mcuth v RBoS ***WON***

[mcuth]

After a distinctly quiet period from Tommy's dept, I received the following letter (dated 3rd January) today:

 

Our ref: CHGS {}

 

Dear Michael {Not Mr Mcuth or anything :o}

 

Thank you for your letter dated 28 November 2006 {Umm, it was dated 27th November actually}

 

I am sorry that we have not yet been able to respond to you and would ask that you bear with us meantime {sic}. We are currently investigating and will respond to you as soon as possible.

 

Thank you for your patience to date.

 

Yours sincerely

 

Sandy Watt

Customer Relations

 

How odd that suddenly this appears out of the blue

Anyway, to show that my spirit of goodwill has continued into the new year, I'm sending them the following:

 

Sandy Watt

The Royal Bank of Scotland PLC

Customer Relations Unit

Retail Support

The Forthstone

56 South Gyle Crescent

Edinburgh

EH12 9LE

Dear Sandy

CURRENT ACCOUNT NUMBER XXXXXXXX : SORT CODE XX-XX-XX

Your ref: CHGS

Thank you for your letter of 3rd January 2007, received today.

As you are no doubt aware, the offer period that I prescribed in my letter of 27th November 2006 has long since expired. The charges that I wrote to you about are now the subject of a county court action, raised in Swindon County Court under claim number 6SN05490.

As I hadn’t heard from your department, all offers of offsetting indebtedness and reduced amounts for settlement were withdrawn on 6th December as promised. The claim was issued on 14th December 2006 in the sum of £17,895.68 with interest accruing at the rate of £2.22 per day.

However, I am still willing to negotiate a settlement to avoid taking up the court’s time.

In order to prevent needless exchanges debating settlement terms, I’ll point out the following basis of my terms for you to bear in mind when making a settlement offer:

- Payments: Any payments must be made by cheque made payable to myself ({mcuth}) and sent to me directly;

- Confidentiality: I see neither a legal necessity for a confidentiality clause, nor any reason to request one. Confidentiality is a service which I may be prepared to offer, but this would be subject to a separate and negotiable fee. Until said fee is agreed upon and paid, no confidentiality agreement will be accepted;

- Offset: Any settlement must not offset any other amount;

- Current Account Balance: Any settlement offer must include the closing of the current account and refund the current credit balance. Settlement of the loan account will be negotiated separately & directly with Westcot Credit if/when you/they satisfy the s.77/78 Consumer Credit Act request that I made in October;

- Withdrawal of court action: Only when all payments have been agreed & received will I make written representations to Swindon County Court to advise the Court of settlement.

You may also wish to advise Cobbetts of these settlement notes.

Yours sincerely,

{mcuth}

 

 

 

Cheers

 

Michael

[bill-k]

I bet you can't even remember where your boxing gloves are now, Michael - it's been so long since you last had them on !!

[Guest bong]

I think its hilarious that you're on first name terms already:p

[mcuth]

I bet you can't even remember where your boxing gloves are now, Michael - it's been so long since you last had them on !!

 

LOL - yeah, but that's tempered with the knowledge that these are the last few claims I have to bring now....:-|

 

I think its hilarious that you're on first name terms already:p

 

Hehehehe, yeah - I wonder which customer services course they pulled that one out of?

 

Cheers

 

Michael

[chezt]

After a distinctly quiet period from Tommy's dept, I received the following letter (dated 3rd January) today:

Our ref: CHGS {:grin:}

 

Dear Michael {Not Mr Mcuth or anything }

 

Thank you for your letter dated 28 November 2006 {Umm, it was dated 27th November actually}

 

I am sorry that we have not yet been able to respond to you and would ask that you bear with us meantime {sic}. We are currently investigating and will respond to you as soon as possible.

 

Thank you for your patience to date.

 

Yours sincerely

 

Sandy Watt

Customer Relations

 

How odd that suddenly this appears out of the blue

 

Michael I'm following your claim and just noticed this post ... this info may help you in understanding why this letter suddenly out of the blue .... I've had EXACTLY the same letter ... well twice actually!! ... dated 3rd Jan on our RBS joint bank acc claim!! When I say exact I mean EXACT! except of course the name & address & ours is dear Mr & Mrs T so a bit less personal! 'Our ref' makes sense now too ... obviously 'Charges' don't u think?

