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Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Well "hi" all.....
and welcome to this new thread....
Settled three claims so far (one with barclaycard just last week) and its about time I 'fired off' some more, including my TWO
Lloyds TSB Classic Current Accounts... (not to be confused with my LLOYDS TSB MASTERCARD CLAIM... a separate claim in a similar starting position)
I am about to submit my N1 claim form direct to the court (a first for me as up until now I have used moneyclaim online). This was a neccessity bearing in mind the much longer 'particulars of claim' (POC) for the contractual interest part (another first for me)....
To date (and I have been a little slow with this claim)
19/4/06 Received my DPA request info from Lloyds
26/4/06 Sent my prelim letter
27/4/06 Got a lengthly letter back including:
"For the vast majority of our customers banking with us can be completely free as charges are not made for services such as debit cards, cash machine withdrawls, balance requests, statements, cheque books and Internet banking. We also do not charge for processing Direct Debits and Standing Orders when they are paid through our Customers accounts."
bla bla bla...... and ultimately....
"...... Alternatively, you may wish to consider alternative banking arrangements."
Signed JEAN CAMPBELL (Charmed I'm sure?)
11/5/06 Sent 2nd letter
12/5/06 BANKS FINAL RESPONSE signed David Just
7/6/06 Sent my lba
14/6/06 BANKS FINAL RESPONSE signed Jamie O'Neill
22/1/07 Ok, resent my LBA specifying componded contractual interest implications.... "I wanted to give the bank time to reconsider"
7/2/07 BANKS FINAL RESPONSE signed Jamie O'Neill again
Ok,
*Aware I cannot claim 8% statatory aswell
*I've always enclosed schedules with my letters, using the fantastic Vampires's spreadsheets
*Having been to their website I believe a LLOYDS TSB CLASSIC CURRENT ACCOUNT has CURRENT: unauthorised overdraft rate of 2.20% a month; 29.8%EAR authorised overdraft rate of 1.44% a month; 18.7%EAR ALL AGREE?
*In my schedule I am claiming beyond 6 years (just) as I first wrote to LLoyds about my concerns on the 26/4/06 and the first charge I include is dated 27/4/00; within the 6years AT THIS POINT! EVERYONE AGREE?
*I am not certain when I opened these accounts; one was defintely in 1986.... ADVICE FOR THE POC?
In the next thread I will show:
My proposed POC (derived largely from the brilliant 'mccuth' and 'mindzai & lucid' threads
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Ok my draft POC
(a huge thankyou particularly to 'mccuths vs RBos' thread:
"Brief details of claim" The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.
"Value"
Penalty charges in the sum of £xxxx and interest charged thereon in the sum of £xxxx. Interest to be determined as the Court deems just, as per section 9 of the attached Particulars of Claim, with the maximum to not exceed £xxxx. A maximum total of £xxxx.
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £xxxx per day or at such rate and for such periods as the Court deems just, according to section 9 of the attached Particulars of Claim.
"Particulars of claim"
1. The Claimant has two 'Lloyds TSB Classic Current' Accounts, numbers xxxx andxxxx("the Accounts"), both with sort code xxxx) opened on or around xxxxth xxxx xxxx and xxxxth xxxx xxxx respectively;
2. The Accounts are governed by the Defendant’s Personal Banking terms and conditions ("the contract");
3. During the period in which the Accounts have been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to "Late Payment Fees", "Unpaid direct debit Fees", "Overlimit Excess Fees", etc.. on the part of the Claimant and also charged interest on the charges once applied;
4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant;
5. A schedule of the charges and interest applied is attached to these particulars of claim; (Appendix xxxx); 6. The Claimant will rely on the Competition Commission's report entitled "Northern Irish Personal Banking" published on the 20th October, 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;
7. The Claimant will further rely on the Office of Fair Trading’s ("the OFT") statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT's recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements;
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is 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. A penalty clause is void in its entirety and unenforceable.
c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.
