detayo1: Don't worry about their saying they 'decline your complaint'. There's no need to amend the POCs in response to the recent Lloyd's case - that was a wierd decision and Lloyd's seem to have allowed it to get trial by mistake. It was lost at trial because of lack of evidence and argument. It wasn't lost because of the POCs being inadequate. The decision wasn't binding on any other court, and the banks haven't stopped paying out because of it. You don't really need to mention the limitation issue in your claim - you could raise it in reply to the defence if the bank uses limitation in the defence. If you do want mention it, the main basis for saying limitation doesn't apply is that you paid the money under a mistake about the lawfulness of the charges, and/or that the bank concealed the fact that the value of the charges was more than they needed to cover their costs. These are based on exceptions written into the Limitation Act 1980 itself, at section 32(1)(b) and © - you could try (a) as well, depending on the evidence you have:D, but probably easier not to bother: where in the case of any action for which a period of limitation is prescribed by this Act, either- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or © the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. (Another tack you could take is that the bank's owed the money to you, and was liable to pay it only on demand - in which case the event you are claiming for took place only a month ago or so when you sent the first demand and tehy failed to pay. This is based on the decision in N. Joachimson v. Swiss Bank Corporation. It has the advantage of needing no additional evidence, but the disadvantage of possibly requiring some legal argument, and potentially complicating the issue of claiming interest.) This may be a bit more information than you needed. Basically, I'd say use the existing PoC. With a straightforward claim like yours there shouldn't be any problem.

Re which T&Cs: You need all the T&Cs that were in effect during the time you are claiming for. (BTW - the UTCCRs won't apply to any individual terms which took effect before mid-1995, and haven't been changed since.) Re 'charge' v 'fee': this choice of words doesn't have any legal significance. The only relevant factors are (roughly): was the charge/fee taken in response to a breach of contract by you, and was its value more than a reasonable estimate of the cost to the bank of that breach? Those are the conclusions I have come to, anyway.

I've been trying to get an answer to this, but in the meantime everything points towards the fact that all the T&Cs are relevant. First, the agreements are open-ended and either side can terminate on giving the appropriate notice - so it's not obviously totally unjust to vary the T&Cs. Second, the T&Cs I have say that HSBC may vary the T&Cs with 30 day's notice, and you may terminate without any extra charges or interest within 60 days of being informed of disadvantageous changes. There might be some reason why this is invalid or inapplicable, but I haven't found one. Third, this interesting thread: http://www.consumeractiongroup.co.uk/forum/hsbc-bank/27632-phoenix-hsbc.html#post325256 has an account of a district judge's opinion on the matter. So in general, I think it's fairly clear that - as you would expect - changes to the T&Cs do have effect during the relevant period. There might be a kind of 'exception' to this, if the Unfair Terms in Consumer contracts Regulations (UTCCRs) apply only to the T&Cs in operation at the start of the contract. But they apply to terms, rather than only to whole contracts (the clue's in the name!), so I'd have thought that they apply to any new or amended terms introduced after mid-1995, when the first lot of UTCCRs took effect. There's then also the question of whether the first introduction of a new set of T&Cs after mid-95 could mean that the UTCCRs would start to apply to all terms in the new T&Cs, including those that are unchanged - perhaps because the revised terms mean that technically speaking, a new contract is entered into? I have no good information on this, but I suspect the answer is the regs would apply only to new or amended terms. Perhaps a suitably well-informed mod could help us out?

As the ragged sheepshank said - I'm afraid not! Those are the new ones from December 2006 - containing the new story about informal overdraft requests and, er, 'overdraft review fees'. NO! you must get some older ones - even if not from the time you opened your account! Here's what is available so far, pending the CAG admins getting some up on the forum. They are all relevant and you may as well include them all: 1997 (extract sent by DG on behalf of HSBC): http://www.consumeractiongroup.co.uk/forum/hsbc-bank/55086-stax68-hsbc.html#post846275 2004,2005: http://www.consumeractiongroup.co.uk/forum/hsbc-bank/90721-i-need-your-help.html#post840881 cheers, stax

RTV - may I suggest you write to HSBC head office and ask them to supply the T&Cs, referring to the reply you have had from the call centre manager, and asking whether they would like to comment on the claim that it is impossible to supply them. If they refuse a second time - and at the top level - then the story might be of interest to the media. Even if they don't get back to you, they would look pretty bad with one refusal already on record... stax

My tuppence worth: I wouldn't have thought you need amend your claim as I reckon these are porbably ancillary or subsidiary or subordinate contracts (don't know the terminology) - i.e. fall under the umbrella of the original contract. In fact if you have such a document for each time your OD limit changed, then these would presumably(!) override any conflicting standard terms, and since everything hinges on the terms of the overdraft I would have thought these docs should be enough to rely on. If you do apply to amend, you will have more delay and as I understand it its likely they will be offered the chance to submit a new defence = even more delay. NB: I am no expert so all this is just a fairly confident guess. If you want to get the T&Cs, and you haven't (yet) been allocated to the small claims track (you can't do it in the SC track), then make a Part 18 request asking for all the T&Cs that have ever applied to your account. HSBC provided me with quite a bit of info on that basis - though they only gave me excerpts of T&Cs, so you might want to make it clear that you want the whole lot inc. front and back covers. If you might want to get any further info by this method you should include it from the start as you're not supposed to issue more than one. And don't include too much or be long-winded or include anything that isn't clearly relevant as you're not supposed to do so and they will jump on a achance to use this as an excuse to ignore it. Depending on what you are claiming, and how fast they seem to be moving, you might be able to speed the process up by applying for summary judgement on the basis that their defence cannot succeed on the evidence, esp. once you have the T&Cs. If your claim is straightforward, you could even combine this with an application to strike out the defence on grounds of abuse of process. As you know there's some stuff on my thread that may be relevant - but don't forget that fine words butter no parsnips, I haven't won yet, and the details and circumstances of my claim mean I may not be submitting my application after all - obviously, use your own judgement. Any application costs £35I think (might be £30) - and may also have some effect on whether the judge thinks you are doing your best not to bother him/her... Again, I don't necessarily know what I'm talking about so these are just ideas for your further research and not advice! Lastly, I may be being thick but I don't get what you take "They also state that this limit is INCLUDING any charges, interests and costs" to signify. And do they actually say 'costs?' What do they mean? cheers, stax

