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Posts posted by mizzpy

  1. Is this the correct witness statement to use???? I have put this into my court bundle.




    1st Witness Statement of……………………

    Claim Number: ………………….

    Exhibit 1






    In the ……………………. County Court






















    Alliance & Leicester




















    1. I, ………………, am the Claimant in this case, I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. I am a litigant in person. I make this Witness Statement in support of my claim against the Defendant for the refund of Charges levied to my bank account by the Defendant bank.






    2. Since ……………the Claimant and the Defendant (“the Bank”) have agreed (“the Banking Contract”) that the Bank would operate for the Claimant an account, account number ……………., ("the Account") at the Bootle branch of the Defendant bank.


    3. The Account was a current account, under which, at all material times, in substance:

    a. the Bank agreed to hold monies deposited by or for the Claimant, and to make payments to and on behalf of the Claimant;

    b. in return, the Bank was entitled to the use of the monies so deposited, and to be paid interest on monies borrowed by the Claimant.


    4. At all material times the Account was subject to the Bank's standard terms and conditions ("the Standard Terms") which were varied from time to time. These terms were set out in:


    a. leaflets produced by the Bank setting out its bank Charges, and

    b. terms and conditions issued by the Bank in relation to payments made using a card issued by the Bank (a debits card, cashpoint card and cheque guarantee card - a “Card Payment”) on the Account.

    c. Terms implied at common law

    d. The Banking code adopted through the Defendant’s membership.


    5. Pursuant to the express terms of the contract, the Defendant debited numerous Charges from the account between ………….. and ……………….totalling £………in addition the Defendant Charged interest on these Charges amounting to £……….. See schedule of Charges exhibit 3 of document bundle.


    6. The Claimant contends the contractual clauses which permit the Charges are unenforceable by virtue of the common law relating to penalty clauses and or the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) and thus seeks return of the said Charges.


    7. On …………….the Claimant wrote to the Defendant, setting out the nature of the complaint and requesting that the Defendant either justify the legitimacy and legal status of its Charges or alternatively refund them. See exhibit 2a of the document bundle.


    8. Upon unsatisfactory response from the Defendant, ……………… the Claimant again wrote to the Defendant requesting a refund of said Charges, advising a court action would be filed, in the absence of receipt of a satisfactory response. See exhibit 2c of the document bundle.


    9. The Claimant filed a claim at …………County Court for the return of the Charges levied by the Defendant, as particularised and detailed in the Particulars of Claim. See exhibit 2 of the document bundle.



    10. The Defendant acknowledged service of the claim on ………………… and filed its defence on ………………….. See exhibit 2i of the document bundle.



    11. The Defendant bank, along with all the other UK retail banks, has come under increasing pressure in the last 18 months to justify its high level of default Charges. The Charges have increased substantially and seemingly indiscriminately over the last 4 – 8 years, at a time when the use of computer automated systems and ever advancing technology has undeniably made the actual costs of processing default events progressively cheaper. The Defendant has faced criticism from the media, the OFT and other public bodies and industry experts that its Charges are merely a highly lucrative revenue stream, as opposed to being a genuine estimate of the damages caused to it of each default event, as settled law dictates must be the case. In the face of an unprecedented level of complaints and subsequent litigation brought by angry consumers, rather than substantiating its Charges by defending claims and producing evidence that the Charges it imposes are fair and a true reflection of the loss incurred as a result of its consumers breach, the Defendant’s reaction has been to file a template defence then subsequently settle each and every claim to date where its Charges have been challenged, and furthermore, it has restructured the terms and conditions of the account contracts relating to Charges in order to attempt to present the Charges it imposes as fees for a contractual service as opposed to administration Charges payable upon a breach. As set out in the paragraphs below, the Office of Fair Trading predicted this reaction and did indeed warn the banks against attempting to disguise their Charges in such a manner.


    12. If the Defendant’s interpretation of its terms were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the consumer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.



    13. In the event that the court were to find the Charge was not payable on breach of contract, without prejudice to the proceeding paragraphs, it is submitted that it is still open to the court to hold that the relevant Clause of the contract amounted to a penalty. In Dunlop Pneumatic Tyre co Ltd v New Garage [1915] AC 79 [exhibit 6] Lord Dunedin stated:


    "whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach”.

