askl - Natwest

[Amethyst]

Re: askl - Natwest

I would like to amend by claim and counterclaim primarily because of the information received from the claimant since my particulars of defence was submitted in Decmber '08.

What was this?

To amend defence and counterclaim would be form N244 application.

[askl]

Re: askl - Natwest

Thanks,

I applied for strike out in August, but have instead been given a hearing date to determine the strike-out.
A single hearing will be held to consider my strike out of the claim, and the claimants request for strike out of my defence and counterclaim.

I would like to amend by claim and counterclaim primarily because of the information received from the claimant since my particulars of defence was submitted in Decmber '08.

Can I? Is there a procedure I have to follow, e.g. court request?

[Amethyst]

Re: askl - Natwest

Amethyst,

Thanks for all your help. I recently learned from NatWest that it submitted the same Second Witness Statment twice (once by fax on the due date, once by DX) - see above for the words; 16th August 2009, 13:40:PM.

They have made three errors in these statements in;
1) disobeying court orders to explain the "method of calculation" of all charges,
2) understating the Bank Charges twice by £40 in total,
3) excluding the cumulative effective of interest in their calculation of interest on the Bank Charges,
The Claim excluding Bank Charges and Interest thereon would have been just £70.
This £70 is also disputed as it is made up of the incorrectly applied 29.5% penalty interest.

Okay so apply to the court for a strike for disobeying the order for a third time ? pointing out the other errors too? aka Legal Beagles

The Judge has already shown he doesnt accept the breakdown as being 300 x £38 charges and that he wants what the £38 is made up of. SO if they have only done that again I don't think you have a problem.

[Amethyst]

Re: askl - Natwest

So have they entered the same that they entered previously that the judge said didn't comply with his order ?

[askl]

Re: askl - Natwest

Amethyst,

Thanks for all your help. I recently learned from NatWest that it submitted the same Second Witness Statment twice (once by fax on the due date, once by DX) - see above for the words; 16th August 2009, 13:40:PM.

They have made three errors in these statements in;
1) disobeying court orders to explain the "method of calculation" of all charges,
2) understating the Bank Charges twice by £40 in total,
3) excluding the cumulative effective of interest in their calculation of interest on the Bank Charges,
The Claim excluding Bank Charges and Interest thereon would have been just £70.
This £70 is also disputed as it is made up of the incorrectly applied 29.5% penalty interest.

[Amethyst]

Re: askl - Natwest

Firstly, Did you get copies of Natwests submissions from the court ? Really would need to see those or type them up.

[askl]

Re: askl - Natwest

[quote=Amethyst;120431]
I, in all honesty, can't see your counterclaim suceeding, although I can see the claim by Natwest being struck out for thrice refusing to answer the courts order and you being awarded costs (so hope you have a schedule for LIP costs worked out).[quote]



Can I change my counterclaim at this stage - after the Claimant's amended witness statement and 6 weeks before a hearing where we both want to strike out each other's claim?
I originally counterclaimed for loss of my business. I made £16k profit in the last year and would have continued increasing profits, but because cheques were bounced when they shouldn't have been, I lost key suppliers. But you and other's suggest that this wont stand - presumably because it should be the company that claims this and as there is no company it would have had to have been the liquidator.

--------------

As a minimum I would like some compensation for NatWest's harassment NB;


1) Over the size of its claim compared to the disputed sum;

a) The dispute is over £4k worth of bank charges (I even made a part 36 offer to settle the disputed amount in full, plus interest at base - which was rejected).
b) During the time of our dispute to the claim in '07, the bank has charged me £24k interest on these charges at the excess APR of 33% pa.
c) It claims interest since '07 currently standing at an additional £33k.
d) Plus it asked for costs. It estimates the legal fees will be over £20k.

========
e) Thus the bank is asking the judge for me to pay it over £80k because of a disagreement over £4k worth of its charges. That in itself would appear to be an abuse of the Bank's power and an abuse of Tax Payer's funds.


2) During the dispute over payment of these £4k bank charges, the bank tried harassing me by contacting neighbours, friends and my parents. Intimidating me by describing how it would have a team of three barristers against me at the trial etc, etc.....

