Gandolfi v NatWest

[GaryH]

I've got three quarters of the way through the thread but I've got to go out now - I'll come back later and hopefully will be able to come up with some suggestions on the best way forward by tommorow morning.

[GaryH]

Sorry!

 

First, what stage of the claim are you at. When did they file against you? Can you post exactly what you responded with please?

 

Sorry if its been covered previously, I will go back through the thread now but in the meantime it'd be good if you could give me a concise timeline with exactly what has happened so far including dates and where your at now.

[GaryH]

Great, thats very helpful thanks.

 

To be honest it looks like you've done very well so far. Well done. Defence was good and it stated the nature of your case so I don't predict too many problems with this one. It was also the correct thing to do to request a stay.

 

Obviously you will need a figure for the counterclaim - are you confident you can provide an accurate one?

 

Also, are we talking probable fast track here? What are the respective amounts of the claim and counterclaim? (PM me this if you'd rather not put it on the open forum)

 

Also, can I see the POC please?

 

Have you sent a CCA request?

[GaryH]

No problem - can completely understand your passion and frustration. If I couldn't I wouldn't be here!

 

We have to edit stuff like that though unfortunately - although you didn't name a specific bank, if people see it and think its acceptable then it spreads. Obviously if a specific bank was named it would certainly be libelous. We know from experiance that the banks lawyers moniter the site so we've got to be on the safe side.

[GaryH]

Crossed post.

 

Thanks Gandolfi, I'll have a read now.

[GaryH]

Ok, we're talking fast track here then.

 

Bad on the one hand, becouse of the costs risk which I trust you are fully aware of, but very good on the other becouse we've got disclosure and a few other nice little provisions of the CPR that we can torment them with, that aren't available in small claims.

 

So basically you need to put forward and amended defence which includes a counterclaim, yes?

 

What was the last you heard from the court? You handed the AQ back and haven't heard anything since, is that correct?

 

Forget the prelim letter. They've sued you. You've a right to counterclaim without giving them advance notice.

[GaryH]

Ok, well you have two choices now then -

 

1) File an amended defence along with a c/c for the estimated amount, or

 

2) Get a request off for the documents you require giving them a deadline of a week. Personally I would do this as a formal request under CPR part 18.

 

If it were me I would definately much favour the latter. You need to see the whole picture before you file your counterclaim really, and I'm not at all keen on estimated amounts.

 

As your not here to decide I'll assume your going to request the info first.

 

Part 18 is a provision which allows a party to request any information or clarification from the other which is necessary to prepare their case - which is ideal in your situation. You serve a preliminary request to the other side giving them a "reasonable" time to respond, then if they don't respond you can apply for an order from the court which would oblige them to comply. As they have already had 40 days plus to find and supply the info under your SAR, and as you need it as a matter of urgancy, I would say a week is reasonable, after which you can apply for an order.

 

Most of what the request will consist of is already there in the letter you posted previously - that can form the basis of your request. I'll put it into a part 18 compliant format for you and post it up later today.

[GaryH]

No problem.

 

I don't forsee to much of a problem with this by the way, IMHO - they may even fold upon receipt of the part 18, although obviously you should'nt get your hopes up too high. I can't see any reason why this would be any different to a straight claim for charges, except obviously most of the refund will be swallowed up!

 

I'll post the part 18 later on.

[GaryH]

Sorry mate (again!) - I'm on this now though so give me an hour and we'll have the p18 ready to go.

[GaryH]

Send a covering letter to Cobbetts, based on the one posted on the previous page -

 

Gandolfi

xxxxxxxxxx

xxxxxxxxxx

 

xxxxxxxxxx

National Westminster Bank

xxxxxxxxxx

xxxxxxxxxxx

7th June 2007

Copy sent to Court

Re: Claim Number: xxxxxxxxx

 

URGENT ATTENTION REQUIRED

 

 

Dear Sir/Madam

 

I am writing with regard to the Court claim filed by your company against me on 12 March 2007. I filed a defence to the Court on 11th April 2007, stating that the amounts are now in dispute as I believed they were made up of bank charges which I believe to be unlawful contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and the common law.

 

I subsequently requested more time to particularise my defence on the grounds that I was awaiting your response to my Data Protection/Subject Access Request letter (10th April), which asked for detailed information regarding my relationship with National Westminster Bank. A copy of this letter was supplied to the Court with my defence. I informed the Court that I wished to file an amended defence and issue a counterclaim as soon as this information was supplied.