9. Contractual Interest
a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed;
b) The Claimant’s grounds 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;
c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate, being 29.8% EAR;
d) In the alternative to 9.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s current authorised borrowing rate for a 'Lloyds TSB Classic Current' Account, being 18.7% EAR;
e) In the alternative to 9.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year;
f) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%
Appendix xxxx – Evidence of the Defendant’s current borrowing rates
10. Accordingly, the Claimant claims (having first contacted the Defendant about these amounts on the 26th April, 2006):
a) The return of the amounts debited between 27th April, 2000 and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of 29.8% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
d) In the alternative to 10.c), compound interest at the contractual rate of 18.7% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
e) In the alternative to 10.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to xxxx xxxx xxxx, of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx.
11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.
*THE ACCOUNTS ARE DORMANT; 1 has 53p in! Thus point 11.
Innocent
ANY THOUGHTS? ANY FEEDBACK WILL BE GREATLY APPRECIATED
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Back to post 1, do not be concerned about when you opened the accounts, it will not be a point of contention, I would just claim back all the charges you have details for, even if arguable pre 6 years, I claimed back 10.
I gave some advice a few days back whereby the court refused to accept nearly the same particulars because they had difficulties with, inter alia the not to exceed part - if I recall correctly. I cannot find it now, the number of days you can search your posts back has reduced.
The POC are a summary of your case, you then further particularise, within the confines of your POC, as the litigation progresses. You will get the opportunity to say all of this later, unless as it probably will with Lloyds, settle before then.
If I have been helpful please click on my star and add a comment.
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Originally Posted by innocent
Ok my draft POC
(a huge thankyou particularly to 'mccuths vs RBos' thread:
"Brief details of claim"
The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.
"Value"
Penalty charges in the sum of £xxxx and interest charged thereon in the sum of £xxxx. Interest to be determined as the Court deems just, as per section 9 of the attached Particulars of Claim, with the maximum to not exceed £xxxx. A maximum total of £xxxx.
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £xxxx per day or at such rate and for such periods as the Court deems just, according to section 9 of the attached Particulars of Claim.
"Particulars of claim"
1. The Claimant has two 'Lloyds TSB Classic Current' Accounts, numbers xxxx andxxxx("the Accounts"), both with sort code xxxx) opened on or around xxxxth xxxx xxxx and xxxxth xxxx xxxx respectively;
2. The Accounts are governed by the Defendant’s Personal Banking terms and conditions ("the contract");
3. During the period in which the Accounts have been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to "Late Payment Fees", "Unpaid direct debit Fees", "Overlimit Excess Fees", etc.. on the part of the Claimant and also charged interest on the charges once applied;
4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant;
5. A schedule of the charges and interest applied is attached to these particulars of claim; (Appendix xxxx);
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages.
c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.
9. Contractual Interest
a) The Claimant claims interest on the amounts claimed under the principle of mutuality and reciprocity (if you are going to use this term you should know that i havent seen anoyne post a good explanation of this or where it comes from, balance and fairness comes fro utccr i think and is a better term) in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed;
b) The Claimant’s grounds 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;
c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate, being 29.8% EAR;
d) In the alternative to 9.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s current authorised borrowing rate for a 'Lloyds TSB Classic Current' Account, being 18.7% EAR; This is illogical i cannot see any way that the unlawful removal of your moeny could be authroised.
e) In the alternative to 9.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year;
f) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%
Appendix xxxx – Evidence of the Defendant’s current borrowing rates
10. Accordingly, the Claimant claims (having first contacted the Defendant about these amounts on the 26th April, 2006): Your cause of action has nowt to do with when you contacted them its to do with either when you discovered thier concelament or your mistake or when the charges were applied to yuor account.
a) The return of the amounts debited between 27th April, 2000 and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of 29.8% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
d) In the alternative to 10.c), compound interest at the contractual rate of 18.7% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
e) In the alternative to 10.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to xxxx xxxx xxxx, of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx.
11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.
*THE ACCOUNTS ARE DORMANT; 1 has 53p in! Thus point 11.
Innocent
ANY THOUGHTS? ANY FEEDBACK WILL BE GREATLY APPRECIATED
I have made some comments, you may have different views but i cannot see logically how anyone can aruge that the unlaweful removal of your moeny was authroised obviousely jmho.
