Case Management Conference 13th Oct. 06

[Its WAR]

RESULT........ I had four claims being heard at this conference. HFC and two Black Horse claims have now refused to attend and settled instead. Leaving NatWest as my last remaining claim (for this set of hearings). They have already made a part payment of £1800 and we now still arguing a further £3000.

 

So now Natwest will suffer all the extra costs instead of it being split between 4 claims. I bet Natwest will attend just to put off the bitter day when they get to issue the cheque. This is an abuse of the system and the many times this has happened must be brought to the attention of the QC at the Conference...Its WAR.

[Plutos]

Natwest seem to be by far the worst in terms of trying to intimidate their customers into not giving up. Congratulations on the other banks, and i hope all goes well with the conference (or non conference if Natwest pay up before hand). What exactly have they said is supposed to happen at these things?

 

PL

 

RESULT........ I had four claims being heard at this conference. HFC and two Black Horse claims have now refused to attend and settled instead. Leaving NatWest as my last remaining claim (for this set of hearings). They have already made a part payment of £1800 and we now still arguing a further £3000.

 

So now Natwest will suffer all the extra costs instead of it being split between 4 claims. I bet Natwest will attend just to put off the bitter day when they get to issue the cheque. This is an abuse of the system and the many times this has happened must be brought to the attention of the QC at the Conference...Its WAR.

[Its WAR]

Today I received a schedule of costs from Cobbetts. They will be seeking £1147 in solicitor charges which will include Counsel's fee of £750 for attending the Case Management Conference. The fee earner is on £95 per hour and the trainee is £75.00. Now, I wonder how many other claimants will be at the conference and whether they have all had their version of a schedule and whether this fee should be split 10 ways for instance. Or if ten cases, whether Cobbetts council are thinking they can come away with £7500. I gather the £750 fee is the max allowed by a Mercantile Court, but this isnt a Mercantile Court, its just a CMC to decide whether a Mercantile or County Court will hear the case. Anyway, costs will be awarded against the loser at a full hearing, and no costs at all at County Court level.

 

Its almost offensive to have this sabre rattling at the death. A couple of more blows and it should all be over. Martyn Lewis has well and truly sealed the banks fate today. County Courts will have to start recruiting.

 

Now the secret.......

 

Yes, Natwest, be the first bank to offer full repayments to all customers past and present. It will cost millions in repayments. But think of the advertising that will earn you. If you plan to do it (on the back of an acknowledgement of what turned into bad paractice) and you get all your competitors disgruntled customers coming to you. All you need to do is offer the right product and make these swift payments part of the deal. No fancy 0% interest on balance transfers or flashy shaped plastic. Save the money you are wasting on Cobbetts and the milllions they will earn from you next year. Just acknowledge the unlawfull activities, hands up, put things right and let your competitors fight tooth and claw amongst themselves and their ex customers who have come back to the first bank (Natwest ?) that understands. Someday all banks will be this way....no rewards for second place.

[Louisk]

Here Here Here, very well said

[Its WAR]

Case Management Conference is over. Where on earth do I start. I'm sure you all want to know the ending, sooooo, I'll start at the beginning. The CMC was to hear directions for 4 cases I had brought along with a bunch of other cases brought by others. 3 of my cases were settled before the conference so I only expected to be up against NatWest. I expected to meet a bunch of other claimants up against them too, and maybe a few other banks. How wrong I was. It appears every case had previously settled. Except my Natwest case. So it was me and Natwest....thats it. The CMC was heard by His Honour Judge Havelock-Allen QC. Of course before he could give directions, he had to hear Cobbetts barister (who travelled down from Manchester) give his presentation as to why the judge should strike out my claim. Thus commenced a two and a half hour war of words. While the barister argued that my "claim did not disclose any legally recognisable claim" and "had no real prospect of success" and "no compelling reason it should be disposed of at trial". He was relying on Cobbets witness statement (Lynsey Burgoynes) as evidence to support his application to strike. Now, my case may differ to any readers, in that I had already accepted as part payment an amount from cobbetts £1800, equal to the charges, plus court fees with 8% section 69 calculated on the charges. So the CMC only related to strike out the interest Natwest had charged on the unfair charges part of my claim and sec 69 8% on that portion only. The only part of Cobbets witness statement concerning this was "I respectfully submit that the claimant has no real prospect of succeeding on the remaining issue in dispute in relation to interest at 23%. The claimant is not legally entitled to claim two sets of interest, as effectively the claimant would be making a double recovery".

