Help!! I've ballsed up my claim form!

[krimewave]

I've ballsed up my claim because I copied a template letter from the Daily Mail (don't ask why I was even reading that rag) parrot fashion and it didn't contain account number details or an attachment of the actual charges (there was no opportunity to do this on MCOL).

 

now the bank has entered a defence stating that my my claim is no good due to the ommission of these details.

I have until April 13th to get these details to them and the court....

 

They are asking for me to supply them with CPR Part 18 by April 13th with these details, but I have no idea how to go about doing this, do I need a special form, how do I word the response?

 

any help would be greatly appreciated as otherwise I think this claim will fail.

 

here is how my claim was worded:-

 

"Between 09/01/04 and 31/07/06 the defendant applied a number of charges to the claimant's current account.

These charges are unlawful because they do not reflect the true costs incurred by the bank for unauthorised borrowing etc.

Furthermore, they are a breach of the Unfair Terms in Consumer Contracts Regulations 1999 which state: "A term is unfair if it requires any consumer who fails his obligation to pay a disproportionately high sum in compensation." A charge is deemed to be penalty if, in reference to the case of Wilson v Love in 1896, it does not reflect the true cost of an item.

I am entitled to claim interest at 8% per annum from the date when charges were first applied to my account until a judgement is made.

The Claimant asks the court to enter judgment in their favour for the sum of £1561 plus interest."

 

and now as their defence they say:-

"1. ...............that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Defndant 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 foe summary judgement in respect of the same.

 

2. In the Particulars the Claimant states "The Defendant applied a number of charges to the Claimant's current account".

 

2.1 If the Claimant is to bring such a claim against the Defendant then the Claimant must (among other things) plead the account(s) to which the charges have been applied.

 

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

4. The Claimant is put to strict proof of each and every charge the subject of the claim and must identify in respect of each charge (a) the date the same was debited, (b) the amount of the same and © the description applied to the charge."

 

I understand that they basically want me to send them the list of charges and to what account they were charged, but just don't know how to word the response to make it legally tight, and also if I have to send these details to both the court and to Cobett's (Nat West's solicitors) or what...

 

I realise now that some major points have been ommitted and I've really made a balls up, but any help in this would be greatly appreciated nonetheless....

 

thanks in advance

 

Jon

[paulwlton]

I've ballsed up my claim because I copied a template letter from the Daily Mail (don't ask why I was even reading that rag) parrot fashion and it didn't contain account number details or an attachment of the actual charges (there was no opportunity to do this on MCOL).

 

now the bank has entered a defence stating that my my claim is no good due to the ommission of these details.

I have until April 13th to get these details to them and the court....

 

They are asking for me to supply them with CPR Part 18 by April 13th with these details, but I have no idea how to go about doing this, do I need a special form, how do I word the response?

 

any help would be greatly appreciated as otherwise I think this claim will fail.

 

here is how my claim was worded:-

 

"Between 09/01/04 and 31/07/06 the defendant applied a number of charges to the claimant's current account.

These charges are unlawful because they do not reflect the true costs incurred by the bank for unauthorised borrowing etc.

Furthermore, they are a breach of the Unfair Terms in Consumer Contracts Regulations 1999 which state: "A term is unfair if it requires any consumer who fails his obligation to pay a disproportionately high sum in compensation." A charge is deemed to be penalty if, in reference to the case of Wilson v Love in 1896, it does not reflect the true cost of an item.

I am entitled to claim interest at 8% per annum from the date when charges were first applied to my account until a judgement is made.

The Claimant asks the court to enter judgment in their favour for the sum of £1561 plus interest."

 

and now as their defence they say:-

"1. ...............that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Defndant 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 foe summary judgement in respect of the same.

 

2. In the Particulars the Claimant states "The Defendant applied a number of charges to the Claimant's current account".

 

2.1 If the Claimant is to bring such a claim against the Defendant then the Claimant must (among other things) plead the account(s) to which the charges have been applied.

 

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

4. The Claimant is put to strict proof of each and every charge the subject of the claim and must identify in respect of each charge (a) the date the same was debited, (b) the amount of the same and © the description applied to the charge."

