Cobbetts counterclaim not seen this before !!!

[gaz2006]

Im helping a friend with his claim against Nat West . after putting claim in court Cobbetts for Nasty Westy have counterclaimed for same amount as claim stating "a quantum meruit or restitutionary award in an amount equal to the total of the payments which a reasonable bank for the supply of an inegrated bundle of current account services and or the supply of an unarranged borrowing services or an amount calculated in such other manner as the court may think just "
Not seen this before ie counterclaim exact amount as claim which is in thousands and they ask for a stay as well comments please ... jus to add to confusion its a business claim anyway so they are out of order re current account services etc
regards G

[natweststaffmember]

Re: Cobbetts counterclaim not seen this before !!!

is it a business or personal account?

[gaz2006]

Re: Cobbetts counterclaim not seen this before !!!

its a business account but cobbets treated it as a personal !!! so their counterclaim doesnt make sense anyway regards G

[Amethyst]

Re: Cobbetts counterclaim not seen this before !!!

I've seen these a few times, and as you say usually on Personal Accounts which are being stayed.

If its a business claim then in your friends eyes its good they are treating it as a personal claim because he would need to argue it was primarily personal and thus UTCCR applies to get anywhere with the claim. If he was sticking to penalty charges on a business claim he could run into problems.

you wouldnt happen to know on what basis he has claimed on the business account or what his Particulars of claim were ?

I wouldnt worry about the counter claim I dont think these quantum meruitum will get very far, they have to prove their costs which they won't do.

[gaz2006]

Re: Cobbetts counterclaim not seen this before !!!

I've seen these a few times, and as you say usually on Personal Accounts which are being stayed.

If its a business claim then in your friends eyes its good they are treating it as a personal claim because he would need to argue it was primarily personal and thus UTCCR applies to get anywhere with the claim. If he was sticking to penalty charges on a business claim he could run into problems.

you wouldnt happen to know on what basis he has claimed on the business account or what his Particulars of claim were ?

I wouldnt worry about the counter claim I dont think these quantum meruitum will get very far, they have to prove their costs which they won't do.

iVE HELPED WITH CLAIM IT IS NAT WEST IN PERIOD OF 1980S ETC SO ITS LIMITATION ACT ISSUE SECTION S32 and as Im sure you know Judge Smith ruled Nat West personal terms and conditions could be ruled as penalty charges
this may follow through to the business terms etc Nasty Westy made offer of 40% of claim which was declined hence issuing in court and there now counterclaim ,claim ie his stated penalty charges and not representing true costs and unfair please feel free to ask anything else regards Gaz

[Amethyst]

Re: Cobbetts counterclaim not seen this before !!!

[QUOTE]as Im sure you know Judge Smith ruled Nat West personal terms and conditions could be ruled as penalty charges[/QUTE] Only terms from 2001-2003.

Previous terms havent been tested, nor limitations. On what basis have they asked for the stay - issues in the test case ? also - business account - what kind? ltd/sole - size of business etc ?

[gaz2006]

Re: Cobbetts counterclaim not seen this before !!!

as Im sure you know Judge Smith ruled Nat West personal terms and conditions could be ruled as penalty charges Only terms from 2001-2003.

Previous terms havent been tested, nor limitations. On what basis have they asked for the stay - issues in the test case ? also - business account - what kind? ltd/sole - size of business etc ?

ANSWER
Sole trader SMALL BUSINESS
Limitation Act has been tested before
stay applied for as has bearing on fairness etc even though its business
Regards Gaz

[Amethyst]

Re: Cobbetts counterclaim not seen this before !!!

Limitations will be sorted following the test case in the second phase.

Can you tell us what his POC was based on - UTCCR or common law penalties ?

[gaz2006]

Re: Cobbetts counterclaim not seen this before !!!

Penalties and not being the true cost of mainataining account ie cost of letter cost of bounced cheque etc Regards Gaz

[Amethyst]

Re: Cobbetts counterclaim not seen this before !!!

Okay, I would go along with the stay - pushing the case forward on penalties at this time could end up with a strike out of the claim and costs against as we have seen in a number of Barclays business cases.

