Rougesept v Capital One

[rougesept]

Thanks Bill, do you know if there is a thread anywhere with a good example of the procedure - i.e. where to hand in, what to hand in, to whom?

 

Cheers

 

Rouge

[bill-k]

Thanks Bill, do you know if there is a thread anywhere with a good example of the procedure - i.e. where to hand in, what to hand in, to whom?

 

Cheers

 

Rouge

 

There are quite comprehensive help pages on the HMCS website, and you can download a .pdf N1 form, and a N1A instructions form. There are various templates & forms in the templates library here, too.

 

Bong's thread here is assembling some newer templates:

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/49074-can-we-have-new.html

[rougesept]

My initial thought was that people were going for N1 because they had a default to take off and MCOL is 'money-only'. I'm sure I've seen some who have claimed contractual using MCOL? The POC did fit in ok. Can anyone help here?

 

Rouge

[bill-k]

I don't think you can fit a complete enough POC on a MCOL claim, so it may be unsafe to do so. I believe you can send detailed POC by post to MCOL, but in that case you may as well file an N1, IMHO.

[rougesept]

Hi Bill, do you know where I can find a really good, 'gold standard' POC to complete my N1? The only one in templates is MCOL?

 

Cheers

 

Rouge

[bill-k]

Bong's thread here is assembling some newer templates:

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/49074-can-we-have-new.html

They are developing some here, I'm sure.

[rougesept]

Thanks Bill, I don't think anything in there is ready for today / tomorrow though. Bong has got some great drafts in the pipeline but I can't see that thread being ready for a while. What have others (CCI) done with their POCs to date? I can't see any that have posted them to view?

 

Sorry to pester you, you've helped me a lot and I see you as my CAG mentor now!

 

Rouge

[redsonja]

Hi Rouge,

Someone asked me the same question on my Cap 1 thread but I have had to send a revised LBA so not done it yet but he said he found the details on this thread.

 

http://www.consumeractiongroup.co.uk/forum/capital-one/35856-sarahpp-capital-one-2.html

 

I havent read it yet but sounds like you may get it off here.

Good luck

[bill-k]

This is the one I have used, copied from Mindzai last year:

 

XXXX COUNTY COURT

BETWEEN

MINDZAI AND LUCID CLAIMANTS

And

LLOYDS TSB PLC DEFENDANT

 

PARTICULARS OF CLAIM

1. The Claimants have a joint account XXXXXXXX ("the Account") with the Defendant which was opened on or around XXth XXXXXXX 2002.

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimants and also charged interest on the charges once applied. The Claimants understand that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimants.

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimants contend that:

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimants; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15. The Defendant has declined to justify the charges.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), The Unfair Contracts Terms Act 1977 section 4 and the common law.

5. Accordingly the Claimants claim:

a) the return of the amounts debited in respect of charges in the sum of £XXXX and interest charged thereon in the sum of £XXX.XX;

b) Court costs;

c) the additional costs incurred by the Claimants in the writing and sending of letters to the Defendant pursuant to this claim in the sum of £XX, as set out in the attached list of costs.

d) the Claimants claim contractual interest at a rate of 29.85%, from the date of each transaction to 7th September 2006 of £XXX, as set out in the attached list of charges. The claimant further claims interest at the same rate up to the date of judgment or earlier payment, at a daily rate of £X.XX per day.

The account’s Terms and Conditions specify the interest payable on unauthorised drawings from the account. We hold that this applies to unauthorised drawings by the Defendant as well as to unauthorised drawings by the Claimant. Should the court deem this incorrect, the Claimants claim the rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendant’s unauthorised overdraft interest rate that would be applied under the terms of the above mentioned account.

Should the court find that this interest rate is not applicable, then in the alternative the Claimants claim contractual interest at a rate of 18.2%, from the date of each transaction to 7th September 2006 of £XXX.XX, as set out in the attached list of charges. The claimants further claims interest at the same rate up to the date of judgment or earlier payment, at a daily rate of £X.XX per day.

The account’s Terms and Conditions specify the interest payable on authorised drawings from the account. We hold that this applies to authorised drawings by the Defendant as well as to unauthorised drawings by the Claimant. Should the court deem this incorrect, the Claimants claim the rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendant’s authorised overdraft interest rate that would be applied under the terms of the above mentioned account.

Should the court find that this interest rate is not applicable, then in the alternative the Claimants claim interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum calculated from 3rd November 2003 to 7th September 2006, which is £XX.XX and continuing until payment or the date of judgement at a daily rate of £X.XX.

 

I believe that the contents of these particulars of claim are true.

 

Signed:

 

Date:

[rougesept]

Thanks guys, that's great. I really appreciate this.

 

Rouge

[rougesept]

Ok here's my POC I'm thinking of submitting tomorrow. It incorporates some of the new points raised by bong and others in the creation of a new POC template for contractual interest. I'd love some comments from people:

 

 

1. The Claimant has a Visa Credit Card Account xxxx xxxx xxxx xxxx ("the Account") with the Defendant which was opened on or around xx/xx/xx/.

