Andy v CapOne

[andyford2000]

sorry aint been for ages, had a load of problems going on here.

 

I was in the process of filling in a N1 and and POC for Capital One, but lost the documents when my computer crashed big style.

 

anyway I was wondering does anyone have the correct POC for capital one incorporating bank charges, PPI payments and default removal

 

I would welcome this info as i need to move it on now as its been a year since i started on this road.

 

I believe capone have now passed it onto a debt collection agency and they have informed me they are going to forward this onto county court now.

 

very urgent, please advise

[Guest Old_andrew2018]

bump

[andyford2000]

bump again please

[Belville]

New cap one POC is here

 

Credit Card charges POC N1

 

Good luck

Belville

[andyford2000]

many thanks, but how or where do i ask for repayment of PPI and default removal from ones credit files at credit reference agencies

[andyford2000]

bump again please

[andyford2000]

please help, need to sort this this week

[andyford2000]

i really am in need of urgent help here as too how to join my claims together and file court papers

[StokiePotter]

To be honest Id help you if I could BUT.... I didnt go for the PPI when I made my claim so wouldnt know where to start with that one..

 

I've "today" received a letter offering me full settlement 10 days before my 28 day deadline after they filed their defence to the court, If Im honest it has been fairly straight forward, just hoping to find the relevant information to ensure that my default is also removed along with the arrival of my cheque

 

If I find anything of use to your claim Ill let you know

[andyford2000]

thanks for the reply

[ukaviator]

Andy. .. hang on here for a few mins, i have something you could adapt.

[ukaviator]

Andy, adapt to suit.

 

 

 

PARTICULARS OF CLAIM

 

 

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

 

2. “The Agreement” essentially consisted of the Defendant providing the Claimant with a credit card, (“The Card”) with Payment Protection Insurance, which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate. The Agreement included Payment Protection Insurance (“PPI”) which was taken out at the same time.

 

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 1).

 

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 or

 

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

 

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

 

The Charges

 

8.The standard Terms of the Agreement in substance provided as follows:

 

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

 

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

 

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

 

(d) 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, had a credit cheque returned or had a payment returned. The Charges are currently £12. Prior to 2006 the Charges were £25

 

Penalty

 

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

 

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

 

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

 

The Regulations

 

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

 

13. 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.

 

14. 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.

 

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2)The Charges were a penalty for breach of contract.

 

(3)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.

 

(4) 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.

 

(5) 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.

 

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

 

(7) 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.

 

15. 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.

 

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

 

(2) 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).

 

(3) The Charges are correctly described as default charges by the Defendant in the published tariff of charges.

 

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

 

17. The Defendant wrongly applied Charges to the Account totaling some £xxx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

 

Payment Protection Insurance

 

18. The Claimant contends that the PPI relating to the Agreement, was purchased by the Claimant by ticking a box on the Application Form.

 

19. The Claimant contends that the PPI relating to the Agreement was not suitable for purpose because xxxxxxxx/ believed to be/ not covered by the Payment Protection Insurance policy. The Defendant did not explain that there were certain exclusions which would affect any claim with the insurance policy sold by the Defendant.

 

20. The Office of Fair Trading states that “PPI protects borrowers' ability to maintain repayments and should help them avoid getting into debt should they be unable to keep up their repayments due to accident, sickness or unemployment.” The Claimant contends that the PPI sold in relation to the Agreement was never capable of meeting those requirements, and that the policy was mis sold.

 

21. The Claimant believes that a reasonable level of care and skill was not offered to the Claimant by the Defendant during the sales process, and that therefore Capital One (Europe) failed to meet its obligations under the terms of section 13 of the Supply of Goods and Services Act 1982.

 

22. The Claimant believes it is inconceivable that a Financial Institution, a multi-national company specialising in personal finance, would not have given full training in the eligibility requirements for a product that provides a considerable boost to its profitability through commission and interest. The Claimant was not told that Payment Protection Insurance could be purchased elsewhere which would suit.

 

23. On the basis of this, the Claimant believes that due to advice not given after the filling in and posting of the Application Form, was in fact fraudulent, and therefore a breach of common law, in that the representation of the product’s suitability was either made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. I refer the court to the judgement given by Lord Herschell (Derry v Peak (1889) 14 App Cas 337).

