Update - Received a letter on Saturday (MCOL was going to be done today) saying they will pay the rest basically, not admitting liability bla bla bla. At least that saves me having to find the court fee.

The Fraud act has been discussed in the legalities thread in the Theft Act section. A key point of the Fraud Act being that the banks only need to believe the charges 'might be' unlawful etc. Due to the nullem crimen rule of course this can only be used for charges from now on, and i hope fairly soon to be able to send the letter to my bank which I posted here a little while ago (in general) to notify them that I believe all future charges would constitute a criminal offence under the act. If they do still add charges after the letter I am anticipating difficulty in getting the police to take it seriously but I think some media coverage would happen and it will be interesting to see how the banks react to this threat as they cannot simply settle out of court on this one. The basics of my letter are as follows - - - - - I believe that the addition of any further penalty charges to the above account after receipt of this letter would constitute a breach of section 2 of the Fraud Act 2006 under the following points - 1) It is a breach of the act to make a false representation as defined in section 2 and intend by making the representation to either make a gain for youself or others, or to cause loss to another or to expose another to a risk of loss. 2) The Act includes provision for the 'representation' mentioned above to be either express or implied (section 2, subsection 4) 3) Due the large amount of claims and surrounding publicity, in addition to myself making yourselves aware of this fact by means of this letter, it is my understanding that under section 2, subsection 2b of the aforementioned you either know that your representation of penallty charges are, or might be, untrue or misleading in that they are represented as lawful terms of a contract based on your terms and conditions when they are in fact believed to be unlawful under . In addition the fact that the Office of Fair trading have decided to launch a full investigation into these charges and their previous ruling against credit card charges gived further evidence to the fact that they believe they may well be unlawful. Therefore any further penalty charges levied on the above account will result in the relevant authorities being contacted for consideration of prosecution for the offences listed above. Please note that: A person who is guilty of fraud under this act is liable - (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both). Under section 12 of the act if an offence under this Act is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of— (a)a director, manager, secretary or other similar officer of the body corporate, or (b)a person who was purporting to act in any such capacity, he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.

Interesting that they're going to try and pay it anyway even if you decline (if I've read it properly). I haven't seen that before. They clearly don't want this one in court.

Here's a good extract from the debate. I quote in particular - Full link here - Bank Penalty Charges: 16 Jan 2007: Westminster Hall debates (TheyWorkForYou.com)

Duplicate post.

Good points meagain and law student. Law student - I'm not sure which route would be best, bu tI was thinking along the lines of sending them a letter stating the evidence towards charges being unlawful, including a couple of solicitors/barristers who have said as much, one on the BBC money program I believe, and then say i will take action on any future charges using the new act. Pointing out of course the penalties for fraud. It will be interesting to see the reaction. They're not just being threatened with court action they can settle for, it's a criminal investigation and/or trial, and the publicity that will go with it (I happen to know the odd journalist here and there, not that the papers wouldn't be interested anyway. I'm not sure what would happen. I suspect account closure to nicely avoid them having to decide. If they do stop charges that actually proves they might believe the charges are unlawful, even if they say 'we want to avoid a court case' because if they were anything other than certain the charges were legal, they would be happy to carry on charging.

Sorry I updated the link - it should work now.

The thread with the £5 judgement is here . It was with Egg. there may be others (one against Citicard?). I have written to my MP - Greg Clark in Tunbridge Wells. I found a site where you put in your postcode, it looks up your local MP and allows you to send an email directly to them. I assume it is ok to post a link, it is - WriteToThem.com - Email or fax your Councillor, MP, MEP, MSP or Welsh, NI, London Assembly Member for free

I put this aside for a while to go after easier prey but now the balance is over its limit and they're threatening me with defaults so I'm sending the LBA. I went through a half hour call on Saturday to see if the limit could be increased to cover the overlimit amount (the whole thing's getting paid off when I move house anyway) but interestingly they declined, mainly based on the fact I had used the card for 'online gambling'. It was only a deposit of £10 to earn cashback but it seems they go through what you use the card for and make decisions based on that. I may also have to put the account in dispute to try and stop the defaults. They also said if I miss another payment (this would be the second one) they would close the account and ask for it all back in full. I know I could probably contest this and get a payment arrangement but i don't want to have to start doing that, especially in the middle of moving and changing addresses.

