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At the moment I have made a mistake with my POC and will need to amend it via N224 form. I included charges for one business and one personal account in a claim using the normal consumer template so legally it's not accurate as it mentions the UTCCR part.
Is it possible to create a 'hybrid' POC to cover the law for both business and personal accounts in one claim?
I suppose it would be theoretically possible to adapt the templates to cover both business and personal accounts.
Or is this not advisable? (and I should issue seperate claims)
Re: Business account + personal account in one claim?
Is the business account in your name (e.g. a sole trader scenario)?
If they are then it is possible to combine the claims although the particulars of claim would be more complex, you'd need to specify which account the breach of the UTCCR applied to. If you're claiming any contractual / overdraft interest you'd also need to make sure you're applying the right rate to the right account.
Advisable or not? Well, if the business account is solely in your name then strictly speaking I suppose it's the way it should be done.
Re: Business account + personal account in one claim?
Hi
Thanks for the reply.
Yes - it was in my name (sole trader). I am not claiming overdraft/contractual interest - just the statutory 8%.
I thought of simply amending it as follows by adding the bold bits (this was an MSE template):
Between the dates of 11/7/2003 and 10/02/2007 the Defendant applied numerous default charges to the Claimant's bank accounts.
The charges applied to the Claimant's personal account xxxxxxxx constitute an unfair penalty under the Unfair Terms in Consumer Contracts Regulations, which state: 'A term is unfair if it requires any consumer who fails his obligation to pay a disproportionately high sum in compensation'. The amount charged does not reflect the cost of the breach.
Under the law of penalties, the charges applied to both personal account xxxxxxxx and business account xxxxxxxx are an unlawful 'extravagant' penalty. Referring to the case[s] of 1896, Wilson v Love , 1915, Dunlop Pneumatic v New Garage, along with 2005, Murray v. Leisure play a charge is a penalty if it does not reflect an item's true cost. Penalties are irrecoverable at Common law.
Under the County Courts Act 1984, the claimant is entitled to interest at a rate of 8% per annum from the date they were first deprived of the money to the date of this claim. This amounts to a total sum of £248.75, continuing to accrue at the statutory daily rate of 0.021% until judgment or earlier payment.
The Claimant therefore asks the court to enter judgment in their favour for the sum of £2173 plus interest of £248.75, amounting to a total of £2,421.75.
Re: Business account + personal account in one claim?
I think it's along the right lines but too vague in parts and with unnecessary quoting of case law. Based on the CAG particulars I'd try something more like this (I've just pasted in the bits that need to be amended from the CAG particulars):
1. The Claimant has a personal accountnumber 12345678 ("the Personal Account") with the Defendant which was opened on or around xx/xx/xx [and closed on or around yy/yy/yy]
2. The Claimant has a business accountnumber 23456780 ("the Business Account") with the Defendant which was opened on or around xx/xx/xx [and closed on or around yy/yy/yy]
3. During the period in which the Accounts [have been] [were] operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. 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.
4. A list of the charges applied is attached to these particulars of claim.
5. The Claimant contends that:
a) The charges debited to the Accounts are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related 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) The contractual provision that permits the Defendant to levy such charges on the Personal Account is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.
c) The contractual provision that permits the Defendant to levy such charges on the Business Account is unenforceable at common law as a penalty charge.
Re: Business account + personal account in one claim?
Brilliant. Thanks.
I now have two options (HSBC have not yet entered a defence but have acknowledged the claim - about 10 days to go):
1 - send the N244 to amend the POC straight away
2 - wait until HSBC enter a defence (I guess they'll do this on the 28th day) then amend the claim - I suspect that they will pick up that my POC is wrong with regards to the business charges and use that in the defence to weaken the basis of my claim.
I'm steering towards option 1 as a preventative measure.
Would this be sensible?
Re: Business account + personal account in one claim?
Actually I've noticed an error in para 5(c) of my post (the problems of copy & paste) as s.4 UCTA1977 only applies to consumers so wouldn't apply to the business account - I've amended it accordingly.
It'll cost you a non-reclaimable £35 to modify the particulars. If you've still pleaded Dunlop Tyre in relation to the business account you're still covered as all they can do is defend one of your causes but not the other. I'd wait and see what the defence is.
Re: Business account + personal account in one claim?
Well. I received a defence and they do not seem to have picked on the mistake I made with regards to the POC - or have chose to ignore it.
The defence was cut and pasted as the symbol ' has been replaced by ? - obviously done online. It is a standard 5 point defence I am guessing.
1. The Claimant's account is governed by the Defendant's personal and/or business banking terms and conditions.
2. Pursuant to the Defendant's terms and condtitions, the Defendant is entitled to make a charge for its services as set out in the Defendant's price list, including an overdraft review fee for considering whether to provide and providing an overdraft.
3. The Defendant denies that the charges applied to the Claimant's account amount to penalties at common law and/or unfair contract terms for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs)
4. The charges applied to the Claimant's account are reasonable and are properly and fully disclosed in the Defendant's terms and conditions and published price list. The charges represent the contractually agreed price for the services provided and the UTCCRs are not applicable to them: alternatively, they are not unfair contrary to the UTCCRs. The charges are not default charges and, accordingly, cannot amount to a penalty.
5. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
The judge has also ordered the AQ to be set aside.
I am guessing that the next stage is to be contacted by DG solicitors.
Business account + personal account in one claim?
and will need to amend it via N224 form. I included charges for one business and one personal account in a claim using the normal consumer template so legally it's not accurate as it mentions the UTCCR part.
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