Just sent off S.A.R - (Subject Access Request) today along with a few other banks, credit cards and finance companies. Maybe im being a little bold but i have made it very clear that i fully intend to take this to court and also that i fully intend to claim contractual interest on said claim. I have said the same thing to all the other banks and card companies too, i feel this is fully justified and the only real fair way to pursue this.

Dont know if it will help much but im getting in touch with the local paper to see if they are intersted in following the case. At the same time im going to forward all info in real time to the local MP, and maybe a few others i come up with along the way. I really want this to be a full blown exercise in humility for the banks and their crooked tactics.

here goes Muhahahahaha

I like your style. Keep us informed.....

Just had reply back from RBS, interestingly headed on Mint-TM headed paper from one Mrs M Carpenter (head of data protection team).

RBS head of data protection

Mrs M Carpenter

PO Box 6050

Southend on sea

SS99 1ZX

sent a query about my address (being a new one) response time was fairly good about 4 working days...

Duly posted proof back today (recorded delivery ofcourse)

Tick Tick.....

Slightly modified the SAR in the templates section to suit my own needs, note i have stated i will be claiming contractual interest from day one.

tick tock....

xxxxxxxxxx

Royal Bank of Scotland

Data Protection Team

36 St Andrews Square

Edinburgh

EH2 2YB

20.1.07

Dear Sir/Madam

ACCOUNT NUMBER: xxxxxxxxxxxxxxxxxxxxx

Please supply me with a complete list of transactions and charges relating to my banking history with your organisation. Alternatively, a complete set of statements for that period will be acceptable. I also require a copy of my original agreement with you and also a list of payments relating to any payment protection cover on this account !

I must insist that this is treated as a Subject Access Request and the fee is accepted. I shall remind you of your legal obligation to provide a complete history of charges, and if you do not comply with this you will be in breach of the data protection act ! I do not want any incomplete “favours” from you !

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

I enclose the statutory maximum fee of £10. You have a maximum of 40 days in which to comply, though it would be nice to see a speedy response somewhat reminiscent of the speed in which you send out your own fees. Furthermore, when I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them in full, and also reclaiming the enclosed £10 Data Protection Act subject access request fee. I fully intend to pursue this case all the way to court, at which point I shall also be claiming the standard 8% interest. However I believe that a claim for contractual interest at that point be a fairer way to proceed, and my determination shall not in any way falter in this matter. If after 40 days you have failed to respond, an official complaint shall be lodged with the information commissioners office, and court proceeding will be started to force compliance through the courts for a breach of the data protection act !

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address (xxxxxxxxxxxxxxxxxxxxxxxxxxxx) is now my formal residence and the one which I want to receive all future correspondence.

Look forward to your prompt and courteous customer focused response.

This letter has been sent recorded delivery and proof of receipt will be collected promptly from royal mail.

You have 40 days !

Yours faithfully,

xxxxxxxxxxxx

xxxxxxxxxxxx

Received reply stating that they have found my statements and are ready to post them, however i just wanted to make sure they give me exactly what i requested under the SAR, so with the help of Battleaxe V MBNA i put together this ;-)

Mrs Carpenter

Data protection

Southend on sea

SS99 1ZX

xxxxxxxxxxxxxxxx

Account number: xxxxxxxxxxxxxxxxxx 3.3.07

Dear Mrs Carpenter,

Thank you for your letter dated 25.1.07 detailed below is the information you required.

Furthermore I elaborate on my original request and listed below is a clear definition of what I require from you. This request is in addition to my original letter dated 20.1.07 which should still be executed as per instruction.

I must also point out as it has been bought to my attention recently, that ALL information no matter how long held on file must be disclosed fully and in a format that is legible. It seems a lot of banks and credit card companies are wrongly interpreting the DPA 1998 as only needing to disclose six years worth of personal data, this is wholly wrong. The DPA clearly states that all information held must be disclosed. This incidentally has no correlation to the Limitation act 1980 at all and as such has no bearing on the DPA.

You have until 3.3.07 after that you will be in breach of data protection act. Act now as you will be relying on your early actions later in court and a judge will take a very dim view of such a business deliberately stalling or supplying incomplete data.

The Information Commissioner has asked to be advised if I do not receive the data (from RBS) I have requested by this date.

Please note a cheque for £10 has already been sent in my original SAR dated 20.1.07 which you already have received and acknowledged

I would be grateful if you would provide the following: -

• Full copies of all contracts which you believe exist between myself and your organisation, including copies of any documents you hold in support of same.
  
• Details of the identity of any individuals or organisations who have provided you with my personal information together with copies of any letters of instruction provided by them, or any contracts entered into between yourselves and the third party, and the relevant dates to which those contracts related.
  
• Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.
  
• Full details and copies of any documents upon which you relied when you have provided my personal or financial information to any individual, organisation or third party.
  
• Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information.
  
• Full copies of any correspondence in postal, email or any other format which you have entered into with any individual, organisation or third party which contains my personal or financial information, or which pertains to myself.
  
• Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.
  
• Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, reason for deletion, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.
  
• Full hard copy print outs of any of my personal or financial information held in a digital, magnetic (including all audio files) or any other format which is held in any archives, backups or other storage devices / locations. And Audio files
  
• Your registration number with the Information Commissioners Office.
  
• Your Consumer Credit License number.
  
• Your VAT reg number

Where reference to emails is given above, these emails should be taken from your email servers or backups / archives held in a magnetic or digital format. These emails may not be present on a user’s local system, and may require the assistance of your IT department / IT providers, who you should contact immediately for their provision. I also request proof that said emails have been deleted or removed from local servers.

Please confirm whether you hold a physical file with details of my personal and / or financial information. If so, please provide details and dates of any instance when this file has left your control, to whom it has been communicated, the method of transportation / communication e.g. Royal Mail, courier, by hand, electronically. Please provide a full copy of this file Where my physical file has left your offices, please provide details of any precautions taken to ensure that my information has not been lost, stolen, misplaced or made available to anybody who does not have authorised access, including those who would use my information for the purposes of identity theft, or registered with any credit agencies. Please also confirm whether any of the documents held within the physical file are computer generated.

Under S.40 of The Administration of Justice Act 1970, if you believe you have provided my information to any organisation, agent, or individual who could, or may have used it for unlawful purposes, you should contact me immediately, and provide full details of their identification and address, together with full details of any instructions you have provided to them. If you have forwarded or communicated my personal or financial information to any person, company, or organisation, please provide a copy of the authority, signed and dated by myself upon which you have relied prior to doing so. As requested above, you should provide copies on any such communications.

Under the Data Protection Act 1984 / 1998, as a Data Controller, you are responsible for the complete retraction of all information provided to any third party, should I request you to do so, and have a duty to myself to ensure that any personal or financial information I have provided to you is kept securely, and is only communicated to those to whom I have given my express permission / authority. I will take a very serious stance on any data controller that is seen to be irresponsible with Data Protection.

If you are unable to deal with this request yourself, you should immediately forward it to the person within your organisation that is qualified or responsible for Data Protection.

I will be filing in the County Court on the morning of 4th March for Non Compliance and damages, if I do not receive the documentation requested by 5pm 3rd March 2007. A post marked envelope bearing the date of 3rd March 2007 does not mean I have received the documentation, unless you have my signature as having received it on the 3rd March 2007.

I have enclosed a copy of my passport and driving license for identification purposes. I have been informed by the Courts I do not have provide identification at all. You now have all necessary documents and instructions needed to carry out said instruction, I shall not enter into any further correspondence on this matter. I require you to forward by means of royal mail “Special Delivery” all requested documents and recordings to my home address no later than 3.3.07. It is your responsibility to execute this task to the best of your ability, making sure all items are secure and undamaged before posting.

I look forward to hearing from you in the first instance

Yours sincerely

Progenic7

Previous addresses

xxxxxxxxxxx

Lol!!! This is going to be one BIG envelope!!

Hi T4FF

i certainly hope so mate, and if one tiny lil item is missing i'll have them on a breach. Hope they dont find it all i really really want to give them sh*t just like they have done to so many others.

watch this space mate its gonna be messy i promise ;-)

muhahahaha

Hey Pro,

Spotted your other post tonight. Don't know if either of these will help, but hopefully they will.

Ok the second one is for Current Accounts, but the unarranged rate is on there. Failing that I think ppl are using the cash rate.

HTH

Thanks Tf i have been reading a few threads lately one in particular that shows we have to be bang on the money with our interest claims, as the banks barristers are pulling the claims apart if they arent correct to the exact penny.

i think the only way is to ask them what the rates were when the account was live, that way in court it seems fair i reckon. ;-)

want to see the outcome of a few threads first though, just to see what the judge says !

The only other thing you can do is state on your prelim that you have used such and such a rate as you have been unable to obtain the correct figure and give them the option to confirm to you what the correct rate is and you will gladly amend your figures.

Covering your own arse if it goes to court then

thanks T4FF

yeah thats a good idea if i give them every oppertunity to correct my own figures it puts the burden back on them. And at least the judge will be able to see in black and white that i tried on several occasions to be as acurate as possible. Thats it then thanks again for that i will do that on every claim i make (and im going to have lots, at present im starting 5)

i think as long as a judge can see we have made an honest attempt to retrieve all the relevent figures he will not strike that out, not for that reason anyway. Thats what has happened recently with another CAGer the Cobbetts barrister asked the judge to strike the case out because the figures were probably a mile out, however the judge was a kind man because he let the person have another 28 days to correct any potential mistakes before his return to court.