 

Looks like RBS are so inundated that they've prob got some young YTS ( or wotever they call 'em these days) going through piles of claims n typing piles of these letters in an attempt to buy some time! One of my letters is thanking me for my letter dated 28th November!! (it was the 27th actually)

 

Apart from default notices this is the 1st correspondence I've had from them since my 1st letter 27th Nov

 

There you go ... they can't cope!

 

Hope this helps mate & good luck with the rest of your claim .... I'm still watching!

[mikejohn77]

following your case quite closely, as i am thinking of going back past the six years after i have completed my first claim. seems that the entire company is struggling with mail. Mine is with natwest, and got the same reply from higson last week!

[HydraUK]

Yesterday I received the same letter from the same respondant, to 'Dear Philip', ref CHGS, thanking me for a letter dated 12th December, which, unless I'm going COMPLETELY loopy I haven't sent.

 

I did send an EMAIL to TMcL on the 8th that wasn't replied to....

 

As for being patient....TOOO LATE - they were served on the 5th. Only response I now require is FULL SETTLEMENT.

[mcuth]

Yeah, CHGS must represent "charges" (hence my grin after the ref) - but it does seem like they're quite a bit behind if that's going out to everyone

 

Cheers

 

Michael

[chezt]

but it does seem like they're quite a bit behind if that's going out to everyone

 

yup indeedy .... as I say I got the reply to my November letter! Signed by this Sandy person too!

[mcuth]

Well I got a speedy reply to my last letter - received today:

 

Our ref: CHGS

 

Dear {mcuth} {and by the way, it's back to "Dear Mr Mcuth" now, not "Dear Michael"}

 

Thank you for your letter dated 8 January 2007 regarding charges applied to your account.

 

We are currently considering your claim and will respond to you as soon as possible.

 

Yours sincerely

 

Sandy Watt

Customer Relations Unit

I wonder if they'll make me an offer..... I've also got my defence in from Cobbetts today - will post that up in a bit, it's looooooooooong winded

 

Cheers

 

Michael

[mcuth]

Ok, here's the defence from Cobbetts - who still think they're acting for NatWest in this case

 

Firstly, it was accompanied by the following letter:

Dear Sir

 

Our client: National Westminster Bank plc

 

We are instructed on behalf of the above named.

 

We enclose by way of service Defendant's Defence.

 

We confirm that we have filed a copy of the same with the Court. Would you please acknowledge receipt.

 

Yours faithfully

 

Cobbetts LLP

Enc

 

And here's the Defence (marked as between me & National Westminster Bank plc ):

 

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 Claimant 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 Claimant does not properly particularise his claim then the Defendant will apply to strike out the claim and/or for summary judgement in respect of the same.

 

2. Without prejudice to the non-admission set out in the foregoing paragraph, if and to the extent that the Claimant proves the allegation that the Defendant debited charges to his bank account, insofar as such charges were debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect of the same, whether damages, restitution or otherwise, is barred by the operation of the Limitation Act 1980 and/or the doctrine of laches and the Defendant will apply to strike out this aspect of the claim and.or for summary judgement.

 

3. 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 order to give the Claimant the opportunity to properly particularise his claim.

 

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

 

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

 

5.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in the nature of a penalty he 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 charges 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.

 

5.2 Until such time as the Claimant pleads the matters referred to in paragraph 5.1 above the Defendant is unable to plead 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.

 

6. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Contract Terms Act 1977 ("UCTA 1977") and/or the Unfair Contract Terms in Consumer Regulations 1999 ("the Regulations") and or section 15 Supply of Goods and Services Act 1982 ("SGSA") and/or the common law.

 

6.1 The Claimant is required to identify the contractual provision(s) that he alleges are invalid by reference to UCTA 1977 and/or the Regulations and/or the common law. Until such time as these provisions are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 6 above. The Defendant therefore reserves its right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.

 

6.2 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to section 4 UCTA 1977 then it is the case of the Defendant that the section is not applicable as any contractual provisions relating to charges do not relate to the Defendant's liability for negligence or breach of contract.

 

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

 

6.3.1 Schedule 2 of the Regulations is an Indicative and non-exhaustive list of terms which may be regarded as unfair" (emphasis supplied). {mcuth: note the opening quotation mark doesn't exist in the Defence}

 

6.3.2 If the Claimant is to rely upon paragraph 1(e) of Schedule 2 to the Regulations then he is required to plead and prove in relation to each bank charge that he seeks to recover the matters referred to in paragraph 6.1 above and all facts and matters relied upon in alleging that the sums paid are disproportionately high.

 

6.3.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be - see paragraph 6.1 above) falls found of the Regulations and in particular paragraph 1(e) of Schedule 2.

