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SabreSheep Vs Natwest + Moorcroft / ** Satisfactory Conclusion **


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Looks fine .......your section 69 interest is incorrect should be 8%.

 

Regards

 

Andy

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Thanks Andy

 

Where do I put the interest in restitution then?

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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ignore me, its in the point immediatly listed before

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Ok papers filed to the court (Via special delivery) as its got my ex160 in it as well.

Bar me messing up the form we see what happens next.

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Looks fine .......your section 69 interest is incorrect should be 8%.

 

Regards

 

Andy

 

 

Bugger

 

Just realized that I posted the wrong version where I had that at 29.99%

 

How do I change this or is this too late? Or can I just concede the statutory interest seeing as Im already claiming interest in restitution?

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Section 69 is at the discretion of the court anyway...so I wouldn't worry.Any award would be at 8% irrespective as long as you have requested it within the particulars the court will calculate it.

We could do with some help from you.

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Thank you kind sir :p Was getting worried for a while

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Now my next worry.

 

How long does it take for CCMCC to process my N1 and Ex160. Still not heard anything?

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Depends on the work load...2/3/weeks? Why did you not submit on MCOL?

We could do with some help from you.

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Ex160 court fee remission

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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OK fee remission im assuming has been accepted as phoned CCMCC today. Been given a claim number and they said it is due to be served today.

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Notice of issue arrived today. Defendant has untill 27th June to respond.

 

My documents did not come back yet though. Hope they come back! (I did request they were returned in my cover letter) as it has my share certificate included

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OK need some guidence on bundle prep.

 

Most of the links on other threads do not appear to work anymore. So any assistance would be great.

 

So far this is the best I can find. I feel it might not be in date anymore..

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Hi SS,

 

Further to our PM's earlier, the link above is the same as the court bundle document I have so I won't send anything by email.

 

This bundle was prepared a few years back so you need to make sure everything in the bundle is relevant and up to date.

 

:-)

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Also see 3.1 to 3.10 here - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part39/pd_part39a

 

Thanks for input from Site Team Andyorch.

 

:-)

We could do with some help from you

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Thank you both :)

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OK still waiting for my dam share certificate and bank statements to be returned....Have emailed CCMCC asking where they are, My cover letter expressed that I needed them back.

 

Attached letter from bank today special delivery. Partial settlement offered.

 

Summary of their points issued are.

 

-Claim is misconceived and bound to fail.

-Charges are not penalties or not considered unfair contract terms.

-Charges applied properly as in agreement.

-Certain Amount falls outside the 6 years limitation act

-Rate of interest is preposterous and entirely disproportionate and no automatic entitlement with no reasonable basis pleaded to claim it.

-Sempra metals case not binding as it was "Obiter, ie. Made i passing"

As for interest they refer me to Halliday v Halifax Bank of Scotland"

-My interest rate claimed for is unreasonable and disproiportionate and would normally be restricted to 8%

 

They have offered about 15% of my claim value.

 

So I guess its time "Noel ask the question"

 

Any reply to that letter you advise me to send or do I sit back and let them file their defense?

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HMM found somewhere that had added this to their POC, Without changing my POC can I make use of this?

"1.The Claimant is aware and respects that the court has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the present case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied.

 

2.The claimants case for compound interest is not reliant on any implied contractual term, and indeed it is the Claimants assessment that notwithstanding the aforementioned judgment, such a claim based upon the allegation of the existence of an implied reciprocal term of contract would always have been likely to fail in any event, by virtue of the five factors necessary to imply a term as set down by His Honour Judge Thayne Forbes QC in Davy Offshore v Emerald Field Contracting (1991) 55 BLR 1, and the “Business efficacy test” from The Moorcock (1889). It is therefore submitted that the case of Halliday v Halifax Bank of Scotland holds no relevance whatsoever to the issues of the interest claim in the present case.

 

3.It is the claimant’s case, which is more fully stated below, that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the bank charges and simple interest at the statutory rate. The Defendant has been in wrongful possession of funds over a number of years and as a lending institution would have earned profit by way of interest by re-lending those funds at its commercial compounded rates. Conversely, the Claimant having been denied use of the funds in the defendant’s wrongful possession. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

 

4.The Claimant submits that the issues of restitution raised in this case bring up serious points of law. It is respectfully requested therefore that the court considers them on their merits with proper examination of the issues and evidence, without prejudice to the current situation and publicity in respect of the hundreds of customers litigating on-masse on the issue of credit card and bank charges.