Finally received all my statements today

the package was huge lol, it had all the logs of phone conversations, all the memo's and letters ever sent, original contract agrement ect ect. i think they may have actually paid attention to my snotty little letters

just working on my little paper at the moment in ay be a few days before its ready though, because its a multi purpose for halifax and online finnace also.

I'll keep the posts updated as and when

OOh, i'll be following this one! I'm overdue to file but still undecided on the C.I as someone has scared me:-(

Good luck!

SM:p

Hi snoopsmum,

damn girl how many times lol

put it on the PoC, BUT make sure you have a couple of alternatives for the judge to go with if he/her has any doubt about it. ie first unauthorised rate maybe 29%, then in the alternative use the authorised rate maybe 23%, then in the alternative use standard cash rate maybe 16%, then finally use the courts s69 8%.

That way the judge can view the arguments and make a good choice as to which to use, dont ya think.

Just do it hun

Hi snoopsmum,

 

damn girl how many times lol

 

PMSL:lol:

I know, sorry! I'm being such a pain in the arse but everyone here has been great. I think i'm gonna avoid posting on or even reading other site until the outcome of this claim! Did you read my thread on there? Hugely different and strong opinions.

SCARY:eek:

Thanks Progenic!

SM:p

Heres the outline Prelim i have written, i havnt posted it yet as i wasnt the rest of the weekend to reflect on it, just incase of amendments. Any thoughts would be appreciated by all, cheers, Johnny.

Sent by royal mail Recorded Delivery: 2.3.2007

Account Reference: xxxxxxxxxxxxxxxxxxx

Dear Sir/Madame

Request for Refund of Unlawful and Punitive Charges.

My request

I am writing to ask you to refund the charges which you have levied upon my account since inception, hereinafter referred to as”The Account”. I specifically make reference to early 2005 in which I accrued many hundreds of pounds in fees on the account with you. I am of the understanding that fees which you have applied to my account in relation to direct debit defaults, admin fees and so forth are unlawful at Common Law, Statute and consumer regulations. If you advance that these charges are not in any way punitive or unlawful then please make your averments clear on paper, showing a complete breakdown of costs, and your justifications, including specific legal case law, terms to be relied upon in court, and on what authority (apart from your own terms) you claim you can do this lawfully. If for any reason you cannot, or will not, advance these costs and justifications in order to reassure me that your penalties really do reflect your actual costs accrued. Then I can only assume that my averments are indeed wholly correct, and you are undertaking in a concealment of the truth, clearly highlighting your unlawfulness. I am sure you are now aware, due to media coverage ect, that charging a fee as a means of punishment or penalty due to a breach of contract is unlawful, unfair and against English Law in many ways.

I have spent the last few months reading and researching this subject in great detail, and believe I have built a very strong legal case. At this stage I do not want to advance to far into the complex legalities of my case, in the hope that this can be resolved without such measures. I have already prepared my legal case, if in the event it is necessary to use such measures and if so you will see from the sixteen page particulars that it is laid out in great detail.

Also I understand a partner from Cobbetts solicitors charges £170 per hour, I feel it unnecessary for you to pay these costs at this stage. As I have been watching over one hundred cases with RBS and Cobbetts solicitors over the last few months, it is very clear that the protocol is to push the claimant to the wire, and then pay the charges at the eleventh hour (as has happened in every case). I have noticed that up to today’s date you have not actually defended a single claim in court, nor do you have any intention of doing so. I do feel this is a blatant abuse of service and waste of the courts precious time and recourses, hoping that the whole process will scare the claimant into a withdrawal. To use a layman’s term I suggest then “lets cut to the chase”, and save unnecessary time and costs all round.

However I am of the view that your charges represent a penalty and are therefore irrecoverable at Common Law, very briefly I lay out a small amount of authority on the matter. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].Picardi v. Cuniberti [2003] B.L.R. 487. Brownlie v Campbell (1880) 5 App Cas 925, 950: ect.

