Claiming on a Business account? Lets join forces?

[hsbcfiddled]

Originally Posted by papadak

ok & how does that compare/work ... is there a template out there?

I have here a link that I used to claim successfully at the turn of the year A guide to Business Claims

however dont build your hopes up because I see that the link now advises not to claim - well at the moment anyway.

hsbcfiddled

[photoman]

Papadak

I presume the letter was in response to a letter, rather than an actual court claim (POC).
I would advise yourself (and other business claimants), to hold fire on actually filing a court claim at the moment.
Also for anyone who has already filed a claim, and so at court stage, you may even need to file an amendment to your POC's, so if your timing allows it, then sit tight and wait for further advice.

PM

[JOSH_IOU]

Why not use the Unfair terms in contract act 1977.

This is not being discussed in the test case.

[TheyrCriminals]

Hi Photoman,

I have looked at s4 of the Unfair Contract Terms Act (1977) but I do not know if this is the correct section we should be looking at, the section in its entirety is as follows:-

4.
Unreasonable indemnity clauses.
— (1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question—
(a)
is directly that of the person to be indemnified or is incurred by him vicariously;

(b)
is to the person dealing as consumer or to someone else.


I will continue reading through the Act but if anyone knows for certain any relevant sections can you please post them up.

TheyrCriminals

[photoman]

I posted this on the OFT thread

Originally Posted by photoman

Here is my take on UCTA77

Section 4 says:

4. Unreasonable indemnity clauses. —
(1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question—
(a)is directly that of the person to be indemnified or is incurred by him vicariously;
(b)is to the person dealing as consumer or to someone else.


In short, it deals with forbidding any attempts to recuperate costs from a consumer (us) that were incurred by the other (in this case the bank) by making reference to a term in the contract and claiming that such costs were incurred were due to a breach of such a contractual term (or some negligence has occurred).

So, this depends upon how the charges were presented at the time to the claimant.

In the past, some Banks in such circumstances would present the charges as pertaining to service charges or fees (which they are all now attempting to do, but have just had dismissed as untrue)
However, others did actually present them as relating to a recuperation of costs incurred dealing with such events.
Lloyds (and a few others) certainly did the latter.

If the former case (presented as service charges or fees), then claiming sec4 of UCTA would do no good anyway, so instead, one needs to argue and question just what service was actually provided (which is in fact currently none, as proven by the recent OFT judgement, and will soon also be deemed as applicable historically).

If the latter, and they were claimed to be a recuperation of costs, and arose due to a returned item ie. your attempt at going over your limit, ie. a failure to adhere to an agreed limit, then this could plainly be deemed as arising due to a breach of contract (an agreed limit is after all a contractual obligation).... so I personally think section 4 could definitely be invoked.

So, for those banks that presented them as relating to a recovery of costs (which we lay claim as also being due to a breach of contract), then under the terms of UCTA77 they had no contractual rights to claim such sums, and the pursuit of such "costs" should have really been pursued through the courts (rather than just calculating, massively marking up and then enforcing themselves, without any accountability as to the true cost).

If this had been the case, then they would have had to go through the same processes as ourselves; i.e. prelim and LBA to demand the true costs to be paid under threat of court action (which at just a few pence we would all just pay). If they then persisted in presenting them at massively marked up rates, and it went to the court, they would have lost, and would also have massive costs to bear.

That's my tuppence worth anyhow.
I think it's a fair assessment, but I would be interested to hear others views.

PM

[photoman]

PS: Just to clarify that the UCTA77 DOES cover small business' (upto 9 employees I think), so any reference to "consumer" includes small business'.

PM

[TheyrCriminals]

Hi Photoman,

Thanks for those posts, I now see what that section is referring to.

Your stance on the issue is particularly plausable, however my concern is that even UCTA (1977) appears to state that in order to invoke the Act there still needs to be a breach of contract. I am pretty sure the judgement in the oft test case made it clear that the banks' charges were not imposed as a result of a breach of contract.

TheyrCriminals

[JOSH_IOU]

Ahh but dose the act actually say who has to have breached the contract?

[JOSH_IOU]

Consumer Credit Act 2006 - BERR


Consumer Credit Act 2006

The Consumer Credit Act 2006 establishes a fairer, clearer and more competitive market for consumer credit, updating consumer credit legislation that has been in place since the 1970s and making it more relevant to today’s consumers.

We are well on the way to implementing the Act. Many key provisions have come into force and the Act is due to be fully implemented by October 2008.


On 6 April 2007, the remit of the Financial Ombudsman Service (FOS) was extended to cover consumer credit and the Unfair Relationships Test was introduced for new agreements. On 6 April 2008, the OFT’s new strengthened licensing regime was introduced, the Consumer Credit Appeals Tribunal (for appeals against OFT licensing decisions) was established, the financial limit (of £25,000) was removed so all new credit agreements (unless specifically exempt) regardless of value are regulated, and the Unfair Relationships Test was extended to all existing credit agreements.
From 1 October 2008, lenders will be required to provide borrowers with much more information about their accounts, such as an annual statement and regular notices when consumers fall into arrears or incur a default sum, and debt administration service providers and credit information (repair) service providers will need a consumer credit licence as these services will be regulated by the OFT.

[TheyrCriminals]

Hi Josh,

Can you explain your previous comment about does it matter who has to be in breach of contract please?

TheyrCriminals

[JOSH_IOU]

Who has to have breached the contract for the act to apply to the terms of the contract?

The consumer or the suplier?

[photoman]

Originally Posted by JOSH_IOU

Who has to have breached the contract for the act to apply to the terms of the contract?

The consumer or the suplier?

Josh,

I sort of see what your saying, in that the latter half of the first paragraph of section 4 does not clarify whose breach of contract is required.
However, in circumstances such as dealing with a payment that would make an account in excess of its' limit, in what way could you claim that the bank have themselves broken the contract?

They claim they are just responding to a situation in a manner that they themselves have laid out in their contracts (but if such response as set out in the contract is deemed to have been triggered by a breach, they would be unlawfully doing so, according to UCTA), but I can't see how they're actually breaching any contract term themselves.

This is why the banks are so rapidly now trying to claim that it is not an indemnity (recuperation of costs) that they seek in such circumstances, but rather it is a service fee (but we now know what the courts think of that argument).

One possible scenario that I could perhaps see covered by this part, where their own breach or negligence could cause a loss to another (including yourself according to sec 2b), and so according to the statute you should not be expected to shoulder the cost:
You instruct the bank to stop a cheque or you cancel a DD.
They pay it out anyway.
In such circumstances, they were negligent in paying it.
If they are unable to recoup the funds, then the loss is theirs, they still have to refund the money into your account, as you cannot be expected to indemnify the bank for a loss arising from their own negligence.

[TheyrCriminals]

Hi Guys,

Do we know if there are any developments from CAG on the legal basis for pursuing business claims yet. Many people don't really know what is going on, and I must admit it looks pretty tricky at the moment!

TheyrCriminals

[JOSH_IOU]

If your wanting a new account try Halifax.

Halifax has a Treasurers account and an easycash account which dose not have any credit checks.

Treasurers accounts can be opend at Lloyds TSb as well but this is at the discression of the Branch Manager. Ans must be done in branch.

The Easy Cash can be opend via post.

I normally charge £465 to handle such an aplication through my business as i visit the bank myself and have a coffee with the manager who makes a verry good cupa kenko lol. Wer normally laugh at the pictures on the passports to lol.

So heres a freebee for site members.

[TheyrCriminals]

Hi Josh,

Interesting post although slightly off topic! What is your business?

TheyrCriminals