By the way I do have previous good character. I just made a silly error and mixed up my dates.

Thank you for your reply. But if I've rectifyed my mistake and explained it before the interview date and can show proof that I did indeed pay for my last address up to the date I told them but at that time didn't realise of the overlap, is it really necessary that they proceed to penalise me? I am so ill and cannot cope with the pressure. There is no way I could go on my own and I do not have anyone else to go with, and from what I've read on these posts I would only feel comfortable with a legal representative as they will undoubtably be awful to me. And could you explain a little more about what a 'sanction' would mean and how long it would be held for?

Please help! I have just realised I have made a stupid mistake with the date i told Housing Benefits I moved out of my last address (which was a different local authority to the LA I now live within). This is because I had a week overlap in addresses. I had no choice, or risk not finding anywhere to live when my tenency was up (I am a private tenant living in London). This confused me, and I managed to put the wrong date in my letter. I mistakenly sent a change of circumstances letter to the previous LA stating I moved out 1 week later than I actually, technically did. I had paid rent up to that date, as I was contractually obliged to so (or risk losing a months deposit). This was a genuine oversight as I suffer from longterm depression and anxiety and am not able to keep on top of things very well, and that was the date my old tenancy officially ended and was paid up to by me so I didn't think of it properly at that stressful and desperate time of upheaval. I have in the meantime been payed housing benefit by my new LA from the begining of my tenancy which was the date I moved in, so this means that I have incurred a housing benefit overlap of 7 days. I only realised my error when I received a letter the other day from the fraud section inviting me to an 'Interview under caution' and so I looked into what on earth this could be about, thinking it must be a mistake. This is obviously the problem. They said (the old LA) in the letter that they had found a 'discrepancy' in my change of circumstance details. I have paid this amount back to them in full already without being prompted as I obviously owe it. But I am so horrified that I could be accused of fraud. I intend to write to them also, explaining my error but am terrified that they will still want me to go to this interview and accuse me of misleading them (which is obviously how it looks to them on paper) and want to take me to court. I feel so stupid for not realising my mistake earlier. And so depressed about being in this situation in the first place and being so depressed. It's a nightmare. Please help!! I feel absolutely sick with worry. I am having panic attacks and cannot sleep. I have heard how unreasonable they can be and due to my illness I cannot possibly imagine how I would be able to handle myself if I am forced to go to this interview, and prior to that find representation to help get through it, it feels too daunting and overwhelming. Can anyone advise me on what may happen? Are they likely to drop the matter once they receive my letter of explanation and see that I have re-payed the money and it was an innocent mistake? Or are they totally heartless and bloodthirsty? (Which is my fear)

Many thanks Joa. I did read the stuff in the link. Although there are a few variables that made things slightly unclear but I think that they should have given us either 1 or 2 months notice of the increase. And no, there is nothing in the contract about increases. The increase they are suggesting is fair and they will get it easily. I have already found an alternative flat so it's not a problem in that respect, but I don't want to have pay further rent to fulfill this 1 month notice obligation to them when they didn't to me! It does say in the contract that I must give 1 months notice, although I can't tell if that is just once you get past the break clause period? Is it different at the end?

Sorry, the last post didn't really answer my question. I probably should be on a different post, but I can't seem to work out how to start one! Anyone??

Is it definitely a months notice that is needed to warn tenants of a rent increase? Does anyone know for sure? If it's a year contract and due for renewal, should the letting company not tell you in good time? A month at least! Should it also not be in writing? What if they don't give you that long, and then when you tell them you'll move out at the end of the contract instead of accepting the increase, 'they' want a months notice form you! Can they do that? Is it fair? Please if anyone has any advice on such matters it would be greatly appreciated!

Thank you ED999, A very helpful reply. Greatly appreciated. Has anyone else had any experience of this sort?

So no one really knows then?

I have an Assured Shorthold Tenancy and am nearing the end of my 2nd year. Our hot water boiler has just been disconnected and deemed unsafe by the Letting agency's 'Mr. Fixit' man. Now the whole thing must be replaced, including the heating system (although we have heating at present as there are currently 2 seperate boilers, and very un-economical ones at that!). A big job. He is away now until next week, meaning that the first chance he will have to start the work, once the agents have agreed it, will be next monday probably tuesday. Who knows when it will be up and running. This means a week at least with no hot water! Nightmare. Legally am I entitled to a reduction or even a waiver of this weeks rent? Please advise. Much appreciated.

Yes I think that that seems to be the case. The Court sent me (and D&G) a hearing date for today, 29/6 but it was actually meant to be 29/8! Their mistake. But it was enough to get an instant response from D&G in the form of an offer. You can definitely afford to start nudging as soon as though and it may come sooner than the court date....

They put up exactly the same defence against my claim. It must be their standard response. Don't worry, I had to do an AQ but D&G didn't get one in as the Court had since stopped doing them (to ease the pressure on the system probably) it's easier for you to not have to do one. You could look at the letter templates for requesting a DRAFT ORDER FOR DIRECTIONS from the Judge still though. I did, which was ignored, but it still might be worth trying. I sent my first nudge letter last week, a month after I sent in my AQ in and got an offer 2 days later.... So nudging is good. And it makes you look good in the eyes of the judge, that you were attempting to resolve the matter if did get to court, which it very most probably won't. And yes, if it were me I would sent each time you contact them, a summary of charges and if you haven't already, photocopies of bank statements showing charges. I'm not an expert by any stretch but this has just been my experience so far. Please check with someone more in the know if anything is unclear.

