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    • Great thanks, will leave 2 in then, replace 3 and I think its good to go.    This is exactly what I have in my word file ready to send, I think im happy with it and can send to mcol monday morning. Any further thoughts or things to update please let me know.   Again thank you both for your help, really is priceless.         Defence:   1.     The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.    2.     The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.   3.     Paragraph 1 is noted. It is accepted I have in the past had agreements with New Day LTD RE Aqua. I do not recall the precise details or agreement nor the claimant either having failed to plead an agreement/account number within its particulars of claim and have therefore sought verification from the claimant.   4.     Paragraph 2 is noted but until such time the claimant can clarify the agreement account number any breach has yet to be proven.      5.     I am unaware of any legal assignment or Notice of Assignment allegedly served by either the Claimant or New Day LTD RE Aqua pursuant to the Law of Property Act 1925.   6.     It is denied with regards to the Defendant owing any monies to the Claimant. The Claimant has failed to provide any evidence of the Agreement/Assignment/Default notice or Termination requested by CPR 31. 14, and will shortly be in default of my section 78 request, therefore the Claimant is put to strict proof to:   (a)   show how the Defendant has entered into an agreement and; (b)   show and evidence the breach and service of a Default Notice pursuant to sec 87(1) CCA1974 on which the Termination referred to relies upon. (c)   show how the Defendant has reached the amount claimed for; and (d)   show how the Claimant has the legal right, either under statute or equity to issue a claim;   7.     As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.   8.     On the 17th of November I requested to The Claimants Solicitors, Mortimer Clarke by way of a CPR 31.14 copies of the documents referred to within the Claimants particulars to establish what the claim is for. Mortimer Clarke have failed to fulfil my CPR 31:14 request.   9.     On the 16th of November I made a section 78 legal request to the claimant for a copy of the Consumer Credit Agreement. The claimant has as of of 06/12/21 failed to comply.   10.  By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
    • Hi just a quickie   Now in reference to my Post#2 here have they actually provided you with those policies that I pointed out and importantly a copy of there Public Liability Insurance?   If they haven't   Make sure and send them a little reminder adding to the letter in Post#32 that so far they have failed to provide these and you require clarification as to their reason for this failure     Dear Sir/Madam   Complaint Reference: XXXXXXXXXXXXXXXXXXX   Further to my recent letter about this matter Dated XX/XX/2021 I would also like to add that so far you have still failed to provide the following:   Copy of your Compensation Policy (not the leaflet) Copy of your Complaints Policy (not the leaflet) Copy of your Customer service Charter/Policy (not the leaflet) Copy of your Public Liability Insurance (not the leaflet) Copy of Repairs an Maintenance Policy (not the leaflet)   I asked for these is my letter to yourselves dated XX/XX/2021, to date you have failed to respond to this request nor is the Housing Association being Open and Accountable to it's Service Users and I require full clarification for the reason for this failure and when you are going to provide what I have requested.   If you refuse to provide these I require full clarification as to your reason with links to the relevant legislation and exactly which parts you are relying on for your refusal of my request.     Note: If they have answered this please ignore but from your responses I think they have tried to ignore this so you add this to put a rocket up their 'beep' so to speak.   You are more than welcome to the help it's what we are here for, you just look after yourself and take care     
    • The DVLA know less about POFA than my dog that died twenty years ago. They also never admit they have made an error.   Trading Standards would probably be a better avenue for you either on Council inaction on no pp thus appearing to aid and abet a PE scam, condoning PE committing an offence and allowing them to rip off the Council customers as well as financial impropriety by not insisting that PE pay for the requisite fees for permission. You could also complain to the ICO on the same grounds and get two investigations going.
    • I am surprised that POPLA found that your appeal had failed when Initial's response to the appeal had been withdrawn. There was no need for them to adjudicate. POP.LA should have agreed that you had won your appeal. I wonder if Initial  knew something that you and obviously POPLA didn't.  Ignore DRP. I was going to advise  you  write to Initial stating that as they had withdrawn their PCN on appeal so if DRP were acting on instructions from Initial they have breached your GDPR. However on second thoughts you may be best to send them a SAR first to get confirmation that they had withdrawn their claim before going for the breach.
    • so the eon A/C was never in her name anyway?
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It was ruled in the test case that bank charges are not penalties, which the OFT failed to appeal, so that route is lost I'm afraid.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Playing Devil's advocate here, pls feel free to shoot this down, but when you apply for an o/d, c/c, loan etc... the bank does a credit search and depending on how you score, you will be offered a different rate of interest, couldn 't the banks then argue that THAT shows an "individual" negotiation?

Credit card rates are not individually priced on the interest rate. I'll explain. When you apply for a credit card you get the rate set at the time it was taken out and is fixed at that point(yes you might be able to get 0% deals within that for balance transfers but the interest rate you get at the end is the original rate you applied under). Some people will have got better interest rates and some worse depending on the time they opened the card. With overdrafts, it's the same and interest rates are increased/decreased giving notice.

