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I've got Abbey's defence (the usual). I sense that they, at least, are giving in more easily on "charges+8%" N1 claims but are getting increasingly stuck into claims involving contractual interest whether for a) reclaiming the interest they took (at contractual rates), or b) claiming the unauthorised overdraft rate because they took the charges unlawfully.
I'm doing a) and in preparing to run up against them or their lawyers, I would be grateful if anyone could give the benefit of their advice as to whether I am on safe ground arguing the following :
that the charges were "had and received" by the Bank resulting from a "mistake of law" (ie they turn out now to be unenforceable in law)
that the interest levied on the charges results directly from the same "mistake of law"
that the "law of restitution" provides for reversal of the Bank's "unjust enrichment" arising from that "mistake of law";
that these claims pass the standard 3 tests for "unjust enrichment"
that the most significant case law to support all of the above is Deutsche Morgan v Inland Revenue
I have read widely on CAG but can't recall it having been put in those terms before. What d'you think ? Regards, Mad Nick.
Don't be shy. I'm trying to stop Abbey driving a wedge between the charges and the contract interest on the charges. Loads of you are doing that - a couple got batted back to 8%. Forewarned is forearmed. Regards, Mad Nick
See the thread 'Directions Hearing Leeds (7 Feb)' in the Mercantile Cases and Stays sub forum. Its a big thread, so go straight to the last 2 or 3 pages to see what happened at the hearing and most importantly how the judge has tackled what you are calling 'contractual interest'.
I think you are confusing the issues here, at least in respect of the interest you have paid, although it arises from the contract, this is not what most people are referring to as 'contractual interest'.
For clarification in all my claims i claimed the charges, interest i paid plus contractual interest.
I have always got the 1st two, and in two out of four claims have got the latter as well.
And FWIW the post linked IMHO is irrelevant except to show how one judge dealt with the issues at hand.
It doesn't preclude or even show how any other claim under different circumstances would be dealt with by any other judge.
I would say that the law commission report is also significant too.
JMHO
Glenn
Kick the shAbbey Habit
Where were you? Next time please
Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
Abbey 2nd claim, two Accs - claim issued 30-03-07 Barclaycard - Settled cheque received
Egg 2 accounts ID sent 29/07 Co-op Claim issued 30-03-07
GE Capital (Store Cards) ICO says theyve been naughty
MBNA - Settled in Full
GE Capital (1st National) Settled
Lombard Bank - SAR sent 16.02.07
MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
Calculator, many thanks - interesting read. Glad I'm just going for 16.9%.
Glenn, I don't care what we call it. All I'm doing is trying to prepare thoroughly (FWIW spurred on by your own recent experience :
The downfall in my preparation was that i didn't have any case law prepared for unjust enrichment and so couldn't effectively argue my case in legal terms.
What case law would you recommend to argue unjust enrichment ?
Firstly this is an issue which needs to be decided by a court. It is not for us to say that it is or is not unjust enrichment.
Secondly to use the phrase "unjust enrichment" in this context is quite incorrect.
Unjust enrichment expresses the court's repugnance of a duplicated benefit - such as CI plus s.69 together or an award of compensation which does not include deductions for NI benefits payments received.
If the court decides that there is an implied reciprocal term then that becomes the law and the enrichment becomes just.
Karne, Thanks. Not sure how Bankfodder's comments (your link) sit with the following (from Deutsche v IR where D successfully reclaimed Corporation Tax which had been unlawfully charged) which says (my highlighting):
In England, the claimant has to prove that the circumstances in which the payment was made come within one of the categories which the law recognizes as sufficient to make retention by the recipient unjust. Lord Goff provided a list in the Woolwich case at pp 164-165 and the decision itself added another. One such category, long recognized, is payment by mistake: see Kelly v Solari (1841) 9 M & W 54. The late Professor Birks argued, in the second edition of his book on Unjust enrichment (2005), that the trend of recent English decisions meant that, for the purpose of entitling a claimant to recover, the categories were now superfluous. The fact that the money had not been due was, in the absence of some other causa for payment, a sufficient ground for Page 10 -9- recovery. We have now developed a condictio indebiti. The absence of a basis for the payment is a ground which generalises and subsumes all the separate categories of situation in which a payment of money not due was recoverable. 22. I do not think it is necessary for us to decide this question about the fundamental basis of enrichment liability because the question before the House is not the fundamental juridical basis of DMG’s cause of action but whether the action can be described as being “for relief from the consequences of a mistake” within the meaning of section 32(1)(c) of the 1980 Act.
Contractual Interest - reclaiming interest @ authorised rate
's defence (the usual). I sense that they, at least, are giving in more easily on "charges+8%" N1 claims but are getting increasingly stuck into claims involving contractual interest whether for a) reclaiming the interest they took (at contractual rates), or b) claiming the unauthorised overdraft
but can't recall it having been put in those terms before. What d'you think ? Regards, Mad Nick.
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