Claiming on a Business account? Lets join forces?

[scott150663]

photoman
excellent reply ithought about about using a solicitor but decided against it after reading through various threads (hours of my time ,but time well spent as i have gained alot of knowledge which im sure will result in me winning my case.

[Glenn UK]

Having read through photomans posts the issues re the court and small, fast track etc i agree with. Im no expert on the issue of the ATE CFA side of things although i am aware of the self financing principle.

Re the chances o f going to court, i think the banks really dont want to get into court, where people arelsoing partso ftheir claims it is usually related to elements which are contentious such as charges older than six yeas, contractual interest.

I think we are learning more about keeping claims intact and allowing claiamnts to maximise their returns in this respect.

I cannot see any reasons why this sholdnt be carried over into the business forum.

JMHO

GLenn

[GaryH]

Yes, FWIW I would agree with the majority of PM's post. There are risks of which you should be fully aware of before embarking on a claim of that size and a 37k claim would go into the multi-track, or Mercentile, with full costs exposure. However, your claim dispite its size is still reletively straightforward - there are no complicating factors such as the Limitations Act, CI, or default removal, etc. For this reason I see no reason why you need to employ a solicitor, and in a sence you are right when you say that it makes no difference whether its 1k or 40k - the bank still don't want to go to court. Plus, as has already been mentioned, you have the availibility of disclosre in the higher tracks.

With a claim that large its imperitive that you know what your doing and don't make any silly mistakes or try to cut corners. Research the legal principles upon which your claim is based, and understand the court procedure and what is expected at each stage. If you do everything by the book I personally see no reason whatsoever why your claim would not be successful.

[photoman]

Okay,
Got a couple of weeks yet until I file my N1, but decided to use the time productively by starting on the particulars. (remember this is for a Business account) !
Here's a draft of what I have done so far, and all comments appreciated.

I have yet to source and read up on the actual case laws cited, and will do so taking particular care that I am not trying to rely on precedents and case law that are specific to Consumer case law (anycomments or pointers in that direction by anyone appreciated)
Also, yet to compile a section suggesting the application of Authorised Interest rates in the mid alternative to Unauthorised or Statutory, so that will be added soon.
Also, the History/ Background to the claim will need to be compiled nearer the time dependent upon any correspondance or communications in the intererim.

Anyhow, any other comments anyone ??


1. The Claimant had a bank account xxxxx (branch sort code xx-xx-xx) with the defendant, between the periods of xxxx and xxxx governed by the Defendant’s Banking Terms and Conditions (“the contract”).
2. The Claimant admits to breaches of the terms of the contract that required the Claimant to stay within any agreed overdraft limit.
3. The breaches have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xxxxx and xxxxx. A list of the charges and interest on the charges is annexed to the Particulars of Claim at pages 1 & 2.
4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendent on said charges. In addition the Claimant claims interest on the full amounts as detailed in paragraphs 12 & 13.
5. In support of his basis of claim the Claimant contends that the charges are:
i. Excessive in that they are not truly reflective of any actual or genuine pre estimated loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;
ii. Devised and enforced by the Defendent with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit.
iii. Punitive in nature in that they are used in "in terrorem" to discourage the Claimant from presenting items on the account for
payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforcable under common and/or statutory law.
Accordingly the Defendant’s default charges are:
a. A penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Defendant and therefore contrary to common law - (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79).
b. Invalid under s.4 Unfair Contract Terms Act 1977.
c. In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.

6. The Claimant makes reference to inter alia the following cases, in relation to the notion of stare decisis, to support his case:
Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co. [ AC 79 ];
Lordsvale Finance PLC v. Bank o/Zambia [ QB 752];
Murray v. Leisureplay [ EWCA Civ 963 ];
Bridge v. Campbell Discount Co. LtLL [ AC 600 ];
Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [ EWE-Information Commissioner 281 (TCC)];
Commissioner of Public Works v Hills [ AC 368 ]

Additionally, the Claimant makes reference to inter alia the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin 21 (July to September 2002). as persuasive authorities:
Case 4 — Dampcure-Woodcure/30Ltd
Case 15 — Kids of Wilmslow Ltd
Case 18 — Legal & General Franchising t/a Parker Estate Agents.
7. The defendant has declined to answer the claimant’s written requests for information about any manual intervention necessitated by, and/or any actual administrative costs incurred as a result of, the said breaches.
8. The claimant will rely on a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006, as evidence that the defendant is aware that the income derived from its default charges is excessive, does not truly reflect the actual costs incurred in dealing with such breaches, and unduly enriches the Defendant.

