Abbey's new "no breach" defence

[GaryH]

If the claim has been stayed then the only thing you can do is apply to have it lifted.

 

http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/108430-stays-info-guidance.html

[yourturntopay]

ABBEY DEFENCE

1. In this defence

1.1 References to paragraph numbers are, save where otherwise indicated references to paragraph numbers of the particular of claim.

1.2 The defendants account conditions (a copy of which is annexed herto as annex A) will be referred to as “the conditions”

1.3 References to an “unauthorised” overdraft are to an overdraft permitted by the defendant without prior application and arrangement under clause 6.1 of the conditions

2 It is admitted that the claimant held the following account with the defendant, account number to be particularised (“The Account”). It is admitted and averred that the contractual provisions between the claimant and they defendant in relation to the account are set out in the conditions.

3 It is denied that those charges payable and that rate of interest applicable upon a customer going into unauthorised overdraft or exceeding an authorised overdraft constitute a penalty at common law. It is denied that those charges and that interest are payable on a breech of contract.

4 The true position is as follows:

4.1 Each and every payment instruction presented by or on behalf of the claimant to the defendant which would, if honoured, take the Account into unauthorised overdraft or beyond an authorised overdraft, constituted a request (in law, an offer) by the claimant to the defendant for a loan of the requisite amount on the terms set out in the conditions (alternatively on the defendants usual terms as to such overdrafts as at the date of the payment instruction in question)

4.2 The defendant was free to accept or reject each such request.

4.3 If the defendant honoured the payment instruction in question, the defendant thereby accepted the claimants offer.

4.4 Accordingly, the claimant became bound to pay interest and charges in relation to that loan at the stipulated rate.

4.5 That liability does not, at common law, constitute a penalty.

5 It is denied (if it be alleged) that, on proper construction, clause 6.3 of the conditions provides that a customer going into unauthorised overdraft or exceeding overdraft constitutes a breech of contract (for which the customer is liable to pay damages). It is averred that clause 6.3 of the Conditions operates as a trigger to bring into effect certain other provisions of the conditions.

6 It is denied that those charges payable upon the defendants dishonouring a payment instruction presented by the claimant by reason of the state of the account (namely that had the defendant honoured the instruction in questions, it would have taken the account into unauthorised overdraft or beyond an authorised overdraft) constitute a penalty at common law. Such charges are not payable on a breech of contract. They are, by clause 6.4 of the conditions a fee.

7 The defendant understands the claimants allegation to be that the fees payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not binding on the claimant by reason of regulation 8(1) of the Unfair Terms in Consumer Contract Regulations 1999 (the 1999 regulations)

8 Regulation 6(2) of the 1999 regulations provides that:

“in so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate –

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange”

9 The fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instruction are: (i) set out in plain intelligible language in the conditions and (ii) amount to the “price or remuneration” in respect of that provision of such overdraft or such dishonouring.

10 Accordingly, by regulation 6(2) of the 199 Regulations, the provisions of the Conditions as to the fees and interest payable in respect of an unauthorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breech of contract by the claimant.

11 It is denied that paragraph 1(e) of Schedule 2 to the 1999 Regulations is applicable. As pleaded above, the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breech of contract by the claimant.

12 Alternatively, if (contrary to the defendant’s primary case pleaded above) provisions of the conditions as to the fees and interest payable in respect of unauthorised overdraft and an overdraft in excess of authorised overdraft and fees in fees in respect of the dishonouring of payment instructions fall to be assessed for fairness under of the 1999 regulations, the defendant’s case is as follows:

(a) Regulation 5(1) pf the 1999 Regulations provides that:

“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’ right and obligations arising under the contract, to the detriment of the consumer”

(b) Regulation 6(1) of the 1999 Regulations provides (so far as presently relevant) that:

“….the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract…”

© It is denied that the Conditions breech that provision of the 1999 regulations. In particular (i) the Defendant’s charges and interest rates are published and provided to its customers from time to time and are expressed in clear language; (ii) the incurring of charges and interest in respect of an unauthorised overdraft and an overdraft beyond that agreed and fees in respect of the dishonouring of payment instruction is

A result of the claimant’s actions and (iii) the defendant’s charges and interest rates are not, in the circumstances, excessive in relation to the value of the services provided in relation thereto.