Having said that, Loans are most definitely risk based pricing which means that while there is a typical APR based on the perceived risk of the borrower.

Ok, so your only negotiation tool is to accept their terms or walk away, but still... We know they'll; try anythign to derail us.

 

Discuss. :-)

 

See above with regards to OD and credit cards. The problem with all of this is that even if you look at consideration of whether to pay or not pay, there is evidence the banks' do pay items out in a way that is not to the detriment of the consumer(OFT 1154).

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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Sorry if this has been asked before.

What are the rules regarding dsar with banks when you have had the account for many years?

Do they still have to show and agreement or even a frankenstien of what an agreement would have looked like after Carey v Hsbc.

I.e. What proof do they have to provide that you agreed or were aware of the charges.

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Remember what s5(2) is saying....

 

....to be able to individually negotiate AND influence the substance of the term otherwise that term will ALWAYS be regarded as not having been individually negotiated.

 

This suggests an informal 2 way communicative street.

 

The scenario Bookworm is talking about would fall outside the 2 mutually inclusive required elements above that the banks would have to prove.

 

Terms to which these Regulations apply

 

4-(1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.

 

Bookworm's scenario is ex-hypothesi and falls short of a concluded contract...the above provisions would therefore not be triggered off.

 

The use of the past tense 'concluded' is ex-post facto.Once a contract is concluded then the issues in these Regulations fall to be decided.

 

Also just out of interest please look at......

 

Schedule 2 Indicative And Non-Exhaustive List Of Terms Which May Be Regarded Unfair Reg 5(5)

 

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

 

.....(I) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.

 

I should welcome comments

 

Rgds

 

M2ae:)

Edited by means2anend
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The only comment I can add is PRECISELY!!!!! :p

 

I think it would be easy to to attach a two way meaning to their T&C's BUT NOT to the UTCCR's (or the LAW) especially after the SCoJ advised claimants of Reg 5 (which they really don't normally do!).

 

My take is that the Bank's are going to face a wave the force of a Tsunami in the light that they will have to show that all the contracts were individually negotiated, fair and in relation to the charge, that it is NOT disproportionately excessive.

 

Trying not to giggle ahead of their submittance and the risk of proving I'd lost my marbles.

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

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Council Directive

 

of 5th April 1993

on unfair terms in consumer contracts

(93/13/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES.........

HAS ADOPTED THIS DIRECTIVE-

ARTICLE- 1

1 The Purpose of this Directive is to approximate the laws,regulations and administrative provisions of THE MEMBER STATES, relating to unfair terms in contracts concluded between a seller or supplier and a consumer.

 

2 The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States of the Community are party,particularly in the transport area,shall not be subject to the provisions of this Directive.

 

ARTICLE-2

For the purposes of this Directive-

(a) ''unfair terms'' means the contractual terms defined in Article 3;

(b) ''consumer'' means any natural or legal person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

© ''seller'' or ''supplier'' means any natural person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession,whether publicly owned or privately owned.

 

ARTICLE- 3

1 A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, if 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 individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term,particularly in in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated contract.

 

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

 

3 The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

ARTICLE-4

1 Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

2 Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand ,as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.

ARTICLE-5

I In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language.Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.This rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).

 

ARTICLE-6

1 Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.

 

2 Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.

 

ARTICLE-7

1 Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

 

2 The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

 

3 With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.

 

ARTICLE-8

Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.

 

ARTICLE-9

The Commission shall present a report to the European Parliament and to the Council concerning the application of this Directive five years at the latest after the date in Article 10(1)

 

ARTICLE-10

1 Member States shall bring into force the laws,regulations and administrative provisions necessary to comply with this Directive no later than 31st Dec 1994.They shall forthwith inform the Commission thereof.

These provisions shall be applicable to all contracts concluded after 31st Dec 1994

 

2 When Member States adopt these measures,they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication.The methods of making such a reference shall be laid down by the Member States.

 

3 Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.

 

ARTICLE-11

This Directive is addressed to the Member States.

Done at Luxembourg, 5th April 1993

 

This Directive 93/13/EEC was initially implemented by UTCCR 1994 SI 3159 but then was revoked by;

UTCCR 1999 SI 2083 which is now the current regulation.

 

Rgds

 

M2ae

Edited by means2anend
reasonemphasis on terms not being drafted in a plain or intelligible manner then it's intepretation must construed in favour
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Are there any caggers out there who know or a familiar with any case law authorities in the Commonwealth that have decided on similar provisions and or circumstance (individually negotiated...) within their own Country's respective jurisdiction.

 

We may be able to use those Judges ratios as obiter in connection with our situation and start the 'firing gun'so to speak.Provided of course the decision was favourable to the consumer.

 

Also banks were settling long before the OFT actually took it to THE court and lost.

 

Maybe the 'threat' of S5(1)(2) without going to court may once again be tactically correct in getting refunds BEFORE any PRECEDENT one way or the other.