 

This interest claim valued £2200 plus section 69 £1200 Total £3400. So it was a big deal. The barister started to suggest that section 69 8% was not applicable because it was already calculated within the 23% I was claiming. This point was won by my reply. Basically argueing that if the bank charges and interest were valid claims then section 69 8% is the recognised standard allowed by the court. That although the 8% is a discretionary award, whether it is awarded comes after judgement. It would therefore be wrong to strike out a claim on the suggestion that it would be a double recovery, that question could not be argued until/unless judgement on the claim occurs first. Therefore not a valid reason to strike.

 

The barister then moved on to the point that the 23% was a flawed calculation, innacurate and had no merit. The judge argued that if the bank charges were valid (and the bank had already refunded them) then interest on those charges must also be a valid argument and in fact had a reasonable chance of success if it were allowed to be argued in a hearing. (things were going my way....the judge was pleading my case for me). Then the bombshell. While I was being charged 16.9% on my charges and at times 29.5% on the unauthorised part, I had arbitrarily averaged them to 23%. The judge suggested that this sum was certainly not likely to be the exact sum, especially if the 29.5% was only charged some of the time and the 16.9% most of the time. The 23% would be less and could be much nearer to the 16.9%. Because I was unable to provide specific amounts, I could easily be over valueing the interest (I could also be undervalueing it) One thing was certain, an average was probably not accurate enough to convince him the amount claimed was accurate. I argued back with purpose and passion, that the 23% was based on a mathmatical formula that although not neccesssarily precise was at least a fair attempt at compromise. I drew his attention to correspondence between me and cobbetts, where I suggested if they were unable to agree that the amount I was claiming in interest was innacurate, I would welcome their input to arrive at a more accurate method of calcualtion and I would therefore amend my claim.Then the next volley of bombshells....The judge said Natwest were under no obligation to tell me the amount they had charged me in interest (even if all they had to do was press a button on a computer to get the figure). I had brought the claim, it was for me to have accurate evidence to support my claim. I therefore had to explain how I arrived (not just at 23%) but the amount it came to. I suggested that I had used google to calculate compound interest at a daily rate to give me the answer. This raised two points, was compound the correct method (I dont know) so I said yes and explained why. Then, was daily interest and not quarterly or annually right. I explained why it was (but I dont know for sure). Then, the explosive nuclear bombshell. The barister had another go. He started adding to Lyndseys witness statement. And this is the important issue which caught me totally unprepared.

 

The interest I was claiming is not just arguable over the value (maybe 16.5, maybe 23, maybe 29%) but whether it was payable at all. It seems that although the interest is clearly and demonstrably charged to me, that didnt mean that I had actually suffered that sum as a loss. It was just an entry on a statement and I didnt actually suffer a financial loss until I made an attempt to pay off the interest. Until then I wasnt out of pocket. Inother words if the debt was running for 6years and interest kept acrueing, I would only be out of pocket when I paid the debt off. That paying off date could have been last week and therefore I could claim an amount x 6 days interest not an amount x 2000 days. Therefore my calculation should be based upon the days from my payments not from the days the interest was applied, and that indeed there was no loss at all for any days my account were in credit. My calculations missed these points entirely and should therefore be struck out. They were a mere guess at what may or may not be reclaimable and I had no evidence to support my claim, other than an average.