 

As stated in my Subject Access Request letter, you were given 40 days in which to comply. The deadline for providing the requested information passed on 24th May. Despite my request for a complete list of charges and transactions relating to my banking history with your organisation – including the following accounts, xxxxxxxxxxxxx Business Current, xxxxxxxxxx Personal Current, xxxxxxxxxxxxx Business Loan – you have failed to supply the information required. Your response has been wholly inadequate and incomplete.

 

My Business Account was opened in 1989, yet you have only sent bank statements from 29/03/01 to 29/12/06. The Business Loan began in July 2001, yet you have only provided statements from 4/10/02 to 30/9/04. You have provided no information whatsoever regarding my Personal Current Account. Furthermore, you have made no response to my request for information or evidence regarding any manual intervention in relation to my banking history and have not disclosed any indication or notes which have either caused or resulted in that manual intervention.

 

To enable me to file a fully particularised defence and counter-claim, I require specific information regarding these accounts to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to provide this information under Part 18 of the Civil Procedure Rules.

 

Please find enclosed a preliminary request for information and clarification under part 18. This request supersedes the Data Protection request made on 10th April 2007. The information must be furnished by the 19th June 2007, which gives you seven working days to provide what has been requested. I consider this period more than adequate in view of the fact that the same information was requested by way of the Data Protection Act request dated [date].

 

Should you choose to ignore this request, fail to comply in full, or fail to comply on time, this will be reported to the Court and an order enforcing your compliance will be sought without delay.

 

Yours faithfully,

 

 

 

 

Part 18 request to attach;

 

CLAIM NUMBER: *******

 

 

 

In the XXXXXXX COUNTY COURT

 

Between:

 

[YOU]

Claimant

 

 

-And-

 

 

 

NatWest BANK PLC

Defendant

 

 

 

_______________________

 

REQUEST FOR INFORMATION AND

 

CLARIFICATION UNDER CPR PART 18

_________________________ ___

 

 

DATE OF SERVICE: [date sent]

 

To enable me to file a fully particularised defence and counter-claim, I require specific information regarding the accounts cited in the Claimant's Particulars of Claim to be provided forthwith. The information must be furnished by the 19th June 2007, which gives you seven working days to provide what has been requested. If you fail to comply, this will be reported to the Court, and an order enforcing your compliance will be applied for forthwith.

 

1. In respect of my alleged indebtedness to the Claimant please provide:

 

a) True copies of the original signed agreements between myself and National Westminster Bank, as referred to in paragraphs 1) and 3) of the particulars of claim.

 

b) All documents relating to any insurance added to the accounts, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

c) A true copy of any Default Notice/s issued in respect of these accounts, as referred to paragraph 3) of the particulars of claim;

 

2. I believe my alleged indebtedness to the Claimant to be comprised in full by bank charges which amount to contractual penalties contrary to common law and statute. Therefore, in order that I may prepare and file a fully particularised counterclaim to the Claimant's action, please provide:

 

a) Full Terms and Conditions and charges tariffs relating to each account, from the date when the accounts were opened and including any revisions or amendments to the present day.

 

b) A full and comprehensive statement history for each account, providing each and every statement sheet from the time the accounts were opened until the present day.

 

c) Specific details of all fees/charges levied by National Westminster Bank in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

d) Where there has been any event in my accounts' history which has required manual intervention by any member of National Westminster Bank, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts held or formerly held with National Westminster Bank. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

Copy the court, perhaps with a covering letter.

 

If they don't comply properly or on time, then I'll help you with the application.

 

 

[GaryH]

No problem.

 

1) Yes, your right. Sorry Cobbetts was an assuption on my part. Send it to whatever address they've given on the claim form.

 

2) Yes, your suggested amendment is fine.

[GaryH]

Sorry, I didn't realise it was a business account. As Steven's post above then, take it out. Replace with Unfair Contracts (Terms) Act 1977 if you like. Not strictly necessary mind you, its not a statement of case after all.

 

With regards to the other post above, yes, that should be fine. Its necessary to prepare your case so I can't see a problem with obtaining information relating to the other account as well.

[GaryH]

Fine.

[GaryH]

Not alot you can do. Just copy the courts with their letter perhaps with a covering one of your own. Let the judge decide what to do about it, I doubt he'll be all that impressed with them!