By the way,do you need the whole of the Australian Penalty Fees Report, it runs around 90 pages?

MOST GRATEFUL Thanks FREAKY and MICHAEL!

Any ideas on the other queries? As lottie asked?

1. The Claimant has an account, number of which; ********** with the Defendant which was opened with Midland Bank in approximately 1985 and then went on to a student account in 1993, a graduate service in June 1996 and then to a current account in June 1999. 2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. 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 account, 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 Defendants 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 an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded this agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge ranging from £10 to £30. In November 2005 charges for a period of one month totaled £100. 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. Midland Bank’s 1996 Terms and Conditions section 7.9 state: “As well as charging interest for unauthorised overdrafts, we may also charge a fee to cover the cost of the administration involved” Is this the right thing to argue or have I completely misunderstood?! Also still not really clear on which T&C's and how many to use. Don't want to go for overkill - don't want to miss anything really important ... ANY IDEA IF THIS IS A GOOD IDEA TO ADD IN HERE? 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 account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences 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. 15. Following on from the above, the claimant does not accept The Defendants 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 banks 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. 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. 21. 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. 22. 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 between £10 and £30 *IS IT BETTER TO PUT THIS INSTEAD OF £10-£100, £100 BEING THE MOST I WAS EVER CHARGED IN ONE MONTH SHOWN AS A SINGLE AMOUNT DEDUCTED FROM MY ACCOUNT?* 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. *The charges are shown on my statement as being taken out as sums between £18 and £100. I know the ones that are £100 are actually 4 x £25 charges but have nothing to demonstrate this. If I put £100 they'll say their charges were never that much. 23. 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". 24. 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. Is it worth putting this in as I am taking HSBC to court and not Lloyds TSB? AGAIN ANY IDEAS? 25. 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. 26. Accordingly the Claimant claims: a) The return of the amounts debited in respect of charges in the sum of £681 and any interest charged thereon; 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 the date that each charge was applied to the account. to the sum of £212.44 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of ????. AGAIN, WHAT TO PUT HERE? AND DO I LIST THE INTEREST AMOUNT AS ACCRUED AT DATE OF THIS STATEMENT? Not sure what daily amount is - know it is somewhere on this site but if anyone has it to hand would be grateful! I, the Claimant, believe all facts stated to be true. Signed, dated. Documents attached in support of this statement * HSBC and Midland Bank’s Terms and Conditions * Office of Fair Trading report, April 2006 * House of commons early day motion, May 2006 * BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission * Australian Default charges report, Nicole Rich - Domain Names, Web Hosting, Web Design, Search Engine Optimisation, and Search Engine Marketing at Melbourne IT HOW DO I FIND THIS? I LOOKED BUT IT JUST TOOK ME TO A DOMAIN NAME WEBSITE AND I COULDN'T FIND ANYTHING RELEVANT THERE. Please can you say if this looks ok? Is there anything else that I need to include? *=MY QUERIES Sorry to sound like a dummie, but this is all new to me! Many Thanks

But this is a summary, rather than evidence. Will this really be adequate? THANK YOU by the way

Oi! It's Clerkenwell & Shoreditch County Court. So if I write to them.... do they have any obligation to give me a certain amount of time to get my case ready? And will they be able to get back to me in time?? If I took something to the court tomorrow it could take them days to get round to it!

I really need one at the ready. I'm there with the rest of the bundle I think. The 'STATEMENT OF EVIDENCE' I found was a for Lloyds account and I wondered if anyone had something more relevant or could explain how to adapt it. Things like how many times HSBC has raised it's charges over the last six years... Much appreciated

the above Re; post 58

Oops! Has this gone in the right place?

I received my date on sat 23rd - it's for fri 29th!! They said all paperwork should be in 14 days before the hearing but this is obviously impossible! The court told me I can send stuff in now... But it gives me no time to prepare. And they told me the same thing, that I would have to pay £35 to 'stay' the case. Which I think I have no choice but to do as the bank have made an offer but it isn't agreed yet and I don't want to stop the claim until it's definitely all concluded ie. money in my account. It's a nightmare.

I was told that I could either pay £35 for a 'stay' or pay £35 to draw up a 'consent order' which would need to be done by a solicitor really. She suggested asking them, D&G to do it. ??? And come to an arrangement for the offer and to negotiate the 'wasted costs'. I couldn't imagine them going for that!

Maybe if I sent the court bundles it would tempt them more?

I was told this by the Court clerk on the phone. Who know's maybe you can. Would you advise me now to pay for a 'stay' anyway to give time to actually receive a payment from D&G? They have to take out the confidentiality bit and the bit about claiming again as I missed out 2 earlier charges from 2001, so with interest, I intend to have another go, or how would you go about wording a letter to them refusing their conditions but asking if they would just add on the afore mentioned charges to save me claiming again for them? Sorry to sound like such a baby, but I am I'm afraid! Just not sure how to play it, what to say....

I spoke to the Court on the phone today and they said that there is a £35 non returnable fee for this request. Is this definitely the case?