NatWest : Final Push - Interest & costs

[lisaglancy]

Have followed all procedures & received offer letter of full charges from NatWest - however have nearly £700 in interest & fees which were not offered.

Have phoned the Bank ( a la wigglywoo ) offering to settle out of court if they refund whole amount. Informed that the only way to regain extra, is by proceeding with Court Action.

 

I presume that I'll still have to submit the Court bundle with POC evidence etc., - which I have prepped up - but is there a way to basically say "Look they've offered me the charges back - so they know they're in the wrong. I just want the interest etc., on the amount that they have taken in charges"??

 

I have until April 20th at 4pm to get papers back to St Albans Co Ct.

 

Otherwise, if I've sent a letter declining the offer in the past, will it still be available, if I bottle it?? I'm afraid of making a mistake at the Court stage which will allow them to have it all thrown out - especially as its a Business account??

 

Many thanks.

Lisa

[hedgey06]

Personally Lisa, I'd say that if they've offered you all your charges back (minus interest) you should accept. I don't think it would look too good if you got to court and the judge heard that you'd already been offered your charges back in full. Also, if the fees you're talking about are account fees such as Advantage Gold - these are not eligible to be reclaimed. Good luck, hedgey xxx

[gizmo111]

I have until April 20th at 4pm to get papers back to St Albans Co Ct.

 

I am unsure what you are asking- what papers do you ahev to get back by 20 April.

What amounts have you been offered and at what stage?

If you were offered the full amount of charges beofre the court stage then you should have accepted, if however you have issued a claim and have been offered less than the claim then proceed for the full claim amount.

 

Can you please clarify.

[lisaglancy]

Hi Gizmo,

• No response to letters by 26 Jan 07 so Court papers submitted
  
• on 20th Feb an offer letter received for £1690 ( all charges ) but not for interest / court fees (c£600 ). Sent letter declining offer & pointing out that Court action was underway.
  
• At this point for Lloyds TSB & HSBC received subsequent offer of full amount ( charges & interest/ court fees ) despite having also received defence papers from solicitors.
  
• Completed & submitted AQ on March 3rd with Draft Order for Directions as template
  
• Received NatWest AQ on 22 March citing Lack of Particularity in my case - despite my having received no direction from court at this stage.
  
• 4th April claim stayed by Court as "no serious attempt has been made to comply with CPR16.4(1) by setting out a consise statement of the facts ( stylised particlulars do not constitute compliance )
  
• I have until 20th April to comply & have prepared the Statement of Evidence etc., & Court bundle if required.

So I have been offered all of the charges back - but only 3 weeks after the Court action had been started.

 

?? Do I now have to proceed with all of the evidence etc.,??

?? Will the Court frown on my pursuing interest / fees etc., having been made an offer on the charges ??

?? Is it too late to bottle it & accept the offer of charges only ??

 

Am very tempted to cut & run if this is still an option: but then £600 extra would be very handy.

 

As I said, at this stage other claims came through in full - but am feeling out of my depth with this one!!

 

What do you think?? Fear & Greed !!

Thank You.

[gizmo111]

What did you actually put in your POC?

[Micky the Hippo]

If the interest the simple interest on the charges?

 

If so that's perfectly claimable surely?

 

And the court costs and expenses?

 

They're solid claims that should be paid for the bank to be able to settle now that court action is under way

 

I won't pretend to have followed the court stuff, was that all standard?

[steven4064]

Lisa

 

You are in exactly the same position as we are. NW have offered us all the charges but not the interest. Our view is that that is our money too so they can jolly well give it back!

 

Therefore we politely declined their offer and proceeded to court. We are still awaiting a reply from NW.

 

The charges we claimed back are all the chages minus the advantage gold fees (they are not reclaimable as hedgey06 pointed out). Interest was claimed as follows:

 

1. We went through the statements from the beginning and kept a running total of charges.

 

2. Whenever there was an interest charge, we reclaimed it if the total overdraft at that point was LESS than the running total of charges. That is, the overdraft was due ENTIRELY to charges.

 

In this way, we get round any argument over what interest rate to use as we have claimed back exactly what we were charged. After the first few months of statements, all overdraft amounts were greater than the sum of charges - that means without unlawful charges we wouldn't have had any overdarft over the last few years and the overdraft interest we have incurred has been entirley on unlawful charges. We want it back.

 

Good luck

 

Steven

[lisaglancy]

It hasn't been submitted yet, as has to be in by 4pm on Friday 20th - but this is what I have ready :

Redbourn Cleaning Services Ltd.,

CLAIMANT

- and -

NatWest Bank PLC

DEFENDANT

________________________

Particulars of Claim

________________________

The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world.

 

The Claimant has an account (hereinafter referred to as ‘the Account”) with the Defendant which was opened in 1999.

 

During the period between December 2000 and June 2006, or thereabouts, the Defendant debited numerous charges to the Account, in respect of “unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges” – totalling £1690.00. The Defendant has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto).

 

The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant.

 

On or about 15th December, 2006 the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said letter the Claimant referred to the OFT report of 5th April 2006, to substantiate the request & concluded therein that the Charges were unlawfully levied to the Account by the Defendant.

 

When, despite a generic letter from the Defendant apologising for the delay in response , no further correspondence had been received by 10th January 2007, a letter before action was sent by the Defendant. Still no further correspondence was received and so a claim was issues through the St. Albans County Court on 26th January, 2007.

The Claimant received a letter from the Defendant, dated 20th February 2007 – ie., 3 weeks after the court action commenced - giving its “final response” to the claim, defending their charges as “fair, reasonable & transparent” – but offering to refund all £1690 as a gesture of goodwill.

 

However, no offer was made in respect to the interest or fees incurred from the charges that were made to the account.

