- and -
XXX Bank PLC
Particulars of Claim
The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world.
The Claimant has an account (hereinafter referred to as ‘the Account”) with the Defendant which was opened during or around XXXX.
During the period between XX/XX/XX and XX/XX/XX, or thereabouts, the Defendant debited numerous charges to the Account, in respect of “unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. The Defendant has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto).
The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant.
The Claimant was only able to obtain complete details of the Charges by virtue of a Subject access request
, served upon the Defendant, pursuant to s7 Data Protection let 1998. The cost for said request was £10.00 and the date whereof was xx/xx/xx
On or about xx/xx/xx the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said letter the Claimant made various assertions and arguments to substantiate her request, quoting relevant sources of law and evidence. Claimant concluded therein that the Charges were unlawfully levied to the Account by the Defendant.
The Claimant subsequently received a letter from the Defendant, dated xx/xx/xx. Therein the Defendant, informed the Claimant that the Charges would not be refunded. Further, the Defendant averred that the Charges were “fair, reasonable and transparent” and were provided for by the Defendant’s “published tariff’ which, it claimed, complied “with all applicable laws and regulations”. Unfortunately, the Defendant, was unable to provide any legal and/or factual basis for its assertions.
A letter before action
was sent on xx/xx/xx or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated xx/xx/xx, giving its “final response” to the claim, denying a refund of inter alia the Charges, to the Claimant.
Claimant notes that the Defendant, to date, has made no attempt whatsoever to present a competent defence to the Claimant’s claim.
Brief Outline of Claim
Claimant as part of her basis of claim, advances that:
a. the Charges have been unlawfully applied to the Account;
b. no contract ever existed between the parties hereto that purports to allow the Defendant to levy the Charges to the Account.
c. should such a contract exist it could only exist in the form of the Terms & Conditions.
d. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter.
e. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defendant for services provided then they are irrecoverable due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable.
In support of part of her basis of claim the Claimant contends, and intends to prove that:
a. the Charges are:
i. punitive in nature;
iii. generally disproportionate;
vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;
viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant;
ix. not intended to represent or related to 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;
x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and would not have incurred but for any alleged breaches of contract on behalf of the Claimant; and
xi. are held 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.
b. all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of:
i. the UTCCR
ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’)
iii. the Supply of Goods and Services Act 1982; and
iv. the common law; and
c. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated.
Unfair Terms in Consumer Contract Regulations (S 2083/1999)
Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.
Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”
Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).
Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as unfair”. The Terms & Conditions allow the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”.
Regulation 8(l) of the UTCCR provides that: “. 1n unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”
Accordingly, the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR.
Unfair Contract Terms Act 1977
Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 64 of these particulars.
Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.
Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”
The authorities mentioned in paragraph 18 and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the case of Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co are powerful authorities in favour of the Claimant. Accordingly, the Claimant is entitled to judgement as sought in these particulars.
It was noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.
Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:
a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.
b. The essence of a penalty is a payment of money as “in terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.
c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests, which would prove, helpful, or even conclusive:
i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;
ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.
Details of Judgement Sought by Claimant
Accordingly the Claimant seeks:
a. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £XXXX
b. the return of the Subject access request
Fee, in the amount off £10.00, that the Claimant was required to pay in the perusal of this case
c. court costs; and
d. interest pursuant to s69 County Courts Act. Interest, in that case, up until xx/xx/xx amounts to £XXXX, as detailed in Schedule, attached hereto. Interest per day thereafter, or part thereof, is £00.xxp
Statement of Truth
The Claimant believes that the contents of these particulars of claim are true