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. The actual loss is the cost of automatically sending me a computer generated letter which I would respectfully submit is valued at no more than £2. Recently in a BBC television programme “The Money Programme” aired on Tuesday 12th December 2006, several experts in financial and banking services spoke on the subject of Fee’s. These experts in the field included;

i. Kieron Beal ( Barrister, Matrix Chambers),

ii. Joe Gardner ( HSBC - Gen Man of Personal Finance HSBC ),

iii. John Fingleton ( OFT Chief Executive ).

iv. Nicky White ( Head of Personal Finance at Uswitch )

v. John Struthers ( Professor of Banking University of Paisley )

vi. Philip Molyneaux ( Professor of Banking University of Wales Bangor )

vii. Ian Jarrit ( Former Executive of Nat West )

viii. Walter Merricks ( Ombudsman spokesman )

The conclusions reached between the experts, were frankly shocking, as they estimated that a returned direct debit could not possibly cost any more than £2.50 in a worst case scenario situation. At this point I draw your attention to your terms and conditions, hereinafter referred to as “the terms”. I specifically draw your attention to any clause(s) of The Terms, in which your averments, inter alia state your right to recover your incurred costs. Further I draw your attention to the clause (if any) of The Terms in which, inter alia your averments include your contractual right to claim interest in the event of any breach of contract.

After contacting IBAS (the independent banking advisory service) who as I’m sure you are aware are fully independent, none biased and a non political authority on banking related issues. I was shocked by their comments and shear frankness on the subject of penalty fees, they made it very clear in their averments that, it is quite common for a bank to abuse the court process and provide misleading data. Further to that the most interesting point I found noteworthy, was seemingly when a bank has a dispute with a consumer, they always defend (legally) no matter what the cost. This is of course only when the bank knows or has good reason to believe that they have a good case. This then seems somewhat of a paradox to your averments that your charges are lawful and transparent, given the authority that you have not defended a single claim. And in many cases you would in actual fact be potentially saving up to £4,000 if you were to defend. This all seems very contradictory judging by your averments and your actual actions.

I bring your attention to, inter alia that a contract(s) (if any) binding any of the parties hereto, out of mutuality of contract the binding terms are effective on both parties. Further without prejudice to the above paragraph I reserve the right to advance any authorities with the notion of stare decisis, atany time in this case, specifically at this stage English case law, Chitty of Contract, OFT case law and the FSA’s principles.

Further I feel that even though I will give you every opportunity to correct this unlawful behaviour, I fear that you will not avail yourselves to such an offer.

I also fear that you may advance that your charges are perfectly legal, lawful and transparent simply because they were written in the terms. At this point I make no admission, or have any recollection of ever receiving your Tariff of charges, or indeed ever having them drawn to my attention. I aver that the terms were not in any welcome pack produced by you, at the time of account inception.

Further I also fear you may avoid producing a complete breakdown of charges, and indeed may be using Nemo debet prodere se ipsum as a defence to hide your guilt in these matters.

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and out with, the UK).

I hereby advance, and fully intend to prove that:

i) your charges are penalties;

ii) Your charges do not reflect actual losses incurred;

iii) Your charges are unlawful;

iv) Your charges are unfair;

v) Your terms are a misrepresentation of statement, and possibly an alleged fraudulent misrepresentation.

vi) Your charges are excessive;

vii) Your charges are generally disproportionate;

viii) Your charges are punitive in nature;

ix) Your charges are not a genuine pre-estimate of loss incurred by yourselves in respect of any alleged breaches of contract on the part of the myself;

x) not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of myself, but instead unduly enriches yourselves while you are conducting your regime of charging with a view to profit;

xi) not intended to bear any relation to your actual losses which you can show you have incurred and wouldn’t of incurred but for any alleged breaches of contract on behalf of myself; and

xii) are held in in terrorem to discourage me from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item;

xiii) Your charges are contrary to the FSA’s principles of business and

xiv) Your charges are finally contrary to the Banking Codes principles of fairness.

Without prejudice to any paragraphs hereinabove of this claim, all contractual provision(s), if any, between the parties hereto, which purport to permit you to levy the Charges to the Account, are unenforceable by virtue of:

i. The Unfair Terms in Consumer Contracts Regulations 1999 (hereinafter referred to as the UTCCR)

ii. The Unfair Contract Terms Act 1977 (hereinafter referred to as The “UCTA’)

iii. The Supply of Goods and Services Act 1982; and

iv. The misrepresentation Act 1979; and

v. The common law.

Under the unfair terms in consumers contracts regulations (hereinafter referred to as the UTCCR) I advance my arguments under statute.

i. 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.

ii. 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.

iii. 6.-(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.

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

v. Part 2: INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR; Reg 5(5).1

vi. © making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

vii. (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

viii. (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

ix. (k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

x. (m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

xi. (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

Under the Unfair contract terms act (hereinafter referred to as the UCTA) under the following sections I hereby give authority to my averments;

i. (2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

ii. (3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

iii. (9)(1) Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so and be given effect accordingly notwithstanding that the contract has been terminated either by breach or by a party electing to treat it as repudiated.

iv. (11)(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 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.

