Contractual interest - another full settlement!

[GaryH]

And I'm delighted to say that the winner was - me!!!

 

£1618 in all. £622 of charges, £900 odd of interest at the rate of 18.3% compounded. They really did'nt like it though, I refused 3 offers in all before they folded. Perseverance looks like being the key if your claiming contractual rate interest. http://www.consumeractiongroup.co.uk/forum/hsbc-bank/25932-garyh-hsbc-including-contractual.html

[octron32]

:lol: well done, we should have a ringing of the bell smilie, so it rings everytime theres a winner.

[Rumblestrips]

Thats excellent news... congrats Gary!

I'm claiming contractual interest aswell and will defo be following your advice...PERSEVERE!!! We'll get there in the end!

[Rumblestrips]

BTW, I'm at the MCOL stage and was wondering if you could post the 'particulars of claim' you used for claiming contractual interest? This would be very helpful as I'm not sure how to word it! Thanks

[muz1kman]

As they say here up in Scotland FAN DABBY DOZI!!!!!!!!!! excellant result, good to hear so many ppl getting back the money they are owed.

Muz1kman

[Mindzai]

BTW, I'm at the MCOL stage and was wondering if you could post the 'particulars of claim' you used for claiming contractual interest? This would be very helpful as I'm not sure how to word it! Thanks

 

 

You will have a problem using MCOL for contractual interest by all acounts as there isnt enough roomto include the necessary info in the POC.

 

You may have to use a N1 form. I've writted some POC for contractual interest, found here if that's of any use.

 

And congrats Gary, another victory to add to the tally! Enjoy your money

[GaryH]

Thanks everyone:)

 

Yes, as Mindzai said, please don't even attempt to use MCOL for a contractual interest claim. Its debatable whether the space is adequate for proper particularisation even for normal claims, let alone anything else.

You may have to use a N1 form. I've writted some POC for contractual interest, found here if that's of any use.

Well it was to me - it's what I used! Picked it up from your LTSB thread.

 

A quick note of caution to the above posters and anyone else intending to claim contractual interest.

 

Firstly, keep it reasonable - it has to be seen as that in the eyes of the court. Claiming five times in interest what the amount is in charges certainly won't endear you to the court, and in fact could well be seen as undue enrichment which would make you nearly as bad as the banks. If need be, claim the lower contractual rate if the unauthorised rate gives a ridiculously high amount.

 

Also, please understand the issues behind claiming the contractual rate. Its important to remember that there is no express term or provision that entitles you to it as such, as there is with the 8% statutory rate. You are argueing an implied principle, that the banks term of contract relating to interest should be reciprical. You are perfectly entitled to claim it, whether you get it or not would ultimately be for a judge to decide. Obviously it's not likely to get that far, the banks on the evidance so far would rather pay the contractual rate than defend the claim (ie justify their charges!) in court. Which brings me to the next point....

 

IMHO accepting part-settlements is not a good idea. Halifax have recently been offering to settle the charges part plus their own estimate of the stat rate, whilst denying the contractuial rate applies (obviously thats not for them to decide!). If you accept the offer it lets them off the hook of having to defend the charges part of the claim. If you then tryed to pursue just the contractual interest they would almost certainly try to get it struck out. IMO you need to present them with a stark choice - pay the full amount of the claim or see you in court! I'm in the middle of a battle with them at the moment along those very lines - http://www.consumeractiongroup.co.uk/forum/halifax-bank/42023-garyh-halifax-visa-theyre.html

[millymollymoo]

Hi gary I am sorry but I don't know what to think. I saw your post in bills thread and I was totally impressed with what you have done so far.

 

However now what to do???

 

you said this:

 

In this

regard, the advice simply must be that if you recieve an offer of 100% of

the charges + statutory interest, you should accept it. To proceed to

court solely for contractual interest on the basis of an untested,

implied principle requires you to be 100% sure of your arguement, and 100% Agree with this

aware that there is a costs liability in the event the judge dismisses

the implied term arguement. Costs can be awarded in the small claims

track for unreasonable behaviour and a major factor in this is the refusal

of a reasonable settlement offer.

 

But have you not advised this in the post 7 above, the complete opposite.

 

IMHO accepting part-settlements is not a good idea. Halifax have recently been offering to settle the charges part plus their own estimate of the stat rate, whilst denying the contractuial rate applies (obviously thats not for them to decide!). If you accept the offer it lets them off the hook of having to defend the charges part of the claim. If you then tryed to pursue just the contractual interest they would almost certainly try to get it struck out. IMO you need to present them with a stark choice - pay the full amount of the claim or see you in court! I'm in the middle of a battle with them at the moment along those very lines

 

So you see that is why I am confused.

