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Brad Smith

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Posts posted by Brad Smith

  1. looks good to me peter and was pretty much exactly what i was about to put up *whistles innocently*


    the only thing that would possibly concern me is the line about the charges are not on the terms & conditions accepted by the client. I was under the impression that they were in the terms & conditions?

  2. yeah, i filed that before the test case was announced. I agree, less needs to be made of the UTCCR and more about the fact that the OFT have already ruled these as penalties


    when I get 5 i'll try to redraft accordingly. Failing that (and this is more likely), I'll wait till someone else does it and plagiarise theirs. Just like being back at college....

  3. This is what I used for my Capital One claim (with thanks to Redsonja). Dunno if this is any good or not:


    1. The Claimant has a Visa Credit Card Account xxxxxxxxxxxxxxx ("the Account") with the Defendant which was opened on or around 12/12/00.


    2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.


    3. A schedule of the charges applied is attached to these particulars of claim.


    4. The Claimant contends that:


    a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.


    b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.


    c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.


    5. Interest claimed


    a) The Claimant claims compound interest on the charges to the Account at the annual rate of 21.99%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.


    The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.


    The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.



    For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).


    Regulation 5 (1) of the UTCCR states as follows:


    5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”


    Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.



    b) In the alternative to 5 a) , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.


    6. Accordingly the Claimant claims:


    a) The return of the amounts debited in respect of penalty charges in the sum of £390.00;


    b) Court costs;


    c) Contractual interest at a rate of 21.99% per annum, compounded daily from the date of each transaction to 10/05/07 of £787.53, as set out in the attached schedule of charges.


    d) In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 10/05/07 of £110.35 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.09.

    Statement of Truth

    I believe that the facts stated in these particulars of claim are true.

  4. ok...drafted a quick letter...can somebody have a quick check and let me know if I've omitted anything glaring please?





    16th August 2007


    Ref: Claim 7QZ73518


    Dear Sir/Madam,




    With reference to the above claim, I respectfully request that the stay which was ordered on the 6th August be removed for the following reasons:


    It has been ordered that the claim be stayed until the determination of the High Court proceedings on the legality of Bank Charges, however, as this is actually a credit card company I feel that it will bear no relevance to the above test case.


    As credit card penalties have already been investigated by the Office of Fair Trading and have been confirmed as penalty charges for breach of contract these will fall under a different category. I have taken the following text from the OFT website: “A fair default charge should not exceed a reasonable estimate of certain limited administrative costs which the [issuer] reasonably expects to incur as a result of default”.


    Furthermore, I also enclose a print out from the Lloyds TSB website; “Answers to questions on Bank Charges” where it also confirms that the test case and suspension of unauthorised overdraft claims apply only to bank accounts and not to credit cards.


    I trust this information supplied is satisfactory, and I look forward to hearing from you in the near future.


    Yours faithfully





    Bradley Smith

  5. i too received a letter from the court regarding my claim against monument:




    1. This claim be stayed until determination of the proceedings in the High Court

    2. Liberty to either party to apply on notice under CPR 23 to lift the stay

    3. The hearing of any application to lift the stay be reserved to District Judge Dudley


    This Order was made of teh court's own initiative pursuant to CPR Part 3.3(4). You may apply to set aside, vary or stay the Order but such application must be made within 7 days of receiving it.




    Think I'll have to do some more reading on this *sigh*

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