Glenn Vs Abbey

[Glenn UK]

Originally Posted by joneshousehold

Excellent news Glenn. We got £250 in costs and Inga told me there was no way she could go any higher. She was obviously economical with the truth once again!
The cheque did follow quickly afterwards so it should be in your hands soon. I assume the default was also removed. So all round, a very good job done.

Its an interesting comment from Inga. The costs of the winning party are not determined by a level set by the losing party. Im sure you know this, but in case you dont there is a CPR which sets out what you can claim and how much, I'll try to lok out the reference but basically its 9.25 per hour, standard lettersd are charged at 6 minutes per letter, standard letters in are not charged but file perusal is and so if you need to go thorugh the file or somehting as a result then you can charge.

HTH

Glenn

[joneshousehold]

I tried to claim the amount of time it took to research the legislation and she said the Abbey should not have to pay for this. We could have got a professional to do the work for a lot less cost and her 'boss' said anything over £200 and they would go to court. The court would then ask for the costs to be assessed or something like that and there was no way the court would award a higher amount. I talked her up to £250 and we accepted. I thought she was being dishonest at the time but at least we got something out of them.

You did make some comments about it in our thread
joneshousehold v Abbey
I just want to keep this fresh in peoples minds because Inga and her crew are likely to keep on churning out these comments if we don't challenge them. By posting as often as possible, more people get to see the comments we make and can rehearse the arguments in case they get caught in the same situation.
Good on you for getting so much out of them. It makes me feel so much better!

[charleyfarley]

The definitive claimer of costs is

Teebum V Abbey **** WON !!!! ****

post #461 onwards, so I don't know where ICK gets her 250 quid from

[Glenn UK]

Originally Posted by charleyfarley

The definitive claimer of costs is

Teebum V Abbey **** WON !!!! ****

post #461 onwards, so I don't know where ICK gets her 250 quid from

LOL

thanks for that, i guess i shall get my coat then, I only got 470 for time, postage and copying, damn.

GLenn

[Glenn UK]

Some people have asked how i got my costs below is a schedule, its slightly different to the one i submitted to Abbey.

The one i submitted had some things in which they objected to (e.g. standard letters i had received at 6.75) so after they complained i reviewed it to make sure i couldn't be criticised for claiming something i had not.

By the same token there were things i had not included hence this revised schedule. if Abbey had not agreed to pay my costs in full this was to be sent to the court to support my claim.

I spoke with one of our wonderful mods last night and she willupload the spreadsheet hopefully yo day if she gets a chance, sorry for the delay folks

Please ask any questions and ill try to help.

Glenn

[d1cky]

By the same token there were things i had not included hence this revised schedule. if Abbey had not agreed to pay my costs in full this was to be sent to the court to support my claim.


are u saying that abbey agreed to pay your costs, even tho u had not gone to court yet? at which stage did u put in your claim for costs?

[d1cky]

sorry , can someone tell me how u jus quote part of a post please!

[Glenn UK]

yes thats right abbey paid my costs even though we had settled out of court.

In my case the claim had been listed in the fast track which means my costs were recoverable generaly up to a value of 750 plus court costs i believe assujing i won.

Because of this i was within my rights to reclaim all my costs. If it had been in small claims court i could have reclaimed my fess as of right and i would have had to ask the judge to consider the banks unreasonable behaviour as a reason for the court to order them to pay my costs.

It is customary to talk about costs after you have won. So when they conceded i wrote and said thanks by the way heres my bill for costs.

re quoting use the 'quote' button and delete the bits you dont want to use or alternatively type "quote" and put it into square brackets and then type what you want to quote, with " [/quote] " at the end.

HTH

Glenn

HTH

Glenn

[d1cky]

Originally Posted by Glenn UK

yes thats right abbey paid my costs even though we had settled out of court.

In my case the claim had been listed in the fast track which means my costs were recoverable generaly up to a value of 750 plus court costs i believe assujing i won.

