Claiming old charges with contractual interest

[AndyOrch]

[tnook]

Sorry I have almost finished my response. I need a little help with two points:

 

1. They are asserting the OFT v Abbey National [2009] UKSC case is relevant. I am trying to find the difference in the regulations between that case and credit cards. Can some one help?

 

2. Last point is they are pushing back on Kleinworth Benson and the limitations act saying there is has been no mistake in the law so it can't be applied to this claim and the old charges should be time barred. I'm reading the KB case now. Do I just reassert that they have breeched the Consumer Credit Act, or do I need something more specific to counter this? 

 

Thanks for your help.

 

 

 

Edited February 23, 2021 by tnook
typo

[AndyOrch]

4.The OFT is not proposing that credit card default charges should be equivalent to the threshold, and a court will certainly not consider that such a charge is fair just because it is below the threshold. Where there are exceptional business factors, so that the presumption that a credit card default charge over £12 is unfair is not applicable, this does not necessarily mean that the current level of the charge is consistent with the OFT's interpretation of the requirements of unfair contract terms legislation.

 

But for example, where a card issuer has a policy of requiring customers to pay minimum monthly repayments by direct debits, such as that operated by Egg, and offers credit cards only to customers that satisfy a relatively high scoring requirement it may be able to set a fair default charge at a level above the threshold.

 

5. Whilst the principles applicable to credit card default charges are applicable to bank account default charges, the threshold figure of £12 is not. The OFT will not consider whether a further detailed investigation of the fairness or level of individual bank default charges is needed, or what solution might be required, until the end of this fact finding exercise.

 

Re Kleinwort Benson

 

Quote

The Supreme Court has, by a majority of 4 to 3, upheld the principle first established in Kleinwort Benson that the Limitation Act applies to claims for restitution of monies paid under a mistake of law. The majority decision of the Court has held that the six year period allowed under s.32(1)(c) of the Limitation Act applicable to claims for relief from the consequences of a mistake, and which does not start to run until the claimant has discovered the mistake (or could have reasonably discovered it) does apply to claims based on a mistake of law: Test Claimants in the Franked Investment Income Group Litigation v HMRC [2020] UKSC 47 (the FII GLO case).

 

https://www.simmons-simmons.com/en/publications/ckia6ln7c0zch093391ajnd2y/supreme-court-restricts-limitation-period-for-mistake-of-law-claims

[tnook]

Thanks Andy!

 

Where was the first part, regarding the threshold, taken from?

[AndyOrch]

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284445/oft842.pdf

[AndyOrch]

SN03941.pdf

[tnook]

Thanks Andy, I've uploaded their N244 application to strike out and my draft response. Any comments and feedback are greatly welcomed.

 

Thanks for your help.

 

response.pdf redacted n244 strike out.pdf

[AndyOrch]

Your statement ends at 14 ?  No conclusion or what you request/expect the court to order ? No statement of truth date or signed.

 

Example response to application for strike out/summary judgment.

 

Witness statement Pattens.pdf

 

I cant download the N244 for some reason ...stops half way.

[tnook]

Hi, thanks for replying was going to add the statement of truth afterwards and request the application to strike out is rejected and the claim proceed to a hearing. Should I ask for summary judgement or it it premature at this application hearing?

 

I've re-scanned the N244 witness statement from Barclays and attached it.

 

Thanks for your help.

BC-N244.PDF

[AndyOrch]

You cant request summary judgment within a statement without making an application n244 with fee...you simply request that their application is dismissed for the aforesaid reasons....plus there is no need if you defeat their application the claim proceeds to trial anyway where hopefully you may get judgment anyway.

 

Look at the example I have provided and start and finish your statement in that style ..points 1 and 11 and dont forget to add the updated statement of truth...

 

“I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

[tnook]

Thanks for the help. I've updated my witness statement and attached it. 

witness statement.pdf

[AndyOrch]

Better...just one tweak I would advise...

 

I, XXXX of XXXXX, being the Claimant, will state as follows; I make this Witness Statement to oppose the Defendant’s application dated 28th September 2020 to Strike Out/Summarily Dismiss pursuant to CPR 24.2 the claim and award the Defence costs.

 

Conclusion

 

15. In view of the information set out above I respectfully submit to the court that the Defendant’s application be dismissed. That the claim proceeds to trial as the defendants application is not based on a point of law or provides any evidence which should be reasonably expected to be available at trial. 

[tnook]

Thanks Andy! I'll submit it today. 

[tnook]

Barclays solicitors just submitted their bundle. All 76 pages of it. Just reading it now.

[tnook]

Actually it was 145 pages but I removed the ones where it was just copies of all the old correspondence and my statements.

 

They are going in heavy on not being relevant for restitution and being time barred.

Hearing bundle.pdf

[tnook]

I realise it will of course depend on the judge, but how likely do you think the claim will be struck out? 

[AndyOrch]

That would depend on how good your arguments in your statement in objection are received...if a judge decides you have valid points and that the defendants application has no merit...then it should be dismissed and proceed to allocation /hearing.

