Why is no one claiming the contractual rate of interest???

[photoman]

Bill-K, Mcuth,

Yes, I do understand the principles of Statutory versus Contractual, just maybe not as good as putting it into plain English.

My original confusion arose from my mis-understanding of "natwesttookmymoney"' s original post, declaring he was claiming Contractual AND Statutory. I NOW understand what he meant. He was talking about claiming back his charges, and the interest portion of any overdraft he had incured as a result of the charges, at the same rate he had been charged (which we are entitled to do), He was then claiming 8% Statutory on top at the court stage. All fine.

 

My confusion arose, as I thought he was claiming his charges, claiming the interest portion of his overdraft attributable to his charges, then claiming Contractual interest on top of this (as so many, including myself are doing).........AND then also claiming statutory 8% on top of all this.

My mis-understanding, and I only responded as I panicked, and thought he was making himself liable for "trouble at mill" when the judge saw this, and could lose the whole lot.

I personally, don't see any reason why not to charge Contractual:

1/ They have had your money, and have loaned it out, played with it on the stock exchange etc etc. They have made a lot more than the 8% statutory. Why should they benefit AT ALL at your expense, in any way from their unlawful actions?

2/Had you had the money, at the very least you could have put it into a high yield savings account. Again this would be more than the 8%.

3/ In my own (and many others) case, lack of funds has stifled growth of my business. This again means I could have turned the original charge into something worth a lot more than the 8%.

 

Anyhow, lots are winning with Contractual, and the POC's posted here declaring your case for claiming Contractual, are sound and watertight.

[bill-k]

...claiming Contractual interest on top of this (as so many, including myself are doing).........AND then also claiming statutory 8% on top of all this.

Photoman - I also misunderstood Westy at first, but he knows I have trouble grasping his arguments from another thread !!

 

Westy - If I've understood you finally, then you appear to be claiming statutory on your total claim, and not contractual interest. As long as you're aware of the choices, and have made a fully informed one of your own, then that is good.

 

Once again - sorry for any confusion !!!

[MrsMonkey]

Hi - me again (by the way Westy, what's wrong with monkeys anyway....!! )

 

I've been looking through the Lawpack and found...

 

'You cannot sue for an amount larger than £5000 using the Small Claims Track in the County Court. IF you believe you entitled to more than £5,000 you can voluntarily lower your claim to £5,000 so you can use the Small Claims Track. This may be advisable, for instance, if you think you have a claim for £5.200. Here it may be wiser to sacrifice the additional £200 for recovery without legal fees. The £5,000 limit does not include any sum you claim for interst under the Count Courts Act 1984'

 

So the 8% can be added on top but there is no provision for any other type of interest i.e. contractual.

 

It also says...

 

'You are not allowed just to divide a calim that is over the £5000 limit into two or more claims so that each is within the limit'

 

Now, I'm sure I've read on here about people who have done just that but apparently it's not allowed?!

 

Thought it'd be of interest to you all.

 

Question - What is the worst case scenario? i.e. Can the judge throw the whole claim out? Or allocate it to fast or multi track?

What I'm trying to say is - if the worst that can happen is you'll just get what's owed to you without interest i.e. initial sum then what has ANYONE GOT TO LOSE?!!

[MrsMonkey]

Apologies for typos i.e.calim and interst. Typing too quick and not checking.. Doh!

[bill-k]

Mrs M - The Pearl book says that interest is included in the total amount for calculating the issue fee, but is not included when deciding allocation. So from that it seems that you can file a claim for £5,000 in the SCC plus statutory interest, and it will still remain in the SCC track. It is a bit vague though with regard to contractual interest, but as that is still interest, then I think it has to be treated the same way. I believe the judge has the final say, though.

 

I believe you do need to have a sensible reasonfor splitting a claim. One such may be claiming for overlimit charges in one claim, then failed transactions in another, etc. And also splitting up the last 6 years of charges, and then previous years' charges.