    Thus a contractual provision aimed at securing the performance of a contract should be treated as a penalty. This is a matter of construction and thus a clause which has as its function the objective to deter a breach; this may be interpreted as a penalty notwithstanding it is expressed in terms of a fee payable happening on an event other than breach. For these purposes the Claimant seeks to distinguish the case of Adler v Moore [1961] 2 QB 57 where there was never any suggestion that the insurance company wished to deter Bobby Moore from ever playing professional football.




    14. I thus invite the court to look at the substance of the clause rather than the form. For this purpose I wish to draw the courts attention to the following statement from the House of Lords in Bridge v Campbell Discount:

    Lord Devlin:


    "It is well settled that, when a court of law finds that the words which the parties have used in a written agreement are not genuine and are not designed to express the real nature of the transaction but for some ulterior purpose to disguise it, the court will go behind the sham front and get at the reality.”

    It is submitted that the Charges were in reality a penalty since they are aimed at deterring me from breaching the contract, it was simply drafted in a way designed to obviate the penalty provisions applicable on breach of contract; a practice commonly known as ‘cloaking the penalty’.



    15. The availability of a court to find that a contractual term which is expressed so as to relate to a provision of a service, or payable on the happening of an event, to be in fact a disguised as a penalty, was specifically left open by the Court of Appeal in the case of Interfoto v Stilletto Visual Programmes Ltd [1988] 2 WLR 615 [exhibit 8]. The case was actually decided on the issue of notice but Dillon LJ was of the opinion the case could also have been decided on the grounds of a disguised penalty clause:


    " In reaching the conclusion I have expressed I would not wish to be taken as deciding that condition 2 was not challengeable as a disguised penalty clause. This point was not argued before the judge nor raised in the notice of appeal."



    16. Furthermore, I respectfully request that the court has regard to the advances in consumer protection legislation since the Court of Appeal’s decisions in Campbell Discount Co Ltd v Bridge [1961] 1QB 445 and Associated Distributors Ltd -v- Hall (1938 ) 2 KB 83. I also wish to distinguish the cases of Euro London Appointments ltd v Claessens International ltd[2006] EWCA Civ 385 and Export Credits Guarantee Department -v- Universal Oil Products Co[1983] 1 WLR 399 as commercial agreements requiring no consideration of the consumer protection provisions. In particular the Unfair Terms in Consumer Contracts Regulations 1999 [exhibit 9], which derives from EU Directive: COUNCIL DIRECTIVE 93/13/EEC of 5 April 1993 (The Directive). National courts are required to interpret national law in a way which is compatible with European Union law. In Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen ([1984] ECR 1891), the European Court of Justice was of the opinion courts are required to guarantee substantial protection of rights enumerated in EU directives, and are also required to provide substantial deterrents for violators. Thus I assert that it is not only open for the court to find the Charges to be a disguised penalty in the absence of a finding of breach, but it is indeed the courts duty to do so.







    17. The provisions relating to Charges are within the ambit of the Regulations as they do not relate to a core term. A core term is defined by the Regulations as a term relating to:


    Reg 6 (2)


    (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.


    18.This definition finds its origin in Art 4 of the Directive. In Director General of Fair Trading v First National Bank[2001] UKHL 52 [exhibit 10] it was held that core terms should be interpreted narrowly so as to give effect to the Directive. The House of Lords was concerned with the interpretation of Reg 3 of the 1995 Regulations which are identical in wording to Reg 6 of the 1999 Regulations. The House of Lords were determining the question of whether a clause, providing that interest at the contractually agreed price, was payable after a judgment, came within the ambit of Regulation 3 of the 1995 Regulations. It was held that this did not represent a core term under the Regulations notwithstanding the fact that it was an agreed term representing the price of remuneration.

    Lord Steyn:


    "In any event, article 3(2) must be given a restrictive interpretation. Unless that is done article 3(2)(a) will enable the main purpose of the scheme to be frustrated by endless formalistic arguments as to whether a provision is a definitional or an exclusionary provision. Similarly, article 3(2)(b) dealing with "the adequacy of the price of remuneration" must be given a restrictive interpretation. After all, in a broad sense all terms of the contract are in some way related to the price or remuneration. That is not what is intended....It would be a gaping hole in the system if such clauses were not subject to the fairness requirement."


    19. It is thus submitted that the clauses relating to Charges do not relate to the definition of the subject matter nor the adequacy of the price nor remuneration but is an ancillary term. If a term relating to the contractually agreed interest rate can be considered not to be a core term, it would be a non-sequitur if a term relating to a sum payable on a contingency could be regarded as a core term.



