Natwest Terms and conditions

[fendyweather]

No worries, digging through cabinet again to see what else I have on advantage gold from last year. Back in a bit. Lol xxx

[steven4064]

Nat West T&Cs for Business Accounts - 2001

 

Steven

 

If this post is helpful, please click the scales

[steven4064]

I tried to edit the file attachment on the above post but it seems to have got lost

 

THe 2001 Business T&Cs are now available here

 

Steven

[jimjolli]

What wording are we actually looking for in the T&Cs? Can someone highlight the sentences that will help our cases?

 

Jim

[fendyweather]

Um, I was thinking that. Bump ??

[steven4064]

What wording are we actually looking for in the T&Cs? Can someone highlight the sentences that will help our cases?

 

Jim

 

These are the relevant paragrpahs from the latest NW T&Cs (Nov 2006) with the a commentary as to why they are penalties: 2006 T&Cs available here

 

Note slight wording change and insertion (16 June 2007)

- 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.

 

- 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.

 

Fees

 

Unarranged Borrowing

If you exceed your arranged overdraft facility, or if you go overdrawn without prior arrangement: This is in addition to interest payable.

 

Unarranged transactions - unpaid

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

 

Guaranteed card payment fee

Payable when you informally request an overdraft by making a payment supported by cheque guarantee or Maestro where there are insufficient funds or insufficient unused agreed overdraft facility to meet the payment.

 

Paid Referral

Payable when you informally request an overdraft by issuing a payment instruction on your account where there are either insufficient funds or insufficient unused agreed overdraft facility to meet the payment and we in our discretion make payment which results in or increases an unarranged overdraft.

 

 

- The Claimant contends that these Terms require 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 applies even in cases over which the customer has no control ,eg the paying of a Direct Debit where the payment date and/or amount are controlled by the payee or indeed the bank itself)

 

- 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 the present case, the Claimant contends that the event leading to the 'variation', namely the ‘informal request for an overdraft’, has been forseen at the time the contract was drawn up and the Defendant has written it into the contract as a contract Term. The Claimant further contends that the 'variation' is in reality a breach of the implied contract Term that the customer must maintain sufficient funds (inluding any agreed overdraft facility) in the account to cover all withdrawals.

I was going to put a link to these but I couldn't find where I had posted them! Must get a system.

 

Anyway, this was written to be included in a statement of evidence. I suggest that if the worst comes to the worst that we should use the latest T&Cs if we can't find/get hold of the ones that were current when we opened the account. What we shouldn't do is put in a Statement of Evidence without any.

 

Steven

[fendyweather]

Found this amazing link:

 

Internet Archive Wayback Machine

 

Its called the wayback machine website................ you type in what youre looking for and it basically find anything Natwest from years back. Its amazing. It should give us everything were looking for for all terms and conditions etc. going back over 10 years. Its ultra uber brill for anybody who might need it.......... it also works for any other bank, just go to

 

google: and type in wayback machine, then you can link back to any bank over time, it stores their pages in its archives going back beyond YONKS. Amazing. What a fab inventions.............. Fendy xxxxxx

[Garforth]

Fendy,

 

Interesting link! I couldn't find much on it though - because post 2000 it seems that the Gnatwest web site changes to a back end server model and although the crawler copies the site the links refer to back end processes which are no longer there (that's why most of the pages do not work past the index page).

 

Back to the point - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/81799-issues-raised-llloyds-bank.html#post727697 this link is from the Lloyds website referring to "Cloaking of Charges", fee for a service argument and the need to refer to T's & C's.

 

I agree that the T's & C's and their discredit are now an essential part of the witness statement. This is impotant (to me ) as I am going back more than 6 years and the "cloaking" argument is further ammunition in defeating the Limitation Act 1980.

 

Hope this helps and thanks for the Fendy v Natwest - superb reading!!

 

G

[jhamb]

Sorry but can anyone help me as Im totally confused about what I need for court. I have made up three bundles of all correspondence, relevant case law etc and my own bank statements. Do I now have to mention the T&C? I have to send my bundle early next week so really appreciate any help - THANKS JG

[hedgey06]

jhamb, it's now advised that you should include a copy of the T&C's in the court bundle.

