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Re: Skeleton Arguments Needed
The banking code 1998 stated this:"act fairly in our dealings with you." It doesn't state that they will treat customers fairly.
see above
Originally posted by trafalgar
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OK here are the arguments so far - they are hardly skeleton as there is a bit of detail in them, also please don;t get on my case (excuse the pun) for the ramshackle layout - this is very much work in progress.
The Background
1. The Claimant opened a current account with the Defendant in 1992 and prior to September 2000 operated the account for the most part in credit, with short periods where the account was overdrawn.
2. In October 2000, the Claimant’s current account became overdrawn, however, on this occasion, immediately and without prior notification, the Defendant substantially charged the Claimant where previously little or no charges were levied. The aggressive nature of the Defendant’s change in conditions forced the Claimant into a deep cycle of debt.
Was there a variation to the terms and conditions in this period? How was it communicated(usually statement insert)>
3. In October 2000 the Claimant sought assistance from the Defendant and referred to the previous good relationship from 1992, together with the fact that the Claimant was well educated, being a Chartered Engineer had a steady long term income, was married and had a small family (Son 6yrs, Daughter Just Born), factors which the Defendant was already well aware.
4. The Defendant refused any assistance by way of additional services such as an overdraft facility or short term loan. The only subsequent advice received was that the Claimant declare bankruptcy.
Was this when the charges had already started or before it spiralled or during the time it spiralled?
5. The Claimant not having Banking or Law expertise and unaware of the Banking Code of Practice did not realise that the account could be switched or closed during this period. The Defendant did not offer this advice.
They're under no obligation to tell you to switch your account as they are your current provider(or were at the time)
6. The severe financial position continued until October 2002 when the Claimant finally earned enough money to clear the account debt and close the account, having paid a total of Ł14785.00 over the 24 month period.
7. The Claimant only realised the mistake that a claim could be brought to recover the charges in October 2006 via news coverage. The Claimant wrote to the Defendant at that time, however, response was very slow and negative, resulting in the Claimant commencing Court proceedings in March 2007.
8. The Defendant then made an offer, which the Claimant rejected. Subsequently the case was stayed pending the result of the OFT Test Case.
9. Following the OFT Test Case result the Claimant elected to accept the original offer, this was rejected by the Defendant who then applied for the Claimant’s cases to be struck out, however, the Supreme Court judgement in the OFT Test Case clarified that a challenge can be made to the level of contingent or ancillary charges, provided that challenge is not based on the price/quality ratio of those services.
10. In particular the Supreme Court judgement made specific reference to the fact that challenges can be made under Regulation 5(1) of the UTCCRs which allows for the assessment of all standard form terms and conditions in contracts between consumers and sellers/suppliers. The assessment is one of ‘unfairness’, which is defined by 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.”
11. In the event that the OFT has now decided to discontinue with the legal challenge into the fairness of bank charges, then the court’s attention is respectfully drawn to the recent decision in Pannon GSM Zrt. v Erzsébet Sustikné Győrfi (ECJ Case C-243/08) were it was held that national's court of its own motion must determine whether the contract before it contains unfair terms.
However the EU case does not apply in this case since you are claiming they are unfair and the bank is not bringing an action against you which the other judgement did do. The circumstances are very different.
12. The Supreme Court judgement also touched upon the guidance with reference to Regulation 5(1) advised by Lord Bingham in Director General of Fair Trading v First National Bank [2001] 1 AC 481 (which was considered by Andrew Smith J) as follows:
“The requirement of good faith in this context is one of open and fair dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulation.”
13. The Claimant submits that in conjunction with the above the Defendant also acted in breach of contract.
The Arguments
Banking Code of Practice September 1998 (effective 31 March 1999)
14. The voluntary code of practice requires that Banks treat their customers fairly. The Defendant endorsed this code of practice. On this basis the Claimant submits that the code of practice is incorporated into the personal banking contract with the Defendant and is enforceable as implied contractual terms.
The banking code didn't say that banks would treat their customers fairly and not the eidtion from 1998.
15. The code of practice clauses 2.12, 2.13 & 3.4 states.
“Changes to terms and conditions
2.12 Occasionally terms and conditions may have to be changed. We will tell you how you will be notified of these changes. We will always give you 30 days’ notice before any change takes effect.
2.13 If the change is clearly to your disadvantage, we will:
• Notify you personally; and
• Ignore any notice period on your account for at least 60 days starting from the date of the notice so that you can, if you wish, switch your account or close it.”
“Pre-notification
3.4 If charges and/or debit interest accumulate to your current or savings account during a charging period, you will be given at least 14 days’ notice of the amount before it is deducted from your account. The 14 days start from the date of posting the notification.”
