Halifax Credit Card Penalties ****WON****

[MARTIN3030]

It is difficult for a bank to prove that you did know within the 6 years.One or two have been caught out after banks were able to show that claimants did seek a refund in 2006,but these very few.

In fact it is likely that those seeking refunds in 2006/7 would have been paid out as the banks did not want to go near a Court,and even when a claim was filed,they settled quite quickly.

But some did claim the later charges and then went onto try claiming earlier ones which made it a problem.

[Guest alan703]

It amazes me that the banks will quite happily pay £850 to the FOS for a claim to be investigted,when they unfairly reject it.

 

They will also pay that in solicitor fees to defend a claim,

 

When they would not be any worse off, being honest and paying up.

 

Then maybe people would have more respect for them.

[seriously fed up]

all the best on Monday mate!

[Guest alan703]

all the best on Monday mate!

 

 

Thanks,

 

Wondering what's in store. I have received no correspondence from HBOS PLC or their solicitors. Guess they fully intend to appear, and somehow defend my claim.

[Guest alan703]

In need of some professional help now.

 

Just back from my case.

 

The Judge informed us at the last hearing, that the case being put of to today was to give him time to determine how the prescription and limitations act applies to this case, and that the whole case could be dealt with inside one hour.

 

The solicitors for HBOS PLC instructed a local solicitor to act on their behalf. They only provided her with the argument of the prescription and limitations act, the same argument as last time.

When she realised the case was to be fully dealt with today, she informed the judge that she was not equipped for that to happen. He gave her 15 minutes to phone the instructing solicitor as she has no further instruction. She asked for the case to be heard again at a later date.

 

The judge asked my opinion, I said definitely not, as HBOS PLC have failed to respond a number of times, and it is my feeling that they are dragging it out .

 

The judge ripped me a bit, as I gave no grounds for the additional sum I was claiming. I informed him that there was a schedule attached to the claim, which states that it is for recompense for the unjust enrichment of the defender (Shilliday vs Smith). I explained I thought this was sufficient, but am not a legal expert. He also asked me about quantifying it. I was under the impression that was for the defender to prove different, and I only had to make a reasonable estimate.

 

He gave me two options.

 

1. Allow the case to ahead, which would force the defender to withdraw. However he said he would only allow the value of the charges only. (assuming with expenses)

2. Agree to the later date, and amend my writ as I had given no legal argument for my claim of recompense, and that the defender may well win.

 

I don't understand why I couldn't have won my entire claim by default if the defenders acting solicitor withdrew.

 

I may have been missing the legal argument for recompense, but the judge knows what it is, and surely could have been fair and allowed it, rather than send me off to do more homework. He knew the two test cases I referred too.

 

I hummed and hawed a bit, as I was totally lost what to do.

 

I have gone for the later date, but now must provide a "LEGAL AND FACTUAL" argument to my claim for recompense. Not just quote Shilliday vs Smith.

 

Points taken from today.

 

The acting solicitor found it strange HBOS PLC, or the instructing solicitor had not contacted me.

I informed her the legal department had made me an offer, but it was not even for the value of the charges alone, and was rejected. I also informed her that HBOS PLC and made no attempt to resolve the dispute until they received a court summons.

The acting solicitor informed me that it is stupid this case has come to court, as it is costing the bank more to defend it. - Now it is costing them another hearing - which has been made quite clear is the final full hearing.

The judge, although implying I may lose, later informed me that I may also win, as the defence is weak.

 

I didn't know what to make of that.

 

Can anyone help

 

I need to amend my writ, provide the court and the defender with a copy. What is the "Legal and Factual" argument in Shilliday Vs Smith.

 

Dollar Land PLC vs C.I.N Properties refer to it

Sempra metals vs Inland revenue refer to it

 

Where can i find proper information on the Scots Law of Restitution

Edited November 20, 2012 by alan703

[Guest alan703]

Can anyone guide me to where I find the LEGAL argument for recompense?

 

I can find all the authers interpretations and case law, but not the actual law that I can refer to.

[Guest alan703]

Really looking for help now I am going through the court process - and you've all gone??????????

[dx100uk]

Shelley181146

 

has had successes

 

dx

[Guest alan703]

Shelley181146

 

has had successes

 

dx

 

 

Thanks,

 

The problem I'm having is I'm in Scotland though, is Shelley?