[kiri260180]

I am confused as well - do we need the current T&C's or do we need them for the year in which we we opened our account - and if like me started with a regular current account and then moved to an advantage gold - do we need two lots of T&C's if the charges span over these two periods?

[coppercat]

Hi, I could do with a copy of 1999 Business a/c terms and conditions if you have them available. Court date 18th July 2007

Thanks

[stevepm]

It looks like Natwest have pulled the Archives from the wayback machine as it is dead I cannot get anything from it.StevePM

[stevepm]

Somebody must have a set of T&C pre November 2006 I would consider these to be essential for us at htis point. I agree wit Steven it looks like NatWest have changed the T&C in an atempt to head of reclaims.Can anyone help. StevePM

[stevepm]

By the way Steven4064 received a cheque on Friday for over £5000 sent it back as refused. They actually said in the letter "in settlement with the AGREED TERMS AND CONDITIONS DISCUSSED WITH COBBETTS" what discussion I rejected it when they offered it the day before and just before the hearing. They really know how to push itStevePM

[coppercat]

Thanks fot that. Someone has posted T&C FOR 2001. Although I was a customer prior to that, I am claiming back to 2001. Would those T&C be better to use than the present ones.

Cheers Coppercat

[stevepm]

Coppercat who has posted 2001 can you gibe me a link I would be thakfull

 

StevePm

[bodgerella]

I am in the same boat-I joined Natwest in 1982 and they converted me to advantage Gold much later but I couldn't tell you when-do we need to get the T+C's from the bank for these years? I'll never discard T+C's for anything ever again!

[jhamb]

Coppercat who has posted 2001 can you gibe me a link I would be thakfull

 

StevePm

 

Hi Steve PM

 

Just to say thanks for all your help so far! I think I have my court bundle sorted but just wondering if you - or anyone else knew - if I have to include statement of evidence. My order says standard directions but apart from my Partic of Claim and schedule of charges I havnt really included anything more specific to my claim. Will the court allow me to produce Statement of Evidence or do you have to request whether this can be used? Cheers JayneG

[coppercat]

Stevepm The 2001 Business T&C are no. 28 permalink in this section posted by steve4064

[Garforth]

Hi Steve PM

 

Just to say thanks for all your help so far! I think I have my court bundle sorted but just wondering if you - or anyone else knew - if I have to include statement of evidence. My order says standard directions but apart from my Partic of Claim and schedule of charges I havnt really included anything more specific to my claim. Will the court allow me to produce Statement of Evidence or do you have to request whether this can be used? Cheers JayneG

 

Jhamb,

 

You need to include your statement of evidence as part of your court bundle (there are four essential sections to it). Follow this link and all will be revealed. http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=130&Itemid=78

 

g

[jhamb]

Jhamb,

 

You need to include your statement of evidence as part of your court bundle (there are four essential sections to it). Follow this link and all will be revealed. http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=130&Itemid=78

 

g

 

Thanks for your reply. I have read that thread and thats why Im a little confused as it says:

 

The small claims track 'standard directions' -

Typically in small claims track cases, the directions will be these -

 

 

Quote:

Each party must file and serve copies of all documents on which that party intends to rely at the hearing, no later than fourteen days before the hearing.

 

The original documents must be brought to the hearing

 

To comply with these directions, you will need to submit copies of all the evidence and other documents upon which you would rely on in court, to both the other side and the court office, no later than 14 days before the date of the hearing. You must retain the original documents.

 

The documents/evidence you will need to submit will include;

 

 

- Schedule of charges

- Statements showing charges have been made

- All correspondence between you and the bank

- All cases and statutes upon which your claim relies

- OFT report

 

Mine is the 14 days to get the bundles in but the above doest mention a statement of evidence. Im just worried that I will put something in the bundle that the court will say shouldnt be there! Do you think its better to put this in than not??

[Diotima]

• 11 December 2006

Confirmation of Advantage Gold/Current Plus/Current Account Credit Zone Overdraft facility

 

Terms & conditions of overdraft

 

 

"The overdraft limit should not be exceeded"

 

I would think that under these terms and conditions if you do exceed your overdraft limit you would be in breach of contract - what do you think?

