Nat West Start of Court Claim

[jax007]

Have attached spreadsheet (again for SiL) and obviously bank not playing ball ... usual stuff about waiting till outcome of Test Case, etc so want to get claim in system as has been advocated on forum.

Don't have a problem with that but you will note that although the charges are <£5K with the CI total comes to >£11K.

Would this go in Small Claims? I know Budgie has reasoning on this.

Any help would be appreciated ... also what to put in POC?

Thanx
jax

[Amethyst]

Re: Nat West Start of Court Claim

It would most likely be on fast track - it is only stat court interest you can discount in terms of track. But it is possible it could go in small claims - there is still the risk of costs there too if they deem you vexatious.

But yes the spreadsheet looks okay - am sure Bud will look over it.

Is the rate their standard unauthorised overdraft rate ?

We need to work on a sensible POC - have a look at the one Tom used for derochelle in lloyds case - the POC should be concise - you don't need to go into the whys and wherefores of CI at this stage.

[jax007]

Re: Nat West Start of Court Claim

Thanks Ame

Have had a scout through De's thread - is the POC you are referring to Post #12 by Budgie?

jax
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there is still the risk of costs there too if they deem you vexatious.

Is this likely?

jax

[Amethyst]

Re: Nat West Start of Court Claim

No not that one thats De's original POC.



No its not highly likely but it is a possibility you should remain aware of.

Will sort out a POC for you.

[Amethyst]

Re: Nat West Start of Court Claim

Here a good basis to start from:

By an Agreement dating from approximately 1997 (“the Agreement”), the Claimant opened a bank account (“the Account”) with the Defendant (“the Bank”).
The Account is a current account, under which, at all material times, in substance:

the bank agreed to hold monies deposited by or for the Claimant and to make payments to and on behalf of the Claimant;

in return, the Bank was entitled to the use of the monies so deposited and to be paid interest on monies borrowed by the Claimant.

At all material times the Account has been operated by the Bank on the basis that the Account was subject to the Bank’s standard terms and conditions (“the Relevant Terms”).
The Bank has applied a number of charges or fees (“the Relevant Charges”) to the Account following a request or instruction from the Claimant to make a payment from the Account for which the necessary funds were not available. A table of the Relevant Charges can be found in Schedule 1, annexed hereto. Letters and statements of the Account will be tendered as evidence of those charges.

Penalty Charges

The Relevant Charges were payable in respect of Relevant Instructions that were issued by the Claimant in breach of the Agreement.
The Amount of the Relevant Charges exceeded any genuine pre-estimate of the damage which would be suffered by the Bank in dealing with an unauthorized overdraft caused by a Relevant Instruction.

In the premises the Relevant Charges are punitive in nature, amount to a penalty at common law, and are therefore unenforceable.

Unfair Terms

Further, or alternatively, if the Relevant Terms (as varied) are found to be incorporated into the Agreement, it is averred that the Relevant Charges are “unfair” under the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”). The Relevant Charges are subject to the requirement of fairness under the Regulations; see Office of Fair Trading v. Abbey [2008] EWHC 875 (Comm) (“the Test Case”). The Claimant was at all material times a “consumer” within the Regulations.

It is averred that the Relevant Terms of the Agreement that provide for the Relevant Charges give rise to a significant imbalance in the parties' rights and obligations, to the detriment of the Claimant as a consumer, thereby rendering the Relevant Terms “unfair” under the Regulations.

Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the Relevant Terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision of the Relevant Terms (if incorporated):

The Relevant Charges are disproportionate by reference to the value of the individual instructions which incurred those charges, contrary to Paragraph 1(e) of Schedule 1 to the Regulations, or by analogy to Paragraph 1(e) of that Schedule.

The Relevant Charges exceeded the costs which the Bank could have been expected to incur in dealing with unauthorized borrowing and/or an unpaid item, contrary to Paragraph 1(e) of Schedule 1 to the Regulations, or by analogy to Paragraph 1(e) of that Schedule.

The Bank, during submissions in the course of the Test Case, has stated that the Relevant Charges are reflective of the costs of operating a “free-if-in-credit” model of banking. If this is correct, the Relevant Charges are a cross-subsidy by the Claimant of the costs of banking by other consumers.

The Relevant Charges could be very much higher than the amount of the Unauthorised Overdraft.

The Relevant Charges could be imposed repeatedly, with a higher rate of interest imposed on top.

