Mad Hatter v Nat West SETTLED

**Mad Hatter** · 18th May 2007, 12:38:PM

7th January 2007

New LBA to be sent on Monday to the Edinburgh address.

I am writing further to my letter of 2nd December 2006, which remains unanswered at this date.

In the time that has elapsed, I have reconsidered my position in relation to the extent of my claim for unlawful charges, and I would ask you to note that I am adjusting my claim to include compound interest at Nat West plc’s excess overdraft fee rate of 29.5%. I am applying this rate of interest to the monies that Nat West plc has unlawfully deducted from my account over the years, on the principles of implied mutuality and reciprocity, and unjust enrichment.

The revised total of the charges, and interest debited as a result of the charges, stands at £xxxx.00 at today’s date, on which I have calculated interest due (to date) of £xxxx, bringing my total claim to £xxxx. I have enclosed an updated schedule of the figures for your information.

I wish to draw your attention to the fact that I have previously asked you to demonstrate that the bank’s charges are lawful, by providing evidence of the costs to which the bank has been put as a result of my account breaches. I have also previously requested details of any manual intervention on my account. Neither has been forthcoming.

Consequently I am of the view that Nat West plc is unable to demonstrate that its charges are lawful or that there has been manual intervention in relation to the breaches that have occurred and the charges that have resulted.

It is my considered view that Nat West plc, as a multinational corporation of very high standing and repute in the business and banking world, with the benefits of accounting expertise, in-house lawyers and/or access to top legal experts, owes a duty of care to its customers, in relation to ensuring that it is trading lawfully; and has therefore always had the resources to know that its charges were and are unreasonable, punitive in nature and therefore unlawful.

The level of the charges can be seen to be unrelated to the costs of the services provided; to exceed actual individual instances of loss to the bank, and to unjustly enrich the bank.

Based on the above, I believe that if Nat West plc is unwilling to settle my claim in full out of court, I will have no alternative but to attempt to persuade a court that by electing not to reveal its costs and the profit element of the charges, Nat West plc hasalways concealed the fact that its charges are unjustifiable and unlawful.

Further, I will aver that I mistook the charges to be lawful when I paid them, because prior to becoming aware of the OFT’s report this year I had trusted Nat West plc to operate lawfully.

Please note that I require unconditional repayment in full of £xxxx within the next 10 days in order to conclude this matter, failing which I will be proceeding with a court claim without further notice to you. In view of the costs involved for both parties I hope that Nat West plc will decide to settle my claim before that stage becomes necessary.

I have enclosed a copy of the county court N1 form that will be served at xxxx County Court on the 15th January 2007 for your perusal. Please pass this to your legal representatives should you feel it necessary.

Yours Sincerely

MH

**Mad Hatter** · 18th May 2007, 12:40:PM

19th January 2007

Right, finally got my PoC sorted.

1. The Claimant has a bank account, number ******** (“the Account”), maintained at the Defendant’s Dunstable Branch (sort code )

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged overdraft interest on the charges once applied.

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

5. A schedule of the charges is attached to these particulars of claim (Appendix 1).

6. The Claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults. The defendant is fully aware of this report as Ulster Bank is a subsidiary to RBS (defendant).

7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract
on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

9. Contractual Interest
a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest originally charged by the defendant, being 29.50%.

d) In the alternative to 9.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s authorised borrowing rate, being 16.99%.

e) In the alternative to 9.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

f) Details of interest calculated & rates used are attached to these Particulars of Claim (Appendix 1) as follows:
Column1 – Compound interest calculated daily at an annual rate of 29.50%
Column 2 – Compound interest calculated daily at an annual rate of 16.99%
Column 3 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate
of 8.00%

10. Accordingly, the Claimant claims:
a) The return of the amounts debited between 12/12/200 and 13/10/06 in respect of charges in the sum of £xxxx.

b) All applicable Court fees

c) Contractual interest at an annual 29.50 % compounded daily from the date of each transaction to 21st January 2007 of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx

d) In the alternative to 10.c), Contractual interest at an annual rate of 16.99% compounded daily from the date of each transaction to 21st January 2007 of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx

e) In the alternative to 10.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 21st January 2007, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx

Now, i also need.

