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Everything posted by chauvesouris

  1. Ha ha. It makes you wonder whether they're bare-faced liars or just incompetent. Looks like it's time to stretch out and wait then. There's not really anything else to be done for a few days (unless you want to send DG a letter yourself (recorded delivery, natch )).
  2. That sounds very sensible. Make sure you include a new copy of your schedule of charges. And good luck!
  3. I just get a load of error messages whenever I try to log in to the wiki. Is it just me? Is there a known problem? Directions and case management are about deciding what will happen next in your claim. At a case management conference you would be putting your suggestions for how you want the case to proceed. This would probably include a request to have their defence struck out as an abuse of process (which would stand a good chance of being accepted if HSBC don't even turn up - which they probably won't). Failing a strike out order, you would be looking for an order for both parties to file their case (the draft directions order that can be found on these forums is a good example of the sort of thing). When is your conference date?
  4. First of all, check your sums - be absolutely sure of the amount you are claiming. Have you used one of the spreadsheets from this site? - 6. Interest calculation spreadsheets Secondly, obviously it is up to you whether you accept any offer, but an offer in full and final settlement means exactly what it sounds like. However, there is nothing stopping you from replying, saying you are willing to accept the offered amount as part settlement, while still maintaining your claim to the rest of the money (but you must make it absolutely clear that this is what you are doing if you go down this route). My advice would be to send them another letter confirming the amount you are claiming, and pointing out their mistakes (include a copy of your schedule of charges so far). I would probably give them two weeks to come up with a satisfactory response or face court action. And it can't do any harm if you say you are willing to accept the offered money, but that you still maintain your claim for the outstanding £1306. But I wouldn't go straight to court yet - it sounds as though they are genuinely mistaken about your claim and it would be better to clear up that confusion before issuing proceedings.
  5. A case management conference will be something like a directions hearing - to decide how the claim is to proceed. What exactly does your letter say?
  6. Congratulations. If only they would fold that easily for everybody! If HSBC's admission came through DG then you should write to them to ask when you will receive payment - it's probably enough to refer to the claim number, account number etc. but it won't do any harm if you include a copy of the judgment. You might tell them that you will apply for a Warrant of Execution if you don't receive prompt payment. If you don't hear from them within a week then it's time to contact the court and see about getting a warrant.
  7. You can save yourself some paper by leaving out UCTA 1977 - it doesn't have anything to do with bank charges claims. I'm not sure why it is included in the bundle stuff on here - perhaps somebody could remove it? It really has no relevance whatsoever (UCTA is only about exclusion clauses - e.g. clauses that seek to limit a party's liability for causing death).
  8. You don't need to worry about the six year limit - we have a couple of very strong arguments that make it irrelevant. But if you have not actually submitted a schedule yet, then as long as the charges add up to roughly the same amount, it should be okay (but bear in mind that the interest on a charge from 2001 will be quite a lot of money). Personally, I would stick with whatever you started with. The daily rate of interest you apply is the total charges (without the 8% interest) at the date you issued proceedings in court x 0.00022 - so for my claim, which amounts to very close to £2,000, it is £0.44 per day.
  9. You will be sending this with your schedule of charges and you will need a covering letter. The covering letter should explain that the enclosed information is being sent in compliance with the judge's directions in the order. It won't hurt if you include the claim reference number and name (i.e. you v HSBC Bank) at the top of the sheet, but, as it will be accompanied by the covering letter, it doesn't seem necessary. Staple the sheets together when you have printed them out - 1. covering letter, 2. schedule of charges, 3. explanation of reason why charges are unlawful.
  10. Hi Gunner, The only bit you probably ought to personalise is the bit about the term in your T&Cs which says they can take money from you when you exceed your overdraft limit (which I put in square brackets and I've now highlighted in red). It just makes your claim clearer and more precise. Have you found your own T&Cs, or have you downloaded any from this site? It's something you ought to do anyway, so if you haven't already done it, now would be a good time.
  11. You certainly have a point about the difference between the practical and the academic legal situation. And it seems we agree on the facts that a) we do actually have very good legal bases for our arguments, and b) because of that, the banks are never going to let it get to court. Perhaps I've not made my position clear; the reason I'll be making a claim just for old charges is that I already have a claim in for all my I think the point is that the only thing the banks have defended so far has been the single (and peripheral) issue case of Halliday (or "Dad" as he calls himself on here) - the single issue being the application of compound rather than simple interest. Any claim that contains one of our core issues (i.e. the actual legality of the charges - whether in terms of penalty clauses or UTCCR) is never going to be contested. So the more issues you can cram into a claim, the better the chances of it getting through. And what I have gleaned from reading the Kleinwort Benson case is that it actually ties the s32(1)© LA mistake argument into the question of the legality of the charges and means the banks can't challenge the extended time limit without allowing for the charges to be looked at. So we win - QED!
