Capital One - Reclaim Charge(s) HELP!

[slick132]

Hi MP,

 

Tick the NO option.

 

You don't need to do any more about it for now but this link may explain why you would refuse it if the court suggests Mediation - http://www.consumeractiongroup.co.uk/forum/general/83044-mediation-bad-idea.html#post742517

 

[moneyproblem]

Thanks Slick, always coming to my rescue , I am good now with the AQ, will post off on Saturday morning.

[moneyproblem]

Sent off my AQ and the draft order along with the section G wording. I also mailed off a copy to capital one via recorded delivery.

 

Next stage my court bundle, I need a little help please in regards to properly structured wording to add the case study of Sempra metal vs IRC and also charges beyond the normal 6 years and will rely on s.32© Limitation Act 1980.The precedent for this was Kleinwort Benson Ltd v Lincoln City Council.

 

I note in the case study in the bundle, they are struct a certain way. Can anyone help with giving me guidance. OR if you have the above set out already that suits the bundle can you PM or email both please and anything else I may need from your experience to add to the bundle.

 

Also any tips on witness statement, I know SS says he will help, but he needs to focus on his case at the moment so I will do what I can and take any help until then.

 

.

[slick132]

Have you PM'd SS seeking help. He may have Kleinwort Benson and Sempra cases included in a bundle.

 

He may also have a WS you could use as a basis for your claim.

 

Failing that, search the web for summaries of the 2 cases which you can include in your bundle. You can also refer to the specific parts of each case that relate to your claim.

 

[moneyproblem]

SS offered help before I could ask lol, I did not ask him about the wording as per the bundle structure for both test case (hope I am making sense), he said he will lend me his WS once he gets done with capital one as he wants to make sure it is all good. I was just trying to to get everything else together. I found the test case on here, but wanted to set them both out in the way the other cases were set out and worded in the bundle to keep it tidy and structured - if I am making sense

 

I will have a look around as per your instructions for summaries and I will also wait before I bother SS as I am sure he needs all his time and focus for his case, don't want to bother him just yet.

 

Thanks Slick for your help .

[moneyproblem]

Update: Court date has been given. Need to sort out a court bundle, witness statement, etc.

 

As i'm thinking about what i need to say in regards to my WS, is it possible that i can appeal to s32 on two grounds?

 

So instead of just a mistake, can i say mistake and/or concealment.

 

Although all the advice given in regards to using s32 is overwhelmingly about 32c, but why can't we use concealment (32b) as well?

 

My train of thought was this...they knew what the UTCCR stated in regards to anything in the agreement that can't be individually negotiated was unfair.

 

they also knew what the UTCCR stated in regards to charges being disproportionately high to their costs were also unfair.

 

they also knew what the UTCCR states in regards to those charges being not binding because they are deemed unfair from the very start of the contract, and because they were not binding, they had no legal right to demand these charges from me.

 

they knew this was the case as of October 1999 when the UTCCR came into effect.

 

Because it benefited them, they kept this information from me and made me believe that the unfair terms were binding.

 

Through the period of my contract with them, they constantly concealed the true nature of their default charges knowing that if I was made aware of the UTCCR I would then not pay the default charges as they were because they were not binding. I see that as concealment.

 

If its possible to say that none of that is concealment, then consider this thought...

 

When I found out about the UTCCR and the OFT's (2006) reminder of what is actually stated in the UTCCR, I asked them in writing to prove that their charges were indeed fair, and not disproportionate to their costs.

 

 

They said that they would not as that is confidential information

Edited September 21, 2011 by moneyproblem

[moneyproblem]

not sure what happened, but the rest of my post was cut off...

 

They said that they would not as that is confidential information

 

Would these be legal proofs of concealment?

 

I managed to find this link which seems to agree with my train of thought

http://www.withersworldwide.com/news...limitation.pdf

 

and i also think i found case law

http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020425/cave-1.htm

 

So I don't waste my time further in looking to go down this route, can someone advice if its possible to go use concealment & mistake in order to invoke the extension in regards to the limitation act, or can i only use one or the other.

 

and if only one or the other, if concealment would be a better option than mistake.

 

as i'm thinking of it, mistake of fact, would be covered within concealment (no?), because they made me believe something that was not true?????

