Help with starting a County Court claim for Charges on Argos card.

[Dot1]

Hi all,

 

My sister had an account with Argos and Charges were applied to her account .

 

The account was opened 2003. She operated it until 2009 but ran into financial difficulties.

 

The account was closed then sold to Lowell this year with an outstanding balance of appx £800. She requested for a copy of CCA + SAR and received both.

 

There were quite a few late and over the limit fee totaling to £250 added to the account.

 

There have been a few exchanges of letters and Argos stated in their final letter that the charges were fair and will not be refunding but the case can be referred to ombudsman.

 

I have seen a LBA and they referred to the previous letter as their final response and their position remains the same.

 

I would like to help her claim this charges plus back and I do need help with drafting particulars of claim.

 

Lowell is now threatening with court action too, so urgent help is needed please.

 

Is there any Argos case I can have a look at?

 

Thanks for your help.

 

Dot

 

Below is the spread sheet for the charges

[renegadeimp]

Get reclaiming them. None of them are fair. Argos will say they are because it gives them money for nothing.

[Dot1]

Thanks renegadeimp,

 

I will do that. Just trying to draft particulars of claim.

 

Dot

 

Below is the particulars of claim I amended. Could I have your views on it please.

 

Thanks

 

Dot

 

Claim No:

 

IN THE MY LOCAL COUNTY COURT

 

 

BETWEEN

 

DOT

 

Claimant

 

and

 

 

-ARGOS HOME RETAIL GROUP

 

 

Defendant

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/2003, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases in advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases in advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases in advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed. by the due date as notified in the monthly statements.

(d) The default charges Sept 2005 – Dec 2005 were £xx.xx, Jan 2006 –Sept 2006 was £xx.xx, Jan 2007 – Feb 2007 was £xx.xx, Jan 2008 – Aug 2008 were £xxxx and April 2009 – July 2009 were £xxxxx

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

11.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Argos/Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £298.35 plus interest between 17/09/2005 and 16/07/2009. Particulars appear from Schedule 2.

 

18. On xx/xx/xx the Claimant demanded repayment of the sums wrongly applied.

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims;

 

(1) A declaration that the sums totalling £298.35 have wrongly been applied to the Account.

 

(1) A declaration that the sums totalling £xxxx have wrongly been applied to the Account. Some of these charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

(2) Payment of the said sum of £238.35 and interest in restitution of £1993.13 as per Sempra Metals v Inland Revenue Commissioners.

 

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum on the amount claimed daily rate of £0.54 per day until judgment or sooner payment

(4) Court costs of [ xxxx].

(5) Section 19 (1) (2) is as below:

 

I declaration that adverse data reported about the account by Credit Reference Agencies be removed as the amounts so reported are inaccurate due to the inclusion of unlawful penalty charges.

 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

 

Dated

 

 

 

Signed

 

Any feedback on the POC above please.

 

Thanks

Dot

[AndyOrch]

Requires a lot of condensing Dot...far too much detail...keep it simple.......then expand if they wish to defend

[Dot1]

Thanks Andy.

 

I which part can I remove which will not affect the POC please. Any suggestion?

 

Thanks

Dot

[AndyOrch]

Everything past point 7 then just finish with your total claimed plus sec69 interest....court costs are added into the total claimed...not in the particulars.

 

Andy

[Dot1]

hi Andy,

 

Below is the amended POC as advised. Is ts better? At what point is interest in restitution mentioned please?

 

Thanks DOT.

 

 

Claim No:

 

IN THE MY LOCAL county court

 

 

BETWEEN

 

DOT

 

Claimant

 

and

 

 

-ARGOS HOME RETAIL GROUP

 

 

Defendant

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/2003, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases in advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account .

 

And the Claimant claims;

 

(1) A declaration that the sums totaling £xxx.xx plus interest in restitution of £xxxx have wrongly been applied to the Account plus court cost of£xxxx.

 

(2) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum on the amount claimed daily rate of £xx.xx per day until judgment or sooner payment

 

(3) Section 19 (1) (2) is as below:

 

I declaration that adverse data reported about the account by Credit Reference Agencies be removed as the amounts so reported are inaccurate due to the inclusion of unlawful penalty charges.

 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

 

Dated

 

 

 

 

Signed

 

 

 

[AndyOrch]

"At what point is interest in restitution mentioned please? "

 

At point 7 in your totals before (2) section 69 interest.

 

Andy

[Dot1]

Is this OK now( in Red) post #10.

 

Apart from the interest in restitution, was the rest of the POC alright?

 

How do I work out daily rate per day in 7(2)

 

Thanks

Dot

[AndyOrch]

Yes thats fine....sec69 workings....