I'm not convinced about this business of only the first set of T&Cs being relevant. Why do you say that's the case? BTW from 1 Dec 2006 they completely overhauled all the relevant terms to fit the story of an informal OD request and a fee for 'reviewing' the OD, so yes they obviously didn't think that 'should' was good enough. But that's not any sort of evidence really I don't think. stax

Can anyone post a copy of Limpgrange v. Bank of Credit and Commerce International S.A. and Others, [1986] F.L.R. 36 ? Many thanks. While I'm scrounging law reports, I could also do with a Parr's Banking Co. Ltd. v. Yates [1898] 2 Q.B. 460 if anyone would be kind enough to sort me out . cheers stax

Nice idea, but I don't think that it will work. If we're not talking about a guaranteed cheque, then you could draw the analogy with a forged banknote. A crime is committed when someone uses it to get goods. You wouldn't say that by refusing to accept a forged banknote when the victim tries to pay it in, the bank is complicit in the crime. The victim is already out of pocket when they accept the note, they just don't find that out until the bank exercises its right not to accept it. There are some cases which are possibly of some use as they give a precedent for unauthorised ODs being in breach of contract even though the bank allows them to happen (like in our cases) - though in those cases the point was that a guarantee card was used, so the bank 'felt itself obliged' to honour the cheques. They are pretty dodgy decisions (in my humble opinion) which are based on a provision from the 1968 Theft Act which is meant to prevent people deceiving the bank into lending them money. The judgements involved saying that the defendant 'deceived' the shopkeeper (or whoever) into thinking that issuing the cheque was within their authority (yeah right, when the cheque is guaranteed the shopkeeper really cares about the details of your bank balance ). And they then ruled that by means of that deception the defendants got the bank to lend them money (i.e. extend their OD). So the party supposedly deceived was not the same party from whom the pecuniary advantage was got, which is a bit rum if you ask me - especially as a reason for banging someone up. Here's a very brief summary of one of the main cases: 1982 WL 221821 (CA (Crim Div)), [1982] Crim. L.R. 369 R. v Waites Court of Appeal (Criminal Division) 15 February 1982 Abstract: W used her cheque card to create an unauthorised overdraft of more than GBP 850. Summary: Held, dismissing W's appeal against convictions of obtaining a pecuniary advantage by deception, contrary to the Theft Act 1968 s. 16, that W had been "allowed" to borrow by way of overdraft within s. 16(2)(b), even though in doing so she was acting in breach of contract, and had therefore obtained a pecuniary advantage. Legislation Cited: Theft Act 1968 s. 16 Followed by: R. v Bevan (David John), (1987) 84 Cr. App. R. 143; [1987] E.C.C. 372; [1987] Crim. L.R. 129 (CA (Crim Div))

P.D. - Cheers! PM - The idea is that the term still imposes a contractual obligation even though it uses the word 'should' rather than 'must'. The appendix is referred to by the argument of part 5, which seeks to show that 'should' does impose an obligation in the case of the term about going over the OD limit. I have to deal with the fact that 'should' doesn't always impose an obligation, because a judge is bound to think of that - and in a hearing teh bank would make much of it. So I point iout that in those cases where 'should' does not impose an obligation, it is always obvious from the context - i.e. the term in question makes it clear that the 'should' is just advice or a recommendation, by uncuding an 'if' or a 'because' (actual or implied). I haven't really expressed teh argument as well as I would like yet, but the appendix is supposed to show examples where 'should' is used in this way, and to show that in those cases there is always an 'if' or a 'because'. If there isn't some such reason or condition given, I want to argue, the only way to interpret an imperative 'should' in a contract is as imposing an obligation. Not sure if that is much clearer actually. re the fraud statute, I can't see criminal proceedings getting anywhere on that basis and they wouldn't take the threat of them seriously. But evidence of their dishonesty might be useful in proving deliberate concealment, or the tort of deceit, or various other stuff to do with fiduciaries and constructive trusts, which I'm still trying to get my head around...

lookinforinfo - thanks for your reply. I was thinking specifically of a term which was changed in 2002 from 'you must always stay within the limit' to 'you should always stay within the limit'. I think it is possible that the bank (if forced into a corner) would argue that the second version does not impose an obligation, and that therefore there is no breach. They would then argue that it is well-established that unless the triggering event is a breach the charge cannot be a penalty. While there is every reason to think that the penality of the charges can be established, I'm thinking of contra proferentem (and possibly other similar provisions, e.g. i think there's something in the Supply of Goods and Services Act) as a sort of 'long stop' since I think the best the bank could do would be to cast doubt on whether 'should' imposes a contractual duty. I've also taken on a bigger burden of proof as I'm applying for summary judgment. So - as I understand it - I don't just need to win the case on the balance of probabilities, I need to show their case is basically hopeless. If you're interested, I'm working on the argument here, and would be glad of any advice you could give: http://www.consumeractiongroup.co.uk/forum/hsbc-bank/55086-stax68-hsbc-2.html#post857370 cheers, stax P.S. I've been looking at what scraps I can find about it ont' internet, and the decisions seem to tacitly assume that the profferor of the term is also the person seeking to rely on it, and that the term as they want it interpreted either reduces their obligation, or excludes their liability, or imposes an obligation on the other party. I haven't found a case with suitable facts or a suitably generalised dictum to resolve the question of what happens if these assumptions don't apply. As I say, I've only looked at scraps - and in case you haven't guessed, I'm not legally trained :o, so I realise I may be talking er, "through my hat", but I can only go on what I've managed to work out so far. Any guidance you could give much appreciated.