[tnook]

Just reviewing their arguments. They seem to have moved on to another Supreme Court hearing which they claim overrules the Sempra Metals case for restitution. I think they are trying to say that I they could not gave enriched themselves from me because I didn't endure a loss? Makes no sense. I did endure a loss, I lost the funds/fees and they benefitted from them. The Prudential case seems to be about a clerical mistake, however my case is about unlawful charges over a period of time. So they should not be related.

 

Could you please check I am not going mad? This was their wording"

 

Quote

The significant majority of C’s claim (£8,245.76) relates to a restitutionary claim for compound

interest on the £570 default charges. C relies on Sempra Metals to justify such an entitlement. However, the relevant parts of Sempra Metals on which C relies were overturned in the recent Supreme Court decision of Prudential Assurance Co Ltd v HMRC [2018] UKSC 39, as explained below:

 

“In Sempra Metals (formerly Metallgesellschaft Ltd) Ltd v IRC the House of Lords held that a taxpayer which had paid tax earlier than it was legally required to do could establish that the Revenue had been unjustly enriched, with the enrichment consisting of the Revenue’s opportunity to use the money until the tax was properly due (so-called “use” or “opportunity” value of money). This enrichment was valued with reference to compound interest which the defendant would have had to pay to borrow an equivalent amount of money to that which had been received from the taxpayer and which, for the Revenue, was a rate which was lower than the commercial rate. Such a claim for the use value of money, which was subsequently considered to involve a freestanding cause of action distinct from a claim to recover the value of money received, would be available in respect of any unjust enrichment claim where money had been paid which was not due to the defendant. 

 

This aspect of the decision in Sempra Metals was, however, overruled by the Supreme Court in Prudential Assurance Co Ltd v HMRC on the ground that a claim for the use value of money was inconsistent with the analysis on unjust enrichment claims adopted by the Supreme Court in Investment Trust Companies v Revenue and Customers Commissioners, namely that the defendant’s enrichment involves a transfer of value which must be directly obtained at the expense of the claimant, who must have incurred a loss as a result of providing the benefit. As the Supreme Court recognised in Prudential Assurance, where the claimant mistakenly pays £1,000 to the defendant which is repaid by the defendant a month later, the fact that the defendant has had an opportunity to use that money for a month has not involved an additional and distinct transfer of value from the claimant to the defendant. It follows that a distinct claim for the use value of money is no longer available. The Supreme Court in Prudential Assurance also clarified the nature of the award of interest for a claim in unjust enrichment. InSempra Metals the House of Lords has held, in obiter dicta, that compound interest should be generally available as of right for unjust enrichment claims at common law, which was inconsistent with the earlier decision of the House of Lords in Westdeutsche Landesbank Girozentrale v Islington LBC that compound interest could only be awarded in respect of equitable claims. In Prudential Assurance the Supreme Court held that, where the defendant is liable to make restitution to the claimant, the award of interest is intended to compensate the claimant for the loss of the use of money and does not involve the reversal of the defendant’s unjust enrichment, because any benefit obtained from the defendant’s use of the money has not been obtained at the expense of the claimant since there will have been no transfer of the value of that benefit from the claimant to the defendant. Further, where the defendant is liable to make restitution to the claimant, a debt arises and it is the failure to discharge that debt immediately which justifies the award of interest under s.35A of the Senior Courts Act 181, which is consequently simple rather than compound interest”1

 

Edited March 1, 2021 by tnook

[AndyOrch]

I would rather not get into the restitutionary claim for compound interest argument tnook far too convoluted...if your claim has no merit on the basis at simple interest award IE section 69 8%...then Im not sure why they are refuting your compound interest claim....unless they are unsure what a court may award.?

[tnook]

I think they are trying to persuade the judge there have been a number of supreme court decisions which override a lot of the regulations we rely on here, they even say I rely on "out-dated legislation".

 

Their next main approach is to say the claim is statute barred and that I need to prove that I didn't know about this 6 years ago. My argument is that I couldn't have known since they concealed the statements from me until November 2020. After a GDPR request in 2018 they claimed for 2 years that they didn't have the statements over and over again. They finally produced them when I went to the courts. It was only at this stage that I saw I had the charges on the accounts. Since they repeatedly didn't give me the statements I would propose Kleinworth Benson is reinforced, as they may have tried to conceal the charges.

Edited March 1, 2021 by tnook

[tnook]

BC solicitors just sent the courts and myself a statement of their costs that they are claiming, £2430...

 

Hearing is tomorrow. 

 

 

[AndyOrch]

Have you sent them yours ?

[tnook]

No, wasn't aware I could claim charges for their application hearing?

[tnook]

Oops sorry, their fees are £6,654.79 for the application hearing. They used a form N260, this wasn't something I knew I should fill in as I thought costs would come at the main hearing for my side. Should I present my costs for tomorrow's hearing?

Edited March 2, 2021 by tnook

[tnook]

Hmmm. Why would a company that is so, so confident this case should be so easily dismissed throwing 4 solicitors and two counsel at a cost of £6600 at a claim worth £8500? I am suddenly grateful for their huge legal costs statement and will ask during the hearing. They are not confident. 

Edited March 2, 2021 by tnook