 

Not sure theres much you can do about the interest either - apart from requesting that all charges and interest are held as the account is in dispute. I doubt they'll pay ball, but its worth a try.

[GaryH]

It would be a good thing - it would be excellent!! You'd then just have to file a new claim as normal for what they owe you, but without you owing them anything at all.

 

Not a lot you can do at the moment, just try to be patient. Wait for them to hopefully default on the order and be struck out. Ring the court on the 6th day from service of the order and check if they have filed the AQ or not, if not then get a schedule of costs in.

 

The only problem it would cause if it was struck out is that they would not then have to comply with the p18. If that turns out to be the case then you should sue for what you have statements for whilst at the same time taking enforcement action on the original SAR. We'll cross that bridge when/if we come to it though.

[GaryH]

As it stands at the moment their claim will be struck out - although in reality if they submit it between now and when it goes up to the judge then it'll probably be allowed.

 

I don't want to get your hopes up, becouse its not over yet, but this could well be a sign that they do not have a valid or properly execuited agreement - they now know you are going to fight them and they may not fancy it. I've seen it happen before. Its an easier way out for them.

 

Just be patient!!

[GaryH]

Talk about clutching at straws! IMHO you do not need to reply to the p36. There is no longer a claim if it has been struck out and the only action they can now take is to apply to set-aside the strike out order - which is unlikely.

 

I'd get a prelim off if I were you, for the amount you know they owe. You can amend your claim at a later date if/when they fully comply or are forced to comply with the S.A.R - (Subject Access Request). Whatever you do, do not estimate.

 

You also need to reconsider the contractual interest. There is no basis for a claim for the banks contractual rate under the mutuality principle, and there has also recently been a High Court precedent against.

 

Either drop the CI and claim simple 8% when you get to the court stage, or else do some pretty intense reseach and attempt another route to compound interest - under the equitable jurisdiction, which is a complex but IMHO viable argument. If you want to go for the latter let me know and I'll point you in the right direction of the stuff you need to read up on.

[GaryH]

I'm keen to find some way of acheiving a fair balance or redress for the way I've been treated by NatWest. If you can point me in the direction of authoratative information on 'equitable jurisdiction' for compound interest, I'd like to consider it as an option. The logic (in my head) of the situation is:

 

Firstly, I have been deprived of the benefit of using my money and I have been denied the opportunity to invest it (in property for example). My credit rating has been shot to pieces and I've ended up trapped in expensive, high-interest borrowing, unable to take advantage of low or 0% offers.

 

Secondly, NatWest have gained the advantage of profiting significantly from the use of my money, taken unlawfully from my account, by re-lending it at compound commercial interest rates.

 

There is a fundamental unfairness to both of these things - over and above the penalty charges - that I feel needs to be addressed. The bank should not be allowed to profit from its unlawful actions, and I should not be made to suffer as a result of those actions.

Your quite right, it is totally unjust and unfair that you should only be entitled to only simple interest when a) they've re-invested your money earning themselves compound rates, and b) you've had to borrow money at compounded rates to replace the money they have been in wrongful possession of.

 

Unfortunately though the law is the law and the law is long settled that there is no jurisdiction for a court to award compound interest at common law or statute. This situation is widely recognised as unfair and the law commission have in fact recommended a change in the law via future legislation to allow the courts discretion to award compound interest. Not much good for you at this present time though!

 

Becouse there is no power to grant compound in common law or statute, there is no possibility of getting compound interest on any of the basis' its commonly claimed on on this forum - I.e contractual mutuality, fairness, etc. This is especially true since the recent High court precedent although to be honest I've been saying this for the last 6 months - only to be shouted down and told that I "didn't understand contract law"!.

 

You may be able to get it in equity though - the 'equitable jurisdiction' to award compound interest. Invoking the equitable juristiction relies on the existance and breach of a fiduciary or other trust relationship - so your first hurdle is to establish one exists between you and the bank.

 

This is difficult to establish - it is settled that the customer/banker relationship is not a fiduciary one (Foley v Hill), although there are occasions where the relationship is principle/agent, such as the payment of cheques, etc (Westminster v Hilton). You would need to argue that a trust arose upon payment of the charges - that the banks conscience was affected upon receipt becouse they know they had no legal right to take the money.