16. The Claimant submits that 30 days’ notice of any changes to terms and conditions or personal notification or advice regarding the 60 day notice period or 14 days’ notice of charges prior to deduction from the account was not given by the Defendant.
I think the determination of that issue is about changes to the terms and conditions themselves so that any change is notified to you in advance but not applied for a period of 60 days but specifically this term was based on 60 day notice accounts.
17. Charges were applied immediately to the Claimant’s account to which the Claimant was only aware of by bank statement received fortnightly or if the Claimant telephoned, which could be one, two or several days later by which time further charges had been applied, trapping the Claimant in a vicious cycle of debt.
You need to read this link with regards to the banking code which is the guidance:
http://www.bankingcode.org.uk/pdfdoc...%20Edition.pdf
18. The Claimant resorted to telephoning almost daily in an attempt to manage the situation, thereby placing a disadvantageous burden upon the Claimant, however, even undertaking this burden many cheques were returned attracting additional charges and fees. As internet banking was not yet available this rendered the ability of the Claimant to manage the account in credit almost totally impossible.
NatWest had internet banking in 2000 so not sure that that was an issue. Did you ask them about that?
19. The Claimant also had a loan agreement with the Defendant. Notably the Defendant allowed all repayments to be made from the Claimant’s current account regardless of whether the account was overdrawn. This illustrates a further example of unfair dealing and lack of good faith on the part of the Defendant.
At the time did you hold other banking facilities or ask about paying it from another account?
20. The Claimant submits that the Defendant took advantage of the necessity of the Claimant to pay for basic living expenses coupled with the weak bargaining position and subsequent induced hardship of the Claimant. This is contrary to UTCCR Regulation 5(1) as it clearly illustrates a lack of good faith by the Defendant and a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
21. The Defendant unfairly applied the contract terms relating to the application and incidence of charges highlighting a concealed pitfall and sharp practice of the terms and conditions of the contract.
22. The Claimant can support this by way of Current Account Statements.
Defendant’s Current Account Terms & Conditions 1992
23. The current account contract between the Defendant and the Claimant was not individually negotiated. The Defendant imposed its own standard terms and conditions on the Claimant and was not prepared to agree or to permit any individually agreed variations to the supplier/customer relationship.
24. The National Westminster Bank Terms and Conditions relating to overdrawn accounts states.
“Overdrawn Accounts
Overdrafts are available only for a Current or Current Plus account. You may overdraw your account only if you have first arranged this with your Branch Manager. If you do not have an arrangement, we may charge you a fee for being overdrawn, and interest at our rate for unauthorised borrowing.”
And further:
“..If there is not enough money in the account to meet a withdrawal we may:
• Refuse to meet the withdrawal or
• Close the account.”
25. The above terms granted the Defendant total power over the Claimant in respect of deciding when and what charges to apply, irrespective of the Claimant’s financial position and/or ability to manage the consequences of the Defendant’s actions and illustrates a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
26. The discretionary nature of the terms and conditions rendered the Defendant’s decisions opaque to the Claimant in that sometimes a charge was levied, sometimes not and sometimes charges were reversed.
27. The Claimant operated the account without difficulty for a period of 8 years between 1992 and 2000, establishing a familiar routine. In October 2000 the Defendant changed the terms and conditions abruptly and fundamentally to the significant detriment to the Claimant. A fair and reasonable pre-notification period together with close personal contact and guidance regarding how the Claimant would operate the account under the revised terms and conditions was not undertaken by the Defendant. This is evidenced by the crippling charges subsequently levied by the Defendant as illustrated in the Claimant’s bank statements.
28. The National Westminster Bank T&Cs relating to changes to an account states.
“Changes to an account
From time to time, we may change the features of an account or card, or the conditions that apply to it. We will write to tell you about any changes, and give you at least 30 days’ advance notice.”
29. The Claimant submits that 30 days notice of any change in conditions was not given by the Defendant. The Defendant’s actions in October 2000 represent a clear change in the conditions under which the contract was executed and thereby constitutes a breach of contract by the Defendant.
all the bank has to do is provide the change to the terms and conditions because the emphasis is on you to prove that the bank did not send them out.
30. The Defendant reserves itself the right to vary terms and conditions as it sees fit and these variations were imposed without discussion with the Claimant.
If you disagreed with the notifications then when did you challenge them? If you didn't then there is a tacit acceptance of them.
31. The Claimant requires a Current account as an essential part of modern life and the variation of this service by the Defendant without pre-notification and/or discussion with the Claimant is a clear illustration of the Defendant acting contrary to good faith and illustrates a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
Today you do but you didn't necessarily have to during the time period of the charges. In fact, you could have had a building society account.
