Dusty v Yorkshire Bank - summary judgment & costs against claimant

[dustymare]

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

Me again, have just managed to open the link for spreadsheet. The one I copied in still would not work for me so tried the other which is Excel. Did not expect it to work as don't have Excel but it did. SO will make continue with this over next few days. Doing the compound one, is this ok or shall I do 8% per annum? Won't do anymore till I hear.
Thanks all.
Sue

[Tools]

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

In my opinion Sue only use the 8% interest, claiming CI would be another risk you really do not need. It would involve you arguing the merits of Sempra in court and without wishing to sound patronising, I really do not think you are capable of that, I know I wouldn't be.

At this stage we are struggling to keep ANY arguments in Court, to now claim CI would be entering a whole new ball park.

[dustymare]

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

Thanks Tools, will do 8% per annum, is that right? Will the spreadsheet do this automatically? Your right, there's no way I could argue, let alone cope with anything else in court.
Sue

[Tools]

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

Yep, that's right 8% per annum from the date of each charge incurred.

The spreadsheets have been designed to calculate 8% interest from the date of each charge until today's date.

[Amethyst]

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

have made some edits in #46

[Amethyst]

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

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 and I request the court allows the Claimant able to amend and expand his statement of claim.

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 and intends to make further submissions on this issue.

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 overall 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) 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 and (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, and thus not binding on the Claimant under Regulation 8. Regulation 5 of the Unfair Contract Terms in Consumer Contracts Regulations 1999 is concerned with the quality of the supplier/consumer relationship and makes it clear that where there is an unfair relationship contrary to the requirements of good faith, and to the detriment of the consumer, then such terms of the contract which operate in this way will be held to be invalid. The Supreme Court specifically said that the question of bank charges was still open to be challenged under Regulation 5 of the Unfair Contract Terms in Consumer Contracts Regulations 1999. The current account contract was not individually negotiated, because the Defendant imposes its own standard terms and conditions on its customers and is not prepared to agree or to permit any individually agreed variations to the supplier/customer relationship.

There is a significant imbalance in the parties' rights and obligations and this is to the detriment of the customer. This can be seen at least in the following ways:-

i.The bank reserves itself the right to vary terms and conditions as it sees fit.
ii.These variations are imposed without discussion with the customer.
iii.The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated.
iv.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.
v.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.
vi.There is 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.
vii.The current account contract allows the bank to impose charges at a high rate 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.
viii.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.
ix.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.

The Claimant was at all material times a “consumer” within the Regulations. 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, between 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 .

12:Until the recent OFT litigation, Yorkshire bank 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. 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 and the overall value of the banking facility. The information was not given to their customer in good faith and was calculated to make them act to their own detriment.


13: 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.


14: 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.


15: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 Vińas 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.

16: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.

17: 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.

18. The Claimant requests that he be granted permission to amend and expand his statement of claim to better clarify the points made above, 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.

19. 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] __________________ __________________ __________________

[natweststaffmember]

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

Having read megandsen thread, paragraph 18 might need to be amended for clarity ie he/she.

[Amethyst]

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

done.

Should we change all the he/his to she/her ? think thats up to Sue really.

Remember Sue - this is just a witness statement to get you in a position where you can amend your POC's.

[dustymare]

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

Thanks Ame for your hard work. If its not too much hastle I would prefer the he/his be changed to she/her.
Sorry to sound thick, but will I have to type the witness statement out to add in personal details or is there a way to fill it in?

[Amethyst]

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

I'll put it in a word doc for you xx

[Amethyst]

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

In word. It needs spell checking and the he changing to she etc - will help you read through and check you understand everything by doing that

Any questions PLEASE ask.

[dustymare]

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

Brilliant Ame and thank you so very much for all your hard work and support.
I have now completed the WS and my spready, yippee.
After reading through I do have a few little queries though and would appreciate your help in sorting out a few bits please.
Do I have to read up all the cases quoted in 15 or maybe just 1 or 2? Do you think the judge will expect me to know as they are in my statement? I hope not cos my head is full up at the moment!
In 2 and 18 it say's "expand her statement of claim", is this the same as particulars of claim or does it mean that I will expand on my particulars of claim? Even my ? does not make sense now!
In 10 it says statement of case, should it be claim like the others, sorry got a little confused with the wording but I do understand what the statement means.
Also a while back you asked if I had the original T&C. I don't but they were sent to us in a letter from April 07. Included it for your info but probably not relevant as expect would be the ones for that year.
Thanks again Sue x :tinysmile_grin_t:

[Amethyst]

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

mmmmm 15


Have a look at this thread and the first post has a doc explaining about burden of proof - http://www.legalbeagles.info/forums/...ghlight=pannon which is what those cases are. They basically are the case law that says the burden of proof that terms aren't unfair rests with the seller (the bank in this case)

Looking at it now I think we should add this on to the end of para 15 or add in as a new para 16 (sorry)

The court’s attention is respectfully drawn to the recent decision in Pannon GSM Zrt. v Erzsébet Sustikné Gy orfi (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.

[Amethyst]

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

statement of case / particulars of claim

Yes indeed change them all over to Particulars of Claim (depends what day i wrote what bit and what mood I was in really as to whether I put SoC or PoC - is just there to test you read it properly really )

[dustymare]

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

Thanks will do that. Yep, read it through and please add and delete to your hearts content because without your help I would never have got this far.:beagle: