate, hedgey xxx

[steven4064]

Please identify in each case the particular breach of contract by reference to appropriate terms.

 

I have been working on this. This is what I've got based on the Novemver 2006 T&Cs and written as part of a Statement of Evidence:

 

- The current Bank Terms and Conditions (November 2006) state in relation to these charges:

Operations on the account

 

If at any time we receive instructions to withdraw funds from the account where

- there are insufficient funds available to cover the withdrawal, or

- the requested withdrawal would cause an agreed overdraft limit to be exceeded

we may exercise our sole discretion and, without contacting you, either (1) refuse to pay some or all of the item and/or (2) allow an overdraft to be created or allow the borrowing limit to be exceeded (in which case, the new or excess overdraft is an unarranged overdraft).

For the purposes of assessing whether you have sufficient funds available to cover the withdrawal, or whether the withdrawal would cause an agreed overdraft limit to be exceeded, we will look at the cleared balance (plus, where applicable, any unused agreed overdraft facility) on your account at 3.30 pm on the working weekday before we receive the instruction to withdraw funds.

AND

Fees, Interest and Other Charges

 

Fees for operating the account and interest rates and charges payable are charged as detailed in the leaflet 'A guide to Personal Current Account Fees' relating to the account and are subject to review from time to time. If any changes are made, details of the revised charges will be sent to you at least 30 days before the implementation date for the charges.

- In the leaflet referenced must be considered to form an integral part of the Terms and Conditions. In relation to these charges, it says

 

Unarranged borrowing - interest and fees

Interest

 

We would encourage you to agree an overdraft limit with us so you can avoid any unnecessary charges. If there is not enough money in your account and you have not contacted us to arrange an overdraft limit in advance, we may not allow you to withdraw money. Also we may not be able to pay your cheques, Standing Orders or Direct Debits... We will charge a fixed fee for each item we do not pay.

 

- The Claimant contends that these Terms imply a term requiring that, in the proper running of the Account, sufficient funds (including any agreed overdraft facility) must be maintained in the account to cover withdrawals or the result will be a charge. (It should be noted that this Condition applies even in cases over which the customer has no control ,eg the paying of a Direct Debit where the payment date and amount are controlled by the payee.)

- Further, the Claimant contends that, although these charges are referred to as “Fees for operating the account”, the Term is a clear statement that a charge will be imposed if the customer breaks the requirement that sufficient funds be in the account at the time of any withdrawal. The term itself sets out that the charge arises purely on the occurrence of the event and, as such, is a penalty or default charge rather than a fee for operating the account.

- Further, the Claimant contends that there is a very strong argument that these charges constitute “disguised penalties” – the OFT report “Calculating fair default charges in credit card contracts - A statement of the OFT's position”, April 2006, says,

“4.21 Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism. “

- On overdrafts the current Terms and Conditions say:

Overdrafts

 

Overdrafts are available on request ..... We may refuse to pay a cheque (or allow any other payment or withdrawal) which could have the effect of exceeding the overdraft limit. If we do pay a cheque (or allow any other payment or withdrawal) which results in the overdraft limit being exceeded, it will not mean that the overdraft limit has changed, or that we will pay any other cheque (or allow any other payment or withdrawal) which would have the same effect. You agree that if you or any appropriately authorised signatory on the account:

a) formally requests an overdraft limit or an increased overdraft limit and we agree to the request; or

b) informally requests an overdraft by issuing a payment instruction in any form (eg issuing a cheque or making a card transaction on the account) which either through exercise of our discretion to pay the item on presentation for payment or through payment being guaranteed to a third party, results in the account becoming overdrawn when no agreed overdraft limit is in place or which results in the overdraft limit being exceeded;

in either case, this will be treated as a variation to the contract (ie not revoking and replacing any earlier agreement) under which overdraft facilities are provided by us. If they arise through exercise of our discretion to pay items presented for payment or through payment being guaranteed to third parties, they will be an unarranged overdraft.

 

- The Claimant contends that the word ‘variation’ is another example of the Defendant attempting to disguise penalties and that charges arising because of these contract ‘variations’ are just another form of ‘disguised penalty’.

