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Clydesdale Bank Summary Cause Summons

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Hi,

 

I attended my Summary Cause Summons initial hearing today against CB (claim = £1,967). As per your original posts, their defence arguement lies with thier T&C's. They are basically saying that I have broken the agreed contract laid out in their T&C's.

 

The Sheriff postponed the full hearing until the 2nd of Feb and has asked for me to state my exact legal arguement for raising this action against CB.

 

I am hoping that CB contact me in advance to settle out of court, but we will wait and see. I will gather as much legal jargon as poss from this forum. Can anyone help??

 

I recently successfully recovered £1,256 from the Nationwide via Summary Cause and they settled before the full hearing in full.

 

Cheers

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Kaiser,

 

I am in a similar position to you, but I reckon you are slightly ahead of me as my return date is 29/01 and calling date is 05/02.

 

After reading around the forums, I expected that CB would send some one along to my calling date and then ask for more time. Almost exactly as you have described! I too have been looking around for info for my case, but as yet have not come up with anything good enough. When I find some thing I will let you know.

 

In the mean time, what was the your first appearance like - how long did it last, did the judge give you a hard time? Which area of the country are you in?

 

If you could keep this forum updated with your progress it woud be much appreciated,

 

cheers

 

Paul

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Hi Paul,

 

I live in Crieff and have raised my claim at Perth Sheriff Court.

 

To be honest I havent pulled anything together yet as I am confident that the Clydesdale will come back with an offer in a few weeks time. Although I will not settle for any less than full settlement.

 

Standing up in court isnt actually as bad as you may think. The system is set up to protect those raising actions who have little or no legal knowledge. The judge (both times) was ok, and I got the distinct inpression from his rye smiles that he know exactly where I was coming from but could not express his personal opinion.

 

Remember and have your legal standing prepared though as this is what has caught me out this time. I wasnt asked during my Nationwide claim, but was this time and was gutted that I had forgetton the exact common/statue law to quote.

 

Give me a shout before your hearing mate if you need any help.

 

Good luck!!

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I had exactly the same thing, I attended a preliminary hearing for a summary cause action. Their argument was the same that I had not complied with their terms and conditions. I stated that my legal position was that I accepted that a charge was applicable but disagreed with the level of the charge. A date was set for a second hearing. In the meantime I had a letter from Clydesdale offering me the full value of my charges (exl interest) which I have accepted. Dont panic, they will contact you but will state that they are settling purely because it is uneconomical to defend. My claim was for £1209 plus interest, was a total of about £1700.

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Kasier,

 

thanks for the info. Let me know how you get on and I'll keep you updated on my progress too!

 

Daz,

 

thanks for your info too. I am intending to use soething along thoe lines myself. I just need to find the time to get it typed up. Can you confirm if your offer from the CB after your initial court date included or excluded interest? i.e. Did you get your interest in their settlement?

 

cheers

 

Paul

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Their offer didnt include interest, but it was given in plenty of time before the second hearing to enable a refusal and then a subsequent offer. But I was happy with the level of the offer without interest, so its up to you.

 

My view is if a fee is applicaple (which it is, its only the level that is in disagreement) that value is about £5 if worked back against the interest. If you catch my drift.

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Daz,

 

yep, I'm with you!

 

cheers

 

Paul

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Hi,

 

I will sit tight just now then and await their offer. I will let you guys know as and when.

 

Cheers

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I went to court in December in Edinburgh. The lawyer for Clydesdale asked for 14 days to prepare a supplementary defence. Foolishly, I didn't object, as I now realise I should have, since they have already had months to prepare. So it was granted. They have now sent me details of the defence, which states that "the charges before 24th October 2001 are time barred". We are due back in court next Tuesday, 16 January. The lawyer asked for a "proof to be assigned" (Does anyone know what this is?), but Sheriff said he wanted to see the further defence before he would allow that because it would be the first time this had happened. The sheriff did not ask me to state my exact case but I expect I will be required to on Tuesday.

