Court Claim Help Please - Natwest / Irwin Mitchell

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgie,

Thanks for last nights message but I don't actually think I was on-line - I kept losing my internet connection so possibly didn't log out properly ?

Anyway many thanks for your PM - I've take a look and this look great - I look forward to you posting the 'checked' version on here so I can try and send today (Special Delivery I guess ?)

As IM still haven't replied to my CPR request, and based on your past experiences, what are the chances of this being thrown out altogether ?

Could the hearing go ahead without them responding to the CPR at all ?

Kindest regards and thanks so much,

R

[Amethyst]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

We'll let you know AS SOON as we do for certain.



this is the draft

In the Northampton County Court

NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MRS xxxxxxxxxxxxxxxxxxxxxxxxx
DEFENDANT

DEFENCE

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

1: The Defendants held a personal bank account, account number ******** hereinafter referred to as “the account”, maintained at the Claimant's ****** **** Branch sort code **-**-**. The account is a jointly held account and Mrs xxxxxxxxxxxxx respectfully requests that her husband Mr xxxxxxxxxx ( the additional named account holder) be permitted to act as Litigant in Person in relation to this claim on behalf of them both.

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 disputed unauthorised transaction charges, debit interest and subsequent charges on the same. 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

Schedule 2 (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

4) The claimant contends the charges were debited in accordance with the contract between itself and the defendants. However, the defendants submit that there was no negotiation on these terms and that the claimant failed to act in good faith at commencement of the contract. The defendants submit that the claimant misrepresented the true nature of the contract in that they failed to make the defendants aware that any charges applied to the account would be used to subsidise the running of accounts other than that of the defendant. Additionally, the claimant had priority over the defendant’s other debtors with regards to the application and payment of charges to the account, had control over the use of the defendant’s salary or benefits, was able to apply charges automatically, with little or no notice to the defendant and was at liberty to instigate or continue the defendant’s cycle of debt.
The defendants therefore contend that the terms are unfair under The Unfair Terms in Consumer Contract Regulations – Regulation 5 para (1 and (2) and as such are thus not binding on the Claimant under Regulation 8.

Regulation 5. - (1) 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' rights and obligations arising under the contract, to the detriment of the consumer.

Regulation 5.- (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

Regulation 8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

5) The defendants aver that following the recent judgment by the Supreme Court ( 25th November 2009) Case xxxxxxxxxxxx it is extremely likely that further litigation will follow, either between the OFT and the claimant or otherwise to generally decide the issues raised by the defendant in (3) and (4) above. The defendant therefore contends that it would be appropriate for the Court to apply a general stay in the instant claim pending resolution of the issues raised.

6) The defendants have been in communication with the claimant regarding the disputed amount. See Appendix 1 for copy of letter sent to the claimant on **** ***** 2008 , appendix 2 for the claimant’s response on *** *****l 2008, appendix 3 for copy of letter sent to the claimant on **** **** 2009 and appendix 4 for copy of claimant’s response dated **** ****** 2009.

7) The defendants respectfully request permission to reserve the right to submit a counterclaim should it be required by the court.

8) The defendants recently submitted a request to the claimants under CPR 31.14 on 13th November 2009, a copy of which was also sent to the court for reference and is included in appendix 5. The claimant has failed to comply with this request, failed to request more time to respond, and failed to offer or agree to an extension of time for the filing of this defence. The defendants are embarrassed by the claimants apparent abuse of CPR and are aware that an application may now be made by the defendants for the proceedings to be struck out or stayed for non-compliance with a summary costs order. The defendants respectfully seek the court’s guidance on this matter. __________________

[Amethyst]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Okay mse have just posted up something which backs up the arguments made in the POC which should give you some confidence - we are still waiting on opinion so don't do anything as yet.

Constructing the new argument The chief judge thought it important enough to say this ruling didn't stop people challenging fairness under 'clause 5' of the Unfair terms in Consumer Contracts Regulations – I believe this was a deliberate hint another option's open.
Here's what clause 5 actually says:
5. – (1) 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' rights and obligations arising under the contract, to the detriment of the consumer.
Now, from our first look at this and working with solicitors, in a nutshell, the provisional argument we will be looking to follow under this clause is:

• Significant Imbalance.
  
  There is a significant imbalance due as there's a massive cross subsidy from those who pay charges to other bank customers – the minority of people hit with charges are paying a disproportionate portion of the cost of the entire banking system.
• Unfair as customers have no choice.
  