    20. It is thus submitted that the clauses relating to Charges do not relate to the definition of the subject matter nor the adequacy of the price or remuneration but is an ancillary term. At the time of entering the contract the claimant gave scant regard to the provisions and they were not presented as being part of the core bargain of the contract. It is further submitted that in order to give effect to the Directive as a whole a narrow interpretation of Reg 6 is required and the contractual provisions should be allowed to be subject to the scrutiny of the Regulations so as to determine the issue of fairness.


    21. Reg 5. — (1) UTCCR 1999/ Art 3 Eu Directive 93/13 of 1993 provides:


    "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."

    22. It is submitted that the clauses allowing the Defendant to levy the Charges for overdraft excess and returned items are within the ambit of the Regulation 5 as they were not individually negotiated. The requirement of good faith was described by Lord Bingham in Director General of Fair Trading v First National Bank as:

    "Good faith in this context is not an artificial or technical concept... It looks to good standards of commercial morality and practice. It lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the regulations are designed to promote. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position"


    23. It is submitted that the use of a contractual term to seek to circumvent the penalty provisions, is contrary to the requirement of good faith. Disguising a penalty by drafting the contract in a way so as to allow the penalising of consumers causes a significant imbalance to the detriment of the consumer.


    24. The Defendant asserts that the Charges are within the requirement of good faith as they were in the published terms and conditions and the Claimant was aware of them. However, this is a purely procedural argument and according to Lord Steyn in Director General of Fair Trading v First National Bank:


    "Any purely procedural or even predominantly procedural interpretation of the requirement of good faith must be rejected."


    It is thus asserted that the substance of the clause is of paramount importance in looking at the requirement of good faith also the way it was packaged so as to deceive the consumer into believing it was a legitimate Charge to compensate loss.


    25. Under Reg 6 UTCCR 1999 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. The Defendant offered a banking service on similar terms and conditions as all other High street bankers. The choice in the range of services available is extremely limited. At no time was the Claimant offered a banking service without such terms and conditions.



    26. The clauses allowing a Charge for overdraft excess or returned items give rise to three possible meanings: the first, favouring the Claimant in that the fee is levied in consequence of the Claimant’s breach of contract, the second favouring the Defendant, in that the fee is levied pursuant to a happening of an event other than breach of contract and the third favouring the Claimant, that in reality the clause is a disguised penalty for breach of contract. In this regard I wish to invoke Regulation 7(2) of the Unfair Terms in Consumer Contract Regulations 1999: which provides if there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer will prevail. Application of the contra proferentem rule would also incline to such a result.




    Office of Fair Trading Analysis



    27. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default Charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated in its overview that the principle of their findings would also apply to Bank account Charges and indeed those of the entire financial and lending industry. They ruled that default Charges at the current level were unfair within their interpretation of the UTCCR. With regard to the 'cloaking' or disguising of penalties, the OFT said this;

    "4.21.Disguised Penalties

    The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a Charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a Charge for 'agreeing' or 'allowing’ a consumer to exceed a credit limit is no different from a consumers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".



    28.Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999” [exhibit 9]. Relevant sections from this report are quoted as follows;

    Section 5.8 - Disguised penalties


    Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.

    Section 18 1.3


    These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.


    29. Furthermore the Scottish Law Commission has recommended that there should be judicial control of penalties irrespective of breach of contract: Scots Law Com No 171 Report on Penalty Clauses 1999 Para 4.10 [exhibit 13]:


    "We accordingly recommend that Judicial control over contractual penalties should not be confined to cases where the penalty is due when the promisor is in breach of contract. It should extend to cases where the penalty is due if the promisor fails to perform, or to perform in a particular way, under a contract or when there is an early termination of a contract."



    30. The balance of equities tends to favour the invocation of the equitable rule against penalties in cases such as the present. Contract law is and should be concerned solely with the issue of compensating loss between the parties. The issue of penalising, or put more simply, punishing parties is the exclusive reserve of criminal law. The arguments are all the more compelling in consumer contracts where the law is expected to provide the consumer with protection. Furthermore, where the rules of common law and equity conflict, equity prevails.





    31. If the court is satisfied that the Charges were levied for breach of contract, or in the alternative that the penalty provisions are applicable irrespective of a finding of a breach, it is the Claimant’s submission that the Charges do indeed amount to a penalty.



