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Skinflint13

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  1. Team, Case stayed in court for nearly two years...hopefully coming to a conclusion...do we have a template letter to send off as soon as we get the green light ?? Will dig out all my case papers tomorrow....its good to be back in the game !!
  2. Letter received from court they have accepted my directions Draft Order for Directions 1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court: a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made; b) Copies of any statement or other document relied upon as showing that each and every charge has been made; c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise; d) Copies of decided cases and other legal materials to be relied upon. If the Claimant fails to comply with this order, the claim will be struck out without further order. 2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed; a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon; b) Whether such charge is accepted to be a penalty, and if not why not; c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was; d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable. e) Any witness statements. f) Copies of decided cases and other legal materials to be relied upon. If the Defendant fails to comply with this order, the Defence will be struck out without further order. So I am off to the Post Office this morning to send bundle to court and copy to DG with a nother nudge letter.. Hopefully thinks may pick up a little pace now !!!
  3. Copy of 3rd Nudge attached, is there anyone specific in DG I should address it to ??? I am writing you today in a further effort to ask you to consider my claim and I am most disappointed that you have not even acknowledged any of my previous correspondence. I have been notified that the Allocation Questionnaire is being dispensed with in this case and that it has been transferred to *** County Court. I am sure you are aware that a court date will be set soon, and I have made every attempt to send you all associated correspondence including my draft directions to the court and up-to-date copies of the schedule of charges. When this comes before the judge it will be obvious who is making any and all attempts at resolution I am mindful of the vast number of claims with which you are currently dealing and in order to more speedily resolve this matter, I am willing to accept the sum of £**** as full and final settlement of this particular claim. I do not agree to waive my rights in respect of any other actions, but I will agree to a clause of confidentiality. Please find enclosed another copy of my schedule of charges relating to this claim. I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the courts would whole heartedly approve of our settling this matter in a timely manner and without their further intervention. I look forward to hearing from you. Sincerely,
  4. Rang court, they stated Judge had the paperwork and I should receive his directions within the week. Going to send third nudge to DG tomorow.
  5. Nothing received from court or DG yet !! Will call court on Monday asking for a update and will send DG 3rd nudge letter also ( anyone point to to a good 3rd nudge template ? )
  6. Gave it a week but nothing received from court or DG, So I sent another nudge with a copy of my bank bundle, spreadsaheet of charges and bank instructions. Contents of bundle were Statement of Evidence Charges spreadsheet Copies of all correspondence Statements T&Cs ( highlighted relevant pargraphs ) Settled cases / legal papes, OFT, BBC, Dumlop etc etc All indexed and placed in a folder I have another two copies made up on for the bank and another for me... Lets see what happens next !
  7. Been busy tonight and got bundles completed, all cross referenced, indexed etc in folders with a good index:D Although still waiting for directions from court re the draft order for directions...what have I to loose by sending DG a copy now, I'm trying to push this hard and take the initiative. Or should I slow dow and let events take their course ?? Let the battle commence !!
  8. Freaky which T&Cs did you use..I cant find one with 48 pages..I've looked at the 1996 one and para 7.9 mentions admin charges, do I need to do copies of the others or will this be sufficient ???
  9. Printed off T&C's 1996, 2004 and 2006, but I'm now reading that its important to highlight certain paragraphs. I'm claiming back overdraft fees can anyone advise on what needs to be reffered to ????? Thanks
  10. 1st nudge letter + copy of charges sent to DG. Letter and draft order for directions sent to Court Starting to build bundle..will seek guidance throughout. 1) Statement of Case 2) copies of all correspondence, 3) charges on spreadsheet and copies of bank statement with charges. Highlighted. 2) Got copy of T&C Charges 1996 ( should I also add copies of T&Cs for 2004 & 2006 ??? ) Will start to work on case law summaries next week.