 

If you were successful in doing that, then you would need to pursuade the judge that the rate claimed is equitable under the circumstances - this is not likely at all IMHO if you claimed the higher 30% rate. You'd need to go for the lower authorised rate. You'd need to argue that full restitution requires that compound interest is awarded becouse they would be unjustly enriched otherwise, by virtue of a) in the first paragraph above. Although it stands to reason that this would be the case, its difficult to offer anything concrete on this becouse you are not privy to how when and where the bank would have re-lent your money.

 

In other words, its a long shot, and there are many hurdles to overcome and many points at which the argument could be rejected. Its a complex area and one you'd need to fully research and understand first. I'll help you where possible if you decide to go for it, but I'm certainly no lawyer and I only know what I've researched and picked up from Zoot. Particularly as your in the fast track with costs exposure, you need to think long and hard about whether you really want to pursue it.

 

Have a read of the Westdeutsche case. Summary -

 

http://pntodd.users.netlink.co.uk/cases/cases_w/westdeut.htm

 

full judgement -

 

http://www.ucc.ie/law/restitution/archive/englcases/westdeutsche.htm

[GaryH]

1) Now that their case has been struck out, what happens to the £15,000 debt that they were claiming for? And how does it affect my claim for charges/interest (which is quite a bit more than £15,000)? A large part of the debt included interest that I am claiming - do I still go ahead and include everything within my claim and then take off the £15,000?

I don't think there is now any way in which they can enforce the debt. In other words there is no debt. You need to seek other advice on this though as I'm not 100% sure. Ask someone like Laiste, or if not I'll try to find out for you.

2) Now that I am starting my own claim (with prelim etc), should I address it to the people I've been communicating with over the Court case, or should I just send it to the standard address? Do I need to include anything about their lack of co-operation in the case (Data Protection non-compliance/not allowing me to Counterclaim etc)?

Standard address. Don't refer to their claim. Treat it as completely seperate.

3) I am claiming for both personal and business accounts - should I combine them into a single large claim?

No - you cannot use the consumer regs for business claims, plus the terms will be different. Keep them seperate.

[GaryH]

There is now a precedent against contractual interest on the implied term basis - I.e mutuality, fairness or whatever - so claiming it on that basis is completely futile. The bank would just settle the charges + 8% and defend the rest.

 

It would'nt harm the rest of your claim, as far as I can see, but its just pointless.

 

Here's a summary of the recent High Court judgement;

 

Halliday v HBoS #1

Halliday v HBoS #2

[GaryH]

and probably too risky

Thats the main thing, becouse of the probable allococation to the fast track.

 

I certainly don't think its beyond your capibilities, but you would have to do a lot of research and reading of cases, etc.

[GaryH]

1) How much time do they have to ask for a reinstatement and is a judge likely to allow it?

I don't think you should worry about it. I can't see them applying to restore the claim, if they were going to do that why not just file the AQ in the first place. Its not a hard thing to do, in fact its quite simple - a couple of ticks in boxes, thats all. They had an unless order as well so its hardly like they 'forgot', is it? IMHO that was the easiest way out for them - I've seen it happen before in cases where the debts been challenged and the lender has struggled to come up with the paperwork.

 

Whether they are able to counterclaim against you after you file your claim is something I'm not entirely sure on - I'm trying to get a definitive answer on it but I have a strong gut feeling that the answer is no.

2) If they don't reinstate their claim against me, what is the status of the debt (which as far as I know is still accruing interest) in light of the strike out?

I don't know. I'm not going to answer becouse I'd only be speculating - I'll try to find out.

3) Finally, part of my counterclaim would have been to have Defaults removed from my credit file. Is there anything I can do to get them to remove the Defaults as a result of the strike out? i.e. can I write saying something like 'in light of the fact that your case against me was struck out, I demand that the Defaults on my credit file in respect of the accounts that were in dispute are removed immediately'

Alot of that would hinge on 2), but nonetheless you can seek to remove them by the usual route as part of your claim as long as the default was caused by the charges.

[GaryH]

....I can't see them applying to restore the claim....

Famous last words!

 

Remind me, is any of this debt through a loan, or just overdraft? If loan, have you sent a CCA request?

[GaryH]

No worries - I'll come back to this tomorrow. In the meantime, send a CCA request off for the loan ASAP by recorded delivery. I think theres one on the site somewhere, I'm sure Hedgey or someone else can point you in the right direction.

[GaryH]

Sorry, I haven't deserted you - been on and off line recently and I haven't had a great deal of time.

 

Now where were we..... let me have a look and I'll get back to you later or first thing tomorrow (promise!)