The cumulative effect of the Relevant Charges and higher rates of interest would be to increase the debt burden on the customer, and make it more likely that further Relevant Charges and interest would be imposed on the Account.

The Relevant Charges would penalise those who had little or no credit. The customer who incurred Charges was likely to be the least able to afford to pay the charge.

In the premises, the effect of the Relevant Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Bank in a way which was inequitable.

By reason of the said matters the Relevant Terms were not binding under regulation 8 of the Regulations.

The Bank wrongly debited the Account with Relevant Charges totaling £1,885 between 3rd September 2001 and 20 August 2008. Particulars appear in Schedule 1.

On 23rd July 2007 the Claimant demanded repayment of the sums wrongly debited.

The Bank has not repaid the said sums or any of them.

The Claimant therefore claims £1,885, being the total of the Relevant Charges imposed on the Account, as set out in Schedule 1.

INTEREST

And the Claimant claims interest of 29.8% per annum, from the dates of the charges set out in Schedule 1 to 20th August 2008, which is the contractual rate of interest for unauthorised borrowing under the Agreement, being the sum of £1,761.87, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.54.

Alternatively, the Claimant claims such rate of interest as the Court thinks fit, in its equitable jurisdiction, to impose.


Statement of Truth
I believe that the facts stated in these particulars of claim and Schedule 1, annexed hereto, are true to the best of my knowledge.

[jax007]

Re: Nat West Start of Court Claim

Ame thank you so much ... what a little treasure you are :hug:

I assume as you say it's a "basis to start from" there is more to come??

jax
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Oops! Ames ... have just read the details in the POC and I think you've mixed THIS post up with the other one!!

This is personal account and charges are around £4900 and CI around £6K (total claim £11K)

The details in the POC you have posted above I believe relate to the Business Account (ie the T/A one).

If you recall I was asking whether the personal account would be small claims or fast track and we were hoping Budgie might comment

[Budgie]

Re: Nat West Start of Court Claim

Hi Jax,

I will have a look at all your claims tonight / tomorrow and post something up on each thread.

I am totally overloaded at the moment. The POC that Ame has posted can be adapted for either your business claim or the personal claim so have a play around with it in the meantime. I would propose to add a paragraph just covering Sempra in very minute detail ( just so that it is mentioned in your POC ).

There are also a few other little possible additions following the issue of the OFT's unfair terms guidelines yesterday. so please give me a bit of time to ponder these.

Budgie xx

[jax007]

Re: Nat West Start of Court Claim

Thanx hun:hug:

I appreciate how busy you must be and am really grateful for any help. I know you're helping loads of peeps as well as dealing with your own claims.

jax

[Amethyst]

Re: Nat West Start of Court Claim

Aye its just a place to start from Jax. You need to take out the lloyds specific stuff (lack of terms).

If you have a work on it then we can make any additions/amendments to it once you have your claim info in there.

Compound interest isn't at all proven on current accounts but compensatory payments are discussed by the FSA in the waiver - hence asking for it that way - and then go in with sempra at a later stage.

Tom Brennan drafted this and is quite confident with it.

[jax007]

Re: Nat West Start of Court Claim

OK Ames will edit POC to include correct charges and CI and post up for approval.

The figures in this one equate to £4887 in charges and £6785.36 in CI making a total of £11,672.36 to 8 July 2008 which is when we sent original request for refund. Charges are up to and including 15 January 2008.

One of my questions was whether this would go into small claims or fast track? Or do we just send in POC and see where it gets allocated?

What figure do I base the court fee on ... the charges or the total??

The reason I don't want to add in any more charges at this point (if there are any and which would be after 8 July anyway) is because they would almost definitely cross the £5K threshold and obviously that would definitely send them to fast track.

Perhaps Budgie can advise me here?

Will attempt the POC anyway ... should I add in Sempra too?

jax

[Amethyst]

Re: Nat West Start of Court Claim

Update the spreadie to the current date using the LB spreadsheet.

It would probably go fast track but yes submit POC and see where its allocated...for CI you need to include the interest in the total for the court fees, you should also include all charges to date.

Make sure you are aware of the costs of the claim - including hearing fees, allocation fees etc. You can find all these on the HMCS site. You are liable to be stayed so you may be out of that money for a long period.

Your alternative is to go through FOS.

Have a go at the POC and post up I'm sure Bud will help you fine tune things.