I am going to court on thur (6th July), help!

[Robertxc]

i too now see it strange that the judge told me the next case will be for me to prove that these charges are penalty charges

There's nothing strange about this. You've come to court demanding money, their response is "Prove it".

 

Of course you can PM me. Also, it would be useful to see the text of your claim which you submitted to the court.

[give_me_it_back]

Yes, I agree it would be useful to see your text. Do you mind, Manolo?

 

Robert, is there anything you recommend would have been useful for Manolo to say at the time? I'm putting myself in her shoes (as I will quite possobly be there in the not too distant future). Do you think it would be useful to take supporting documentation to the first hearing, such as a copy of the OFT ruling?

 

Whilst I accept that the banks have a 'right' to defend themselves, the only reason I do think this is 'unusual' (rather than 'strange') is that, as far as I am aware, this is the first time this has happened.

 

Am I right, or is there a link to other similar cases?

[manolo]

ok, here is what i put in my claim

 

The pursuer Kerry Finch, has held a bank account with the defendent since febuary 2005 the account no being ******. The defendent deducted from the account various amounts of money in penalty charges during the period July 2005 to May 2006. These were in respect of 'charges as notified' (levied if a cheque, direct debit or standing order payment was returned because the specific overdraft had been exceeded) The pursuer contends that these charges were legally unenforceable and the pursuer is demanding repayment of money. The defendent has refused full payment of these monies due.

No admissions are made by the pursuer as th the incorporation of any term into the contract between the pursuer and ther defendent purporting to entitle the defendednt to levy penalty charges. If the defendent is able to establish that the contract did containthese terms, the pursuer will will contend that these charges are unenforcable by law, being penalty charges designed to penalise the pursuer for breach of conduct and generate profit for the defendant for the actuall loos occouring to the defendant rather than being liquidated damages designed to compensate the defendant for the actuall loss occouring to the defendant as a result of the breach.

The pursuer claims from the defendant a sum eqivilant to the to the amount unlawfully debited from the pursuers account from July 2005 to May 2006. The sums are in the attached schedule.

The contractual provisions that permit the defendant to levy such charges in unenforcable by virtue of the unfair contract terms in consumer contracts regulations(1999), the unfair contract terms act(1977) and the common law

The defendeant has a branch in Aberdeen therefore it is under the jurisdiction of this court.

 

Phew that took me ages to type and i am suddenly worried you guys are going to tell me i said loads of wrong things!

[give_me_it_back]

Well, it looks fine to me - but wait until someone more experienced than me gets back to you. Did you attach all the correspondence between you and the bank also?

[manolo]

I said the letters could be made avalible if needed and I made sure that I tool them with me to the prelim hearing.

[give_me_it_back]

I reckon you have it covered then. Would still like to see if Robert has anything more to add...? Or any others? Is Manolo the 1st to this situation..?

[Giveitback]

Any news on this? Assuming that my BoS case goes to court, it'll be Aberdeen as well. Best to be prepared in advance.

 

How have people contended that the charges are penalties? Referrring to Lord (erm, thingy) from the bank who said (something)? Can't find that now. Anything else?

 

Actually, this link:

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/633-case-guidance-notes.html

 

Did you use this Manolo?

[give_me_it_back]

Yes. Please can a MOD (Robert?) reply to this..?

 

Scotland seems to be lacking in support a bit....

[enjaytee88]

Wow Manolo,

 

May I say very well done for the effort so far.

 

I am intrigued by your experiences and response from the Sherrif Courts in Aberdeen. I too will be heading down there soon (I suspect) with a claim again LTSB.

 

My understanding on legal matters with the courts is to prove beyond all reasonable doubt your case is here on merit in legal terms (and for me that means to be armed to the teeth with one example after the other of the evidence) given that the sheriff is wholy impartial and is there to make a lawful decision based on the evidence and arguements presented from both sides.

 

So, do you think that the Sheriff didn't really have the time of day for things like this (likely due to the amount being presented just now).? Did you hear of anyone else on that day presenting a similar claim?.

 

Good luck, and keep us posted.