  This significant unbalance is unfair as it was never individually negotiated and was not in good faith as the cross subsidy was never disclosed to customers initially and they were not given a chance to opt out.

This is our initial view, and of course it could change with the QC's work, but there is certainly an argument. Though while we hope this may open the door to some reclaiming these unfair charges, it's still safest to assume it won't work.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Thank you Ame.

If we miss todays post then I can still take this to my local post office, in the morning.

Special delivery will still be delivered on Mon 30th Nov, all being well ?

Thanks to you all for your help & input.

A very grateful, R

[Amethyst]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Yes that will be fine, sorry to have not gotten back to you yet, am waiting for Budgie to get back to me on some final bits.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Ame,

Thanks for your message.

Budgie has worked so hard for me & I'm so grateful to him, as I am you.

I eagerly await his efforts, with anticipation.

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Doing it now RB, gimme 20 mins OK

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell


Hi RB,

Final draft version of defence follows.

If you are happy with this then go ahead and update with your personal information.
You need to send original to Court and copy to IM and NatWest.

Note that Para 10 declares your intention to submit a Witness statement to the Court regarding failure of Claimant wrt CPR 31.14 request. You do not need to delay sending defence because of this witness statement. I suggest it may be better to send the witness statement one or two days after the defence anyway. I will work on the witness statement tomorrow for you. It's very easy.

Let me know if you have any questions.

Cheers Budgie





In the Northampton County Court

NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MRS xxxxxxxxxxxxxxxxxxxxxxxxx
DEFENDANT

DEFENCE

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

1: The Defendants held a personal bank account, account number ******** hereinafter referred to as “the Account”, maintained at the Claimant's ****** **** Branch sort code **-**-**. The account is a jointly held account and Mrs xxxxxxxxxxxxx respectfully requests that her husband Mr xxxxxxxxxx ( the additional named account holder) be permitted to act as Litigant in Person in relation to this claim on behalf of them both.

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 disputed unauthorised transaction charges, debit interest and subsequent charges on the same (“the Relevant Charges”). It is the defendant's contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 (“the 1999 Regulations”), under Regulations 5(1) of the 1999 Regulations, and by analogy to paragraph (e) of SCHEDULE 2 to the 1999 Regulations:

Indicative and Non-Exhaustive List of terms which may be regarded as unfair

Schedule 2 (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

4) The claimant accepts that the Relevant Charges were debited in accordance with the terms of the contract (“the Relevant Terms”) between itself and the defendants, but contends that none of the Relevant Terms were individually negotiated. Contrary to the requirement of good faith, the Relevant Terms under which the Relevant Charges have been applied are contrary to the requirements of good faith, as they cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the Defendants.

5) In particular, the defendants submit that the Relevant Terms are unfair because they:
a. were not available to the Defendants in advance, which resulted in the Defendants becoming irrevocably bound to terms with which they had no real opportunity of becoming acquainted before the conclusion of the contract;
b. require the Defendants to subsidise the running and/or operation costs of accounts other than that of the Defendants.
c. gave the Claimant priority over the Defendants’ other debtors with regards to the application and payment of the Relevant Charges to the Account,
d. gave the Claimant control over the use of the Defendants’ salary or benefits, and allowed for the automatic application of the Relevant Charges, with little or no notice to the Defendants
e. they forced the Defendants into a cycle of debt, where the Relevant Charges directly or indirectly gave rise to the application of additional charges to the account, without any restriction or limitation.

6) The defendants therefore contend that the terms are unfair under The Unfair Terms in Consumer Contract Regulations – Regulation 5 para (1 and (2) and as such are thus not binding on the Claimant under Regulation 8.

7) The defendants aver that following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the claimant or otherwise to generally decide the issues raised by the defendant in (3), (4) and (5) above. The defendant therefore contends that it would be appropriate for the Court to apply a general stay in the instant claim pending resolution of the issues raised.

8) The defendants have been in communication with the claimant regarding the disputed amount. See appendix 1 for copy of letter sent to the claimant on **** ***** 2008 , appendix 2 for the claimant’s response on *** *****l 2008, appendix 3 for copy of letter sent to the claimant on **** **** 2009 and appendix 4 for copy of claimant’s response dated **** ****** 2009.

9) The defendants respectfully request permission to reserve the right to submit a counterclaim should it be required by the Court.