Court Bundle - Fine, i have that
Commisioners report ( Northern Ireland Personal Banking) - i need a link guys.
Witness Statement - I have looked at this and a lot of it is already in my PoC and Court bundle.. do i still need it..
Other Cases - Some wording for my PoC regarding other cases (Lincoln) and case numbers. Just to bring it to te judges attention.

**Mad Hatter** · 18th May 2007, 12:41:PM

24th January 2007

Had a call left on my answerphone today, to call Andrea..

Wahooo i thought, here we go... So, i called the lovely Andrea and was told in no uncertain terms that they would like to 'review' my account and i HAVE to make an appointment..

So, i told her it would cost £35 per hour for my time, minimum 4 hours, plus travel expenses... She will get back to me apparantly..

**Mad Hatter** · 18th May 2007, 12:48:PM

7th February 2007

Rang the court today and they told me that my claim had been processed the same day that i took it in, 25th Jan!!.. copies of all paperwork should be with me tomorrow...

Meanwhile, Cobbets wasted no time in sending me their acknowledgement and they are going to defend.... surprise surprise.. so a nice long 28 day wait...

**Mad Hatter** · 18th May 2007, 12:49:PM

10th February 2007

Ok. Got a letter today from Mr Higley offering me £xxxx.. where do they get these figures from!!! Anyway, normal stuff and totally expected.

The good news is if they had offered me the full amount i would have stopped now, and NOT just gone to court for contractual interest. So he has done me a favour in a strange kind of way..

But, now i have to go anyway and chase the rest of my money plus costs so we will see which interest rate they decide to offer me..

**Mad Hatter** · 18th May 2007, 12:49:PM

11th February 2007

Now, i have a dilemma. On my original claim i mistakenly put on 2 cheques . This was an error on my part, weren't charges at all. So now i have amended the schedule, which brings the claim down to £xxx k including contractual..

Now, am i correct in thinking that i now need to send an amended schedule to Mr higley, with my rejection of settlement offer. Also, a copy to Cobbets and a copy to the court?? Is that correct? Do i need to fill in another form for court or will they just stick it in my file..and i assume i need to redo my PoC, which was on a seperate sheet anyway.

So, now my claim stands at £xxx + £xxx costs + whatever interest they go with.

As i have said, i have an offer of £xxxx BUT this doesn't include the costs so i can't accept it. As i have now filed i may as well just carry on.

**Mad Hatter** · 18th May 2007, 12:53:PM

12th February 2007

N244 completed

c) Without hearing - YES
5. Level of Judge - District Judge
6. Parties to be Served.. Nat West

Part A
1. MAD
2. Intend to apply for an order (a draft of which is attatched) that...as claimant in this case i intend to amend my claim.
3. Because - of a mis calculation in the claim served.

**Mad Hatter** · 18th May 2007, 12:54:PM

15th February 2007

Right. N244 now sent and a refusal letter done to Mr Higley..

Just waiting for Cobbets next move.. If they offer charges + 8% and costs, its game over for me. Don't feel comfortable just chasing contractual at a higher rate. If not, i will just see what the fair winds bring...

**Mad Hatter** · 18th May 2007, 12:55:PM

24th February 2007

The defence arrived today!! Got home and there it was, duly signed by the enigmatic Lynsey Bourgoyne..

So, here it is...

Defence

1. This defence is filed without prejudice to the Defendants case that the Particulars of Claim do not disclose reasonable grounds for bringing a claim against the Claimant to recover the bank charges (and interest thereon) referred to in the PoC or any other sum(s). In the event that the claim is not properly particularised then the Defendant will apply to strike out the claim and/or for summary judgement in respect of the same.

