NotWatson vs NatWest

[hedgey06]

They'll say they're going to and they will send in a defence (of sorts). They won't actually defend though

 

Steven

 

If this post is helpful, please click the scales

 

Any opinions are without prejudice & without liability.

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

 

Problem is, until the acknowledgement of service form has a tick box for 'do you intend to send the claimant a template' - we'll keep getting the usual pile of old tosh of them!!

[steven4064]

Problem is, until the acknowledgement of service form has a tick box for 'do you intend to send the claimant a template' - we'll keep getting the usual pile of old tosh of them!!

The trouble is they would probably abuse that - it reminds me that apparently the application form for a US visa used to have the question "do you intend to overthrow the government of the USA by force?"

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

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

[notwatson]

Hi everyone

 

Another update.

 

As I now have a claim number, I've written to Cobbetts requesting terms and conditions under CPR pre-action protocol 4.6© as Steven suggested above. In the same letter I've pre-empted their CPR 18 request, by giving them the account details which the claim relates to and enclosing a schedule of charges.

 

Here's the letter I sent today by Special Delivery....

 

...................................................................................................

Cobbetts LLP

58 Mosley Street

Manchester

M2 3HZ

Re: Claim No: xxxxxxxx

Your Ref.: xxx/xxx/xxxxxxx-xxxx

Dear Sir/Madam,

 

I hereby acknowledge receipt of your letter dated 10th July 2007, as Acknowledgement of Service of the above claim.

 

I have also received confirmation of this Acknowledgement of Service from xxxxxx County Court.

I have requested that your client provide me with copies of the Terms and Conditions in operation at the time my bank account was opened in October 1989 and in August 1994 when my overdraft facility was first put in place. However, I have not received either of these documents from your client as of today.

 

Therefore, I am requesting the Terms and Conditions (T&Cs) in operation at the time my account was opened in 1989 and also in 1994 under CPR Pre-Action Protocol 4.6©.

 

As a further matter of clarification, I hereby confirm that the charges I am claiming were applied to the following account:

 

Account Name: NotWatson

Account number: xxxxxxxx

Sort Code: xx-xx-xx

 

Please also find enclosed a breakdown of all charges I am claiming.

 

Yours Faithfully

 

 

 

NotWatson

 

Encl.: Schedule of charges relating to claim no. xxxxxxxx (Your ref. xxx/xxx/xxxxxxx-xxxx)

 

....................................................................................................

 

Any thoughts ? - was this a dumb idea ?

 

Onwards (the calendar is still ticking !!)

 

All the best everyone,

 

Jon

[steven4064]

Looks good - should get them off you rback AND keep them busy - good move

[notwatson]

Thanks Steven - although the credit for the above letter really goes to you - your advice is rock solid. Many thanks. I hope that they react and actually send me something useful.

 

Like I say, thanks for all the advice - before I found this website, I thought that CPR 18 and CPR 4.6© were robots from Star Wars !!

 

Many thanks,

 

Jon

[notwatson]

Another update ...

 

I received the defence from Cobbetts this morning

 

Could someone please, please have a look at it and let me know if it's a standard defence or out of the ordinary - also, what do I do now ?

 

I was feeling *so* confident about all of this, but this arriving today has spooked me rather.

 

Any help and advice will be most appreciated.

 

Thanks.

 

Here is the defence:

.....................................................................................

IN THE XXXXXXX COUNTY COURT

CLAIM NO. XXXXXXXX

BETWEEN:

NotWatson

-and -

NATIONAL WESTMINSTER BANK PLC

 

DEFENCE

 

1 This Defence is filed and served without prejudice to the Defendant's case that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Defendant 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 for summary judgement in respect of the same.

 

2 On allocation the Defendant invites the court to direct that there be a case management conference in order for the court to consider the making of appropriate orders to give the Claimant the opportunity to properly particularise the claim.

 

 

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

 

4 In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:

 

4.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in the nature of a penalty the Claimant will need to plead and prove (a) the clause(s) pursuant to which the charges were applied; (b) that the charges were applied due to a breach of contract by the Claimant; and © identifying in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to. As presently pleaded the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the Particulars of Claim have been applied pursuant to an unenforceable penalty clause.

 

4.2 Until such time as the Claimant pleads the matters referred to in paragraph 4.1 above the Defendant is unable to plead to the claim brought against it and therefore (pending the provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the Claimant's bank account pursuant to unenforceable penalty clauses.

 

5 In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations").

 

5.1 The Claimant is required to identify the contractual provision(s) that the Claimant alleges are invalid by reference to the Regulations. Until such time as these provisions are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 5 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.

 

5.2 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to the Regulations the Defendant pleads as follows:

 

5.2.1 Schedule 2 to the Regulations is an Indicative and non-exhaustive list of terms which may be regarded as unfair (emphasis supplied).

 

5.2.2 If the Claimant is to rely upon paragraph 1(e) of Schedule 2 to the Regulations then the Claimant is required to plead and prove in relation to each bank charge that is sought the matters referred to in paragraph 5.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high.