10) The defendants recently submitted a request to the claimants under CPR 31.14 on 13th November 2009, a copy of which was also sent to the court for reference and is included in appendix 5. The claimant wishes to advise the Court that the Claimant has failed to comply with this request, failed to request more time to respond, and failed to offer or agree to an extension of time for the filing of this defence. The defendants are embarrassed by the Claimant's apparent abuse of CPR and are aware that an application may now be made by the defendants for the proceedings to be struck out or stayed for non-compliance with a summary costs order. The defendants intend to submit a separate witness statement to the Court and will respectfully seek the court’s guidance on this matter.


Statement of Truth:

‘The Defendants believe that the facts stated in this Defence are true.’


Signed:
Dated
Mrs xxxxxxxxxxx

Signed:
Dated
Mr xxxxxxxxxxx


Note (disclaimer) : The above defence is my own work. I wish to advise you that should you choose to use this defence in your claim it must be entirely at your own risk. Budgie

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgie and BIG thanks for the above defence.

Unfortunately we had a rare family evening out, last night, so I wasn't actually on-line (although I had left my pc on and logged in !). Just picked up your hard work, this morning.

Am I OK to send this on Mon. 30th Nov and which methods of posting should I use for all three letters ?

The fact that I.M. haven't responded to my CPR - does this still definately mean we're working to the same deadlines for defence submission ?

This all looks good to me although I'm no expert. I acknowledge and understand your comment, in red, at the bottom. Just nervous about a court appearannce now ?

Can I just please ask - how do I do the appendix sheets that I refer to ? Do I just simply print off the documents exactly as sent and then handwrite Appendix 1 etc on the top or do they need to be more official than this ?

The 4 x Appendix referred too have my original claim figures on which you believed were in fact too low - do we still just run with these OR the revised ones which you mentioned you were going to draft on your own spreadsheets ?

May I please ask what the witness statement is for ?

The embarrassed defence - I'm still puzzled ? Could this whole thing simply be thrown out as I.M. haven't responded to my CPR request ?

Could this whole court claim have honestly just been designed as the ultimate threat to get us to pay up and in fact no intention to ever proceed, in the firat place ?

Thanks again,

Kindest regards,

R

[Amethyst]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgie and BIG thanks for the above defence.

Unfortunately we had a rare family evening out, last night, so I wasn't actually on-line (although I had left my pc on and logged in !). Just picked up your hard work, this morning.

Am I OK to send this on Mon. 30th Nov and which methods of posting should I use for all three letters ?

Yes, submission by the 2nd so special delivery to the court, and first class the others.

The fact that I.M. haven't responded to my CPR - does this still definately mean we're working to the same deadlines for defence submission ?

Yep

This all looks good to me although I'm no expert. I acknowledge and understand your comment, in red, at the bottom. Just nervous about a court appearannce now ?

We will be behind you all the way.

Can I just please ask - how do I do the appendix sheets that I refer to ? Do I just simply print off the documents exactly as sent and then handwrite Appendix 1 etc on the top or do they need to be more official than this ?

Thats completely fine (top right so can be flicked through easily)

The 4 x Appendix referred too have my original claim figures on which you believed were in fact too low - do we still just run with these OR the revised ones which you mentioned you were going to draft on your own spreadsheets ?

May I please ask what the witness statement is for ?

The witness statement will outline the more personal stuff - and will explain to the judge before they get told 'its bank charges chuck it out' by irwin mitchell that this is not based on 6(2) (the bit that was ruled against).

The embarrassed defence - I'm still puzzled ? Could this whole thing simply be thrown out as I.M. haven't responded to my CPR request ?

not at this stage, the court could simply ask them to respond to your request for info.

Could this whole court claim have honestly just been designed as the ultimate threat to get us to pay up and in fact no intention to ever proceed, in the firat place ?

Most are. Makes you sick doesn't it !

Thanks again,

Kindest regards,

R

Interest is Budgies area so he'll shout at me later - my personal opinion is stick with the original figures and don't push it, especially in current climate.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Thanks Ame,

I'll get working now and see if IO can get the defence out this morning. Failing this Mon latest.

Regards,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Added some comments

Quote:
Originally Posted by R B 1968
Hi Budgie and BIG thanks for the above defence.

Unfortunately we had a rare family evening out, last night, so I wasn't actually on-line (although I had left my pc on and logged in !). Just picked up your hard work, this morning.

Am I OK to send this on Mon. 30th Nov and which methods of posting should I use for all three letters ?

