I made this POC for claims using this process using the existing CAG POC as a base, then adding in relevant parts. Please examine & pick it to pieces or give any suggestions you might have.
I also believe it might be possible to make a cut & dry complaint to Trading Standards & OFT about bankers introducing services (the informal/unarranged overdraft service, considering & declining payments service e.t.c.) and applying them to their customers accounts and charging for them when; a) they were not asked for and B) did not exist when the account was opened, thus rendering the terms & subsequent charges entirely unfair (possibly even illegal?) & removing the need to go to court. I can't imagine any regulatory body accepting that a business can just introduce a new service & start charging their customers for it without asking them if they want it and making it mandatory & non-negotiable..
Particulars Of Claim
1. The Claimant has/had an account XXXXXXXX ("the Account") with the Defendant which was opened on or around date
a) During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant or in respect of various purported services provided by the Defendant. The Defendant also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.
Charges debited from the Claimant’s account between date & date were applied under the Defendant’s Terms & Conditions effective until date 2007 (see appendix xx). Under these terms, the charges levied for instances of exceeding the agreed overdraft limit are described as remuneration “to cover administration & management costs”. Charges levied under the current Terms & Conditions are described as “Fees for the service of providing an informal overdraft facility”.
b) On date the Claimant wrote to the Defendant to request that services such as “informal overdraft” and “considering and declining payments” be removed from the Claimant’s account on the basis that they are hugely expensive, are not wanted and were not agreed at the time of opening the account. The Defendant refused to remove these services effectively forcing the claimant to accept and pay for services that were not asked for and not agreed to. In no other industry is a company permitted to introduce a new service and force its customers to use and pay for it without negotiation.
c) On date the Claimant applied for a “Formal overdraft” facility of £XXX on the account. This is £XXX less than the highest amount the account was overdrawn on date. This application was declined by the Defendant on the basis of poor credit scoring. Yet the defendant continues to provide an overdraft only on an informal/unarranged basis.
3. A list of the charges applied is attached to these particulars of claim.
4. The Claimant contends that:
a) Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
Furthermore, the terms which state that charges were levied to cover administration & management costs were misrepresented to the Claimant. The results of an investigation into personal current banking accounts report published by the OFT on date shows that over 30% of a bank’s total income is generated by the levying of charges for instances of customers exceeding their overdraft limit or entering into an unarranged overdraft where no overdraft facility exists. It is inconceivable that the Defendant would spend over 30% of its total income managing & administering instances of customers exceeding their overdraft limit.
The Claimant has requested on numerous occasions that the Defendant demonstrate how such costs are incurred and how the Defendant arrives at the sums charged. Given that the crux of issue in contention is concerned with these costs, the Claimant believes it is central to the case that the Defendant be ordered to demonstrate what its costs are in relation to the sums charged under these terms.
b) Insofar as they purport to be services provided by the Defendant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Defendant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.
Whereas, at all material times the Claimant was a consumer within the meaning of the Regulations and the Defendant was a supplier within Regulation 3(1), and
The banking contract was conducted on the Defendant’s standard terms.
Given that a formal/arranged overdraft is refused but informal/unarranged overdrafts are subsequently automatically approved, the terms imposing the charges levied by the Defendant are entirely unfair and contrary to the requirement of good faith. Furthermore The terms imposing the charges cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-
• Bank accounts have become a basic essential service
• The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
• There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
• These banks exercise a collective dominance in the market.
• The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
• The charges exceed actual costs by several thousand percent
• They are applied unilaterally in a standard form contract without the possibility of negotiation
• The Defendant refuses to provide a formal/arranged overdraft facility, yet will continue to approve payments where there are insufficient funds therefore, creating an informal/unarranged overdraft for which it will charge the Claimant for a service he did not ask for and has clearly stated that he does not want.
• The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
• The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
• The customer had no means of assessing the fairness of the Charges at the time of entering the contract
• The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
• Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
• The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
• The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
• The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
• The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.•
• As established by the High Court (OFT v Abbey & Others) the customer would receive no service or benefit in return for the imposition of charges.
g) In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.
5. Accordingly the Claimant claims:
a) the return of the amounts debited in respect of charges in the sum of £ X ;
b) Interest charges which have been paid on the above charges in the sum of £ X ;
c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from [date when the money became owed to you] to [the date you are issuing the claim] of £ [amount] and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of [enter the daily rate of interest]
d) Court costs or other costs as allowed by the court;
I believe that the contents of these particulars of claim are true