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the account holder for breach of contract'. Because your charges include such an excessive profit margin, in addition to actual loss, they are irrecoverable as an unfair term in contract. I believe that your charges require me to pay a disproportionately high sum in compensation for incurring transactions which were ultimately declined by automated software driven computer system. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off protocols.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time of execution. It is an implied term of that contract that you would conduct yourselves lawfully, fairly and in a manner which complies with English law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my Right until now.

What I require

I calculate that, as at today’s date, you have taken a total of £620 in excessive penalty fees plus £1.81 in interest on these charges. In addition, I also claim Contractual Interest (compounded) under the principle of mutuality and reciprocity in our contract. The unauthorised rate of borrowing is 29.84% therefore this rate is added to the above amounts (from date of penalty fee) and the breakdown is shown in the enclosed schedule. I calculate the Contractual Interest element (to 2nd March 2007) at £485.94 to date and rising at a rate of £0.45p per day, which Is equal to 0.072% daily compounded.

I am also seeking to cover my actual costs incurred in terms of time, postage fees, SAR fee and stationary fee’s ect.

To clarify my position about these charges I advance the following:

Unlawful charges clearly identifiable £ 620

TOTAL Penalty fee + interest = £ 1107.75p

Costs:

Time taken in internet and book research, letter writing, spreadsheet and legal preparation ECT @ £9.25 per hour x 30 hours to date = £ 277.50p

Postage costs to date £ 6

Stationary costs to date £ 15

SAR Fee £ 10

TOTAL AMOUNT REQUESTED IN SETTLEMENT: £ 1416.25 TO TODAYS DATE ACCRUING INTEREST @ £0.45 PER DAY

I request that you refund this amount in full, payable by cheque directly to me.

Targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard template letters and leaflets. After having watched and read the responses of over a hundred RBS cases, and read the replies that are sent from Cobbetts solicitors. I understand your protocols in defending these costs. I strongly aver that your costs are not transparent, lawful, or legal just because they are written in the terms, and I suggest you read this letter carefully and give it a very considered response!

You have 10 working days, from receipt of this letter, to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment. I feel I must point out that if you do not avail yourself to this opportunity, to be fair and open, you will be leaving me very few options other than further action.

If you do not respond, or do not respond positively, within this time period, I shall send you one further letter allowing a further 7 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments. After that there will be no further communication from myself and I shall issue a County Court Claim at any time after the expiry of the second deadline. At which point I will also be claiming the court fees, any further expenses and exemplary and aggravated compensation.

I look forward to hearing from you by return.

Yours faithfully,

The one and only Progenic7

Statement of truth: I hereby declare that hereinabove be the truth

God its long:p

Again, do you honestly believe they'll read it let alone absorb all this information?

Hopefully they'll think better of messing with you and pay you off just to shut you up:D:D:D

Have made a few changes (in red) to spelling and grammar. Hope you appreciate me helping your masterpiece, rather than think I'm being picky Can't help it sorry, do sooooo much proof-reading it's a habit

Heres the outline Prelim i have written, i havnt posted it yet as i wasnt the rest of the weekend to reflect on it, just incase of amendments. Any thoughts would be appreciated by all, cheers, Johnny.

 

 

Sent by royal mail Recorded Delivery: 2.3.2007

 

 

Account Reference: xxxxxxxxxxxxxxxxxxx

 

Dear Sir/Madame

 

Request for Refund of Unlawful and Punitive Charges.

 

My request

I am writing to ask you to refund the charges which you have levied upon my account since inception, hereinafter referred to as”The Account”. I specifically make reference to early 2005 in which I accrued many hundreds of pounds in fees on the account with you. I am of the understanding that fees which you have applied to my account in relation to direct debit defaults, admin fees and so forth are unlawful at Common Law, Statute and consumer regulations. If you advance that these charges are not in any way punitive or unlawful then please make your averments clear on paper, showing a complete breakdown of costs, and your justifications, including specific legal case law, terms to be relied upon in court, and on what authority (apart from your own terms) you claim you can do this lawfully. If for any reason you cannot, or will not, advance these costs and justifications in order to reassure me that your penalties really do reflect your actual costs accrued, then I can only assume that my averments are indeed wholly correct, and you are undertaking in a concealment of the truth, clearly highlighting your unlawfulness. I am sure you are now aware, due to media coverage etc, that charging a fee as a means of punishment or penalty due to a breach of contract is unlawful, unfair and against English Law in many ways.

 

I have spent the last few months reading and researching this subject in great detail, and believe I have built a very strong legal case. At this stage I do not want to advance too far into the complex legalities of my case, in the hope that this can be resolved without such measures. I have already prepared my legal case, if in the event it is necessary to use such measures and if so you will see from the sixteen page particulars that it is laid out in great detail.

