Dyfrigj v Santander (bank charges) - dismissed in court - no costs Jan 2011

[dyfrigj]

Hi,
I've filed a claim against Santander, and am working on filling out my allocation questionaire. I'll post a short history of the claim so far, and then I'll put their defence etc in a seperate post.

I was given £300+ of charges in one month, which I was obviously not very happy with. I'm not going to be able to plead hardship, but I'm keen to challenge the fairness of the charges, using the argument that they are contrary to the terms of the CCA.

I filed a claim against Santander in June, which they did not defend. I was awarded judgment in default on the 7th of July, but Santander challenged this, arguing that their failure to submit a defence was a clerical error at Northampton County Court.

They applied to have the judgment set aside, and on the 20th of August were sucessful. On the 1st of September, they entered a defence, and I have until the 20th to fill in my allocation questionaire.

[Amethyst]

Re: Allocation Questionaire for Santander

Can you post up your claim particulars too please dyfrigj Thanks. Ame xx

[dyfrigj]

Re: Allocation Questionaire for Santander

I have a fair understanding of the CCA case, and was confident that I would be able to present reasonable arguments to the court. However, Santander's defence argues that the charges are not subject to the terms of the CCA. I have copied the relevant paragraphs below

4. It is denied that the Standard Terms constituted a single credit agreement between the Claimant and the Defendant within the meaning of section 140C of the Consumer Credit Act 1974 ("The CCA") Rather

4.1 To the extent that a credit agreement existed at all (which is not admitted) such credit agreement consisted only of the terms governing the overdraft. It is denied that the terms of such credit agreement included fees for unpaid items. Furthermore the Claimant's account was never subject to an arranged overdraft facility during the period from 4 February 2008 to 15 June 2010

4.2 On each occasion on which a credit agreement was varied os supplemented (including by a decision of the Defendant to give effect to an unarranged borrowing instruction issued by the Claimant) the existing agreement is treated as revoked under section 82(2) of the CCS and thereby became a "completed" agreement under paragraph 1(2) of Schedule 3 to the Consumer Credit Act 2006. It is denied that any charges paid by virtue of a credit agreement which became a completed agreement before 6 April 2008 can be the subject of an order under section 140B of the CCA. The Defendant will rely upon paragraphs 14(2) (a) and (b) of Schedule 3 to the Consumer Credit Act 2006

I'm not overly concerned about 4.1, but I'm worried about 4.2. Is there anyone who might be able to shed any light on this for me? I don't have any legal training, and I'm struggling to follow the argument they're presenting.


------------------------------- merged -------------------------------
Here are my POC

I hold a Current Account with Santander,
which is operated in accordance with the
standard terms and conditions which the
Defendant applies to current accounts held
with it.
During the period 04/02/2008-15/06/2010,
the Current Account was in unauthorised
overdraft. During this period the Standard
Terms constituted a credit agreement between
the Claimant and the Defendant pursuant to
s.140C of the Consumer Credit Act 1974.
The Standard Terms and/or the circumstances
in which the Bank Charges were levied were
such that the relationship between the
Defendant (as creditor) and the Claimant (as
debtor) arising out of the Standard Terms is
and/or was unfair to the Claimant (as debtor)
within s.140A(1) of the Consumer Credit Act
The claimant claims interest under section 69
of the County Courts Act 1984 at the rate of
8% a year from 04/02/2008 to 15/06/2010 of
£1,612.00 and also interest at the same rate
up to the date of judgment or earlier payment
at a daily rate of 8.00%.

[Amethyst]

Re: Allocation Questionaire for Santander

Thanks

You never had an agreed overdraft on the account.

After April 2008 were you at any time in an unauthorised overdraft position ?

In your POC

During the period 04/02/2008-15/06/2010, the Current Account was in unauthorised
overdraft.

Santander seem to be saying that is not the case.


