Glenn Vs Abbey

[newbody]

Devils advocate time for me I think Glenn in this poc section 6 c

 

6. The Claimant contends that:

 

c) The Claimant further contends that the application of the unauthorised overdraft interest rate is a further penalty and is unenforceable as it is contrary to common law.

surley trying to say this is a penalty then asking for the same rate back might appear hypercritical to a judge as it might appear you are saying the bank does it to me is unfair but it is just for me to do it to them

only thing i can see that might be a point of contention

[photoman]

photoman whats wrong with the apostrophes?

 

 

 

An apostophe is when you have omitted a letter for example:

 

"Bong is" would be shortened to Bong's

eg in use;

Bong's a member of CAG

 

as opposed to the possesive noun Bongs

eg in use:

Bongs thread (not Bong's thread, which actually means "Bong is thread" )

 

Thus:

 

Claimants account

 

Not

 

Claimant's account, which actually means.... Claimant is account

 

 

please correct me anyone if I'm (short for I am) wrong ?

[Guest bong]

ahh, but look again, Glenn is only claiming the unauthorised rate if the court finds it isnt a penalty!

[Guest bong]

no photoman, it is used to indicate possession as well as a missing letter

[Guest bong]

I'm:D now sending you on a grammar course photoman The correct grammatical use of the APOSTROPHE (but without being boring)

[photoman]

After that little grammer lesson, find the hidden joke here:

 

My Bank Manager's account !!

 

LOL

[Guest bong]

sorry for the hijack Glenn:p

 

photoman did you read all that in 2 minute's? LOL

[photoman]

Bong I stand corrected.

 

You's right !!

 

But it does create some confusion regards the correct use if English ?

 

(damn, and my joke only works if you apply my past formula)

[Glenn UK]

Photoman

 

I think your joke has a letter or two, too many in fact. but thats another story.

 

Thanks for the comments all I'm going to amend my POC to take on board the comments and issue it in the morning.

 

Glenn

[Glenn UK]

Here is the completed POC, I nearly forgot about non-compliance with sec 7 DPA.

 

Thanks to all who helped me put this together

 

 

 

 

1. The Claimants had two accounts, xxxxxxx and xxxxxxxxx, ("the Accounts") with the Defendant.

 

2. The Account xxxxxxxxx (GlennUK, Sole Account) was opened on or around January 1997 and closed on or around March 2006.

 

3. The Account xxxxxxxxxx (Mr & MRs Glenn UK, Joint account) was opened on or around June 1998 and closed on or around March 2006.

 

4. During the period in which the Accounts were operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimants and also charged interest on the charges once applied. The Claimants understand that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

5. Schedules of the charges applied are attached to these particulars of claim for the Accounts.

 

6. The Claimants wrote to the Defendant and made a Subject Access Request under Section 7 of the Data protection Act 1988 on the 22nd July 2006 in respect of Account xxxxxxxxxx requesting a complete list of transactions and charges relating to my banking history with the Defendant. The maximum statutory fee of £10.00 was enclosed in the form of a cheque drawn in favour of the Defendant.

 

7. The Defendant supplied partial account data in respect of xxxxxxxx but omitted data for the periods xx/xx/xx, xx/xx/xx and xx/xx/xx.

 

8. Despite supplementary written requests to the Defendant requesting confirmation of the transactions and charges on the whole of the Account history, the Defendant has refused to supply all the data it holds on the Claimants.

 

9. A list of the charges applied is attached to these particulars of claim. The entries for the periods set out in item 7 are estimates and will be revised upon the production of the relevant data by the Defendant.

 

10. The Claimants contend that:

 

a) The Defendant holds data relevant to the Claimants which it has failed to provide under Section 7 of the Data protection Act 1988.

 

b) The charges debited to the Accounts are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant ; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimants; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

c) The Claimants find the charges listed in the Defendant’s statements are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to the Claimants, these charges constitute a “penalty charge” as the amounts bear no relation to the actual costs incurred by the Defendant. Such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge.

 

d) The Claimants further contend that the application of the unauthorised overdraft interest rate is a further penalty and is unenforceable as it is contrary to common law.

 

e) The Defendant concealed the nature of their charges and unauthorised interest rates and led the Claimants to mistakenly pay the unlawful charges and interest through their misrepresentations regarding the nature of the charges and interest.

 

f) The facts relevant to the Claimant’s right of action have been deliberately concealed from him by the Defendant.

 

g) The Defendant continues to conceal both the nature of their unlawful charges and interest charges, and the facts relevant to the Claimant’s right, as the holder of the Accounts, to recover unlawful charges and interest removed from the Claimant’s accounts.

 

h) Further, as a disproportionate penalty the charges and unauthorised interest are invalid under the Unfair Contract Terms Act 1977 s.4 and under The Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

11. Accordingly the Claimants claim:

 

a) the Court orders the Defendant to provide the data it holds for the periods set out in Paragraph 7.