 

I don't think one stands to lose one's claim for the charges, provided one has made a decent claim. The banks just don't really have a defence against that, it seems. It does seem to be just the interest that's argued over. However, contractual interest can be a very large sum, so it's worth making the effort for. And claiming lower rates in the alternative provides for arguments from the banks, too.

 

JMHO, but HTH

 

Bill

[photoman]

Bill-k , Rules are all still is all a bit vague regards contractual interest included as part of or seperate to claim in respect of allocation, also are you suggesting not to mention the alternatives in POC, in case Bank think they are being offred a multiple choice? Surely it's still worth mentioning on POC, so that the judge (who has the final say), considers you to have been reasonable ? You still insist on the Contractual in any negotiations prior to Court with the Bank.

PS: just sent you a PM

[natwesttookmymoney]

Hi, all

Well, I have been working my back-end off for two weeks and had finally caught up on all outstanding work last night. After a couple of sweet sherries with the memsahib I tried to catch up with o/s CAG correspondence. I was towards the end of my tether by 2am. Anyway, your gracious apology accepted, we move on.

Yes, Bill, you've got it right: I am claiming that portion of interest I have been charged within my overdraft that is applicable to my charges. In addition, I'm claiming 8% statutory. I am aware of the differing points of view on mutuality and reciprocity. I have decided to go the statutory route. As you may be aware, my claim is a biggie and way over the £5K limit. I have considered the arguments and gone for fast-track, rather than attempting any splitting of the claim, which may appear to be artificial - that would run the risk of subsequent claims being booted into row Z.

So, I am erring on the cautious side, I acknowledge but I'm confident I can make the case I have presented.

What do I have to lose if interest isn't allowed?

About £2700 contractual and £2000 statutory.....

 

Westy

[bill-k]

Bong is awaiting a reply from MCOL top brass about whether contractual interest is included for fee calc. as well as for allocation. So far, they have been rather vague !!! However, she did successfully submit a claim for "£XXX plus interest" and the fee she was charged was based just on the £XXX amount. Sarahpp is also about to try the same, I believe.

 

Sorry I wasn't clear regarding alternatives. I thoroughly recommend alternatives, as they are a safety net against any argument by the banks over interest.

 

I suggest, though, that one does not mention the alternatives during pre-court negotiations (ie., prelim, LBA, etc.), as it only causes confusion. I believe one should just mention the primary contractual rate one is actually claiming.

[sarahpp]

As Bill mentioned, I had tried the route of excluding the interest for the purposes of track allocation/court fee but, have had mine returned to me by the court today unfortunately so, I guess I will be starting again. As far as I am aware though Bong's is still going through so,it looks like it depends on the court used.

[natwesttookmymoney]

I believe that the claim including contractual interest determines track and the amount you have to pay; statutory interest is at the court's discretion so isn't included, in the same way as court fees aren't, either.

W

[Mad Nick]

Forgive the slight deviation, but still on the subject of claiming contractual interest, the main justification I've seen is "mutuality and reciprocity" but, try as I might, I can't find an legal mumbo-jumbo to back it up.

 

What do you think about playing the "fairness and balance" argument in relation to contractual interest. Is it, in fact, the same thing as "mutuality and reciprocity". If it is, then F&B has the advantage of some legal mumbo-jumbo to back it up (which I found when I was background reading) :

 

The legal basis of "fairness and balance" appears to be UTCCR Schedule 2, para 1(b) : inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

 

and the associated OFT Guidance document (OFT 143 @ http://www.oft.gov.uk/NR/rdonlyres/7...0/0/oft143.pdf

which says at Annex B : “Terms Excluding Or Limiting Liability, paras 1a and 1b of Schedule 2 : Fairness and balance require that both parties to a contract are equally bound by it, and equally liable to pay compensation for failure to abide by it. A term which could be used – even if that is not the intention – to prevent or hinder customers from seeking redress when the supplier is in default tends to upset the balance of the contract to the consumer’s disadvantage.”

 

Is one interpretation that we paid "compensation" for breaching an overdraft limit in the form of contractual interest, so they should pay similarly for breaching the contract by imposing an unlawful charge.