[droid1701]

Hi Manalo,

 

I currently have one week before sending my LBA. Having read your thread am more inclined to see the process through to the BITTER end. In regards to the Abbeys solicitor asking for a copy of the terms and conditions I would say send it to him with a letter as requested I am providing you with a copy of the terms and conditions but at the same time further request a full and complete breakdown breakdown of the costs to the bank of my breaches of the terms and conditions. It appears to me from what I have read on this forum and witnessed from watching various documentaries specifically Panorramma, That the Banks DO NOT under any circumstances want to disclose their costs. They have refused many such attempts from both the media and account holders to divulge this information. Would be very interested to know how your meeting with the Court Advisor goes. Additionally as I said above play them at their own game by giving them the information they have asked for while at the same time making a request of your own. As it appears I would say that the main objective of our actions is to force the banks to reveal their costs in recovering their loses as it beggars belief that the loses are in the region of £20-£40. The other advantage is that you can use the Banks tactic against them being reasonable polite and fair minded in regards to your dispute. I'll say goodnight and all the best for the future with these last words.

 

The difference between a gentleman and a man is that a gentleman says one thing while thinking another.

[jennilou]

Hi Manolo, I noticed in a posting by joneshousehold in the Abbey forum that he has posted a copy of a letter he received from Abbey. In the letter they refer to their charges as PENALTY charges. Would that not be evidence for your case that Abbey in fact refer to their charges as a Penalty therefore proving they are? maybe you could get a copy of the letter. Just a thought

[droid1701]

Hey manalo heres a link for you that should provide you with all the evidence you require http://www.oft.gov.uk/NR/rdonlyres/2EBC491E-303E-4FAA-A24D-32EF8396255E/0/oft842.pdf

 

As it states specific laws and goes on at length it would at the very least increase the legal costs of bank since their solicitor would have to read the entire document and have to spend vast amounts of time to find a defence against it(assuming he can). Oh and one more thought having read other threads it might be advisable to ask the court if the contract can continue to exist without the unfair term there by preventing the bank from shuting down your account. Check section 8 paragraph 2 from this link http://www.oft.gov.uk/NR/rdonlyres/ED56F34D-AEA1-48BD-95D7-8FFE8A44F012/0/oft311annexeb.pdf

 

note all info comes from the OFTs website. Really hope this helps.

[big yin]

Good luck and I hope you have your day in 2 months.

[Fogsy]

Hi Manolo. I to am very interested in this thread as i have filled my claim with HBOS on the 3/7/06. I wish you all the very best for this and you have showed great strength so far so keep it up. I will let you know how i get on with my HBOS claim to see if it helps you.

 

GO FOR IT !!!!!!!!!!!

[give_me_it_back]

Robert... Are you there? Would really value your opinion..?

[elsinore]

the lawyer on the other side handed the judge their defence, (which i only got today in the post when I came back form court!!)and said that i had a contract with them under the terms and condition and that bouncing dd etc breached this contract which was why they took the money. And they said that i had failed to submitt a copy of the terms and conditions to either the court or themselves

 

Hi Manolo, a sassenach's view!!

 

1. Defence filed too late? Surely you/court should have received it prior to hearing and by a specific date?

2.Solicitor admitted breach of contract. You cannot be penalised for a breach.

3.T & Cs? Complete red herring!!

 

Unless Scottish law is different!!

 

Elsinore

[MARTIN3030]

Manolo a good effort but I reckon you could stream the letter down quite considerably whilst still making the points you are putting over.

I also spotted some spelling mistakes........easy corrected but no ones mentioned?

 

Any signs of a mod yet?

 

[give_me_it_back]

Manolo... are you still around?

[goforit]

Hi Manolo, must congratulate you on your performance today, sounds like you told them as it is, I must say I am personally dissapointed as this is yet another stalling process these people are playing. But hey ho, justice will prevail. With regards to you submitting evidence to confirm charges were penalty charges,

 

 

5) Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair

1. Terms which have the object of effect of-

(e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:

OFT case 15 – Kids of Wilmslow Ltd.

Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.

OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.

A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

OFT case 4 – Dampcure-Woodcure/30Ltd.

Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.

Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTTC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the card/account holder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.