 

24. The Claimant also contends that there should have been a system of supervision and checking in place to ensure that such errors, omissions and misrepresentations were noticed, and corrective action taken, and if there was no such system in place, then that should also be considered as a failure of the Defendant to meet its obligations under the Supply of Goods and Services Act 1982.

 

 

25. The Claimant contends that no information was given regarding the additional costs that the PPI would add to the Credit Card account.

 

 

26. The Claimant contends that it was never explained by the Defendant that the PPI would attract interest.

 

 

27. The Claimant contends that, no forms were provided for signature after filling in an Application Form for a Credit Card.

 

 

28. The claimant contends that the inexperience of the signatories in financial matters at the time, contributed to the forms not being fully checked.

 

 

29. The Claimant contends that there was an entitlement, to expect that any advice and information given, was true and honest, and that a reasonable level of care and skill would be given to ensure that the best interests of the customer were being met.

 

 

30. The Claimant contends that the PPI was sold with a view to meeting sales targets and providing bonuses and commission for Managers and staff, rather than to help the Claimant attain a better financial position.

 

 

31. The Claimant contends that there should have been a system of supervision and checking in place. The Claimant contends that the very fact that such a system was not in place, or that the system failed to identify the errors, omissions and misrepresentations highlighted elsewhere in these Particulars, should be considered as evidence of a policy of “turning a blind eye” by senior company management whose careers and remuneration are also reliant on bonuses, incentive schemes and sales targets.

 

32. In the light of the contentions made above, the Claimant asks that the court consider that an “unfair relationship” exists under the terms of section 140A of the Consumer Credit Act 1974. Should the court decide that section 140A does not apply, the Claimant contends that the actions of the Defendant grossly contravene ordinary principles of fair dealing as outlined in section 138 of the Act, and therefore the Agreement should each be ruled as an “extortionate credit bargain”.

 

33. In considering this, and all matters in this claim, the Claimant asks the court to take into account the following Principles of Business which are legally binding on Capital One (Europe) the Defendant,under the Financial Services & Markets Act 2000, and are contained in the Financial Services Authority Handbook.

 

34. Principle 1 Integrity - A firm must conduct its business with integrity.

 

35. Principle 2 Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

 

36. Principle 3 Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

 

37. Principle 5 Market conduct - A firm must observe proper standards of market conduct.

 

38. Principle 6 Customers' interests - A firm must pay due regard to the interests of its customers and treat them fairly.

 

39. Principle 7 Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

 

40. Principle 8 Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

 

41. Principle 9 Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

 

42. The Claimant contends that the Defendant has been given ample opportunity to seek a resolution to the matters raised in this claim.

 

43. The Claimant will also cite the voluntary codes to which Capital One (Europe), the Defendant,has agreed to be bound, and which support the view that a fiduciary responsibility can be assumed in a relationship between the Claimant and the Defendant, and that any breach of that assumed level of trust should be regarded as an extremely serious matter.

 

44. In any case, the Claimant will contend that the promotional material produced by Capital One (Europe), the Defendant, give great prominence and emphasis to their integrity and commitment to customer service. Again, the Claimant would contend that where this expensively portrayed image of professional integrity proves to be otherwise, the perpetrator should be held to account.

 

45. The Claimant believes that the Limitation Act 1980 limit of 6 years is not applicable in this case. The Claimant will use s.32 (1) © of the Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges, Payment Protection Insurance, and interest, could not reasonably have been discovered, before the report of the OFT was published on 5th April 2006, and the fine of £175,000 imposed on the Defendant by the Financial Services Authority on 15th February 2007.

 

46. 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 virtue of charges levied to the Claimants account, over a period of up to x years. The absolute fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by re-lending at higher commercially 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 the commercial rates of compounded interest charged by the Defendant on its lending.Therefore, for complete restitution to occur the Claimant submits that an award of compound interest is necessary to provide full restitution of the ‘time value’ of the money and thus a just result. I submit 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.