Appendix A: List of terms in which the word ‘should’ does not signify a contractual obligation. All terms are taken from the August 2005 version of the respondent’s Personal Banking Terms and Conditions. It is submitted that the reason such clauses do not signify a contractual obligation is that in each case the imperative is conditional on some further aim or other reason, is explained by some further consideration in light of which it becomes clear that it is merely prudential and not obligatory. This is a fixed term deposit and you should not open a HIDB if you may need your money before the end of the term you have chosen. You should not make deposits if you may require access to your funds before the end of the term. To use our Automated Service you will need a touch tone telephone and a security number. If you have a password with us, you should contact us to convert it into a security number. You should not use cordless or mobile telephones operating on an analogue network to telephone us. We are not responsible if any one else intercepts or overhears any telephone conversation between you and us. You should only give us your email address, home, work or mobile telephone number, if you are happy for us to contact you in these ways services and other means. [sic] You can also do this by signing a Power of Attorney but you should take legal advice before doing so. If you authorise another person to operate your account then you will be responsible for their actions or omissions as if they were your own. If you want to know when you will be able to withdraw items paid into Foreign Currency Current Accounts and our Foreign Currency Instant Access Savings Accounts you should ask us. If you know a payment is to be deducted from your account and you pay in to cover it you should tell us as we will try to ensure the payment is met by these funds. To cancel a Direct Debit, or other regular payment, you should also tell the party that collects the payment from your account.

