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    • Thanks I just had a quick look.  Will study over the w/e My friend does have kids. But it's a really dysfunctional family.  They don't talk.   Many years ago he sold 2 property assets and gave them a lot of money (enough to buy homes w/o loans) .  They've done nothing for him in the last 2 decades. And he altered his will so his new partner gets everything; the kids nothing (more). The 1st form I glanced at - to be deputy - asks for family details.   If I give his kids details I suspect the authorities may say they should get the deputy job instead?  Then  they will steal the money and give nothing to his partner. I can get a copy of the medical assessment  - and get it translated.  If need be.   This has all happened very quickly.  He got sick. And that must have kick-started dementia.   He was fine to hold a detailed conversation 6months ago; now he cant
    • Hi I think the only way around this as he lacks capacity is someone is going to have to apply to be a deputies via the Courts as he has assets here in the UK and a UK Bank Account which will take time and there will possible be Court Fees to make the application. Also if the Lack of Capacity (Dementia) was diagnosed abroad the person applying for deputies will need that diagnosis and it will need to be translated legally for the UK Courts so possibly cost for this as well. Also for reference although you were assisting them before the lack of capacity and had authority to act on there behalf that no longer stands due to there diagnosis of Dementia therefore Lack of Capacity so you no longer have any authority legally to act on there behalf unless the below is actioned or someone has Power of Attorney for that individual (which was setup before the Lack of Capacity) Have a wee look at these links: https://www.gov.uk/become-deputy https://www.lawsociety.org.uk/topics/private-client/mental-capacity-international-aspects#:~:text=You might need to make,act within the foreign jurisdiction https://www.gov.uk/government/organisations/office-of-the-public-guardian I have got to ask with the Dementia diagnoses are you 100% sure the diagnosis states they Lack Capacity as not everyone that gets a Dementia diagnoses may lack capacity initially. Now the Office of the Public Guardian link above you could also consider giving them a call just to give them a brief on this situation and get there advice on what documents etc are needed for deputies to be appointed as the person with Lack of Capacity is abroad.
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      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
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Bank prviding you with a service Q


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Ive been reading as much as I can but I do have 1 question.

 

In the case guidance notes it says that the bank has 2 possible arguements, the 2nd being:

 

:That they are providing you with a service which is contemplated by the contract and that they are merely charging you for this service and making a profit from it as would any other business:

 

Later on it says that you can point out that

 

under s.15 Supply of Goods Act the cost of the service is required to be reasonable. S.15 says that where no price is agreed at the time the contract is made, that a reasonable price will be implied.

 

My question is that as I see it, the price of the service is agreed at the time teh contract was made because the amount you are charged is stated in teh terms and conditions booklet?

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My question is that as I see it, the price of the service is agreed at the time teh contract was made because the amount you are charged is stated in teh terms and conditions booklet
I don't quite think so. In setting up a couple of parachute accounts during the last week (if the bank becomes spiteful) I have looked at the tariff booklets. Whilst reference to being charged for these things is mentioned, there is no clear statement about the charge itself. Additionally, and you will see this through many of the threads:

 

Bounced cheque - £30 (fair? enough)

Bank charge pushing me over limit - (not fair) because I haven't done anything, they have, so where is the agreement that I would pay for their actions?

 

Additionally, the charges appear to be fluid, and therefore what is agreed in the Ts & Cs is not always, in reality, what you are charged.

 

Whilst I can understand why you think the Ts & Cs argument is logical, and it is logical, this is what the bank wants you to believe. They do NOT want you to think "aaah, but is it legal?"

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

Collage001.gif

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I been thinking about this more,

 

What i do think we have in our favour is that fact that bank charges change and have increased since signed the terms and conditions many years ago, this has happened aswell on my credit card where the late payment fee was £15 and now is £20.

 

Does anyone know if there is a legal explantion or desciption of what 'a service' actually is?

 

One desciption I found was "work done by one person or group that benefits another"

 

would this be accepted in court?

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I think the simplest definition of a service would be:

 

An action supplied by one party (requested or implied), on behalf of a second party, for an agreed reward (which does not necessarily mean it will cost)

 

Whilst agreed fees, for things like having an overdraft, are certainly an agreed (and paid for) service, penalty charges are not. When you are penalised for, say parking, the penalty is in no way construed to be part of a service provided. You do worng, you get penalty.

 

The argument on this group is that the penalty charge applied by the bank can only be lawful if it represents, in a proportional manner, the costs incurred by the bank in dealing with your infraction. For a penalty charge to rise, 20% year on year, implies that their costs have risen at the same rate. We know that this is not true, and at no time did you agree that your charges would rise by these arbitrary amounts (if this last part is incorrect I stand to be corrected).