The part of the CCA 2006 quoted (Transistional Provisions)

Unfair relationships

14(1)The court may make an order under section 140B of the 1974 Act in connection with a credit agreement made before the commencement of section 20 of this Act but only—

(a)on an application of the kind mentioned in paragraph (a) of subsection (2) of section 140B made at a time after the end of the transitional period; or

(b)at the instance of the debtor or a surety in any proceedings of the kind mentioned in paragraph (b) or (c) of that subsection which were commenced at such a time.

(2)But the court shall not make such an order in connection with such an agreement so made if the agreement—

(a)became a completed agreement before the commencement of section 20; or

(b)becomes a completed agreement during the transitional period.

(3)Expressions used in sections 140A to 140C of the 1974 Act have the same meaning in this paragraph as they have in those sections.

(4)In this paragraph “the transitional period” means the period of one year beginning with the day of the commencement of section 20.

(5)An order under section 69 of this Act may extend, or further extend, the transitional period.

[dyfrigj]

Re: Allocation Questionaire for Santander

I was certainly in an unauthorised overdraft for some of this period. I suspect that I would have been overdrawn in around 3/4 of the time period of the claim.

I have worked out part of 4.2 as well. It appears that any debts which were settled before the 6th of April 2008 cannot be considered. However, this only applies to 1 of the charges which relate to my claim.

[Amethyst]

Re: Allocation Questionaire for Santander

Yip that sounds about right

Does your spreadsheet detail when you went in and out of unauthorised overdraft as well as charges applied ?

[Amethyst]

Re: Allocation Questionaire for Santander

Is there any other defence on the unfair relationships aspects of the claim ?

I presume a fair bit is about the OFt v Abbey etc. You decided not to use 5(1) of the UTCCR in your claim ?


(out of interest who was the barrister they sent to the set aside hearing?)

[dyfrigj]

Re: Allocation Questionaire for Santander

I've been back through my statements, and I was overdrawn for a total of 179 days during the period of my claim. Do you think that the number of days is relevant here?

[Amethyst]

Re: Allocation Questionaire for Santander

Nope, it the dates when you entered and left an overdrawn position that are important.

[dyfrigj]

Re: Allocation Questionaire for Santander

How are they important? Do you think that my Allocation Questionaire should include a full list of the dates?

[Amethyst]

Re: Allocation Questionaire for Santander

No, your AQ is for directions you think are needed for the handling of the case - ie dates you are away, allocation to track, moving to a court near you, draft directions for disclosure etc, so should all be straight forward.


Am just trying to find out if you actually have a case or not seeing as you have only argued the unfair relationship, and not UTCCR. The dates will be important for witness statements/skel arguments later down the line.

I suspect Santander will be asking for Fast Track.

[dyfrigj]

Re: Allocation Questionaire for Santander

My understanding was that the UTCCR arguments were not likely to work after the Supreme Court Judgment. But I was under the impression that the same questions relating to fairness could be asked again, only in the context of the CCA. The advantage of the CCA being that the burden of proof lies with the Creditor.
So far I have not offered any specific examples - mainly because the POC form limited me to a few hundered words. At what point do I have to present my detailed arguments? Do I include these with the Allocation Questionaire, or does that come later?

[Amethyst]

Re: Allocation Questionaire for Santander

That will come after the AQ's are dealt with. You will receive directions from the court a couple weeks after you submit and pay the AQ fee.

[Amethyst]

Re: Allocation Questionaire for Santander

Oh, one thing, have Santander asked for strike out or summary judgment in their defence ? If so you should do a reply to that and expand on your POC whilst doing so.

If they havent, they may do in the AQ, but you can defend that then. (procedurally wise)

[dyfrigj]

Re: Allocation Questionaire for Santander

Many thanks for all your help, it is much appreciated. I'm going to return my Allocation Questionaire, and then work on my Reply to Defence. I'll post the reply on here as soon as it's done, for feedback from the forum. Thanks again for taking time to help me.
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They haven't applied to strike out in the Defence, but the Barrister which they sent up to apply to set aside the first judgment suggested that they would try and have the claim moved outside the Small Claims track (presumably to try and frighten me off with the danger of costs).