 

Interested to hear any comments (including "get off my thread" or "Mad Nick, you're talking cobblers" - I wouldn't be the least bit offended by either.

 

Regards Mad Nick

 

PS Happy Christmas everyone.

[millymollymoo]

Hello I have been posting messages on my millymollymoo v goldfish thread and nobody likes me because they never answer me:( !!!

 

Can I ask if this section below is ok for my prelim to Goldfish as I was not happy about what I put on my Capital One prelim concerning contractual interst being claimed. Would someone be kind and look at this before I post it off (it is just this bit I am worried about!)

 

Hi is this okay for the wording on my prelim. I am claiming contractual interest.

 

I calculate that you have taken £XXX.XX in penalty charges plus £XXX.XX which you have charged me in interest, I claim the contractual rate of interest at 21.4% as set out in the attached list of charges. I believe this rate to be justified under the principle of mutuality and reciprocity, and is based on your Cash Advance interest rate that would be applied under the terms of the above mentioned account. Therefore the total amount owed as of today’s date is £XXX.XX. I should advise you that interest is accruing on a daily basis and early settlement of this claim is in your interest.

I enclose a schedule of the charges which I am claiming with this letter.

 

Thanks X Milly:)

[bram stoker]

RE PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE Looking at 26.8 (2). I would disregard interest of any kind when making a claim for purposes of allocation.

[MrsMonkey]

Sorry if I'm being dense, Vampiress..

 

Does this mean that the claim can be over £5000 if the inital amount is not over this amount but is if you include the contractual interest?

 

If so, why did Sarahpp's (further up the thread) get knocked back?

 

Anyone?:idea:

[bram stoker]

I personally haven't read the thread, I can just say, be aware of the law, and fight harder than them, even if they do have s****y well paid solicitors.

 

If you're going to ask for contractual you really do need to be able to state the law on it.

 

Like I said, I don't know the case. I'm sure others can comment.

[bram stoker]

update... http://www.consumeractiongroup.co.uk/forum/lloyds-bank/33957-beales-lloyds-tsb-4.html#post439481

[Glenn UK]

FWIW

 

There is a lack of clarity as far as I can tell, and Ive looked reasonably hard, on the issue of whether contractual interest is, or is not, part of the claim value when considering allocation.

 

Theres a CPR which says interest isn't included.

 

However, i have had a legal view from a solicitor (retired) and a judge, which suggested that contractual interest is part of the claim value for allocation.

 

On the AQ from the defendant in one of my claims they talk about the 'true value of the claim' being the charges only, which is interesting since if there was specific CPR to refer to then i would have expected (naively maybe) that they would have simply said 'that the rules say to disregard the contractual interest and that this is in effect a small claim', they didnt.

 

SO IMHO if you are claiming contractual interest and it is above the threshold for small claims or fast track, then you need to be prepared for the claim to be allocated to that track.

 

The implications of this are that if your claim value is more than 5k it goes into fast track with the attendant risk for costs being awarded, generally limited to 750.

 

What is more worrying of course is that if the claim is above 15K and is allocated to multi track then your exposure is for full costs, which could of course be significant and unless you have lottery winning money could mean the loss of everything.

 

You should also be aware that whatever the value of your claim, the rules are in fact guidance and the judge can allocate as they see fit. Hence there have been claims allocated to mercantile court and fast or multi track when the value is only a couple of hundred quid.

 

Re splitting claims, you should always aim to make a single claim, if you don't then the defendant can ask for second/subsequent claims to be struck out on the basis that theyre vexatious i believe.

 

If you have a good reason to split claims, e.g. you don't have all the statements when you submit the first claim, it would be unlikely that a court would swallow this argument.

 

I think its feasible that a defendant could use this argument whether the first claim got to court or not.

 

JMHO

 

Glenn

[bill-k]

Thanks, Glenn - concise as ever.

 

It's about time I gave you a kick.

 

Sorry, typo - click.

[Guest peed orf]

Hello I have been posting messages on my millymollymoo v goldfish thread and nobody likes me because they never answer me:( !!!