This is still in progress and it just gets longer and longer. If anyone can give me a sanity check on the whole enterprise, I'd be very grateful! In particular, do I need to cover all the T&Cs throughout the life of the contract, or just the situation when I first opened the account? Anyone? 5. Lack of any real prospect of the defence succeeding on the evidence It is argued in section 4 above that clause 4(d): "the charges are not default charges and, accordingly, cannot amount to a penalty" is the only viable substantive statement in the defence. Even if the arguments of section 4 were not accepted, the defence relies on this clause. This is because there is no other argument against the charges being penalties. In particular, it is not pleaded in the alternative that the charges are liquidated damages or in some other way lawful default charges. The defence does not even include a bare denial that the charges are disproportionate or a statement that they are capable of reflecting a genuine pre-estimate of loss. If the defence is to have any real prospect of defending the claim, then, this statement must be sustainable. It is clear that a 'default charge' in this context means a charge or fee imposed in response to a breach of contract. The proposition that the charges are not default charges is therefore disproved by the attached excerpt (marked "Item 6") from the 1997 Terms and Conditions governing the account. This is the earliest of a set of excerpts from Terms and Conditions furnished by the respondent in partial compliance with a Part 18 request for all relevant versions of the Terms and Conditions. To show tha the charges are default charges it is necessary to examine the relevant provisions in force in 1997. (All underlining is added by the applicant for emphasis) 7.3 You must not go over any overdraft limit that is agreed with us unless you get our agreement first. This entails that that the customer is under an obligation not to go over an agreed overdraft limit without authorisation. If the charges were levied in response to breach of this obligation, then they are default charges. 7.7 If we pay a cheque or other item you issue and, as a result, your account goes overdrawn or goes over your agreed overdraft limit, this does not mean that we have agreed an overdraft or an increased limit. You must immediately pay enough money into your account to cover the overdrawn amount or the amount that is over your agreed limit. This again entails that such an overdraft is not one which falls under the agreement, or a modified agreement, between the customer and the bank. It is unauthorised and in breach of contract. Further, if it were to be argued that the 'fee' is not payable not on the occurrence of the unauthorised borrowing but instead on failure to repay the excess borrowing immediately or within a given time, such argument would not show the fees to be other than default charges, since such a failure to repay is also a breach of contract - i.e. a default. 7.9 As well as charging interest for unauthorised overdrafts, we may also charge a fee to cover the cost of the administration involved (see the relevant price list). This clause is unequivocal in stating that the 'fee' charged is to cover administration costs arising from the unauthorised overdraft. It has therefore been demonstrated that under these terms and conditions the charge amounted to a default charge, since they were levied in response to a breach of contract. While this should be sufficient, given the arguments in section 4, to show that the defence pleaded cannot succeed, there remains the possibility that those arguments might not be taken to have completely ruled out the possibility that the respondent may argue that the charges are a fee for a service and do not arise as payments for breach of contract. Accordingly, this issue will be addressed. Since the fee is specified as to cover the cost of the administration involved it cannot be a fee for a service, since a payment to cover another's costs is not the same as payment for receipt of a benefit. The clause specifies that - as one would expect - the price of the service of lending money takes the form of interest. The bank's performing administrative tasks and incurring costs as a consequence is an internal matter of no interest to customers and does not in itself constitute a service. It is not denied that provision of a service may entail some administrative overhead. In such a case, however, it is then that distinct service, and not the administration involved, that the customer purchases. It is submitted that the test of a 'service' in this context might be a question such as: would a normal person choose to pay for this activity to be performed? It is argued that no normal person would choose to buy a 'service' which consists only of the performance of some unspecified internal administrative tasks. These terms remain substantially unchanged in subsequent versions up to and including that of July 2002 (excerpt attached, marked ‘Item 7’), except for the replacement of the final sentence of clause 7.7 and of its renumbered successors with: You must immediately pay enough money into your account to cover the overdrawn amount or the amount that is over your agreed limit, or contact us to discuss the matter, which provides an alternative to immediate payment, but not an alternative that was ever pursued by the applicant. In the extract from September 2002 (‘Item 8’) though, the wording of clause 7.3 (renumbered 7.4) was changed: 7.4 You should always stay within an agreed overdraft limit unless you get our agreement to change this first. However, in the Terms and Conditions issued in August 2005 (attached as ‘Item 9’), a different clause 7.4 reads: 7.4 We will give you a letter setting out the terms of any agreed overdraft. You must stay within the agreed limit. The chosen terminology has reverted to ‘must’. (A copy of these terms and conditions were supplied by the respondent in reply to the applicant’s Part 18 request – the only set of Terms and Conditions to be supplied in full – but were confusingly and incorrectly labelled ‘Terms and conditions 2004 – 30 Nov 2006’.) The applicant submits that the change from 'must' to 'should' and back again to ‘must’ is merely verbal. Whether the word 'must' or should' is used, the effect is to instruct the customer to do or refrain from the action in question. In some cases, a term including the word ‘should’ might be regarded as merely offering advice which the customer is not obliged to take, but only, it is submitted, if the effect of the term is to make the ‘requirement’ conditional on some aim or preference of the customer. A list of examples of such terms is given in appendix A. If no such reason for compliance is specified, the use of should is categorical. There can be no purpose to the inclusion of a clause stating that a party ‘should’ do or refrain from some course of action except to impose an obligation. The new clause 7.4 consists simply of a statement that the customer should not do something. It must then be interpreted as imposing an obligation. At the time of this change from ‘must’ to ‘should’, clause 7.7 (renumbered 7.9) retained its previous wording, including the use of 'must'. So the support offered to the applicants argument from that wording remained in force throughout. (See Item 8.) In any case it is submitted that a consumer cannot be expected to appreciate some supposed difference between the impact of the words 'must' and 'should’. Furthermore, the practical effect of the clause remained unchanged throughout, despite the terminological switch and its reversal. However, clause 7.9 (renumbered 7.13) was revised to read as follows: 7.13 As well as charging interest under 7.10, up to 28 November 2002, we may also charge our applicable fee for overdrafts not agreed in advance for any statement period when your Bank Account is overdrawn without an agreed overdraft or goes over any agreed overdraft limit, whether for one day or more, to cover our management and administration costs (see the relevant price list). From 29 November 2002 we will be replacing this fee with a fee for reviewing overdrafts not agreed in advance. We may charge this fee on each occasion that your Bank Account goes overdrawn, or further overdrawn, without an agreed overdraft. We may also charge this fee when your Bank Account goes over, or further over, any agreed overdraft limit. This fee is to cover our management and administration costs. (see the relevant price list for details of the fee). The claim that the fee for overdrafts not agreed in advance is being replaced by an (otherwise indistinguishable) fee for reviewing overdrafts not agreed in advance might appear to support the contention that such charges henceforth represent a fee for a genuine service. But the claim that This fee is to cover our management and administration costs remains, and as argued above militates against viewing the charges as a genuine fee for a service. Further, the supposed, rather arcane, change in the character of the charge is not acknowledged elsewhere. Another clause – 9.2.2 - was not included in the excerpts released by the respondent, but appears in other copies of terms and conditions which incorporate the change, for example those effective from 1 October 2003 (‘Item 9’) and from 30 December 2004 (‘Item 10’), and those issued in August 2005 (‘Item 7’): 9.2.2 You must not use your debit card to borrow from us on your Bank Account unless you are 18 or over and an overdraft has been agreed separately.…[provisions applying to other types of account omitted]…If your account goes overdrawn or, for Bank Accounts held by customers who are 18 and over, it goes overdrawn without an agreed overdraft or goes over any agreed overdraft limit, we may charge interest (if applicable) at our Standard Overdraft Rate. We may also/alternatively charge our applicable fee for overdrafts not agreed in advance. Please also see clauses 7.10, 7.12 and 7.13. The first sentence quoted refers to borrowing where an overdraft has not been arranged ‘separately’ – which can only mean where an overdraft covering the amount borrowed has not been arranged in advance. It clearly states a contractual duty not to use a debit card to effect such borrowing. The second quoted sentence states that in addition to interest (which is the price of borrowing), the bank may charge a fee for overdrafts not agreed in advance. The clause does not specify a fee for ‘reviewing’ an overdraft. It is submitted therefore that the advertised replacement of the overdraft fee with a review fee is illusory making no real change to the contract and certainly no change to the operation of the bank accounts governed by it. It is submitted that, even if there should be any doubt that the above argument shows the charges to be penalties, there is a number of legal bases which require that such doubt be resolved in favour of the applicant. (then a list of rules of construction, inc: the case that says the decision whether something is a penalty clause is a matter of construction based on the contract in context; the contra proferentem rule, the Supply of Goods and Services Act 1982, possibly the 1994 and 1999 UTCCRs, any other stuff I can find....) In light of the evidence the charges can only be regarded as default charges and the only viable ground of the defence pleaded must therefore fail. The respondent's attention is drawn to Civil Procedure Rule rule 24.5(1), which states: If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must: (a) file the written evidence; and (b) serve copies on every other party to the application, at least 7 days before the summary judgment hearing. Statement of Truth