 

harry

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Harry,

 

I'm playing devils advocate here i know, but under what grounds could you have objected to extra time for their supplemantary defence? I guess they had about 6 -8 weeks from serivice of the 1b form to court date, is this a reasonable amount of time in the eyes of the court? (Iwould think so) Also, are we allowed to state that this is not the first time the CB have been to court on this EXACT subject, therefore they should know what they are doing!

 

any ideas?

 

Paul

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Paul

I had been pursuing them for almost 6 months before we got to court. Do you have anything prepared yet for the next court appearance?

 

Harry

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Harry,

 

not yet, but I am looking around. I found an intersting point on here the other day, regarding the sale of goods act (i think) but I cant remember which thread it was under. I intend to have alook throught he OFT's website and use some of their points. Also, I intend to look up

 

"The contractual provision that permits the Defendant to levy such charges are unenforceable by virtue of the Unfair Contracts Terms In Consumer Contracts Regulations (1999) and The Unfair Contracts Terms Act (1977) and at common Law."

If you have anything other than this can you let me know?

cheers

Paul

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I was back in court on Tuesday for my second preliminary hearing. The Sheriff could not relate the items in their defence to the paragraphs of my claim and gave them a week to number the paragraphs in the claim to accord with the paragraphs in the defence. A third hearing was set for 30th January. Yesterday, I received a letter from Clydesdale saying "Prescription in Scotland is five years, and you are therefore only entitled to raise an action seeking 5 years bank charges". I am seeking 6 years charges, which I still believe is correct. The letter then went on to offer "in an attempt to resolve this matter" and "in full and final settlement", a sum about a third of what I am claiming. So, I won't be accepting this offer. I will tell them I still expect the full amount.

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Harry,

 

I dont know much about the 5 year limit for reclaiming, as none of mine go back that far however, I know there has ben a lot of discussion about it on CAG. Try this thread for starters -

 

http://www.consumeractiongroup.co.uk/forum/scotland/41999-20-year-claim-limit.html?highlight=scotland

 

it may be of some help,

 

cheers

 

Paul

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Kaiser,

 

any news from the CB yet? Are you still due for your second appearance on Friday?

 

My return date was 29/01 and when I checked with the sheriffs clerk she said that the CB would be defending.

 

So I am off to court on Monday 5th of Feb.

 

drop us a line to see how you are getting on

 

Paul

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Hi Paul,

 

Yeah off to court tomorrow morning. No offer has been received in advance.

 

I phoned Clydesdales legal team to ask in advance if they wished to settle, but I was told that they did not have anything to advise me at this stage.

 

Off to court I go!!

 

I was asked by the judge to prepare my exact legal standing for tomorrow hearing, so I plan to present them with the 'Unfair Terms in Consumer Contracts Regulations 1999 act.

 

I will let you know whats discussed tomorrow!

 

Cheers

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Waiting on the edge of our seats ,

 

Good luck , hope all goes well for you

 

Jules

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Hi chaps,

 

I attended my 2nd hearing at Perth Sheriff Court on Friday.

 

The judge who was meant to be in session called in sick so we had a stand in sheriff instead....low and behold it was a judge whom used to practice in my home town as a solicitor and I he had acted on my behalf for a speeding offence back in 1999! Really nice man!

 

My case was called and the judge was updated by the Clydesdales representative. Basically all that I needed to present the court with was my precise legal stand-point so that the court could assess my case. (I thought I had highlighted my exact legal arguement on my summons paperwork, but I did not clarify my position enough for the court).

 

I printed off 'The Unfair Terms in Consumer Contracts Regulations 1999' as well as the official statement made by John Fingleton, OFT Chief Executive on the 5th April 2006.

 

The judge accepted my legal arguement and gave the Clydesdale 14 days to come back to me with either their response or settlement. If I do not hear from the CB then the judge said that there would be a 3rd hearing on the 2nd March (4 weeks), when he would make his ruling.