 

What if the overdraft was exceeded by bank charges, which then goes on to incur other 'charges' for being over the overdraft limit. I've just had 104.00 GBP taken from my account in interest and charges over the past two days! Now I'm over my overdraft limit

[stevepm]

Garforth amd jhamb

 

YOu need to include your staement of evidence.

 

I have posted one here

 

 

NatWest Bank Plc

(Defendant)

 

_________________________ _____

STATEMENT OF EVIDENCE

_________________________ _____

 

1. The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such penalty charges with a view to profit.

 

3. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

4. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include -

 

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach" and;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"

 

5. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

6. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

7. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. On one occasion in December 2002 the balance of the account was £20.43; the bank then applied their charges, which took the account overdrawn by the amount of £1.18, which invoked further charges of £16.95 taking the account overdrawn to £18.12. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

8. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. The Claimant contends that the charges made by the defendant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to; its actual loss suffered as a result of the Claimants breaches of contract.

 

9. The defendant has declined to answer the Claimant’s written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite repeated requests to do so.

 

10. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

11. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

12. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

13. It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £38, current charge, by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

14. Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

15. The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

16. The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair and unlawful within their interpretation of the UTCCR’s.

 

17. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

18. Further, under the UTCCR:

 

“5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.”

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

The cost of NatWest charges imposed as a penalty by NatWest have risen on numerous occasions during the period of the last six years have increased multiple times during the period in which my account was held, on NO occasion was I given the opportunity to negotiate, or even notified of this increase, even though within their T&C NatWest say that they will inform you in writing, Section 1a Alterations and Amendments. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

19. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and

unenforceable at law.

20. It is also a fact that Nat West has currently already paid out a sum in excess of £1,347,495.00 in RE-PAID BANK CHARGES to its customers.

 

I, the Claimant, believe all facts stated to be true.

 

 

4 June 2007

The portions in BLUE you need to change to an item in your own account.

The portions in red makes sure you have these included within your bundle.

BUT PLEASE PLEASE K=MAKE SURE THAT YOU NUMBER YOU PAGES AND CAN REFERENCE THEM DURING THE HEARING THI IS A MUST.

StevePM

If you find this useful please tip my sclales.

[jhamb]

Garforth amd jhamb

 

YOu need to include your staement of evidence.

 

I have posted one here

 

 

 

 

NatWest Bank Plc

 

 

(Defendant)

 

 

 

 

 

_________________________ _____

 

 

 

STATEMENT OF EVIDENCE

_________________________ _____

 

 

 

1. The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such penalty charges with a view to profit.

 

3. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

4. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include -

 

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach" and;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"

 

5. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

6. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

7. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. On one occasion in December 2002 the balance of the account was £20.43; the bank then applied their charges, which took the account overdrawn by the amount of £1.18, which invoked further charges of £16.95 taking the account overdrawn to £18.12.The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

8. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. The Claimant contends that the charges made by the defendant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to; its actual loss suffered as a result of the Claimants breaches of contract.

 

9. The defendant has declined to answer the Claimant’s written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite repeated requests to do so.

 

10. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

11. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

12. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

13. It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £38, current charge, by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

14. Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

15. The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

16. The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair and unlawful within their interpretation of the UTCCR’s.

 

17. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

18. Further, under the UTCCR:

 

“5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.”

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

The cost of NatWest charges imposed as a penalty by NatWest have risen on numerous occasions during the period of the last six years have increased multiple times during the period in which my account was held, on NO occasion was I given the opportunity to negotiate, or even notified of this increase, even though within their T&C NatWest say that they will inform you in writing, Section 1a Alterations and Amendments. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

19. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and

unenforceable at law.

 

20. It is also a fact that Nat West has currently already paid out a sum in excess of £1,347,495.00 in RE-PAID BANK CHARGES to its customers.

 

I, the Claimant, believe all facts stated to be true.

 

 

 

 

 

4 June 2007

 

The portions in BLUE you need to change to an item in your own account.

The portions in red makes sure you have these included within your bundle.

 

BUT PLEASE PLEASE K=MAKE SURE THAT YOU NUMBER YOU PAGES AND CAN REFERENCE THEM DURING THE HEARING THI IS A MUST.

 

StevePM

 

If you find this useful please tip my sclales.

 

Thanks Again! JayneG