Thread: FD revisited with 6year+ claim

All prelims now complete and eyes are still revolving following a marathon read of various 6+ threads and S32 read-ups.
I've, unashamedly, culled POC material from past winners since they were shown on the forum and no Mods 'nixed' them.
N1 in on Monday. Not massive; just £221 fees and another £500+ if CI is permitted.
This claim will be only pre 6 year material since I'd already done business with them (5% sent) prior to the LA discovery.

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let me know how you proceed because I am in similar position
which spreadsheet did you use and what interest rate

I made my own spreadsheet and used one of the many compound interest calculators available on the web. I used 17.9% for ci (this is lower than their 'authorised' rate (and a darned site lower than their unauthorised) and also showed the s69 rate (8%) for the court's consideration.

I have used 10.9 as my interest rate This is their authorised interest rate.
I found lots of their interest rate sheets which showed rates between 19.9 and 24.9% as their excess o/d rate. My logic was I never stayed unauthorised for more than a few days, as I always rushed to put some money back in, so I didn't want to use unauthorised as it never cost me much. the rate of 10.9% is what they charged on my overdraft. Does that make sense?

I used the Mindzai(?) spreadsheet v 1.9
Is this the best; are there better alternatives?

Sorry lancaster - I've only ever used mine from Exel with a CI calculator; why not address your query to Vampiress - she knows yer know!

Hi SNG........I am claiming 1999 to 2001 plus compound interest.... there is a major doubt now about CI being allowed, but there may be a way of claiming it as part of the interest on the charges. I already had all my statements, so didn't need to do an SAR. I would try FD for all your statements, but don't know if others have been successful. I would look thoroughly in all the threads first for help. I am at the first letter stage, so not much further ahead than you.

there is a major doubt now about CI being allowed,

Why so LC?
I always claim CI (although never got to court yet) but always give the court the 8% get out.

Theres a thread going somewhere on CAG, where someone called DAD lost his CI claim, because of some legal definition of the relationship between customer and bank. I couldn't follow it....
I have had 2 brushoff letters from FD re 1980 Limitations Act etc
I am going to claim CI compounded up to the date the account closed and then 8% after. My interest calculation is based on CI..... exactly as they were charging me.
How often do FD go to court or do they pay up at the last minute? I will refuse all offers right up to the point of going to court

HI folks,
sng,

1. 1. Has anybody successfully obtained statements from FD beyond 6 years or is everybody using what you already have?
   2. Is it worth asking FD for them or just use what i have already got?
   3. How much of a fight will I have and will you all help me
2. Be best if you open your own thread on this and ask the Mods direct after, of course, you've had a look at the material already available - yup I know it means crawling through threads but you'll learn much along the way.
3. Personally I would 'myther' FD for past statements and again, both you and LC, hit them on the S.A.R - (Subject access request) side. LC, two brush offs, copy all to the Law Society(if their legals are involved at all), Info Commissioner and FSA (and let them see that you have), it might just focus their minds (it's worked for me and Woolwich)
4. sng, I can't believe you'll get anything other than help and encouragement along the way.
5. I'm going to do me some work on CI - so far only had it on small scale from CC companies all pre-court.

Kenny good idea about .........."copy all to the Law Society(if their legals are involved at all), Info Commissioner and FSA (and let them see that you have), it might just focus their minds (it's worked for me and Woolwich)"..... at moment I am only getting letters from customer relations.......3 different people. I don't need SAR for pre-2001 because I have all my statements since account opened in June 1999
thanks for the tips

FD declared intention to defend vire Dg, Edgbaston, Birmingham. They have until 13 August to file.

Kenny this Edgbaston/13th August is your FD pre-6 years isn't it ?
good luck because it will be a pointer for my claim which is 99 to 03. My MCOL will be filed at end of july..... I will be following yours closely

I was wrong on #13 above. They had 28 days from date of service; but I'll bet you so-and-sos already knew that. Anyway 28 days from date of service was 2 August and they haven't filed defence so the court, they say, return your request for judgement. AND NO - I won't hold my breath since I'm sure they'll come up with a good reason for not filing (by the 2nd - they'll no doubt bleat "waiver").
Still gotta 'ave a go ain't yer?

do you expect the mcol will be put on hold/waiver
I am at the point of issuing MCOL but cannot decide whether to or not
If I pay a fee and the case is supended for 2 years, I will be out of pocket. Or do I issue mcol to be head of queue later

Well they filed and now they've sent a "we won - you lost" letter.
Since I'm in court (stay not yet lifted) I intend going after them using the relevant parts of CCA and UTCCR.
I could make good use of specific pointers to the appropriate parts.
I also thought I had a complete copy of UTCCR but seemingly not; any ideas where this might be found on the web (or at least the relevant parts)?