 

I fully expect a letter from the bank within the next few weeks, as I am sure they do not want to risk the judge ruling in my favour.

 

I handed the banks rep. an updated breakdown for my charges, interest and expenses. As per my recent successful claim against the Nationwide, I not only included my court fees...but I also included the expense of the fuel to get from my home to the court house (charged @ 9p/mile). Also I added 2 x half days of my salary for the time i took off from work. My total claim is for £2,200.17.

 

I will update you guys as and when I hear from the bank.

 

Remember and bill them for your time if you got to take time off to go to court!!

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Kaiser,

 

I was at court this morning for my 1st summary cause action. Much the same as your second, the CB asked for 2 weeks to prepare a detailed defence and the next court date is on 1st May.

 

Let me know what you here from the CB and I'll do the same!

 

cheers

 

Paul

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for whatever use may be made of it.

 

i am looking for direction here also from someone with scotish knowledge

 

 

IN xxxxxx SHERIFF COURT

IN THE CASE BETWEEN:

xxxxxx

PURSUER

and

xxxxx

DEFENDER

 

________________________

Particulars of Claim

________________________

 

PART I - INTRODUCTION AND GENERAL DETAILS AND BASIS OF CLAIM

Jurisdiction

  1. This section is pled without prejudice to all matters not related to jurisdiction in this court.
  2. The Pursuer is a customer (xxxxxx) of the Defender (xxxxx). The Defender’s standard terms and conditions for personal customers (hereinafter referred to as the “Terms & Conditions”) prorogate jurisdiction of disputes in these circumstances, where the Pursuer’s address isn’t in Scotland, to the courts of England.
  3. Separtim: the Defender:

    1. is a company; which
    2. was incorporated or formed under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom;
    3. has its central management and control exercised in the United Kingdom;
    4. has a place of business located within at Sauchiehall Street, Glasgow, a place within Scotland; and
    5. accordingly the Defender is domiciled within Scotland as defined by the terms of s42 Civil jurisdiction and Judgments Act 1982 (as amended) (hereinafter referred to as the “CJJA”). As such this court has jurisdiction by virtue of Rule 1 of Schedule 4 to the CJJA,
    6. [*]Separtim: it is unclear whether or not a contract ever existed between the parties hereto relating to the subject matter of this action, without prejudice to this fact, the Pursuer contends that if one did exist it was a consumer contract, within the meaning of Rule 7 of Schedule 4 of the CJJA. Accordingly, this court has jurisdiction by virtue of Rule 8(l) of Schedule 4 of the CJJA.

      [*]Accordingly, this court has jurisdiction by virtue of Rule 1 and Rule 8(1) both of Schedule 4 to CJJA and also by the Terms & Conditions. Thus, this is a competent action which should be allowed to proceed on the basis of it having a jurisdiction and there being no reason for the court not to exercise its jurisdiction.

      Factual Background

      1. The Defender is a well known commercial bank with branches in most moderately-sized settlements throughout Scotland and most major towns and cities in the United Kingdom. The Defender also has branches and places of business throughout the world.
      2. The Pursuer has an account (hereinafter referred to as ‘the Account”) with the Defender which was opened during or around August 1967.
      3. During the period between 17 January 2002 and 15 July 2002, or thereabouts, the Defender debited numerous charges to the Account, in respect of “excess o/d charge”, “interest”, “charges”, and “retd d/d charge”. The Defender has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto).
      4. The Pursuer views the Charges as being unlawfully applied. The Pursuer understands that the Defender contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Pursuer. A copy of the Terms & Conditions is attached hereto.
      5. The Pursuer was only able to obtain complete details of the Charges by virtue of a Subject Access Request, served upon the Defender, pursuant to s7 Data Protection Act 1998. The cost for said request was £5.00 and the date whereof was 16 June 2006.
      6. At various points in time (since 1995), during the period in which the Defender levied the Charges to the Account, the Pursuer contacted the Defender — pleading to have the charges refunded, explained, or even just reduced as they were consuming a significant portion of his income.
      7. On or about 16 June 2006 the Pursuer sent a letter to the Defender asking for a complete list of charges and fees made to the account over the last six years. The Pursuer subsequently received a letter from the Defender, dated 26th September 2006. Therein the Defender informed the Pursuer that ‘… we incur extra costs regardless of the shortfall involved’. Further, the Defender averred that they ‘clearly outline their charging policy in the terms and conditions that apply to your account’. Unfortunately, the Defender was unable to provide any legal and/or factual basis for its assertions.
      8. A letter before action was posted, on 5th October 2006 or thereabouts to the Defender. The Pursuer received a letter from the Defender, dated 17th November 2006, giving its “full and final settlement” to the claim, denying a refund of inter alia the Charges, to the Pursuer.
      9. Pursuer notes that the Defender, to date (23/01/07), has made no attempt whatsoever to present a competent defence to the Pursuer’s claim.
      10. Copies of all correspondence sent and received is attached.