Also I understand a partner from Cobbetts solicitors charges £170 per hour, I feel it unnecessary for you to pay these costs at this stage. As I have been watching over one hundred cases with RBS and Cobbetts solicitors over the last few months, it is very clear that the protocol is to push the claimant to the wire, and then pay the charges at the eleventh hour (as has happened in every case). I have noticed that up to today’s date you have not actually defended a single claim in court, nor do you have any intention of doing so. I do feel this is a blatant abuse of service and waste of the courts precious time and recourses, hoping that the whole process will scare the claimant into a withdrawal. To use a layman’s term I suggest then “lets cut to the chase”, and save unnecessary time and costs all round.

 

However I am of the view that your charges represent a penalty and are therefore irrecoverable at Common Law, very briefly I lay out a small amount of authority on the matter. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].Picardi v. Cuniberti [2003] B.L.R. 487. Brownlie v Campbell (1880) 5 App Cas 925, 950: ect.

 

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. The actual loss is the cost of automatically sending me a computer generated letter which I would respectfully submit is valued at no more than £2. Recently in a BBC television programme “The Money Programme” aired on Tuesday 12th December 2006, several experts in financial and banking services spoke on the subject of Fees (no apostrophe). These experts in the field included;

 

i. Kieron Beal ( Barrister, Matrix Chambers),

ii. Joe Gardner ( HSBC - Gen Man of Personal Finance HSBC ),

iii. John Fingleton ( OFT Chief Executive ).

iv. Nicky White ( Head of Personal Finance at Uswitch )

v. John Struthers ( Professor of Banking University of Paisley )

vi. Philip Molyneaux ( Professor of Banking University of Wales Bangor )

vii. Ian Jarrit ( Former Executive of Nat West )

viii. Walter Merricks ( Ombudsman spokesman )

 

 

The conclusions reached between the experts, were frankly shocking, as they estimated that a returned direct debit could not possibly cost any more than £2.50 in a worst case scenario situation. At this point I draw your attention to your terms and conditions, hereinafter referred to as “the terms”. I specifically draw your attention to any clause(s) of The Terms, in which your averments, inter alia state your right to recover your incurred costs. Further I draw your attention to the clause (if any) of The Terms in which, inter alia your averments include your contractual right to claim interest in the event of any breach of contract.

After contacting IBAS (the independent banking advisory service) who as I’m sure you are aware are fully independent, none biased and a non political authority on banking related issues. I was shocked by their comments and sheer frankness on the subject of penalty fees, they made it very clear in their averments that, it is quite common for a bank to abuse the court process and provide misleading data. Further to that the most interesting point I found noteworthy, was seemingly when a bank has a dispute with a consumer, they always defend (legally) no matter what the cost. This is of course only when the bank knows or has good reason to believe that they have a good case. This then seems somewhat of a paradox to your averments that your charges are lawful and transparent, given the authority that you have not defended a single claim. And in many cases you would in actual fact be potentially saving up to £4,000 if you were to defend. This all seems very contradictory judging by your averments and your actual actions.

 

I bring your attention to, inter alia that a contract(s) (if any) binding any of the parties hereto, out of mutuality of contract the binding terms are effective on both parties. Further without prejudice to the above paragraph I reserve the right to advance any authorities with the notion of stare decisis, at any (space) time in this case, specifically at this stage English case law, Chitty of Contract, OFT case law and the FSA’s principles.

 

Further I feel that even though I will give you every opportunity to correct this unlawful behaviour, I fear that you will not avail yourselves to such an offer.

I also fear that you may advance that your charges are perfectly legal, lawful and transparent simply because they were written in the terms. At this point I make no admission, or have any recollection of ever receiving your Tariff of charges, or indeed ever having them drawn to my attention. I aver that the terms were not in any welcome pack produced by you, at the time of account inception.

Further I also fear you may avoid producing a complete breakdown of charges, and indeed may be using Nemo debet prodere se ipsum as a defence to hide your guilt in these matters.

 

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and out with, the UK).

 

I hereby advance, and fully intend to prove that:

i) your charges are penalties;

ii) Your charges do not reflect actual losses incurred;

iii) Your charges are unlawful;

iv) Your charges are unfair;

v) Your terms are a misrepresentation of statement, and possibly an alleged fraudulent misrepresentation.

vi) Your charges are excessive;

vii) Your charges are generally disproportionate;

viii) Your charges are punitive in nature;

ix) Your charges are not a genuine pre-estimate of loss incurred by yourselves in respect of any alleged breaches of contract on the part of the myself;

x) not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of myself, but instead unduly enriches yourselves while you are conducting your regime of charging with a view to profit;

xi) not intended to bear any relation to your actual losses which you can show you have incurred and wouldn’t have incurred but for any alleged breaches of contract on behalf of myself; and

xii) are held in in terrorem to discourage me from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item;

xiii) Your charges are contrary to the FSA’s principles of business and

xiv) Your charges are finally contrary to the Banking Codes principles of fairness.