2. Without prejudice to the non-admission set out in the foregoing paragraph, if and to the extent that the claimant proves the allegation that the defendant debited charges to the Claimants bank account, insofar as such charges were debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect of the same, whether damages, restitution or otherwise, is barred by the operation of the Limitation Act 1980 and/or the doctrine of laches and the Defendant will apply to strike out this aspect of the clam and/or for summary judgement.

3. On allocation the Defendant invites the court to direct that there be a case management conference in order form the court to consider the making of appropriate orders to give the Claimant the opportunity to properly particularise the claim.

4. No admissions are made as to what charges have been debited to the Claimants bank account.

5. In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:

5.1 In order for the Claimant to sustain a claim that the charges debited by the Defendant are in the nature of a penalty the Claimant will need to plead and prove (a) the clause(s) pursuant to which the charges were applied; (b) that the charges were applied due to a breach of contract by the Claimant; and (c) identify in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to. As presently pleaded the claim does not plead to these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any or the charges referred to in the PoC have been applied pursuant t an unenforceable penalty clause.

5.2 Until such time as the Claimant pleads the matters referred to in paragraph 5.1 above the Defendant is unable to plead to the claim brought against it and therefore (pending the provision of full and proper particulars of the claim) at this stage denies that any charges have been applied to the claimants bank account pursuant to unenforceable penalty charges.

6. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the Unfair Contract Terms Act 1977 (UCTA 1977) and/or the Unfair Contract Terms in Consumer Regulations 1999 ( “ the Regulations”) and/or section 15 Supply of Goods and Services Act 1982 (SGSA)

6.1 The Claimant is required to identify the contractual provisions that are alleged to be invalid by reference to UCTA 1977 and/or the Regulations. Until such time as these provisions are identified the Defendant cannot (save as appears below) plead to the allegation referred to in paragraph 6 above. The Defendant therefore reserves the right to plead further to the allegation once (and if) the Claimant identifies the relevant contractual provisions.

6.2 In relation to the case or the Claimant that the contractual provisions are invalid pursuant to section 4 UCTA 1977 then it is a case of the Defendant that the section is not applicable as any contractual provisions relating to charges do not relate to the Defendants liability for negligence or breach of contract.

6.3 In relation to the case of the Claimant that the contractual provisions are invalid pursuant to the Regulations of the Defendants pleads as follows:

6.3.1 Schedule 2 to the Regulations is an Indicative and non exhaustive list of terms which may be regarded as unfair (emphasis supplied).

6.3.2 If the Claimant is to rely upon paragraph 1(e) of schedule 2 to the Regulations then the Defendant will require the Claimant to plead and prove in relation to each bank charge that is sought to be recovered the matters referred to in paragraph 6.1 above and all facts and matters relied upon alleging that the sums paid are disproportionately high.

6.3.3 In the circumstances no grounds are disclosed for a claim that the contractual provisions (whatever they are alleged to be – see paragraph 6.1 above) falls foul of the Regulations and in particular paragraph 1(e) of Schedule 2.

6.3.4 The Defendant is therefore unable (save as appears below) to plead to this allegation beyond denying that any bank charges have been applied pursuant to terms which contravene the Regulations. The Defendant reserves its right to plead further to this allegation once (and if) the particulars referred to in paragraph 6.3.2 above are provided.

6.3.5 Without prejudice to paragraph 6.3.4 it is the case of the Defendant that the Regulations have no application because the charges amount to payments for services provided by the Defendant and the adequacy (or otherwise) of consideration paid under a contract for services is not an issue to be judged by reference to principles fairness under Regulations.

6.4 In relation to the case of the Claimant that the charges are unreasonable within the meaning of SGSA section 15 the Defendant pleads as follows:

6.4.1 The Claimant is required to plead and prove the necessary factors (referred to in section 15 SGSA) concerning the contract between the Claimant and the Defendant which mean that pursuant factors (referred to in section 15 SGSA) concerning the contract between the Claimant and the Defendant which mean that pursuant to SGSA section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract.