This is a good point, as they should know contract law. My reply for my prelim against Egg states a similar thing - Therefore they obviously know their costs themselves (or could quite easily work them out) and would know whether the charges are unlawful. They would presumably have to know the costs to calculate things like annual profit margins and such, as without knowing your costs you can't work out out many figures that you need when accounting. I think where the bank has stated charges are to recover costs due to a breach there is a good chance of being able to use the theft act. However why I am thinking of using the Fraud Act (comes into effect today I believe) is the 'might believe' part that is missign form the Theft Act. Proving someone believes something might be untrue could be tricky, but the publicity together with a specific letter from a client stating the charges are probably unlawful would (I think) mean they have to believe the charges might be unlawful until this is proved otherwise in a court of law. I'm not sure how points like this would be proven in a court. I think any person with no previous knowledge of this was presented with the facts they would definitely think that there is a good chance charges are unlawful. Think of the press coverage alone of a major financial institution being investigated for fraud, let alone the chance of the directors (and any managers directly involved) going to prison for up to ten years.

I agree that this is a major barrier to using the theft act. However, I believe the Fraud Act to be much more likely to be effective for the reaosns I posted above. They only have to believe it might be untrue or misleading, and covers implied representation, as in implying the charges are lawful. I think as soon as you specifically tell them you are contending the charges they have to believe they might be unlawful until this is proved otherwise. I posted a letter in my thread on the Fraud Act in the general section which I am planning on trying with my bank to see what they come back with.

This is kind of my deadline, as the 19th January is exactly 14 working days after the received the letter. I've got the MCOL claim already saved online, so I can do it straight away on the 20th if they don't pay up.I still don't know if I'm calculating the interest correctly ????

I'm not sure how much help you'll get on this one due the complicated nature of your claim. I work for a pensions software company and know a certain amount about pensions but this is way out of my league. I would say you have been mislead, and this may even be a case of obtaining by deception, but proving it looks difficult. Also the legal grounds we are claiming bank and credit card charges on may not apply to pensions. The early redemption penalty may well be claimable, depending on what they say it is for and the wording in the contract. Are you able to post any moe details of this? If it can be pinned down to being a breach of contract clause you could probably claim it back. I can't see what else it would be for, but the way pensions are calculated is a minefield. I will try to read through this properly when I have a bit more time and see if I can point you in a helpful direction.

I definitley think you should try and get the charge back. They shouldn't have tried to apply it to the account in the first place. I don't think not dating the letter would be an issue that much. Did you send it recorded? Definitely start again as suggested with a postal order. If they make the same mistake with the PO it doesn't matter, the 40 days still keeps counting down as you legitimately sent the request and payment and if they don't read the letter properly that's their problem. Good luck with your claim.

It's up to you whether you do a DPA request for that single charge. In fact can't you just order a reprinted statement for that month (they may charge you a fiver or so for this, but it'll probably come through quicker). It depends if you're bothered about it, although don't forget if you use the contractual interest route it could add up to quite a bit. There is a good spreadhsheet in the library where you enter the apr rate they charge you and it works it all out for you. I used 15.9% because that was their standard rate they charged me at the time of my claim. On a claim of £468 for charges going back to August 2003 this added £77 to the claim. The further back the charges the more the effect of the compounded interest.

No difference, except I think there may be a slightly different prelim letter for credit cards that mentions the OFT Ruling. The process including the SAR are the same as with banks. Not sure what you mean by 'which one'.

I'm thinking of sending something like this - Rachel Claridge Assistant Vice President MBNA Europe Limited Stansfield House Chester Business Park Wrexham Road Chester CH4 9QQ 12th January 2007 CARD/ACCOUNT NUMBER: XXXX XXXX XXXX XXXX Dear Ms Claridge, Further to my letter of 19th January stating that I would accept the sum of £350 offered in your letter of 14th December 2006 only as part settlement and on the clear understanding that I would pursue recovery of the remainder with a County Court claim if necessary. I would like to remind you that the total claim minus your partial settlement of £350 left £195.64 still outstanding, the original claim totalling £545.64. I stated in my letter that I was willing to extend this by 14 days to allow you time to repay the remaining amount of my claim in full before taking further action. I called today to confirm that you had received my letter, especially as it was posted over the Christmas period and I have not yet received a reply. I was informed that you received the letter on the 2nd of January and it has been registered on your systems with a deadline for response of the 19th January, 14 working days from the date of receipt. I would like to point out that the interest on the claim has now increased to £91.03, which is a difference from the amount on the date of the original claim of £13.39. This being added to the amount outstanding brings the current amount due to £209.03. If full settlement or confirmation of such has not been received by the 19th January I will proceed without further notice with court action (please note this will result in an additional £30 court fee being added to the total claim amount). I look forward to hearing from you.