 

 

Without prejudice to any paragraphs hereinabove of this claim, all contractual provision(s), if any, between the parties hereto, which purport to permit you to levy the Charges to the Account, are unenforceable by virtue of:

i. The Unfair Terms in Consumer Contracts Regulations 1999 (hereinafter referred to as the UTCCR)

ii. The Unfair Contract Terms Act 1977 (hereinafter referred to as The “UCTA’)

iii. The Supply of Goods and Services Act 1982; and

iv. The misrepresentation Act 1979; and

v. The common law.

 

 

 

Under the unfair terms in consumers contracts regulations (hereinafter referred to as the UTCCR) I advance my arguments under statute.

i. 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' (should this be party's???) rights and obligations arising under the contract, to the detriment of the consumer.

ii. 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.

iii. 6.-(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.

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

v. Part 2: INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR; Reg 5(5).1

vi. © making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

vii. (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

viii. (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

ix. (k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

x. (m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

xi. (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

 

 

Under the Unfair contract terms act (hereinafter referred to as the UCTA) under the following sections I hereby give authority to my averments;

i. (2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

ii. (3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

iii. (9)(1) Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so and be given effect accordingly notwithstanding that the contract has been terminated either by breach or by a party electing to treat it as repudiated.

iv. (11)(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 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.

 

 

 

 

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the account holder for breach of contract'. Because your charges include such an excessive profit margin, in addition to actual loss, they are irrecoverable as an unfair term in contract. I believe that your charges require me to pay a disproportionately high sum in compensation for incurring transactions which were ultimately declined by automated software driven computer systems. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off protocols.

 

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time of execution. It is an implied term of that contract that you would conduct yourselves lawfully, fairly and in a manner which complies with English law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my Right until now.

 

What I require

 

I calculate that, as at today’s date, you have taken a total of £620 in excessive penalty fees plus £1.81 in interest on these charges. In addition, I also claim Contractual Interest (compounded) under the principle of mutuality and reciprocity in our contract. The unauthorised rate of borrowing is 29.84% therefore this rate is added to the above amounts (from date of penalty fee) and the breakdown is shown in the enclosed schedule. I calculate the Contractual Interest element (to 2nd March 2007) at £485.94 to date and rising at a rate of £0.45p per day, which Is equal to 0.072% daily compounded.

I am also seeking to cover my actual costs incurred in terms of time, postage fees, SAR fee and stationary fees (no apostrophe) etc.

To clarify my position about these charges I advance the following:

 

Unlawful charges clearly identifiable £ 620

TOTAL Penalty fee + interest = £ 1107.75p

 

Costs:

Time taken in internet and book research, letter writing, spreadsheet and legal preparation etc @ £9.25 per hour x 30 hours to date = £ 277.50p

Postage costs to date £ 6

Stationary costs to date £ 15

SAR Fee £ 10

 

TOTAL AMOUNT REQUESTED IN SETTLEMENT: £ 1416.25 TO TODAY'S DATE ACCRUING INTEREST @ £0.45 PER DAY

 

I request that you refund this amount in full, payable by cheque directly to me.

 

Targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard template letters and leaflets. After having watched and read the responses of over a hundred RBS cases, and read the replies that are sent from Cobbetts solicitors, I understand your protocols in defending these costs. I strongly aver that your costs are not transparent, lawful, or legal just because they are written in the terms, and I suggest you read this letter carefully and give it a very considered response!

You have 10 working days, from receipt of this letter, to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment. I feel I must point out that if you do not avail yourself to this opportunity, to be fair and open, you will be leaving me very few options other than further action.

If you do not respond, or do not respond positively, within this time period, I shall send you one further letter allowing a further 7 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments. After that there will be no further communication from myself and I shall issue a County Court Claim at any time after the expiry of the second deadline. At which point I will also be claiming the court fees, any further expenses and exemplary and aggravated compensation.

 

I look forward to hearing from you by return.

 

Yours faithfully,

 

 

 

The one and only Progenic7

 

 

Statement of truth: I hereby declare that hereinabove be the truth

Aside from that, this is wonderful reading......but you've got to ask yourself, at what point will they switch off? (I think) I understand your reasons for doing this - in order to ensure a more beneficial settlement. But if you put yourself in their shoes - up to their eyes in claims, understaffed and churning out generic letters left right and centre are they going to be any more interested in yours because of this letter? Probably not. Possibly even less so. I hope I'm wrong and they sit up and do something about this because you've obviously spent a lot of time and research.