[askl]

Re: askl - Natwest

hmmmm

and no they havent broken down the individual charges - more explained what each one is - hoepfully the judge will agree and strike them out.

How do their figures for the charges stack up against your figures ?

I've now had a chance to check the details. NatWest omitted one charge of £30 and understates another by £10.

Furthermore I've learnt from the court that NatWest submitted two responces to the Court Order one received on 4 and the other 2 days late on 6th August. They wouldn't give me details, so I've had to formally request a copy of their submissions.

[askl]

Re: askl - Natwest

Thanks

Re: askl - Natwest

You should file an Application Notice (N244) in order to request that the claim be struck out, not simply write a letter. Courts do not appreciate receiving letters for things that should be applied for correctly.

Use the Application Notice form and file an affidavit to draw the judge's attention to the facts in support of your application to have the claim struck out. There may be a hearing, or the judge may decide to strike out the claim if he or she considers that the claimant's defiance of several court orders is sufficient grounds to do so.

[Amethyst]

Re: askl - Natwest

1, The penalties should never have been charged because the account was within the guaranteed facility limits (this in itself should be enough), If you have written evidence of the second overdraft and guarantee being initially granted you should show those to the court as this does seem to be the crux of the case. Also not sure where the loan comes into it but I'm sure you are on top of it all.

And yep letters fine IMO.

[askl]

Re: askl - Natwest

Hi,

I'm calling the Court tomorrow to established if NatWest have indeed sent them the same thing they emailed me.
Assuming they have I'm preparing to write to the courts the following;


I request that the Claim be struck out for Charges made by the Claimant and all interest thereon as the Claimant has failed to follow the Court Order made on 7 July 2009 by District Judge Jacey;
“Unless the Claimant do by 4.00pm on Tuesday 04 August 2009 file and serve a Witness Statement explaining the method of calculation of all the individual charges made herein, the Claim for such charges and all interest there-on do stand struck out.”


Judge Jacey's order of July 2009 followed the Claimant's non-compliance with a similar order made by Judge Emanuel in January 2009, which in turn followed non-compliance with all three of Judge Zimmel's Orders of April, September and November 2008.

In the High Court of Justice on 21 January 2009 in case of the OFT v Abbey National and others, Mr Justice Andrew Smith states in paragraph 20 that "

I therefore remain unpersuaded that the Relevant Term in the NatWest 2001 conditions is not capable of being penal.
". As established in Dunlop Pneumatic v New Garage [1915] AC 79 along with Murray v. Leisure play [2005] EWCA Civ 963 if the charges Claimed exceed the cost to the Claimant they are penalties and unenforceable under common law.

The Claim is almost entirely composed of 2001 and 2000 charges and interest thereon.

Despite the clear need for the method of calculation of the charges being claimed from me and five court orders the Claimant fails to explain the method of calculating its charges.


In its Second Witness Statement on page 2 “Claim for charges and method of calculation” point 19 to 25, the Claimant does not explain the method of calculating its charges. Instead, it attaches a list of tariffs. Not only does this list of tariffs fail to explain the method of calculating the individual charges, but it appears to be dated 2008, is said to list current tariffs which differ considerably from the charges included in the claim.



The Claim should therefore exclude bank charges and plus interest totalling £11, 549.45 at 5 December 2003. The Claim should now read £70.98 on 5 December 2003.
In its Witness statement the Claimant understates the following;
a, bank charges by £30 on 30 June 2000 and £10 on 6 March 2001
b, in the interest calculation in point 28 it fails to include the cumulative effect of interest on its bank charges. The Claimant charges interest on the last working day of the month and accumulates this interest.



On 5th December 2003 the claim stood at £11,620.43. The corrected total bank charges is £3,852.66 and the interest charge should have been £7,696.79 at 5th December 2005 leaving a net claim of £70.98.
-----------------------


Any thoughts would be gratefully appreciated.

[askl]

Hi there, thanks for the quick response.






Although their previous Witness Statement contained errors - their new figures may well be correct (I will check).