 

The judge said he didnt know what a google compound interest calculater was and this cast doubts as to how I had arrived at and claimed the 8% sec 69 on top of what could be wildly innacurate interest claims. I advised him that I used the courts own recomended 000.21 x £??? x days. He hadnt come across that equation either..........MY heart sank, I was stuffed. But I bet he will look it up later.

 

So to the summing up. I spoke up the best I could, the barister had one more go. The judge gave his response bit by bit. On point one, he couldnt allow the strike out, nor on point two as no legal reasons were given to support why he should. As for the interest, he suggested that the principle of whether the interest was reclaimable from date it hit my statement, or from the date I paid it, could make a huge difference to the value of the claims, but in itself was a perfectly arguable position and could be judged one way or another supported by inteligent and accurate figures. Therefore the claim would be allowed to proceed in order that these points could be argued. It then took five minutes to decide that a county court judge back in Taunton could hear that case and he would return the case accordingly. In the meantime, I was advised to be prepared to argue why interest should be claimed from date it is applied to my account rather than the date I suffered the actuall loss incurred by paying it and to be more accurate than averaging it. I believe he was not ready to strike out at that time because that meant he would effectively be judging which methods were the correct way to apply interest. He recognised that I could therefore arrive at a different (lower?) sum and NatWest and I would probably end up negotiating a settlement. He gave me the window to do just that, or have another day in court.

 

So thats that. Happy to answer questions, but no more tonight, I feel brain dead, bruised and battered............Oh nearly forgot......Halifax letter today £1080 credited to my account and £365 to another. Happy days............

 

I have copied his entry to my Natwest thread £10,000 v Natwest.

[midge61]

What a day for you. Bet you feel totally drained. Atleast it was'nt a defeat and I'm sure there will be plenty of people willing to help with the calculations you need(not me I hasten to add maths not my thing!)

Congratulations on standing your ground, I think I would have gone to pieces!

Still at least you had a nice suprise with the Halifax win.

Once again WELL DONE

[Guest bong]

I think you should be congratulated for this result - very well done!!

[katesage]

Wow! Well done Haydn. I've just come across your thread for the first time and don't know the back ground but your performance in court sounds awesome, you kept your cool whilst arguing some very tricky financial points.

I'm shocked at the concept of loss only after repayment, but I guess it has some validity, however I keep coming back to the idea of money taken from my account in charges and interest, money that I could have had access to and used to buy shoes!

Had that money stayed in my account my financial position would have been far healthier. I'm not in debt now and settled those charges, overdrafts, debts etc over 2 yrs ago, so would a claim be for only 2 yrs worth of lost interest?

 

thats not a genuine question about my case with nw btw, i'm nearly there with standard 8%, no, just pondering the hypotheticals!

 

off to read more.....!

 

well done again:-)

[Glenn UK]

Haydon

 

Well done some of those issues would certainly have made me think and you obviously did well to give the responses you did.

 

Can i ask a question for tomorrow perhaps, the interest you were claiming appears to me to have been the interest they charged you, and therefore I can see the argument that you suffer no loss until you either try to repay it or they try to enforce it.

 

But then I got a little confused and thought you were claiming the contractual interest, which is the cost to them for them unlawfully borrowing your money on the basis of reciprocity and mutuality.

 

Can you confirm exactly what the interest you were arguing was?

 

Cheers

 

Well done once again

 

Glenn

[Its WAR]

It was not contractual interest. Funny though, the barister suggested that it could have been and his argument would not have been so effective. I supported that view of reciprocity to the judge and he just smiled to himself as though that was a very weak idea.

 

Anyway, I still have the case to settle and my other remaining natwest claim. So its back to the drawing board trying to figure out a more accurate way to calculate interest. And get the words together to argue whatever position I take. Not to convince a judge but to get a water tight arguement to enforce settlement prior to a hearing. I think we can be sure the banks wont tell us the figure, but they will probably keep making offers.