 

Calculating interest under the County Court Act

 

In many cases you can claim interest on the money you are owed. To calculate this, use the steps below;

 

1. Work out the yearly interest: take the amount you’re claiming and multiply it by 0.08

(i.e. 8% - this will equal 8% of the amount claimed).

2. Work out the daily interest: divide the yearly interest from step 1 by 365 (the number

of days in a year).

3. Work out the total amount of interest: multiply the daily interest from step 2 by the

number of days the debt has been overdue.

 

For example, if you were owed £1,000:

 

• the annual interest would be £80 (1000 x 0.08 = 80)

• divide £80 by 365 to get the daily interest: about 22p a day (80 / 365 = 0.22)

• after 25 days this would be £5.50 (25 x 0.22 = 5.50)

 

If you are claiming interest under the County Court Act you will need to complete some extra

fields for step 5, including the daily rate of interest. You need to add this amount of interest

to the total claim amount and enter it in the box for ‘amount claimed’ as shown at the

bottom of the example. This ensures that any interest due prior to issuing the claim is

included in the total amount claimed. This cannot be added to the claim at a later date

without making an application for permission from a District Judge which incurs a fee.

 

Please note that you can use the same daily rate to calculate interest from the date the claim

was issued to the date of judgment if your claim reaches that stage.

[Dot1]

Got that and thank you very much Andy.

Dot

 

How much is court fee please?

[AndyOrch]

Depends on the amount you are claiming...check here

 

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex050-eng.pdf

[Dot1]

Thanks Andy.

 

 

Sorry I was out of action due to some family problems. I had not submitted the claim yet but ready to do it now.

I used the example above but came up with some figures but not sure if they are right.

Basically, the amount charges is 250.35

Compound interest is 1742.95 to date

 

My question is, to get the daily and annual rates should I use only the charges total or the total for compound and charges?

 

this what I did:

 

250.35 x 0.08=20.028 (yearly Interest)

 

20.028/365=0.548 Daily rate

 

0.548 x 3429 = 188.6

 

 

Or should it have been;

 

1993.30 x 0.08=159.464

 

159.464/365=0.437 x 3429 = 1498.

 

Another question I have is, is the number of days counted from the the first day the 1st charge was applied? In this case the first charge was applied some 3429 days ago while the last one was 2365 days ago.

 

Thanks for your help again.

[AndyOrch]

Responding to your PM Dot1

 

Section 69 stat interest is at the discretion of the court and so should only be shown at the end of your particulars...

 

So you have your particulars the amount claimed plus any compound interest and your total claimed.

 

Once you complete your particulars through MCOL you will be guided on how to enter section 69 interest on top of your amount claimed.

 

Sec69 interest can be claimed from the day you was denied or became aware...so from (first date) to ( date of the claim) and up and until judgment or payment.

 

Regards

 

Andy

[Dot1]

Thank you Andy.

 

Will put everything together.

 

Dot

[SabreSheep]

RE; your poc you sent me.

 

 

You have asked for interes tin restitution of xxx that has wrongly been applied to your account.. This is incorrect. I will try and say why below.

 

Interest in restitution is money to be paid by the defendent (Argos) where they are expected to give up any money they have made by taking your money unlawfully and gaining benefit from it. (Lending it out elsewhere and earnign interest) Therefore it was never "added to your account"

 

Contractual interest is interest charged on the balance of your account (Which would of included penalty charges etc) which is fundementally different from interest in restitution.

 

If using Interest in restitution make a reference to the caselaw Sempra metals vs HMRC eg "And I claim XXXX in interest in restitution as per (Sempra metals etc) calcualted at a apr of XXX%

 

Also if any of the charges are over 6 years old, you will need to add into the POC the fact that charges older than 6 years are claimed as per (CASE)

 

hope that is not too confusing. Feel free to check out the credit card reclaim threads *Sucesses* to look at wording used in the pocs

[Dot1]

Thanks SS,

 

I will have a look as suggested and make those changes and post back.

 

Thanks.

 

Dot

[SabreSheep]

Edit the following to use

 

(1) A declaration that the sums totaling £XXX have wrongly been applied to the Account. Some of these charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx and interest in restitution of xxxx as per Sempra Metals v Inland Revenue Commissioners calculated using a rate of XX % APR

 

 

BUT 2) is only if you are using the interest in restitution angle of attack for your claim. If you are using contractual interest added to the account due to the charges then 2) is not suitable.

 

Bonus with using restitution is that it is not restricted to the apr you were charged. As long as you have some degree of evidence that the defendent lent out at the APR rate you are claiming or higher, you can justify the APR used in the calculation.

In one claim the defendent complained that the interest rate i used was too high. So during mediation I referred to one of their products that charged an apr DOUBLE the rate of what I was claiming. Full settlement followed days later.

[Dot1]

Hi SS

 

Thanks for the above information.