 

Hi Milly, just incase you haven't received an answer...............Good morning, I have days when nobody answers me too, but not usually in here!

Letter looks ok to me, bur someone with a little more knowledge should have a look!

[natwesttookmymoney]

Hi, Molly

 

As I understand your letter, you're seeking to claim the charges themselves, plus the interest you've been charged, and their cash advance rate in addition.

 

If that's what you intend, then that paragraph is quite clear. I'm not sure that I, personally, would continue beyond "interest is accruing on a daily basis". The rest of the sentence is clear by what you've said.

 

 

JMHO

 

Best wishes

 

Westy

[millymollymoo]

OOPS! I think it needs rephrasing and that I will have to take that bit out about the cash advance rate as I am not wishing it to seem I am claiming more interest on top of the contractual.

 

It was my intention just to advise them of the rate I used.

 

Milly:)

[photoman]

Matters relevant to allocation to a track 26.8 (1)When deciding the track for a claim, the matters to which the court shall have regard include –

(a)the financial value, if any, of the claim;

(b)the nature of the remedy sought;

©the likely complexity of the facts, law or evidence;

(d)the number of parties or likely parties;

(e)the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;

(f)the amount of oral evidence which may be required;

(g)the importance of the claim to persons who are not parties to the proceedings;

(h)the views expressed by the parties; and

(i)the circumstances of the parties.

(2)It is for the court to assess the financial value of a claim and in doing so it will disregard –

(a)any amount not in dispute;

(b)any claim for interest;

©costs; and

(d)any contributory negligence.

[photoman]

My own views regards my last post (which was taken verbatim from the Court procedures Allocation guidelines).

In keeping with Glenn UK's comment that it is not just the value of the claim that determines allocation,the other factors mentioned here, that are taken into account when allocating track.

Point 1©: "The likely complexity of the facts, law or evidence." If you are claiming Contractual interest, or making a claim beyond 6 years, this rule could bump your claim into a higher track?

Point 1 (g). "the importance of the claim to persons who are not parties to the proceedings;". I summise this as referring to, if your claim is unusual or groundbreaking (for example, one of the first seeking an overturning of 6 years rule), then the judges may wish to see this is in a higher court, as it could set some precedents, which would effect future claimants, ie the other persons not party to the proceedings.

 

However, it might not all be negative?

 

Point 1(i)The circumstances of the parties.

 

As you are a litigent in person, without the legal knowledge or assistance to hand that the Defendent would have, and more importantly, could also not bear the costs of losing a case in a Mercantile court, you could perhaps politely ask for the Judge (either in your AQ, or as a supplement), to consider these points in consideration to point (i). as to the implications to yourself, and how it could unfairly cause you to reconsider even continuing with the action.

 

As, I say, these are just my views, and I would appreciate others ??

[olympic1805]

Hi, received letter today from shabby abbey telling me they are looking into my claim. tough !! sending my lba off tomorrow but not sure where to go with the interest ? don't know whether to just apply the 8 % or go for the full contractual interest, by the way does anyone know what the rate is for shabby abbey ?

[Glenn UK]

 

As you are a litigent in person, without the legal knowledge or assistance to hand that the Defendent would have, and more importantly, could also not bear the costs of losing a case in a Mercantile court, you could perhaps politely ask for the Judge (either in your AQ, or as a supplement), to consider these points in consideration to point (i). as to the implications to yourself, and how it could unfairly cause you to reconsider even continuing with the action.

 

As, I say, these are just my views, and I would appreciate others ??

 

I think if your claim would normally fall within the small claim or fast track but was allocated to mercantile court or multi track then an approach to the judge to apply the cost rules for the 'normal' track would find favour.

 

I know from some of the postings in the mercantile thread that claimants have asked and been gratned an order restricting costs based on the small claims track when the claim was allocated to mercantile court.

 

Something else worth considering is that despite being a litigant in person the court will uphold the law whatever your level of knowledge and whatever the conseqeunces to you. However, the law allows the judge to do a lot of things which may favour the litigant inperson in some respects, costs being one of them.

 

HTH

 

Glenn