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

Collage001.gif

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I still think this topic requires a little more discussion because if i were the banks legal counsel i would look to go down this avenue;

 

Some thoughts....

 

Are the banks saying that the contract has never actually been breached?

 

Also that they offer a unique service which provides you with additional money resulting in an agreed fee set out in the t and c's and that you accept your benefit of this service when going overlimit.

 

It's difficult for me to explain so i'll set out an example.

 

I have a remaining balance of £5

 

I need to buy food for the next few days so i purchase £10 worth completely aware of my financial position and the fee i am likely to incur. I still do it though because i need to eat and the £5 extra i'm borrowing is of great benefit to me. The additional utility gained (staying alive) is immeasurable and could easily be argued to exceed £20 upwards.

 

The charge for this borrowing does not have to be in line with reasonable costs to them and they are fully entitled to profit from your acceptance of the service fee.

 

Do they have a responsiblity to refuse my card though? Does my attempt at using it catagorically state that i want them to accept it?

 

Does this then start to haze the one charge is the same as another theory? A returned cheque fee would not fall under this catagory for example, you are definately not receiving a benefit there.

 

I do completely agree with the penalty charge argument and if a bank has this plastered all over their own literature then they are basically offering the money back on a plate, but i want to make sure i've got all bases covered in my own four pending claims.

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The moderators have access to lots of historical info, and I am certain that some of this will clarify points for individual cases. In discussing 'service definition' on this thread we are engaging in semantics. An individual's case, if reaching a court timescale, will need more concrete advice, and I expect that the mods will offer this nearer the time...

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

Collage001.gif

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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as on my other thread in the barclaycard terms and conditions it says:

 

"Under conditions 16.3 of the barclaycard conditions we may charge the follow additional charges charges to compensate us for additional costs we incur if you break the barclaycard conditions"

 

£15 if you do not make the minimum payment by the payment date

£15 if your statement balance is over the credit limit

£15 if a direct debit, cheque or other item is not paid when first presented"

 

It clearly states that for barclaycard if you dotn make minimum payment you are breaking the terms and conditions.

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I think that it's simpler than that. By going into the food buying example, you're adding a "moral" issue which is irrelevant.

 

1 - Your T&Cs say: You must not go over your limit. If you do, you are in breach of your T&Cs.

 

2 - The law says: A charge must be a genuine pre-estimate of the (in this case, bank's) loss caused by the breach.

 

3 - The bank has no obligation or duty to let the card payment/cheque go through. If they do, my argument is that even if they were temporarily extending my credit facility and therefore rendering a service, this would fall under the original T&Cs, since they can not unilaterally change the T&Cs without notifying me, and would therefore not justify additional charges. There is also the argument as to whether it's actually a service to let people borrow more than their set limit, possibly causing further debt problems, which would sit badly with the "responsible lending" so often quoted.

 

4 - If the bank refuses to pay a cheque/card, it is totally within their rights (and I would personally think "duty") to do so. It is then between you and your creditor to solve the problem. But the bank has not actually provided anything, by definition, and therefore, can not charge for anything beyond the recovery of their costs. The argument then goes back to #2.

 

Well, that's my take on things anyway.

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Well worded BW - very clear, concise and exposing the duplicity they operate under. They can 'cherry pick' from the Banking Code - and argue that it is a voluntary code; 'cherry picking' Ts&Cs, which they quote whenever possible, is clearly in breach of those very Ts&Cs...the Ts&Cs either apply...or they don't.

 

Me, I'm going to let a court of law decide, because obviously the bank has yet to make up its mind...

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

Collage001.gif

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Thanks for the replies i do think you are missing some of my points though.

 

I appreciate from their point of view barclaycards t and c's are terrible although obviously we don't want to point this out too much.

 

To illustrate my point further i'll post the relevant section of Smile's t and c's from their website on a standard current account.

 

3. Borrowing and overdrafts

 

3.1 We may agree to you overdrawing your account up to an agreed overdraft limit. Please refer to the smile tariff for information about overdrafts including the charges and interest rates we will apply in any month the account is overdrawn. If your account becomes overdrawn in any monthly charging period and we have not agreed an overdraft limit the smile tariff details the charges for unauthorised overdrafts (including interest, monthly management and daily service charges) which will apply.

 

3.2 You must not overdraw where no agreed overdraft is in place or exceed or try to exceed any agreed overdraft limit. If a payment from your account does or may cause you to overdraw where no agreed overdraft is in place or exceed any agreed overdraft limit:-

 

we may refuse to carry out those payments

you must immediately pay into or transfer enough money to the account to bring the balance back into credit or within any agreed overdraft limit

We will charge you for services we are required to carry out in such circumstances, for example if we have to bounce cheques, please refer to the smile tariff for details of charges we will apply.

