Dusty v Yorkshire Bank - summary judgment & costs against claimant

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

mmmm my thinking is thats not the case summary as it mentions the case summary - if you know what I mean, so I think its worth a call.

Thank you.

Even if you dont have the overdraft request in writing you can still use it, they will have notes on their systems (conveniently deleted I expect lol)

[gaz2006]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Juat to say Im following your case too looks like we had account at same branch though my case is sin Telford as thats where I live rather than shrewsbury
Regards Gaz

[dustymare]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Hi Gaz, all the best, how are you getting on? Hope you're not as nervous as me and also better on the computer? Going to try and start spreadsheet tomorrow, will cheat and ask secretary at work to start me off.

Amethyst, I tried to ring Kirstie a few times today, but as someone else said on another thread, line always engaged. Tried to do ring back but it says fault on the line. I then reported the fault to BT. As it's someone elses number and not mine they can do nothing about it because if the fault is their problem there will be a charge to them. They cannot tell me name of company but when I explained why I need to speak to Kirstie urgently she did say that the number belongs to a bank not solicitors. Any ideas how else to get in touch with Kirstie, no address on paperwork? Do you think the court would let me have more info?
Thanks Sue

[gaz2006]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Hiya I asked court to send me copy of application at least that is a start not brilliant on computer and cant type well but can spell but dont check Regards gaz

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

0141 2424492 - seems to be her personal voicemail number according to Claire on PC.

[Tools]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

I have just telephoned Clydesdale in Glasgow to speak with Kirstie Ross, however, once again she is "not in today". They confirmed her contact number is 0141 242 4492, but I went through the main switchboard on 0141 248 7070 and asked for the legal department.

I am now unsure if Miss Ross actually exists and after speaking to someone called James consulted with a Barbara Bell who apparently does a job share with Miss Ross??????

I explained who I was and that I was from Legal Beagles making enquiries relating to the applications for summary judgment/strike outs. He became very sheepish and told me that any concerns I had would have to be put in writing. I asked for an email address for Miss Ross but he was not prepared to give me it. I have said I will telephone to speak to her tomorrow.

[Tools]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

I now have her email address kirstie.ross@eu.nabgroup.com

I have also edited your other attachments and made them visible.

[dustymare]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Thanks Tools,

Have just sent email. Will let you know as soon as I hear anything.

Will try and set up spreadsheet for costs later. Could someone let me know what interest rate needs to be added please.
Sue

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Ace - let us know what she says (if anything) we're working on the response for court now

[Tools]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Fantastic Sue, and thank you for being so proactive with this, makes things a lot easier from our side too.

Could you either post up or forward the email you sent and any replies you receive.

As for interest, my own personal opinion would be to just add simple statutory interest @ 8%.

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Sue - have you posted a copy of your original particulars of claim ? (apologies if you have can you point them out as I cant find them ) thanku, Ame xx

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Pending further info Sue just making a start on the WS and POC's and will draft them in this post (its simpler for me) Can you check any red bits and give me the info so I can amend as necessary. Needs more work, so as I update and refine things will bump the thread

case/claim No: [claim number]

In the SHREWSBURY County Court

[SUE name]

CLAIMANT

-AND-

YORKSHIRE BANK PLC

DEFENDANT

First WITNESS STATEMENT

OF [SUE name]

I, [SUE name] of [insert home address] will say as follows:-

1.I am the CLAIMANT is this case.

2.I make this Witness Statement in defence of the Defendants application to strike out the claim on the basis that the Claimant’s statement of case discloses no reasonable grounds for bringing the claim and/or summary judgment on the grounds the claim has no real prospect of success.

3.I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. On XX XXXXX XXXX the Claimant entered a claim against the Defendant through Moneyclaimonline at the Northampton Bulk Processing Centre.

5. On xx xxxxxx xxxx the Defendant submitted a defence.

6. On xx xxxxx xxxxxx the claim was stayed on the courts own motion pending the final determination in the Office of Fair Trading test case 2007 folio 1186

7. In Judgment April 2008 Mr Justice Andrew Smith, based on the evidence submitted, held that none of Yorkshire Banks's relevant charges were capable of being penal at common law: see [2008] EWHC 875 (Comm).

8. The Claimant notes this Judgment.

9. On 25th November 2009 the Supreme Court handed down Judgment in the Appeal The Office of Fair Trading (Respondents) v Abbey National plc & Others (Appellants) and made a declaration THAT, the bank charges levied on personal current account customers in respect of unauthorised overdrafts (including unpaid items and other related charges) constitute part of the price for the banking services provided and, in so far as the terms give rise to the charges are in plain intelligible language, no assessment under the Unfair Terms in Consumer Contracts Regulations 1999 of the fairness of those terms may relate to their adequacy as against the services supplied.

10. The Claimant contends that the Supreme Court Judgment was based on a very narrow issue and limited evidence, and one which was not argued by the Claimant in his original statement of case. The Claimant has been subject to a general stay pending the final determination in the Office of Fair Trading test case and this is the Claimants first opportunity to amend his claim to take into account legal issues which have been clarified in the course of proceedings. The Claimant believes he has a reasonable prospect of success.