(d) The defendant reserves the right to plead further in this regard on the provision of full and proper particulars of the basis on which the claimant contends that the conditions contravene regulation 5(1) of the 1999 Regulations.

13 Section 15(1) of the 1982 Act provides that:

“Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract, or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge”.

14 By section 12(1)n of the 1982 Act, “contract for the supply of a service” is defined as “a contract under which a person…..agrees to carry out a service”

15 Save as expressly pleased to above, each and every allegation contained in the particulars of Claim is denied as if the same were individually traversed.

The defendant believes that the facts stated in this defence are true.

I am duly authorised by the defendant to sign this statement

Vivian Roux

Paralegal

10 August 2007

[yourturntopay]

This is the PoC i used

 

The Claimant holds acc no XXXXXXX with Defendant. From Dec 2002 to March 2005. Defendant debited charges iro of purported breaches of contract. Defendant has been supplied with list of charges and interest.

Claimant contends: a-The charges exceed the Defendant's losses caused by such breaches; b-The Term permitting the Defendant to levy such charges is unenforceable under Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. c-If charges are a fee for a service, then they must be reasonable under

S.15 of Supply of Goods and Services Act 1982. Section 32(b). Claimant claims: a- Return of amounts debited of £996; b- Interest of 28.7% - £3948.28 as per Defendant's rate of interest; c-Interest under sec 69 of the County Courts Act 1984 at the rate of 8% up to the date of judgment

or earlier payment at a daily rate of £1.09 All default notices to be removed. Costs allowed by theCourt.

[kev2b3]

Hi Gary, unable to work my scanner, so I will write abbeys defence down for you word for word and I hope it will help. If you would like a copy I can scan one and send it to you at the end of the week. Kev.

IN THE BRIDGEND COUNTY COURT Claim No: 7BG 00981

BETWEEN

xxxxxxxxxxxxx Claimant

And

ABBEY NATIONAL PLC Defendant

DEFENCE

• Save as is specifically admitted in this defence, the defendant denies each and every allegation set out in the particulars of claim.
  
• it is admitted that the claimant has a bank account with the defendant, account number to be particularised (”account “)
  
• at all times the account has been subject to the applicable terms and conditions (“ conditions “), which form part of the contract between the claimant and the defendant and t which the claimant agreed when he opened the account. The defendant will refer to the following extracts:

(1) “You can apply for an overdraft on your account. If we give you an overdraft we will tell you your limits and the interest rate applicable.”

(2) “An unauthorised overdraft occurs if without or agreement you overdraw your account or exceed the limit of an overdraft which we have agreed.”

(3) “If you have an unauthorised overdraft, you will be charged fees as set out in our tariff of charges or specified to you and these may include fees for transactions we are unable to process due to lack of funds in your account.”

• Throughout the period that he has had the account, the claimant received a number of copies of the conditions and of the said tariff of charges as they were amended and updated (though there has been no material amendment t the conditions extracted in paragraphs 3(1), (2) and (3) above).
  
• Any overdraft facility on the account was (and is) subject to the conditions .
  
• The claimant has overdrawn or exceeded authorised limits on the account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contact and the claimant become liable to pay fees to the defendant in accordance with its tariff of charges applicable at the relevant time. In accordance with the conditions, such fees were debited to the account.
  
• In view of the fact and matters referred to in paragraph 3,4,5 and 6 above, the defendant denies that the amount of £xxxx.xx or any other, amount was unlawfully debited to the account and the claimants claim for the repayment is therefore denied.
  
• The claimant’s contention that the said fees are unenforceable and/or are “ penalty charges “ is denied. The fees reflect and are proportionate to the defendants administrative expenses incurred due to the claimant breach of contract and are a genuine pre- estimate of the damage suffered by the defendant.
  
• Further or in the alternative, even if the said fees are not proportionate to the defendants administrative incurred (which is denied) the claimant remains liable to pay such fees as may be found to be proportionate and the claimant is not entitled to claim repayment of the full amount of each charge made to to account.
  