 

Sorry about the wording but ive just copied it from my "details of claim", now is the above not evidence which could be submitted, also could you not bring to the courts attention the fact that your bank have settled similar cases in the past.

 

Just to add:

The law relating to penalties has been established through case law. The cases date back to the nineteenth century and the courts have been consistent in the way that they have ruled on penalty clauses.

 

Wilson v. Love (1896)

 

A tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings a ton more than straw.

 

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915)

 

In the particular case, the judges held that the sum specified in the contract was reasonable and was classified as liquidated damages. However, in this case, Lord Dunedin laid down rules which are still applied today in these types of cases:

 

i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable".

 

ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty. Ford Motor Co. v. Armstrong (1915)

 

In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

 

Bridge v. Campbell Discount Co. Ltd. (1962)

 

In this case a customer bought a car under a hire purchase agreement. He paid the initial and first payments and then cancelled the agreement. The company tried to recover the sums specified in the contract for canceling the agreement, but the courts held that the sums payable were excessive and constituted a penalty clause. It was, therefore, unenforceable.

 

Murray v. Leisureplay (2004)

 

Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages.

 

There have been several other cases over the past century. Any good book on contract law or business law will contain references to "penalty clauses", "penalties" or "liquidated damages" cases and a discussion of the law.

 

 

Hope this helps!!!!

Regards o0oLiamBeeo0o

 

None of that is evidence - it is law, a lot of it English law. I suppose the English law could be used as a persuasive authority; however the law isn't in dispute.

[wotsundermykilt]

Manolo you have inspired me to fight my corner against the BOS after reading of your conquests. Hopefully you will get what you deserve. I am off for my forms from the court tomorrow & will lodge claims this week. I hope putting in claims a couple of weeks after the deadline I set them is ok as I have been on hols but no response from them anyway

Mike

[wotsundermykilt]

Forgot to ask you Manolo which BOS branch ur fighting in Aberdeen because thats where I am from.

[o0oliambeeo0o]

Hi GoForIt, with my previous post I was simply posting this for reference purposes, to show that these charges are indeed unfair and unlawful (and the ruling of unfair/unlawful has already been laid out). Ok they do not relate to bank charges but the principle, I feel is the same; what is and what is not unfair/unlawful?

 

Even although, as you say most of it is English law, the definition of unfair/unlawful is the same whether in Scotland or England, in my opinion anyways.

 

Also I wasnt disputing the law, just giving my 2p worth.

 

Regards

o0oLiamBeeo0o

[manolo]

hi guys, not dropped off the end of the world, just been v busy. Will come back tomorrow and update every one. x

[cazza57]

Hi Manolo (and everyone)

 

I have really enjoyed reading about your progress and found it really useful. I'm looking forward to hearing how you are progressing.

 

What are you using for evidence to support your claim that the bank charges are penality charges? I have read the evidence provided earlier in the thread and I was wondering if you or anyone else was using any other cases etc? I am nowhere near this stage but trying to prepare.

 

thanks

caz

[MARTIN3030]

Cazza hello.......where you up to with Halifax?

 

 

As you will see by the threads and posts there is a structured approach which we are all using.

Can hardly be a bad thing since the banks are taking notice and paying out.

The reason quite simply is because (or up to now at least) they have neither the will nor the ammunition to defend when it comes down to the 11th hour.

 

Basically the claims are being waged on these principles.

 

 

Claimant has account (A/C No) with Defendant from (Date)conducted on their standard terms and conditions. Claimant is claiming the return of (£0.00) taken by Defendant in charges over (X) years. The Defendant's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. They are also invalid under the Unfair Contracts Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999.Para.8 and sch.2.1.e.

In the event that the charges are not a penalty they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. Defendant has declined justification of charges despite repeated requests. Claimant claims interest under Sec.69 of the County Courts Act 1984 at a rate of 8% a year from(Date) to (Date) of (£0.00) and also interest at same rate up to the date of judgment or earlier payment at a daily rate of (£0.00)

 

 

 

As far as I know this in itself is proving to do the job.

 

It is after all.......self explanitory as much as the banks tend not to agree !!

 

 

This is the basis of the claim and only be used at the court stage.......no need to remind the banks early on........they know exactly whats coming if you start a claim.