    32.It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses resulting from each breach of contract or otherwise a true and genuine pre-estimate thereof. However, it is long settled that a clause which provides for a payment of money which is excessive, unconscionable and not related to or proportionate to the loss incurred as a result of the breach is a penalty and thus unenforceable.


    33. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 [exhibit 6] set down a number of principles in definition of a penalty clause. Two of these principles being;

    "It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach"



    "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage"


    34. These principles have been upheld on numerous occasions dating throughout the 20th century to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof. See the “Relevant Case Law Summary” contained within the court bundle [exhibit 14].



    35.Whetherthe Defendant’s Charges amount to a penalty is therefore a question of fact – specifically how the level of Charge paid by the consumer compares with the actual loss suffered by the Defendant as a result of each breach. On numerous occasions, I have requested that the Defendant justify its Charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.




    36. It is submitted the loss incurred by the defendant as a result of each of my contractual breaches is in the region of a minimum of £0.25 to a maximum of £1.50 per each single event of default. A more accurate figure is not available , due to the fact that the Defendant, and indeed all of the UK banks, remains highly secretive regarding the mechanisms of their systems and the costs associated in the charging process and of the events of default leading to a Charge being made. I am aware of in excess of 300 claims similar or identical in nature to the present case which have been brought against the Defendant bank in the last 18 months. In a significant number of these cases disclosure orders have been made obliging the defendant to substantiate its Charges and provide details of the costs of the charging process. I understand that each and every time that such an order has been made, or indeed any other directions order, it has been breached by the Defendant who chooses instead to settle each and every claim without liability, typically shortly in advance of the scheduled hearing.

    My estimate of £0.25 - £1.50 is based upon the following;



    37. My assessment of the costs of the charging process


    Prior to the commencement of these proceedings I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Subject Access Request pursuant to s.7 of the Data Protection Act 1998. Therefore, It is submitted that the Defendant’s Charges are applied by a completely automated process. This process consists of a computer system;

    a) Sending a computer generated letter if a consumer exceeds authorised overdraft limit (even if by only a few pence) to advise the consumer of the breach and resultant Charges, or

    b) Returning a dishonoured cheque plus notice to the consumer, or

    c) ‘Bouncing’ a direct debit or standing order.

    The costs of Data processing are nominal. Following some research into these processes and their costs I was able to obtain a list of prices from The Data Processing Company UK www.dataprocessing.co.uk, which confirm that such costs can be reasonably measured in pence rather than pounds. [Exhibit 15]

    It is therefore impossible to envisage how the Defendant can incur costs of £34 by carrying out a completely automated process. Note that the letter received notifying of a Charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance, in separate envelopes.

    38. Australian Default Fees report


    In a study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees Charged by Australian Banks”) [exhibit 16] it was estimated that the cost to an Australian Bank of a consumer’s direct debit refusal was estimated to be in the region of 54 cents. By reviewing the Charges to the consumer against the actual cost to the bank, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

    The penalty charging regimes of the Australian banks as well as the automated systems employed to process default events are similar to those of the UK banks, and the laws relating to contractual penalty clauses are also similar to those in the UK.





    39. The Competition Commission Report


    Northern Ireland Competition Commission report from October 2006 [exhibit 17] revealed that figures contributed by eight banks, showed that around 12% of the banks annual revenue is generated by "overdraft Charges". The report clearly demonstrates that the banks make significant profits from their penalty Charges and that they know about it, depend upon it and that they calculate for it. It is submitted that this report is clear evidence that the Defendant is aware that the income derived from its default Charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to specific events of default.



    40.BBC Commission Report


    For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a consumer's breach of contract. They concluded [exhibit 18] that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their penalty charging regimes.


    41. It is thus submitted that the Charge is an unconscionable penalty as it is extravagant, unrelated to and greatly exceeds any loss that the Defendant could ever have expected to have incurred as a result of the Claimant’s breach, and seeks to deter the Claimant from breaching the contract.


    42. I will further rely on the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default Charges levied by the British financial industry. While the report primarily focused on Credit card issuers, it is important to note that the OFT stated in the overview of its report that the principle of their findings would also apply to current account Charges. They ruled that default Charges at the current level far exceeded the costs of administering each default and were therefore unfair and unlawful within their interpretation of the UTCCR’s. It is the claimants view that this report is highly relevant as the OFT were in a privileged position in that they were allowed access to the costs and mechanisms of the banks charging processes.