 

5.2.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be - see paragraph 5.1 above) falls foul of the Regulations and in particular paragraph 1(e) of Schedule 2.

 

5.2.4 The Defendant is therefore unable (save as appears below) to plead to this allegation beyond denying that any bank charges have been applied pursuant to terms which contravene the Regulations. The Defendant reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 5.2.2 above are provided.

 

5.2.5 Without prejudice to paragraph 5.2.4 it is the case of the Defendant that the Regulations have no application because the charges amount to payment for services provided by the Defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judged by reference to principles of fairness under the Regulations.

 

6 The Claimant's claim for costs not being sufficiently particularised, the Defendant is unable to plead and reserves the right to plead upon further particulars.

 

7 Save as hereinbefore appears the Defendant joins issue with the Claimant on the claim(s) and denies that it is liable to the Claimant as alleged or at all.

 

 

Statement of Truth

 

The Defendant believes that the facts stated in this Defence are true. I am duly

authorised by the Defendant to sign this statement.

Full name: Name deleted (by NotWatson)

Name of Defendants solicitor's firm: Cobbetts LLP, 58 Mosley Street,

Manchester, M2 3HZ (Ref: RMDW/RR01362.6928)

 

Signed

 

(Signature)

 

DATED this 24 day of July 2007

...................................................................................................

 

That's it - I hope someone can have a look through to check it for me and to let me know what (if anything) I should do next. Also, note the letter that I sent (copied 2 posts above this one) has not been responded to yet.

 

Many, many thanks,

 

Jon

[hedgey06]

Hi jon, looks like another of cobbetts' delightful templates!

 

It's a slight variation from my own defence - but basically the same as an awful lot of defences they've been knocking out this year!!!!

 

With regards to them not responding to your letter - I requested T&C's for my own claim over a month ago - still no joy! The main thing is - you've requested the T&C's and you'll be able to prove this at a later date, which is to your benefit.

 

Don't lose your confidence over a cobbetts template though, they're seriously not worth losing sleep over. When they submit a defence that seriously defends a claim............... then we can worry!!!

[notwatson]

Thanks for that Hedgey - I will remain strong and confident !

 

Do I do anything now ? - should I respond to Cobbetts acknowledging their defence ?

As I already sent them a schedule of charges with my CPR 4.6© request - do I need to send them another ?

 

One final question - will the next contact be from the court ?

 

Many thanks,

 

Jon

[hedgey06]

You don't need to send anything to cobbetts Jon - just wait until you hear from the court (which you should do within the next few days). There's no point sending anything to cobbetts now unless the court orders you to do so.

 

Sit back............... and wait for further directions from the court! All's going well! x

[notwatson]

Hi everyone,

 

This morning I received the following letter from the court ...

.........................................................................................

 

Dear Sir/Madam, (obvious template ?)

 

Please find enclosed a copy of the defence which has been filed by the defendant. Due to your case being a bank charges claim, allocation questionnaires have been dispensed with, and the file has been referred to the District Judge for directions.

 

We will inform you of the Judge's directions as soon as the file is returned to us.

 

If you have any further queries, please do not hesitate to contact us.

 

Yours faithfully,

Case Management Section

....................................................................................................

 

 

My N1 was deemed served on the 7th July.

 

Does this mean that I will have to wait for the outcome of the OFT case ? or (as my mail today seems to all have been posted on the 25th) has my case already gone off to the district Judge and will it progress normally ? I assume that the answer is that I will have to wait - I read this morning that this (OFT high court) case could take up to a year (or more )

 

I know that everyone wants these answers, but what is the word on the street ? ........

 

All the best,

 

Jon

[steven4064]

Does this mean that I will have to wait for the outcome of the OFT case ?

Jon

 

It may do. What may happen is that the judge will stay the claim (ie put iton hold) pending the outcome of the OFT case. However a template is being put together to request that the stay be lifted (after all the OFT case could take months, if not years) - watch this space (well not this one exactly, but you know what I mean )

[notwatson]

Ok everyone, it's here - the STAY, that is..........

 

The letter is dated: 31 July 2007 and court stamped.

 

................................................................................................................................

 

Before DISTRICT JUDGE EXTON sitting at Bristol County Court, (address given)

 

Upon reading the court file

 

IT IS ORDERED THAT

 

1) In view of the fact that there are current proceedings before the High Court which should be determinative of the issues raised in these proceedings, this action shall be stayed until 30th November 2007. It is, of course, open to any party to apply for a removal of the stay. If, within 28 days of the expiry of the stay no party has asked that further directions be given the action shall be struck out, presumed settled.

 

Dated 30th July 2007

..............................................................................................................................

 

 

Right - I have a couple of questions...

 

1) Is the current advise to apply for the stay to be removed ?