 

b) return of the amounts debited in respect of charges in the sum of £xxxx.xx and interest charged thereon, estimated at £xx.xx

 

c) A declaration from this Honourable Court that the level of levied charges are unlawful and unenforceable (Edit reqorded as per Bongs post below so this is now correct);

 

d) Court costs;

 

e) If the Court determines that the Unauthorised Interest rate is a lawful charge then the Claimants claim compound interest on the charges and overdraft interest applied thereon to the Claimant’s accounts (“the principal claim”), at the annual rate of 28.7%. This is the rate currently applied by the Defendant to unauthorised use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimants deem the Defendant’s principal indebtedness to the Claimants to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. 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 accounts breaches. Since the Defendant has been invited to do so prior to the issue of Court proceedings, and has refused, and since the Claimants are aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimants deem the Defendant ’s charges to the Claimant’s accounts to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimants would authorise the Defendant to apply unlawful penalty charges and interest thereon to the Claimant’s accounts, or to profit in an unlawful manner from the Claimant’s accounts breaches.

 

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:

 

Unfair Terms

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 accounts by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

f) In the alternative to 11(e), should the Court deem that the claim does not merit the application of the Defendant’s unauthorised lending rate, the Claimant claims that the Defendant is put to an Account of profits and that any profits derived from their unlawful removal of sums of money from the Claimants accounts be returned to the Claimant.

g) As particularised at 11(e), contractual interest at an annual rate of 28.7 % compounded daily from the date of each transaction to 30th March 2007, of £xxxx.xx.

 

h) Further contractual interest at 28.7 % compounded daily from xx/xx/xx up to the date of judgement or earlier payment. As the interest is compounding and the Claimant is unable to predict when the claim will be heard or settled, the Claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the Defendant requests an earlier settlement.

i) In the alternative to 11(g) & 11(h), any award made to the Claimants pursuant to paragraph 11(f)

[Guest bong]

are you going to be checking this over for little mistakes, like "he" instead of "they" etc..?

 

11c - needs to be reworded as discussed earlier

[Glenn UK]

Hi Bong

 

thanks, as usual a little something slips through, I was going to say you wouldn't believe how many times i have gone through this, but then again i am sure you do.

 

I have read through this till my eyes are bleeding and head is hurting and as I'm going to take it to the court this lunchtime i guess unless anyone spots really big howler then its done.

 

ROFL i should worry, when you see the stuff the banks submit this is 'world class English and typing', i could barely read the AQ abbey submitted for my 1st claim.

 

Thanks once again.

 

Glenn

[Guest bong]

1. The Claimants had two accounts, xxxxxxx and xxxxxxxxx, ("the Accounts") with the Defendant.

 

2. The Account xxxxxxxxx (GlennUK, Sole Account) was opened on or around January 1997 and closed on or around March 2006.

 

3. The Account xxxxxxxxxx (Mr & MRs Glenn UK, Joint account) was opened on or around June 1998 and closed on or around March 2006.

 

4. During the period in which the Accounts were operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimants and also charged interest on the charges once applied. The Claimants understand that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimants.

 

5. Schedules of the charges applied are attached to these particulars of claim for the Accounts.

 

6. The Claimants wrote to the Defendant and made a Subject Access Request under Section 7 of the Data protection Act 1988 on the 22nd July 2006 in respect of Account xxxxxxxxxx requesting a complete list of transactions and charges relating to their banking history with the Defendant. The maximum statutory fee of £10.00 was enclosed in the form of a cheque drawn in favour of the Defendant.

 

7. The Defendant supplied partial account data in respect of xxxxxxxx but omitted data for the periods xx/xx/xx, xx/xx/xx and xx/xx/xx.

 

8. Despite supplementary written requests to the Defendant requesting confirmation of the transactions and charges on the whole of the Account history, the Defendant has refused to supply all the data it holds on the Claimants.

 

9. A list of the charges applied is attached to these particulars of claim. The entries for the periods set out in item 7 are estimates and will be revised upon the production of the relevant data by the Defendant.

 

10. The Claimants contend that:

 

a) The Defendant holds data relevant to the Claimants which it has failed to provide under Section 7 of the Data protection Act 1988.

 

b) The charges debited to the Accounts are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant ; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimants; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

c) The Claimants find the charges listed in the Defendant’s statements are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to the Claimants, these charges constitute a “penalty charge” as the amounts bear no relation to the actual costs incurred by the Defendant. Such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge.

 

d) The Claimants further contend that the application of the unauthorised overdraft interest rate is a further penalty and is unenforceable as it is contrary to common law.

 

e) The Defendant concealed the nature of their charges and unauthorised interest rates and led the Claimants to mistakenly pay the unlawful charges and interest through their misrepresentations regarding the nature of the charges and interest.

 

f) The facts relevant to the Claimants' right of action have been deliberately concealed from them by the Defendant.

 

g) The Defendant continues to conceal both the nature of their unlawful charges and interest charges, and the facts relevant to the Claimant’s right, as the holder of the Accounts, to recover unlawful charges and interest removed from the Claimant’s accounts.