6.4.2 Further, the claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable, (b) all facts and matters relied upon by the Claimant in support of this case and (c) what charges would have been reasonable.

6.4.3 In the circumstances no grounds are disclosed for a claim that the defendant has acted in breach of SGSA section 15.

6.4.4 In the circumstances (save as appears below) the Defendant is unable to plead to this allegation beyond denying that it has acted in breach of SGSA section 15 as alleged or at all. The Defendant reserves its right to plead further to this allegation once (and if) the defects in the pleaded case referred to in paragraphs 6.4.1 – 6.4.3 above are addressed.

6.4.5 It is the case of the Defendant that the contract between the Claimant and the Defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the Claimant and the Defendant and (b)was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimant and the Defendant.

7. If, which is denied,the Claimant is entitled to the return of the amounts debited in respect of charges, the Defendant denies that the claimant is entitled to claim interest at a rate of 29.5% or 16.99%.

8.Save as hereinbefore appears the Defendant joins issue with the Claimant on the claim(s) and denies that it is liable to the Claimant as alleged or at all.

LCB

**Mad Hatter** · 18th May 2007, 17:53:PM

28th February 2007

and my reply was....

IN THE xxxxx COUNTY COURT: CLAIM NO. xxxxxxxx

BETWEEN:

Mad Hatter (Claimant)

And

NATIONAL WESTMINSTER BANK PLC (Defendant)

-- Reply to the Defence --

I, Mad Hatter, Say as follows.
• I am a litigant in person. I make this reply to the defence as a response to the banks defence and the also the banks application to have part of this claim dismissed. I make this response from matters within my own knowledge.
• It is acknowledged that the defendant denies that the punitive charges were debited unlawfully however it should be noted that the defendant has settled many hundreds of claims without once defending any in a court hearing, this is a clear and systematic abuse of the court system.
• I base my claim for Contractual Interest being awarded due to the imbalance in favour of the defendant in applying compounded contractual interest to the penalty charges and the borrowing of my money and no fairness in this being reciprocated by Claimant in their use of my money or any legal redress by the Claimant. This therefore being deemed an unfair term in the contract
Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

1. At several points in the Defence the Defendant avers that the Claimant must plead further than he already has in the Particulars of Claim (‘PoC.’) The Defendant calls upon the Claimant to plead information (and in some cases evidence) which the Claimant isn’t required to plead at this point

1.1 For the avoidance of all and any doubt, it is specifically denied that the Claimant needs to plead further than he already has in this case.

1.2 The Defendant makes several averments in the Defence reserving its “right” to plead further in this case.

1.2.1 It is denied that the Defendant has such a right to plead further in this case, as alleged or at all.

1.2.2 Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

1.2.3 Nothing in this Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

2. In your defence (paragraph 2) you make reference to the Claimant not being able to bring a claim more than 6 years after the date on which the cause of action accrued.

2.1 I feel if your client had disclosed their true costs to me, this would have ended any dispute. However although your client has had every opportunity to do so, they have failed to avail themselves in this matter. I am also prepared to argue and show the court that the Limitation Act 1980 restriction does not apply under the specific exemptions in Section 32(1).a, b, and c and therefore my claim is not time barred under s5. I am fully prepared to prove to the court that your client’s charges are punitive in nature, excessive, unfair, not a true reflection of actual costs. And therefore show the court that my claim is not time barred due to your client concealing and or fraudulently concealing and or making a misrepresentation and or making a fraudulent misrepresentation. The Claimant avers that Section 5 of the Limitations Act is not relevant in respect of this claim.

3.1 The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large number of staff, including experienced corporate lawyers and accountants.

3.1.2 As a company regulated under the Financial Services Authority (“the FSA”), the Defendant has agreed to abide by the Principles for Businesses, as outlined in Chapter 2 of the FSA Handbook:
1. Integrity - A firm must conduct its business with integrity.
2. Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.
3. Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.
4. Financial Market Conduct - A firm must maintain adequate financial resources.
5. Market Conduct - A firm must observe proper standards of market conduct.
6. Customers’ interests - A firm must pay due regard to the interests of its customers and treat them fairly.
7. Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.
8. Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.
9. Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.
10. Clients' assets - A firm must arrange adequate protection for clients' assets when it is responsible for them.
11. Relations with regulators - A firm must deal with its regulators in an open and cooperative way, and must disclose to the FSA appropriately anything relating to the firm of which the FSA would reasonably expect notice.