4. Failure to disclose reasonable grounds for defending the claim Each clause of the defence will be addressed in turn: Clause 1: The Claimant?s account is governed by the Defendant's personal and/or business banking terms and conditions. The defence thus does not properly identify the type of contract under which the account is operated. This suggests that the defence is a standard defence issued witout regard to the facts of the case, contrary to the requirement of reasonableness. Further, this clause cannot be read as an attempt to plead alternatives since there is no possibility that the court might rule that the account is a business account, and in any case the rest of the defence contains no alternative arguments addressed to the difference between a business and a personal account. The clause is therefore ambiguous and hence incoherent. Clause 2: Pursuant to the Defendant's terms and conditions the Defendant is entitled to make a charge for its services as set out in the Defendant?s price list, including an overdraft review fee for considering whether to provide and providing and [sic] overdraft. This is irrelevant, since the claim does not and need not address the issue of the existence of any such entitlement. The claim states only that the charges are in fact penalties, or that if they are not, the specific price charged is unreasonable within the meaning of the Supply of Goods and Services Act 1982 ("SGSA"). In any case the clause is incoherent, since it refers to an overdraft ‘review’ fee, but then describes the fee as payment for ‘considering whether to provide and providing’ an overdraft. Neither of these activities is consistent with the fee’s being an overdraft ‘review’ fee since a review always takes place after the event or fact being reviewed. This is not a merely verbal point, since such an inconsistency could only arise in an inaccurate, possibly fabricated, account. Clause 3: The defendant denies that the charges applied to the claimant?s account amount to penalties at common law and/or unfair contract terms for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs). The inclusion of this clause reveals that the defence is a bulk response to many other claims, which has been applied indiscriminately to this claim. It is not relevant, since the statement of claim makes no mention of the UTCCRs. In any case, the clause can be seen to be irrelevant because the contract was entered into before the 1999 Regulations came into force. Clause 4: [a] The charges applied to the Claimant?s account are reasonable and are properly and fully disclosed in the defendant's terms and conditions and published price list. The charges represent [c] the contractually agreed [d] price for the services [e] the UTCCRs are not applicable to them; alternatively, they are not unfair contrary to the UTCCRs. [f] Further, the charges are not default charges and, accordingly, cannot amount to a penalty. a. The claim that the charges are 'reasonable' consists only of a bare denial of the claimant’s assertion (made in the alternative) that they are unreasonable b. The issue of whether the charges are 'properly and fully disclosed' is irrelevant to the issue of their status as penalties, and also to the applicability of the requirement of reasonable price in the SGSA, which turns on the issue of prior argeement, not on the issue of disclosure, full or otherwise. The use of the term 'properly' has no ascertainable import since no indication is given as to how the adjective is to be interpreted in legal terms. It is at best a bare denial of undefined impropriety. c. The claim that the charges are contractually agreed is either incoherent with Clause 1, or irrelevant. If the claim is meant to be taken as stating that the charges in question were individually negotiated or were brought to the attention of the applicant at the time of entering into the contract, then the claim is inconsistent with the (accurate) statement in clause 1 that the account is governed by the defendant’s personal banking terms and conditions and published price list - which are subject to unilateral alteration by the respondent, and which had been altered between the inception of the contract and the earliest charge cited in the claim. If, on the other hand, the claim is to be taken merely as stating that the charges arise under the contract, by reference to those standard terms and conditions and published price list, then it is irrelevant since the applicant’s claim does not and need not deny it. d. The claim that the charges represent the ‘price for the services’ is incomplete since it gives no indication of what service is meant. Further it is irrelevant since the claim explicitly contemplates this possibility as one alternative, and therefore need not deny it. e. Reference to the UTCCRs is irrelevant for the reason given above in response to clause 3 of the defence. f. This is the only coherent, reasonable, relevant and adequately precise statement in the defence. It states that the charges are not penalties and gives a reason for the contention: that the charges are not default charges. Clause 5: Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the Claimant is entitled to the relief claimed or any relief. This clause discloses no grounds for defending the claim.

3. Failure to comply with a rule or practice direction The respondent has failed to comply with Civil Procedure Rule 22.1(6)(a) which states that the statement of truth attached to a statement of case must be signed by (i) the party or a litigation friend or (ii) the legal representative on behalf of the party or litigation friend. The signatory's post is given as 'Legal Executive' - which implies that she is not the defendant or capable of signing on behalf of the defendant by virtue of holding a senior position in the organisation. If her signature is to be in compliance with the Rule, then, it must have been made in the capacity of legal representative. Civil procedure rule 2.3(1) provides that a 'legal representative' must be a barrister, a solicitor, solicitor's employee or other authorised litigator as defined in the Courts and Legal Services Act 1990. The signatory is a legal executive, and therefore, it may fairly be inferred, not a barrister or solicitor. Further, headed paper issued by DG Solicitors (a redacted copy of a sample of which is attached, marked 'Item 4') includes the legend: 'This firm is the practicing name of solicitors employed by the HSBC Group.' This entails that DG Solicitors do not themselves have employees - so the signatory is not a solicitor's employee. Practice direction 22, which supplements the Rule and at 3.11 provides examples of its application, confirms that "a person who is not a solicitor, barrister or other authorised litigator, but who is employed by the company and is managed by such a person is not employed by that person and so cannot sign a statement of truth". The only remaining potential source of authority to sign is the status of 'other authorised litigator'. The Courts and Legal Services Act 1990 provides at S119(1) that 'other authorised litigator' status depends on possession of a right to conduct litigation granted by an authorised body. The body governing legal executives is the Institute of Legal Executives (ILEX), which is an authorised body within the meaning of the Act. However, on 15 January 2007, the President of ILEX made the following statement: "...Government recognised us as an organisation able to award suitably qualified Legal Executives the right to conduct litigation, and we are working on an appropriate training scheme to enable that to happen." This quotation is taken from an ILEX press release (ILEX - Press Office) issued on 30 January 2007. A printout is attached with the relevant passage marked, labelled 'Item 5'. Unless the training scheme mentioned was introduced and approved, and the training undergone by the signatory, within ten days of the announcement - which the applicant submits is for practical purposes impossible - litigation rights cannot have been granted to the signatory before the time of signing. The applicant therefore believes that the signatory had no authority to sign a declaration of truth under Civil Procedure Rule 22.1(6)(a).