 

If so we better act quickly

 

Comments please

 

Rgds

 

M2ae

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AAANNNNNNNDDDDDDDDDD!!!!!

 

It's been upheld by the OFT and the Courts that the way a charge and interest is worked out is NOT clear and even caused the Banks a few problems to explain how it's worked out in Court.

 

Thus, even if you were to put funds into your account, the addition of charges and even the interest on toip of that would send you back into unauthorised o/d area again!!!!!! FAIR!!!!

 

Hence the contract should be 'in a plain and intelligible language' interest and charges are definitely terms that are core they MUST be drafted in a manner that is INTELLIGIBLE as per Reg 5

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Hence the contract should be 'in a plain and intelligible language' interest and charges are definitely terms that are core they MUST be drafted in a manner that is INTELLIGIBLE as per Reg 5

 

The PIL(plain and intelligible) argument was settled prior to the SC judgement so am not sure that you have an argument just on the basis of PIL.

 

You need to post up the annex as well since 5(1) has the grey list.

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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The PIL(plain and intelligible) argument was settled prior to the SC judgement so am not sure that you have an argument just on the basis of PIL.

 

You need to post up the annex as well since 5(1) has the grey list.

 

 

No problem...

 

I shall post the annex tomorrow

 

Rgds

m2ae

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Caggers

 

I have found some recent European case law that deals with ...'not having individually negotiated....' as per ART 3(1) and (2) 93/13/EEC or as implemented as Reg 5(1)(2) UTCCR 1999 SI/2083

 

The Case is Pannon v Gyorfi [2009] C-243/08

 

It appears to be good news on interpretation-I shall try to find some specifically within the context of Banking/Credit but the principles should be the same.

 

Here are the links:

http://lawstudentforum.co.uk/eu-law/4593-unfair-contract-terms-pannon-v-gyorfi-2009-c-243-09-a.html

for a fuller information use link below

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0243:EN:HTML

 

I'm off goodnight

 

M2ae

Edited by means2anend
correction of links
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I, like many people, are quite confused by this whole issue.

I cant understand how the credit card charges were reduced, to 12 pounds, but the bank charges cannot be reduced/scrapped.

What arguement did the OFT use to argue against CC charges and why would they not work with Bank Charges?

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CC charges ARE accepted to be penalties for breach of contract, not fees for a service, however mythical and can and should be reclaimed together with all contractual interest levied thereon, plus 8% judicial interest.

 

Bank charges are not.

 

(Apparently)

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I got this letter today, dated 31st Dec 2009, giving me 8weeks to respond.

 

"The outcome of these legal proceedings means that the bank charges you have complained about do not amount to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations 1999 (UTCCRs). We do not believe that there is any legal basis on which the amount of the charges can be challenged.

 

We are satisfied that the bank charges you seek to reclaim were properly charged and the outcome ofthe legal proceedings confirms our position."

 

is there a reply template? is there any avenue for me to go down?

My 'bank' is Alliance and Leicester, can I quote facts and figures from this site regarding the refunds they have already made?

is it not a form of 'victimisation' that they have refunded some customers but not all??

HELP!!

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Its just the bog standard letter that they have sent to every one. just hold tight for the new letters to come out

HTH (Hope This Helps) RDM2006

 

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CC charges ARE accepted to be penalties for breach of contract, not fees for a service, however mythical and can and should be reclaimed together with all contractual interest levied thereon, plus 8% judicial interest.

 

Bank charges are not.

 

(Apparently)

 

Didn't the OFT decide that they were unfair as well and put a £12 cap on them?

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OFT didn't put a legal cap on CC charges they just said £12 was the level at which they would intervene. If you take CC charges to court they still have to justify them and you should get them all back (plus contractual interest plus court interest of 8% on the whole debt calculated from the date you start the action).

 

I am going to go after my current account charges. I have an overdraft of £1500 and have calculated charges of £3,500 over the past six years (just charges plus basic 8% interest) and they refuse to give me any statements prior to this so it's clear this is the minimum figure. Once I get my head around it I will start a thread and come back and add the link.

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Here are some of the arguments that may be used under Reg5 UTCCR 1999

 

by courtesy of Martin Lewis...Moneysavingexpert

 

Bank Charges Reclaiming: Fight unfair charges, updated after OFT dropped case...

 

.....and then scroll down and click the link give a more detailed explanation in the new legal arguments section.

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So (as mentioned in #4606 above) it's looking increasingly like a dual-pronged attack using UTCCR1999 Reg 5 coupled with, where-ever possible, Section 140 a-d of the Consumer Credit Act (CCA) 1974?

So far as the Natwest anomoly is concerned, again whereever possible, do we formulate a fresh claim for the period in question (with, presumeably, good odds of success if the t&cs for the limited period were found wanting by justice)

I would still wish to await any revised information but times is 'agettin' tight.

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