Thread: Sole trader

Originally Posted by stoppaRed

Hi,
My next door neighbour is a sole trader. Is this classed as business or personal when sending S.A.R - (Subject access request) etc..?

Hiya,
It is classed as a business as the account would probably have been a business account. Here is letter I used hope this helps for a prelim:

[Your Address]




[Date]


The Manager, Service Quality Team, HSBC Bank plc, Arlington Business Centre, Millshaw Park Lane, Leeds, LS11 0PP




Dear Sir/Madam,


Account name: *****
Sort code: ****
Account number: ******

I now understand that the regime of fees which you have been applying to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to Statute.


If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.


I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

I calculate that you have taken £***** in total between **** and *****.


I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.








Yours faithfully,

Originally Posted by stoppaRed

I presume the lba will be the same as for personal account?

No,
A personal account relys on consumer contract law where as business is more common law and unfair contract example of template for a prelim letter on a personal account:

Dear Sir/Madam

Penalty & unfair charges – request for refund for [NAME} Account *****Sort code: ******

I am asking for the amount of £*** to be refunded for what I feel have been penalties applied to my bank account within the last 6 years. On the occasions I have been charges for unpaid cheques I do not believe that the charge truly reflects the actual loss to your bank. No money has been lost from your bank by you returning cheques as unpaid and the only contact I have had at these times has been a computer generated letter which I can see would cost £35.00. I request that if you feel your charges do represent a true loss to your bank that you send me a complete Breakdown of how the charges are made up, showing the true loss to your bank for me having an unpaid cheque. I ask that you also send a complete breakdown of how the overdraft excess fees are made up as any monies that are over the overdraft had been paid back meaning the bank did not sustain a prolonged loss in this case either. I have enclosed a breakdown of all the charges I have had in the last six years for your viewing also.

0n 5 April 2006 the Office of Fair Trading (OFT) announced that default charges which are set at more than £12 will be presumed to be unfair and unenforceable in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Charges above this sum will be subject to legal action by the OFT (press release 68/06 – online here: http://www.oft.gov.uk/News/Press+releases/2006/68-06.htm).

The OFT stated that a charge is not fair simply because it is below this sum, and I believe that a reasonable charge would be 50 pence for the reasons set out below. Please refund my charges as a matter of urgency.

I would respectfully submit that if your organisation does not agree to immediately refund all unfair charges applied to my account, it will not meet the ‘fit and proper person’ test to hold a consumer credit licence under the Consumer Credit Act 1974. In that eventuality, I will submit a 1974 Act complaint to the OFT.

Separately, I am of the view that your charges represent a penalty and are therefore irrecoverable at common law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

As previously stated I believe your charges not to reflect any actual loss, instead they appear to represent a lucrative profit-making scheme. In particular, charges were applied after I entered into a transaction(s) without sufficient funds in my account. However, payment was declined by you, and therefore, actual loss is the cost of automatically sending me a computer generated letter. I would respectfully submit that is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50 – online here: http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmtreasy/274/27405.htm).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of the bank’s loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

Please refund all charges applied to my account within the next 7 days. I reserve the right to commence court proceedings without any further notice, and to seek an additional award for distress and inconvenience, together with legal expenses.

Yours faithfully


Obviously this is just my opinion and what I have used. There is a template libary which has a standard template which you can adapt appropriately. It is important with business claims that you do not quote the consumer contract as this does not apply even on a sole trader account. This is what I have been told atleast. I hope this helps.

Originally Posted by stoppaRed

I presume the LBA will be the same as for personal account?

my LBA for business account was worded:

letter before action

Dear Sir/Madam,

ACCOUNT NUMBER: ****
Sort Code:******
Account name: ******

I am disappointed that I have had no response from you regarding my letter dated *****(if appropriate).

Again I wish to point out I deem your regime of fees which you applied to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth to be unlawful at Common Law and contrary to Statute.

Again I draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I have no explanation from you by letter as to how your costs are made up as requested in my previous letter. Again I ask you for a written explanation as to how your costs are a true reflection to your loss on these occasions where a cheque has been returned or a direct debit returned or overdraft exceeded, to prove to me the charges applied are not penal in nature. A full Breakdown from yourselves is requested of how the charges are made up.

If this information is not forth coming or does not demonstrate your true losses and justification of the charges applied between **** and **** you leave me no further choice but to proceed and seek the position of the courts in this matter.

The amount to be refunded is *****. If I proceed to court I will also be asking for interest at 8% under S69 statuatory interest I am entitledto claim.


I request a full refund of the charges which have been applied and shall give you 14 days on receipt of this letter to reply to me accepting unconditionally my request for a full refund in principle and letting me know when payment will be made.

If I again do not hear from you or I have not received a positive reply regarding this matter within 14 days, I shall begin a claim against you in the courts for the full amount plus interest, plus my costs, without further notice. This is not a route I wish to take but I feel I have given you ample opportunity to discuss this matter and feel this is my only other option.


I look forward to your response.




Yours faithfully,



Again this is just my opinion and I have based it on the template in the libary for business accounts and adapted it to suit which you should also do.

Goodluck will help as much as I can I am currently about to send my LBA for the business account but am gusessing a court claim will follow in my situation.
There is alot of help and suport and you can find lots of info but it does take time trawling through lots of posts and threads but it is worth it. Keep going and goodluck!

Originally Posted by stoppaRed

Thanks - and the best of luck to you. Keep me posted how it goes

you too