      Brief Outline of Claim

      1. Pursuer as part of his basis of claim, advances that:

          [*]In support of part of his basis of claim the Pursuer contends, and intends to prove that:

          1. the charges are:

          i. punitive in nature;

          ii. unreasonable;

          iii. generally disproportionate;

          iv. excessive;

          v. unfair;

          vi. unlawful;

          vii. not a pre-estimate of the loss incurred by the Defender in respect of any alleges breaches of contract on the part of the Pursuer;

          viii. exceed any alleged actual loss to the Defender in respect of any alleged breaches of contract on the part of the Pursuer;

          ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Pursuer, but instead unduly enrich the Defender which conducts its regime of charging with a view to profit;

          x. not intended to bear any relation to the Defender’s actual losses which it can show it has incurred in relation to the afore mentioned alleged breaches of contract;

          xi. are held in terrorem to discourage the pursuer from presenting items on the account for payment where there are insufficient funds to cover such payment of the said item.

            1. i. the Unfair Terms in Consumer Contracts Regulations 1999 (hereinafter referred to as the ‘UTCCR’);

              ii. the Unfair Contract Terms Act 1977 (hereinafter referred to as the “UCTA’)

              iii. the Supply of Goods and Services Act 1982; and

              iv. the common law; and

              v. directive 93/13/EEC on unfair terms in consumer contracts ; and

                1. [*]The pursuer makes reference to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

                    1. [*]Additionally, the Pursuer makes reference to inter alia the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin 21 (July to September 2002). as persuasive authorities:

                      1. Case 4 — Dampcure-Woodcure/30Ltd (hereinafter referred to as “OFT Case 4”)
                      2. Case 15 — Kids of Wilmslow Ltd (hereinafter referred to as “OFT Case 15”)
                      3. Case 18 — Legal & General Franchising t/a Parker Estate Agents (hereinafter referred to as “OFT Case IS”)

                      [*]The Pursuer reserves the right to raise additional issues at a later date, depending upon inter alia any defences that the Defender lodges.

                      PART 2- INDICATION OF PURSUER’S SPECIFIC REASONING, ARGUMENTS, ETC

                      No contract ever existed between the parties hereto

                      1. No admissions are made by the Pursuer as to the incorporation of any term in any contract between the parties hereto purporting to entitle the Defender to levy the Charges. If the Defender intends to rely upon such a term whatsoever as part of any defence it seeks to advance, then the Pursuer calls upon it to show that such a contract and term did in fact exist.
                      2. No admission is made by the Pursuer as to whether he entered into a contract with the Defender whatsoever. If the Defender intends to rely upon such a contract whatsoever as part of any defence it seeks to advance, then the Pursuer calls upon it to show that such a contract did in fact exist.
                      3. The Pursuer does not recall ever entering into a contract with the Defender with respect to the Account.
                      4. Assuming, the Defender is unable to show that a contract existed as per paragraphs 21 and 22 then the Defender cannot claim to have ever had any right whatsoever to levy the Charges against the Account and the Pursuer is entitled to Judgement as sought in paragraph 64.
                      5. For the avoidance of all doubt, the rest of this claim is pleaded without prejudice to the non-admissions plead in paragraphs 21 and 22, and the submissions made in paragraphs 16(b) and 16(d).