 

- The Claimant refers to the fact that normally contract variations arise because some event or circumstance has arisen during the course of the operation of the contract that was not envisaged at the time the contract was executed. In this case, the Defendant has effectively written a contract variation into the contract. The Claimant contends that this has the effect of making the subject of the variation, namely the ‘informal request for an overdraft’ a breach of the implied contract term that the customer must maintain sufficient funds in the account to cover all withdrawals.

Steven

[hedgey06]

Wow! Wish I could click yer scales on a daily basis Steven!!! Fab guy you!!! I've gotta start printing yer posts off for future reference!!! xxx

[steven4064]

Hedgey

 

As always, tooooo kind

 

Steven

[hedgey06]

Hedgey

 

As always, tooooo kind

 

Steven

 

And Steven, as always......... way too humble - you don't know how good you are honey!!!! xxxx

[Parkvale]

We will have less of the slushy stuff thankyou.

[stevepm]

From one Stephen to another Steven thank you for the help I was really stuck on this one, If it was not for you and Hedgy I would have propably start to tear my heair out by now. I hope that in the future I can help somebody else out as much Thanks again to both.

[stevepm]

Steven/Hedgy

Just a foot note the actual order from the judge may be worth noting for future refeerence:

 

It is noted that this request is beyond that which is reasonable to request on an “as per item basis”. By agreement of the Court the claimant intends to list by generic terms those section of the Terms and Conditions as laid down.

[steven4064]

Steven/Hedgy

Just a foot note the actual order from the judge may be worth noting for future refeerence:

 

It is noted that this request is beyond that which is reasonable to request on an “as per item basis”. By agreement of the Court the claimant intends to list by generic terms those section of the Terms and Conditions as laid down.

 

 

THat's good, you wouldn't want to put something like what I wrote above for EVERY charge - think of the trees!

 

Steven

 

If this post is helpful, please click the scales

[caro]

4 threads merged to make it easier to follow your progress.

[stevepm]

All have you read this-------------------------------------------------------------------------------- Tue, 22 May, 2007, 13:23 GMT 14:23 UKBarrister fights Natwest chargesA legal attempt to force the NatWest bank to justify its overdraft charges has ended after three days, with the judge now considering his decision. Newly-qualified barrister Tom Brennan had asked the court for permission to sue the NatWest for damages, over what he claims are its unfair bank charges. Victory for Mr Brennan would force a bank, for the first time, to justify its level of overdraft fees in court. The NatWest's lawyer said Mr Brennan's legal arguments were "bizarre". Third day The hearing at the City of London County Court has ended with Judge Peter Simpson reserving his judgement. Mr Brennan alleges that the bank imposed the overdraft charges knowing they were unjustifiably high, and that in doing so it caused him economic harm by damaging his credit rating. Mr Brennan has already had his overdraft charges of £2,548 repaid to him, and the bank has also offered him a further £1,600 to settle his claim, without an admission of any liability on its side. But at the end of the third day, Ben Pilling, the barrister for the NatWest, argued that Brennan's case should be thrown out. "He is asserting his continuing loss by refusing the money he is claiming," said Mr Pilling. "It is an artificial way to say 'my claim has not been satisfied'," he added. Test case Mr Brennan is seeking to create a test case by claiming the right to sue, not on the direct grounds that his overdraft charges were too high, but for exemplary and aggravated damages to punish the bank's behaviour, and also for damaging his financial standing. But Mr Pilling accused Mr Brennan of pursuing his case even though he had nothing more to gain. "There is no practical remedy for Mr Brennan to claim, as he has already been paid more than he can legitimately claim," said Mr Pilling. "It is not for Mr Brennan to set himself up as a consumer champion - that is exactly what his claim is all about. "He is pursuing this action for the benefit of other people, not himself - he is pursuing a crusade," he added. Addressing Mr Brennan's arguments directly, Mr Pilling said they were unsustainable in law. "There is no sustainable claim for causing loss or for breach of duty - the only sustainable claim is for breach of contract - thus no exemplary or aggravated damages are applicable," said the NatWest's barrister. "The interests of the consumer will not be damaged if the case is struck out. "The Office of Fair Trading has that role and its enquiry is underway to examine the issue Mr Brennan is vexed about," he concluded. This may be usefullStevePm

[stevepm]

Hi one and all just to keep the heat on. Corbett's and I received the Court Direction Order. Cobbies now admit that they got it wrong they now have to look at EITHER paying up in full or risk going back to court this month and being order to comply with the CPR 18 I placed on them, which we all know they will not answer the CPR because that will release the information to everyone.