 

5.It is the claimant’s contention that a constructive trust arises upon payment of the charges which form the principle claim, and that the Defendant’s unconscionable behaviour in profiting unlawfully and without consent or authorisation breached the duty of trust owed to the claimant. As compound interest is available in equity in situations where a trustee has made wrongful profit from its position, the claimant relied on invoking the equitable jurisdiction in order that the court may be open to grant a complete remedy which provides full restitution of the unjust enrichment enjoyed by the defendant. The Claimant’s submissions were in mind of the established position that the court had no power at common law or in statute to award compound interest under English law. This position prevailed despite recommendations from the Law Commission calling for legislature to allow compound interest, as well as criticism from several eminent judges and Law Lords that the situation was outdated and out of touch with modern reality, and had lead to many unjust outcomes.

 

6.However, since the Defendant submitted a statement in compliance with the Civil Procedure Rules, a recent House of Lords judgment in the case of Sempra Metals v Inland Revenue Anor [2007] UKHL 34 has been published, which establishes a new ground for the awarding of compound interest at common law. The House held by a majority that compound interest is now recoverable at common law in restitutionary claims for money paid under a mistake. Lord Hope of Craighead stated in his majority judgment; “The time has come to recognise that the court has jurisdiction at common law to award compound interest where the claimant seeks a restitutionary remedy for the time value of money paid under a mistake.”

 

7.It is therefore no longer necessary for the claimant to invoke the equitable jurisdiction by demonstrating the existence and breach of a trust or fiduciary relationship between it and the Halifax in order that the court may be open to grant a restitutionary remedy of compound interest. This new authority provides that in cases such as the present compound interest is available at common law as a matter of right rather than being a discretionary equitable principle.

 

8.The Claimant has already demonstrated that the charges levied to its credit card account were wrongfully debited by the defendant contrary to common law and statute. The claimant further submits that such charges were therefore paid under a mistake – a mistake of fact.

 

9.The Claimant accepted the charges in the belief that they reflected the true cost of administering the contractual breaches. The charges were and are presented as being a legitimate charge to compensate loss. The claimant has approached the Defendant several times to complain about the charges and each time the Halifax were adamant that such charges were fair and reasonable and imposed to compensate the loss caused to the Defendant by the claimants own actions in the “mismanagement” of the Credit Card account. The claimant has always believed and the Defendant has always asserted, that the charges were imposed as a result of manually operated and labour intensive procedures. Furthermore, the claimant was referred to a clause of the account agreement, which states that the Halifax may take money out of the account to cover any losses or expense incurred by it in relation to the customers account. Unjust Enrichment

 

10.The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by virtue of charges levied to the Claimants account, over a period of up to 5 years. The absolute fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by re-lending at higher commercially compounded interest rates. Therefore, it is the claimants submission that the sums wrongfully and unlawfully acquired from the claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession, have earned considerable profit by virtue of the commercial rates of compounded interest charged by the Defendant on its lending. Therefore, for complete restitution to occur the Claimant submits that an award of compound interest is necessary to provide full restitution of the ‘time value’ of the money and thus a just result. I submit that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds.

 

11.The Defendant bank continues to levy penalty charges to its customer’s accounts despite increasing public awareness that they are challengeable as disproportionate contractual penalties and unenforceable at law. Such charges account for a highly significant proportion of the banks revenue stream and annual turnover (approx 12% - see paragraph 24 above). The defendant continues to levy its charges on a huge scale despite its knowledge that the charges it imposes are unlawful, and despite its realisation that it may one day have to pay each such charge back. When proceedings are brought by the banks customers to recover the charges, in some cases years later, if the Defendant is only ever forced to repay the sum wrongfully taken plus simple interest at the statutory rate, the Defendant is in the position whereby it is has still made significant unlawful profit by virtue of the sums earned in compound interest whilst the charges were in its possession and reinvested at its commercial compounded rates. Even if the Defendant repaid every charge to every customer its profit of compound interest earned by reinvesting the sums when in its wrongful possession would be highly significant. The Defendant could therefore continue to consciously and wilfully put wrongfully debited charges to use to generate further unlawful profit with no form of redress. The Claimant submits that this situation is inherently wrong and contrary to the law of restitution and principles of unjust enrichment.