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

3. A schedule of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

d) The Claimant deems the Defendant’s principal indebtedness to the Claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial date, the Claimant deems the Defendant’s charges to the Claimant’s account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges and interest thereon to the Claimant’s account, or to profit in an unlawful manner from the Claimant’s account breaches.

5. Accordingly the Claimant claims:

a) The return of the amounts debited in respect of penalty charges in the sum of £xxxx.xx;

b) Court costs;

c) Contractual interest at a rate of xx.xx% per annum, compounded daily from the date of each transaction to xx/xx/xx of £xxxx.xx, as set out in the attached schedule of charges.

The terms and conditions of the Account specify the interest currently payable on drawings from the Account. The Claimant holds that this applies to drawings by the Defendant as well as the Claimant. Should the court deem this incorrect, the Claimant claims the rate to be justified on the basis of consumer contract legislation which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”). Regulation 5 (1) of the UTCCR states as follows:

 

5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.

In the alternative, should the court find that this interest rate is not applicable, then the Claimant claims interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to xx/xx/xx.

 

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

Full name: x

Signed:

Dated: x

[rougesept]

Don't know why some appears to be in italics? Formatting I guess. See above POC - Submitting tomorrow, would like some feedback!

 

Rouge

[Guest bong]

hi rouge

 

I've looked through the POC and have made a few suggestions although I won't feel at all offended if you decide not to use them. This is based on the template that I had prepared for people claiming at the authorised rate and statutory in the alternative.

 

The only other thing I'd say is that you omitted the paragraph about unjust enrichment (although fair enough if that's what you decided, just want to make sure you hadn't overlooked it) and you haven't claimed a daily rate for the CI. If the case drags on for 5 months like mine did, it could make quite a difference, at the contractual rate.

 

my changes in pink - but as I say, ignore them if you preferred it the way it was.

 

 

1. The Claimant has a Visa Credit Card Account xxxx xxxx xxxx xxxx ("the Account") with the Defendant which was opened on or around xx/xx/xx/.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A schedule of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

 

c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss.In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

5. Interest claimed

 

a) The Claimant claims compound interest on the charges to the Account at the annual rate of x%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

 

5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

 

b) In the alternative to 5 a) , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

6. Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of penalty charges in the sum of £xxxx.xx;

 

b) Court costs;

 

c) Contractual interest at a rate of xx.xx% per annum, compounded daily from the date of each transaction to xx/xx/xx of £xxxx.xx, as set out in the attached schedule of charges.

 

d) In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to xx/xx/xx of £xxx.xx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of x.

 

 

signed & dated etc..

[rougesept]

Thanks bong, that's great. I've gone with your changes but I've left off daily interest and unduly enriched paragraph. Cap One don't seem to be delaying by too long so shouldn't be a big problem.

 

Rouge

[rougesept]

Right then Capital One, claim issued today at County Court. Nearly tried MCOL but went for N1 with this one as I'm claiming contractual and wanted to fit in bong's excellent new POC template.

 

Wish me luck!

 

Rouge

[Guest bong]

good luck!!!

[doo]

Good luck, am following your thread with much interest, am only one week into prelim but am also claiming CCI. Keeping fingers crossed for you.

[rougesept]

Cheers guys!

 

Rouge

[TANZARELLI]

You don't even need to wrtie the POC on the N1 form, it can be typed up and attached as long as you have the signed statement of truth bit at the bottom of it as well as the date. This is what I have done on most of the ones I have filed with the N1 at my local court and its ben accepted fine.

 

HTH

 

Tanz

[rougesept]

My POC turned out to be two sides of A4 so mine was attached. Just wrote 'please see attached in the box'.

 

Rouge

[rougesept]

Just to update - received my 'sorry, full and final offer' letter today. Now I'm going through court, do I need to repeat my acceptance in part letter or just leave it?

 

Rouge

[Guest bong]

I think it depends on the wording of their letter. If it says something like if we don't hear from you we will assume you accept the offer then you need to reply to put on record that you don't accept and have now started court proceedings. I think I'd reply anyway just so they aren't in any doubt that you have followed through.

[TANZARELLI]

I think it depends on the wording of their letter. If it says something like if we don't hear from you we will assume you accept the offer then you need to reply to put on record that you don't accept and have now started court proceedings. I think I'd reply anyway just so they aren't in any doubt that you have followed through.

 

I agree, there was a case where the bank was claiming a case had been settled because they had not recieved any letter saying otherwise, i think it was LTSB but not 100%, I would send the refusal of settlement letter just to be safe and then carry on to your own timeframe.

 

Tanz

[rougesept]

Thanks Bong & Tanz (wasn't that an album by Kraftwerk?), you're right - I decided to send one this morning anyway just to be safe.

 

The wording of the letter was no different to the first offer apart from 'full and final'. Mr Udy did add 'let's not waste court time' at the end! Ok then Cap One, let's not!

 

Rouge

[TANZARELLI]

Thanks Bong & Tanz (wasn't that an album by Kraftwerk?), you're right - I decided to send one this morning anyway just to be safe.

 

The wording of the letter was no different to the first offer apart from 'full and final'. Mr Udy did add 'let's not waste court time' at the end! Ok then Cap One, let's not!

 

Rouge

 

Pay up then you TW@T. lol