Natwest cpr18?

[minnimace]

Hi i am now in the process of sending my response to cobbetts regarding a cpr18 i recd, however without sounding stupid should i have recd a allocation questionnaire yet as i recd the defence from cobbetts on last thursday and i still have not recd one. Also on the defence it stated that it was with northampton court and not my local court. How long do i have to wait until i receive one or do i need to chase this up? thanks

[stevepm]

Hi minnimace

 

no you will not have recieved an AQ yet so you have two choices.

 

1. Respods saying you are not goinig ot respond to the CPR PT18 as you expect this to be allocated to Small Claims

 

or

 

You can reespond to the CPR. If you want to respond I can help with a copy of mine which took quite a while and a lot of help to develope.

 

Lasat If I was now in your shoes I woudl respond and then slap a aCPR on them that would probably short circuit them as this would reduce their oppertunity to dealy.

 

StevePM

 

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[minnimace]

sorry to sound stupid but i have been given a copy of a response that i have to send to them re:not answereing the cpr18 which i will fax and post along with a list of my bank charges. How long does it take before i receive the aq as i thought i also had to send copies to the court?

[stevepm]

Sorry you do not have to refused to play.Be aware that in my case I went down that route and ended up at a Direction Hearing in front of the Judge who ORDED Me to Comply with the CPR. You can refuse but this is not definite this may even as with me delay the process. I am having to wait at least another month before I can get back in front of the Judge:Just look at do you want to do it.Howmuch are you claiming if it is a large amount then they may fight a bit more.My view is they will try to delay as much as they can.If you want copy the response someone has told you to so that we can have a look to see if it is the correct format.Have you read other view and threadsStevePM

[minnimace]

Dear Sir or Madam:

Claim No:

 

I Acknowledge the receipt of the defence posted on behalf of National Westminster Bank plc.

I am not prepared at this stage to answer the CPR Part 18 Request. I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. However, for clarity, I confirm the charges I am claiming were applied to the following account:

Account Name:

Account number:

 

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

Yours Faithfully

 

This was given to me on another thread however before i send it i would like to check im doing the right thing?

[steven4064]

minnimace

 

That looks fine. As stevepm says, you don't actually need to respond at all but this response at least fires a shot across the bows of Cobbetts that you are not going to take any of their nonsense

 

Steven

 

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[stevepm]

Minnimacethis is the standard response agreed but again I would strongly urge you to consider which way you want to go.The CPR 18 id a standard response from Cobbett's.My view and that of others is:1. Send a response to their CPR 18 I can supply all the answer to their questions.2. Send a CPR 18 to Cobbett's telling them your require further inforamtion including the exact breakdown of their charges and how they do it.We know for a fact that the Banks WILL NOT TELL US and they will do everything to stop us finding out. The first bank to be forced to tell the whole facts will o[en the flood gates for all THEY WILL NOT LET THIS HAPPEN. If you want your money fast I would do it this way. If I had been more aware when I did mine I would have not sent the letter refusing. We now know better we are all learning oin this.At the end of the day it is your decision. You have to do what you think is best for you we can only give advise. If you want a copy of the answers I can post it for you on the site.STevePMIf you find this helpfull please tip my scales

[stevepm]

Hi Steven4064

 

how goes it

 

 

StevePM

[minnimace]

hi yes i suppose i have nothing to lose by having a look at the reponse you sent and then maybe i wont be waiting so long. Im actually doing two claims one for my father and one for me .Im only claiiming £1500 and natwest sent me a letter yesterday offering me half which i will reject. The claim for my father though is just under5k.

[stevepm]

case/claim No:

In the xxxxxxxx County Court

claimant

-AND-

NatWest Bank

defendant

 

Response toCourt Directions

re

Cobbetts Cpr 18

request for further information

 

Q1.1 In relation to each charge please identify:

A1.1: The information within this direction was supplied within document pack supplied to the Court. However since this has been directed the response to the requested CPR18 can be found below and within the attached spreadsheet Paragraph 12 page .

(a) The dates when the charge was charged

A1.1 Date if each occasion when a penalty was charged to the account. It is noted that since the original list was compiled the defendant has seen fit to supply the missing information as requested within the original Data Information Request submitted in December 2006 and re-submitted in February 2007. The information has been gathered from this therefore has necessitated an amendment. This amendment has been highlighted within the spreadsheet.

It is also of note to the court that the original list of charges has been supplied to the defendant on two occasions the last within the Allocation Questionnaire.

(b) The amount of the same

A1.2. The amount of the same, penalty charged to the account, is given within the attached spreadsheet, it is noted that this information has been gathered via information supplied by the defendant (Bank Statements) and readily available to the defendant without this request. It is noted that sine the original submission Claim was submitted the Defendant has seen fit to supply missing information. This information has resulted in an increase of the Claimed to £xxxxxxand interest of £ totalling £xxxx sum £xxxxx

I would therefore request that the court now accepts that the above be the amount to be repaid by the defendant.