 

h) Further, as a disproportionate penalty the charges and unauthorised interest are invalid under the Unfair Contract Terms Act 1977 s.4 and under The Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

11. Accordingly the Claimants claim:

 

a) the Court orders the Defendant to provide the data it holds for the periods set out in Paragraph 7.

 

b) return of the amounts debited in respect of charges in the sum of £xxxx.xx and interest charged thereon, estimated at £xx.xx

 

c) A declaration from this Honourable Court that the level of levied charges are unlawful and unenforceable (Edit reqorded as per Bongs post below so this is now correct);

 

d) Court costs;

 

e) If the Court determines that the Unauthorised Interest rate is a lawful charge then the Claimants claim compound interest on the charges and overdraft interest applied thereon to the Claimant’s accounts (“the principal claim”), at the annual rate of 28.7%. This is the rate currently applied by the Defendant to unauthorised use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimants deem the Defendant’s principal indebtedness to the Claimants to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. 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 accounts breaches. Since the Defendant has been invited to do so prior to the issue of Court proceedings, and has refused, and since the Claimants are aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimants deem the Defendant ’s charges to the Claimant’s accounts to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimants would authorise the Defendant to apply unlawful penalty charges and interest thereon to the Claimant’s accounts, or to profit in an unlawful manner from the Claimant’s accounts breaches.

 

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:

 

Unfair Terms

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 accounts by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

f) In the alternative to 11(e), should the Court deem that the claim does not merit the application of the Defendant’s unauthorised lending rate, the Claimants claim that the Defendant is put to an Account of profits and that any profits derived from their unlawful removal of sums of money from the Claimants accounts be returned to the Claimants.

g) As particularised at 11(e), contractual interest at an annual rate of 28.7 % compounded daily from the date of each transaction to 30th March 2007, of £xxxx.xx.

 

h) Further contractual interest at 28.7 % compounded daily from xx/xx/xx up to the date of judgement or earlier payment. As the interest is compounding and the Claimants are unable to predict when the claim will be heard or settled, the Claimants are unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the Defendant requests an earlier settlement.

i) In the alternative to 11(g) & 11(h), any award made to the Claimants pursuant to paragraph 11(f)

[photoman]

Glenn

Good luck.

been doing a bit of a search for Account of profits reference.

I can't actually find anything able to download without payin'

But have found a frefernce to the best source of info on it, I reckon if you find a decent library they may well have it.

look for:

Oxford journal of Legal Studies . Vol 24 no 3 2004

Then I believe the issue is covered on pages 471-494

 

Hope this is helpful?

[elizabeth1]

Glenn goodluck!!! you worked really hard on this and deserve every penny for your efforts!!

[Glenn UK]

Bong thanks for that i really appreciate it.

 

Ill check through the one i have on the pc at home to make sure i corrected the claimant to claimants where appropriate it was one of the things i did do so hopefully picked them all up.

 

Photoman did you get the case i mentioned about account of profits? If not i can pm it to you.

 

Glenn

[lellypea]

Good luck Glenn - here's to a 'clear' tho 'bleedin an hurtin' head......no doubt you will, as always, be magnificent in whatever is hurled at you.

 

You soooooo deserve TOTAL victory

 

Lel

[photoman]

Glenn,

No, not got your account for profits pm.

Would you mind send again please?

thanks

[TANZARELLI]

Bong thanks for that i really appreciate it.

 

Ill check through the one i have on the pc at home to make sure i corrected the claimant to claimants where appropriate it was one of the things i did do so hopefully picked them all up.

 

Photoman did you get the case i mentioned about account of profits? If not i can pm it to you.

 

Glenn

 

Me too please Glenn, if you have time.

 

Got to stop typing your name as Gleen. lol

 

Tanz

[smoorach]

nice one glenn, very impressive. good luck hun not that you will need it.

[quietzap]

Yep, Good Luck, always better than bad.

[2gr82btrue]

is ther any1 that can help me calculate percentages of 28.7% and 16.9%

[d1cky]

is ther any1 that can help me calculate percentages of 28.7% and 16.9%

 

28.7% = amount times by 0.287

 

16.9% = amount times by 0.169

 

if thats wot u mean!

[TANZARELLI]

Good luck Glenn,

 

It looks good. Well done.

 

Tanz

[photoman]

28.7% = amount times by 0.287

 

16.9% = amount times by 0.169

 

if thats wot u mean!

 

Take care 2gr82btrue !!

 

If you were asking for some way to calculate such rates, because you are planning in claiming for such.

 

It is not simply a matter of working it out by multiplying by 0.287 or 0.169 etc.

 

Working out Contractual rates is a lot more complicated, as it entails compounding, and should really only be done using a spreadsheet.

 

The simple formula posted above is exactly that... for working out simple interest, and simple interest is prescribed by acts as set at 8%.

 

You cannot choose your own simple rate, this could cause you enormous problems, be frowned upon by a judge, and cause you to possibly lose a case.