 

6.3.4 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 6.3.2 above are provided.

 

6.3.5 Without prejudice to paragraph 6.3.4 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.

 

6.4 In relation to the case of the Claimant that the charges are unreasonable within the meaning of SGSA section 15 the Defendant pleads as follows:

 

6.4.1 The Claimant is required to plead and prove the necessary factors (referred to in section 15 SGSA) concerning the contract between the Claimant and the Defendant which mean that pursuant to SGSA section 15 there is an implied term that the Claimant pay a reasonable charge for the service under the contract.

 

6.4.2 Further, the Claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable; (b) all facts and matters relied upon by the Claimant in support of this case and © what charges would have been reasonable.

 

6.4.3 In the circumstances no grounds are disclosed for a claim that the Defendant has acted in breach of SGSA section 15.

 

6.4.4 In the circumstances (save as appears below) the Defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 6.4.1-6.4.3 above are addressed.

 

6.4.5 It is the case of the Defendant that the contract between the Claimant and the Defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the Claimant and the Defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the Claimant and the Defendant.

 

7. With reference to paragraph 9a, the Defendant's case is that there has been no deliberate concealment on its part. Mere silence is not deliberate concealment.

 

8. With reference to paragraph 9b, in order for the Claimant to invoke section 32(1)© of the Limitation Act 1980, his claim must be 'for relief from the consequences of a mistake'. This provision only applies where the mistake is an essential ingredient of the cause of the action. Moreover, it is implicit in section 32(1)© that the mistake must be that of the Claimant rather than the Defendant. Insofar as the Claimant requests the postponement of the limitation period by reference to a mistake on the part of the Defendant, such a submission fundamentally misunderstands section 32(1)©.

 

9. If, which is denied, the Claimant is entitled to the return of the amounts debited in respect of charges, the Defendant denies that the Claimant is entitled to claim interest at a rate of 29.69%.

 

10. Save as hereinbefore appears the Defendant joins issue with the Claimant on his 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: Lynsey Clare Burgoyne

 

Name of Defendants solicitor's firm: Cobbetts LLP, Ship Canal House, King Street, Manchester, M2 4WB (Ref: XXX/XXXXX.XXXX)

 

Signed

Defendant's Solicitor

 

Dated this 12th January 2007

 

Phew - marathon typing session over - need to take a break! Initial thoughts are that is doesn't seem as bad as it looks - and there are some nice juicy bits that I can reply to too

 

Cheers

 

Michael

[paulwlton]

I have the cases the bank are relying on and will post them.

 

I think you should be able to put together a good response to this defence.

 

Paul.

[mcuth]

Dear Sir

 

Our client: National Westminster Bank plc

 

We are instructed on behalf of the above named.

 

We enclose by way of service Defendant's Defence.

 

We confirm that we have filed a copy of the same with the Court. Would you please acknowledge receipt.

 

Yours faithfully

 

Cobbetts LLP

Enc

 

In response to this:

Cobbetts LLP

Ship Canal House

King Street

Manchester

M2 4WB

Dear Sir/Madam

Your ref: XXX/XXXXXX-XXXX

In the Swindon County Court

Claim Number 6SN05490

Thank you for your letter of 12th January 2007, received today.

I confirm receipt of the Defence as enclosed with your letter.

Yours faithfully,

{mcuth}

 

Note how I don't mention me v RBoS in the heading? That'll be the very first part of my Reply to Defence

 

Cheers

 

Michael

[chezt]

In response to this:

 

 

Note how I don't mention me v RBoS in the heading? That'll be the very first part of my Reply to Defence

 

Cheers

 

Michael

 

Very cunning ... I like where you are going with your master plan

[mcuth]

Very cunning ... I like where you are going with your master plan

 

Subtle eh?

Just starting my first draft of the reply to defence, am quite enjoying this actually

 

Cheers

 

Michael

[chezt]

Subtle eh?

Just starting my first draft of the reply to defence, am quite enjoying this actually

 

Cheers

 

Michael

 

Should be a good read!

[innocent]

If anyone can draft anything mcuth you can.....

 

Most of your drafts can end up in Hollywood as final scripts

 

As for your finales????

 

 

 

(I enjoy your letter writing too)

 

 

Innocent

[livelylad]

Subtle eh?

Just starting my first draft of the reply to defence, am quite enjoying this actually

 

Cheers

 

Michael

 

 

[happyolddog]

Mcuth or can I call you Michael, Just read through your whole case log. Keep up the fight its great. I wish you all the luck in the world. I know that the outcome of your case will be the starting point for many more, so hopfully it goes in your favour. I will be following very closley.