[bish]

I have issued a claim against abbey on 30/08/06 for £8189.53. I wrote to abbey on 22/09/06 regarding charges and interest on my account, and requested that charges and interest of 28.7% be stopped until my claim had been settled. I received a letter yesterday to say that i am overdrawn by £645.50 (plus interest and charges) and should arrange repayment. I am in the mind to write back and say I am adjusting my claim from 30/08/06 to take in to account interest at 28.7% as they are obviously still applying unlawful charges and therefore unlawful interest to my account. What do you think?. Not going back six years, just from the date of issue of claim.

 

Regards bish.

[Guest bong]

haydn, maybe I'm looking at this from too simple an angle (being simple-minded myself), but the way I see it is that, assuming for the purposes of this argument your overdraft limit was £1,000, and had been agreed in principle say 10 years ago, if you owe £1,000 today, that debt consists of the latest £1,000 of payments out of your account - not the charges etc that were applied 10 years ago! Therefore don't you just list out the last £1,000 of debits on your account and state that everything that has gone before has been paid by you and you are claiming interest on it. If they require the date of payment of the charges, pick the nearest deposit/s to when the charges were applied and state that they were paid out of that. Too simple?

[gizmo111]

haydn, maybe I'm looking at this from too simple an angle (being simple-minded myself), but the way I see it is that, assuming for the purposes of this argument your overdraft limit was £1,000, and had been agreed in principle say 10 years ago, if you owe £1,000 today, that debt consists of the latest £1,000 of payments out of your account - not the charges etc that were applied 10 years ago! Therefore don't you just list out the last £1,000 of debits on your account and state that everything that has gone before has been paid by you and you are claiming interest on it. If they require the date of payment of the charges, pick the nearest deposit/s to when the charges were applied and state that they were paid out of that. Too simple?

 

I seeexactly what you are saying but what they are saying is that the overdraft still exists until that is at zero and account is in credit - they haven't actully received payment of the charges - they are just part of a debt - another CC I am dealing with has used a similar arguement sayiong that as I just increased indebtness and it was then sold to a DCA - i never physically suffered a loss until i made 1st payment to DCA - and the interest is already proportionately claimed.

[Guest bong]

I think credit cards operate in a different way to overdrafts, in that the credit card terms and conditions specifically deal with the way in which payments into the account will be applied, ie against purchases, cash withdrawals, charges and interest etc but overdrafts don't have such specific terms, atleast not as far as I am aware.

[Its WAR]

I cant remember where I read: It was in one of the Acts, Sale of goods, Unfair terms or similar: That if a contract were ambiguous, then it should be decided in favour of the consumer. Therefore, if the banks T&Cs do not prescribe what debts get paid off first, or in what order, then it would suggest that the consumer could argue any order that seemed most suited to the claim. However, we still have to find the argument that supports our point that we should be claiming interset from the date it is recorded on our statement and not as the banks suggest, that we have not incurred a loss until we have actually paid it (which suggests that the interest and charges are not a loss until the final amounts of the overdraft equal the combined charges and interest. Only then do we ommence a loss). However, I would argue that the interest becomes due on demand and if correctly allocated to the account (rather than illegally) that would be once it hit the statement. Secondly, any money paid in would be first applied to the most historical part of the debt, therefore paying off a portion of overdraft, interest and charges, followed by the next portion of overdraft, interest and charges. Therefore the banks argument that the interest was last to be paid off and therefore any illegal loss to us would be far shorter or not at all, could be flawed. However, its still up to us to arrive at both the argument and the calculations.If the banks offer to settle the charges (whether we accept the part payment or not), they can proceed to any hearing and rely on us to prove our figures to support our claims for the interest portion. They will argue their best, causing doubt and confusion. The judge may not be mathematically articulate and therefore our argument must be capable of persuasion, simpicity in its explaination and convincing in our presentation of the maths. As long as we are able to explain our numbers more clearly than the solicitor in trying to poo poo them, we can win the case. So whats the argument and whats the formula....................?