2. Abuse of process The defence lodged by the respondent represents an abuse of process and/or forms part of a course of action which constitutes an abuse of process. This is the most serious of the allegations the applicant makes. The claimant contends that the respondent has no intention of allowing this matter to reach adjudication unless, perhaps, the applicant should make a technical or procedural error. Further, it is asserted that this forms part of a consistent pattern of conduct by the respondent in relation to other claims with essentially the same subject matter. The applicant knows of 77 recent such claims that have been settled before adjudication and that can be identified by claim number. The majority of said claims are known to have been acknowledged by the respondent, with an intention to defend asserted. In no case is it known that such an intention was not asserted. In many of the 77 cases, and in almost all of those entered in the last nine months, a defence was entered. A schedule of these cases is attached, marked 'Item 2'. A legal precedent exists for the court's taking judicial notice of this list: Mullen v Hackney London Borough Council; CA (Civ Div); [1997] 2 All ER 906, [1997] 1 WLR 1103, 95 LGR 587, 29 HLR 592. A report of the case is attached, marked 'Item 3'. The applicant, despite extensive investigation, has been unable to find any record of a case of this type in which the respondent has allowed the issue to reach a contested hearing. It is extremely improbable that such a case could have been heard in recent years without national press attention. On the strength of this evidence, the applicant contends that the lodging of the defence forms part of an observable strategy of delay in settling the claim. To rebut claims of obvious lack of motive, and not as a proven allegation, the applicant suggests that such a strategy would plausibly be aimed at increasing the likelihood that claimants will be sufficiently discouraged, distracted, disorganised or impecunious to abandon their claims or agree to settle at a substantial discount. As further evidence of the respondent's contemptuous attitude to the court system in pursuing a policy of strategic delay in this case, the claimant testifies to the accuracy of the following timetable laying out all relevant non-privileged communications between the applicant, the respondent and the court: 28 November 2006 The applicant hand delivers a letter demanding payment and requesting a response within two weeks. 13 December 2006 No acknowledgement or reply having been received from the respondent, the applicant hand delivers a letter before action requiring a response within 7 days and full compliance within 14 days. 18 December 2006 The respondent acknowledges 13 December letter before action, apologising for delay and indicating a response time of 6 to 8 weeks. 26 December 2006 The applicant files an online money claim, incurring cost of £250. 2 January 2007 The respondent writes a letter in acknowledgement of the applicant's initial (28 November) demand, indicating that no further response can be expected before 29 January. 3 January 2007 The respondent files acknowledgment of claim and intention to defend the whole of the claim. It may be seen from this schedule that the bank did not provide any substantive response to the claim before legal proceedings had been instituted at some cost to the applicant. Further, the following timetable shows that the respondent delayed submission of its allocation questionnaire, imposing on both the resources and the indulgence of the court and delaying the progress of the claim for a further three weeks: 14 February 2007 On the deadline for filing allocation questionnaires, the applicant does so, incurring cost of £100. 6 March 2007 The court issues a conditional order to strike out the defence without a hearing unless the allocation questionnaire is returned with 7 days. Delay in submitting allocation questionnaires is a feature of several of the most recent cases listed in the schedule of known settled claims ( 'Item 2'), suggesting a recently emerging pattern of behaviour. Further, the applicant submits, the deficiencies identified below under headings (3), (4) and (5) show that the defence was not prepared with proper regard to the particulars of the claim, the facts of the case or the rules of procedure. The applicant contends some or all of the representations under headings (3)-(5), severally or in combination, provide independent grounds for striking out the defence. But it is also contended that said representations can and should be regarded as evidence that the standard defence entered by the respondent is a sham not intended to be tested in court and of use only as a ploy to delay payment of the sum claimed. This evidence is particularly compelling when viewed against the background of an established record of delay in other cases, increasingly many defended and invariably followed by settlement before trial, and to the failure in this case to respond to the claimant's demand for payment until after legal proceedings were initiated. For these reasons the applicant requests that the defence be struck out as an abuse of process or as otherwise likely to obstruct the just disposal of the proceedings. This strategy of the respondent and other banks is, notoriously, causing considerable congestion in the courts, contrary to the overriding objective in both its intrinsic and extrinsic (resource-conserving) aspects. It is respectfully suggested that the court may wish to consider what action may be taken against the respondent or their legal staff to curb this abuse. A news item (from BBC NEWS | Business | Judge attacks 'time-wasting' bank) is attached which reports a particularly flagrant example by a different bank, marked 'Item 3'.

1. The addendum does not introduce any new issue The addendum has already been sent to the respondent with a demand for payment. It is attached to this application marked 'Item 1'. The addendum consists of four new entries to the existing schedule, corresponding to the four months which have elapsed since the claim was entered. The information contained in these rows, and its subject matter, is of exactly the same type as that in the existing rows. It is submitted that the basis of the central issue in the proceedings may be regarded as, or is analogous to, a continuing cause of action, with the new entries simply recording an update to that cause of action. No new legal issue is introduced, and the factual information is of the same type and provenance as that already contained in the schedule. For all practical purposes, therefore, the proposed amendment amounts merely to an amendment of the amount claimed. The revised statement of case which results from substituting only the items necessary to incorporate the new charges (viz., 1. the end date of the charging period and 2. the monetary amounts) is attached marked 'Item 1A'. There is nothing in the new entries, the applicant contends, which could provide any new grounds for defence. Nor could the additional entries necessitate any significant further investigation by the defence, or threaten any existing ground of defence which might until now have been relied upon. The amendment does not therefore have any prejudicial effect on the defence. Additionally, the new entries could not have been included in the original claim and their exclusion was therefore due to no fault of the applicant. The applicant respectfully requests that this application for amendment is considered prior to and independently of the following application to strike out, and submits that there is no reason either to refuse permission for the amendment or to conduct a hearing in regard of the proposed amendment. The applicant further asks that no order be made requiring or permitting the defence to be amended consequent to a decision to permit the requested amendment, or that if such amendment to the defence is to be permitted, that it be restricted to such amendments as are demonstrably necessitated by the addition of the new charges to the schedule.