9. The claimant will further rely on the statement of the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:
a.The OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.
b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.
c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.
10. The Claimant seeks permission to proceed with the claim under s.32 (1)(b) Limitation Act 1980 on the ground that the claimant could not reasonably have discovered the defendant’s deliberate concealment of the facts relevant to the claimant’s right of action before the report of the OFT was published on 5/4/2006.
The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the the Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity. The Defendant has continually presented its charges as if they were a in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.
11. Alternatively, the Claimant seeks permission to proceed with the claim under s.32 (1)(c) Limitation Act 1980 on the ground that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - citing the case of Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

12. The Claimant claims compound interest on the amounts claimed - using the rate and method specified in the said contract, and applied by the Defendant to monies it is owed. The Claimant’s ground for seeking restitution of the compounded contractual rate of interest is:
i. That there is an explicit or implied term of mutuality and reciprocity within the contract and equity dictates that sums owed by the Defendant should be subject to interest under the same terms and at the same rates that the Defendant has itself imposed upon the Claimant throughout the term of the contract.
ii. That the defendant has and would continue to be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.
Under the terms of the contract money taken without prior permission constitutes Unauthorised Borrowing and is subject to specific rates for such. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant’s bank account. That the charges were taken by the Defendant from the Claimant without prior permission is by the Defendants own definition equivalent to Unauthorised Borrowing and so should be deemed subject to interest at the same rates and in the same manner imposed by the Defendant. A schedule of the interest calculated in such manner is annexed to the Particulars of Claim at pages 3 & 4.
13. Alternatively, if the court decides that the Claimant is not entitled to the contractual rate of interest, then the Claimant claims interest under s.69 County Courts Act 1984. A schedule of the interest calculated is annexed to the Particulars of Claim at pages 5 & 6.
14. Accordingly, the Claimant claims:
a). The return of £xxxxx taken by the Defendant in charges and interest applied on the charges between xxxxx and xxxxx.
b). Court fees
c). Compound interest at the contractual rate of 29.85% EAR from xxxxx to xxxxx of £xxxx, and also interest compounded at the same percentage rate up to the date of judgement or earlier payment.
d). In the alternative to c., interest under s.69 County Courts Act 1984 at the rate of 8% a year, from xxxxx to xxxxx of £xxxx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of xxx

[empowered]

Having just read Photoman's proposed POC I am now totally confused (doesn't take a lot!) Am just starting out on preparing N1 with POC for a sole trader account. Am claiming for approx £3700 in charges plus 8%. Looked at the "Particulars of Claim;Business accounts" sticky which seems so much shorter than the consumer version and now I have seen the proposed one above - so much longer - which version should I use? Any advice VERY gratefully received!:o

[photoman]

Originally Posted by empowered

Having just read Photoman's proposed POC I am now totally confused (doesn't take a lot!) Am just starting out on preparing N1 with POC for a sole trader account. Am claiming for approx £3700 in charges plus 8%. Looked at the "Particulars of Claim;Business accounts" sticky which seems so much shorter than the consumer version and now I have seen the proposed one above - so much longer - which version should I use? Any advice VERY gratefully received!:o

DON'T PANIC !!

Firstly do account for the fact that my claim is for charges prior to 6 years, so I am including my arguments and reasonings for such. If your claim is not for prior to 6 years you don't need a large portion of my POC's. Also I am claiming for Contractual interest, which again necessitates another large portion of particulars, and it appears you are not, so you don't need that either.
Regards all the case law references, once I have researched these all thoroughly, some may be omitted if not relevant etc.
i get the impression that the template you are using is excellent and has produced many good results....(but do remember it is only a template, and should be carefully studied and checked that it does all apply to yourself )....I'm just trying to be a smarta**e !!

Regards

[empowered]

Aaah ! mind set at rest - thought I had lost the plot along the way. Thank you so much for quick reply and I shall watch with great interest your gruelling fight to the finish!

[make_me_happy]

Hello,

I am a business claimant and I have filed my MCOL on 5 March and I am SH****G my pants scared like hell that they are going to close our account with card processing facilities, loans and so forth. I heard that they are harsher on business accounts. My cliam is with HSBC (which it doesn't help) and it is for about £4K.

i am currently searching for a parachute account and also have tried to contact Ombsdman, but the e-mail address in the website does not work and the message comes back undelivered.

If anyone can help, please do.

Let's be strong and kick some bank's butts...!!!

[empowered]

Hello MMH - I moved my business account with card facilities etc to Barclays with no problems even though I must have had an awful credit rating - however this was before I started action and didn't want an overdraft facility and I owed Lloyds nothing - could be worth pursuing?

[make_me_happy]

Thanks empowered.
I had a business account with Barclays for 2 years and I never used it so I decided to close late last year. If I had known...!!!

I am sure it will be easy to open account again with Barclays the only thing is that their card facility is waful. It takes 30 days for the customers money to reach our account once customers pay with credit or debit card.

i will look into it, in the meantime I am trying to contact Ombsdman to ask for advice.

[make_me_happy]

You can all refer to my thread if you want. Here it is:
http://www.consumeractiongroup.co.uk...appy-hsbc.html

I don't know how to make internal links. please let me know someone!!

[photoman]

Just a general note to all you Business claimant peeps out there.

Maybe put a link to this Business thread into your signatures, so that whenever you post anywhere else, other Business claimants will be encouraged to come and join us? The more the merrier.
(for those not yet figured out how to do it yet:
Go to the url address at the very top of your page, and click on it once, then right click on your mouse to get the copy command, copy it, then go to the edit signature option on your user cp page, and paste the link into your signature)
regards to all

[make_me_happy]

Let me try if it works...

[MARTIN3030]

I agree with the earlier comments about specific info for limited companies.
We have discussed various angles of the business threads and we were agreed that we should have some stickies that cover the different scenarios for different positions.
We are naturally open to suggestions and input.
The difficulty in having a single thread and having info there is that it gets lost and takes time to search out.As this thread goes on then,may be an idea to get an idea of faqs and put something together from it all in a later stickie.