Court Claim Help Please - Natwest / Irwin Mitchell

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

in red again

And this is my 'first draft' (defence only) with private details replaced with *'s:

case/claim No: 9QR*****




In the Northampton County Court

NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MRS *************willchange this to you rather than Mrs and add note in defence
DEFENDANT

DEFENCE

Note re Mrs and it being joint account and that Mrs has agreed for you to represent both your interest in this matter in accordance with accompanying letter to Court. Which we will also prepare.

All allegations made in the particulars of claim are denied unless specifically admitted in this defence.

1: The Defendantshad a personal bank account, account number ******** hereinafter referred to as “the Account”, maintained at the Claimant's ****** **** Branch sort code**-**-**

2: The Account, at the time of the claim, is in debit by £4***.**

3: The Defendants dispute the amount of £4***.** in full, it being made up of unauthorised transaction charges and debit interest and subsequent charges on the same. The Defendants aver that the charges are not intended to represent and are disproportionate to any alleged actual loss, in respect of any breaches of contract on the part of the Defendants, but instead unduly enrich the Claimant and therefore are not owed to the Claimant as claimed. It is the defendants contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation .

4: If the Claimant avers that these charges are reasonable, fair and proportionate, then the Claimant should reasonably be able to disclose evidence of their actual losses in relation to contractual breaches by the Defendants.

5: The Defendants have been in communication with the Claimant regarding the disputed amount. See Appendix 1a for copies of letters sent to the Claimant on ****t March 2008 , acknowledged by the Claimant on ***h April 2008, Appendix 2a and see Appendix 3a for copies of letters sent to the Claimant on **** July 2009, acknowledged by the Claimant on **** August 2009, Appendix 4a : The Defendants enter a counter claim for the full balance of the account and additional amounts as detailed on the schedule of charges in Appendix 5A,

6: We will add in a paragraph or two regarding request under cpr 31:14 request and invite Judge to dismiss the Claimants claim owing to their failure to provide the reqested douments in support of their claim against you. Copy of CPR 31.14 request wiill be appendix 6

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


Fingers crossed this looks OK ?

Need to consider my Appendixes now - I have all 4 letters but, again, the figures won't tally up if I use your figures, Budgie ? See my previous post

Thank you,

R
------------------------------- merged -------------------------------
Sorry Budgie our last posts appear to have passed in the night !

Can you suggest any re-wording to explain the discrepancies ?

I know 1a.2a,3a and 4a will be my letters but what about Appendix 5a - will this be your re-calculation of my charges ? Yes will be two spreadsheets which will also be referred to in the counterclaim

Thanks again,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Try and get the outline counterclaim drafted and will do the whole lot in one hit RB.

It will be much easier that way than doing a bit at a time. If your not sure about anything just add notes questions at the end of counterclaim.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgei,
Sorry I didn't get bact to you last night - I was so tired i fell into bed !
I'll have another go, tonight, when home from work.
In the meantime thanks for agreeing to help with the spreadsheets.
Any help you can also give me re. the covering letter regarding Note re Mrs and it being joint account and that Mrs has agreed for you to represent both your interest in this matter in accordance with accompanying letter to Court. Which we will also prepare. will also be much appreciated.
Also what about the above red wording for the actual defence - unsure exactly how we need to word this ?
I understand what you say about the defence / counterclaim all in one - I'll update the defence tonight and also carry on with the extra 'counterclaim' so the who thing shows on here !

Thanks again Budgie,

R

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

case/claim No: 9QR*****




In the Northampton County Court

NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MR ****** **** ******* (Changed from ‘official’ defendant MRS !)
DEFENDANT

DEFENCE

*** TO ADD Note re Mrs and it being joint account and that Mrs has agreed for you to represent both your interest in this matter in accordance with accompanying letter to Court. Which we will also prepare. ***

All allegations made in the particulars of claim are denied unless specifically admitted in this defence.

1: The Defendants had a personal bank account, account number ******** hereinafter referred to as “the Account”, maintained at the Claimant's ****** **** Branch sort code **-**-**

2: The Account, at the time of the claim, is in debit by £4***.**

3: The Defendants dispute the amount of £4***.** in full, it being made up of unauthorised transaction charges and debit interest and subsequent charges on the same. The Defendants aver that the charges are not intended to represent and are disproportionate to any alleged actual loss, in respect of any breaches of contract on the part of the Defendants, but instead unduly enrich the Claimant and therefore are not owed to the Claimant as claimed. It is the defendant's contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation .

4: If the Claimant avers that these charges are reasonable, fair and proportionate, then the Claimant should reasonably be able to disclose evidence of their actual losses in relation to contractual breaches by the Defendants.

5: The Defendants have been in communication with the Claimant regarding the disputed amount. See Appendix 1a for copies of letters sent to the Claimant on **** ***** 2008 , acknowledged by the Claimant on *** *****l 2008, Appendix 2a and see Appendix 3a for copies of letters sent to the Claimant on **** **** 2009, acknowledged by the Claimant on **** ****** 2009, Appendix 4a : The Defendants enter a counter claim for the full balance of the account and additional amounts as detailed on the schedule of charges in Appendix 5a.

*** TO ADD 6: We will add in a paragraph or two regarding request under cpr 31:14 request and invite Judge to dismiss the Claimants claim owing to their failure to provide the reqested douments in support of their claim against you.Copy of CPR 31.14 request wiill be appendix 6***
(Don’t forget figures from my original claim & Budgies figures being used won’t ‘tally’ !)

