Alphageek Vs Littlewoods

[Alphageek]

This might be a little better?

 

IN THE x COUNTY COURT

 

BETWEEN

 

ALPHAGEEK

Claimant

 

and

 

LITTLEWOODS FINANCE COMPANY LTD

 

Defendant

 

 

PARTICULARS OF CLAIM

 

1.The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/2004, whereby the Defendant was to supply goods to the Claimant under a running credit account, Account no xxxx("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a mail order catalogue which would allow the Claimant to make purchases. In return the Defendant was entitled to charge the price of the goods supplied.

 

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

SUMMARY

 

5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6.The default charges were applied in accordance with the standard terms of The Agreement which were:

 

a. A penalty payable on breach of contract and thus unenforceable: and

 

b. An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7.On xx May 2008, I requested a copy of the contract under which the Defendant was asserting its rights to levy default charges. (Exhibit 01)

 

8.On xx May 2008, the Defendant admitted it held no such contract. (Exhibit 02)

 

9.The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

THE CHARGES

 

10.(a) The Claimant was to pay the minimum payment by the due date as notified in the monthly statements.

 

(b) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression.

CONTRACT PENALTIES

 

11.The Charges were payable on breach of contract by the Claimant.

 

12.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

 

13. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

14.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, 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.

 

15.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 Defendant. The interest claimed at 27 is therefore deemed to provide an equitable remedy as set out in 24 and 25.

THE REGULATIONS

 

16.At all material times the Claimant was a consumer within the Regulations.

 

17.At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

18.Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

a.The terms relating to Charges were standard terms; they would not be individually negotiated.

 

b.The Charges were a penalty for breach of contract.

 

c.The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

d.Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

e.As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

f.As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

 

g. In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

19.Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

a.The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

b.The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

c.The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

20.By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

21.The Defendant wrongly applied Charges to the Account totalling some £1xx.xx between xx-xxx-2007 and xx-xxx-2008. Particulars appear from Schedule 2.

 

22.On xx xxx 2007 the Claimant demanded repayment of the sums wrongly applied.

 

23.The Defendant has not repaid them or any of them.

Compound Interest

 

24. The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 2 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

 

25.Therefore for complete restitution to occur the Claimant seeks an award of compound interest at my bank’s authorised borrowing rate of xxx% per annum compounded. The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy. The Claimant’s case for claiming this rate is based on the recent precedent in Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) allows. Or alternatively interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.

Data Protection Act 1998

 

26.The Defendant does not hold, nor does it claim to hold (Exhibit 01), any consent or contractual right process data pursuant to the Data Protection Act 1998 where the Claimant is the Data Subject.

 

27.Despite 26, the Defendant has processed such data unlawfully.

 

28.It has also reported to 3rd party agencies that the Claimant had breached the terms of a contract in that payments were either received later than a due date and/or not received at all.

 

29.Such 3rd party agencies include Experian, Equifax and Callcredit.

 

30. Such unlawful reporting damaged the claimant’s creditworthiness.

 

And the Claimant claims

 

31. A declaration that the sums totalling £1xx.x have wrongly been applied to the Account.

 

32. Payment of the said sum of £1xx.xx and interest of £xx.xx applied by the Defendant thereon.

 

33. Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £xx.xx, and at the daily rate of £0.xx until judgment or sooner payment.

 

34. Removal of incorrect account status data from the Defendant’s own files within 21 days.

 

35. Destruction of any and all data passed to 3rd parties including, but not limited to, Experian, Equifax and Callcredit within 21 days.

 

36. Copies of data destruction notices issued by the defendant to all third-party data controllers including, but not limited to, Experian, Equifax and Callcredit within 21 days.

 

37. Payment for damage to the claimant’s creditworthiness

 

a. Pursuant to RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

b. Alternatively, a sum at the discretion of the Court.

 

38. Court costs of £30.

 

I believe that the facts stated in these particulars, comprising of 4 pages, are true.

 

Dated

 

 

 

Signed

 

Edited February 22, 2009 by Alphageek
Removed figures

[skintboy69]

Yo Alphageek.

 

I'm at exactly the same stage as you with these munchkins. I am due to file my N1 on Tuesday. Do you mind if I steal your POC?? I've been searching for one for some time.

 

Keep the faith.

 

T.

[Alphageek]

Yes, if it fits your circumstances please use whatever bits you need.

[skintboy69]

Thanks Alphageek. I'll pick and mix.

 

Keep the faith.

 

T.

[Alphageek]

I made a few small amendments to the POC, and have just finished printing the 3 copies of N1, POC and exhibits.

 

Away in the post tomorrow morning.

[skintboy69]

Best of luck Alphageek. I issued my claim against them on 4th march. It was deemed served on 11th march.

 

This Monday morning we had a phone call from Littlewoods legal department asking to settle out of court. They posted the cheque the same day and it arrived Tuesday. They paid the full claim plus 1 charge I'd missed off my SoC.

 

It looks like they're no keener on going to court as the credit card people.

 

Keep the faith.

 

T.

[Alphageek]

That's nice to hear. I have not had my Notice of Issue yet, I'd best give the Court a call in the morning to make sure they received it.

[Alphageek]

The Court confirm issue. I have just not had the notice yet.

[slick132]

Hey Alpha,

 

Looking good

[Alphageek]

Notice of issue received. They have until 3rd April to acknowledge or defend.

[The GodMother]

oh thats next friday

[Alphageek]

Hi TGM,

 

That's right. Not much time for them. I can't see the point of them Acknowledging and then filing a defence when they have admitted they don't hold an agreement for the account.