                      Charges arise from a breach of contract

                      1. Should the Defender be able to show that the Terms & Conditions form part of a contract binding the Pursuer in relation to the Account, then it is almost axiomatic that the Charges are a result of breaches of contract on behalf of the Pursuer.
                      2. The Pursuer makes particular reference to the following. All of the Charges relate to a case which the Pursuer has allowed a request for payment of an item to be presented against the Account, whilst it contained insufficient funds to cover the transaction. This is a clear breach of the Terms & Conditions. Term C4 makes it abundantly clear that, should the Terms & Conditions form part of a contract between the parties hereto then, the Pursuer must have funds in his account to cover payment of items presented against it. As such, should the Terms & Conditions form part of contract between the parties hereto then, the Charges can only pertain to breaches of contract. Accordingly, the Charges are penalty charges and cannot be said to merely be service charges.

                      Unfair Terms in Consumer Contract Regulations (S 2083/1999)

                      1. Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Pursuer could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.
                      2. Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”
                      3. Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to his obligation to pay a disproportionately high sum in compensation” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).
                      4. Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as un/air”. The Terms & Conditions allows the Defender to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. Further under UTCCR 1999 schedule 2, it defines an example of an unfair clause as – ‘requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’. In order to ascertain whether the Defender’s charges are an unenforceable penalty or are liquidate damages, the true costs incurred by the Defender need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by contractual breaches.
                      5. Regulation 8(l) of the UTCCR provides that: “.An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”
                      6. Particular reference is made to OFT case 4. Clause W’ had the potential to impose a high financial penalty when payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.
                      7. Further reference is made to OFT Case IS. In that case Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee per letter sent concerning unpaid fees was deleted.
                      8. Further reference is made to OFT case 18. In that case, a commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of sheriff court interest on late payments.
                      9. Accordingly, in light of paragraphs 33, 34 and 35, the Defender is being at minimum fairly and amply compensated for unauthorised lending by the imposition of its unarranged overdraft interest rate (22.5% + base rate). The imposition of further charges is unfair in terms of the UTTCR.
                      10. Separtim without prejudice to paragraph 16(b), 21 and 22 hereinbefore, regardless of whether or not this court finds that the Charges are remuneration to the Defender for services rendered rather than compensation for damages arising from a breach of contract, if a term of contract exists between the parties hereto that purports to allow the Defender to levy the Charges to the Account then such a term of contract is unfair, and hence unlawful and unenforceable, by virtue of regulation 5(I) of the UTCCR.
                      11. Accordingly, in light of the averments made hereinbefore regarding the Charges being disproportionate and punitive, any term of contract purporting to allow the Defender to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR. As such the Pursuer is entitled to judgement as sought in paragraph 64.

                      Unfair Contract Terms Act 1977

                      1. Any term of contract between the parties hereto purporting to entitle Defender to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Pursuer is entitled to judgement as sought in paragraph 64 of these particulars.
                      2. Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.
                      3. Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

                      Common law

                      1. The authorities mentioned in paragraph 18 and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defender to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the cases of Dunlop and Hills are powerful authorities in favour of the Pursuer. Additionally, the case of McAlpine seems to re-affirm the views in these cases. Accordingly, the Pursuer is entitled to judgment as sought in paragraph 64 of these particulars.
                      2. Lord Dunedin formulated the test for Penalty clauses as follows, in Hills “The general principle to be deduced is ... that the criterion of whether a sum -- be it called penalty or damages -- is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for, cannot be regarded as a ‘genuine pre estimate’ of the creditor’s probable or possible interest in the due performance of the principal obligation”.
                      3. It was further noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.
                      4. Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

                          i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;

