MCOL imminent

[danjob]

Hello everyone,

 

So after a quite a few weeks and no reply from the halifax not one not even the courtesy letter ( which has me a little worried ) I am looking to file the claim with MCOL.

 

However all my letters i have been sending to halifax carlton street not pitrevie business park.

 

Now i am a little worried that all this hard work has been for nothing and that I am going to get shunned by MCOL for sending letters out to the wrong address ( they were all recorded except the last one saying that 14 days was up ...again ).

 

So now when i enter the details just preparing for MCOL as Pitrevie business park it says i cant claim in scotland.....

 

Any advice please

 

Danjob

[**Tilly**]

Hi danjob

 

the advise is to no longer use mcol to file your claim, but to use the N1 instead i have given you the link, you will need 3 copies, also it will not save so you will have to print it when finished completing the forms,

 

 

4. Particulars of claim - N1 - updated version now available

 

 

 

Tilly

[Mr lex]

Yes Danjob,

 

Tillys spot on there, and even gave you the link. N1 is the way to go, there's more room to get your POC in.

 

Lex

[danjob]

Hello,

 

Thanks ever so much for the quick reply guys......

 

Appreciate you reading my thread will finish off the N1 now ready for Thursday..

 

Dan

[ukaviator]

Hi Dan

 

MCOL will automatically put your claim on hold thinking the claim is for bank charges. The N1 route will give you a lot more space for your POC.

 

As the others have said already, N1 is the best route to take.

 

Is there a default to be removed as well? If so, add the removal demand into your POC.

[maroondevo52]

Hi, danjob.

 

Are you in England or Scotland ?

 

Regards.

 

Scott.

Edited August 12, 2008 by maroondevo52

[danjob]

Mr LEX

 

Your Step by Step instructions link doesnt work !!!

[**Tilly**]

Bet mine does

 

Just in case you wanted it

 

 

Example Step-By-Step Instructions - Now updated to reflect the OFT court judgment

[Mr lex]

Thanks danjob,

 

Working on it !!

 

Lex

[danjob]

Im in England matey....

[danjob]

What are the Associated overdraft interest charges when all ive got is the crappy list of charges Halifax send out these days.

 

I have calculated the 8% interest but dont know what this Associated overdraft interest charges are

[danjob]

Particulars of Claim

 

On or around the 21st of June the claimant opened an account xxxxxxxx Card Number: xxxxxxxxxxxxxxxx with the Defendants, the claimant believes this was on the defendant’s standard term and conditions. There was no negotiation on these terms it was either a take it or leave it policy. In fact the claimant had no option but to agree to the terms, as he would have met the same reply at any other Bank.

 

After reading about these types of charges in the Media, the Claimant decided to send the defendant a subject access request letter dated 21st April 2008 (attachment A) asking the defendant to supply him with a fully comprehensive list of all default charges that have been paid on the account over tha past six years.

The Defendant had applied the charges to his account since the 27/09/2004 to 05/02/2007 totalling £ xxxxxxxx

An itemised breakdown of these charges are entered as attachments (B1 - 2 etc)

 

On the 8th of July the Claimant sent the Defendants a letter (recorded delivery) informing them that he believed the charges were a penalty charge (attachment C1 to 2 etc) the Claimant then asked the defendant to refund the said charges as he believed they were not a true reflection of the defendants administrate cost.

The defendent has not replied to any correspondence despite ample opportunity to justify the true costs involved in applying an over limit penalty or a late payment penalty.

 

Because the defendant has continually refused to prove that they have any legal right or contractual right to apply the said charges furthermore they have refused to offer any evidence that the said charges are a true estimate of the administrative cost involved. The claimant has been left with no option but to issue a claim.

 

It’s the claimant’s contention that the defendants charges are a disproportionate penalty and therefore are unenforceable, the claimant relies on the following

 

 

 

 

Common law Principles (Penalty charges are irrecoverable at common law).

 

The precedent for this was:

 

Dunlop Pneumatic v New Garage [1915] AC 79.

 

 

Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges.

 

They are;

1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach.

 

2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum.

 

It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

 

 

Murray v. Leisure play [2005] EWCA Civ 963

 

 

"English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable"

 

 

 

CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

 

 

"'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

 

 

 

 

 

 

Furthermore or in the alternative penalty charges are also contrary to:

 

 

 

The Unfair Terms in Consumer Contracts Regulation 1999 No 2083

 

 

SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair

 

(e) Requiring any consumer who fails to fulfill his obligation to pay a dis-proportionately high sum in compensation

 

 

Further or in the alternative if the defendants state that there was no breach of contract and that the charges are for a service, then it is the Claimants belief that the defendants have attempted to restructure accounts in order to present events of default spuriously as additional services.

 

However The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just their mechanism. For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.

 

The claimant claims from the defendant a sum equivalent to the total amount unlawfully debited from the claimant’s account being £ xxxxxxxx

 

The claimant further claims interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% per annum, being the sum of £ and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.022%

 

The claimant further claims the court fee of £

 

The claimant respectfully requests that the court makes an order for standard disclosure, when issuing this claim, as the defendants have continually refused to supply any requested information.

 

 

Signed

[Mr lex]

Hi Dan,

 

Don't worry about the overdraft charges for a moment, the important thing is to get your claim filed at court. It normally isn't very much given the time scale.

 

Can you tell us if this is for 'Bank Charges' or a 'Credit Card' ????

 

Only asking as a credit card won't be stayed !!

 

Lex

[danjob]

Hi Lex,

 

Its for a credit card......

[danjob]

Thats it.........My file was put in for yesterday via small claims and am now waiting for the return of my copy of the documents.....