 

 

[Parkvale]

stevepm, could you explain a liitle more." Cobbetts now admit they got it wrong ?" What do the court directions say please ?

[stevepm]

Basically during the first Direction hearing My request to have the defence thrown out was rejected by the Judge but Cobbie won the fact to have me reply to their CPR 18 request, ok so initially I rejected it as intimidator etc, Then I put it to the Judge that If I was to answer the CPR 18 for Cobbies then this would open up a whole series of questions that would need answering before an actual Court HEARING AND NOT DIRECTIONS. Cobbiie wanted to argue this was not necessary and that the next Court appearance would be for the whole case. Now as it happens the Judge agreed with me and set the next hearing as further directions which left it open for me to submit a CPR 18 requesting all the info

 

 

1 What is required by the defendant:

i. Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

ii. Whether such charge is accepted to be a penalty, and if not why not;

iii. 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;

iv. If such charges are not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters showing the basis upon which the charge was calculated and all evidence to show that the charge was fair and reasonable.

 

 

2. Any witness statements.

 

 

3. Copies of decided cases and other legal materials to be relied upon.

 

 

On speaking to Cobbies they initially tried to tell me that they did not have to do a CPR 18 and that the judge threw this request out. This in essence is untrue. We finally received the Court Order which as we already knew was just to comply with the CPR 18 from me and rejecting the Defence to be thrown out.

 

 

Now I foresee the following Cobbies date for responding to the CR 18 is this Friday either:

 

 

a. They settle before the date

or

b. They do their normal delay tactic and wait till the day before or morning of the hearing and make an offer

 

 

But there is no way on this earth that they will allow it to get in front of a judge. Because if it does I have something pretty dramatic up my sleeve which they will not like and the court would have to accept.

 

 

StevePM

If this is of use please tip my scales

[Parkvale]

Home and dry. They will either send you a cheque or ring you and try to negotiate.

Good luck.

[stevepm]

I am considering th efollowing to be sent to th ecourt this weekend

 

REQUEST FOR THE NatWest DEFENCE TO BE STUCK OUT

1. It is respectfully requested that an order be made striking out the defence in this action as an abuse of process

2. The basis for this is the fact that the Defendant is continuing to settle all claims of this nature where Claimants are seeking reimbursement of bank charges, with no claims proceeding to a contested hearing.

3. The Defendant cannot and not give reasonable grounds to object to this request as the claimant submitted and gave reasonable time to respond to an application under CPR 18 request for further information.

The defendant has failed to respond within the requested timeframe. Further the defendant made great efforts to submit CPR 18 to the plaintiff and further requested that the Courts order Direction to enforce the Plaintiff to respond to application under CR 18, it is of note that the defendant has duly complied with this order of the court. It is of note that the Court took the Defendant on face and Order the Defendant to comply with this CPR18 so as to prepare their defence. It is also noted that the direction hearing of the 25th May 2007 contained sufficient information to the defendant that the plaintiff would be filing a request for further information to the defendant. The court acknowledge that this would probably be the case and hence order a second Direction Hearing Date.

The plaintiff rather than wait for this date to have the court formerly give Direction to the Defendant to answer the request under CPR18 submit the aforementioned with the view to reduce costs and avoid the waste of the Courts Valuable time.

This request, for further information CPR18, was submitted to the defendant on the 31 May 2007 with a response date of the 15th of June 2007.

It is now clear that the defendant wishes to delay the outcome of this application and waste the courts time and subsequently increase the costs suffered by both the court and the Plaintiff in this delaying action.

It is therefore requested that the Court Strike out the Defendants DEFENCE and grant to the plaintiff settlement and costs in this case.

[stevepm]

WON WON WON

 

as usuall they caved in

 

Thanks to all we continue the good fight with otherrs

[Parkvale]

CONGRATULATONS. i told you they would cave-in. Well done.

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[steven4064]

Was that before or after you hit them with the abuse of process directions?

 

What the heck -

 

CONGRATULATIONS!

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

[gaz2006]

WON WON WON

 

as usuall they caved in

 

Thanks to all we continue the good fight with otherrs

 

Did you win after sending strike out letter or before ? Regards Gary