Most recently
Put them in court in June 2007
My Poc as follows: "
1. The Claimant had an account no XXXXXXX with the Defendant which was opened on or around xxxxxxxxxxx and closed on xxxxxxxx 2007. Whilst it was current it was governed by the defendant’s Personal Banking Terms and Conditions (“the contract”).
2. The claimant admits to breaches of the terms of the contract that require 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 xxxxx1999 and xxxxx2000. A list of the charges and interest on the charges is annexed to the Particulars of Claim at page 1.
4. The defendant has declined to answer the claimant’s written requests for information about any manual intervention necessitated by, and/or any administrative costs incurred as a result of, the said breaches. The claimant avers that the defendant’s default charges are not intended to represent any alleged actual loss, but instead unjustly enrich the defendant, which exercises the contractual term in respect of such charges with a view to profit.
5. 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 calculated to generate material profits and is not merely a means of recouping losses incurred in relation to account defaults.
6. 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 current account agreements.
b. In a consumer 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 consumer 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.
7. 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.
8. The claimant is seeking the return of charges totalling £xxx, and interest applied on the charges totalling £xxxxxx.
9. 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 are that the defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the defendant can be seen to have been operating without accountability to its customers, and to have consciously concealed the facts. The defendant is clearly in a privileged position to have a direct means of withdrawing monies from the claimant’s bank account. 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.
10. 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 - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.
11. The claimant claims compound interest on the amounts claimed - using a lesser rate, but same method specified in the said contract, and applied by the defendant to monies it is owed. A schedule of the interest calculated is annexed
to the Particulars of Claim, also at page 1.
The claimant’s ground for seeking restitution of the compounded contractual rate of interest is that the defendant would 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.
12. Alternatively, if the court decides that the claimant is not entitled to the contractual rate of interest, then the claimant claims interest under s.69County Courts Act 1984. A schedule of the interest calculated is also annexed to the Particulars of Claim at page 1.
13. Accordingly, the claimant claims:
a. The return of £xxxxxx taken by the defendant in charges and interest applied on the charges between xxxxx/1999 and xxxxx2000.
b. Court fees
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.69County Courts Act 1984 at the rate of 8% a year, from xxxxx1999 and xxxxx/2000 of £xxxx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 65p."
Now I know these are obsolete and was hanging on for a comprehensive poc re-vamp. However DG have written to Court - as follows:
"
12 CALTHORPE ROAD EDGBASTON BIRMINGHAMB15 1QZ
DX 712630 Birmingham 32
The Court Manager Telephone: 0121 455 2723
xxxxxxx county court Facsimile: 0121 455 2150

Your Ref:
Our Ref: Charges/HP

Date:26 January 2010

Ref: Bank Charges claim Kennyh v First Direct (a division of HSBC Bank pic), claim number xxxxxxxxxxx, in the xxxxxxx County Court
Dear Sir/Madam
We act for First Direct Bank pic (First Direct}.
We refer to the order in respect of the above claim, dated xxxxxx 2007, which requires First Direct to request directions following the final decision in the bank charges test case, Office of Fair Trading v Abbey National pic & Others ([2009] UKSC 6, [2009] 3 WLR 1215).
You will no doubt be aware that judgment in this matter was handed down by the Supreme Court on 25 November 2009. Accordingly, we enclose a copy of the press summary, prepared by the Supreme Court, together with a copy of the order made by the Supreme Court.
We note that the Claimant has challenged informal overdraft charges on two grounds, namely that: (a) they constitute penalties at common law; and (b) they are unfair under Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCRs") on the basis that they are too high. As has now been definitively determined, neither of these two challenges is open to the Claimant:
(1) In two earlier judgments, Mr Justice Andrew Smith held that none of First Direct's
informal overdraft charges amount to penalties at common law: see [2008] EWHC
875 (Comm), [2008] 2 All ER (Comm) 625; and [2008] EWHC 2325 (Comm),
[2009] 1 All ER (Comm) 717. Neither decision was appealed by the OFT.
(2) On 25 November 2009, the Supreme Court ruled that it was not permissible to
challenge the fairness of bank charges under Regulation 5(1) of the UTCCRs on the basis that they are too high because that form of challenge is precluded by Regulation 6(2)(b). Regulation 6(2)(b) provides that the assessment (under Regulation 5(1)) of the fairness of a term in a contract "shall not relate ... to the adequacy of the price or remuneration, as against the goods or services supplied in exchange". In other words, the 'value for money' equation is excluded. The banks argued, and the Supreme Court agreed, that the informal overdraft charges are part of the price for personal current account services and that, therefore, the Regulation 6(2)(b) exception applies with the consequence that the charges cannot be found to be unfair on the basis that they are too high.
Further, on 22 December 2009, having spoken to, and considered the views of, a number of interested parties (including various consumer groups, the Financial Services Authority, the Financial Ombudsman and the Government), the OFT announced that, in the light of the Supreme Court's judgment, it would not be continuing its investigation under the UTCCRs into the fairness of unarranged overdraft charges. The OFT's decision was based on a careful consideration of the matter (including various alternative grounds of challenge under the UTCCRs suggested by consumer groups), which led the OFT to conclude that following the Supreme Court's judgment there were no other potential bases of challenge under Regulation 5(1) that stood a realistic prospect of success.
We respectfully contend that, as the only grounds for challenge that the Claimant has put forward have been dismissed by the higher courts, and given that there are no other viable grounds of challenge under the UTCCRs (as the OFT has recognised), the claim must fail in the County Court. We would therefore invite the Court to dismiss the claim.
We should be grateful if you would place a copy of this letter before the Judge responsible for this matter."
I've been a bit ill recently so have lost a week (probably some remaining marbles as well) but will send a 'please don't do anything yet....' type letter to the court and hope that FD/DG stay as sloppy as they currently appear to be since (very remiss of me I did NOT include UTCCR in my original poc!
Truth were known I feel as though I'm currently swimming in treacle but will try to 'cobble' together some new poc based on Goven's first efforts but would also like to include (I believe) some SOGAS wording to put the onus on them to validate their prices. As you will have gathered I'm sadly lacking in rehersal of new arguments (as indeed we probably all are) but I would very much welcome comments and suggestions.

