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    • I found an old defence I used and tweaked a bit. Unfortunately I think I messed up in not asking for a statement in my cpr, while it wasnt referred to in the poc it does have the amount. There were no paragraphs and it looks like it was done on a phone or even an excel import??. I dont know if not requesting the cpr means I cant ask for proof of how they got the amount?   Is that enough about the lack of account details?, I mean my cabot ref is at the top of the page but 100% no aqua account number on here. That would surely come under having to prove    Please feel free to tweak etc. Wasnt sure how to word the s78 stuff as I didnt want to lie with it being not in default till weds.     Photo of poc is shown above to show how lacking it is in format in particular        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.     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 and have sought verification from the claimant.   3.     No account details are given in the particulars of claim linking the claim to the defendant.   4.     It is denied or I am unaware of any legal assignment or Notice of Assignment allegedly served by either the Claimant or New Day LTD RE Aqua.   5.     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;   5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.   6. 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 fulfill my CPR 31:14 request.   7. 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.   8. 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 Dixon,   If you don't mind, I'm ignoring the CCJ for the moment.   I'm more interested in what you last said to the police about their failure to investigate the fraud against you commited by FTR Ltd and O'Hara.   If you don't want to post it on-thread, send it to me by PM.
    • ok not to put too finer point on the 'silly' mistake ( as in terms of you are a 'litigant in person' - joe public against the 'system') you made on your claim, there are guides on the same website about raising a claim and how to do it properly, but IMHO there should also be LiP leeway regarding this.   did you seek or read any help, as getting the correct entity to sue is quite important, the example you relate too would not be an issue, but suing a corporate entity is, they have lots of money and clever legal eagles.   i have no doubt that, by whatever way, should you rectify this error , you would be successful mind.   on another issue, have you written to apple uk retail offering to mutually settle this if they pay the price of the device or replace it and call it quits?   i will guess this is all you really wanted at the start and now at the end of the day.?   would you seriously lose out money wise if this were agreed?        
    • Parag Agrawal, Twitter's new CEO, is the latest of several Indian-Americans leading global tech firms.View the full article
    • So Apple can get out of it by this technicality seems ridiculous to me.   They call themselves Apple not Apple Retail. Unless you’re clued up on these things how can the average person know that it's Apple Retail UK.   If I got a letter from the court and never responded based on them spelling my name as Jo Blogg instead of Jo Bloggs I can bet your boots I would still be pulled in over it.    You've been very helpful I’m just annoyed over greedy Apple...oops I meant Apple Retail UK 😂
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H.O.L Test case appeal. Judgement Declared. ***See Announcements***


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Things are on hold at the moment, but you are best to start reclaiming now... if things go the OFT's way (and I think they will) there will be a massive que formed to get your cash back... I think it would be best to get towards the head of that que!

 

Start a thread in the relevent bank forum here and someone will give you advice :)

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A full transcript is now available via the Penalty Charges website of the three days in July

July 7 Transcripts - Penalty Charges Forum

I think it will take you a whole day to read them. First day is 102 pages long.

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

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Your correct to draw attention to this point I think were gearing towards customer service in the branch for business users only.

 

Is this the end of free banking? and the future of banking?

Car is there a limit to how much you can deposit or is it a case that you cant deposit at the cashier counter?

 

Well if I recall either Barclays or HSBC CEO spoke on an News interview what must be at the begining of the court fiasco. He stated that there would be 'no' bank charges for personal customers'. Hmm, makes you wonder if he knew something back then which we don't even now?

I, personally would be happy to pay a monthly fee but there again I have slipped into the overdraft section monthly and they (currently) charge me £25 each time to a maximum of £150 a month (with HSBC anyhow). What makes me cringe is that they keep telling me (on line) to arrange an overdraft (which they charge £25 for a year for). Whenever I apply they refuse!

I have one of those account plus accounts, only because when they gave me a loan I got 1% discount (if I remember rightly) on it. There again they charged me a higher APR than average (like 3% more) so I gained little.

I still recall when a young lady where I work showed me her bank statement from LloydsTSB. I looked in total horror as she exceeded her account by £51 and was charged £15 per day! I noticed the TV documentary the other night never mentioned the kind of payments her bank pay their 'brilliant' bankers. One wonders if all these so called bankers are all they are cracked up to be. Heck, I could sit in an office and say 'Let's charge 'em £15 a day' if at the end of the year someone would pay me £1.5 million in a Bonus plus Shares, Pension, Company car, and Healthcare!! Oh, that'll be on top of my £500k basic I forgot to add.