Brief Outline of Claim

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. As an example, in September 2004 a direct debit for £4.99 was returned. The Claimant was then penalised for this breach by way of a charge of £30.00 – which it holds to be ( with every other charge in question ) to be punitive in nature, and wholly disproportionate – especially as funds to cover the amounts due that out, were paid into the account by BACS & cheque the same day & appear on the statement above (ie., before) the charges.

- The Defendant maintains that pursuant to SGSA section 15 there is an implied term that the Claimant pay a reasonable charge for the service under the contract, however – the Claimant would offer that in the above & other circumstances, a £30 charge on clearance of a £4.99 d/d where sufficient funds were already paid ( although not cleared ) into account, is not a reasonable charge for the service, but is punitive in nature, unreasonable & generally disproportionate.

Claimant as part of its basis of claim, advances that:

 

a. the Charges have been unlawfully applied to the Account;

 

b. no contract ever existed between the parties hereto that purports to allow the Defendant to levy the Charges to the Account.

 

c. should such a contract exist it could only exist in the form of the Terms & Conditions.

 

d. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter.

 

e. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defendant for services provided then they are irrecoverable due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable.

In support of part of his basis of claim the Claimant contends, and intends to prove that:

 

a. the Charges are:

i. punitive in nature;

ii. unreasonable;

iii. generally disproportionate;

iv. excessive;

v. unfair;

vi. unlawful;

vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit;

x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and would not have incurred but for any alleged breaches of contract on behalf of the Claimant; and

xi. are held in in terrorem to discourage the Claimant from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item.

 

b. all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of:

i. the UTCCR;

ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’)

iii. the Supply of Goods and Services Act 1982; and

iv. the common law; and

 

c. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated.

 

 

UNFAIR TERMS IN CONSUMER CONTRACT REGULATIONS (S 2083/1999)

Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.

 

Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).

 

Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as unfair”. The Terms & Conditions allow the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”.

 

Regulation 8(l) of the UTCCR provides that: “. 1n unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”

 

Accordingly, the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR.

 

 

UNFAIR CONTRACT TERMS ACT 1977

Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 64 of these particulars.

 

Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.

 

Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

COMMON LAW

The authorities and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law.

In particular, the case of Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co are powerful authorities in favour of the Claimant. Accordingly, the Claimant is entitled to judgement as sought in these particulars.

 

It was noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

 

Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.

b. The essence of a penalty is a payment of money as “in terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests, which would prove, helpful, or even conclusive:

i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;

ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

 

DETAILS OF JUDGEMENT SOUGHT BY CLAIMANT

 

Accordingly the Claimant seeks:

a. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £1690.00

b. court costs ; and

c. interest pursuant to s69 County Courts Act. Interest, in that case, up until 18th April, 2007 amounts to £355.16, as detailed in Schedule, attached hereto.

Statement of Truth

The Claimant believes that the contents of these particulars of claim are true

 

SIGNED

[steven4064]

Lisa

 

Firstly, it might be wise to remove your real company name from your post. For comparison, here is the POC we used:

 

"IN THE TOYTOWN COUNTY COURT

 

BETWEEN

 

Son of Steven4064, CLAIMANT

 

AND

 

National Westminster Bank plc DEFENDANT

 

PARTICULARS OF CLAIM

 

1. The Claimant had an Account Number 12345678, Bank Sort Code 00-00-00 ("the Account") with the Defendant which was opened in 2002.

 

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges (“the Schedule”) applied is attached to these Particulars of Claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account were punitive in nature; were not genuine pre-estimates of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and were not intended to represent or related to any alleged actual loss, but instead unduly enriched the Defendant which exercised the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of

 

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

 

ii) the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and

 

iii) the common law relating to liquidated damages and penalties in contracts.

 

5. To the extent that it is found that the Defendant’s charges were for the provision of credit services the Claimant contends that the price thereof is unreasonable pursuant to section 15 of the Supply of Goods and Services Act 1982.

 

6. The defendant had, in addition, levied interest on these charges at a variable rate, also detailed in the Schedule.

 

7. The Claimant avers that, by this action, the Defendant has sought to enrich itself by the consequences of unlawful action, specifically, unlawful penalty charges as detailed above and applied in terrorem.

 

8. Accordingly the Claimant claims:

 

a) the return of £xx (exe,exe Pounds Sterling) taken by the defendant in charges detailed in the attached schedule and interest applied on the charges of £yoy (why-oh-why Pounds Sterling);

 

b) Court costs;

 

c) Interest under section 69 County Courts Act 1984 at a daily rate of 0.022% (8% per year) from 13 April 2007 up to the date of judgement or earlier payment.

 

I believe that the contents of these particulars of claim are true"

 

with Brief POC:

 

 

"Repayment of amounts charged by the defendant to the claimant for purported breaches of a contract to supply current account banking services in contravention of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law, and repayment of interest levied thereon.

 

The Claimant claims:

a) the return of the amounts debited in respect of charges of £xx and of interest of £yoy charged thereon;

b) Court costs;

c) Interest under section 69 County Courts Act 1984 at the rate of 0.022% per day (8% per year) from 13 April 2007 up to the date of judgement or earlier payment"

 

 

Steven

[lisaglancy]

OK , Thanks.

 

I totally take you point about the Co name : but seem unable to amend the post. Nomatter.

 

Seems to be that our POCs are along the same lines, which is fine.

 

So, I'll steam ahead - submitting my POC & the Court Bundle & hope that the Court takes into account that the offer was made since the Court action was started. Apparently the St.Albans court is kind of picky when it comes to procedural matters, so fingers crossed....

 

Will send it all tomorrow unless advised to amend etc., by Gizmo / other admin bods.

Thanks for taking the time to help.

Will keep you informed of my next stages. Good Luck your end!! Power to the People & all that.

L