Can anyone comment on the following for a store card claim in scotland.
SHERIFF COURT – TOY TOWN
PURSER – AJ
DEFENDER – GE MONEY
DETAILS OF CLAIM - Repayment of charges unlawfully applied to the Pursers account by the Defendant for purported breaches of a contract plus interest levied thereon in contravention of the common law and the UTCCR1999 plus payment of interest in restitution of the Defendant’s unjust enrichment.
The Claimant claims:
(1) Repayment of charges totalling £xxx and interest of £xxx applied by the Defendant thereon.
(2) Compound interest of £xxx and at the daily rate of 0.06979% until judgment or sooner payment.
(3) In the alternative that the court is not minded to award compound interest, interest of £xxx under section 69 of the County Courts Act 1984 and at the daily rate of 0.022% until judgment or sooner payment.
(4) Court costs
1. The Purser entered into an agreement (“The Agreement”) with the Defendant on or around 1 May 2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxxxx ("The Account").
2.The Agreement essentially consisted of the Defendant providing the Claimant with a Store Card (“The Card”) which would allow the Purser to make purchases on credit. In return the Defendant was entitled to charge interest at the published rate.
3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.
4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.
5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Pursers breach of the Agreement by his failure to make the minimum payment on the due date. (Full particulars are set out in the attached Schedule).
6.The default charges were applied in accordance with the standard terms of The Agreement which were:
a). A penalty payable on breach of contract and thus unenforceable: and
b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Purser
7. The Purser is accordingly entitled to repayment of the sums wrongly added to the Account plus interest levied thereon.
8. The standard Terms of the Agreement in substance provided as follows:
(a) The Defendant would provide the Purser with the Card. The Purser was entitled to use the Card to make purchases to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Purser notice in writing.
(b) The Defendant was entitled to charge interest on the purchases at the published rate.
© The Purser was to pay the minimum payment specified on the monthly statements of account by the due date as notified in the monthly statements.
(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Purser did not pay on the due date The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £15 & £18.
9. The Charges were payable on breach of contract by the Purser.
10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Defendant in relation to the Claimant’s transgressions.
11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.
12. At all material times the Purser was a consumer within the Regulations.
13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that, contrary to the requirement of good faith, they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.
14. Without prejudice to the burden of proof, the Purser will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.
(1) The terms relating to Charges were standard terms; they would not be individually negotiated.
(2) The Charges were a penalty for breach of contract.
(3) The Charges exceeded the costs which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.
(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.
(5) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.
(6) As the Defendant knew, the Purser had no means of assessing the fairness of the Charges.
(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.
15. Without prejudice to the burden of proof, the Purser will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.
(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.
(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).
(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.
16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.
17.The Defendant wrongly applied Charges to the Account totalling some £xxxx between xxxxxxxx and xxxxxxx and interest levied thereon of £yyyy. Particulars appear from the attached Schedule.
18. On xxxxxx the Purser demanded repayment of the sums wrongly applied.
19. The Defendant has not repaid them or any of them.
20. The Purser is aware that some of the Charges reclaimed relate to activity on the Account more than 5 years ago and therefore might be thought to fall within the scope of
s5 of the Limitations Act 1980. However, the Purser at the time mistakenly believed the Defendant to be acting lawfully in applying the Charges, and only recently became aware that the Charges were unlawful. Further, the Defendant has maintained that the Charges were lawful despite evidence to the contrary and has sought to conceal their true nature.
21. The Claimant therefore contends that the limitation period is postponed pursuant to s32(1)(b) and © of the Limitations Act 1980:
22. The Purser submits that the Defendant would be unjustly enriched if the Purser’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Pursers account, over a period of up to 7 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Pursers submission that the sums wrongfully and unlawfully acquired from the Pursers by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.
23. Therefore for complete restitution to occur the Purser seeks an award of compound interest at the accounts purchase interest rate of 17.9% per annum. The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Pursers funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.
And the Pursers claims:
(1) Payment of the said sum of £xxxx and interest of £yyyy applied by the Defendant thereon.
(2) Compound interest at an annual rate of 17.9% from the date of payment of the Charge to 29 February 2008 in the sum of £zzzz, and at the daily rate of 0.0451% until judgment or sooner payment.
(3) In the alternative that the court is not minded to award compound interest, Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £zzzz, and at the daily rate of 0.022% until judgment or sooner payment.
(4) Court costs
I believe that the facts stated in these particulars are true.
Dated this 29th Day of February 2008
From the Terms and conditions currently enforce.
4.5 You must stay within the Credit Limit and make sure that the Cash Advance Balance does not go over the Cash Credit Limit. If you do go over the Credit Limit we may charge an over limit fee to compensate us for the added costs of monitoring your Account and creditworthiness, even if we authorised the Transaction which made you go over the Credit Limit. When we decide whether to authorise a Transaction, we may take account of any Transactions which have already been made or authorised and any other amounts payable under this Agreement, even if they have not yet been added to the Account. You can tell us if you want a lower Credit Limit or if you do not want your Credit Limit to be increased. We may require a minimum Credit Limit
10.1 To compensate us for our additional costs if you break this Agreement, we will charge:
§a late fee of £12 each month you do not pay the minimum payment by the Payment Date;
§a returned cheque fee of £12 each time a cheque, direct debit or other item in respect of payment of sums due to us under this Agreement is returned unpaid by the relevant financial institution or an Account Cheque is returned unpaid by us;
§an over limit fee of £12 each month that the Account Balance is over the Credit Limit; and
§the amount of any other losses and reasonable costs which we incur as a result of your breach of this Agreement. These will include (but not be limited to) costs of tracing you, notifying you of the breach, communicating with you about the breach, and enforcing payment of any amount due under this Agreement.