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

case/claim No: 9QR*****




In the Northampton County Court

NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MR ****** **** ******* (Changed from ‘official’ defendant MRS !)
DEFENDANT

COUNTERCLAIM

1. The Claimant operated the account number ******** ("the Account") with the Defendants which was operated between approximately ***** 1999 and January 2009. *** DO I PUT THIS MONTHS DATE ??? ***

2. During the period in which the Account operated the Defendants levied disproportionate charges to the Account. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms and conditions of the contract between itself and the Claimant. There was no negotiation on these terms.

3. A detailed schedule of charges levied is enclosed with this claim. *** TO ADD ***

4: It is the claimants contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfill his obligation to pay a dis-proportionately high sum in compensation .

5: Insofar as they purport to be services provided by the Defendants, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Defendant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999. The Court of Appeal upheld this view on 26th February 2009. *** UNSURE ***

6: The terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.

7. Additionally, the Defendant makes reference to the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin (21 July to September 2002). as persuasive authorities:
a. Case 4 - Dampcure-Woodcure/30Ltd
b. Case 15 - Kids of Wilmslow Ltd t/a kidsunlimited
c. Case 18 - Legal & General Franchising Ltd t/a Parkers Estate Agents

8. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £????.?? and any interest charged thereon;

b) Any Court costs incurred by the claimant;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of charges to ???? ???????? 2009 of £???.??2 and also interest at the same rate up to the date of judgment or settlement at a daily rate of £0.?? per day

10. The Defendant reserves the right to further plead these particulars.

Statement of Truth


The Defendants believe that the contents of these particulars of claim are true
------------------------------- merged -------------------------------
Good evening Budgie, Ame & fellow LB's,

Can someone please take a look at the above post, for me.

I believe this has to be completed by the end of this week, latest ?

Still nothing from I.M. - there 7 days (CPR) is up today !

Thanks,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi RB,

I will have a good look at this and post up some comments / suggestions tomorrow afternoon / evening. We will have the test case preliminary stage result tomorrow as well so can add a bit about that in the counterclaim as well.

Just as notes for myself we need to add ref to the CPR 31-14 request and IM failure to respond. Also need to add claim for compound interest and ( in the alternative ) stat 8% interest. Plus review whole thread.

Budgie

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgie / Ame,

Are you there ?

Thanks,

R
------------------------------- merged -------------------------------
Sorry Budgie,

Last message was sent prior to my screen updating - pls ignore & apologies.

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

I guess you will view this at some point this evening RB.

I and the LB Team will review your defence and counterclaim tomorrow and will, of course, take into account today's Supreme Court judgment when doing so.

As you might imagine, things are pretty busy at the moment but rest assured we haven't forgotten you.

Budgie

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Thank you Budgie.

Just to confirm still nothing at all from I.M. since my CPR request - I believe you said their 7 days were up yesterday (Tue) !

Unsure whether this is good news or not - I guess perhaps not as if they reply, last minute, then I (we !) have a lot of work to do on my defence / counterclaim before next weeks deadline ?

I'm very 'jumpy' and now even more concerned that todays ruling has blown my defence completely out of the water ?

Look forward to hearing from you when you get a free moment - I understand today must be a very busy one, for you all.

Kindest regards,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

I was also very concerned at 9.50 this morning but am a lot happier this evening.

Don't worry about your defence and counterclaim, it hasn't been totally blown out of the water, but will need a bit of re-jigging, we will get it sorted this week and we also have the added factor of the CPR31.14 failure by IM to count in your favour.

It has been a very long day and I plan a couple of shorts before an early night.
Although that probably won't happen as I feel a third read of the full judgment from today is in order before retiring. I will deffo have the drinky though

Catch you tomorrow RB

Rgds Budgie

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Night Budgie.

Enjoy a drink and a good nights sleep - you deserve it !

Hope to 'talk' soon.

Kind regards,

R

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Good afternoon Budgie,

Just to confirm STILL nothing from I.M., today ?

Times has run out for my CPR request so what do you propose from here ?

Thanks,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi RB

I have drafted a defence, it's been checked through by Ame and I have made a couple of minor amendments. Am just having it checked for a general legal opinion and will post up for you.

I am suggesting just going with a defence at this stage ( reserving the right to submit a counterclaim). Have amended pleadings in light of yesterdays supreme court decision. Included the bit about it being a joint account and also referred to IM failure to comply with CPR request.

Have tried to make it simple and easy to follow ( Judges are not the cleverest of people and get easily bored ).

Will hopefully post up later this evening.

Budgie

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Fantastic !

Thank you so much Budgie - not forgetting Ame too, of course !

I guess I hold fire on sending until I.M. reply, do I OR do I still have to comply with the original dates and deadlines ?

Kind regards,

R
------------------------------- merged -------------------------------
PS Please don't forget that I'd like to represent Mrs, if we can sort ?

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Comments in red.

Fantastic !

Thank you so much Budgie - not forgetting Ame too, of course !

I guess I hold fire on sending until I.M. reply, do I OR do I still have to comply with the original dates and deadlines ?
Nope, you will be able to send off defence tomorrow if you wish and it must be with the Court by 2nd December latest, no reason to delay sending it in.

Kind regards,

R
------------------------------- merged -------------------------------
PS Please don't forget that I'd like to represent Mrs, if we can sort ?
Sorted, wait and see defence

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi RB

I noticed you were still online.


I will PM you a copy of the defence to have a look at, but please don't go ahead with anything until I post up the ( checked ) final draft on your thread tomorrow.

Cheers Budgie