[slick132]

Hi MP,

 

For some time, I thought the argument that the bank concealed the unfair or unlawful nature of their charges was the one that would apply.

 

However, those more knowledgeable then I have said that arguing the case of concealment using s.32(b) would be difficult and would probably have to be heard as a Fast Track or even a Multi Track case. If you lost the case, the costs implications could easily run into 10's of £1,000's.

 

So the argument generally used is s.32©, regarding items paid as a mistake.

 

Did you get the case (of Cave v Robinson, Jarvis and Rolfe) from here - http://www.consumeractiongroup.co.uk/forum/showthread.php?66227-Limitation-Act-1980-s32(1)-a-b-c-(2)-Actual-Case-Law&p=566205&viewfull=1#post566205

 

[moneyproblem]

Hi Slick, thanks for getting back to me.

 

I here what you're saying.

 

The only reason i was looking into it was as a way to counter the argument cap1 used in regard to ss' case

 

Basically they are alleging Kleinwort Benson clearly relates to mistake in law which was rectified by a subsequent change in law. If you allege that payment of the charges was a mistake in law, they will counter by saying the OFT review in April 2006 was not a change in law, but simply a 3rd parties interpretation of the law. The judge very strongly agreed with this.Having seen their argument ahead of time, i tried strongly to argue that payment of charges was a mistake of fact, not law - as this is discussed in Kleinwort as well. The judge was giving serious consideration to this for quite some time, and I thought he was going to agree, but ultimately he decided the whole of Kleinwort related to a mistake in law, and thus could not be used to support my argument for postponement of the limitation period

I can see why it was viewed as being a mistake in law (primarily) - but then again that's on my very limited understanding of all of this legal stuffs.

 

I was looking for case law that was based on mistake in fact (so there couldn't be any misunderstanding/misinterpretation), and that's how i ended up looking in concealment.

 

I didn't even know that concealment was discussed in any capacity in cag as all advice pointed specifically to mistake.

 

I found cave vs. robinson on google, lol

 

Just read through that link - it looks like progenic had the exact same mind frame about it that i do now. And nobody was able to provide a sufficient enough rebuttal to the concealment argument - even the fraudulent concealment (which i'm not gonna use) wasn't even given a sufficient rebuttal.

 

Saying that though, progenic never said what happened to any of the cases - so we don't know if it was successfull or not. I do know of at least one other person using both 32b & c, and going to court and winning, but that was only 1.

 

i may not use 32b in this claim as i'm already to far gone, and don't think i would be able to slip it in with a strong enough emphasis, but i'll probably use it for my other claims and see how it goes.

 

what do you think, then, is the best way to argue against c1's attack on kleinwort in regards to making it primarily about a mistake in law, and therefore irrelevant to our claim as our claim is about mistake in fact, making our claim statute barred?

[moneyproblem]

I need some help to look over my WS and my bundle, I have a few things that I found that I want to include in the bundle. I will upload them in a few to be checked please.

[junior232]

Any update on this?

[moneyproblem]

Hi Everyone,

 

sorry for the delay in getting back. After the case I just needed a break from it all.

 

Well, we lost.

 

However, c1 lost as well.

 

My charges were £180 (most of which were statute barred). I was asking for over £2k in restitution.

 

C1 made a counter claim for their costs, which was also over £2k

 

I could not convince the judge on any points at all.

 

I couldn't convince him on concealment, mistake, or even that the c1 couldn't hide behind s.6.2.

 

The court case was scheduled for 2 hours, and last for abour 2 1/2 - 3 hours.

 

With all of that, the judge didn't allow c1 counter claim. The barrister was trying to say that the case was frivilous, the judge said he didn't think it was.

 

The judge also complimented us on our court bundle (which was over 300 pages). He also complimented us on the sheer amount of research we did in regards to the claim.

 

He also complimented us on, what he saw, as having a very firm grasp of the all the laws and issues involved, and he said that we were one of the very few lips that he'd seen provide such high detailed evidence and arguments, etc, etc. (too bad that didn't make us win)

 

So, even though we lost, at least we are not worse off than when we started, which i'm happy about.

 

The barrister didn't look happy that she didn't get awarded costs, but who cares

 

Where It Went Wrong

 

1. I think the main place it went wrong was that the judge didn't read anything. So all the legal arguments presented in our court bundles, the witness statement, judgements in other cases, etc. He didn't familiarise himself with any of it.