I did deliver a letter to court pointing out the dicrepancies between FDs argument and the POC as is and received this yesterday:
General Form of Judgment or
To the Claimant
Mr Kennyh
In the XXXXXXXX county court
Claim Number xxxxxxxxxx
Claimant Mr Kennyh
Defendant First Direct
Date 29 January 2010

Before DISTRICT JUDGE Mxxxxx sitting at xxxxxxxx County Court, The Law Courts, .
Upon reading the court file and a letter from the defendants solicitors and it being settled law that;
1. Sums of money payable to their banks by customers pursuant to their banking contracts and in particular but without prejudice to the generality hereof sums payable in respect of unauthorised overdrafts are properly designated as "charges" and are not contractual penalties; and
2. That there is no power under regulations 1999 (as amended) to assess the fairness of those charges as expressed in clear and intelligible language in relation to the adequacy of the price or remuneration as against the services supplied in exchange and whether at the behest of the OFT or the bank customer as an individual AND UPON a review of the file and the particulars of claim AND pursuant to CPR 3.4
IT IS ORDERED THAT
1. The stay on the claim be removed forthwith.
2. As the particulars of claim no longer disclose any reasonable grounds for bringing the claim that statement of case
is hereby struck out.
3. Unless the claimant files and serves amended Particulars of Claim which disclose to the satisfaction of the court reasonable grounds for bringing this claim within 28 days of the date of deemed service of this order upon the claimant (6 February 2010) the claim itself shall be struck out without further order.
4. The claimant may file and serve his amended Particulars of Claim without further application or fee but if the amended statement of case discloses no such reasonable ground the claim may thereafter be struck out without further order.
5. The claimant may within 14 days of the deemed date of service upon him of this order apply to the court to set aside vary or stay this order whether in whole or in part pursuant to CPR 3.3(5).
For information only an informal summary of the decision of the Supreme Court in OFT v Abbey National plc and others (2009) UKSC 6 is attached.
Dated 03 February 2010

"That there is no power under regulations 1999 (as amended) to assess the fairness of those charges" I haven't used the UTCCR 1999 that they are undoubtedly quoting!
My main problem - apart from the requirement for nw poc- iswe are able to use any arguments to counter the statute of limitations. Do the terms of UTCCR sect 5, on contract validity etc lend themselves to the 'concealment' argument?
Answers and views in any way you choose but quickly please.
Produced

I'm down to the wire for revised POC on this (I've to take my son away for intense physio and the expiry deadline is in our absence) and URGENTLY need some guidance.
I'm inclined to submit UTCCR 5 as a mainstay argument but relly want to use s140A(1) of the Consumer Credit Act 1974 also. In trying to learn more of this I have pulled my copy but s140 shows under the 'extortionate credit bargains section' with no sub paras! Obviously I've cocked up somewhere but PLEASE can somebody put me back on course?