 

Michael

When I was young I thought that money was the most important thing in life; now that I am old I know that it is. (Oscar Wilde)

--I like to be helpful wherever possible however I'm not qualified in this field. I do consider carefully anything important (normally from personal experience) however please understand that any actions taken are at your own risk--

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If charges have accrued since submitting a claim for bank charges to the Court, is it best to start a new claim. As far as I know you can't change your original defence so no point sending in new figures for an original claim. As the time taken for this situation to be resolved is going on indefinately, will it be accepted for all claimants to request the interest figure to be altered to reflect the time it has taken.

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Youre claim is for the whole lot of bank charegs and the judge will make an order to return them all.

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Absolutely 100% no idea, maybe its cheaper than court costs and farming out the work to legal professionals. FOS is clearly cheaper:D

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

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I am a little confused now having read the judgements and the penalty charges forum pages.

 

Where items are returned unpaid, the OFT initial judgement appears to state that 'no service' has been provided, in which case the charges incurred for 'unpaid items' i.e charge recall so/dd, seems to have been firmly decided.

 

As far as I can see the OFT and the court is now concentarting solely on 'overdraft' and 'unauthorised overdraft' charges.

 

In my case I have never been charged any overdraft or unauthorised overdraft 'fees', since they 'always' returned the items 'unpaid' hence I never went overdrawn. All my charges are therefore in respect of items that were 'unpaid'.

 

Am I being thick here - or should I now be applying for the 'set aside' to be lifted on the grounds that :

 

(a) I am only claiming a refund in respect of charges for those items that have been returned unpaid.

(b) That the judgement on the issue of 'unpaid item' charges has already been determined i.e that no service has been provided.

©That the continuing OFT test case is now irrelevant to me.

 

Maybe I have misread this - someone please put me right if that is the case. If not there must surely be lots of people in the same position.

 

I have posted in this thread because I think this is a general issue regarding the OFT Test case that needs to be clarified - anyone who is more computer literate feel free to move it to the right thread.

 

Regards

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I personally think you are right and would love to here the views of others.

 

Any chance you could provide a link?

"The only thing that interferes with my learning is my education." Albert Einstein

 

"No-one can make you feel inferior without your consent" - E. Roosevelt

 

 

Don't lie, thieve, cheat or steal. The Government do not like the competition.

 

 

All advice is offered without prejudice.

We are being sued for Libel. Please help us by donating

 

Please support the pettition to remove Gordon Brown as he was not elected primeinister. He was elected Party Leader something completely different.

 

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This is my proposed application for the stay to be lifted : Again please feel free to move it to the right place.

APPLICATION FOR REMOVAL OF STAY

 

 

1. The claimant submitted a claim for the return of charges that were unlawfully debited by the defendants to the claimants account as a result of the defendants employees negligence and failure to act reasonably and ‘in good faith’. The claimant also requested the court to consider damages resulting therefrom.

2. A stay was granted to the defendants on the 15th Nov 07 pending resolution of the OFT Test Case in which the defendants were a party and on the basis that it would determine the issues of this particular claim.

3. The claimant seeks that this stay should now be lifted and the matter proceed to hearing for the following reasons :

(a) The OFT Test case sought to determine whether or not charges made by those banks which were parties to the action and of which the defendant bank is a party, were unenforceable penalties and in the event that they were not, whether or not such charges fell within the scope of the Unfair Terms in Consumer Contract Regulations. Principally the continuance of the OFT test case concerns‘overdraft’, ‘unauthorised overdraft’ and ‘paid item’ charges. The claimant fully accepts that the Court has determined that such charges are not penalties and that the general issues regarding ‘overdraft’ and ‘paid item’ charges continues.

(b) The claimant submits that this particular claim does not concern the debiting of ‘overdraft, unauthorised overdraft or paid item’ charges nor does the claimant or this action seek to obtain the return of such charges.

© On that basis the claimant finds it difficult to see how or why the defendants are entitled to the continuance of a stay pending further resolution of the OFT test case and the ‘overdraft/paid item’ charges issue which are of no relevance to this claim..

(d) The claimant simply seeks the return of those charges unlawfully debited by the defendant, which are ‘unpaid item charges’, other losses suffered by the claimant as a result and general damages as a result of the defendants negligence, failure to act reasonably and ‘in good faith’. The claimant would assert that even though the OFT test case continues with regard to the ‘overdraft’, ‘unauthorised overdraft’ and ‘paid item’ charges the matters regarding ‘unpaid item’ charges i.e those within this particular claim have been firmly determined :

Extracts from Mr Justice Andrew Smith approved Judgement (OFT v Abbey National and 7 others dated 24th April 08)

79. This does not mean that the Banks are under no contractual obligation to customers when they receive a Relevant Instruction. The terms of the seven Banks which make reference to a customer making a request in these circumstances, also refer to the Bank’s response to it, and it seems to me that the implication of their terms is that they are obliged to deal with Relevant Instructions in accordance with proper banking procedures. They have a discretion whether or not they should pay in accordance with a Relevant Instruction, but they would be in breach of contract if they rejected it arbitrarily or capriciously or in bad faith. This is because, as it was put by Leggatt LJ in Abu Dhabi National Tanker Co v Product Star Shipping Co Ltd, [1993] 1 Lloyd’s Rep 397 at p. 404: “Where A and B contract with each other to confer a discretion on A, that does not render B subject to A’s uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provision of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.”

