Unfair Terms - Removing from contract

[thecornflake]

Reading through some notes I made a while ago I came across the following in the Unfair Terms Legislation -

 

Effect of unfair term

 

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

 

Now obviously this won't matter too much if they close the account anyway, but it could be a way to try and force them into court, as just a full settlement wouldn't be enough if you were aiming to have the terms (i.e. penalty charges) removed from the contract.

 

I believe this may be the same lines as Stephen Hone's attempts at obtaining an injunction?

 

Has anyone else tried this?

[Spiceskull]

Hmmm...I am currently in the middle of having unfair contract terms amended, or at least that is what I am trying to achieve.

 

I don't really want to give anything away at this stage, but as court action (on the terms themselves) is pending there could be news and developments in the not too distant future...but if you want the gist of it you can check the history of my claims as both Phoenix and Spicey...

[thecornflake]

Hmmm...I am currently in the middle of having unfair contract terms amended, or at least that is what I am trying to achieve.

 

I don't really want to give anything away at this stage, but as court action (on the terms themselves) is pending there could be news and developments in the not too distant future...but if you want the gist of it you can check the history of my claims as both Phoenix and Spicey...

 

Would this be a separate court action following on from an initial court case? I'll check out your threads when I get a moment. They sound very interesting.

[Spiceskull]

Yes and no. I had a large claim for charges last April, and all was settled. The bank kept applying penalties with irritating and alarming regularity (clearly a large dose of Spice was not punishment enough) so I upped the ante: amended contract terms, with 28 days notice, and then the invoices would start arriving for my time.

 

The main thrust of the claim, or rather the defence, is that I have no right to unilaterally amend terms, and therefore my claim is unreasonable. I have already got the bank to concede that acceptance (of amended terms) by conduct is real, and that clearly the banks rely on this principle whenever they notify customers of changes to the contract, for example an increase in the interest rate...

 

HSBCs barrister says I will lose (in as many words) but I am determined to wipe the smug grin off his face. I sent the solicitors a letter yesterday, effectively letting them know that their defence is misguided because they seem to think that I am reclaiming penalty charges: I am not, I am attempting to enforce the payment of invoices...

 

Let's see what happens next...

[Spiceskull]

Okay - if you look here you will see that I was successful in the claim regarding amended contract terms.

 

I want to stress that this is not an open door for everyone to jump in and follow - this was a protracted claim, and there were instances when I seriously doubted whether or not I would be successful. I was fully confident of my position, and the principles I was relying on, but this was unproven territory, and HSBCs barrister said as much at the preliminary hearing.

 

However, I will detail this more shortly, and if there is a logical path that people can follow then I will let you know...