  12. I can't help you with the terms for your NatWest account - you ought to post in the NatWest forum for that. But I can confirm that you are bound by the T&Cs of the various accounts you've had with NatWest. Contracts do not have to be written and infact there doesn't even have to be any overt acceptance of any offer. In contract law, it is well established that conduct alone is enough to show that a contract exists between two parties. As for not being aware of what the terms and conditions are, and never having been sent them, it is also well established law that as long as you are made aware that there are T&Cs, then the T&Cs are "incorporated" into the contract (subject to the red hand rule - whereby really unusual clauses have to be highlighted before the contract is made). I am not sure about the lack of notification about the changes to your interest free overdraft. The step down may well be included in the T&Cs for the Student/Graduate account - which you will have agreed to by conduct. The way the law sees it, as long as you are able to see your T&Cs, and as long as there's nothing really unusual about them, it is your responsibility to make sure you actually do look at them. But, whether you knew about the T&Cs or not, if they are unfair then they are invalid and you can therefore claim back any money that's been taken from you as a result of them.
  13. They don't admit the charges are unlawful, but they can still say that they are making you a payment in respect of the recent charges. They could, as they did in Halliday v HBoS, repay the amount, saying that the money was taken in error (without admitting it was unlawful), and then proceed with the rest of their defence on that basis. But as I said above, I am currently taking the view that Kleinwort Benson and the fact that UTCCR is European legislation means that we have a very very strong case to sidestep s5 of the Limitation Act. But all this means is that you should include both sets of charges and then, if they pay off one, you can still proceed with the other and have a very good chance of success. As I said, I am minded to make a claim just for my old charges on this basis. The only thing I am mulling over is quite how susceptible the judges are going to be to the argument that you want the 6 year limit extended because of a mistake in law where there is no settled authority for this being a mistake in law. My current view is that they would be obliged to find out whether it was a mistake in law - meaning a full hearing on the legality of the charges - which, I think, would be a big victory for us.
  14. Thanks CM. I missed the fact that this claim might include recent charges too - that would certainly make it worth going for. However, if the bank have any sense then they'll settle the recent amounts as soon as you ask for them and then you will still be faced with trying for a claim against old charges. However, although I was initially skeptical about the s32(1)© argument for extending the time limit, I have just read the Kleinwort case and it is now absolutely clear to me that this is a great argument. In fact it is a brilliant argument because, in order to defend it, the banks would have to face up to an examination of the lawfulness of the charges because that would be central to the s32 mistake argument - because for this to be a mistake in law, there has to be a ruling on the legality (or otherwise) of the charges. I still think the s32(1)(b) argument would fail (if it ever came to court), but with © and UTCCR, we look to be in a strong position. I am going to research it further (one of the advantages of being a law student and it being summer hols now), but I am seriously considering starting a claim based on this (with UTCCR as safety net back to 1995) which will only include older charges. I'd better dig out my old receipts.
  15. I have written to the Consumers Association to see what their angle is on it. They have a section on their website about reclaiming bank charges, so it seems a little strange that they're not exercising their powers in this respect. It is possible of course that the OFT have told them to hold off while they complete their investigations.
  16. Domino: You will be held to the contract. The contract is the agreement you made for them to provide you with banking services. The terms and conditions will be referred to in their paperwork and that is enough (and there is plenty of well-established case law to support this view) for those T&Cs to be incorporated. On the other UTCCR questions: UTCCR can be used for any charge since 31 December 1994. The Regulations were a result of an EEC (as it was then) directive: 93/13/EEC which had to be implemented by Member States by that date. Technically, following the ECJ judgment in Adeneler, the English courts have to do everything they can to apply European law from its date of implementation - and my argument would be that the English courts have plenty of ways to make sure the legislation is followed. In fact, the 1994 Act wasn't quite up to scratch and the 1999 Act brought it into compliance. It is irrelevant whether the contract and the offending term(s) existed before the Act (or the directive) - it is the term that offends, not the making of the term.
  17. UCTA has no bearing on our claims for unfair bank charges whatsoever. UCTA is about clauses which seek to limit a party's liability for death or injury (not allowed), loss or damage (must be reasonable), or defective goods (must be reasonable). I keep seeing people writing about it as if it is the same as UTCCR but, although there is some overlap, it is not relevant to us. An example of a clause that UCTA would make unlawful would be: "HSBC accepts no liability for any death or injury caused by its cash machines." An example of a clause that would have to meet the reasonability test in UCTA would be: "HSBC accepts no liability for any loss or damage caused by its cash machines." If anybody can think of any way at all that UCTA has any relevance to reclaiming unfair bank charges then I would be interested to hear it (although I will be very surprised if I can't tell you why it doesn't apply). We can all save a few pages if we get to the point where we're printing off court bundles by leaving out UCTA.