    43.On 22nd May 2006, the House of Commons passed an early day motion [exhibit 19] which welcomed the OFT's statement that current account and credit card default Charges should be proportionate to the actual loss incurred as a result of the breach. The House described such Charges as "exorbitant" and "excessive".


    44.In a BBC radio interview in 2004, Lloyds TSB's former head of personal banking, Peter McNamara, stated that revenue derived from bank Charges is used to subsidise free banking for personal all consumers as a whole. [Exhibit 20]


    45. For these reasons it is submitted that the terms allowing the defendant to impose Charges are unenforceable penalties payable on breach of contract, alternatively they are unenforceable as penalties in the absence of a finding of breach of contract.




    Unfair Terms in Consumer Contracts Regulations 1999


    46. See paras 27 –30 for applicability of the Regulations



    47. At all material times the Claimant was a consumer within the Regulations. The terms relating to Charges were standard terms; they would not be individually negotiated. The terms of the Banking Contract 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 under the Banking Contract.


    48. Without prejudice to the burden of proof, the Claimant refers 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 Banking Contact, and of each revision to the Standard Terms:


    (1) The Charges are a disproportionate sum in compensation for a failure to fulfil a contractual obligation and are thus akin to the provision contained in Sch 2 (1)(e) . The Charges exceeded the costs which the Bank could have expected to incur in dealing with unauthorised borrowing and/or an unpaid item. They would cover to an extent the cost of providing banking to other consumers who did not incur the Charges. The Charges could be very much higher than the amount of the unauthorised overdraft.


    (2) The Charges could be imposed repeatedly, with interest at the Higher Rate of Interest Charged on top. The cumulative effect of the above would be to increase the debt burden on the consumer who incurred Charges, and make it more likely that a further fee and interest would be Charged. The Charges would penalise the consumer who had little or no credit. The consumer who incurred Charges was likely to be the least able to afford to pay the Charge.


    (3) The charging regime operated by the Defendant by charging those who can least afford it to subsidise free banking of other consumers takes advantage of the Claimant’s necessity indigence and weak bargaining power. A bank account is an essential requirement in modern society. All High street banks offer accounts containing similar terms. The choice to the claimant was thus restricted and put them in a weak bargaining position. The objectives which the Regulations are designed to promote include the protection of Consumers from commercial entities.



    (4) the Charges were of subsidiary importance to the consumer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract. The consumer had no means of assessing the fairness of the Charges at the conclusion of the contract.


    (5) In the premises, the effect of the Charges would be prejudicial to the consumer who incurred them, and cause an imbalance in the relations of the parties to the Banking Contract by subordinating the consumer’s interests to those of the Bank in a way which was inequitable.



    49. It is thus submitted the provisions allowing the Defendant to apply Charges for unauthorised borrowing ane returned items are unfair under Reg 5 of the Regulations and therefore is not binding on the consumer under Reg 8.





    50.The contractual term permitting the Defendant to apply Charges to the Claimant’s Account arise as a direct consequence of an event demonstrable as a breach of the account agreement between the parties. In arguing that they are a service Charge, the defendant also effectively admits that its Charges make profits. The Defendant seemingly contends that their Charges are not subject to any assessment of fairness whatsoever. This implies they can alter the term of contract to set the Charges at whatever level they like without limit or regulation - contrary to the intended effects of consumer legislation such as the UTCCR. Similarly, as set out above, the Charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The Charges are disproportionate, punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are contractual penalties and unenforceable at law. In addition to being unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999.


    51.Accordingly, the Claimant seeks judgment in respect of;


    a) Charges in the sum of £……………… (as particularised in the Particulars of claim).

    b) Interest at the rate of 8% per annum under County Courts Act 1984 s.69 in the sum of £…………… until …………., and further the daily rate of £…….. thereafter (as particularised in the Particulars of Claim);

    c) Court issue fee of £……….

    d) Allocation fee of £100

    d) Further costs under CPR 27.14(d) or other such costs allowed by the court.


    52. Statement of Truth


    I believe the facts stated within this Witness Statement to be true, and submit it as Exhibit 1 comprising of 12 pages.











  2. Found this on a website. this should help anyone else with similar directions as mine.

    TRIAL BUNDLES 39.5 (1) Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by ---

    (a) a relevant practice direction; and

    (b) any court order.