 

47. In relation to the matters set out above, it is submitted that by virtue of the development of the law recently established in Sempra v Inland Revenue, it is open to the court to award compound interest in a case such as the present. Before this new ground was established, the awarding of compound interest was limited to cases involving fraud or where a breach of fiduciary or other trust duty was established. In the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Lord Goff of Chieveley and Lord Woolf delivered powerful judgments in favour of extending the jurisdiction in order that full restitution could be provided even in cases where no breach of trust could be found.

 

The Claimant claims:

 

48. The Claimant claims all Interest added to the Credit Card account from the xx/xx/xxxx up to and including, xx/xx/xxxx, when the account was in dispute.

 

49. The Claimant claims the removal of all Data entries, Default entries, late payment markers, from the Claimants Credit files, from xx/xx/xxxx to xx/xx/xxxx. The Defendant has continued to process Data to Credit reference agencies, whilst the account is in dispute. This action is a clear breach of the OFT and FSA guidelines.

 

50. The Claimant seeks damages and other sums, as listed in Schedule 1 and below, against the Defendant under Common Law, and/or section 2 of the Misrepresentation Act 1967, and/or section 140B of the Consumer Credit Act 1974:

 

(1) A declaration that the sums totaling £xxx.xx have wrongly been applied to the Account.

 

(2) Payment of the said sum of £xxx.xx and interest at the Contractual Compounded rate of xx.x% of £xxx.xx applied by the Defendant thereon. Total £xxxx.xx

 

(3) Interest at the daily rate of £0.00p until judgment or sooner payment.

(4) Court costs of £xx.

 

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

 

Signed

 

Dated

 

[andyford2000]

oh my god, where do i start, looks complicated

[ukaviator]

Just edit to suit Andy, it's for charges, PPI and adverse credit markers or defaults on your account whilst in dispute.

[andyford2000]

many thanks, just need to read it carefully and understand it all, is there anywhere i could forward mine when completed for someone to look over and make sure its correct, rather than make a fool out of myself

[havinastella]

Just post it on here Andy.

 

Jogs

[ukaviator]

Yes Andy, just post it here for proof reading.

[andyford2000]

just need some help with the following sections, not too clear

 

(1) A declaration that the sums totaling £xxx.xx have wrongly been applied to the Account. is this the overall charges for fees and PPI

(2) Payment of the said sum of £xxx.xx and interest at the Contractual Compounded rate of xx.x% of £xxx.xx applied by the Defendant thereon. Total £xxxx.xx what rate of interest is contractual compond

 

(3) Interest at the daily rate of £0.00p until judgment or sooner payment. how do i work out a daily rate of interest for both PPI and bank charges

(4) Court costs of £xx. is this the fee i will pay to county court

 

sorry to keep asking questions

[ukaviator]

just need some help with the following sections, not too clear

 

(1) A declaration that the sums totaling £xxx.xx have wrongly been applied to the Account. is this the overall charges for fees and PPI -YES

 

(2) Payment of the said sum of £xxx.xx and interest at the Contractual Compounded rate of xx.x% of £xxx.xx applied by the Defendant thereon. Total £xxxx.xx what rate of interest is contractual compounded - THE AMOUNT THEY HAVE CHARGED YOU IN APR EG 20.6% OR MORE IN SOME CASES

 

(3) Interest at the daily rate of £0.00p until judgment or sooner payment. how do i work out a daily rate of interest for both PPI and bank charges. - IT'S THE TOTAL CHARGES AND INTEREST X 0.00022

(4) Court costs of £xx. is this the fee i will pay to county court -YES

 

sorry to keep asking questions

 

That's ok. ..

[andyford2000]

thanks

currently i have a seperate spreadsheet for PPI and Charges, would i be better off incorporating both spreadsheets into a single one

[andyford2000]

bump

[ukaviator]

I would keep the spreadsheets separate, but add the figures together for your claim form.

[andyford2000]

many thanks, I will try and get it all posted up here later today for peoples thoughts and guidance

[andyford2000]

right, here goes. the section in red am i not too sure about with regards the wording off, help would be most welcome. I am adding the POC section, would you also like to see the spreadsheets.