It is also of note to the court that the original list of charges has been supplied to the defendant on two occasions the last within the Allocation Questionnaire.

© the reason(s) given for the charging of the same

The reason(s) for the charges of the same are included individually within the attached spreadsheet. This information was made available to the defendant prior to the Hearing. It is noted that this information has been available to the defendants through their own supplied information (Bank Statements).

It is also of note to the court that the original list of charges has been supplied to the defendant on two occasions the last within the Allocation Questionnaire.

1.2 In respect of each charge, please clarify the following:

(a) is it the case of the claimant the same should not have been charged.

The Claimant is aware that each charge has been debited by the Defendant from the Claimant’s account pursuant to the terms and conditions when the account was opened. However, please see my replies below.

(b) if yes; please explain why the claimant contends that the same should not have been charged:

The Claimant does not contend that the same should not have been charged; merely that the charge made should have represented the Defendant’s liquidated losses and not the fixed charges applied by the Defendant according to the terms and conditions in force at the time the charge was made.

© if no; is tit the case of the claimant that the same should not have been charged in this amount

This is exactly the Claimant’s case. Each charge debited by the Defendant from the Claimant’s bank account should not have been charged in the amount that was charged. It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant. The Claimant reminds the Defendant that it has been put to strict proof in previous correspondence and/or the Particulars of Claim that the amount charged for each charge debited does truly reflect the Defendant’s costs and that they are not making a profit from such charges – in the absence of any documentation to support the Defendant’s contention that each charge debited represents the Defendant’s liquidated losses, the Claimant contends that the Defendant has no defence to the claim that each charge is disproportionate and therefore unenforceable in common law, or by the previously claimed Acts, Statutes and Regulations pleaded.

(d) if yes; please explain why the claimant contends that the same should not have been charged in this amount and identify the sum the claimants contends should have been charged

The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.

It is also stated that the claimant requested the defendant pursuant to CPR Pt18 on the 31 May 2006 to supply information as to the same.

(e) if no please state the claimants case

The Claimant has already stated a case in the Particulars of Claim and repeats the same claims as if they were repeated in this reply. The Claimant also refers the Defendant to the answers.

2 In your claim you state "the charges are an unlawful extravagant penalty".

 

2.1 Please specify whether these charges applied were due to a breach of contract by the claimant.

The Claimant avers that the circumstances giving rise to the levying of charges by the Defendant are all breaches of the provision relating to Operations on the Account and which sets out a mandatory requirement in respect of the maintaining by the Claimant of cleared balances on the accounts. As such failure to adhere to that contractual requirement is a breach of the agreement between the Claimant and the Defendant.

The Claimant further contends that the Defendant is only entitled to be compensated by the amount it would be able to secure in a claim at common law in the event that the Claimant was individually sued for breach of contract by the Defendant. Accordingly the charges that result from the breaches are by their nature are therefore unreasonable and/or unenforceable and/or in terrorum in respect of each and every occasion that they have been debited to all of the Claimant’s accounts.

 

It is noted that the Defendant’s, NatWestPLC, own Barrister, Mr. Pilling, declared during an interview with the press following the Crown Case 22 May 2006

Mr Brennan (Barrister) Vs NatWest PLC

that “the only sustainable claim is for breach of contract”

I would put it that the Defendant now admits that there is a case for Breach of Contract.

2.2 Please identify in each case the particular breach of contract (by reference to appropriate terms of the contract and the charge relates to:

It is noted that this request is beyond that which is reasonable to request on an “as per item basis”. By agreement of the Court the claimant intends to list by generic terms those section of the Terms and Conditions as laid down.

It is of further note that the response to the above request is based on the current Terms and Conditions of the Defendant dated November 2006, however, it is noted that, when the account was first opened these T&Cs where considerably different in appearance and meaning.

It is also if note that despite request the defendant has not supplied a signed copy of the original Account Opening forms or Terms and Conditions of that era.

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.

 

In 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.

The Claimant contends that these Terms imply a term requiring 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 Condition applies even in cases over which the customer has no control, e.g. the paying of a Direct Debit where the payment date and amount are controlled by the payee.)

 

- 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 (e.g. 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 (i.e. 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 this case, the Defendant has effectively written a contract variation into the contract. The Claimant contends that this has the effect of making the subject of the variation, namely the ‘informal request for an overdraft’ a breach of the implied contract term that the customer must maintain sufficient funds in the account to cover all withdrawals.