The main points I have collected to date are - in draft;

1, The penalties should never have been charged because the account was within the guaranteed facility limits (this in itself should be enough),

2, The penalties are excessive in relation to the cost (Dunlop etc) - Mr Justice Andrew Smith's conclusion of Jan 09 re NatWest's 2001 charges are probably relevant because it appears that the Business Account wording and context are identical to the Personal Account that was found to be capable of being penal (if right I'm home and dry - I haven't yet had sight of the full T & C s for 2001)...............,

3, The Claimant has failed to provide the calculation of the penalty charges following four separate Court Orders,

4, The penalties are not backed-up in the Witness Statements by relevant Terms and Conditions - those used as justification were published after the event,

5, The penalty charges listed in the Witness Statements contain errors and contradictory totals,

6, In point 28 to its Witness Statement the Claimant fails to include the cumulative effect of interest on its bank charges. The Bank statements show that the Claimant charges interest monthly and accumulates this interest with the outstanding balance. Thus in point 28 the £3.08 charged daily from 29 February 2000 becomes £3.16 per day from 30 March 2001. By December 2003 this daily charge exceeds £9. The penalty charges and interest at 5th December would have been £11,372.88 had the Claimant correctly included accumulated interest.

7, The Claim is for £28,551 yet this figure is not detailed in the Witness Statements. Instead the Claimant appears to claim £11,620.43 in 5 December 2003 when it called up the guarantee.

8, Over £20,000 of the claim is made up of interest charged at the excess borrowing rate of 29.5% on the whole overdraft despite the guarantee being in place and despite most of the overdraft being created by the bank itself. In December 2001 the bank account was positive and Company effected bank transactions ceased. From then the Claimant created all of the unauthorised borrowings by transferring a monthly amount from the current account to the loan account. In addition to charging interest on these loan repayment arrears at the excess borrowing rate, the claimant charged referral fees of £12 per month and applied the simple interest resulting in an APR of up to 32.5%.

9, The excess borrowing rate is greater than the "Bank's Base rate from time to time plus 2% (whether before or after judgement)" provided for within the guarantee

[Amethyst]

Re: askl - Natwest

hmmmm

Claimant asks for judgment for the sum of £3,585.67 plus interest from 5th December 2003 to the date of judgment or sooner payment.

and no they havent broken down the individual charges - more explained what each one is - hoepfully the judge will agree and strike them out.

How do their figures for the charges stack up against your figures ?

[askl]

Re: askl - Natwest

Hi all,

NatWest have responded to the COURT ORDER FOR THE "method of calculation OF ALL CHARGES" - at least in an email to me. They don't provide the method, but either list the charges as they have done before or justify them with irrelevant Terms and Conditions (dated in 2002 and 2008 - after the period of the charges and after the period declared by Judge Andrew Smith as capable of being penalties).

---------------------------------------



SECOND WITNESS STATEMENT OF CLARE XXXXXX






I Clare XXXXXX, a Solicitor at Shoosmiths, Solicitors for the Claimant at the Lakes, Northampton NN4 7SH will state as follows:-


1. I am a Solicitor acting on behalf of the Claimant at the above address, I have care and conduct of this matter on behalf of the Claimant, under the supervision of my Principals. I make this Witness Statement believing the same to be true and accurate from information provided to me by the CMS Unsecured Defended Team. I believe that the information provided by the CMS Unsecured Defended Team is true and accurate.


2.Throughout this Witness Statement I refer to copy documents now shown to me in an Exhibit marked CP2. Unless otherwise stated the contents of these documents are true and accurate.


3. I make this Statement further to the order of District Judge Jacey dated 71h July 2009, which ordered that unless the Claimant file and serve a witness statement explaining the method of calculation of all the individual charges, the claim for charges and all interest thereon the claim would be struck out.




The Claim


4. For ease of reference I set out details of the claim below.


5. The Defendant signed a guarantee on 20 June 2000 guaranteeing to repay the debts of XXXXX ("the Company") on demand. The guarantee was limited to the sum of £14,000 plus interest and costs since demand.