As a sole trader I would be arguing that if the charges are found not to be capable of being penal and that the read across from the Smiths judgment applies (and remember 2001-2003 havent been found to be penal only capable of being penal so still need assessing) I would expect pre 2001 terms to be similar in nature - but its quiote a precise science as you'll know from the teeny difference between 2003 and 2004 terms which were judged not capable of being penal - so you need to look at the terms from all the years and apply Smiths process of determination to them, anyway I'd argue in the alternative that the UTCCR applies to the account so they can be unfair in that way - but of course this is the subject of the test case so would be subject to a stay.....sooooooo I think the bank have done your friend a favour ?

what do you think ?

[gaz2006]

Re: Cobbetts counterclaim not seen this before !!!

Okay, I would go along with the stay - pushing the case forward on penalties at this time could end up with a strike out of the claim and costs against as we have seen in a number of Barclays business cases.

As a sole trader I would be arguing that if the charges are found not to be capable of being penal and that the read across from the Smiths judgment applies (and remember 2001-2003 havent been found to be penal only capable of being penal so still need assessing) I would expect pre 2001 terms to be similar in nature - but its quiote a precise science as you'll know from the teeny difference between 2003 and 2004 terms which were judged not capable of being penal - so you need to look at the terms from all the years and apply Smiths process of determination to them, anyway I'd argue in the alternative that the UTCCR applies to the account so they can be unfair in that way - but of course this is the subject of the test case so would be subject to a stay.....sooooooo I think the bank have done your friend a favour ?

what do you think ?

Whats your views now as OFT case lost does that mean Smiths assumption Nat West charges may be penal does that stand or not ? If it doesnt and as this is business claim and UTCCR cant be used the if its not penalty what other route is there to claim ?
Can it be done on fairness differnet clause tha OFT used or anything else ?
I was helping 2 friends both Nat West business one is stayed other is not and have received allocation questionaire to fill in for him and fo rhim to sign etc
they were offered before OFT decision around 35% of claim looking back may have been better to settle as 35% better than nothing ......where do they go from here ? Regards gaz

[Kafka]

Re: Cobbetts counterclaim not seen this before !!!

gaz

There are a few comments to make about this.

Smith's findings on penalties were not appealed by the OFT and so they are unaffected by the Supreme Court judgment.

The SC judgment only relates to sec6 of the UTCCR, so that doesn't preclude using other aspects of UTCCR, if you were able to argue the joint personal/business use as mentioned above. I haven't seen this tried myself.

There is another claim for NatWest business running on another forum that is having some success in showing a way forward. In view of the new spirit of collaboration across the forums, perhaps the time is right to pool thoughts on business accounts. NatWest have the additional angle of the penal issue so may be worth focusing on.

I myself have a NatWest one for 1992-2005 LBAd but never filed because I expected it would be wrongly stayed during the test case. If there is a plan to pool resources for NatWest business claims then you can count me in. We have recently discussed at Penalty Charges taking a closer look at business accounts in light of the SC judgment and new thinking, so this fits nicely.

If you want to see my draft POC for ideas I will be happy to send this to you off-forum :typing:

I suggest this might be better moved to the Business Claims Forum too?

[jax007]

Re: Cobbetts counterclaim not seen this before !!!

Hi Kafka

I have a 'shelved' business claim for my son-in-law which I would like to resurrect - we did have an offer but no interest and from memory they did not offer ALL charges back so we rejected it.

It would be good to start again ... although typing this the thought has just occurred to me that the account may have only been opened in 2003 - need to double-check.

Not sure what will happen with years outside of 01-03???

Ames has put up some advice/opinion in the Test case thread.

jaxx

[jax007]

Re: Cobbetts counterclaim not seen this before !!!

Have checked and these charges run from July 2002 to present time

[Kafka]

Re: Cobbetts counterclaim not seen this before !!!

I was offered a similar deal by NatWest in 2008 - about 60% of the charges with no interest and no quibble about how far back they went.

Which bank are you referring to?
Barclays is the one that has been successful getting claims dismissed.