Chubbasdad v A&L - succesfully defended strike out application // discontinued claim

[natweststaffmember]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

No probs.....

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Nothing received as yet.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

hi,
just resent the emeil to admin@legalbeagles.info (fw chubbas dad)will be home at about 3 so will chek in with you then.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

on its way ame............sorry to be a pain.

[Tools]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Ame has emailed you

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

got it, thanks tools.

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

25 February 2010.
District Judge XXXXXX
XXXXXX County Court
Address
Address

Dear District Judge XXXXXX
Claim ref : xxxxxxxxxxxxx - Hearingxxxxxxxxxxx 2009 xxxxxxx pm
Please find enclosed my submissions to defend the Defendant’s application to strike out my claim.
I have sent a copy of this to the Defendant.
Yours faithfully

xxxxxxxxxxxx








case/claim No: [claim number]


In the XXXXXXXX County Court
xxxxxxxxxxxxx

xxxxxxxxxxxxxxxxx
CLAIMANT
-AND-

Alliance & Leicester
DEFENDANT


First WITNESS STATEMENT

OF xxxxxxxxxxxxxxxxxxx



I, xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxx 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 v Abbey National & Ors 2007-1186 ‘test case’.

7. Alliance & Leicester were not a party to the Office of Fair Trading v Abbey National & Ors 2007-1186 ‘test case’.

8. In High Court Judgment Office of Fair Trading v Abbey National & Ors [2008] EWHC 875 (Comm) Mr Justice Andrew Smith, based on the evidence submitted, held that, with few exceptions, banks terms allowing the imposition of relevant charges were incapable of being penal at common law.

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.

12: 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 . the Claimant intends to aver the relationship was unfair in at least the respects outlined in paragraph 15, excepting those which relate to price.

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. Without prejudice to the burden of proof which rests on the Defendant to prove that the circumstances of its relationship with the Claimant are fair the Claimant intends to aver the relationship was unfair in at least the respects outline in paragraph 15.

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: There is an unfair relationship and a significant imbalance in the parties' rights and obligations and this is to the detriment of the Claimant. 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 preemptory exercise of this contractual right is a frequent cause of future financial problems for many bank customers. .
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 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.


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 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.

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 25th day of February 2010

Signed
[type name] __________________ __________________ __________________

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

lovely jubbley.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

still having probs with the email system.i am going to go with the suggested.defence away to a & l and the court in the morning.

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Stick to my personal email address chubba if you need to email me - goodness knows whats up with our beagles address - its held on a seperate server so I might need to ask Tools to take a look at it (if he reads this then HINT HINT )

xxx


Next step Chubba is to work on your POC's........ time for a LOT of reading and digging old files out the shed lol

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

i have started digging everything out, and hi lighting charges and dates.i have everything in a folder from the begining so i should be ok from that perspective.i know what i need in my pocs, but its how to word it and what refrence material to put in.the fairness issue, hmm! will be about the help i asked for when i got divorced,and the charges (with dates) that arose at that time.i am looking for instances where the charges inherited charges and so on.oh well here goes again............once more into the breach!:tinysmile_aha_t:

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Feel absolutely free to post up anything you arent sure of and we can help you word it.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

sent the statement to a & l today, and dropped the copy into my local court :tinysmile_twink_t2:

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Nice one, you going to try put your POC together pre hearing or wait till after ?

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Im On It Now....will do the number crunching over the weekend i hope if the kids allow me some "dad time". will i claim the interest at 8% as in my original claim with the 0.021% daily charge to date?