 

12.In relation to the matters set out above, it is submitted that by virtue of the development of the law recently established in Sempra v Inland Revenue, it is open to the court to award compound interest in a case such as the present. Before this new ground was established, the awarding of compound interest was limited to cases involving fraud or where a breach of fiduciary or other trust duty was established. In the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Lord Goff of Chieveley and Lord Woolf delivered powerful judgments in favour of extending the jurisdiction in order that full restitution could be provided even in cases where no breach of trust could be found. Lord Goff;

 

“I wish however to record that Hobhouse J. was in no doubt that, if he had jurisdiction to do so, he should award compound interest in this case. He said [1994] 4 All E.R. 890, 955: "Simple interest does not reflect the actual value of money. Anyone who lends or borrows money on a commercial basis receives or pays interest periodically and if that interest is not paid it is compounded. I see no reason why I should deny the plaintiff a complete remedy or allow the defendant arbitrarily to retain part of the enrichment which it has unjustly enjoyed."

 

With that reasoning I find myself to be in entire agreement. The council has had the use of the bank's money over a period of years. It is plain on the evidence that, if it had not had the use of the bank's money, it would (if free to do so) have borrowed the money elsewhere at compound interest. It has to that extent profited from the use of the bank's money. Moreover, if the bank had not advanced the money to the council, it would itself have employed the money on similar terms in its business. Full restitution requires that, on the facts of the present case, compound interest should be awarded, having regard to the commercial realities of the case. As the judge said, there is no reason why the bank should be denied a complete remedy.”

 

13.The passage above represented the minority view. The majority held that compound interest could not be awarded in the absence of a trust or fiduciary duty, even if it was just to do so, as it would be to usurp the function of Parliament. Lord Browne-Wilkinson commented that legislature had twice made provision for interest, but never compound interest. However, the minority approach of Lords Goff and Woolf has prevailed in the recent House of Lords case of Sempra v Inland Revenue. Lord Mance’s statement in relation to the minority approach in the Westdeutsche case; “In my view, the House can and should now adopt this approach. I would in these circumstances respond to Sempra's invitation to revisit the Westdeutsche case, by adopting the minority approach in preference to that of the majority and also by determining that in appropriate circumstances equity can go further and provide relief in respect of any actual interest benefit received from any principal sum paid by mistake, even though such principal may be recouped before action brought.”

 

14.This new ground in the law of restitution establishing the availability of compound interest at common law in cases such as the present was confirmed and stated authoritatively by Lord Nicholls in his leading judgment;“There can only be one answer on this important question of law. Nobody has suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest is necessary to achieve full restitution and, hence, a just result. I would hold that, in the exercise of its common law restitutionary jurisdiction, the court has power to make such an award.”

 

15.It is thus submitted that it is now wholly within the courts jurisdiction to make a restitutionary award of compound interest in this case. There is no conceivable reason why, upon the facts of the present case, that the defendant should be allowed to retain part of the unjust enrichment which it has undoubtedly enjoyed, or that the Claimant should be denied a complete and just remedy which recognizes the reality and true extent of the unjust enrichment enjoyed by the Defendant and allows complete restitution of the wrongful gains made.

 

16.The defendant may assert that the specific amount of profit derived from the use of the funds cannot be accurately measured and thus the level of unjust enrichment cannot be proved. However, it is submitted that proof of the exact use of the money or an account of profits is not required in order for a restitutionary award of compound interest to be made. This position was stated in the Sempra case by Lord Hope; “Money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra (claimant) of what the Revenue (defendant) actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands.” Thus only the opportunity to turn the funds to profit is required to be established rather than the proof of precisely what profits were actually made. In the present case the as the defendant is a lending institution, it is inconceivable that it could have put the wrongfully debited sums to any other use but to earn further profits. The defendant has undoubtedly derived significant benefit from the money in its hands.

 

17.In the case of Sempra v Inland Revenue it was finally recognised by the English legal system that compound interest is a necessary part of modern financial reality. Lord Nicholls in the leading majority judgement stated; “We live in a world where interest payments for the use of money are calculated on a compound basis. Money is not available commercially on simple interest terms. This is the daily experience of everyone, whether borrowing money on overdrafts or credit cards or mortgages or shopping around for the best rates when depositing savings with banks or building societies. If the law is to achieve a fair and just outcome when assessing financial loss it must recognise and give effect to this reality.”

 

18.Therefore the claimant submits that for a fair and just result compound interest must be awarded in the present case. Not only has the defendant derived benefit from the money in its hands, the claimant has also been denied use of the money. This means the claimant was forced to replace those funds by way of an overdraft on a separate account, and loans at a higher rate. The reality is that any funds borrowed commercially carry compound rates of interest. There are no financial products or credit facilities which carry only simple interest. Furthermore the claimant whilst wrongfully denied benefit of the funds was denied the opportunity to invest it. Such investment would have invariably earned compounded rates of interest.