KICK THEIR [edit] MATE!!!

[peter201177]

Hi all, was just wanting to pick your brains for 2 secs, I am just about to send off initial request for repayment for the g\f. I have filled in Mindzai's excellent spreadsheet and am just wondering which pages I need to print off and include with the letter.

I'm guesing I need to only include the "Interest (Daily)" tab print off, is this correct.

Much appreciated and good luck mcuth

[chezt]

Hi all, was just wanting to pick your brains for 2 secs, I am just about to send off initial request for repayment for the g\f. I have filled in Mindzai's excellent spreadsheet and am just wondering which pages I need to print off and include with the letter.

I'm guesing I need to only include the "Interest (Daily)" tab print off, is this correct.

Much appreciated and good luck mcuth

 

Hi Peter - it depends what you are claiming ... if you are claiming back the charges & interest paid on them only then you will print the 'charges & interest' tab - if you are going for contractual interest then yes you will print the 'interest daily' tab

 

Remember tho that if you decide to go down the contractual route then if/when your claim goes to court - you CAN NOT claim S69 statutory interest on top of this ... ie it's one or the other.

 

Hope this helps n hope mcuth doesn't mind me popping on his thread to answer your Q!

 

Incidently, have you started your own thread to track your claim? If not then it's a good idea to do so & that way you can keep all your Q&A's in one place which is good to look back on your progress & may also be a help to others who may be following on the same path behind you!

 

Good luck with your claim

[mcuth]

Happyolddog - thanks, I'm hoping it'll work out well too

 

Peter - chezt has all the answers in that post

 

(and nah, chezt, I don't mind you dropping in to answer so succinctly )

 

Cheers

 

Michael

[chezt]

Peter - chezt has all the answers in that post

 

(and nah, chezt, I don't mind you dropping in to answer so succinctly )

 

Still watching mate!

[mcuth]

Received another letter from Cobbetts yesterday:

 

Dear Sir

 

Our client: Royal Bank of Scotland {mcuth: Oooh, have they got this right now?}

Claim no: 6SN05490

 

We refer to the above matter.

 

Thank you for the information attached to your Claim Form. Upon consideration of the schedule you provided we note that you set out charges incurred between 21 January 1999 and 1 December 2000. Under the Limitation Act 1980, you cannot bring a claim more than 6 years after the date on which the cause of action accrued. You issued your claim on15 December 2006, and you are therefore only legally entitled to claim between the periods 15 December 2000 to 15 December 2006. As such, you cannot claim for the charges incurred before 15 December 2000 which from your schedule total £2,420 plus interest.

 

In short, you are only entitled to claim for £50 (in respect of charges on 18 February 2002 and 17 May 2004) plus interest.

 

In any event, our client considers that your challenge to its charges would fail in Court. Our client believes that its charges are fair, reasonable and transparent. It considers that the amounts debited to your account have been applied strictly in accordance with your agreement with it and its published tariff. Our client is also committed to ensuring the transparency of the information that it gives to its customers about the operation of its products. As such, our client does not believe that your claim has any prospect of succeeding.

 

However, as a gesture of goodwill and strictly on the basis that our client rejects any liability to you, it is willing to offer you a goodwill payment of £95, being the £50 charged to your account, plus £14.80 interest, together with the £30 that would have been the correct Court Fee had you issued your claim correctly.

 

Acceptance by you of this goodwill payment will be in full and final settlement of your claim against our client and strictly on the basis that: -

 

1. you agree not to disclose to any third party the fact of, or any details relating to, this payment:

2. you write to the Court withdrawing your claim.

 

Whilst this letter is written without prejudice save as to costs, in the event that you decline this offer, we will seek to pay you this amount in any event and apply to the Court for summary judgement on the remainder of your claim based on the fact that you have no real prospect of succeeding on the remainder of the claim. We will also seek the costs of doing so. This offer will remain open for 7 days until Thursday 25 January 2007.

 

We look forward to hearing from you.

 

Yours faithfully

 

Cobbetts LLP

 

Interesting how they conveniently forget that their client has already offered £2711 previously..... Looking forward to drafting an appropriately scathing reply

 

Cheers

 

Michael

[HydraUK]

Watching with added interest now as the first bit of my claim is outside limitation too, schoolboy error, but I left it ride to see what would happen, hoping to fall back on some aspect of sec32.