 

I appeared to have the judge on side for refunding the charges, but I also claimed recompense.

 

Dollar Land (Cumbernauld) Ltd vs C.I.N Properties LTD

 

In the context of the written pleadings which are used in our practice the pursuer is expected to state the nature of the remedy which he seeks, as well as the legal basis for it. For my part I see no harm in the continued use of these expressions to describe the various remedies, so long as it is understood that they are being used merely to describe the nature of the remedy which the court is being asked to provide in order to redress the enrichment. The event which gives rise to the granting of the remedy is the enrichment. In general terms it may be said that the remedy is available where the enrichment lacks a legal ground to justify the retention of the benefit. In such circumstances it is held to be unjust.

 

According to the terminology currently used in Scots law the expression repetition is used to describe the remedy where the pursuer seeks an order for repayment of a sum of money, and restitution is used to describe the remedy where the order sought is for the return of moveable property. Where the remedy sought is an order for payment of a sum representing the value of the benefit which the other party has enjoyed, the expression which is used to describe it is recompense. Recompense will usually involve a process of assessment, as it requires a value to be placed on the benefit.

 

There is my problem. The Sheriff has asked what my legal argument is for claiming recompense. Is it simply that there is no legal ground to justify the retention of the benefit as highlighted above? or is that far too easy.

 

I thought the point of the small claims court was it was meant to be simple and fair, with no need for legal representation. It seems to need an awful lot of homework, where you would expect fairness to win.

[Guest alan703]

1. The pursuer held a credit card account with the defender between 2002 and 2004.

2. The defender charged the pursuer various amounts of money in penalty charges during the period of 19 November 2002 and 17/09/2004 detailed in schedule 2 of the original summons.

3. These were in respect of charges levied as overlimit fees and late fees. The defenders charges are a disproportionate penalty and therefore unenforceable. Penalty charges are irrecoverable at common law. The defenders charges are also contrary to The Unfair Terms in Consumer Contract Regulations 1999. Para.8 and sch.2(1)(e)

4. The pursuer contends that these charges were legally unenforceable and that the pursuer has been unjustly enriched.

5. The remedy sought is recompense to redress the enrichment as there is no legal ground to justify the retention of the benefit. In such circumstances it is held to be unjust.

6. The pursuer estimates the benefit to be £xxxx.xx consisting of £xxx made in payments to fulfil an obligation that was based on an unfair term that the pursuer in fact had no obligation to pay, and £xxxx.xx representing an estimate of the benefit the defender has enjoyed from the enrichment by relending the enrichment to its customers for profit.

 

Would that suffice?

[Guest alan703]

I win - sort off.

 

I got a non negotiable offer of £500

Rejected

I got a letter suggesting I get legal advice, as if I wasn't prepared to negotiate, as they had by meeting me halfway, they would advise their client to prepare for the full hearing - and they would win.

I replied saying they gave me no option but to reject, however if they did indeed want to negotiate, half way was £800 and I would accept that in cleared funds before te hearing.

 

They have offered £800 in full and final settlement .... With conditions.

 

I have to fill out an incedental application for decree absolvitor and send it to them.

They will then issue a cheque.

 

My worry is

 

Can they submit the incidental application I send them and not send a cheque as the letter is marked without prejudice - so technically I have no evidence to use if they shaft me.

[Guest alan703]

I have received an offer from HBOS for the value I said I would settle for.

 

It is marked without prejudice

It asks me to sign and return

But.....

I have to fill out and sign an Incidental Application requesting Decree Absolvitor in favour of the defenders with no expenses due by either party.

 

My worry is - they want me to send this form to them BEFORE sending me the cheque. they say they will lodge it when they confirm the cheque has cleared.

 

They obviously don't trust me to request the case be dismissed upon cleared funds. Can I trust them not to launch the incidental application and not send a cheque.

 

That would mean the case is closed and I have no payment.

 

If they did, where would I stand?

[BankFodder]

Can you tell us what the case is about please.

[citizenB]

Have flagged this for site team attention.

 

Although I would have thought if they did try to pull a fast one, you could indeed refer to the Without Prejudice letter.

[Guest alan703]

Thank you. I have told them by email I accepted the offer but I was not willing to sign the incedental application.

 

They have agreed I can sign the acceptance letter, they will sign the incidental application and send it to me for signing, then I can hand it in when the cheque clears.