Bit of irony for you......

You say in the 2nd paragraph

lets cut to the chase

Yet you then go on for nearly 20 more paragraphs lol.

By the by I suppose - if you feel this is necessary, the it's necessary.

I would advise you consider the timescales you have given them given that should your claim go to court, it will show you have not given them a great deal of time to resolve your issue. They are struggling with 28 day turnarounds, let alone 17!! You can see as well from the responses to some people recently a genuine attempt to resolve things.

All my opinions and you can obviously take em or throw them. Have attempted to be construtive, not critical

Aside from that, this is wonderful reading......but you've got to ask yourself, at what point will they switch off? (I think) I understand your reasons for doing this - in order to ensure a more beneficial settlement. But if you put yourself in their shoes - up to their eyes in claims, understaffed and churning out generic letters left right and centre are they going to be any more interested in yours because of this letter? Probably not. Possibly even less so. I hope I'm wrong and they sit up and do something about this because you've obviously spent a lot of time and research.

 

Bit of irony for you......

You say in the 2nd paragraph (lmao i hadnt thought of that)

 

Yet you then go on for nearly 20 more paragraphs lol.

 

By the by I suppose - if you feel this is necessary, the it's necessary.

 

I would advise you consider the timescales you have given them given that should your claim go to court, it will show you have not given them a great deal of time to resolve your issue. They are struggling with 28 day turnarounds, let alone 17!! You can see as well from the responses to some people recently a genuine attempt to resolve things.

 

All my opinions and you can obviously take em or throw them. Have attempted to be construtive, not critical

Hi Taff thanks for the advice, i guess as you may have noticed from my SAR and other letter i dont like to follow the crowd and just use a basic template letter, id much rather write my own.

As you say and im sure you are right i think after page one they will switch off, (part of the plan and in the long run beneficial for me...same tactic with PoC upto yet 17 pages long and the defence will buckle under its pressure and probably miss atleast 50 points that need answering in it )

The idea is firstly it makes me feel alot better and secondly to bamboozel them with that many points that need answering they wont possibly pick up on them all, and IMHO i think Cobbetts will do exactly the same, then the judge will hopefully strike out on the basis that the case is hopeless.

Ha still smiling at the cut to the chase bit, dont we all love a bit of irony, actually for further affect i may now put it, in the first paragraph .

Im just hoping that if a judge did see this letter he would realise i had done my research and presented a very well thought out argument and covered all points i felt necessary. Although you havnt seen my letter before action yet

cheers

Johnny

I think it will have that effect!!

From what I've been reading recently it does seem as though RBS are avoiding using cobbets at all costs in order to keep down legal fees - so I would anticipate you receiving a settlement offer less costs and CCI etc. I'm sure you're already aware but will say it anyway, your objective is going to be to prove that you have justifiable reason to seek costs and CCI in court having already receved a full settlement offer.

Nevertheless, I do enjoy keeping up to date with your progress and your comprehensive letters.....I've even used a huge chunk of your SAR for a claim I have started for a friend

I've even used a huge chunk of your SAR for a claim I have started for a friend

Mmmmm Will be doing same I expect, for my R2D.....

Nice signature btw T4FF, I like seeing my name in lights.

Particularly cute how it ACTUALLY opens a PM to me....har har!

I dunno....give a man a Gold account and a couple of green pimples and he thinks he's better than his old sidekicks.....

See I don't go shamelesly building MY rep, like SOME!

Lol @ that, i didnt notice the sig

yeah im aware of the tactics and their likely next move and im prepared for that, though ofcourse an offer of anything less than full amount will be declined and without a live account (now closed in anticipation) they cannot do what they normally do and slip the money in the account on the sly.

The only way they can offer payment is to send a cheque, which will ofcourse be returned, and therefore no offer has been acepted and they still have the old chesnut to prove their costs.

I feel it perfectly ligitimate to charge for my time and postage ect, as im chasing a debt due to their own unlawfulness and therefore casue of action is down to them. In the unlikely event they offer to pay before court i may concede on the costs issue, but will certainly pursue it in court.

what are your thoughts on that ?

Particularly cute how it ACTUALLY opens a PM to me....har har!

Hee hee. Nice touch eh?

I dunno....give a man a Gold account and a couple of green pimples and he thinks he's better than his old sidekicks.....

 

See I don't go shamelesly building MY rep, like SOME!

I'm hurt

I'm hurt