11: It is the Claimant's contention that the contract between the parties is unfair as the terms create an imbalance to the detriment of the Claimant. As such the terms of the contract allowing the imposition of charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 (“ UTCCR 1999”), under Regulations 5(1) of the UTCCR 1999 and by analogy to paragraph (e) of SCHEDULE 2 to the UTCCR 1999 Indicative and Non-Exhaustive List of terms which may be regarded as unfair, and thus not binding on the Claimant under Regulation 8. One of the matters which the court will have to establish is that the bank has not dealt fairly and openly with its customers as regards the process by which the standard form contract were agreed by
,or otherwise became part of the contract, berween the bank and its customers. Justice Smith declined to make a declaration on the issue of good faith [2008] EWHC 875 (Comm) and this issue was not considered by the Supreme Court .

This can be seen at least in the following ways:-

a) The bank reserves itself the right to vary terms and conditions as it sees fit.
b) These variations are imposed without discussion with the customer.
c) The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated.
d) The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer.
e) It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made.
f) There is a lack of mutuality in the bank/customer relationship. There is no reciprocity so that the customer is not permitted to impose any contractual variations on the bank.
g). The current account contract allows the bank to impose charges at in the event that the customer makes some error in the management of his account. The bank will not accept any similar liability in the event that it makes a similar error in the management of the customer’s account.
h). The bank reserves to itself a right to terminate the banking relationship at any time for any reason. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of future financial problems for many bank customers. Many banks in fact terminated Consumer accounts because they exercised their right to bring legal proceedings.
i). The bank reserves itself the right to terminate any overdraft facility and to require repayment within a time schedule of its own choosing. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of grave financial problems for many bank customers.
j). It is submitted that the points listed above are all highly symptomatic of a want of good faith by the banks in the form and in the application of their standard form contract.
k) Until the recent OFT litigation, the banks had failed to be transparent about their charges in that they had denied that cross-subsidy took place at all and had even attempted to suggest that their charges were informed by the administrative costs of dealing with insufficient funds situations.
l). It is submitted that this deceptive information was calculated to deny their customers a chance to judge whether they really were receiving value for money in respect of the charges they were being forced to pay. The information was not given to their customer in good faith and was calculated to make them act to their own detriment.

12:In any claim in which the unfairness of contractual terms in a consumer contract are raised as an issue, the evidential burden rests with the seller or supplier to prove that the contractual terms are not unfair. This point has been firmly established by the European Court of Justice in a number of cases, starting with the joined cases of Océano Grupo Editorial SA v Roció Murciano Quintero (C-240/98), Salvat Editores SA v José M. Sánchez Alcón Prades (C-241/98), José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú (C-244/98), where it was ruled that there is a duty on the Court to raise of its own motion the question of “unfairness” in respect of such terms. The Claimant respectfully asks the Court to consider these points.

13:It is the Claimant's contention that the contract creates an imbalance in the parties rights and obligations to the detriment of the Claimant, creating an unfair relationship under section 140 of the Consumer Credit Act 1974 (as amended). The contract is a regulated debtor-creditor agreement within the meaning of the Consumer Credit Act 1974 (the “Act”) see Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.

14: The Claimant has suffered loss due to anti-competitive behaviour of the Defendant under Chapter 1 and / or Chapter 2 of the Competition Act. (i) Bank engages in price discrimination on the basis of property (ii) Bank (via Relevant Terms) causes overall price of account to be higher than in a competitive market.

15: The Claimant also considers that the terms in effect at the time of opening the account and up until the announcement of the recent test case, have historically been represented contrary to the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which the banks knowingly benefited.

16: The Claimant respectfully asks the Court to order the Defendant to make available to the Court and the Claimant the terms of the original contract between the parties and further, each and all subsequent periodic variations to said contract since its inception. It is the Claimants belief that the Defendant holds such archives of said material which will be readily available without expense or difficulty.

17. The Claimant requests that the Claimant be granted permission to amend and expand his statement of claim to better clarify his claim, after which the Defendant be granted the standard times to submit a acknowledgement and defence, and that this case be heard upon its own merits and evidence presented to the Court.

18. In addition, the court will be aware that it needs to do justice between the parties in light of the overriding objective and the court is reminded that the Claimant is litigant in person.


Statement of Truth

I believe the facts stated within this Witness Statement to be true.

Dated this 14th day of February 2010

Signed
[type name] __________________ __________________

[Tools]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Minor edit in blue

[Amethyst]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Another point to make is we will a fair idea how things will go as Claire's hearings on 26th, so we'll get everything ready and keep an eye on her hearing.

[dustymare]

Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application

Thanks Amethyst and Tools, you really are great and very supportive. I am pretty sure I did not post the original POC, what am I looking for? I entered the claim online and just followed the templates on MSE for the letters. I do have copies of all correspondence (sad eh?) and if you point me in the right direction should be able to find them out.
Thanks Ame for doing the WS for me, not only simpler but a lot quicker as I haven't a clue how to word it. I seem unable to edit the red bits but I entered the claim online, so 4 is Northampton county court. Sorry to be thick but I don't understand what you mean in 8, I note what judgement, does this mean point 7?
Also whilst going through paperwork I found a letter from the Yorkshire bank dated April 07, giving me a list of terms and conditions. You asked me a while back if I had these, but I presume you mean the original ones from when we opened bank account. Can send if any use.
Yours Sue
PS I have forwarded copies of my email to Kirstie and here automated reply to you. Sorry did not know how to add on here.