 

I do think that if he did, that we would have had a better chance.

 

2. The judge fully admitted that this claim is one that, he felt, would take days if he were to look carefully and scrutinize all the arguments and evidence, and that there is a lot of information to take in.

 

But again, he didn't read anything at all until the case was underway and he had to.

 

3. As it was my first time in court, I don't think i did a good job presenting and proving my case. There were a lot of things that i wanted/needed to say, and i didn't get/take the chance to say them. In regards to my legal arguments, a lot of them were actually lengthy quotes that proved/showed my point. Although he did read some of the paragraphs, he didn' read the majority of them, and it was necessary to do so

 

4. The judge did not agree with the UTCCR. As far as he was concerned, its not "law" as such. He saw it as european consumer "law" versus english contract law, and he upheld the english contract law. Again, i believed I had proof from previous judgements that upheld both laws and specified what was what, but he didn't read it, and I didn't present it correctly.

 

Limitation Act

 

The barrister was trying to get the case over ad done with quickly by asking that the judge deal first and foremost with the limitation issue. If I can't postpone the limitation than my claim should be dismissed.

 

The judge took a different view and wanted to hear the entire case.

 

So it looked like if I could prove that the charges were unjstly penal, and unenforceable, and that they are not protected by s6.2, that he would postpone the limitation even if I couldn't give a valid reason (at least that's what it looked like).

 

Concealment

 

I could not prove a fact of concealment. The judge said that c1 are under no obligation to tell me about the utccr, and its the same thing with the oft 2006 report, and any reason as to why they reduced their fees.

 

Even though I did have in my notes to say that c1 actually conceald the nature of the charges in their letters to me, i didn't get/take the chance to say it.

 

Mistake

 

When I received the barrister's skeletal arguments on saturday, I noticed that they did go after the kleinwort benson case law, but saying that it specifically pertains to mistake in law, and my case is not about a mistake in law.

 

I showed the judge that although kleinwort benson is mainly about a mistake in law, that there is a lengthy (very lengthy) discussion about what is a mistake, and the bearing this has on unjust enrichment and restitution.

 

The judge agreed with my stance in regards to kleinwort benson and that it showed that there is no distinction between mistake in fact or law, when dealing with unjust enrichment and restitution.

 

The problem was, however, that it was lengthy. A lot of information that supported/proved my claim was found in the entire length, that was not read by the judge. And even though I continuously tried to bring him back to it for him to read, I wasn't successful in getting him to do so.

 

So, let's say that there was about 20 - 30 paragraphs i felt necessary for the judge to read in order for him to see why i'm able to claim payment in mistake (its in Lord Hope's judgement btw, if you want to read it). The judge only read 3-7 paragraphs.

 

I do believe that if he read all the paragraphs i pointed to, that he would have agreed to the postponing the limitation. But he didn't

 

So, because of those reasons, the charges remained statute barred. But again, he wanted to hear the entire case regardless if the charges were statute barred, to the annoyance of the barrister.

 

Penalties???

 

I did convince the judge that the charges were penal, but i couldn't prove that it was unjustly so, as per the utccr.

 

The reason I couldn't prove they were unjustly penal (i.e. disproportionate), is because c1 hid behind s6.2., and they pointed to oft v abbey to prove it.

 

I knew they would do this and I too pointed to oft v abbey to disprove their claim, because in the supreme judgement ruling they discussed another previous supreme court case (oft v first national bank), that showed that not everyhing was protected by s6.2. They went into detail as to what was and what wasn't.

 

What wasn't protected are charges for the breach itself. What was protected were services.

 

s6.2. (in a nutshell) is that you can't complain about the cost of goods or service (i.e. you can't complain about the remuneration of those things).

 

I said to the judge that in the oft v abbey case, they specifically talked about what the issue was. They weren't discussing any charges for the overdraft itself, but charges for the services provided for when the person was in overdraft.

 

For example, when i'm in credit, if i write a cheque, the bank doesn't charge me for it. If i'm in unauthorised overdraft, the bank will charge me for the cheque.

 

The service that they were requesting remuneration for is the cheque, not the overdraft facility.