HTH
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
(I think I'm eventually getting there with the POC....)
Many, many thanks to mcuth (vs RBos) and memnoch (vs Lloyds) for their threads and POC's so far, and for others in their input to this thread
Again I have highlighted any changes in BLUE
Taken on board most of past comments apart from making the POC too big (I think? ) but you don't want it too vague either eh?!?
Forgot to say, till now, the claim, at 29.8% is about £4700 so should be within the small claims arena....
Please, PLEASE, feel free to comment
Innocent
"Brief details of claim" The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.
"Value"
Penalty charges in the sum of £xxxx and interest charged thereon in the sum of £xxxx. Interest to be determined as the Court deems just, as per section 9 of the attached Particulars of Claim, with the maximum to not exceed £xxxx. A maximum total of £xxxx.
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £xxxx per day or at such rate and for such periods as the Court deems just, according to section 9 of the attached Particulars of Claim.
"Particulars of claim"
1. The Claimant has two 'Lloyds TSB Classic Current' Accounts, numbers xxxx andxxxx("the Accounts"), maintained at the Defendant's Cosham, Portsmouth branch, with sort code xxxx);
2. The Accounts are governed by the Defendant’s Personal Banking terms and conditions ("the contract");
3. During the period in which the Accounts have been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to "Late Payment Fees", "Unpaid direct debit Fees", "Overlimit Excess Fees", etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied;
4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant;
5. A schedule of the charges and interest applied is attached to these particulars of claim; (Appendix xx);
6. The Claimant will rely on the Competition Commission's report entitled "Northern Irish Personal Banking" published on the 20th October, 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;
7. The Claimant will further rely on the Office of Fair Trading’s ("the OFT") statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT's recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements;
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is 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. A penalty clause is void in its entirety and unenforceable.
c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.
9. Contractual Interest
a) The claimant claims compound interest on the charges and overdraft interest applied thereon to the claimant’s account ("the principal claim"), at 29.8%EAR. This is the rate currently applied by the defendant to the claimant’s unauthorised use or borrowing of the defendant’s monies, as provided for in the said contract.
The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.
The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply penalty charges and interest thereon to the claimant’s account, or to profit in an unlawful manner from the claimant’s account breaches.
For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 ("UTCCR").
Regulation 5 (1) of the UTCCR states as follows:
Unfair Terms
5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer."
Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.
b) In the alternative to 9 (a), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of 18.7% EAR, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised;
c) In the alternative to 9 (a) and (b), if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers 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 commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of 18.7% EAR;
d) In the alternative to 9 (a), (b) and (c), if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act (1984) at the rate of 8% a year;
e) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%
Appendix xxxx – Evidence of the Defendant’s current borrowing rates
10. Accordingly, the Claimant claims (having first contacted the Defendant about these amounts on the 26th April, 2006):
a) The return of the amounts debited between 27th April, 2000 and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of 29.8% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
d) In the alternative to 10.c), compound interest at the contractual rate of 18.7% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
e) In the alternative to 10.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to xxxx xxxx xxxx, of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx.
11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Right, think this is my final proposed contractual POC unless anyone wants to add anything else???
Rgds
Innocent
"Particulars of claim"
1. The Claimant has two 'Lloyds TSB Classic Current' Accounts, numbers xxxx and xxxx("the Accounts"), maintained at the Defendant's Cosham Branch, with sort code xxxx);
2. The Accounts are governed by the Defendant’s Personal Banking terms and conditions ("the contract");
3. During the period in which the Accounts have been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to "Late Payment Fees", "Unpaid direct debit Fees", "Overlimit Excess Fees", etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied;
4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant;
5. A schedule of the charges and interest applied is attached to these particulars of claim; (Appendix x);
6. The Claimant will rely on the Competition Commission's report entitled "Northern Irish Personal Banking" published on the 20th October, 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;
7. The Claimant will further rely on the Office of Fair Trading’s ("the OFT") statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT's recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements;
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is 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. A penalty clause is void in its entirety and unenforceable.
c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.
e) Further the Claimant will vehemently refute any contention that the charges made by the Defendant are contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes such contention would be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.
f) without prejudice to paragraph 8.f) above, in the event that the Defendant’s charges were accepted as a fee for a contractual service, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.