 

so is it reject fully for CI or accept stat? {in fairness though I had unfair conditions}

 

I was avised to reject by a Mod and had this agreed by another Mod as the right thing to do.

 

Do not get cross with me but can you see what people like me get from what people say and than get all confused when the answer is different:o

 

Milly X

[GaryH]

Why would I get cross with you?

 

Perhaps I was wrong in the post above - I'm still not sure TBH and I don't think there is a 'right' way. I certainly don't profess to be right all the time and I'm sure if you delve through the archieve far enough you could find posts which conflict for most of CAG's 110,000 users. That was just my opinion then (before becoming aware of the potential for costs liability on the SCT), and if I personally was claiming contractual interest again actually I think I may still perhaps follow the same route now.

 

Since then though, the costs liability aspect has come to light as a result of the ERC situation, plus threads like this have become more common - http://www.consumeractiongroup.co.uk/forum/scotland/62476-hbos-successfully-defended-claim-4.html, and quite rightly people have expressed reservations and advised caution - those reservations have always been there in some quarters, whether mod, pink or other user, and with recent events they probably have got louder.

 

Its also unrealistic for you to expect all the mods and all the site helpers to always have the same opinions on every single issue. There are always going to be different opinions in all sorts of situations.

 

Whether you accept the offer or not is up to you. You've clearly done your research and probably understand CI better than I do - you need to make your own informed decision in full view of all the facts and potential implications. For those users who are'nt so clued up though and who have claimed CI without knowing anything about it, I think it is quite right to air on the side of caution and to advise them to accept an offer of charges + 8%.

[millymollymoo]

Why would I get cross with you?

 

Perhaps I was wrong in the post above - I'm still not sure TBH and I don't think there is a 'right' way. I certainly don't profess to be right all the time and I'm sure if you delve through the archieve far enough you could find posts which conflict for most of CAG's 110,000 users. That was just my opinion then (before becoming aware of the potential for costs liability on the SCT), and if I personally was claiming contractual interest again actually I think I may still perhaps follow the same route now.

 

Since then though, the costs liability aspect has come to light as a result of the ERC situation, plus threads like this have become more common - http://www.consumeractiongroup.co.uk/forum/scotland/62476-hbos-successfully-defended-claim-4.html, and quite rightly people have expressed reservations and advised caution - those reservations have always been there in some quarters, whether mod, pink or other user, and with recent events they probably have got louder.

 

Its also unrealistic for you to expect all the mods and all the site helpers to always have the same opinions on every single issue. There are always going to be different opinions in all sorts of situations.

 

Whether you accept the offer or not is up to you. You've clearly done your research and probably understand CI better than I do - you need to make your own informed decision in full view of all the facts and potential implications. For those users who are'nt so clued up though and who have claimed CI without knowing anything about it, I think it is quite right to air on the side of caution and to advise them to accept an offer of charges + 8%.

 

 

Thank you Gary:) I understand now. I suppose some people have got carried away with CI and the CI amount is massive in relation to the charges add they cannot explain why thaey should get it. Not in my case however, it is less the CI. However, personally now in reflection i will stop at Stat if offered.{not because I do not feel I have a good argument. } If it is not reoffered then I WILL FIGHT FOR IT!!!

 

You are honest and I like that .

 

 

Milly X

[Mindzai]

In this regard, the advice simply must be that if you receive an offer of 100% of the charges + statutory interest, you should accept it. To proceed to court solely for contractual interest on the basis of an untested, implied principle requires you to be 100% sure of your argument, and 100% aware that there is a costs liability in the event the judge dismisses the implied term argument. Costs can be awarded in the small claims track for unreasonable behaviour and a major factor in this is the refusal of a reasonable settlement offer.

 

Not that anyone asked for my opinion, but I would disagree with the above.

 

Say you are owed £3000 (for example) including contractual interest, of which £1500 is charges (A) + interest paid on those charges (B), and £1500 is contractual interest on A+B. If the bank refund £1500 charges and interest paid on charges, that does not mean that proceeding to court would be to reclaim contractual interest only imo. They have paid £1500, but the total sum owed as of the date of the claim is £3000. If you proceed to court for the other £1500 therefore, you are not just reclaiming the contractual interest, you are claiming back 50% of A, 50% of B, and 50% of the contractual interest. That seems to me to be a perfectly reasonable way to allocate the £1500 against the total amount owed.