 

In my case, its specifically about the breach of contract. No service is being provided by c1 at all to incur these charges.

 

I stated that the service being provided by c1 is the use of £200 (or whatever the credit limit is).

 

The remuneration for that service would be the monthly payments I make to pay that borrowing of the £200 back.

 

The default charges are not part of that £200 at all. I have not borrowed/used any default charge money in anyway to actually incur those charges.

 

The charges are specifically for not remunerating c1, or doing so at a later date than agreed

 

The judge agreed with me on that. He then asked the barrister to prove me wrong. And she couldn't.

 

Problem was, however, is that the judge then started to reason what the service being provided was.

 

He stated that the service being provided was not just the borrowing of £200, but the borrowing of the £200 and not having to pay it back over a certain period of time. He says that then, the default charges become part of service being provided because i'm stil borrowing the money over a period of time, including the default charges - so that's the service.

 

Although, I don't agree with him, i see his point, and the logic makes sense to me.

 

Remember though, this is the judge saying this, the barrister didn't produce any valid argument against what I stated in regards to services.

 

I pointed out to the judge, even though that may be the case, that is not what the contract states. The contract states that the charges are for breach of contract. Therefore they are not part of the services as per their own contract.

 

What is the contract, to pay at least the minimum payment by the due date and to not go overdrawn.

 

So the default charges are not part of the paying back, but they are outside of it, according to their contract.

 

He pretty much disregarded that argument by saying that it was part of the contract that I agreed to and english law is that contracts are binding.

 

I pointed him to the kleinwort ruling though, hoping that he would read some more but that was pretty much futile

 

Closing

 

In the closing the judge stated that the oft v abbey has nothing to do with credit cards, and (as i pointed out to him), most, if not all the banks involved in that court case has credit card facilities themselves - and therefore, for them not to be mentioned at all, would mean that the ruling had no bearing on credit cards.

 

But, as there were no previous high court or surpreme court rulings involving credit cards, then we would have to look to similar rulings regarding lending to get info from.

 

He drew a parallel between the oft v abbey and our case.

 

He repeatedly stated that he had to remind himself of english contract law, and he again admitted that the case was incredibly intricate, detailed, and can get confusing (at point he was saying he was getting a head ache), and that he did't read anything prior to the court date, but felt he knew enough to come to a fair decision.

 

Conclusion

 

Once he came to the conclusion on the s62 and service and remuneration, I knew that was it. The judgement was definitely a blow, especially after all that preperation. I am happy that he didn't award costs to c1. If he did, I would have appealed (i would have been exempt from any fees).

 

I decided not to appeal because his logic did make sense, even if i didn't agree with him, and since we didn't "win", but didn't "lose", i was alright with that.

 

Before I started the claims I was already happy with not winning cases as long as I didn't have to pay anything, but I think after all the reading and preperations that my mindset changed to i have to win. even though i felt there was a 50/50 chance, when the case got underway it seemed like that was definitely and over statemet.

 

That's about it. If anybody wants a copy of my arguments or anything like that, i'll be happy to send them.

 

I do still believe that my arguments and case law were/are sufficient enough to prove a mistake was made (postponing the limitation), and that they are not akin to the bank charges spoken of within the oft vs abbey case.

 

I will probably be going to court again for my two citi credit card charges as those are already in the midst of the legal process, so i'll see how that goes - but, i'm not going to go after any more charges past 6 years until i become more confident of my chances.

 

i'll be focusing on my ppi claims instead.

[Still_surviving]

mp

 

Glad you came out even - as I think I mentioned to you before, you certainly need to be wary of the possiibility of costs being awarded.

 

It does seem that Cap One used the same tactic as they did against me...ie try to get the case closed at the earliest opportunity by getting the charges declared statute barred asap. Looks like your judge was prepared to bypass that line of thinking a bit more than mine was.

 

Much of the problem is, as Im sure you are no aware, is that in these small claims cases, the judges just cant/wont spend enough time actually reading the nitty gritty of our cases. Im almost certain that whilst they may compliment us on our wonderful court bundles, they barely skim read them and are content to be guided by the barrister in the room.

 

Just out of curiosity, was the barrister they sent from Henderson Chambers? they are the ones who were engaged in my case to get the kleinwort benson argument thrown out.