 

19.The Claimant seeks an award that can, insofar as it is possible, put both parties in the same position as before the wrongfully debited charges were imposed. Restitution requires that the time value of the money is also considered when the Claimant seeks a remedy for money paid under a mistake. Upon the facts of this case, simple interest at the statutory rate patently does not achieve restitution nor a just result. It would leave the defendant, a powerful financial institution, unjustly enriched at the expense of the Claimant, a self-litigating consumer. The Claimant urges the court therefore to exercise its power at common law to grant a restitutionary award of compound interest.

 

The Halifax ran for cover with that part of my POC, and paid up £3500 and included CCI.

 

Hope this helps"

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Just a question.

As noted I put that statutory interest at 29.99% (A mistake I know)

Is this a good time to send a email back to them in an attempt to narrow the differences between our postions and conceed that the s69 interest should of been 8% and is at discretion fo the court but the other interest claim is in response to interest in restitution?

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bump

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I think your interest calculation requires clarification...you cant assume that they know its an error.

 

The filling of a defence by the defendant does not entitle them to costs...they either file or you get default judgment...end off.Its their prerogative if they wish to defend themselves or admit.So a little mind game going on.

 

Andy

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So do you recommend an email reply like the following? Any changes?

 

Dear Sir

 

I am in receipt of your letter dated 20th June.

 

I do not agree with your assessment on the following points regarding the nature of the charges. I still consider them penalties and thus unlawful and will invite the court to invite you to provide evidence that they do reflect the true costs or genuine per-estimated costs of breaching the agreement.

 

I also do not agree with your assessment in regards to Halliday vs Halifax Bank of Scotland. I am not claiming compound interest under an implied term. That in itself would be bound to fail. I am claiming interest in restitution at a rate of 29.99% on the grounds that you have applied unlawful charges to my account and therefore have allowed yourselves to unlawfully enrich yourself. If you wish to dispute the level on which this interest of restitution should be set then I shall invite the court to order you to open your books to prove the level of unlawful enrichment that has occurred.

 

It was noted in the authority stated by you that "A bank customer who suffers unauthorised deductions has of course the right to have those deductions and any interest charged on them, which will in practice have been compound interest and possibly at a high rate, repaid to him in full: that has occurred in the present case. On top of that, he has the right of every person to whom money is owed to claim from the court statutory interest in respect of the period for which the money has been outstanding, provided he brings proceedings before repayment is effected" and thus appears to endorse the claim for compound interest as well as statutory interest. I suggest you review your authority and its relevance to my claims.

I shall also draw attention to the court that these charges are unlawful and despite knowing full well they are that your institution continues to apply these charges to multitudes of consumers knowing full well that your company can unlawfully enrich themselves as very few people have the confidence to litigate.

 

As for my claim Statutory interest, I am aware that any award under S69 is subject to the discretion of the court. My 29.99% statutory interest is therefore subject to that discretion and may very well be awarded at amounts lower or equal to 8%

 

I also challenge your right to ignore claims after 6 years in this case. The mistake being complained of is not the fact that the charges were not applied according to the terms and conditions but instead the fact they were applied at all is a mistake in law as they are penalty charges and thus an unlawful term and therefore should not have been applied period and therefore are not statute barred.

 

However, in order to narrow the differences between us, I invite you now to provide evidence of the true costs of going over the agreement for every breach. It appears that this case centers around the nature of these charges. By revealing to me the true costs of going over the agreement I would be placed in an equitable position to assess whether they do indeed reflect the true costs and therefore be able to determine if they are indeed penalty charges.

 

If you are unable or unwilling to provide the information with a view to avoiding further litigation and prevent court time being wasted then I reserve the right to use this letter at any subsequent costs hearing.

 

As such I still consider the charges penalties and unlawful and as such claim the right to interest in restitution at a rate of 29.99% apr in respects of your unlawful enrichment in order to return us to an equitable situation.

 

Therefore with the above in mind, I look forward to receiving a copy of your defense or the information requested above. I trust this clarifies my position and the questions around the s69 interest.

 

Yours sincerely

 

Mr Blobby

 

Edited by citizenB

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Excellent Sabre...perhaps even by way of a CPR 18 request?

 

Back to the Stat and the Sec you dont seem to grasp...section 69 interest is at the discretion of the court on top of the judgment and can be an any amount up to a maximum of 8%...that is what they are querying in their response.

 

As for you statuary / restitution interest that is what ever they have charged you and remains fixed.

 

Regards

 

Andy

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I have highlighted the word "access" in your draft - post # 98 - Should that be "assess"?

 

Other than that, I think your response is excellent :)

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3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. 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.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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