3.1.3 This document is produced under the powers given to the FSA within the Financial Services and Markets Act 2000, and provides a benchmark by which financial companies should operate within the United Kingdom. Paragraph 9, places a duty on companies to “take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment”. The Claimant contends that a bank’s fiduciary responsibility is encapsulated in law, and therefore if such a regulated company informs a customer that it is entitled to levy a charge against an account, it would be reasonable to expect the account holder to believe that the actions of the bank are lawful, and that the charge does relate to it’s internal costs, as they continue to contend is the case.

3.1.4 In addition and without prejudice to the above, as a Litigant in Person, the Claimant could not reasonably have discovered that the making of such payments was a mistake before the report of the Office of Fair Trading (“the OFT”) was published on 5th April, 2006, and the up swell of public information regarding unlawful bank charges during 2006.

3.1.5 It is worth noting that the Defendant and its peers will not allow the issues involved in these claims to be judged on merit in court, which would resolve the issue of the lawfulness (or otherwise) of banks’ penalty charges.

3.1.6 In support of this, the Claimant will also rely on Kleinwort Benson Ltd v Lincoln City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Southwark and Others; Kleinwort Benson Ltd -v- Birmingham City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Kensington And Chelsea And Others [1998] UKHL 38; [1999] 2 AC 349; [1998] 4 All ER 513; [1998] 3 WLR 1095; & Deutsche Morgan Grenfell Group Plc (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)[2006] UKHL 49 (on appeal from [2005] EWCA Civ 78)

**Mad Hatter** · 18th May 2007, 17:54:PM

4. Regarding the reference to the doctrine of laches in Paragraph 2 of the Defence. Again, it is submitted that, given the reputation of National Westminster Bank and their duties as outlined by the FSA above, after being made aware of the possibility of challenging these charges, the Claimant took the following actions:

4.1 The Claimant made a Subject Access Request (“S.A.R - (Subject Access Request)”) under s7(1) of the Data Protection Act 1998 (“Data Protection Act”) to the Defendant on 14th November 2006 to obtain bank statements for this account.

4.2 A preliminary refund request was sent to the Defendant on 2nd December 2006. This request gave the Defendant 10 working days to reply, which it decided not to do so.

4.3 As the reply had not been received, despite the Claimant giving ample opportunity and more time to take into account the festive season, a Letter Before Action was sent to the Defendant on 5th January 2006. This letter gave the Defendant a further 14 working days to settle the amount in dispute before court action would commence.

4.4 The Defendant did not make a timely reply to the Claimant’s letter of 5th January 2007, and thus the claim was prepared and taken to Luton County Court on 25th January for issue on 27th January 2007.

4.5 On 6th February 2007 in a reply to the letter dated 4th December 2007 (some 2 months later), the Defendant made a conditional settlement offer which did not satisfy the Claimant’s requests in full.

4.6 In a letter of 13th February2007, the Claimant advised the Defendant that the conditional settlement offer of 6th February 2007 did not meet the Claimant’s requests in full, but would be accepted in partial settlement without any conditions.

4.7 Further to the above, it is submitted that the doctrine of laches cannot be applied as the Claimant has not unreasonably delayed in asserting his equitable right.

5. Paragraph 3 of the Defence - it is the Claimant’s case that the Claim is properly particularised in the first instance and fully discloses grounds for bringing a claim against the Defendant.

6. Paragraph 4 of the Defence - if no admission is made of the charges that have been debited to the account, does the Defendant require further proof? Submitted with the PoC, at Appendix 1, was a full schedule of charges & interest paid, complete with 66 pages of statements showing the application of each and every charge and interest deduction. Since the Defendant supplied the statements and the data contained therein it is contended that no further evidence in support of the application of the charges is required.