6. The Company held the following accounts:


7. Account 605006 80531741 is a business current account opened on 27th September 1999 this
account is now known as account 605058 44099606 ("the Current Account"). The sums were
transferred to the new account number on 1st December 2003. Statements for the account from the
date of opening to 30 April 2008 are attached at pages 1 to 88.


8. As at 12th May 2000 the account had an agreed overdraft facility of £13,000 and interest of 10% was to apply, which was 4% above the base rate of 6%. The 29.5% was to apply to unauthorised borrowing. This is shown on the statement at page 12.


[9. - .14 similar to above]


15. Attached to this statement at pages 89 to 98 are the terms and conditions that applied to the
Current Accounts [NB attached T & Cs are dated August 2002 – whereas all excess borrowing charges were in 2000 or 2001]. Attached to this statement at pages 99 to 100 is the current standard charges tariff.


16. Account 605006 80586082 was a business loan account opened on 24 October 2000. ("The Loan Account") The loan was for the sum of £19,000 and was repayable in 20 monthly instalments of £997.64.


Claim for charges and method of calculation
17. No charges were applied on the Loan Account.


18. Charges totalling £3,878.41 were applied to the Current Account and a breakdown of all the charges that applied to the account from the date of opening are attached at pages 101 to 107.


19. The charges that applied are standard charges set by the bank and are shown on the charges tariff. The terms and conditions, page 92, state that account charges will be agreed and confirmed in writing with the customer and will be subject to review from time to time. The terms and conditions go on to say under the heading additional services and charges that the bank can charge for additional services provided and that these charges are subject to annual review.


20. The tariff, page 99, shows that the current monthly charge for having a business account is £6 per month. Page 100 shows the current charge for stopping a cheque is £10 and is £35 for cheques, direct debits and standing orders returned unpaid. It also states that a referral fee of £30 will be charged when items are paid that increase unarranged borrowing or leave the account with unarranged borrowing. The fees will have increased year on year.


21. The Company has been charged excess borrowing fees of £3.50 per day for every day that he was over his agreed limit. This was charged in accordance with the terms and conditions.


22. The Company has been charged cheque return and unpaid direct debit/standard order fees which were initially £27.50 per cheque/return but later increased to £30 per cheque. This fee is shown on the tariff at page 100.


23. Account charges are also shown on the account. These consist of the monthly maintenance charge of £3.50 for having the account together with any extra fees incurred for payments in and out and for cheques paid in. These fees are shown on the standard tariff at page 99 although they are now slightly higher at £6 per month.


24. The Company has also been charged a referral fee of £12 each time a transaction has gone through that has caused the account to go over its agreed limit. The current referral fee is £30 as shown on the tariff at page 100. At the time the Company's Current Account was overdrawn the referral fee was £12.


25. From 29 November 2002 a charge of £5.75 applied monthly to the Company's Current Account. This was the account maintenance fee, currently £6 per month, which is shown on the standard tariff at page 99.


Interest on charges
26. The Claimant is unable to state how much interest has accrued on each individual charge.


27. At the time the guarantee was called up for £11,620.43 charges of £3815.16 had been applied to the Company account. If these are removed then the sum of £7,805.27 is outstanding.


28. Calculating interest on the charges sum of £3,815.16 at a simple rate of 29.5% from 29th February 2000 to the date the guarantee was called up totals £4,219.60 (1370 days x 3.08 per day). Although this is calculated on a simple basis it is still in the Defendant's favour as it is calculating interest on the full sum from 29th February 2000 whereas the charges were not all applied on that date. It also calculates interests at 29.5% whereas the Company was being charged a substantially lower rate of interest for some periods.


27. The Claimant contends that the charges applied to the Company Current Account were fair and that they were applied in accordance with the terms and conditions and further that it would have been for the liquidator of the Company to bring a claim for unfair charges rather than the Defendant. In the event that the court does not accept the charges were fair or reasonable then the Claimant asks for judgment for the sum of £3,585.67 plus interest from 5th December 2003 to the date of judgment or sooner payment.


Statement of Truth
I believe that the facts stated in this statement are true. I am duly authorised by the Claimant to sign this Statement.








Assistant Solicitor
Dated this 3rd day of August 2009