 

However that's just my opinion, and I hesitate to even post it as certain people seem to be getting a lot of hassle for having an opinion that disagrees with certain site mods, regardless of how researched and sensible it is .

[millymollymoo]

Mindzai I didnt say that. I copied it from bills new thread contactual confusion. .

 

Milly X

[CrispDust]

mindzi it depends on the wording of the offer letter I suppose. If they are making a payment that they state is just charges (which would then admit a degree of laibilty) then It may be more difficult in court.

Easier just to refuse any settlement unless the full amount.

a. puts pressure on them to settle

b. makes it easier in court to argue both points. more difficult to have costs against you.

[lucid]

Mindzai I didnt say that. I copied it from bills new thread contactual confusion. .

 

Milly X

 

Hi Milly,

 

I've gone in and edited that for you (as Mindzai). I don't think Mindzai meant to quote you as having said that.

 

_______

 

Crispdust,

 

I completely agree with you way of thinking and this is what we did with our two settlement offers. We got offered amounts without contractual itnerest and so completely rejected the offers. Rejecting the offer in its entirety is the only way that you can proceed to court without having to dispute the interest on its own.

 

Lucid

[millymollymoo]

Hi Milly,

 

I've gone in and edited that for you (as Mindzai). I don't think Mindzai meant to quote you as having said that.

 

_______

 

Crispdust,

 

I completely agree with you way of thinking and this is what we did with our two settlement offers. We got offered amounts without contractual itnerest and so completely rejected the offers. Rejecting the offer in its entirety is the only way that you can proceed to court without having to dispute the interest on its own.

 

Lucid

 

Thanks Lucid... yes and you recently won and many congratulations:) to you and Mindzai. I have done this after advice and to be truthful am worried incase it was deemed unreasonable though I have now received good support on what I have done from others. Though I did not think so at first!!!! They seem to think the conditions were good enough grounds to do this. Though I however am not really sure where this lies really cos they offered 8% stat {not the contractual }before court and I rejected the lot though also stating because they had grossly unfair conditions concerning returning the money. Never heard no more from them and am waiting for defence.

 

Was you ever worried about being deemed unreasonable?

 

Milly X

[lucid]

Hi Milly,

 

To be completely honest, no we were never worried that we were being unreasonable and I don't think we were unreasonable at any stage of our claim. We got an offer on our joint account of charges + court costs + 8% interest approximately up until the date we filed the claim (but no daily interest at 8%). They said that overdraft interest isn't reclaimable and that they wouldn't entertain our list of letter writing costs or 29.85% interest. We rejected the offer entirely pointing out that it is up to the court to decide which parts of the claim are applicable or not. We didn't hear anything back from them and then our claims were settled completely the day before the court hearing. But even if they had offered everything apart from 29.85% interest (replacing that with the correct amount of 8%) we would have still rejected their offer entirely. But we were confident in what we were doing and we were prepared to turn up in court if we had to. If we had turned up in court and the Judge had completely dismissed the contractual interest then we would have accepted that and would not have regretted trying.

 

However I do believe that anybody who is unsure of what contractual interest is and couldn't tell you the grounds for claiming it, should not be considering adding it to their claims. These are the people who could end up having their claims struck out or turning up at court and not having a sound case to present to the Judge. In my opinion if you thoroughly prepare your case and turn up to the court prepared then even if the Judge doesn't agree with applying contractual interest, I am sure they would accept that you have put a lot of time and effort into preparing a case that you believe to be accurate. I can't imagine they would then proceed to striking out your claim and potentially awarding costs against you. This is of course pure speculation on my part but we are all litigants in person and I think the court will look upon you more favourably if you have obviously taken this seriously and prepared. But it is the people who go ahead without understanding who are going to be vulnerable.

 

Lucid

[millymollymoo]

Thanks lucid. I had been extensively researching and adding my two pennyworth on various threads about gains based recovery, compound interest , restitution you name it and did type up I feel a good strong argument to bore the pants hopefuly off a judge so that they awarded it just to get rid of me:D but I realise this does involve my kids probably and my confidence took a knocking with recent events. But am feeling much better!!! However, I probs will accept the revised offer if it has no conditions. :o Dunno I will see what happens.

 

 

But hey well done you two. I am so impressed with all the work you did. Enjoy the money:D If I change me mind{again!!!} or if no offer comes through now then I am at least glad that I have a argument ready:D

 

milly XX

[maangov]

Congratulations Gary!

 

It's reassuring to know they're paying - I'm going down the same route with HSBC.

 

Cheers

 

MikeA