(The limits of this principle have been discussed in subsequent authorities: see Paragon v Nash Finance, [2001] EWCA Civ 1466, [2002] 1 WLR 685 at para 38 per Dyson LJ, Lymington v MacNamara, [2007] EWCA Civ 151, [2007] 2 All ER (Comm) 825 at paras 44-45 per Arden LJ, Socimer International Bank Ltd v Standard Bank London Ltd, [2008] EWCA Civ 116 at para 66 per Rix LJ. The precise ambit of any obligation of this kind is not important, nor is it necessary to explore in this judgment what is required in order for a bank to deal

370. There can be no fixed rule as to whether or not distinct and preliminary acts done by a seller or supplier with a view to supplying or deciding whether to supply the benefit which the consumer ultimately seeks are “services” within the meaning of the 1999 Regulations. Sometimes where the customer requests the preliminary or preparatory act (for example, an architect is engaged to produce preliminary drawings), that clearly will be a service in its own right. Equally clearly, the provision of a service might not necessarily provide the consumer with the benefit that he seeks: a doctor might fail to cure but he still provides medical services. But in these cases it is at least easy to see that something is “supplied” to the consumer. In the case of the customer giving a Relevant Instruction, the customer is seeking payment in accordance with it, not that the Bank simply considers making payment, and that is reflected in the terms of the seven Banks (other than Nationwide) whose terms are drafted by reference to a request (or deemed request) on the part of the customer for an overdraft. In view of this and given that the customer receives no actual benefit from his Bank considering his instruction or request for payment and declining to accede to it, I am unable to accept that what the Bank does when it deals with a Relevant Instruction upon which it does not make payment is properly described as “services” and unable to accept that anything can properly be said to be “supplied” to the customer. Moreover, even if the Banks’ processes of considering and processing Relevant Instructions short of paying them, or with a view to deciding whether to pay, could, in any sense, be described as services supplied to the customer, the real and essential service supplied by the Banks under their contracts with customers is that of paying upon the customer’s instruction, and the Banks’ procedures whereby they deal with Relevant Instructions before making payments or when they decide not to pay are ancillary to and incidental to the service of paying in accordance with the mandate.

371. I should add that it was argued by some of the Banks that when a Bank decides not to pay upon a Relevant Instruction, it provides a service, at least in some cases, by way of informing the customer of the position. The decision might involve the Bank in other procedures: for example, returning a cheque through the clearing system in accordance with the rules of the clearing house. These activities, in my view, are no more than the incidental consequences of the Bank’s decision, and I am unable to regard them as services supplied to the customer. Further, on any view they are, again, ancillary or incidental activities.

372. I therefore accept the OFT’s submission that if a Bank declines to pay upon a Relevant Instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it.

The specific services argument

402. The Banks’ specific services argument is that each of the Relevant Charges is the price or remuneration in exchange for the services or a service supplied in connection with a Relevant Instruction given by the customer or by way of the Bank’s response to it. Here it is necessary to consider each category of Relevant Charges separately: despite Mr Doctor’s submission to the contrary, I see no reason that either all four of the OFT’s categories of Relevant Charges are assessable for fairness or none is: after all, the OFT does not suggest that the adequacy of all charges or remuneration that the Banks make of their current account customers are to be, or should be, assessed for fairness.

403. For the reasons that I have already explained, I am unable to accept that the Banks supply customers with any services within the meaning of the 1999 Regulations when they refuse to pay upon Relevant Instructions, and it follows that I reject the specific services argument as far as Unpaid Item Charges are concerned. However, when payment is made, the Bank supplies payment services by way of paying in accordance with the customer’s mandate and supplies lending services. The Banks submit that Paid Item Charges and Guaranteed Paid Item Charges are paid in exchange for both payment services by way of making payment in accordance with a Relevant Instruction and lending services by way of an allowing an unarranged overdraft. (They would add that they are also paid in exchange for processing the customer’s Relevant Instruction, but I have rejected their argument that that in itself constitutes the supply of services.)

4. Accordingly it is respectfully requested that the stay granted on 15 Nov 07 be removed.

I certify that the particulars contained in this application are true to the best of my knowledge and belief.

