Claiming From 1991 To 2000 The Fight Begins

[WILKINSS208]

Hi

Just read your thread and very interesting. I am at court now claiming from years 1991 to 2006. Halifax rang me to offer me the last 6 years but nothing more. They have also given me the money into my account already.

What should I do? Do you think I should continue with case, or withdraw claim and start another for previous years to 2000? Can I still do this if accepted the last 6 years?

[Guest bong]

Hi

Just read your thread and very interesting. I am at court now claiming from years 1991 to 2006. Halifax rang me to offer me the last 6 years but nothing more. They have also given me the money into my account already.

What should I do? Do you think I should continue with case, or withdraw claim and start another for previous years to 2000? Can I still do this if accepted the last 6 years?

 

hi. continue with the case if you're up for it. what stage are you at with the proceedings - have they filed a defence? have they paid everything including interest and court costs?

 

there doesn't seem to be any point in withdrawing your claim and starting another - they haven't settled all of your claim and the rest of it will continue until either they pay it (out of court), or you withdraw it, or if it goes to a hearing - until judgement. UNLESS you have agreed to accept it already in full & final settlement of the claim. have you?

 

you now have a choice - either

 

1. accept what they've given you in f&f settlement of that claim and write to the court withdrawing your claim, or,

 

2. accept what they've given you in partial settlement (make sure you inform the court that you've received part payment) and continue to pursue the balance. they will then have to defend the rest of the claim, and it will go to a full hearing unless they back down or you back out.

 

It's your choice really - presumably you were aware of the limitation issues and that they were likely to take this line before you issued your claim? do you have your own thread?

[court-action]

please be aware that you may not be able to claim for debts or charges if they are over 6 years old please search under STATUTE BAR which means that if a creditor fails to contact you for over six years for a unsecured debt - they have to let it go. in this case creditor may be your bank sorry dont have time to give you full text of law.

[mcuth]

Hi & welcome to the Consumer Action Group

 

please be aware that you may not be able to claim for debts or charges if they are over 6 years old please search under STATUTE BAR which means that if a creditor fails to contact you for over six years for a unsecured debt - they have to let it go. in this case creditor may be your bank sorry dont have time to give you full text of law.

 

Whilst that's true in the scenario you're giving, it's not totally in relation to this particular thread & claiming back our charges over 6 years old. You might want to take a look at this thread for a discussion on why this is likely to be possible (to put it very broadly, due to concealment on the banks' part). HTH

 

Cheers

 

Michael

[TANZARELLI]

Hi LL,

 

I have been reading your thread and have to say I will be keeping an eye on your progress with great interest.

 

I am waiting for statements from Barclaycard and am considering claiming contractual interest. However after reading vast ammounts of posts in the Cortractual Interest thread (over 300 posts) I felt myself getting more and more confused, so much so my brain now hurts (or was it yesterdays hangover). I am a little bit confused as which rate to charge for contractual interest for BCard. I took started the card in 2000 and then closed it and paid of the full balance in 2004.

 

I only currently have one statement for it which is the one from when i paid it off. The only ref of interest rates is where it says 'Interest on your cash balance INTEREST 0.447%' and also on the other page where it says Purchase APR 5.5% Cash APR 5.5% this is whith a closing balance of £0.05 which i'm not sure how got there as it should have been £0.00. I have also no idea what type of card it was. I have looked on the Bcard web and they have about 5 or 6 different cards with varying rates. The one that I would like to use is the Initial as its rate is 27.9%APR. Sorry for hijacking your thread, but thought you may be able to help.

 

Tanz

[WILKINSS208]

hi. continue with the case if you're up for it. what stage are you at with the proceedings - have they filed a defence? have they paid everything including interest and court costs?

 

there doesn't seem to be any point in withdrawing your claim and starting another - they haven't settled all of your claim and the rest of it will continue until either they pay it (out of court), or you withdraw it, or if it goes to a hearing - until judgement. UNLESS you have agreed to accept it already in full & final settlement of the claim. have you?

 

you now have a choice - either

 

1. accept what they've given you in f&f settlement of that claim and write to the court withdrawing your claim, or,

 

2. accept what they've given you in partial settlement (make sure you inform the court that you've received part payment) and continue to pursue the balance. they will then have to defend the rest of the claim, and it will go to a full hearing unless they back down or you back out.

 

It's your choice really - presumably you were aware of the limitation issues and that they were likely to take this line before you issued your claim? do you have your own thread?

 

 

The halifax said on the phone they will be filing a defence and they have until next sunday to do so.

 

I have not accepted the part payment as full and final settlement, I told them I would be fighting. If I lost however, could they take this back off me?

[Guest bong]

The halifax said on the phone they will be filing a defence and they have until next sunday to do so.

 

I have not accepted the part payment as full and final settlement, I told them I would be fighting. If I lost however, could they take this back off me?

 

I think the charges payment already made would be protected but you might lose your court costs.

[paulwlton]

Good luck Lively Lad.

 

I'll keep an eye on your thread.

 

I've included a summary of the CC report in my court bundle with reference to relevent paragraphs, i think this is essential for our claims against RBS.

 

Paul.

[livelylad]

please be aware that you may not be able to claim for debts or charges if they are over 6 years old please search under STATUTE BAR which means that if a creditor fails to contact you for over six years for a unsecured debt - they have to let it go. in this case creditor may be your bank sorry dont have time to give you full text of law.

 

 

 

Have a lokk at this.

 

32.--

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
  • (a) the action is based upon the fraud of the defendant; or
    
  • (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
    
  • © the action is for relief from the consequences of a mistake;

  [*]the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

  [*](2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . . (5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).

[TANZARELLI]

Hi LL,

 

I used this as a counter arguement to Barclays defence and I seemed to shut them up. Well they paid up and included the charges they were saying were out of the 6 year rule.

 

Well put.

 

What stage are you at currently with this? Is it just a waiting game now?

 

Tanz

[livelylad]

I am putting together my POC once this is done i will issue the N1.

[WILKINSS208]

im at court stage now and they have paid me the 6 years, but refusing the rest back to 1990. so ive used this also, i hope i win!

[Bookworm]

Well put.

 

 

He didn't, the Statute of Limitations 1980 did!

 

Although I'm sure he could have if he's been asked to. ;-)

[TANZARELLI]

Yep i'm sure he could.

[bill-k]

Yep i'm sure he could.

Who - this guy ?

 

Eloquence is his stock-in-trade !!

[livelylad]

Ok POC stolen from Michael Thanks mate

 

Pick away please. Particulary the daily rate of interest.

 

1. The Claimant has a Royalties Current Account, number xxxxxxxx (“the Account”), maintained at the Defendant’s Bolton Central Branch (sort code xx-xx-xx) The account was opened on or around 01st October 1988.

 

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Card Misuse”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.

 

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

5. A schedule of the charges is attached to these particulars of claim (Appendix 1).

 

6. The Claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults. The defendant is fully aware of this report as Ulster Bank is a subsidiary to RBS (defendant).

 

7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

 

8. The Claimant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate 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.

 

b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

 

9. The Limitation Act 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT’s report was published on 5th April 2006. The facts relevant to the Claimant’s right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without Accountability to its customers, and to have consciously concealed the facts. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant’s bank Account. The Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity. The defendant has repeatedly denied requests for a detailed breakdown on the said charges.

 

b) In the alternative to 9.a), the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

 

10. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate advertised by the Defendant’s website, being 29.84% . The Claimant understands that the unauthorised borrowing rate previously was actually over 33%, but believes that using the current rate gives a fair result.

 

d) In the alternative to 10.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s lowest current authorised borrowing rate for a Royalties Account, advertised by the Defendant’s website, being 15.00%.