Because of this i was within my rights to reclaim all my costs. If it had been in small claims court i could have reclaimed my fess as of right and i would have had to ask the judge to consider the banks unreasonable behaviour as a reason for the court to order them to pay my costs.

It is customary to talk about costs after you have won. So when they conceded i wrote and said thanks by the way heres my bill for costs.

ok i am small claims and have bin told by someone else to do it when u submit the court bundle, but am i right in sayin i should wait untill i am being paid out for my initial claim then charge them for my costs?

re quoting use the 'quote' button and delete the bits you dont want to use or alternatively type "quote" and put it into square brackets and then type what you want to quote, with "

" at the end.

ta for filling me in!

HTH

Glenn

HTH

Glenn[/quote]

[d1cky]

aaaaaaaaaarrrrrrrrggggggg hhhh, see second from last parsgrath to the post above is my reply!

[Glenn UK]

thought id try something else, bit of Bong in here, plus something new i think.

Any comments gratefully received.

PARTICULARS OF CLAIM

1. The Claimant had two accounts, 3xxxxxx and xxxxx ("the Accounts") with the Defendant .

2. The Account xxxxwas opened on or around Jan1997 and closed on or around March 2006.

The Account xxxxxxwas opened on or around June 1998 and closed on or around MArch 2006.

4. During the period in which the Accounts was operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

5. A list of the charges applied is attached to these particulars of claim for the Accounts.

6. The Claimant contends that:

a) The charges debited to the Accounts 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 not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The Claimant finds the charges listed in the Defendant s statements are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to the Claimant, these charges constitute a “penalty charge” as the amounts bear no relation to the actual charges incurred by the Defendant . I have been advised to remind you that such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge.

c) The Claimant further contends that the application of the unauthorised overdraft interest rate is a further penalty and is unenforceable as it is contrary to common law.

d) The Defendant concealed the nature of their charges and unauthroised interest rates and lead the Claimant to mistakenly continue to pay the unlawful charges and interest on the basis that they were lawful.

e) The Claimant’s right of action has been deliberately concealed from him by the Defendant.

f) The Defendant continues to conceal both the nature of their unlawful charges, the application of unlawful interest charges and the accounts holders rights to recover unlawful charges and interest removed from the Claimants account.

g) Further, as a disproportionate penalty the charges and unauthorised interest are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.



7. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ XXXXX and any interest charged thereon;

b) a declaration from this honourable court that the terms of the contract leading to the application of the charges and the unauthorised overdraft interest rate is unenforceable;

c) Court costs;

d) If the Court determines that the Unauthorised Interest rate is a lawful charge then the Claimant claims compound interest on the charges and overdraft interest applied thereon to the Claimant’s accounts (“the principal claim”), at the annual rate of 28.7%. This is the rate currently applied by the Defendant to unauthorised use or borrowing of the Defendant ’s monies, as provided for in the contract.

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

The Claimant deems the Defendant ’s principal indebtedness to the Claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s accounts breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant ’s charges to the Claimant’s accounts to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges and interest thereon to the Claimant’s accounts, or to profit in an unlawful manner from the Claimant’s accounts breaches.

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant ) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

Regulation 5 (1) of the UTCCR states as follows:

Unfair Terms
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.”

Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s accounts by the bank (the Defendant ). The interest claimed is therefore deemed to provide an equitable remedy.

b) In the alternative to 9 (a), should the court deem that the claim does not merit the application of the Defendant ’s unauthorised lending rate, the Claimant claims that the defendant is put to an Account of profits and that any profits derived from their unlawful removal of sums of money from the CLaiamnts accounts be returedn to the Claimant.