• The defendant denies that the claimant is entitled to claim interest of any amount.
  
• No admissions are made as to the amounts claimed by the claimant and the claimant is put to strict proof of the same.

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: Vivian Roux

of Abbey National pic

Signed position or office held: Paralegal

Date 31 July 2007

[Redrob]

I also received the new defence on 3 August, I typed it all out word for word in my thread here, post #28.

 

Encouraged by the idea of applying to have the defence struck out, but do I need a copy of the Terms and conditions from when I opened the account though? Account opened 1 September 2001, and they are not in the archive.

 

Can't seem to find any T&C's on Abbeys web site at all, let alone old ones. I have asked in the branch, they took my account number and promised to send them, but still no luck. Can I just state the spefic clauses referred to in post one without actually including a copy?

 

I alsoi have the new T&C's, accompanying letter is dated 24 July, but I actually received it 9 August. Do you still need a copy?

[GaryH]

Redrob,

 

You need to include the T&C's but they were identical from around 1999 - 2007, so just one copy of the terms from anytime during the period in which the charges were levied is fine.

 

Here -

http://www.consumeractiongroup.co.uk/forum/abbey-bank/91707-archives-abbeys-web-pages.html

 

I have the new T&C's now, but thanks.

[Redrob]

OK thanks, thought I would need them. If Abbey do eventually send me the ones from 2001, do you want a copy? was it you asking in another thread for all old T&C's?

[GaryH]

Yes please, we want all the T&C's we can lay our hands on - although to be honest Abbey is not quite so important now. We have a fairly comprehensive selection of theirs and they stayed the same for years.

[Leecabs]

So Redrob yours is a new defence yes?

 

I have the old one posted by Kev2b3 above so wont be able to do much about that:)

[Robdblynd]

I have T&C from December 2001.

 

Can't scan them to pdf cos haven't a clue how but I can scan and email them to anyone who sends me their email address.

 

Any tech minded person want to PM me on how to do pdf I'll gladly have a go, but as computers and I are only on nodding terms most of the time I would need details instructions on how to do it. :o

[bp]

I received their new defence dated the 11th Aug , mine only has 12 sections, i still have a copy of their prev defence in April so will be including that as well, i've closed my acc so won't be getting a copy of their new T&Cs.

[lucyk]

thanks GaryH...for the reply...unfortunately I just recieved notice that the defence is stayed pending judgement in the OFT test case....

 

spose now I have to decide whether to apply for the stay to be set aside...

 

does anyone think i would be successful if I was to apply for this?

[sapphireeyes]

Hello,

 

I know I'm getting a little side tracked here...but I've just recieved a copy there new defence. I'm intrigued by section 4.2 The defendent was free to accept or reject each request. i.e the request that would take me into overdrawn.

 

Have I got the arguement here... in the fact they enforced charges on me..forcibly taking them from my account refusing point blank my offer of tryng to negotiate a payment plan. Therefore putting me in to a continuous cycle of more charges each month and unable to pay my other bills!!! WHich went on for several months.

 

AX

[Leecabs]

Seems like you have Gary H?

[elliejay39]

Hi,

Just received the new defence this morning (word for word the same as yourturntopay's) No mention of a stay yet (apart from the standard letter from Abbey telling me they will be appplying) although according to Icy's thread my local court are definitely staying ALL cases.

If i go for an application for defence to be struck out, is it better to opt for hearing or not? I'm a bit nattered as I submitted N1 just before new POC's were composed so used a variation of the old, shorter ones although i did file in person not with MCOL.

 

 

Thanks in advance

 

Ellie

[GaryH]

Try for it without a hearing if you like, although its likely you'll be called to one anyway.

[HarryFour]

Today I received two letters from Abbey. One was the new 'service charge' defence with what appears to be the more common 15 para defence. Statement of truth signed by 'Vivian Roux' Paralegal.

 

The other letter was what appears to be a standard letter about the general situation with the OFT case along with a FOS consumer fact sheet.

 

I am going to ring the court today to see if this case is being stayed or not.

 

I have a couple of questions...