Received a letter on 18th December offering £350 in full settlement - standard letter. Replied on 19th December accepting only as partial claim and that I would be claiming the rest. They had alreayd paid off my balance on the card and I shortly after received a cheque for the remainder (balance was less than £350) so they didn't offer it as such, they just paid it anyway. I just called them. They received my letter on 2nd Jan and it's registered on their system to be looked at before 19th Jan (this is probably around 14 working days from the 2nd, I haven't checked). I said that was fine but I would be sending confirmation of any additional interest that has accrued since.

AC, I noticed Tunbridge Wells Court in an earlier post. Are you in Tun Wells? I'm in Southborough!

I do have my own thread about my claim but this may help others so I thought I'd post a new thread. I received a partial settlement (which doesn't seem to match either the claim without interest or anything else, just a round figure) and now I'm chasing the remaining amount. My question is how do I now add the additional contractual interest. Can I just change the claim date on the spreadhseet and add the difference between the original and new interest on the whole claim? If their settlement is for most of the charges then surely I can only add more interest on the outstanding charges? My charges add up to £468, the original interest was £91.03. The settled £350 so I have £195.64 left to claim. If I change the date it adds £13.29 to the interest, so should I now be claiming the outstanding amount plus this difference (Total £209.03)???

I considered this for my Natwest claim (and stil might) because the amount is likley to incur a fairly large court fee and I just don't have the money. However, I would want to know exactly how they would word the claim, what points of law they would use and how they would handle such things as the service defence. The thing that bothers me the most is that it would go to court and they would lose, not paying someone to do it. However, a claim from a legal firm of some kind rather than an individual may have more weight to it and the banks may pay up earlier. I plan to contact a couple of these firms to ask the questions above and see how close their replies are to the way we do things, out of interest if nothing else.

Exactly my thoughts. I don't see an easy way to help people and at the same time make them understand the finer points by restricting access or the other suggestions raised. I think you either let people use template documents and just make it as obvious as possible in big red letters that they need to know what they're doing or make it so that they have to spend more time learning but then risk them just downloading a letter from somewhere else or not bothering. It's a tricky one. And the person who comes along and just downloads the letters, fills in the spreadsheets and thinks it's going to be a quick way to get some cash will be the one who ends up in court. With a claim over 5k it could be a big problem if it ends up in fast/multi track. However I agree with Glenn that it will not end that spectacularly. The banks can easily afford to just pay off the claims that get past their stalling tactics. Their primary concern as a business is to make money and limit risk, which is exactly what they're doing. Why bother wasting money defending claims when you make a lot more money from one day's charges from people happy to pay them than a few hundred cases where people are actually prepared to go all the way. The OFT will no doubt eventually pass a similar ruling to the credit card one, more people will be happy as their charges have been decreased to say £12, and those of us who know better will carry on claiming them back. The only other option I see is criminal prosecution under the Theft, Fraud or similar acts, or someone managing to force them into court for a large claim.

Thanks I'll look into it. NWSM - Thanks for clarifying that. I got a letter from them this morning. I'm not sure if this is related to my letter about the account being in dispute. The overdraft was increased before xmas, with an agreement that they would decrease it back down to its previous level in steps each month. The letter reads - We refer to our recent communication and write to confirm our new agreement in respect of your account. The balance of your account is to be within your overdraft limit of £xxx by 28th February 2007. If you are unable to meet this agreement please contact the above number in order that we can discuss.. bla bla. I'm not sure if they are referring to my letter or not. I need to know where I stand with the account in dispute, and whether it can be kept at its current level until the dispute is settled. I also might try my luck with the Fraud Act to stop additional charges and see how they react to that.

I would have thought so, although £28.44 seems an odd number. Generally they are a round number like £28 or £30. Maybe it's interest?

Thanks for that. I'll have a go and see how I get on.