    (2) The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.


    BUNDLES OF DOCUMENTS FOR HEARINGS OR TRIAL 3.1 Unless the court orders otherwise, the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

    3.2 Unless the court orders otherwise, the trial bundle should include a copy of:

    (1) the claim form and all statements of case,

    (2) a case summary and/or chronology where appropriate,

    (3) requests for further information and responses to the requests,

    (4) all witness statements to be relied on as evidence,

    (5) any witness summaries,

    (6) any notices of intention to rely on hearsay evidence under rule 32.2,

    (7) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not ---

    (a) contained in a witness statement, affidavit or experts report,

    (b) being given orally at trial,

    © hearsay evidence under rule 33.2,

    (8) any medical reports and responses to them,

    (9) any experts' reports and responses to them,

    (10) any order giving directions as to the conduct of the trial, and

    (11) any other necessary documents.

    3.3 The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.

    3.4 The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative5 who has conduct of the claim on behalf of the claimant.

    3.5 The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents.

    3.6 The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles.

    3.7 For convenience, experts' reports may be contained in a separate bundle and cross referenced in the main bundle.

    3.8 If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced.

    3.9 The contents of the trial bundle should be agreed where possible. The parties should also agree where possible:

    (1) that the documents contained in the bundle are authentic even if not disclosed under Part 31, and

    (2) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995Acts has not been served.


    Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.

    3.10 The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses

  3. 39.5 - (1) Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by -


    (a) a relevant practice direction; and


    (b) any court order.


    (2) The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.


    Can anyone help me with this? The above is in my directions listed above. What information should I putting in the court bundle?

  4. does any one else have a case at guildford on 14th September. Mine seems to be the first case of the day at 1030am and I have no idea what I am supposed to be putting together re court bundle.


    Directions from court:


    No more than seven nor less than three clear working days before the trial date the Claimant shall file at cour an indexed and paginated bundle of documents which complies with the requirements of Rule 39.5 of the civil procedure rules and the practice direction thereto, and shall serve a copy of it on the DEFENDANT. THE CLAIMANT SHALL ENDEAVOUR TO AGREE THE CONTENTS OF THE BUNDLE WITH THE DEFENDANT BEFORE IT IS FILED. If the Claimant fails to file a trial bundle in accordance with this direction the claim shall stand struck out and the action dismissed without further order.


    Can anyone help me out here, especially with the capital letters sentence?????






  5. does any one else have a case at guildford on 14th September. Mine seems to be the first case of the day at 1030am and I have no idea what I am supposed to be putting together re court bundle.


    Directions from court:

    No more than seven nor less than three clear working days before the trial date the Claimant shall file at cour an indexed and paginated bundle of documents which complies with the requirements of Rule 39.5 of the civil procedure rules and the practice direction thereto, and shall serve a copy of it on the DEFENDANT. THE CLAIMANT SHALL ENDEAVOUR TO AGREE THE CONTENTS OF THE BUNDLE WITH THE DEFENDANT BEFORE IT IS FILED. If the Claimant fails to file a trial bundle in accordance with this direction the claim shall stand struck out and the action dismissed without further order.


    Can anyone help me out here, especially with the capital letters sentence?????

  6. Right here goes, in October 2006 I bought a car off my husbands nephew, during the change of ownership my husband went into london and forgot to pay the charge for the day. Anyway they send a letter to his nephew to pay the charge, by the time it got to us it was £150 well paid most of it leaving a balance of £35, Well now I have been trying to pay this for the past 8 months and the cheque keeps on being sent back.


    Firstly when I sent the cheque I was informed they had handed it over to their debt collectors who would be in touch.


    After waiting a month or so I called them to say no debt collectors had contacted us. I was told I should wait for them to get in touch. Finally some time in March I called again and was told the name of the debt collectors who I should send the cheque to. I sent the cheque on the 1st April 2007 to the debt collectors. On the 25th April CC london send me a letter saying I could make payment direct to them if the payment was made within 14 days. I called cc london and told them I had paid the debt collectors.


    at the end of april I called cc london to check if the charge was paid in full. I was told no payments had been received from the debt collectors. I then called the debt collectors who informed me that they have my payment but because the amount was so low they would not be dealing with it and would send my cheque back. I received the cheque back from the debt collectors on 21 May. I called cc london and told them this. I also informed them that when the cheque from the Debt collectors was cleared I would make payment and they should let me know where to send the cheque. I then totally forgot about all of this until I was checking my monthly spread sheet at the beginning of July. I called them back and they had no idea what I should do and said they would get someone to call me back. A very nice lady did call and said I should send the cheque to their conventry address. I did this on 9th July, now they have sent me the cheque back with a letter to say the debt collectors will be in touch??????????? I have called them today and they say they sent it back because it was not paid within the 14 days stated on the letter of the 25th April. I then asked if they record all calls because I would like them to recall the conversation I had with them telling them I had paid the debt collectors.