 

I am hoping to get this filed at court on friday of this week, hopefully

 

 

1.The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 28/06/2002, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxx (“The Account”).

 

2. “The Agreement” essentially consisted of the Defendant providing the Claimant with a credit card, (“The Card”) with Payment Protection Insurance, which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate. The Agreement included Payment Protection Insurance (“PPI”) which was taken out at the same time.

 

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 1).

 

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 or

 

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

 

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

 

The Charges

8.The standard Terms of the Agreement in substance provided as follows:

 

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

 

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

 

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

 

(d) 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, had a credit cheque returned or had a payment returned. The Charges are currently £12. Prior to 2006 the Charges were between £18 and £20.

 

Penalty

 

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

 

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

 

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

 

The Regulations

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

 

13. 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.

 

14. 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.

 

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

 

(3)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.

 

(4) 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.

 

(5) 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.

 

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

 

(7) 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.

 

15. 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.

 

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

 

(2) 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).

 

(3) The Charges are correctly described as default charges by the Defendant in the published tariff of charges.

 

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

 

17. The Defendant wrongly applied Charges to the Account totaling some £1036.00 between 28/06/2002 and 20/01/2008. Particulars appear from Schedule 2.

Payment Protection Insurance

 

18. The Claimant contends that the PPI relating to the Agreement, was purchased by the Claimant by ticking a box on the internet web site.

19. The Claimant contends that the PPI relating to the Agreement was not suitable for purpose because xxxxxxxx/ believed to be/ not covered by the Payment Protection Insurance policy. The Defendant did not explain that there were certain exclusions which would affect any claim with the insurance policy sold by the Defendant.

 

20. The Office of Fair Trading states that “PPI protects borrowers' ability to maintain repayments and should help them avoid getting into debt should they be unable to keep up their repayments due to accident, sickness or unemployment.” The Claimant contends that the PPI sold in relation to the Agreement was never capable of meeting those requirements, and that the policy was mis sold.

 

21. The Claimant believes that a reasonable level of care and skill was not offered to the Claimant by the Defendant during the sales process, and that therefore Capital One (Europe) failed to meet its obligations under the terms of section 13 of the Supply of Goods and Services Act 1982.

 

22. The Claimant believes it is inconceivable that a Financial Institution, a multi-national company specialising in personal finance, would not have given full training in the eligibility requirements for a product that provides a considerable boost to its profitability through commission and interest. The Claimant was not told that Payment Protection Insurance could be purchased elsewhere which would suit.

 

23. On the basis of this, the Claimant believes that due to advice not given after the filling in and posting of the Application Form, was in fact fraudulent, and therefore a breach of common law, in that the representation of the product’s suitability was either made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. I refer the court to the judgement given by Lord Herschell (Derry v Peak (1889) 14 App Cas 337).

 

24. The Claimant also contends that there should have been a system of supervision and checking in place to ensure that such errors, omissions and misrepresentations were noticed, and corrective action taken, and if there was no such system in place, then that should also be considered as a failure of the Defendant to meet its obligations under the Supply of Goods and Services Act 1982.

 

 

25. The Claimant contends that no information was given regarding the additional costs that the PPI would add to the Credit Card account.

 

 

26. The Claimant contends that it was never explained by the Defendant that the PPI would attract interest.

 

 

27. The Claimant contends that, no forms were provided for signature after filling in an Application Form for a Credit Card.

 

 

28. The claimant contends that the inexperience of the signatories in financial matters at the time, contributed to the forms not being fully checked.

 

 

29. The Claimant contends that there was an entitlement, to expect that any advice and information given, was true and honest, and that a reasonable level of care and skill would be given to ensure that the best interests of the customer were being met.

 

30. The Claimant contends that the PPI was sold with a view to meeting sales targets and providing bonuses and commission for Managers and staff, rather than to help the Claimant attain a better financial position.

 

31. The Claimant contends that there should have been a system of supervision and checking in place. The Claimant contends that the very fact that such a system was not in place, or that the system failed to identify the errors, omissions and misrepresentations highlighted elsewhere in these Particulars, should be considered as evidence of a policy of “turning a blind eye” by senior company management whose careers and remuneration are also reliant on bonuses, incentive schemes and sales targets.