[Its WAR]

OK Found it......... 7(2). Therefore any reference in the T&Cs which relate to repayment of overdrafts, charges & interest (illegal charges & interest) would make the term unfair if the contract forces us to repay an illegal charge. If there are doubts as to what order our payments go towards clearing the illegal charges, these doubts would be interpreted to our benefit.

 

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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

Assessment of unfair terms

6. - (1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-

 

 

(a) to the definition of the main subject matter of the contract, or
 
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
 

Written contracts

7. - (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.

 

Effect of unfair term

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

[Its WAR]

..

[Guest bong]

Haydn, I have just read my bank's (HSBC) terms and conditions and there's nothing in there about the order in which payments into the account are to be applied.

 

My thoughts are that the charges and interest debited to your account on x date deprived you from using that money at that date (proving that the date of the loss is the date the charges were applied and not the date you had to pay them off). The charges and interest are deemed to be unauthorised borrowing from your resources, because the bank received and had the use of that money and you did not.

[gizmo111]

Haydn, I have just read my bank's (HSBC) terms and conditions and there's nothing in there about the order in which payments into the account are to be applied.

 

My thoughts are that the charges and interest debited to your account on x date deprived you from using that money at that date (proving that the date of the loss is the date the charges were applied and not the date you had to pay them off). The charges and interest are deemed to be unauthorised borrowing from your resources, because the bank received and had the use of that money and you did not.

 

I agree with that - and it expalins the knock on effect of carges ie that £38 referall charge that was in your budget for a credit card payment that wasn't paid and then got charged for that - overall causing interest and charges eleswhere (not always but in gneral) the overall effect is to cause to you to mismanage your finances and so have charges in other palces - the start of downward spiral of debt - that swamps you.

[CrispDust]

Haydn, congrats so far.

 

I think you need some typed up worked examples for your arguement.

[Its WAR]

Yes, but where from?

[zootscoot]

Hi Haydn,

 

You can argue that the interest should be paid from the date the charges were applied to the account as oppose to the date they were paid on the following basis:

 

Claims for unlawful bank charges are based on the law of restitution ie unjust enrichment. This is because we are not suing the banks for breach of contract but are relyingon our breach of contract to claim money which has been unlawfully taken from us. Whereas contract claims are based on compensating loss, unjust enrichment claims are valued on the benefit received by the defendant.

 

These claims are generally actions for money paid although not exclusively. Natwest's argument assumes that this is a pure money action in stating you cannot claim interest until you have actually paid. You can argue that they have received a valuable benefit before you have actually paid them ie the contractual right to enforce a debt. This contractual right from which they benefit carries with it the right to claim interest. Thus they are unjustly enriched by having the right to charge interest.

 

Hope this helps

 

Zoot

[Its WAR]

Thats great. The argument is well worth developing. Can it be supported by quoting various Act references?

[zootscoot]

Law of restitution founded on unjust enrichment was first acknowledged by the House of Lords in the case of Lipkin Gorman v Karpnale.

 

The 'unjust' element has to comprise of a legal principle as oppose to be being simply unfair. Certain 'unjust factors' will trigger the right to restitution. These unjust factors include things such as total failure of consideration, a tort committed or duress. In the instance of unlawful bank charges the unjust factor could be mistake. Ie you made the payments in the mistaken belief that they were lawfully due. The authority for such claims rests on the case of Kleinwort Benson v Lincoln CC.

 

The relationship of bank and customer was also considered in Lipkin Gorman where it was held that the relationship was founded on contract. Ie when you pay money into the bank the money belongs to the bank and the bank has a contractual duty to pay the debt. Conversely when you go overdrawn the bank has a contractual right to enforce the debt. A contractual right to enforce a debt is known in law as a chose in action.

 

Hope this helps

 

Zoot

[bram stoker]

I notice you added the interest they charged you by percentage. My spreadsheets start with the interest they actually charged you and apportion it between accumulated charges and "true" overdraft.

 

I don't know if you have considered this approach, or been able to. You need more information from your statements.