 

I understand that they basically want me to send them the list of charges and to what account they were charged, but just don't know how to word the response to make it legally tight, and also if I have to send these details to both the court and to Cobett's (Nat West's solicitors) or what...

 

I realise now that some major points have been ommitted and I've really made a balls up, but any help in this would be greatly appreciated nonetheless....

 

thanks in advance

 

Jon

 

Jon this may be of some help it was my response to a cpr request, you may have to alter it to suite your terms and conditions.

 

Make sure you send a schedule of charges aswell including account number.

 

Paul

 

 

Response to CPR Part 18 Request.

1. In your claim you state that the banks charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law.

2. Please provide the following particulars in support of your claim:

2.1 Please specify 2.1 clause(s) pursuant to which the charges were applied?

The clauses pursuant

 

D.1.2 The overdraft limit should not be exceeded and we may refuse to pay a cheque (or allow any other payment or withdrawal) which could have that effect. 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, which would have the same effect.

 

 

D.1.3 (b)carry out a payment instruction in any form [e.g. issue a cheque or make 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 [i.e. not revoking and replacing any earlier agreement] under which overdraft facilities are provided by us, either with our prior agreement or which arise through exercise of our discretion to pay items presented for payment being guaranteed to third parties.

 

 

D.1.7 We will confirm to you if we are to charge a fee for arranging an overdraft limit. If a fee is payable, we will debit it to the account on which we have made the overdraft available either on the date of the confirmation or shortly afterwards. You will also be responsible for paying any costs incurred by us in connection with the overdraft whether as a result of you breaking the terms of agreement or not. These costs will include (but not limited to) costs of taking and discharging any security; taking steps, including court action, to obtain payment; enforcing and/or preserving our rights under any security held for the overdraft facility; tracing you if you change address without notice and communicating with you if you break the terms of the overdraft arrangement. If such costs remain unpaid then we may debit them to the account on which we have made the overdraft available.

H. 3 you (and any additional cardholder) must not use the card if to do so would overdraw the account without our prior agreement, or would increase any borrowing on the account to more than we have agreed.

2.2 Please specify weather the charges applied were due to a breach of contract by the claimant.

When a bank customer exceeds their overdraft limit, they are breaking a term of their contract with the bank, i.e. that they should not do anything that causes their account to break the overdraft limit. This may be explicitly stated in the original agreement that the customer signed when opening the account or it may be implicit in the way that the account is supposed to be operated.

 

If the bank says that there is an “agreed overdraft limit” it is implicit that anything above this amount is “not agreed” and, therefore, the customer is breaking the contract by causing the limit to be breached.

2.3 Please identify in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to.

Unarranged overdrafts

If you borrow more than your agreed overdraft limit you will be liable for a maintenance charge applied monthly, 16 days after the end of the charging period (or the next business day if this is a Saturday, Sunday or Bank Holiday). The charging period is normally in line with the date we send your statement to you.

Unarranged borrowing – paid referral

If we pay a debit drawn on your account which results in or increases an unarranged overdraft, a paid referral charge is incurred and will be payable on the 6th business day of the following month and the account will be debited on that date.

Unauthorized transaction fees - Unpaid items.

Payable when a cheque, standing order or direct debit is not paid due to there being insufficient funds available in your account.

Unauthorised transaction fees- card misuse

Payable when we are forced to pay an item which has been supported by cheque guarantee or maestro although there are insufficient funds available in the account.

When your account is overdrawn in excess of any agreed overdraft limit, a maintenance charge will also be applied.

3. In your claim you state that the charges are: invalid under the unfair (contracts) Terms Act 1977 s.4 and Unfair Terms in Consumer Contracts Regulations 1999 Para. 8 and Sch.2 (1) (e) and unreasonable within the meaning of the supply of goods and services Act 1982 s.15.

4. Please specify all of the facts relied on by the claimant in support of the contentions in paragraph 3 above, and in particular please identify the contractual provision(s)that the claimant alleges are invalid by reference to UCTA/the regulations.

D. 1.8 If you exceed the overdraft limit, charges will be payable as detailed in the promotional leaflet insert relating to the account. This insert can be obtained from any of our branches.