Yes, submission by the 2nd so special delivery to the court, and first class the others. Agree with Ame

The fact that I.M. haven't responded to my CPR - does this still definately mean we're working to the same deadlines for defence submission ?

Yep Agree with Ame

This all looks good to me although I'm no expert. I acknowledge and understand your comment, in red, at the bottom. Just nervous about a court appearannce now ?

We will be behind you all the way.
A court appearance is possible, but not at this stage. The Claim is still at Northampton. A number of things could possibly happen once your defence is filed at Northampton the most likely being that your Claim will be redirected to a County Court local to you. Possibly Northampton may dismiss the claim, order Claimant to comply with your CPR request etc. Your defence basically reserves your rights, to submit a counterclaim, to submit a witness statement regarding Claimants CPR 31.14 request and all that that failure entails. You must submit this defence ( a defence ) so as to avoid summary judgment against you anyway. To be honest I doubt if anyone has used anything like this type of defence before ( with the unfairness arguments as stated ) and that in itself will probably just persuade Northampton to pass the buck to your local County Court and because of that I prefer not to waste the impact of your counterclaim and Witness statement on Northampton bulk centre.

Can I just please ask - how do I do the appendix sheets that I refer to ? Do I just simply print off the documents exactly as sent and then handwrite Appendix 1 etc on the top or do they need to be more official than this ?

Thats completely fine (top right so can be flicked through easily) Agree with Ame

The 4 x Appendix referred too have my original claim figures on which you believed were in fact too low - do we still just run with these OR the revised ones which you mentioned you were going to draft on your own spreadsheets ? If / when we submit a counterclaim we will do so on the basis of a counterclaim for charges plus compound interest ( new ) or, in the alternative for charges plus statutory interest ( your original claim figures ) we can easily argue your claim either way if it actually comes to doing so in Court, But I hope and dont believe it will come to this.

May I please ask what the witness statement is for ?

The witness statement will outline the more personal stuff - and will explain to the judge before they get told 'its bank charges chuck it out' by irwin mitchell that this is not based on 6(2) (the bit that was ruled against). Additionally the Witness statement will contain draft orders for consideration by the court. We will ask for claim to be dismissed owing to CPR 31.14 failure etc.

The embarrassed defence - I'm still puzzled ? Could this whole thing simply be thrown out as I.M. haven't responded to my CPR request ?

not at this stage, the court could simply ask them to respond to your request for info. Agreed, the reason I added it is to basically inform the Court that a witness statement / draft order for consideration will shortly follow.

Could this whole court claim have honestly just been designed as the ultimate threat to get us to pay up and in fact no intention to ever proceed, in the firat place ?

Most are. Makes you sick doesn't it !
Yes, but because it's litigation we must take it seriously even if the Claimant isnt. Their POC is ridiculous.

Thanks again,

Kindest regards,

R





Interest is Budgies area so he'll shout at me later - my personal opinion is stick with the original figures and don't push it, especially in current climate. See comments above

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Budgie / Ame,

Thanks again for all your help, to date.

Special thanks Budgie for a fantastic defence !

I have now got this all ready and it will go by Special delivery on Monday.

I've also got I.M. and Natwest's copies ready and these too will go on Monday - Recorded delivery.

By the way still nothing on the CPR request, today (Sat) !

I eagerly await your thoughts on the witness statement, Budgie. Will this need to be in by deadline day, which I believe is Tue / Wed ?

Once again thanks everyone - my guess is that this defence will appear on this website and be used by many, many others over the coming weeks and months !

Thanks again and I'll, obviously keep you all updated / informed on any 'happenings' !

Kind regards,

R

[Budgie]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi RB

I suggest we get witness statement ready and plan to send by end of next week, it's only the defence that needs to be in by 2nd December.

I suggest waiting to see how matters develop. Let's not fire all of our bullets in the opening salvo.

Case is likely to be transferred to your local court anyway, that is if it isnt actually thrown out by Northampton after they receive your defence. I suspect they will pass on making that decision though and forward on to your local court.

Once it's there we can fire 2nd shot ( witness statement re CPR 31.14 failure ) and 3rd shot ( counterclaim )

I will have witness statement ready for you on Thursday ( am away for a couple of days next week - but will be checking forums - so post if any news !! )

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Thanks yet again Budgie.

Enjoy your days away and rest assured I'll keep this post up-to-date on any movement ?

Kind regards,

R