[Alphageek]

They have acknowledged.

[The GodMother]

bugger. They may make u a offer tho.

[Alphageek]

As they have no standing in law, then they'll have to sooner or later.

[Alphageek]

Defence filed.

 

The defendant, Shop Direct Finance Company Limited (formerly Littlewoods Finance Company Limited, confirms that the claimant has operated a running credit account with it since 2004.

 

The defendant confirms that it applied various charges to the claimant's credit account in response to failures by the claimant to operate his account in accordance with the applicable account terms and conditions. The defendant denies that any such charges are unfair.

 

The defendant confirms that it has reported the claimant's conduct of his credit account to three credit reference agencies. The defendant obtained the consent of the claimant to this reporting by making availalable to him, a fair processing notice, via both the Littlewoods catalogue and website, which explains that customers' conduct of their credit account will be reported to credit reference agencies.

 

The defendant denies any liability to the claimant as claimed.

Not my smelling mistook this time and aren't you supposed to close parentheses at some point in your writing?

 

Anyway, I have to file a N149 now.

[Alphageek]

I have received an offer from them today. I am not sure of the full details as I am not at home right now, but I understand there is a cheque attached. More later...

[bones01]

hi am just getting in to doing a poc for littlewoods my self , just had a peek at yours , would you mind if based mine similar to yours , its brilliant ??

good luck hope your cheque was what you were expecting

 

good luck x

[Alphageek]

Hi bones, no, not at all. You use whatever you need from it.

 

Make sure you adapt it to your set of circumstances. If you have a thread, post it up on there and your fellow CAGers will check it out for you.

 

I have not been in long, so I will go and read what they sent to me an report back soon.

[bones01]

http://www.consumeractiongroup.co.uk/forum/mail-order-catalogues/176509-littlewoods-charges-please-help.html

 

this is my thread thanks will have a go and post it up , so can get corrections done am really new to this

x;)

[Alphageek]

This is their latest missive:

Dear Alphageek

 

RE: Small Claim v Shop Direct Finance Company Limited (formerly Littlewoods Finance Company Limited)

 

I represent the defendant company in this matter.

 

I have reviewed your claim, which has 2 elements:

 

1.A claim for reimbursement of payment default charges (plus interest) and

 

2.A claim for damages for an alleged breach of the Data Protection Act

 

Clearly you entered into a credit agreement with the defendant, irrespective of whether or not an agreement was signed. Subsequently, payment default charges were applied to your account following your failure to make payment in accordance with the prescribed payment terms. Obviously, whenever you failed to make payment, there was a financial cost suffered by the defendant plus the additional cost it incurred when sending you default charge warning letters and default charge letters.

 

Regarding your argument in relation to the Unfair Terms in Consumer Contracts Regulations, there is no imbalance in the rights of the parties as logically there can be no comparable term, to the default charges term, in favour of the debtor.

 

Turning to the matter of the registering of the conduct of your account with the credit reference agencies, I would explain that when you commenced trading with Littlewoods, you were provided with a catalogue, which contained a fair processing notice (Data Protection Policy) which appeared in all subsequent catalogues. This notice explained that the conduct of your account would be reported to the credit reference agencies. By making this notice available to you, the defendant complied with the fair processing requirements contained in Part 2 of schedule 1 to the Data Protection Act.

 

However, in order to bring this matter to an early conclusion the defendant is willing to reimburse the payment default charges that you have paid together with the Court fee. Accordingly, I enclose a cheque for £x comprising £x of charges and £x court fee. Please do no bank the cheque unless you accept this offer as full and final settlement of your claim. If you do not wish to avail yourself of this offer, please return the cheque to me in the enclosed sae.

 

Yours sincerely,

Person

Consumer Affairs Manager

 

Their offer is about 70% of my claim. No offer of compensation for registering late markers with the CRAs or an undertaking to remove said data.

 

I will bank the cheque and tell them I will continue the claim.

 

I am very, very tempted to suggest they bring a copy of their latest catalogue with them to Court and even if the Judge turns it down as a proof of contract at least he may be able to find a nice new pair of shorts for his summer holiday!

[slick132]

Hi Alpha,

 

I know you'll be aware that the sol'r will say that, by banking the cheque, you have accepted his terms in F&F settlement.

 

You'll therefore make it clear in your response that you accept the cheque only as payment on account of the larger sum which you'll continue to seek through court action.

 

Have you considered simply returning the cheque unbanked, thereby making your stance crystal clear.

 

(Slick's playing Devil's Advocate)

[Alphageek]

Hi Alpha,

 

Have you considered simply returning the cheque unbanked, thereby making your stance crystal clear.

 

(Slick's playing Devil's Advocate)

 

Hi Slick,

 

Yes, I thought about it. But I have decided to save them the costs of returning it. A 1st class stamp has just gone up in price don't you know.

 

But, seriously. They are in no position to dictate terms are they?

[slick132]

No, you're right.

 

This is YOUR claim and they are not in a position to dictate terms (although they won't stop trying).

 

My comments were more for others reading your thread to be careful to state clearly the terms on which your accept the cheque as a pay't on a/c of the total sum which you'll continue to seek.

[Alphageek]

Thanks Slick.

 

Although it would appear that this particular case is clear-cut, any opponent in litigation can be dangerous and all claims should be handled with the utmost attention to detail and procedure.

 

Slick's point is a very good one fellow CAGers.