3. In your claim you state that the charges" applied constitutes an unfair penalty under the Unfair Terms in Consumer Contracts Regulations 1999"

 

3.1 Please supply all of the facts relied on by the claimant in support of the contentions in Paragraph 2 above and in particular please identify the contractual provisions that the claimant alleges are invalid by reference to the Regulations.

 

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

 

If the defendant contests this does not amount to a breach of contract the claimant will contest that charges appear to represent an unfair term of contract which is contrary to the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2 (1) (e).The claimants account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. These charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

Indicative and non-exhaustive list of terms which may be regarded as unfair:

1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation.

Stevepm

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[steven4064]

Hi Steven4064

 

how goes it

 

 

StevePM

 

Fine. No reply from Cobbetts yet to my CPR part 18 request - I'm not sure it's going to make much difference in the end, apart from annoying Cobbetts, that is. Have received AQ from the court though, so things are moving along. I'll catch you on your thread or mine

 

Apologies minnimace for this (small) hijack

 

 

Steven

 

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Any opinions are without prejudice & without liability.

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[minnimace]

thanks for that and i presume that rather than sending my letter i would send this reply to cobbetts? does it matter that as yet i have no allocation questionnaire so i can only send a copy to cobbetts? Also i know i sound thick but i only need to add my details at the top and where the amounts need to go?

[stevepm]

HIyou need to complete the full spreadsheet do not just put the amounts in the XXUse one of the spreadsheets and Itemise it out. Showing as a minimumdate Say its a charge or interest or feethen say what it as for see below16/03/2006 Charges Card Misuse £70.00 439 £6.7631/03/2006 Charges No REASON £9.00 424 £0.8410/04/2006 Referral Charge March-06 £30.00 414 £2.73stevePMIf you foind this usefull please tip my sclaes

[minnimace]

ok thanks for your help will let you know how i get on later

[steven4064]

hi yes i suppose i have nothing to lose by having a look at the reponse you sent and then maybe i wont be waiting so long.

 

I personally don't think it will make any diference to the overall timescale. You don't have to answer their dumb questions unless the court orders you to (like in stevepm's case). The simplest thing is just to let matters take their course, send the AQ back when it comes with the suggested draft order for directions or, if the AQ is deispensed with, just sent the draft order. It is the draft order that usually makes Cobbetts stop messing about and pay up.

 

I am experimenting with a slightly different approach but I'm not going to recommend it until I see if it works.

 

Steven

 

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[stevepm]

Not a problem we are here to but help as we have had help in the pastStevePM

[steven4064]

Hi stevepm,

 

I hope you don't think I was being critical. As we have discussed in the past, I think we need to wait and see what happens if we try someting a bit out of the ordinary.

 

Steven

 

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Any opinions are without prejudice & without liability.

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[minnimace]

Hi thanks for your help i have just received paperwork from the courts to say that the aq has been dispensed with!!!! Sorry to sound dim but waht do i have to send back, i have already sent the standard response to cobbettts last week to say im not prepared to answer the cpr 18 do i now have to send a copy to the court ? Thanks

[steven4064]

minnimace

 

You should send this

 

Steven

 

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[minnimace]

Thank you for that its really helpful. i was claiming for my father and sister in law also. My father has been paid without this and my sister in law also had an offer and they were both claiming more than me. They were both offered the total of bank charges minus the interest but my offer was not even for half? How do natwest decide who they will pay?

[stevepm]

Well I must day that I totally agree with what you are saying. So far ir has taken me nearly six months of going through this will Cobbetts and still know that I have another Directions hearing to go through after the 22nd. I think they see which is easy and which they decided to delay on.

 

I think it may et easier wit the lack of the AQ in some courts and when courts finally hear that even NatWest Barrister said and I quote.

 

"There is no sustainable claim for causing loss or for breach of duty - the only sustainable claim is for breach of contract - thus no exemplary or aggravated damages are applicable," said theNatWest's barrister Mr Pilling

 

I am certainly going to put this comment infront of the Judge. I would imagine it is applicable because it was quoted in relation to A HIGH COURT case not County Court.

 

h

[minnimace]

I just cant understand why they have dealt with both mine and my fathers the same way up until now and paid him out all his charges but i have to go through this!!!! I called my courts today and they said i should have a hearing date in the next few weeks hopefully cobbettts will pay out before then!!!!

[minnimace]

hi i haveve now sent the letter to the courts and a copy to cobbetts do i now just wait for a court hearing date and are they likely to pay out before i have to prepare the court bundle?

[steven4064]

do i now just wait for a court hearing date and are they likely to pay out before i have to prepare the court bundle?

Yes, just wait. They seem to be a bit random on paying out ATM. They are obviously snowed under and they have just moved offices, sowho can say.

 

Steven

 

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Any opinions are without prejudice & without liability.

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