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The banks appealed Justice Smith's findings and that appeal is pending which means that whether the charges are unfair or whether they can be assessed for fairness under the UTCCR has yet to be determined.

.

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

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A fairly unequivical assessment, I think and not one that would be made unless they were willing to bet the farm on it.

 

It would be quite unacceptable to pre-empt or second guess Andrew Smith's judgement.

 

(unless that is, he has already made his judgement and that this is evidence of a leak.)

Edited by noomill060
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Hi Guys,

 

I have read the FSA revised guidelines on financial hardship criteria, but does anyone know how successful this is in practice, are claims of genuine financial hardship being allowed to progress and not having to wait for the outcome of the test case?

 

Thanks

 

TheyrCriminals

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ummh still confused, quote by noomill060 "The main UK banks have been told by the Office of Fair Trading (OFT) that their overdraft charges are probably unfair." Thus have we won the appeal (is that the judgment) or not and if so when I can we or do the Courts sort out court dates which I had one and thus stayed!... This has gone on and one and I for one will have to re read and digest all the court stuff again.. and print out etc etc..

 

Regards

Master Sun SAID:

Ultimate Excellence Lies Not in Winning Every Battle

But In Defeating the Enemy Without Ever Fighting.8-)

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Whats the point of following proceedings if the bank is going to apeal evry one of them?

 

Take your own advice and dont play into there hands.

"The only thing that interferes with my learning is my education." Albert Einstein

 

"No-one can make you feel inferior without your consent" - E. Roosevelt

 

 

Don't lie, thieve, cheat or steal. The Government do not like the competition.

 

 

All advice is offered without prejudice.

We are being sued for Libel. Please help us by donating

 

Please support the pettition to remove Gordon Brown as he was not elected primeinister. He was elected Party Leader something completely different.

 

http://petitions.pm.gov.uk/gordan-brown/

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Urrrgh 99% of the claimaints have or our having financial hardship its called the credit crunch and getting no where paying the credit cards and I am missing a few bills here or there but never mind I just like the test case to prove yeah or nah..

 

Thus move on once the outcome is sorted, apeal on the appeal is getting ridicolous.

Master Sun SAID:

Ultimate Excellence Lies Not in Winning Every Battle

But In Defeating the Enemy Without Ever Fighting.8-)

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My point exactly we need to stop playing the banks game.

 

We need to get the stays lifted we no they (the banks) arent gona show up. Or if they do in my opinion we'd have strong grounds to question them as to why they havent shown up before.

 

If they had the CCA agreements then they would enforce them. They never think twice about takeing us on so why should we?

 

After all if there simply playing the rules of the law which i seriouls doubt they are then thid would have been sorted by now.

 

Questions I have for the Banks.

 

1. How much do they make from the account being in default?

2. How much do they make from selling my account?

3 . After the account has been sold how much do the debt collection companys make from the account.

4. Are the debt collectioncompanys in house comapnys or are the banks contracted to get the money from the DCA's or debt purchasers (whom ever they may be).

5. At what point were they aware there was a problem with the CCA agreements?

6. At what point did they attempt to contact the consumer to inform them they were wipeing the debt off to comply with regulations instead of wasteing court time?

7. Why do they look on every case individually and why arent they accepting all hardship cases that apear before them.

"The only thing that interferes with my learning is my education." Albert Einstein

 

"No-one can make you feel inferior without your consent" - E. Roosevelt

 

 

Don't lie, thieve, cheat or steal. The Government do not like the competition.

 

 

All advice is offered without prejudice.

We are being sued for Libel. Please help us by donating

 

Please support the pettition to remove Gordon Brown as he was not elected primeinister. He was elected Party Leader something completely different.

 

http://petitions.pm.gov.uk/gordan-brown/

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  • 3 weeks later...

My claim got stayed and has been going on for about 18 months. What can I do. What do i do to get the stay lifted as I am a singke parent with two kids and with christmas on its way I could sure use the money. I dont claim benifit so i dont think i'll have a financial hardship case.. Any suggestions

Buby x

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Personally I'm still somewhat confused....

If I claim 'hardship' and I get all the cash back vs. 'wait for the outcome'.

So what actually happens? Like if the banks win (using our money for their defence) do the 'hardship' cases have to pay it back? Do the classed as not hardship lose? Do we all win? Seems to be a bit of a confused state of affairs with the whole thing and the clocks ticking.

Michael

When I was young I thought that money was the most important thing in life; now that I am old I know that it is. (Oscar Wilde)

--I like to be helpful wherever possible however I'm not qualified in this field. I do consider carefully anything important (normally from personal experience) however please understand that any actions taken are at your own risk--

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