    Well I would like to know what to do know. Should I send all this information directly to the mayors office?

  7. Update - Called the court on 17th to see if wragge had sent them anything, they did send to the court some sort of letter which I believe I was supposed to get a copy of, which they have not bothered to send to me. Should I send them an email/letter requesting a copy?


    I did get the following in the post from the court.


    His Hounour...... has considered the statements of case and allocated the claim to the small claims track.


    The hearing of the claim will take place at 1030am on the 14th September 2007 at Guildford County Court, and should take no longer than 1 hour.


    The court must be informed immediately if the case is settled by agreement before the hearing date.


    I am not sure what to do because there is no request for a court bundle as I have read on other threads??????


    at the bottom of the claim for there is a notes section which reads as follows:-




    If you cannot, or choose not to, attend the hearing you must write and tell the court at least 7 days before the date of the hearing. The district judge will hear the case in your absence, but will take account of your statement of the case and any other documents you have filed.


    If you do not attend the hearing and do not give notice that you will not attend, the district judge may strike out your claim, defence or counterclaim. If the claimant attends but the deffendant does not, the district judge may make a decision based on the evidence of the claimant only.


    Leaflets explaining more about what you should do and what happens when your case is allocated to the small claims track are avialble from the court office.


    Any advice?

  8. Hi all


    sent off my AQ with fee to Guildford court and this is what I got back, do I need to do anything??????


    Before his honour judge reid QC sitting ..........., upon the courts own motion. the court has made this orfer of its own initiative with a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.


    It is Ordered that


    1. The claim is allocated to the small claims track.

    2. The hearing will take place, time and date which will be notified to the parties.

    3. The defendant shall not later tham 4pm on 16 july 2007 serve on the claimant and lodge aat court a document answering the following questions: (a) is the case intended to be contested to and at trial? (b) does the defendant intend to apply to adduce expert evidence?

    4. if the deefendant fails to lodge at court a document in accordance with paragraph 3 above the defence shall stand strucj out and judgment be entered for the claimant for the amount claimed and costs comprising the issue fee and any allocation fee paid.

    5. each party shall serve on the other the witness statements of all witnesses (other than expert witnesses on whom they intend to rely).

    6. No party may adduce expert evidence unless an application for permission to adduce such evidence has been made and granted.

    7. No party may rely on the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court.

    8. No more than seven nor less than three clear working days before the trial date the claimant shall file at court an indexed and paginated bundle of documents which complies with the requirements of Rule 39.5 of the civil procedure rules and the practice direction thereto, and shall serve a copy of it on the defendant. The claimant shall endeavour to agree the contents of the bundle with the defendant before it is filed. If the claimant fails to file a trial bundle in accordance with this direction the claim shall stand struck out and the action dismissed without further order.

    9. Because this order has been made by the court without considering represnetations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with the appropriate fee) to arrive within seven days of service of this order.

  9. Right got two letters from Wragg & Co yesterday.

    1. is their AQ

    2. is an offer but this is £1500 short.


    I have until the 6th July to file my AQ at Guildford Court, and Wragg have given me 28 days to accept their offer - I am not accepting their offer so do I send a letter to them rejecting it, or should I just go ahead and file my AQ.

  10. Notice of Transfer of proceedings.

    This claime has been transferred to the Guildford County Court for allocation. On receipt, the file will be referred to District Judge Raeside who is now dealing with all claims realting to Bank Charges and will allocate the claim to track and give case management directions. Details of the judge's decision will be sent to you in a notice of allocation.

  11. I am now at the AQ stage and need help with this. on point B my case has been moved from my local court to Guildford which is 25 miles away from me, should I state that the case should be held locally to me. Secondly point G has got me I have no idea what I am supposed to do, I have read the notes but I am still confused. If anyone can help Please do.:confused:

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