Claiming old charges with contractual interest

[AndyOrch]

 

 

PD 44

Timing of summary assessment

 

9.2

The general rule is that the court should make a summary assessment of the costs –

(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and

(b) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim,

unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs/part-44-general-rules-about-costs2#para9.5

 

 

[tnook]

Two hours to go (11am hearing) going to wear a hole in the carpet so nervous.

[honeybee13]

You can only do your best, tnook. We'll support you no matter what.

 

The people on the other end of the line are only human beings and you're worth as much as they are. Just go through your arguments and don't be intimidated.

 

 

HB

[tnook]

53 minutes ago, honeybee13 said:

You can only do your best, tnook. We'll support you no matter what.

 

The people on the other end of the line are only human beings and you're worth as much as they are. Just go through your arguments and don't be intimidated.

 

 

HB

 

Thank you @honeybee13for the moral support  and thank-you @Andyorch for your help. I'll report back once its behind me.

[honeybee13]

Yes, please let us know either way, we'll be thinking of you.

 

HB

[AndyOrch]

Best of luck.....don't be intimidated.

[tnook]

They are making a big deal of the supreme court case Prudential, that compounded interest is not applicable.

 

A mistaken payment is not a transfer of value and such only simple interest applies 

 

Judge thinking of striking out compound interest

Edited March 3, 2021 by tnook

[tnook]

Now they say the default charges are not enforceable. Ugh the judge is lapping this up.

Edited March 3, 2021 by tnook

[AndyOrch]

I thought the Supreme court case with Prudential was with regard's to overpaid VAT or Corporation Tax and compound interest ?

 

Quote

On 25 July, the Supreme Court handed down its judgment in Prudential Assurance Company Ltd v HMRC. This was a test case in the controlled foreign company (CFC) and dividend group litigation order (GLO). HMRC had appealed against the High Court and Court of Appeal’s findings that taxpayers had a right to the restitution of compound interest in respect of corporation tax which had been levied in breach of EU law. The court held that there was no such right. In doing so, it took the highly unusual step of overturning the 2007 decision of the House of Lords in Sempra Metals Ltd v IRC.

 

https://www.taxjournal.com/articles/prudential-end-road-compound-interest-30082018

[tnook]

They claim it about the transfer of value 

 

Feel the judge is very on their side

[tnook]

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

  

Page 4

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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. In Sempra 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 [emphasis added].

[tnook]

Oh and the judge is very familiar with the Parking Eye supreme court case.

 

It will be my turn soon, not feeling good. 

[AndyOrch]

I wouldn't get bogged down with this point...steer your arguments back to the defendants behaviour during the claim process...submitting a late defence...none compliance etc....it may (should) have an adverse effect on their costs should they succeed in the application. 

 

 

.

[tnook]

Judge ripped me to shreds

[tnook]

Judge says it is statute barred and has struck it out.

[AndyOrch]

Oh dear...not what you expected...and costs ?

[tnook]

He is still summing up, hasn't got to costs. Rejected all my points and agreed with al their points.

[tnook]

Ugh costs

[tnook]

Well that was an awful experience.

 

The judge from the outset was clearly swayed by their arguments and agreed with all their points. As he was listening to their arguments he was becoming critical of my credit behaviour before I had a chance to speak.

 

When I did speak I found he was immediately drawn to challenge and disagree with all the points. He found it odd that I didn't have my statements from 20 years ago and didn't remember all the charges. It felt very biased, he was even critical for taking up the courts time on this during the pandemic..

 

Since BC applied for a strike-out hearing the claim had not yet been allocated to any court track, so the small claims court costs limitations did not apply and they were entitled to their costs.

[AndyOrch]

I wonder if he has all his financial statements from 20 years ago...... that's the risk with SJ/SO application pre allocation...you are exposed to costs as if in the Fast Track.

 

Re my post #101

 

Quote

unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.

 

[tnook]

Is it possible to appeal? Or best just to let it be? Still in shock at how one sided and biased the judge was. 

[AndyOrch]

Anything is possible...whether successful is another matter and how much more money you wish to risk on this.

 

DId they get their full £6,654.79 + £2430...?

[tnook]

They got most of it. Still feel winded by the absolute one sided nature of the judge. He was very derogatory yet chummy with the counsel. Focussed mainly on my bad management of my credit cards and that BC were the aggrieved party because I still had a balance on one of the cards. I'm going to drop it, but I am going to raise a complaint about the judge. BC were allowed to skip filing a defence. the courts hadn't sanctioned their extensions, if it had been allocated to the small claims track the I'd be in a better position. He didn't care about any of that and brushed it to one side. 

[AndyOrch]

Application for strike out/SJ must be made before allocation ...A claimant cannot make application until a defendant has AOS and submitted a defence....a Defendant can make application before submitting a defence providing its made with in the time scale to submit a defence (33 days from date of issue) ...hence their application to extend the deadline.

 

Wait until you get your General Order through lets have a look at the wording......

 

9.3  Attention is also drawn to rule 44.10(1) which provides that if an order does not mention costs, no party is entitled to costs relating to that order.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24/pd_part24

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/pd_part03a

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

[tnook]

Thanks Andy. The judge made a big deal about the costs and spend a good 15-20 minutes making sure they had covered everything.