I think you are quite correct Glenn and that's the method I am going to use. People need to remeber that this process is designed to reimburse all their losses that flow naturally from the unlawful taking of their money.It's not just a matter of getting the charges back. To sum up what others have said; First you claim the actual unlawful charges you have ben subjected to. Then you claim any interest they have actually charged you on the unlawful charges under the terms of the contract, ie; if you have a £0.00 balance then get a £25 return DD charge which sends you £25 in to the red they charge you interest on that overdrawn balance, lets say the interest amounted to £1, for figures sake. They have actually had a total of £26 from you (the principal charge plus the interest they have also charged you) so your claim is for that amount. You then add in an amount of interest charge which you are levying on them for being without the use of your £26 for 6 years, or whatever it may be. The argument for this is that you are entitled to be compensated for the fact that you have been wrongfully deprived of your own money and have not had the benefit of it. Remember that this is all about compensation, not punishment. The 8% Court rate I'm not entirely sure about when it comes in but I think it only applies for the period after the judgement until you actually get paid. You have to apply for it at the time you intiially apply to the Court though or you won't get it. P.

You have a point but I'm not in a huge hurry anyway. If they want to delay it's their problem because I intend to include the Contrat rate of interest on all of my demands anyway. Besides, none of them have made any great attempts to publish what their charge for this information actually is (the max is a tenner but they can charge anything up to that or nothing at all) and if I haven't heard anything 7 days after their recept of the letter I will be harassing them on the phone and informing the information commissioner. If they really wanted to delay then sending a cheque would not be guaranteed to be any quicker, they could pull a similar trick in reverse on all those who send £10 cheques - "sorry but our charge is £9.99, please send another cheque" - and still probably wouldn't bank it anyway. P.

I don't think it is. The civil Courts don't "convict", they hand down judgements. When you claim for damages, you are claiming just that - for damage caused - not to penalise the other party. You are only having your self restored, as near as is practicable, to your situation before the loss ocurred. Besides, the BoR talks about the levying of "fines and forefeitsures" and an order of damages (which, as mentioned above), is really nothing more than compensation, and could never be described as either a fine or a forefeitsure. To put it another way, damages is effectively your money you are getting back, a fine or forefeit is punitive (or preventative by threat) in nature in that they take away more than the convicted person has actually gained or caused in damage or loss. P.

The problem is - and I think is the reason it's unlikely to happen - is that it would mean that the civil Courts would effectively be imposing criminal penalties without having to apply the relevent standard of criminal liability, ie; you would be being penalised on a decision made on a balance of probibilities, rather than on one of "beyond reasonable doubt". Also. it would contravene the part of the Bor 1689 which prevents fines and forefeitures before conviction. P.

Hmmm, I don't think it's that straightforward. The Courts may be able to but if it's settled, long established case law, then it would have to be over turned by a higher Court than the one that set it. Given that it's an old principle I would imagine that it's been settled by the House of Lords on at least one occasion so it would require them to over turn their own decision. That's not an impossibility (although it used to be until 1969), but it's very rare and they'll only do it in cases where they feel there is a pressing judical need. Basically, only if they think the principle has been wrongly decided by them previously, and they don't take that opinion lightly. If there is something in statute relating to the matter then it would need an Act of Parliament to change it. P.

Personally, I've not sent any. I've told them to advise me of any fee which may apply to my request (they may want to charge less than £10) so if they want to request one then fine. P.

You could point out that now you have informed them that the charges were levied unlawfully they are knowingly selling on an illegally obtained debt. Probably comitting some deception offences there against who ever is buying it, at the very least. J.

I don't know if the TDA would have any application there but it certainly seems like a deception offence under the Theft Act 1968. They are telling you that their charges are lawful and reasonable and you are paying them on that basis. They clearly are not lawful, nor are they remotely reasonable, so they are perpetrating a deception upon you. P.