32. There are further legal arguments to the said charges that can be brought under the Consumer Credit Act 1974, section 82 (1), Variation of Agreements which states the following:
(1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner
I haven't done the conclusion and apologise for the bad english and repetition in places - but this gives the full position so far.
T
The Background
1. The Claimant opened a current account with the Defendant in 1992 and prior to September 2000 operated the account for the most part in credit, with short periods where the account was overdrawn.
2. In October 2000, the Claimant’s current account became overdrawn, however, on this occasion, immediately and without prior notification, the Defendant substantially charged the Claimant where previously little or no charges were levied. The aggressive nature of the Defendant’s change in conditions forced the Claimant into a deep cycle of debt.
Was there a variation to the terms and conditions in this period? How was it communicated(usually statement insert)>
3. In October 2000 the Claimant sought assistance from the Defendant and referred to the previous good relationship from 1992, together with the fact that the Claimant was well educated, being a Chartered Engineer had a steady long term income, was married and had a small family (Son 6yrs, Daughter Just Born), factors which the Defendant was already well aware.
4. The Defendant refused any assistance by way of additional services such as an overdraft facility or short term loan. The only subsequent advice received was that the Claimant declare bankruptcy.
Was this when the charges had already started or before it spiralled or during the time it spiralled?
5. The Claimant not having Banking or Law expertise and unaware of the Banking Code of Practice did not realise that the account could be switched or closed during this period. The Defendant did not offer this advice.
They're under no obligation to tell you to switch your account as they are your current provider(or were at the time)
6. The severe financial position continued until October 2002 when the Claimant finally earned enough money to clear the account debt and close the account, having paid a total of Ł14785.00 over the 24 month period.
7. The Claimant only realised the mistake that a claim could be brought to recover the charges in October 2006 via news coverage. The Claimant wrote to the Defendant at that time, however, response was very slow and negative, resulting in the Claimant commencing Court proceedings in March 2007.
8. The Defendant then made an offer, which the Claimant rejected. Subsequently the case was stayed pending the result of the OFT Test Case.
9. Following the OFT Test Case result the Claimant elected to accept the original offer, this was rejected by the Defendant who then applied for the Claimant’s cases to be struck out, however, the Supreme Court judgement in the OFT Test Case clarified that a challenge can be made to the level of contingent or ancillary charges, provided that challenge is not based on the price/quality ratio of those services.
10. In particular the Supreme Court judgement made specific reference to the fact that challenges can be made under Regulation 5(1) of the UTCCRs which allows for the assessment of all standard form terms and conditions in contracts between consumers and sellers/suppliers. The assessment is one of ‘unfairness’, which is defined by 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.”
11. In the event that the OFT has now decided to discontinue with the legal challenge into the fairness of bank charges, then the court’s attention is respectfully drawn to the recent decision in Pannon GSM Zrt. v Erzsébet Sustikné Győrfi (ECJ Case C-243/08) were it was held that national's court of its own motion must determine whether the contract before it contains unfair terms.
However the EU case does not apply in this case since you are claiming they are unfair and the bank is not bringing an action against you which the other judgement did do. The circumstances are very different.
12. The Supreme Court judgement also touched upon the guidance with reference to Regulation 5(1) advised by Lord Bingham in Director General of Fair Trading v First National Bank [2001] 1 AC 481 (which was considered by Andrew Smith J) as follows:
“The requirement of good faith in this context is one of open and fair dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulation.”
13. The Claimant submits that in conjunction with the above the Defendant also acted in breach of contract.
The Arguments
Banking Code of Practice September 1998 (effective 31 March 1999)
14. The voluntary code of practice requires that Banks treat their customers fairly. The Defendant endorsed this code of practice. On this basis the Claimant submits that the code of practice is incorporated into the personal banking contract with the Defendant and is enforceable as implied contractual terms.
The banking code didn't say that banks would treat their customers fairly and not the eidtion from 1998.
15. The code of practice clauses 2.12, 2.13 & 3.4 states.
“Changes to terms and conditions
2.12 Occasionally terms and conditions may have to be changed. We will tell you how you will be notified of these changes. We will always give you 30 days’ notice before any change takes effect.
2.13 If the change is clearly to your disadvantage, we will:
• Notify you personally; and
• Ignore any notice period on your account for at least 60 days starting from the date of the notice so that you can, if you wish, switch your account or close it.”
“Pre-notification
3.4 If charges and/or debit interest accumulate to your current or savings account during a charging period, you will be given at least 14 days’ notice of the amount before it is deducted from your account. The 14 days start from the date of posting the notification.”
16. The Claimant submits that 30 days’ notice of any changes to terms and conditions or personal notification or advice regarding the 60 day notice period or 14 days’ notice of charges prior to deduction from the account was not given by the Defendant.