 

Anyway...glad you didnt lose

[moneyproblem]

i'm glad costs weren't awarded as well

 

a lot of people have been saying that I should appeal, but since no money was lost, i'm not gonna make a big issue out of it.

 

i'm taking it as a learning experience for any future litigation.

 

the barrister wasn't from Henderson Chambers - although, i don't know where she was from

[slick132]

Hi MP and sorry to see that your case was lost.

 

But it is a real bonus that no costs were awarded against you.

 

You have clearly done a lot of research and gave it your best shot.

 

Thanks also for the detailed report which, I'm sure, others will find interesting and useful.

 

[Shelley181146]

Hi Money problem,

 

You certainly did yourself proud with your research and arguments for Cap1. It's a great achievement when the DJ has complimented you on your efforts, albeit, he obviously didn't like reading.

You will know where to go with your other claims once you have had time to absorb the outcome of this experience.

 

I am in a very similar position. I am awaiting a court hearing date with Cap1 as they also filed a standard defence but I have evidence that my claim is not SB but I will not get complacent. The courts have lost the paperwork so I have to supply it all again, apparently before they will give me a date.

 

I have won my claim with full Interest in Restitution with Barclays Bank but I am in the middle of a messy claim with Citi so I will follow your claims with interest and I am happy to share information if you wish to follow mine?

 

I wil PM you with relevant links.

 

Well done.

 

Shelley

[moneyproblem]

just a quick note, when you make the court claim, and c1 puts in their defense - if their defense doesn't pertain to your claim or doesn't answer every point of your claim - file for the court to throwout their defense and make a judgement against them

 

a defendant must answer every part of the claim intheir defense

 

i didnt know this until a week or so before my court date - had i'd known - i would have filed and had a pre-hearing which would've gone in my favour.

[Shelley181146]

That's a brilliant point to make - and thank you for high-lighting it MP.

 

Cap1 says "Default sums are based on the costs incurred by the Defendant when a customer breaches their agreement by making a late payment, failing to make a payment or going over their credit limit". Therefore, if Cap1 are not prepared to divulge how much 'costs' they incur when this happens because this information is 'Commercially sensitive', then they have to re-imburse and with the Sempra Metals case it validates interest in restitution.

 

They don't say anything about ignoring any communications received from their customers explaining that their circumstances have changed and that they would like to make an arrangement until such times improve - that information is just wiped off their systems into an oblivion.

 

Am I missing something or is that it in a nutshell?

[slick132]

......... had i'd known - i would have filed and had a pre-hearing which would've gone in my favour.

 

Even if you showed that the Defence was a generic one which failed to address your POC's properly, it is likely that the judge would Order that the Defence be amended within 14 days. If the Defendant failed to do this, the Defence might be Struck Out.

 

But I doubt this would initially lead to your claim being won.

 

[moneyproblem]

Am I missing something or is that it in a nutshell?

 

It depends actually. It depends on the judge's view, your arguments against c1's arguments, how well you can convnce the judge, and your evidence (case law, etc.). Some judges might even bypass the limitaton act as a matter of principle if you can convnce them on everything else (like my judge was considering doing).

 

But I doubt this would initially lead to your claim being won.

 

t would get struck out. The reason being is that the litigation clauses that state that if the defense has not answer a point asserted by the plaintiff, that they have then, by omission, have agreed that its true.

 

So, if we make a claim against c1 and say reason 1, 2 & 3 - and c1's defense is against 1, and says nothing about 2 & 3 - then c1 have actually conceeded those points as being true as they've said nothing against it.

 

I'n my claim against c1, their defense all the way up until 2 days before the court date, had absolutely nothing to do with my claim. C1 were given ample time to see and understand the claim I was making against them, and chose not to defend against it at all.

 

If I knew about striking out defenses I could've easily gottn it strike out as it didn't pertain to my claim and pretty much was a waste of the court's time.

[slick132]

Hi MP,

 

I agree with you, to a point. The defence should address the POC.

 

But what I'm saying is that, even if you applied for the defence to be struck out for being irrelevant or incomplete, it's likely that a judge would give the Defendant an opportunity to File and Serve an amended Defence.

 

If the Defendant failed to do this, judgement may then be made in favour of the Claimant.