If so, can somebody point me at the template (unless it's still the one in the Library)

 

2) The fact that the stay is until 30th November 2007 - all the information I've read about this High Court case, indicates that it is likely to take many months, if not years(!). In the light of this timescale imposed by the District Judge, and the last bit of the direction about "within 28 days" (presumably after the 30th November) if I or NatWest haven't asked for further directions to be given, the case will be struck out, presumed settled. Does this mean that the DJ has info' from the court grapevine, that this is the timescale for the test case, or should I get some sort of application for further directions together ? Is asking for these "further directions" the same as applying for the stay to be lifted ?

 

Any answers gratefully received !

 

Cheers everyone,

 

Jon

[steven4064]

You can apply for the stay to be lifted - see link in my signature.

 

The case is expected to start jan/Feb next year. I suspect that any hearing in Nov would just stay teh case again.

[notwatson]

Many thanks Steven - I think I will apply for the stay to be lifted, as I was _so_ close to the finishing post .........

 

I'll report back here with any developments.

 

All the best,

 

Jon

[notwatson]

Just a quick question, as I am going to the court tomorrow to put in my application for the removal of the stay (£35 I believe):

 

Has anybody had a stay lifted ? (any advice would be useful) - and - in the light that the District Judge has quoted the OFT High-Court case, what are my chances of having the stay lifted ?

 

I am away from the afternoon of the 9th until the 16th, but will have a laptop with me, so will check this site for answers/advice/developments.

 

All the best,

 

Jon

[steven4064]

Jon

 

Yes there have been some but it really is a post-code lottery.

[notwatson]

Oh dear - I'll keep my fingers crossed then and do it anyway.

 

Thanks Steven

[notwatson]

Hi everyone,

 

Been away for a week and I have received a letter from the court.....

..............................................................................................................

Notice of CLAIMANT'S APPLICATION

 

 

In the BRISTOL County Court,

 

Date: 16th August 2007

 

TAKE NOTICE that the CLAIMANT'S APPLICATION will take place on 20th September 2007 at 11:00 AM (court address appears next) When you should attend.

30 MINUTES has been allowed for the CLAIMANT'S APPLICATION.

Please Note: This case may be released to another Judge, possibly at a different Court.

......................................................................................................................

 

There is a copy of my application attached.

 

Could somebody hold my hand a bit here please ? !! - does this mean what I think it means ? - am I actually appearing in Court ? If so (or even if not), what is my next move and how do I prepare for this ?

 

I am ok with this, but do need advice as to what will happen next and what I need to do in order to be prepared for this next stage...

 

Thanks (in anticipation !),

 

Jon

[notwatson]

getting near the bottom of the first page now, so.........

Bumpity bump !

 

J

[hedgey06]

That's strange - I thought your claim had been stayed?! Or is the hearing to discuss your application to have the stay lifted?

 

I think first things first - phone the court and ask them to clarify what the hearing is. I.e., is it to discuss the stay or to hear your claim?

 

Once you get an answer from the court - post back on here and we can advise further.

 

Best of luck

[notwatson]

Yes - sorry - it has been stayed.

 

The text I posted earlier today was the response to my application for the stay to be lifted (using the CAG template).

 

So, should I still ring the court ? or does anyone have any other answers in the light of the fact that there definitely is a stay in place ?

 

Thanks,

 

Jon

[hedgey06]

I don't think you need to ring the court Jon - sorry, I'm not very awake today!

 

IMHO though, I feel this is encouraging - at least the DJ is prepared to hold the hearing and listen to your arguement to have the stay lifted as opposed to saying in a letter "get lost - the stay's not being lifted"!

 

You'll need to understand everything that is in your application for the hearing. I know you can take a copy in with you, but this is your application and you'll need to show that you understand the contents and be prepared to put your case across.

 

Have a look here as well http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/111313-stay-lifted-eastbourne-county.html - just for a bit of encouragement!

[notwatson]

Hi everyone,

 

It's getting very close to my court date now (Thursday 20th) and I am getting a little nervous and have a question...

 

Do I just take information regarding my application for the lifting of the stay, or should I be going armed with *everything* - from statements right up to a court bundle ?

 

I feel encouraged by the news this weekend that some banks have reduced their charges by up to a third and am also going to take along my letter from NatWest saying they would deal with my claim in 6-7 weeks from my prelim. letter - that would have actually been between the 13th and 20th of July (according to *their* timescale - in other words a week before the OFT test-case was announced - they obviously never intended to deal with it) - I have a feeling that I'm going to be banging my head up against the wall with this court appearance, but will do my best.

 

If anyone has any advice as to what to take in or what to say (other than what's already in the application for the stay lifting) or literally *anything* then I'd love to hear it.

 

Nervously,

 

Jon

[steven4064]

I would take 'everything' jsut in case. Have the main points of your argeument(s) prepared too.

[notwatson]

even a court bundle ?

 

If so, Steven, could you point me at a link to the bundle and also to the most relevant terms and conditions for me (account opened in 1989, overdraft first agreed 1992/3 - never had advantage gold status). I asked Cobbetts for T&Cs as you can see from my earlier posts, but nothing has ever materialised - so maybe I should add that to my argument.

 

Sorry to rattle on, but my nerves are starting to jangle a bit !

 

Many thanks,

 

Jon