Jump to content

POC for Unfair Charges+6yrs old - is this any good?

Recommended Posts

Hi all


Sent Amex an LBA... they have now completed their review of my complaint and claim that I had signed the agreement so agreed to the terms in them.


so ... I have prepared the following POC... I have added to POC others have used ... first by reference to the exception to the statute of limitations ... and then later .. to the claim for restitutional interest... can you please sanity check it and if necessary suggest any change.


Particulars of Claim


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


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 and receive cash 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 and cash advances at the published rate.
(c) The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.
(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned.


9. The Charges were payable on breach of contract by the Claimant.

10.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.

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

The Regulations

12.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.

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 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.

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 totaling some £105.00 between 24/06/2004 and 05/01/2007. Particulars appear from Schedule 2.

18. On 6th March 2018 the Claimant demanded repayment of the
sums wrongly applied, having only recently becoming aware of the mistake which the Defendant had made in applying these charges.

19. The claimant relies on the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 1.(c) of the Limitation Act 1980 in regards to this claim.

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

And the Claimant claims

(1) A declaration that the sums totaling £105.00 have wrongly been applied to the Account

(2) Payment of the said sum of £105.00.

(3) Interest in restitution based on interest applied by the Defendant at the rate of 14.98% per annum from the date of payment of the Charge to date in the sum of £621.04, and at the daily rate of 14.98% until judgment or sooner payment.

(4) Court costs of £60.00.

I believe that the facts stated in these particulars are true.



Share this post

Link to post
Share on other sites

poc's are not my bag try andyorch





1. Single Premium PPI Q&A Read Here

2. Reclaim mis-sold PPI Read Here

3. Reclaim Bank Account, Loan & Credit Card Charges Read Here

4. The CAG Interest Tutorial Read Here

Share this post

Link to post
Share on other sites
Please fill in your quit date here

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Recently Browsing   0 Caggers

    No registered users viewing this page.

  • Have we helped you ...?

  • Tweets

  • Posts

    • Yes, It is more the apparent contradiction really. The legislation seems to say that she can still cancel but wil be billed for the two weeks or less she used the service.   Its twelve months, I usually like to look at these things before we purchase, however. I just noticed that £45 quids gone out of my account this morning, that will be the joining charge. £18 monthly after that. Not too bad I suppose.   We live half way up a one in six hill for goodness sake, how much exercise does the woman need?  Just leave the car in the drive I say. Won't listen     
    • I figured they would be same company by googling them. Man, such dirty tactics these people use... Thank you DX! 
    • not a letter of claim safe to file   its actually from ZZPS too anyway claiming to be QDR
    • Well I think that one could reasonably infer that if, in the professional opinion of the doctor, a child is not fit for school and may present a risk of contagion, it can be reasonably inferred that the child is not fit to vacation for the same reasons.  There may be an additional cost to secure a second doctor's letter, so I would proceed with a copy of the letter to the school in the first instance.  It would be perverse, frankly, to suggest that a doctor's letter confirming a suspected prognosis of a contagious pox is somehow insufficient for the purpose of honouring the claim.  So I would just send that off - in the event that the insurers are difficult, then Snowdragon's daughter should be able to secure a further bespoke letter. 
    • Because travel insurers will always require a statement of professional opinion from the doctor about whether the child was fit to travel. The letter for school is unlikely to mention fitness to travel to go on holiday. I can see that OP won't be able to get the necessary doctor's letter herself for her grandchildren, but surely she can ask her daughter to get it? I recommend though that OP checks with insurer whether they need GP to sign a specific form. Often insurers have their own medical certificate they want signed. Better to check that before approaching GP for another letter.
  • Our picks

    • This is a bit of a lengthy one but I’ll summerise best as possible.
      I was contacted by future comms by phone, they stated that they could beat any phone contract I have , (I am a limited company but just myself that needs a business phone and I am the only worker) 
      I told future comms my deal, £110 per month with a phone and a virtual landline, they confirmed that they could beat that, £90 per month with a phone , virtual landline  they also confirmed they would pay Vodafone (previous provider) the termination fee. As I am in business, naturally I was open to making a deal. So we proceeded. 
      Future comms then revealed that the contract would be with PLAN.COM and the airtime would be provided by 02, I instantly told them that this would break the deal as I have poor 02 signal in the house where I live as my partner is on 02 and constantly complaining about bad signal
      the salesman assured me he would send a signal booster box out with the phone so I would have perfect signal.
      so far so good.....
      i then explained this is the only mobile phone I use for business and pleasure, so therefore I didn’t want any disconnection time in the slightest between the switchover from Vodafone to 02
      the salesman then confirmed that the existing phone would only be disconnected once the new phone was switched on.
      so far so good....
      • 14 replies
    • A shocking story of domestic and economic abuse compounded by @BarclaysUKHelp ‏ bank complicity – coming soon @A_Gentle_Woman. Read more at https://www.consumeractiongroup.co.uk/topic/415737-a-shocking-story-of-domestic-and-economic-abuse-compounded-by-barclaysukhelp-%E2%80%8F-bank-complicity-%E2%80%93-coming-soon-a_gentle_woman/
      • 0 replies
    • The FSA has announced large fines against DB UK Bank Limited (trading as DB Mortgages) - DeutscheBank and also against Redstone for their unfair treatment of their customers.
      Please see the links below for summaries and full details from the FSA website.
      It is now completely clear that any arrears charges which exceed actual administrative costs are unfair and therefore unlawful.
      Furthemore, irresponsible lending practices are also unfair and unlawful.
      Additionally there are other unfair practices including unarranged counsellor visits - even if they have been attempted.
      You are entitled to refuse counsellor visits and not incur any charges.
      Any charges for counsellor visits must not seek to make profits. The cost of the visits must be passed on to you at cost price.
      We are hearing stories of people being charged for counsellor visits for which there is no evidence that they were even attempted.
      It is clear that some mortgage lenders are trying to cheat you out of your money.
      You should ascertain how much has been taken from you and claim it back. The chances of winning are better than 90%. It is highly likely that the lender will attempt to avoid court action and offer you back your money.
      However, you should ensure that you receive a proper rate of interest and this means that you should be seeking at least restitutionary damages - which would be much higher than the statutory 8%.
      Furthermore, you should assess whether the paying of demands for unlawful excessive charges has also out you further into arrears and if this has caused you further penalties in terms of extra interest or any other prejudice. This should be claimed as well.
      If excessive unlawful charges have resulted in your credit file being affected, then you should take this into account also when working out exactly what you want by way of remedy from the lender.
      You should consult others on these forums when considering any offer.
      You must not make any complaint through the Ombudsman. your time will be wasted, you will wait up to 2 yrs and there will be a minimal 8% award of interest and no account will be taken of any other damage you have suffered.
      You must make your complaint through the County Court for a rapid and effective remedy.

      Do you have a mortage arears claim to make? Then post your story on the forum here
        • Like
      • 0 replies
    • 30 Day Right To Reject - Vehicle Casualty Report. Read more at https://www.consumeractiongroup.co.uk/topic/415585-30-day-right-to-reject-vehicle-casualty-report/
      • 57 replies
  • Create New...