1. I have read elsewhere that CPR Part 18 requests are not valid in relation to the new 'service charge' defence. Why ?

2. My claim (which I'm doing on behalf of my Mum) relates only to the period 2001-present. My Mum is unsure when the account was 1st opens, but it well before 2001. Do I need to know so I can include a copy of the original T&C's from then, or will T&C's for the time-frame in question suffice ? i.e 2001-on.

 

Many thanks

Harryfour

[yourturntopay]

I received a new defence from Abbey this morning. How do i respond to it - the claim was field via MCOL

 

1 On 27 July 2007 a test case was issued in the high court between the OFT and a number of banks (Namely Abbey Nationals, Barclays Bankplc, Clydesdale Bank plc, HBOS plc, HSBC Bank plc, LLoyds TSB bank plc, Nationwide Building Society, and the Royal Bank of Scotland Group plc (which owns National Westmister Bank plc and The Royal Bank of Scotland plc) in relation to the recovery by personal current account customers of charges paid by them to the banks in circumstances where they seek to make payements for which they have no available funds, commonly known as unarranged overdraft charges.

 

 

2 Pursuant to the Order of District Judge Murdoch dated 13th August 2007, the defendant request that this claim is stayed until further Order pending the final decision in the test case.

 

 

3 The defendant intends to defend this claim and we will file a full defence within 28 days of the stay of proceedings expiring.

 

4 In the meantime, it is denied that the claimant is entitled to the relief claimed or any relief whetrher as pleaded or at all.

[Redrob]

I'm seriously considering applying for Abbey's defence to be struck out as suggested in the fist post, but you say...

 

If you are going to use this application, you do so at your own risk.

 

Other than the fee, what do I stand to lose? Whats the potential downside?

[GaryH]

Same as any template really - you'll always see a disclaimer somewhere or other on nearly everything on this site, or in peoples sigs. An application to strike out a defence is obviously an aggressive strategy, hence the disclaimer.

 

That said, I firmly believe its the right course of action to take, or else I would never have posted it, and incidently, I'm printing off the same application for my claim as we speak!

 

If the claim is small claims track then I cannot foresee any risk other than possibly losing the fee. If its above 5k and likely to go fast track then if you were unsuccessful you could end up paying the other sides costs.

[Redrob]

Good, thats pretty much what I expected, just wanted to be sure. I've now managed to get some old T&C's, not quite from when I opened the account but they'll do, so I'll get this done and in the post Tuesday.

 

Just have to make sure I don't get my hopes up too much. It seems to me like a very good argument, and the defence seems to bear no relevance to the T&C's the account is operated under, even now as the new T&C's havent come into effect yet.

[elliejay39]

Do we need to include a precis of the old defence? (as suggested in the evidence section of your template Gary) If so whats the best way of going about that?

 

Ellie

[GaryH]

Preferably, yes. I have a copy, but its somebody elses with a name and claim number on the front so I'll have to get permission before I pass it on. In the meantime see if anyone else on the forum has a copy they can send you.

[BANKAVENGER]

hi,

 

i'm slightly confused at the moment feel like my head is going to explode!!!!

i recieved a copy of abbeys new defence dated 6th aug statement of truth is signed by willem basson (paralegal).

 

i have just submitted my AQ on friday now waiting to find out what the court is going to do. Dont know whether to applie to get there defence stuck off. My claim is well over 5K and dont think i could risk having to pay there fee's also do i still email my CPR 18 or not.

 

Any help is much appreciated

thanks

claire

[GaryH]

I don't think I could advise you with total confidence to apply to strike out if your claim is fast track material as in the event you were unsuccessful you'd be looking at costs. Its a small risk, IMHO, as I think - a) Abbey would not defend (they'd probably settle instead), b) that even if they did the application would still be successful - but their is still a risk.

 

No - a part 18 as per the other sticky thread is not valid if you have the new defence, as it relates specifically to the old one. The new defence does not admit a breach and contend the charges are a reasonable pre-estimate, as the old one did. This is presumably why they changed the defence, so as to avoid the glaringly obvious need for disclosure of information relating to the "administrative expenses" their charges were *allegedly* proportionate to.

 

I'll draft another part 18 relevant to the new defence, and there is also something else you can do to harrass them. Watch this space.