I think the determination of that issue is about changes to the terms and conditions themselves so that any change is notified to you in advance but not applied for a period of 60 days but specifically this term was based on 60 day notice accounts.
17. Charges were applied immediately to the Claimant’s account to which the Claimant was only aware of by bank statement received fortnightly or if the Claimant telephoned, which could be one, two or several days later by which time further charges had been applied, trapping the Claimant in a vicious cycle of debt.
You need to read this link with regards to the banking code which is the guidance:
http://www.bankingcode.org.uk/pdfdoc...%20Edition.pdf
18. The Claimant resorted to telephoning almost daily in an attempt to manage the situation, thereby placing a disadvantageous burden upon the Claimant, however, even undertaking this burden many cheques were returned attracting additional charges and fees. As internet banking was not yet available this rendered the ability of the Claimant to manage the account in credit almost totally impossible.
NatWest had internet banking in 2000 so not sure that that was an issue. Did you ask them about that?
19. The Claimant also had a loan agreement with the Defendant. Notably the Defendant allowed all repayments to be made from the Claimant’s current account regardless of whether the account was overdrawn. This illustrates a further example of unfair dealing and lack of good faith on the part of the Defendant.
At the time did you hold other banking facilities or ask about paying it from another account?
20. The Claimant submits that the Defendant took advantage of the necessity of the Claimant to pay for basic living expenses coupled with the weak bargaining position and subsequent induced hardship of the Claimant. This is contrary to UTCCR Regulation 5(1) as it clearly illustrates a lack of good faith by the Defendant and a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
21. The Defendant unfairly applied the contract terms relating to the application and incidence of charges highlighting a concealed pitfall and sharp practice of the terms and conditions of the contract.
22. The Claimant can support this by way of Current Account Statements.
Defendant’s Current Account Terms & Conditions 1992
23. The current account contract between the Defendant and the Claimant was not individually negotiated. The Defendant imposed its own standard terms and conditions on the Claimant and was not prepared to agree or to permit any individually agreed variations to the supplier/customer relationship.
24. The National Westminster Bank Terms and Conditions relating to overdrawn accounts states.
“Overdrawn Accounts
Overdrafts are available only for a Current or Current Plus account. You may overdraw your account only if you have first arranged this with your Branch Manager. If you do not have an arrangement, we may charge you a fee for being overdrawn, and interest at our rate for unauthorised borrowing.”
And further:
“..If there is not enough money in the account to meet a withdrawal we may:
• Refuse to meet the withdrawal or
• Close the account.”
25. The above terms granted the Defendant total power over the Claimant in respect of deciding when and what charges to apply, irrespective of the Claimant’s financial position and/or ability to manage the consequences of the Defendant’s actions and illustrates a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
26. The discretionary nature of the terms and conditions rendered the Defendant’s decisions opaque to the Claimant in that sometimes a charge was levied, sometimes not and sometimes charges were reversed.
27. The Claimant operated the account without difficulty for a period of 8 years between 1992 and 2000, establishing a familiar routine. In October 2000 the Defendant changed the terms and conditions abruptly and fundamentally to the significant detriment to the Claimant. A fair and reasonable pre-notification period together with close personal contact and guidance regarding how the Claimant would operate the account under the revised terms and conditions was not undertaken by the Defendant. This is evidenced by the crippling charges subsequently levied by the Defendant as illustrated in the Claimant’s bank statements.
28. The National Westminster Bank T&Cs relating to changes to an account states.
“Changes to an account
From time to time, we may change the features of an account or card, or the conditions that apply to it. We will write to tell you about any changes, and give you at least 30 days’ advance notice.”
29. The Claimant submits that 30 days notice of any change in conditions was not given by the Defendant. The Defendant’s actions in October 2000 represent a clear change in the conditions under which the contract was executed and thereby constitutes a breach of contract by the Defendant.
all the bank has to do is provide the change to the terms and conditions because the emphasis is on you to prove that the bank did not send them out.
30. The Defendant reserves itself the right to vary terms and conditions as it sees fit and these variations were imposed without discussion with the Claimant.
If you disagreed with the notifications then when did you challenge them? If you didn't then there is a tacit acceptance of them.
31. The Claimant requires a Current account as an essential part of modern life and the variation of this service by the Defendant without pre-notification and/or discussion with the Claimant is a clear illustration of the Defendant acting contrary to good faith and illustrates a significant imbalance in the parties’ rights and obligations, to the detriment of the Claimant.
Today you do but you didn't necessarily have to during the time period of the charges. In fact, you could have had a building society account.
32. There are further legal arguments to the said charges that can be brought under the Consumer Credit Act 1974, section 82 (1), Variation of Agreements which states the following:
(1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner
I haven't done the conclusion and apologise for the bad english and repetition in places - but this gives the full position so far.
T
see above
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