10. Accordingly, the Claimant claims:

a) The return of £ [4] taken by the Defendant in charges and interest applied on the charges between [5] and [6].

b) Court fees

c) Costs allowed by the court

d) As particularised at 9 (a), contractual interest at an annual rate of 28.7 % compounded daily from the date of each transaction to [6], of £ [7].

e) Further contractual interest at [1] % compounded daily from [6] up to the date of judgement or earlier payment. As the interest is compounding and the Claimant is unable to predict when the claim will be heard or settled, the Claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the Defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently [8] per day, however as noted herein, this figure is liable to increase over time.


Notes

1. unauthorised rate
2. authorised rate
3. number your attachments (bottom centre of each page) and insert page numbers in claim document here
4. total of charges and overdraft interest claimed (NOT the contractual interest)
5. date of earliest charge
6. date of claim
7. total contractual interest at unauthorised rate to claim date
8. approx daily rate of 7.
9. total contractual interest at authorised rate to claim date
10. approx daily rate of 9.
11. total statutory interest to claim date
12. daily statutory interest amount

hiya Glenn

don't tell me you're after Abbey again!!!

can't remember, was this a period you didn't have statements for last time?

I think the poc is brilliant. just a few suggestions which I won't be at all offended if you ignore or disagree with, oh yes, and I presume you will be putting it through the spellchecker!:

b) The Claimant finds the charges listed in the Defendant's statements are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to the Claimant, these charges constitute a “penalty charge” as the amounts bear no relation to the actual costs incurred by the Defendant . (I have been advised to remind you that*) such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge. *does the sentence need or sound stronger without this bit?

d) The Defendant concealed the nature of their charges and unauthorised interest rates and lead [led] the Claimant to mistakenly pay the unlawful charges and interest through their misrepresentations regarding the nature of the charges and interest.

e) The facts relevant to the Claimant’s right of action have been deliberately concealed from him by the Defendant.

f) The Defendant continues to conceal both the nature of their unlawful charges and interest charges, and the facts relevant to the claimant's right, as the holder of the accounts, to recover unlawful charges and interest removed from the Claimants accounts.

g) Further, as a disproportionate penalty the charges and unauthorised interest are invalid under the Unfair Contract Terms Act 1977 s.4 and under The Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

b) a declaration from this honourable court that the terms of the contract leading to the application of the charges and the unauthorised overdraft interest rate are unenforceable;

I think this para is brill. noticed it was in your last POC, why didn't you pursue it? I read a post by BF that this could force a test case.

I also think you need to add in a 10(f) - in the alternative to 10 (d) & (e), any award made to the claimant pursuant to para 9 (b)

I think that's it, for now! interesting stuff indeed about the account of profits!

[Glenn UK]

Bong

Thanks very much for looking i appreciate it.

Re the issue of alternatives in terms of interest rates. I have been wrestling whether to put them in, you probably know that i have always argued that unauthorised was the only rate logic allowed. Having read the stuff in your POC i can see the argument for authorised now too.

Having said this i have thought for a while we shouldn't offer any alternatives although i can see the logic you have used and think its reasonable.

I did put the bit in about account of profits theres a nice case which might serve our purpose HM attorney General Vs Blake and Another, if you cant find a copy and want to read it drop me a pm.

Basically though its a case where account of profits were and seems to generally be considered to highlight the special nature of this remedy. My feeling is that bank charges could be such a special case where this remedy might well be considered reasonable.

The return may not be as high as unauthorised OD but on the other hand i suspect it could get quite close to authorised.

Re the declaration of the court, the funny thinking is when abbey refused to settle the default i reminded them of the tow outstanding items in my claim, the default and this paragraph.

I never really considered pursuing it in its own right, next time Abbey and i meet i might just see if the court would consider this alone, worse they can say is no.

Glenn

morning glenn

I think you missed my point about claiming in the alternative (above), what I meant was that as you are asking for unauthorised and in the alternative, an account of profits, this needs to be incorporated in para 10.

re the declaration, I can't see on what basis you could be denied it by the court. I think it would probably put the claim automatically into a higher track, regardless of the amounts involved.