 

32. In the light of the contentions made above, the Claimant asks that the court consider that an “unfair relationship” exists under the terms of section 140A of the Consumer Credit Act 1974. Should the court decide that section 140A does not apply, the Claimant contends that the actions of the Defendant grossly contravene ordinary principles of fair dealing as outlined in section 138 of the Act, and therefore the Agreement should each be ruled as an “extortionate credit bargain”.

 

33. In considering this, and all matters in this claim, the Claimant asks the court to take into account the following Principles of Business which are legally binding on Capital One (Europe) the Defendant,under the Financial Services & Markets Act 2000, and are contained in the Financial Services Authority Handbook.

34. Principle 1 Integrity - A firm must conduct its business with integrity.

 

35. Principle 2 Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

 

36. Principle 3 Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

 

37. Principle 5 Market conduct - A firm must observe proper standards of market conduct.

 

38. Principle 6 Customers' interests - A firm must pay due regard to the interests of its customers and treat them fairly.

 

39. Principle 7 Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

 

40. Principle 8 Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

 

41. Principle 9 Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

 

42. The Claimant contends that the Defendant has been given ample opportunity to seek a resolution to the matters raised in this claim.

 

43. The Claimant will also cite the voluntary codes to which Capital One (Europe), the Defendant, has agreed to be bound, and which support the view that a fiduciary responsibility can be assumed in a relationship between the Claimant and the Defendant, and that any breach of that assumed level of trust should be regarded as an extremely serious matter.

 

44. In any case, the Claimant will contend that the promotional material produced by Capital One (Europe), the Defendant, give great prominence and emphasis to their integrity and commitment to customer service. Again, the Claimant would contend that where this expensively portrayed image of professional integrity proves to be otherwise, the perpetrator should be held to account.

 

45. The Claimant believes that the Limitation Act 1980 limit of 6 years is not applicable in this case. The Claimant will use s.32 (1) © of the Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges, Payment Protection Insurance, and interest, could not reasonably have been discovered, before the report of the OFT was published on 5th April 2006, and the fine of £175,000 imposed on the Defendant by the Financial Services Authority on 15th February 2007.

 

46. 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 virtue of charges levied to the Claimants account, over a period of up to 7 years. The absolute fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by re-lending at higher commercially 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 the commercial rates of compounded interest charged by the Defendant on its lending.Therefore, for complete restitution to occur the Claimant submits that an award of compound interest is necessary to provide full restitution of the ‘time value’ of the money and thus a just result. I submit 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.

47. In relation to the matters set out above, it is submitted that by virtue of the development of the law recently established in Sempra v Inland Revenue, it is open to the court to award compound interest in a case such as the present. Before this new ground was established, the awarding of compound interest was limited to cases involving fraud or where a breach of fiduciary or other trust duty was established. In the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Lord Goff of Chieveley and Lord Woolf delivered powerful judgments in favour of extending the jurisdiction in order that full restitution could be provided even in cases where no breach of trust could be found.

 

The Claimant claims:

 

48. The Claimant claims all Interest added to the Credit Card account from the 28/06/2002 up to and including, 16/09/2008, when the account was in dispute.

 

49. The Claimant claims the removal of all Data entries, Default entries, late payment markers, from the Claimants Credit files, from 28/06/2002 to 12/09/2008. The Defendant has continued to process Data to Credit reference agencies, whilst the account is in dispute. This action is a clear breach of the OFT and FSA guidelines.

 

50. The Claimant seeks damages and other sums, as listed in Schedule 1 and below, against the Defendant under Common Law, and/or section 2 of the Misrepresentation Act 1967, and/or section 140B of the Consumer Credit Act 1974:

(1) A declaration that the sums totaling £1309.39 have wrongly been applied to the Account.

 

(2) Payment of the said sum of £1309.39 and interest at the Contractual Compounded rate of 22.13% of £1631.61 applied by the Defendant thereon. Total £2941.00

 

(3) Interest at the daily rate of £0.65p until judgment or sooner payment.

(4) Court costs of £xx.

 

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

 

Signed

 

Dated

[andyford2000]

bump please