The above says the Defendant can levy a charge detailed in the "promotional leaflet". If this clause has the effect of the customer paying more than the banks actual loss, then it would fail the test of reasonableness, as per section 4(1).

 

 

Under section 4(1) of the Unfair Contract Terms Act 1977, it states that, “A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness".

 

It is unlikely that a court would find this indemnity clause to be reasonable, given the strength of the bargaining position of the claimant, an individual consumer, in relation to the defendant, a multi £million organisation, and given that the contract terms were pre-drafted and not individually negotiated.

 

Further the defendant may state that the charges are a genuine pre- estimate of its liquidated losses and that this estimate need not exactly reflect the actual losses.

 

However, the losses should be reflective of the contract between the claimant and the defendant specifically and not the losses of a contract between any other parties and the defendant.

 

Where the contract has been in force between the two parties it would be reasonable for the pre-estimate to reflect very accurately the liquidated losses incurred when the claimant breached the terms of the contract between the defendant and claimant since there is evidence as to those losses.

 

The defendant may state that under Section 7 of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR99) that their prices do not have to be fair, and that they are NOT subject to the scrutiny of a court.

This implies they can set them at whatever level they like - £100 for going over an overdraft limit? £150.00 for not paying a direct debt. The defendant would then imply that their charges can be uncapped and unregulated.

 

However the Sale of Goods and Services Act 1982, sec 15.2 clearly states that the sum must be fair and reasonable. Is a 3000% mark up fair when the average mark up on the High Street is 100%?

 

This is an unfair term within the contract because it allows the defendant to charge any price they wish for a service - which is far in excess of the cost or value of the service.

 

Further under the UTCCR99, Sec 2 Par 1 states that

 

“A term that allows a party to unilaterally raise the price, or for a price to be determined on delivery is unfair.

And, Para. 8 sch. 2 (1) (e) states that

A term requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation is unfair.

Further Para.5.(1) states that

A contract term which has not been individually negotiated is unfair if it causes a significant imbalance in the parties' contractual rights and obligations, to the detriment of the consumer.

The Claimant specifically pleads that the charges debited to the Claimant’s account by the Defendant are automatically unfair because, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract (which the Claimant pleads is invalid in any event) to the detriment of the Claimant. “Good faith” (as defined by the Unfair Terms in Consumer Contracts Regulations 1999) means that that the Defendant must deal fairly and openly with the Claimant. The Defendant has not dealt fairly and openly with the Claimant. Further, as the contractual term (i.e. each and every charge debited from the Claimant’s account according to the “contract” entered into by the parties pursuant to the Defendant’s terms and conditions, as well as the terms and conditions themselves) was not individually negotiated and was drafted in advance, the Claimant was unable to influence the substance of the term, making it unfair. In the absence of a breakdown of the Defendant's liquidated losses and/or actual costs of each and every charge applied to the Claimant's account, the contractual term in force at the time of the charge forced the Claimant to pay a disproportionately high sum to the Defendant in compensation for the Claimant’s alleged failure to fulfil his obligation

It is not for the claimant to reply as to what charges would have been reasonable. This decision will be made by a judge at the final hearing of this matter.

Statement of Truth

The Claimant believes that the facts stated in this CPR Part 18 request are true.

Signed……………………..

DATED this 28th day of November 2006.

[krimewave]

nice one paul, that's been a great help, I've copied your response and I'm now going to adapt it to my case......

I really can't thank you enough mate!

 

all the best

 

Jon

[krimewave]

bollox. I've just found the section that tells me everything I needed to know on the cpr response, but I already wrote a detailed response such as the one above. now I'm wondering if I've written the correct responses as I couldn't copy word for word obviously....

[paulwlton]

bollox. I've just found the section that tells me everything I needed to know on the cpr response, but I already wrote a detailed response such as the one above. now I'm wondering if I've written the correct responses as I couldn't copy word for word obviously....

 

 

A request for further information is not required in small claims, however, i personally was ordered by the judge to respond to the banks request, my response seemed to pass the test.

 

Paul