Notice of application to amend a statement of claim under Part 17 of the CPR and of application to strike out a defence made under Parts 3 and 24 of the CPR and of application for summary judgment made under Part 24 of the CPR Part A: I, XXXXXXXXXX the claimant intend to apply for an order (a draft of which is attached) that: 1. The attached Addendum to the Schedule of Excess Charges and Interest be included in the applicant's particulars of claim, with the sums claimed in the applicant's statement of case being amended accordingly pursuant to CPR 17.1(2)(b). In relation to this is requested that the court exercise its discretion under CPR 23.8© to grant permission to amend without a hearing; and that no order or direction be issued under CPR 17.3(1)(a) requiring or permitting amendment of the respondent's defence. 2. The respondent's defence be struck out pursuant to CPR 3.4(2)(a),(b) and/or ©; and/or CPR 22.2(2). 3. Summary judgement, including an order for costs, be granted in favour of the applicant as sought in the amended Particulars of Claim, under CPR part 24. because 1. The addendum does not introduce any new issue - the basis of the claim is a continuing situation and the addendum merely provides grounds on which to update the claim's value. 2. (CPR 3.4(2)(b)) The respondent's defence constitutes an abuse of process or is otherwise likely to obstruct the just disposal of proceedings. 3. (CPR 3.4(2)© and/or CPR 22.2(2)) There has been a failure on the part of the respondent to comply with a rule or practice direction. 4. (CPR 3.4(2)(a)) The respondent's defence, or part thereof, discloses no reasonable grounds for defending the claim. 5. (CPR 24.2 (a)(ii)) The applicant believes that on the evidence the respondent has no real prospect of successfully defending the claim. 6. (CPR 24.2 (b)) The applicant is aware of no other compelling reason why the proceedings should await disposal at trial. Part B I wish to rely on the attached affidavit Signed XXXX Applicant

OK, I'm planning to submit the following application notice first thing on Tuesday. I'd really, really appreciate any advice anyone can give me on any of these questions: whether it has to be on a form N244 or if that is just a matter of convenience what 'level of judge' I should specify whether there is any point asking for it to be considered without a hearing, or by telephone (partly thinking of costs here) whether it's hopelessly longwinded whether it's likely to be unacceptable to combine the application to amend with the app to strike / for summary judgement whether I could also add in an application for enforcement of my Part 18 request - perhaps saying it need only be considered if the application for summary judgement is unsuccessful whether this whole thing is just likely to annoy the judge - since I may have to go to court, I don't want to do that since it could be the same judge/they might chat about it etc. whether it is even tactically a good idea to submit it whether it makes sense whether the affidavit contains the right kind of material: it includes a few assertions which I am testifying to; documentary 'evidence' (which I suppose I am also testifying to the authenticity of); allusions to notorious facts and other stuff which I hope can be taken judicial notice of; some rudimentary legal argument; and argument about the construction of the contract. I'll post the thing in chunks to improve the chances of at least someone reading at least some bit of it. cheers, stax

Hmmm, I'd say they are taking a pretty relaxed attitude to the facts when they claim they are 'unable' to supply them. I'll try that with the Revenue I think: sorry, I'm afraid I'm unable to pay tax for any year before 2006-7 as that was the last time I filled in a tax return. Should work a treat. HSBC's Legal department ('DG Solicitors') were able to send me extracts of old terms and conditions, I notice. Maybe Ms Harries means that her department isn't able to supply them (because they are bound by company policy). I suppose it might be worth trying the organ grinder rather than the monkey - which I suppose means writing to head office, though I don't know who exactly you would address it to. Then if they said they were 'unable' to consider it, they'd be making the unbelievable claim that it was impossible for the company to do it. And if they decided not to pretend it's impossible, you'd have it in writing that they have refused outright to supply the info. Either way I imagine it might be of some interest to some section of the media: 'HSBC says - your contract is none of your business,' or whatever. BTW they like claiming to be 'unable' to do things - they told me they were 'unable' to consider my claim for charges more than 6 years old. They now seem to have magically acquired an ability to do so, since they have openly and specifically offered to pay them all back. QUESTION - Does anyone know if there is any law under which they are required to provide details of past terms and conditions - I imagine that data protection wouldn't do it as they would claim that the T&Cs aren't stored electronically against the customer's record. But you would have thought there'd be some comon law rule or something that prevents them trying to keep the details of a contract secret from the other party.

Can anyone help me? I think I get the idea of the contra preferentem rule - that if a contractual term is ambiguous, then the ambiguity should be resolved against the interests the party at whose instigation it was included in the contract (which for us is always the bank as they write the entire contract and we can't negotiate it.) Assuming this is near enough for our puposes, my problem is how this would apply to the argument about whether there's a contractual duty not to go over the overdraft limit. The rule says that an ambiguous term is to be resolved against the bank, but might taht be interpreted as meaning that it should be resolved so as to minimise the obligations owed to the bank under the contract? If so, then presumably a term which might be thought to give us an obligation not to go over the OD limit would be interpreted so that it didn't impose such an obligation, which would then mean that it worked in the bank's favour in respect of the bank charges issue, as unusually we are in the position of arguing that a certain term does impose an obligation, while the bank wants to argue that it doesn't. In other words we are arguing to increase rather than decrease our contractual liability. Hopefully, if there was a situation in which the contra proferentem rule came into play at all, the court would just decide (a) who the proferror is - i.e. the bank - and then (b) which decision would work against them in the context of the suit; and then go with that decision. But I'm not sure that's how it would work. Anyone have any ideas? cheers, stax

