No reply to my LBA. After a lot of reading and much messing about, I have boshed together the following N1, mainly using one I pinched from the forums here! Can someone have a gander and point out any howlers?
1. The Claimant had a bank account, number xxxxxxxxx (“the Account”), maintained at the Defendant’s Bootle Branch.
2. The Account was governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)
3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged overdraft interest on the charges once applied.
4. 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.
5. A schedule of the charges is attached to these particulars of claim (Appendix 1).
6. Under the law of penalties, the charges are an unlawful ‘extravagant’ penalty. Referring to the case of 1896, Wilson v Love, a charge is a penalty if it does not reflect an item’s true cost.
7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract
on the part of the Claimant;
iv) are not intended to represent or relate 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) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.
c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.
d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982
9. Contractual Interest
a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.
b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.
c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s unauthorised borrowing rate, being 17.08%.
d) In the alternative to 9.c), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year
e) Details of interest calculated & rates used are attached to these Particulars of Claim (Appendix 1).
10. Accordingly, the Claimant claims:
a) The return of the amounts debited between 28/09/2002 and 27/07/2004 in respect of charges in the sum of £954.
b) All applicable Court fees
c) Contractual interest at an annual 17.08 % compounded daily from the date of each transaction to 14th March 2007 of £734.31, and also interest at the same rate up to the date of judgment or earlier payment.
d) In the alternative to 10.c), interest under section 69 County Courts Act (1984) at the rate of 8% a year of £254.63, from the date of each transaction to 14th March 2007, and also interest at the same rate up to the date of judgment or earlier payment.