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The order for the hearing
ORIGinal POC - red bits are needed to be removed
Particulars of Claim The Claimanthasan account *****("the Account") with the Defendant which was opened on or around 2006
The Claimant contends that:
Insofar as they might be penalties the charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.
The purported terms imposing the charges levied by the Defendant are invalid under UTCCR becausea.They are contrary to the requirement of good faith.
b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-
Have made the now incorrect parts red - the rest is okay and will just want strengthening and other arguments adding (such as cca 140 unfair relationships and misrepresentation and competition etc) But as it stands there is enough 'in the alternative' which already puts the onus on the bank to prove are fair under 5(1) ( http://www.legalbeagles.info/forums/...ad.php?t=19062 ) and don't apply directly to the price adequacy that it shouldnt be struck out solely on the basis of the Supreme Court Judgment.
Nationwide filed defence - 15th December ish
AQ entered december 16th ish (ie before OFT dropped out)
Notice of Hearing
TAKE NOTICE that the allocation and directions hearing will take place on 26th February 2010.at kingston-upon-hull county court.
When you should attend
30 minutes has been allowed for the hearing
Please Note: This case may be released to another judge, possibly at a different court.
to consider both the claim and defence in the light of the decision of the supreme court of 25th November 2009 in the case of T-V - AbbeyNational & others.
Any info would be appreciated
Regards
TAKE NOTICE that the allocation and directions hearing will take place on 26th February 2010.at kingston-upon-hull county court.
When you should attend
30 minutes has been allowed for the hearing
Please Note: This case may be released to another judge, possibly at a different court.
to consider both the claim and defence in the light of the decision of the supreme court of 25th November 2009 in the case of T-V - AbbeyNational & others.
Any info would be appreciated
Regards
Particulars of Claim
- The account was conducted on the basis of the defendant’s own standard terms and conditions.
- At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
- During the period in which the Accounthas been operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
- Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
- The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
- A list of the charges applied is attached to these particulars of g claim.
The Claimant contends that:
Insofar as they might be penalties the charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.
The purported terms imposing the charges levied by the Defendant are invalid under UTCCR becausea.They are contrary to the requirement of good faith.
b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-
- Bank accounts have become a basic essential service
- The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
- There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
- These banks exercise a collective dominance in the market.
- The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
- The charges exceed actual costs by several thousand percent
- They are applied unilaterally in a standard form contract without the possibility of negotiation
- The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
- The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
- The customer had no means of assessing the fairness of the Charges at the time of entering the contract
- The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
- Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
- The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
- The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
- The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
- The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.· As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey& 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.
11.In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.Accordingly the Claimant claims:
a) the restitution of the amounts debited in respect of charges in the sum of £*********
and
interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 15/01/2007 to 13/11/2009 of ******
I believe that the contents of these particulars of claim are true
Signed:
Date: 13/11/2009
Nationwide filed defence - 15th December ish
AQ entered december 16th ish (ie before OFT dropped out)
AQ asking for general stay - we can apply to amend particulars at a later date (not much point doing it as yet) depending a) on the oft announcement and b) on what the court responds to this and c) what the bank responds to the AQ
Okay the AQ (N149)
A - Yes (postpone for a month to discuss settlement - give you a bit of breathing space to see what the OFT intends to do regarding the test case basically)
B - straightforward - your local court if its not there already.
C - small claims track - YES
D - 0
E - no
F - straightforward
G - Other information - ''Following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the defendant or otherwise to generally decide the issues. I therefore respectfully submit that it would be appropriate for the Court to apply a general stay in this claim pending resolution of the issues raised.''
H - yes, unless you are exempt but you tick yes anyway and attach an EX160 if you are
I - sign it.
Okay the AQ (N149)
A - Yes (postpone for a month to discuss settlement - give you a bit of breathing space to see what the OFT intends to do regarding the test case basically)
B - straightforward - your local court if its not there already.
C - small claims track - YES
D - 0
E - no
F - straightforward
G - Other information - ''Following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the defendant or otherwise to generally decide the issues. I therefore respectfully submit that it would be appropriate for the Court to apply a general stay in this claim pending resolution of the issues raised.''
H - yes, unless you are exempt but you tick yes anyway and attach an EX160 if you are
I - sign it.
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