Thread: What we're doing - anyone care to translate?

I wrote the stuff below tonight because I want to be prepared for any court battles I may find necessary. It's (from what I can tell) our COMPLETE argument, all in one place, as to why these charges are not lawful and must be challenged. Would anyone care to take potshots at me or add stuff to it?

More importantly, would anyone have a crack at translating this into legalese which would make solicitors quake in their boots and Judges smile as at a clever child?

Originally Posted by Claimant

Statement counter to Defence

1a. The defendant is asked for detailed schedules and proof of their costs in respect of each and every type of default fee charged.

OR…

1b. The defendant is asked for detailed proof of the full details of any service provided to the claimant in respect of instances of default, the work required by human beings in the provision of this service, and the costs incurred in providing such service.

2. The defendant’s standard terms and conditions were not individually negotiated with the claimant at any point, but were presented as a fait accompli – non-acceptance of any term in the document would result in the defendant refusing to agree a contract of any kind with the claimant. <Statute reference please – UTCCR/UT(C)A>

3. The presence of any one term in the terms and conditions so provided does not render that term lawful and enforceable; in fact the Law clearly states that unenforceable terms can be effectively ignored when reading the contract, and that the enforceable and lawful portion of the contract will stand. <Statute reference please – UTCCR/UT(C)A>

4. It is believed that the charges are not for a service but penalty charges for breach of contract; this being the case they can only amount to the same as the defendant’s costs in administering such breach, which are believed to be absolutely minimal as the charges are applied automatically without any manual intervention. <Statute reference please – UTCCR/UT(C)A>

5. If the charges are indeed deemed [by the court] to represent a fee for a provided service, then they are unreasonable in that the provision of this service costs very little and the profit margins thereby are astronomical. <Statute reference please – SOGAS>

6. It is the claimant’s belief that if either this service were provided in every instance of default, or if manual intervention with costs approaching these amounts were required in each occurrence of a contract breach, that the size of the defendant’s workforce would need to be inordinate in order to keep up with the necessary workload. It is therefore the claimant’s firm belief that the work required in each instance of default, and therefore the costs incurred by the defendant, are extremely small; whether the work is required in the provision of a service or in the administration of a breach of contract.

7. The defendant is asked for references in statute which would clarify the lawful, enforceable status of their default charges.

8a. The defendant is asked to define the terms “fair” and “transparent” as they are applied by them in relation to their charges.

8b. The claimant defines “transparent” in this context to mean that the charges are made up of clearly defined elements which can be readily identified by him, each having a clearly identifiable cost to the defendant which has been communicated to the claimant.

8c. The claimant defines “fair” in this context to mean that the charges do not:

(a) (in the case of them being deemed payment for a service) provide a proportion of profit to the defendant which exceeds a level normally found in high street business, thus rendering them reasonable as defined in SOGAS

(b) (in the case of them being deemed penalty charges) exceed the defendant’s costs in relation to the breach of contract by the claimant, thus rendering them enforceable under UTCCR/UT(C)A.

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Not sure that a translation into legalese would help-what at the moment is crystal clear to our readers may lose its clarity once "wheretofore" and "hereafter" are
substituted.

However I have read a response to 2] which you might find interesting-and it is
in legalese-and is a tad more verbose than yours-well it did come from a judge.


“There is, in my view, a qualitative difference of which the law is able to take into account between a clause freely negotiated between a major commercial organisation, in respect of a substantial contract, where the major commercial organisation have available and receive competent legal advice regarding the meaning, purpose and likely consequence of the clause, from a clause attached in a contract of adhesion between a major organisation and an individual or small company who has, in reality, no opportunity to negotiate the contract.


Judge Cole in Multiplex Construction Pty Ltd v. Abgarus Pty Ltd (1992)

Although that was taken from an Australian Court case, there is no reason to
suppose that the argument is not held in equal regard by our Judiciary.

Can anyone help with the statute references I request, off the tops of their heads? I mean, I could go and research them, but... I'm a lazy ****

*bump*