Photoman: yes, I may do that - perhaps after I've posted my draft application - which I could do with some advice on! Lateralus - I've had a look at Bong's thread and I know she got a settlement after she entered an application to strike/for summary judgement. I've had one which I've been tinkering with, but want to get it right before entering it because I think they may be hardening their attitude to claims with extras. I've also been strung along a bit by HSBCs gradually increasing offers. But I'm going to enter the application - I'll be posting a draft shortly. Anyone else who may read this - as Lat. says, this case is complicated by the claim for compound interest. Since the claim goes back 10 years and is relatively large, the amount of compound interest is fairly sizeable and constitutes over half the amount claimed. If you're not claiming compound interest or if you're not claiming a large amount, they won't take it anywhere near this far, so don't worry.

Well, I'm trying to make the thread a complete record of the development of the case. And if you think that's long, wait til you see my draft application, coming soon! Have a thermos of strong tea, some eye drops and a doughnut-shaped cushion ready...

Well, that was fairly unsatisfactory though nothing particularly problematic occurred. I got off to a bad start by keeping the district judge waiting - though only for a minute or two I think. DG had sent some sort of inscrutable drone and the judge was certainly more interested in what he had to say than in hearing from me. The drone opened by saying this is 'another bank charges case', and I think a look was exchanged which I didn't entirely like the look of. He was trying to get everything scheduled on the longest possible timescale, but the judge to his credit was having none of it so he didn't quite get what he wanted. Trial window set for 31 Aug - 30 Sep, with pre-trial checklists on 26 Jul. Standard disclosure ordered (I think), which I think was what the bank wanted. The drone got in his remarks about my part 18 request for further information being more like (I think he said) a request for full disclosure, 'running to some 32 paragraphs with numerous subparagraphs'. He and the judge said I would need to make an application if I wanted to courts to enforce the part 18 request. I think if I do I'll condense it a bit, since they seem keen to pretend that it's far too long - though perhaps I'll include the original request for reference. Along the way, our monotonous friend mentioned HSBC's most recent offer to me - which 'covered' all charges (inc statute-barred ones) and statutory interest, but not overdraft interest or compound/contractual interest. This was as part of his attempts to get a long timescale scheduled in. When I questioned whether he was supposed to be mentioning this, he said the offer was in an 'open' letter - presumably meaning not privileged. I pointed out it was a letter which referenced earlier communications which were privileged, but it didn't seem to be of interest to the judge who was clearly very keen to crack on and seemed to treat my presence - perhaps with some justice - as something of a mild irritant. Drone also stated that HSBC 'were considering' applying for the compound interest part of the claim to be struck out and summary judgement to be granted, droning something about that part being hopeless and ruled out by the authorities - the judge nodded as though they shared some deep understanding of the issue. In fact I imagine they both dimly remembered reading a digest of Westdeutsche and thought it probably meant you shouldn't bother trying to get compound interest or something. Anyway, the fact they want to strike that bit out suggests they do want to avoid a trial I suppose. And I don't think they have any chance of having it thrown out as 'hopeless' (which is what droneboy superciliously called it). I might try and organise some sort of publicity for such a hearing, as it would be nice to have a meaningless victory in court to balance the Berwick v Lloyd's case (on which more below!) I mentioned that I had a strikeout and summary judgement application ready to go myself at this stage, drone boy I thought betraying a flicker of mild surprise - though I don't imagine he personally could give a **** one way or the other. I think I'll try and get mine in first - later today or else I suppose Tuesday. Actually I think Tuesday would be better. I'll post a draft and any comments would be welcome. Finally, the judge pointed out this was in the fast track and that I was therefore exposed to paying costs if I wasn't successful. I stated I knew this, but I thought that they were limited to £750. He pointed out that that was only to cover cost of the trial - and there could be lots of other costs. However, I'm not intending to be cowed by such thereats and I don't think I will end up paying any costs. Anyway, the judge warned 'it's time to take stock and have think about this', and mentioned the recent Berwick decision. This was perhaps the most interesting development. Our friend hadn't heard of it, or thought he meant something else, but I took the opportunity to point out that there was very little evidence in the case and it was decided largely on the basis of admissions by the claimant. Judge said that it was 'very closely argued' though. I nearly blurted out 'maybe closely, but certainly not cogently', but managed to bite my tongue as I thought that was a bit antagonistic. I did point out that it didn;t set a precedent, but the judge said 'no, but I think it will be followed'. I didn't like that much. Hope he isn't allocated to the trial or the strike-out hearings. Again I refrained from antagonising him by sarcasically asking which point of law he thought had been decided by the case. I did point out that I had clear evidence which rebutted the concusion reached in that case. Anyway, the schedule was arranged, neither party made any applications or requested particular directions, and the whole thing lasted about 10 minutes. I'm now wondering whether there will actually be any advantage in applying to have the defence struck out at this stage, and also whether to make a Part 18 application. I'll post a draft of the amendment/strike-out/summary judgement application I'm thinking of making, and I'd be very keen to hear any comments...

Lat: I'm afraid the credit will have to go to HSBC for that! Auburn: thanks :grin: Photoman: Nope - looks like someone from Brum will be having a nice day out at the seaside tomorrow (I don't think that gives too much away!) If I'm honest, I don't really believe they will bother to turn up though - don't know why. Well, we'll see. Should be quite interesting, whatever happens. Stay tuned for an update tomorrow! BTW, does anyone know how the scheduling system works for short hearings at a county court? The time I've been given is 10am, but since that's when the court opens, I'm wondering whether everyone listed for the morning is told 10am and then fitted in on a first come first served basis... cheers all, stax