Sec.4 Unfair Contract Terms Act 1977 says; 4 Unreasonable indemnity clauses (1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness. (2) This section applies whether the liability in question— (a) is directly that of the person to be indemnified or is incurred by him vicariously; (b) is to the person dealing as consumer or to someone else. An indenmity is a bit like a guarantee to absolve someone of the consequesnses of something - in this case negligence. The banks say that their charges are to recoup their expenses in relation to negligence, so you are being made to indemnify those losses and Sec.4 clearly says that you cannot be made to do that. Even if the charge really did cover their expenses and no more the charge dosen't automatically become "reasonable" because Sec.4 says that the contract term that imposes the indemnity must be reasonable. Therefor, they would have to show it's reasonale to impose the term upon you in the first place before any question of the actual amount arose. The only respect in which the law may appear to be untested is whether or not the charge they are applying actually amounts to the application of an indemnity clause and I can't see how any Court would say that it isn't an indemnity. With respect to Common Law. It is a long held principle that you cannot apply punitive damages against someone for their negligence. You can claim actual damages (to compensate for actual losses you have incurred) but anything more is considered "unjust enrichment" because you have done nothing in exchange for it. Moreover, damages can only be awarded by a Court, you can't just take them from someones account. I think there are cases on this in the Library. The Unfair Terms in Consumer Contract Regulations is a Statutory Instrument. Sec.5 says; 5 Unfair Terms (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. A term requiring you to indemnify someone else certainly causes an imbalance in the consumers rights as it is contrary to law (UFCTA 1977) and places no obligation upon the much more powerful and finacially capeable party (the business) to shoulder any of the loss from negligence. Sec.8 says; 8 Effect of unfair term (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term. And this is the final nial in the banks collective coffin. The term is void and anything paid under such a term is recoverable. So, to sum up, these charges are unlawful on at least 3 counts; Firstly that at Common Law you cannot be made to pay a penalty for negligence, secondly, the UFCTA1977 says that you cannot be made to indemnify another for negligence and thirdly, the term is void as it is unfair becaue it results in a significance imbalance in the duties between the parties. P.

Glenn, I agree with you in part. Thing is though it is established legal principle at common law that penalty clauses are void. You cannot impose punitive charges for breach of contract, but only claim damages to compensate for actual loss. So, in that respect, there is no doubt. You only need toi show that these charges are penalties - which they are - and the principle applies to them. Moreover Sec.4 UFCTA 1977 provides that a person acting as a consumer connot be required to indemnify anyone else against negligence. Yes, such an indemnity may be held to be legal but only if it's reasonable. These charges are very, very unlikely to be held to be reasonable for a variety of reasons but you have to remember that the Act basically starts from the premiss that "if your are a business who wants to enter in to a cntract with a consumer and you get stuffed through their negligence then though!" P.

I'm interested in this one too. Sent SAR letter to them on Friday gone. I reckon they owe me at least £1,300 excluding interest and that's without having all my statements to hand. P.

I've noticed from many posts that people are saying that banks are often not cashing their Data Protection Act Subject Access Request fee cheques, or not asking for them in the first place, I wonder why? This seems very strange to me and most certainly highly out of character for such profit concious organisations. I can't help but think that there is more than a simple "can't be bothered" or "Isn't financially worthwhile" answer to this. I mean, these firms have shareholders who will be concerned to make sure that everything is being done to off-set the losses incurred by having to repay off of these charges and simply not taking money when it's offered seems a bit negligent to me. Have they spotted some good legal reason for not banking the cheques? Is there something that we don't realise we are entitled to that they aren't providing when they send us our information that we would be contractually obliged to had they banked the money, I wonder??? Or is all of this making me far too cynical? P.

The way I see it is thst you have two possible options. If the third party charges have been incurred solely by the banks unreasonabe or unlawful actions then you have a claim against them for recovery of those chartes. However, the third party are no more entitled to make such charges then are the banks. The charges are unlawul regardless of who makes them. P.

And I agree. Taking something after having been advised that you probably won't get caught still dosen't render the taking legal. What I didn't mention before is that to assess whether someone acted dishonestly or not you need to apply the test established in Ghosh (1980). That being a two part one; firstly, would the actions of the defendant be considered honest by ordinary, right thinking people and (as long as the first has been established), secondly, did the defendant realise that his actions would be considered dishonest by ordinary right thinking people? If both are established then dishonesty has been shown, even if the defendant didn't believe he was acting dishonestly according to his own understanding of what is honest. Given that "honesty" is a matter of fact to be determined by the jury having regard to all the circumstances (and the fact that many of them will are also likely to have ben ripped off with unfair charges, no doubt), I wouldn't fancy my chances if I were trying to defencd my self against such an alegation. P.

Saw something similar the other week but relating to China. Seemingly, there is whole towns in China who's economies depend upon tearing apart old computers and slavaging the bits, especially the gold in the circuitry. P.

Can't seem to find a forum for NR. P.

First year of a degree - I know that well, having recently failed a Contract Law exam! P.

Well, on Friday I posted Data Protection Act requests to four companies, MBNA, Barclays, Diners Club and Northern Rock. I currently have a list of around 17 companies I'm going to harrass for money and expect to get a lot back - Northern Rock I estimate at at least £1,300. Mrs Phantom has a shed load of stuff that I'm going to pursue for her as well. Also, I'm going to have a go at utility, internet, mortgage and mobile phone companies and I intend to go back further than 6 years as well. Will keep all informed of my progress. P.

I don't agree. It could be dishonest as, although they are telling you that they are taking it, they are telling you that they are taking it lawfully, which they aren't. Possibly not simple theft - maybe a deception offence, or both. If a burglar enters you house and takes your TV but tells you he has a right to do it then he's still comitting theft. P.