  11. I'm going to start preparing the 3 bundles.. a) your schedule of charges. (ie a copy of your spreadsheet) b) your statements showing the charges. Alternatively, the list of charges which the bank provided under your S.A.R (subject Access Request) (only send the statements with charges on them.) and copies of all correspondence. c) A Statement of Evidence: Statement Of Case ____________________ 1. The Claimant has the account xxxxxxx with the Defendant. 2. During the period in which the Accounts have been operating the Defendant debited thirty-three charges to the Accounts in respect of purported breaches of contract on the part of the Claimant. 3. A list of the charges applied is attached to these particulars of claim. 4. The Claimant submits that the charges levied to his bank accounts, as set out in the attached schedule, are, notwithstanding the contention of the Defendant, penalty charges arising from and relating directly to breaches of contract on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law. 5. It is admitted that the Defendant’s charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendant’s charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 4 above, exercises the contractual term in respect of such charges with a view to profit. 6. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit. 7. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty. 8. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have overdraft facilities with the defendant. These overdraft facilities have a contractually agreed limit, which is an express term of the bank account contracts between myself and the Defendant. When I exceeded the agreed overdraft limits, therefore breaching an express term of the contracts between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge between £10 and £35..." as these were the minimum and maximum individual charges. 9. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for; "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;” I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem". 10. The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously. 11. The Claimant refers 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 that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this; “4.21 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 customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”. 12. As submitted above, the Claimant believes the charges levied to his accounts to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contracts between itself and the Defendant. The Claimant vehemently refutes the Defence’s contention that they are legitimate contractual service charges. 13. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982. 14. Further, under the UTCCR: "5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. (3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract. (4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was." Schedule 2 also includes such clauses (to define examples of unfair clauses) as: "(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; (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." The Defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract. The cost of HSBC's charges have increased on more than one occasion during the period in which my accounts have been held, at no time was I given the opportunity to negotiate, or even notified of these increases. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage. 15. Following on from the above, the claimant does not accept The Defendant’s contention that the charges are enforceable as a service charge. 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 bank’s right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable. 16. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. 17. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being - "The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach" 18. The Claimant will further rely on numerous recorded authorities dating throughout the 20th Century up 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. 19. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as - "(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;" 20. The Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches, including a written request in February 2007. Each time those requests were rebutted or ignored. 21. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, 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 in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law. 22. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges. 23. For their 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 customer’s breach of contract. They concluded 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 charging regimes. 24. It is submitted that the Defendant’s charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of It is therefore impossible to envisage how the Defendant can incur costs of between £10 and £35 as these were the minimum and maximum individual charges, by carrying out this 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. 25. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive". 26. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole. 27. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. 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 punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law. 28. Accordingly the Claimant claims: a) the return of the amounts debited in respect of charges in the sum of £ 1,689; b) Court costs; c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 10/08/04 to 29/03/07 of £230.89 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.37. I, the Claimant, believe all facts stated to be true. d) All the statutes and decided cases on which your claim relies. ie, UTCCR's, UCTA's, SOGA, case law, etc. For this, I'd just submit the whole of the Basic Court Bundle. e) T&C's Does this look OK or have I miised anything ????
  12. Thanks Guys, another question to ask..in the nudge letter to DG I'm enclosing a copy of the charges, but quite a few days have elapsed and the interest has raised the claim by approx £30 do I send the updated chart or should I stick to the original ?? Also is there any benefit also sending the court letter to Dg to let them know I'm serious or should I wait and send them the copy of the bundle. Once again thanks for your assistance in advance.
  13. Reading some earlier post can should I send my first nudging letter and can I send the letter below to the court ??? The Court Manager ****** County Court Court Address Court P/code [date] Dear Sir/Madam You -v- Bank Plc Claim Number: ******* It is noted that in my case referenced above that the Allocation Questionnaire has been dispensed with. I am aware that this is likely due to the large volume of claims that consumers are bring against the high street banks. I am also aware that to date the banks have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily. In light of this the Claimant respectfully suggests that special directions may be made as per the enclosed draft order. The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously. - The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's. - In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982. The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts. As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour. Yours faithfully, [name] enc: Draft Order THEN ON A SEPARATE PIECE OF PAPER - THIS: Draft Order for Directions 1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court: a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made; b) Copies of any statement or other document relied upon as showing that each and every charge has been made; c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise; d) Copies of decided cases and other legal materials to be relied upon. If the Claimant fails to comply with this order, the claim will be struck out without further order. 2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed; a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon; b) Whether such charge is accepted to be a penalty, and if not why not; c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was; d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable. e) Any witness statements. f) Copies of decided cases and other legal materials to be relied upon. If the Defendant fails to comply with this order, the Defence will be struck out without further order.
  14. Notice of Transfer proceedings received.. 1) The Filing of an allocation questionnaire be dispensed with in this case unless the districy judge at the court of transfer orders otherwise. Defence and counterclaim paper were attached
  15. In preparstion for my bundle I've been trying to locate a copy of T&C's..does anyone have a copy I could use been with HSBC for over 20 years..
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