9. Contractual Interest
a) The claimant claims compound interest on the charges and overdraft interest applied thereon to the claimant’s account ("the principal claim"), at 29.8%EAR. This is the rate currently applied by the defendant to the claimant’s unauthorised use or borrowing of the defendant’s monies, as provided for in the said contract.
The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.
The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply penalty charges and interest thereon to the claimant’s account, or to profit in an unlawful manner from the claimant’s account breaches.
For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 ("UTCCR").
Regulation 5 (1) of the UTCCR states as follows:
Unfair Terms
5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer."
Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.
b) In the alternative to 9 (a), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of 18.7% EAR, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised;
c) In the alternative to 9 (a) and (b), if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers 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 commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of 18.7% EAR;
d) In the alternative to 9 (a), (b) and (c), if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act (1984) at the rate of 8% a year;
e) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix xx – Compound interest calculated daily at 29.8%EAR
Appendix xx – Compound interest calculated daily at 18.7%EAR
Appendix xx – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%
Appendix xx – Evidence of the Defendant’s current borrowing rates
10. Accordingly, the Claimant claims (having first contacted the Defendant about these amounts on the 26th April, 2006):
a) The return of the amounts debited between 27th April, 2000 and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of 29.8% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
d) In the alternative to 10.c), compound interest at the contractual rate of 18.7% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
e) In the alternative to 10.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to xxxx xxxx xxxx, of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx.
11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.
e) Further the Claimant will vehemently refute any contention that the charges made by the Defendant are contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes such contention would be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.
f) without prejudice to paragraph 8.f) above, in the event that the Defendant’s charges were accepted as a fee for a contractual service, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.
d) and f) amount to the same. Get rid of d).
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Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
The particulars of claim do seem lengthy and also seem to be providing an argument at the aq stage or the hearing.
Is this really the right time to be going into so much detail as laid out in part 8 and 9? Aren't you just giving them a greater insight into your claim?
If this has been looked at by a moderator and checked out then fine, but I wouldn't want you stumbling on this.
Besides, I want to do the same!!!! :grin:
Steve
Despite all I have written I have still copied it into Word and formatted it all nice in a template style I am such a geek!
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
8. is simply essential as that's what forms the substantive basis of the claim. If your going to claim contractual I see no harm in pleading it in detail, so 9. is fine too. Having said that, quoting the full wording of the UTCCR section isn't really necessary -
Unfair Terms 5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer."
just citing the number of the relevant section would be fine. Its hardly critical though!
As I said on another thread, I don't think 6. and 7. are particularly needed - its supporting evidence which would be disclosed at a later date. I see no actual harm in leaving it in though.
Please remember to DONATE! Help CAG keep up the fight!
Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
The particulars of claim do seem lengthy and also seem to be providing an argument at the aq stage or the hearing.
Is this really the right time to be going into so much detail as laid out in part 8 and 9? Aren't you just giving them a greater insight into your claim?
If this has been looked at by a moderator and checked out then fine, but I wouldn't want you stumbling on this.
I am a little concerned about the length of the POC but know of POCs much much longer....
I think my point of view is: by now the banks know all (or the majority) of our 'insights' into our claims.... I'd like to think I am demonstrating a "well thought out, sound and complete" case to the judge, and the banks
Besides, I want to do the same!!!!
Steve
Despite all I have written I have still copied it into Word and formatted it all nice in a template style I am such a geek!
Im exactly the same, so much knowledge here that you can loose yourself..... only problem now is that I have so many word documents derived from this fantastic site
Thankyou again Gary..... I have taken on board much of what you have said and of course, respect all of your great advice :grin:
Anyway, down to the court tomorrow to submit.... (felt a bit alone the last few weeks without a case somewhere in progress not any more)
Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
TSB Classic Current Accounts...
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Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Originally Posted by innocent
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
about your thoughts (Guildo and Glenn 
Re: Innocent vs LLOYDS TSB CLASSIC CURRENT (CONTRACTUAL INTEREST)