  18. There's no hard and fast rule for nudge letters. I think most people would agree that it's good to start with the nudges now that you've sent off the AQ. As for the content of the nudge, as long as it lets them know that you haven't gone to sleep, and it gives them an idea of what you will agree to then it will be fine.
  19. How about something like this:- I contend that:- 1. The charges are payable only on breach of the contract - i.e. when I exceed the agreed overdraft limit. 2. The charges are not a genuine pre-estimate of the cost to the defendant of any such breach. 3. The charges are therefore unlawful according to the rule on penalty clauses in contract law (e.g. Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co. Ltd [1915] AC 79). Additionally:- 4. The contract term [it might be a good idea to say which term this is - you'll need to look at your T&Cs] and the charges contravene the Unfair Terms in Consumer Contracts Regulations 1999. 5. Under reg 3, I am a "consumer", and the defendant is a "supplier". 6. The term is unfair under reg 5. The contract was not individually negotiated. Attention is drawn to the grey list of example terms, specifically at Sch 2(1)(e) - "Terms which have the object or effect of... requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." I am obliged not to exceed my overdraft limit. When I fail in that obligation, the term requires me to pay a disproportionately high sum in compensation. 7. The contract is for the provision of an overdraft facility, so: For the purposes of Reg 6(2)(a), the main subject matter of the contract is an overdraft facility. For the purposes of Reg 6(2)(b), the price or remuneration is the application of interest at the "Standard Overdraft Rate". Neither of these are in dispute. The term which is in dispute is not a core term. 8. Accordingly, under reg 8, the disputed term is not binding on me and the sums taken from my account by the Defendant should be returned. ...anybody like to add anything - I haven't mentioned the SGSA argument. But looking at the directions, I can't see HSBC complying with them - regardless of whether they agree that the charges are payable on breach of contract, they still have to explain their charging and the real cost to them - and that is probably not going to happen. So their defence is going to get struck out.
  20. I wrote and sent my first nudge letter to DG on Tuesday: ------------------------------ Dear Miss Eaves, ######## v HSBC Bank Claim No. 7QZ74455 Date Issued: 18/05/2007 HSBC Account Number: ####### I have received notification from Northampton County Court that you are defending the above claim on behalf of HSBC Bank and that the claim has been transferred to Wandsworth County Court. Please find attached a copy of the schedule of charges which I have submitted to the court. I will, of course, be asking the court to apply the simple interest rate of 8% per annum as per the County Courts Act s69. I appreciate that your client is dealing with a large number of claims similar to my own. I am also aware that they have so far failed to defend a single case in court. I firmly believe that the case based on Reg 5 UTCCR 1999 (and the example in Sch 2(1)(e)) is about as clear cut as the law gets - hence your client's refusal to see the matter go to court. Mindful of the two possible outcomes of this dispute; namely that your client will either offer me a settlement before the case is due to be heard, or your client will lose in court, I would urge you to put it to them that they should settle now rather than abuse the court process in order merely to delay payment. I am willing to consider an offer in full and final settlement of my claim for not less than £2,400.00 + £0.44 statutory interest per day from 18 May 2007 until the date the settled amount is paid to me. This amount includes the detailed charges plus interest, my court fees, and my other expenses (in both time and money) relating to this claim. I am not willing to agree to a confidentiality clause, nor will I waive my right to further action. Yours sincerely, etc. ------------------------------ I don't expect to hear anything back from them. But I am going to write to the court next week and ask them to strike out the defence as an abuse of process, or alternatively to consider making a draft directions order to call HSBC's bluff. I will post it on here when I am happy with it.
  21. I think they only have to keep 6 years of records. But unless my maths has really gone up the chute, June 2003 is less than six years ago, surely?
  22. I'd suggest you start your own thread first. Then the advice you receive will be all for you and less confusing.
  23. Isn't that the one that's here?... Basic Court Bundle
  24. That's brilliant news Santo! Which court was this? My view would be that it's unlikely to make any difference what you do now. But if it were me, I would hold out for the satisfaction of seeing their defence struck out and a judgment entered against them in court.
  25. My notice of transfer came the day after I started worrying that it was never going to come - which I put down to the magical predictions of Lateralus. It was two weeks after HSBC had to submit their defence. I am still waiting to hear from my local court (I've been allocated to Wandsworth) - it will be two weeks on Tuesday since I heard from MCOL.
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