7. Paragraph 5 of the Defence is denied in its entirety, and it is denied that the Claimant must identify the Contractual provisions which are Penalty clauses

8.Paragraphs 6.1 & 6.2 of the Defence – the Defendant’s case in relation to the Unfair Contract Terms Act 1977 (UCTA) are denied in their entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub paragraphs below.

8.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UCTA.

8.2 The Defendant’s interpretation of s4 UCTA contained within paragraph 6.2 of the Defence, is specifically denied.

9. Paragraph 6.3 of the Defence – the Defendant’s case in relation to the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub-paragraphs below:

9.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UTCCR

9.2 Paragraph 6.3.1 of the Defence is admitted, insofar as it quotes the title of Schedule 2 to the UCTCCR. The Claimant contends that the emphasis of “may” by the Defendant is irrelevant. By virtue of the fact that Schedule 2 is a “non-exhaustive” list, it is implied that any clause can be deemed to be unfair, providing it meets the criteria of any item contained within Schedule 2.

9.3 Paragraph 6.3.2 of the Defence – the Defendant’s contention that the Claimant is required to plead further - is denied in its entirety. Evidence is not required to be pled in a PoC. In any event, the Claimant has given an indication of the factors and evidence which he intends to rely upon in the PoC.

9.4 Paragraph 6.3.3 of the Defence – the Defendant’s contention that the PoC disclose no reasonable grounds for a claim under the UTCCR - is denied in its entirety.

9.5 Paragraph 6.3.4 of the Defence is denied in its entirety.

9.6 Paragraph 6.3.5 of the Defence – the Defendant’s contention that the UTCCR have no application - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

9.6.1 If the Defendant wishes to contend that the Charges are consideration for services rendered, then it is required to plead and prove the nature of the service provided.

9.6.2 In any event, even if the Charges are consideration for a service it is the Claimant’s contention that the UTCCR still apply, as detailed in the PoC.

10 Paragraph 6.4 of the Defence – the Defendant’s case in relation to the Supply of Goods and Services Act 1982 (“the SGSA”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the subparagraphs below.

10.1 Denied that at this time the Claimant is required to plead further than he already has.

10.2 In response to paragraph 6.4.4 (c ) The Claimant is not in a position to determine what level the penalty charges should be. The Defendant can only levy a charge which is a genuine pre-estimate of its liquidated losses or the actual liquidated losses. It is therefore denied that the Claimant can suggest an appropriate fee. However, when determining the liquidated losses it would be reasonable to take account of the fact that the charges are applied automatically to the Claimants accounts; the charges are applied by way of systems put in place to manage the whole of the account along with those of the millions of other accounts operated by the Defendant.

10.2 Paragraphs 6.4.3, 6.4.4, 6.4.5 of the Defence are specifically denied.

11. The PoC outlines three interest rates that the Claimant will take the Court's direction on which rate should be applied – these are 29.50% compounded (unauthorised borrowing rate), 16.99% compounded (authorised borrowing rate) and 8% simple interest as allowed by s.69 County Courts Act 1984.

11.1 It is further submitted that Paragraph 7 of the Defence does not comply with CPR 16.5(2)

11.2 In relation to entitlement to interest, the Defendant charges interest to the Claimant, via the Account, at its published “unarranged overdraft rate” of 29.50%. The Defendant claims that it is entitled to charge this rate by virtue of the Terms & Conditions.

11.2.1 In maintaining the principal of fairness and balance, the Claimant has at no time disputed the interest charged by the Defendant, either unauthorised or authorised, nor has the Claimant attempted to seek any restitution on the interest charged.

11.3 The unarranged overdraft rate was charged to the Claimant, via the Account, when the Claimant drew money from the Account whilst he had not obtained prior permission from the Defendant for exceeding any overdraft limit that he had. It is in effect, a rate that the Defendant charged the Claimant when he drew funds from the Defendant when he had no right for doing so.