 

I would like to claim interest in restitution too. Does this mean that interest under section 69 does not apply anymore?

 

below is the amended version of the POC.

 

Please let me know your thoughts.

 

Thanks

 

Dot

 

 

Claim No:

 

IN THE MY LOCAL county court

 

 

BETWEEN

 

DOT

 

Claimant

 

and

 

 

-ARGOS HOME RETAIL GROUP

 

 

Defendant

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/2003, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases in advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the consumer credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

And the Claimant claims;

 

1) A declaration that the sums totalling to £xxx have wrongly been applied to the Account. Some of these charges are older than the normal years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx and interest in restitution of xxxx as per Sempra Metals v Inland Revenue Commissioners calculated using a rate of XX % APR

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum on the amount claimed daily rate of £xx.xx per day until judgment or sooner payment

 

(4) Section 19 (1) (2) is as below:

 

A declaration that adverse data reported about the account by Credit Reference Agencies be removed as the amounts so reported are inaccurate due to the inclusion of unlawful penalty charges and mis-selling of payment protection .

 

I believe that the facts stated in these particulars, comprising of 2 pages, are true.

 

Dated

 

 

 

 

Signed

[SabreSheep]

Ok, the payment protection, im not sure about at I thought this claim was for charges and interest in restitution only.

 

S69 interest is still added at the end

[Dot1]

Thanks SS,

 

Yes you are right. It is for charges but not PPI. I will remove the PPI bit.

I thought mentioning it would add weight to the request for the removal of the incorrect reporting to the CRA since they have agreed to refund it.

I am just trying to the mis-selling of PPI and the unfair charges led to incorrect reporting.

 

Does it make sense?

 

Thanks

 

Dot

 

Another thing I forgot to ask is if I should include the spredy for the charges with the POC please.

 

Thanks

[AndyOrch]

How do you intend to issue the claim Dot? MCOL or Manual (Approved County Court)

 

Practice direction (PD) 7E specifically deals with MCOL, but please be aware that many other rules and directions within the CPR still apply to claims issued via MCOL (except where they

are specifically modified by Practice Direction 7E). It is recommended that you check PD 7E toensure your claim is suitable for MCOL and you can refer to CPR to clarify and confirm other

points of procedure as and when necessary.

 

If you cannot issue a claim via MCOL you may be able to issue your claim via the County Court Money Claims Centre (CCMCC).

[slick132]

Hi Dot,

 

If you have reclaimed PPI or are doing so, you can refer to it. If thsi is not the case, remove the reference to PPI.

 

The Spready or Schedule of Charges should be attached with the claim (if filing via CCMCC Salford). This is the Schedule 2 you refer to in s.5 of your PoC.

 

I would make a small change for 7 (2) :-

 

(2) Payment of the said sum of £xxx and interest in restitution at the rate of xx % per annum as per the case of Sempra Metals v Inland Revenue Commissioners.

 

[Dot1]

Hi Dot,

 

If you have reclaimed PPI or are doing so, you can refer to it. If thsi is not the case, remove the reference to PPI.

 

The Spready or Schedule of Charges should be attached with the claim (if filing via CCMCC Salford). This is the Schedule 2 you refer to in s.5 of your PoC.

 

I would make a small change for 7 (2) :-

 

(2) Payment of the said sum of £xxx and interest in restitution at the rate of xx % per annum as per the case of Sempra Metals v Inland Revenue Commissioners.

 

 

Hi Slick,

 

Thanks for having a look.

Yes, I am claiming PPI. I will make the amendment in 2 as advised before submitting the claim.

 

Thanks

 

Dot

 

How do you intend to issue the claim Dot? MCOL or Manual (Approved County Court)

 

Practice direction (PD) 7E specifically deals with MCOL, but please be aware that many other rules and directions within the CPR still apply to claims issued via MCOL (except where they

are specifically modified by Practice Direction 7E). It is recommended that you check PD 7E toensure your claim is suitable for MCOL and you can refer to CPR to clarify and confirm other

points of procedure as and when necessary.

 

If you cannot issue a claim via MCOL you may be able to issue your claim via the County Court Money Claims Centre (CCMCC).

 

Hi Andy.

 

I was thinking of issuing it through MCOL. I will check the PD 7E then decide which way to go. I will do some reading in the area too to get a good understanding.

 

Will come back and thanks you for your help.

 

Dot

[AndyOrch]

Another thing I forgot to ask is if I should include the spredy for the charges with the POC please.

 

Thanks

 

Hi Andy.

 

I was thinking of issuing it through MCOL. I will check the PD 7E then decide which way to go. I will do some reading in the area too to get a good understanding.

 

Will come back and thanks you for your help.

 

Dot

 

 

Then you wont be attaching any spreadsheet for the reasons above....you can issue the particulars in more detail though separately .

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07