 

Hopefully it all goes smoothly

[ims21]

Two threads merged

[Guest alan703]

Thanks ims21 - I assume you merged the one that said "I Won"? I made it separate for two reasons

 

Needed attention urgent and got the impression people weren't reading my posts.

 

Thought you'd want to pick up on the I won as a success to pass on

[citizenB]

Thank you. I have told them by email I accepted the offer but I was not willing to sign the incedental application.

 

They have agreed I can sign the acceptance letter, they will sign the incidental application and send it to me for signing, then I can hand it in when the cheque clears.

 

Hopefully it all goes smoothly

 

I believe you dont have to accept any "conditions"..

 

Do you want me to wait until you have the cleared funds in your hand before amending your thread.. or I can add **WON** or **SUCCESSFUL OUTCOME** (or both ) now if you like

[Guest alan703]

The short of it

 

Complained to bank about penalty charges via FOS

No response at all apart from when I phoned at week 4 and 9.

Sent letter before action - no response.

Sent court summons via local sheriff court

Received their defence the day before the hearing.

Turned up to hearing - defender tried to have it Absolved as I was out of time. Scottish law says time starts from when you could reasonably have discovered the loss. - Second hearing organised.

Received offer for 1/8 off my claim - well and truly rejected (didn't even cover charges and court cost)

Second hearing - defenders representative only had instruction to argue the prescription element. Judge offered to rule in favour of me with charges only, as I showed no legal argument for my claim of recompense. Or, I could agree to another date to give the defenders time to prepare, and amend my claim to show legal and factual basis of my claim for recompense. I took the later, as I figured I could lose no more - bit of a risk.

The bank offered just under 3/8 of claim and would not enter protracted negotiations - rejected and informed them i would have been awarded more had I agreed to settle in court at previous hearing.

Defender said I misunderstood the hearing and the judge did not offer to settle. If I wasn't prepared to negotiate they would advise the client to go to full hearing.

Suggested to them they had it wrong and if they now want to negotiate I would accept 9/16 off the claim, otherwise I had no problem going to court.

Bank accepted.

[Guest alan703]

I believe you dont have to accept any "conditions"..

 

Do you want me to wait until you have the cleared funds in your hand before amending your thread.. or I can add **WON** or **SUCCESSFUL OUTCOME** (or both ) now if you like

Maybe wait till its sealed and delivered.

 

In another note - it concerned me that absolvitor in favour of the defender means they win. The clerk says it means they won't have a black mark against them, and I'll get my money, but appear to be a loser

[citizenB]

From what you say, they were trying it on from the start and the outcome suggests they werent as confident as they tried to make you believe.

 

As long as you are happy with the outcome, that is all that matters.

[citizenB]

Maybe wait till its sealed and delivered.

 

In another note - it concerned me that absolvitor in favour of the defender means they win. The clerk says it means they won't have a black mark against them, and I'll get my money, but appear to be a loser

 

 

That doesnt seem very fair at all ?

 

I must admit, I struggle to understand the English system.. the Scottish system on the whole looks to be a fairer system.. but equally difficult to understand

 

Just let either me or another ST member know when you want to have your title changed

[Guest alan703]

Don't know if there's another way to word it.

Doesn't seem to be

http://m-scotland.shelter.org.uk/get_advice/advice_topics/complaints_and_court_action/what_happens_at_court/court_decisions

 

Dismissing would implies no legal argument or someone doesn't turn up.

[seriously fed up]

Well done Alan - hopefully you will get the dosh in time for Christmas. As Citizen B says, the important thing is that you are happy with the outcome. I think seeing absolvitor as meaning they have won and you have lost is going a bit far. The main thing about absolvitor from their pov - particularly as you settled for less than you reckoned you were due - is that the case is now dead and buried. Even if you wanted to claim for the other 7/16 you couldnt do it even if you wanted to. From their pov its insurance.

Well done again - you faced them down!

[Guest alan703]

Scottish system is far faster than English - or maybe just my local court isnt as busy. - Still waiting for an MBNA court instruction from England in the time Ive been allocated 3 hearings in Scotland

 

I'm not overly worried about the other 7/16. I wanted an outcome that was reasonable and fair to me, I went in high with the aim to negotiate. I got a midway point between a compensation based claim and a recovery based claim (recompense)