11.4 Using the reasoning as outlined in 11.3 and maintaining the principal of equity, mutuality and reciprocity and fairness and balance between the parties, the Claimant contends that he is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law, had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

11.4.1In addition the Defendant has had the enjoyment of this money to use as they so wished. It is averred that the Defendant has been able to re-lend the money unlawfully taken at the rates set out in the contract including the rate for unauthorised overdraft.

11.5 If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself in similar circumstances.

11.6 Without prejudice to 11.5, if no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

**Mad Hatter** · 18th May 2007, 18:05:PM

5th March 2007

Recieved my N150 from the court, duly completed. Now a question or 2..

My deadline is 16th March to send it back to the court.

So to the court and Cobbets i will send:
AQ
Schedules of Charges (Updated)
Draft Directions
Reply to the Defence..

**Mad Hatter** · 18th May 2007, 18:07:PM

9th March 2007

Dilemma time... This morning I had a 2 page letter from Cobbets, dated yesterday, offering me about half of my claim.

It goes like this...

Our client considers that your challenge to its charges would fail in court. Our client believes its charges are fair blah blah...

We note that you refer to the contractual rate as being a fair and equitable rate.

As the figure of 29.69% (I actually claimed 29.50%) is a mathematical average and not based on historical data, a court would be unable to find on the balance of probabilities that your calculations are accurate. It would be bound to find against you. The schedule you have provided relies on the assumption that the interest was being debited from the account at all material times and the account was in no stage in credit. Only if this premise is correct could the account have attracted interest day-to-day. To the extent that the account has been in credit since charges were first levied in 2001, there could have been no unauthorised borrowing interest.

In the circumstances, it is our clients contention that your client (my client?? was does that mean!!) is only entitledto unauthorisedborrowing interest accrued on the account at the time the charges themselves accrued. However, although our client remains of the view that you are only entitled to 8% interest, and is confident that it will be successful at a final hearing, its legal fees will almost certainly outweigh the value of the claim, and, as such, our client must take a commercial approach to such claims.

Accordingly, without any admission of liability, our client is prepared to settle this matter to prevent incurring further legal fees. We enclose a cheque bla blah...

1. Charges of xxxx
2.Interest at 8% per annum xxx

Please note that under the Limitations Act you cannot bring a claim over 6 years. You are not entitled to claim the first4 charges on your schedule, but as a GOGW our client will include these and the court fee.

Acceptance by you of this goodwill payment will be in full and final settlement and is strictly on the basis that:

1. You agree not to disclose to any third party (too late I have disclosed to 122,000 parties!) the fact of, or any details relating to this payment.
2. You write to the court withdrawing your claim.

then it goes on to say they may close my account blah blah...

So, my question is where do I go from here. I think they have me over a barrel to be honest, reading this I feel I must accept as I don't want to be exposed to costs if it were to go to court...

The only thing I can see that I can refuse on is confidentiality...

**Mad Hatter** · 18th May 2007, 18:10:PM

The only thing i can disagree on is the conditions... I will probably sleep on this but at moment i am of the opinion that i will fax something over on Monday, and use the next 4 days to see if i can neqotiate.. I don't feel comfortable sending in my AQ on this even..

So. Monday, i fax a letter starting off with the usual blurb that i am fully confident that i will win, let the judge decide on the interest, blah blah ( i only put blah blah cos i couldn't think what else to write LOL)..

However, in the spirit of the CPR rules i am prepared to work out a settlement figure to save the courts time/resource etc blah blah....

My conditions are

A) A full and final settlement of the charges between Dec 2000 and Dec 2006 of £7000
B) Full confidentiality as described in your offer dated 8th March

Alternatively.

A) A full and final settlement of the charges between Dec 2000 and Dec 2006 of £5500
B) Removal of all confidentiality clauses.

Again, i'm just playing with ideas at this stage, thinking aloud...

Mad Hatter v Nat West SETTLED