 

3.3 You must repay all amounts owing to us on your account in full at the end of the term of any agreed overdraft limit or on our written demand this includes any interest, charges or other applicable fees we have applied to your account.

 

3.4 We will send any written demand by first class post to the address you last notified to us. Any such demand will be treated as having been received by you 24 hours after posting.

 

 

 

As you can see there is no mention of a breach at all and if there is no breach then there cannot be a penalty charge.

 

With reference to your 4th point i would only say i am agreeing with you, in the case of returned cheques/dd's there is no benefit and so would not classify as a service.

 

Also with regard to my money for food example it doesn't really turn it into a moral issue at all in my opinion. It was just to illustrate the benefit of immediate funds could be seen as a bigger need to the person than a greater amount later in time and hence completely justifiable as a benefit.

 

I still am confident that i can win a case against smile but if i didn't bring this up I wouldn't be doing myself justice

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The terms and conditions I posted refer to a credit card, the later ones refer to a bank account.

 

To be perfectly honest I agree that under those terms and conditions I personally think it would be hard to argue it wasnt an additional service.

 

Although it does state specifically:

 

"You must not overdraw where no agreed overdraft is in place or exceed or try to exceed any agreed overdraft limit"

 

Can they argue that youve broke your T&C's yet they are still charging for a service?

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2 - The law says: A charge must be a genuine pre-estimate of the (in this case, bank's) loss caused by the breach.

 

The law also says that a service must be reasonable UNLESS a set price has already been agreed, if the bank were to argue it was a service then surely they wouldnt have to justify there prices since you signed the tand c's with the charges in black and white.

 

They do ofcourse increase the charges so maybe that will work against them.

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3.2 You must not overdraw where no agreed overdraft is in place or exceed or try to exceed any agreed overdraft limit.

 

Therefore, if you DO go overdrawn, you ARE in breach of that clause.

 

We will charge you for services we are required to carry out in such circumstances, for example if we have to bounce cheques

 

Your argument is valid here. Obviously not a service if it's bounced.

 

The money-for-food example is not a valid one, because it implies that the bank knows what you're paying for, and decides accordingly whether to permit or not (hence the "moral" word used above). Since it's an automated system, we know that's not the case.

 

Simply put, it's not a service, because you haven't asked the bank to pay above what it allowed you to do. If you have made a miscalculation, as I said before, and your creditor doesn't get paid, that's between you and the creditor. If you don't have enough to pay for your groceries and the card doesn't go through, that is not the bank's issue.

 

The service the bank provides to you is this: to keep your money safely (uh!), to pay out the money you've entrusted to its care as and when you ask it to, and/or to lend you a set amount, decided in advance, for which it can levy an interest rate, also decided in advance. Anything beyond that is a choice they make to pay out or not and penalise you accordingly.

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Therefore, if you DO go overdrawn, you ARE in breach of that clause.

 

Simply put, it's not a service, because you haven't asked the bank to pay above what it allowed you to do. If you have made a miscalculation, as I said before, and your creditor doesn't get paid, that's between you and the creditor. If you don't have enough to pay for your groceries and the card doesn't go through, that is not the bank's issue.

 

 

Just to pay devils advocate I would argue that if you complete a transaction that means you go over your limit then by default your actions indicate that you are asking the bank for extra money and possibly an extra service.

 

The strongest arguement imo just using logic would be that even if it is a service then by law it has to be classed as reasonable UNLESS agreed before hand.

 

You could then argue that because the prices increase it isnt a set price and therefore must come under the reasonable law.

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I understand what you're saying. But I think that's not necessarily true.

 

Because there would have to be presumption that you voluntarily asked for that payment to be processed, when I think it's fair to say that the majority of people get that way because of silly mistakes. Small £3 d/d to charity, or you took a fiver out earlier in the week and forgot... Or the bank didn't clear that cheque on time... Whatever...

 

I personally would rather the bank refused payment and let me deal with my creditor rather than paying the creditor and charging me £35 on top, thus compounding the problem.

 

Which, thinking about it, really refutes the service idea even more, if by providing the service, they lead you in a situation worse than it was to start with.

 

By the way, I know we have charges on the brain, but

Just to pay devils advocate
Really? :D
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I think its a lot simpler than the above posts suggest. How do any of those T&Cs indicate a service? That is certainly not the clear meaning of them as far as I can see.

 

They indicate a punitive measure. They indicate that unliquidated damages will be charged. So.....they have to be reasonable, based on the true cost, etc. etc. Also, in my opinion, they are set out in the T&Cs as a means to warn you and to compel performance. Almost all T&Cs I have seen refer to "default" or "additional" charges, not to giving you a service and in a consumer contract terms must be clear. I.e. the T&Cs introduce a penalty - seems pretty clear to me.

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  • 12 years later...

This topic was closed on 03/07/19.

If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

- Consumer Action Group

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