 

e) In the alternative to 10.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:

Appendix 2 – Compound interest calculated daily at an annual rate of 29.84%

Appendix 3 – Compound interest calculated daily at an annual rate of 15.00%

Appendix 4 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate

of 8.00%

 

11. Accordingly, the Claimant claims:

a) The return of the amounts debited between 25th March, 1993 and 04th May, 2000 in respect of charges in the sum of £1290.00.

 

b) All applicable Court fees

 

c) Contractual interest at an annual 29.84% compounded daily from the date of each transaction to 18th December 2006 of £21,003.26, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £18.23

 

d) In the alternative to 11.c), Contractual interest at an annual rate of 15.00% compounded daily from the date of each transaction to 18th December 2006 of £4,470.53, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £2.37

 

e) In the alternative to 11.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 14th December 2006, of £1,079.87 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.52

 

12. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

[bill-k]

LL, you'll have read my post about quoting a flat daily rate in Michael's thread, presumably, so I won't repeat that. It's your choice.

If I may, I'd suggest that you don't mention the EAR as such in the POC, as it is technically the incorrect rate to use. I still use it, but I just don't call it that.

I prefer to say "Contractual interest at an annual rate of 29.84% compounded daily..." - instead of "Compound interest at the contractual rate of 29.84% EAR..."

Just my little pick - feel better for that, thanks !!

Knockout POC, though - go get 'em !!

[livelylad]

LL, you'll have read my post about quoting a flat daily rate in Michael's thread, presumably, so I won't repeat that. It's your choice.

 

If I may, I'd suggest that you don't mention the EAR as such in the POC, as it is technically the incorrect rate to use. I still use it, but I just don't call it that.

 

I prefer to say "Contractual interest at an annual rate of 29.84% compounded daily..." - instead of "Compound interest at the contractual rate of 29.84% EAR..."

 

Just my little pick - feel better for that, thanks !!

 

Knockout POC, though - go get 'em !!

 

 

Thanks Bill all help greatly welcomed.

[Ian Appleby]

Hi Livelylad,

What a great thread really enjoyed reading it.I couldnt help a big warm rush that traveled up through my body,when i read the bit where you added the compound interset.That is fan daby dozy,and i wish you all the luck.On my personal account i will be claiming for six years with charges at £2332.00.I think HSBC rate is 15.9% od interest,i am going to check that rate before i add it on.Thanks for this great thread.Dinner time gammon egg and chips.See you soon

Ian

[livelylad]

Hi Livelylad,

What a great thread really enjoyed reading it.I couldnt help a big warm rush that traveled up through my body,when i read the bit where you added the compound interset.That is fan daby dozy,and i wish you all the luck.On my personal account i will be claiming for six years with charges at £2332.00.I think HSBC rate is 15.9% od interest,i am going to check that rate before i add it on.Thanks for this great thread.Dinner time gammon egg and chips.See you soon

Ian

 

 

Mmmmm sounds nice, enjoy.

[jonny1eye]

Does anyone know a fax number for RBOS?

[Ian Appleby]

Hi Livelylad,

Can you let me know which spreadsheet your using please m8.

Thanks

Ian

[livelylad]

Does anyone know a fax number for RBOS?

 

They are in here there are several.

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland-bank/1628-rbs-contact-details.html

[livelylad]

Hi Livelylad,

Can you let me know which spreadsheet your using please m8.

Thanks

Ian

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/182-6-interest-calculation-spreadsheets.html

 

 

In here its "compounded contractual interest throughout".

[tumble]

My claim is against RBS from 1995 to 1998, the hearing date is Dec 1st, time allocated 2 hours, standard defence recieved, both sides have sent AQs off, the banks solicitors(cobbetts) stated they were applying to strike out the claim, i don't know if the application was made or the judge has turned it down, has i've heard nothing from court, keep an eye on my thread for updates.

 

Court hearing Walton v Barclays 8th Nov

Court hearing Walton v Royal Bank Of Scotland 1st Dec

Awaiting court hearing Birmingham Midshires

 

Is there an outcome to this as yet ?