                          ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

                          1. In McAlpine, the aforementioned common law principles were held to generally be correct. Furthermore, it was held that where there was a substantial discrepancy between the level of damages stipulated in the contract and the level of’ damages which is likely to he suffered it can he said that the agreed pre-estim ate is unreasonable”

                          Response to possible service defence

                          1. This section is merely meant as a response to the possible defence, that the Defender may attempt to raise, that the Charges are merely remuneration for services rendered and that the law on Penalty charges is irrelevant. It is not disputed that the Defender is entitled to recover its damages following the pursuer’s breach of contract and is entitled to include a liquidated damages clause. A penalty however, is unenforceable. The law states that a contractual party cannot profit from a breach and the charge for the loss suffered from the breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that liquidated damages should be charged as backed up by case law –Robinson v Harman 1848. However it is settled law that that the charge for the loss or damage arising from a breach of contract must be proportionate to the loss incurred. This section is plead without prejudice should the Defender not plead such a defence, or this court not find that the charges are merely remuneration for services rendered and provided for by an enforceable term of contract between the parties hereto. Furthermore, this section is plead without prejudice to the caveat of paragraph 25 of this claim.
                          2. Should this court, being of competent jurisdiction, find that the Charges are remuneration for services rendered by the Defender, then they are irrecoverable as set out in this section hereinafter, due to inter alia the fact that any terms which provide for the Charges are unfair and the Charges themselves are unreasonable. In that eventuality the Pursuer is entitled to Judgement as sought in paragraph 64.
                          3. In particular, the Charges are unreasonable in the terms of sl5 Supply of Goods and Services Act 1982. The Pursuer submits to this honourable court that a charge of £8.50 or its increase to £20.00 for the administration resulting from the Pursuer going over his authorised overdraft limit by £0.01 isn’t reasonable by any stretch of the imagination. The same can be said for a charge of £39.00 for an item which is charged as returned unpaid direct debit item on the account.
                          4. Furthermore, the Charges, regardless of their de facto nature are unfair by virtue of Regulation 5(I) of the UTCCR. Particular reference is made to the fact that any term of contract which purports to allow the Defender to levy the Charges to the Account, contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the Pursuer, who in this case is a consumer.

                          Directive 93/13/EEC

                          1. Directive 93/13/EEC of 5th April 1993 indicated under article 6 sub sections 2and 3 of this directive provide information in regard to unfair terms references to legal remedies, whereby consumers will be protected from suppliers using unfair terms in their contracts.

                          Other relevant facts

                          52. Parliament has noted that the average default charge, in the banking industry, has increased by over 50% from £12 in 1998 to nearly £19 in 2003. It could be considered strange that the industry’s costs have risen so dramatically, when compared with the rate of inflation. Also, continued advances in IT should have reduced costs by automating processes.

                          BBC Programme ‘Money Line’ recently broadcast in December 2006 relating to Bank Charges. They employed two senior Banking Accountants and a Professor to analyse bank account charges and fees associated with operating accounts. Their conclusions were that the amounts currently charged by banks for charges, etc were exorbitant. The banking organisation refused invitations to appear to allow them to present their case and show how the calculations involved in making charges.

                          In a recent study undertaken in Australian Nicole Rich “Unfair Fees: a report into penalty fees charged by Australian Banks”), it was established that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 45 cents. The study estimate that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal.

                          In The House of Commons, on 24th may 2006, the house passed an early day motion which welcomed the OFT’s statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as ‘exorbitant’ and ‘excessive’.

                          In an American study Consumer Federation of America “Bounced Cheques: Billion Profits) it was estimated that the Bank’s costs to process returned direct debit payment was between US$ 0.48 and US $ 0.65.

                          Other relevancies in the public domain relating to bank charges:

                          i. Peter McNamara – BBC radio September 2004;

                          ii. BBC article on Money Claim programme, 20th July 2006;

                          iii. Daily Mail articles about Bank Charges;

                          iv. Guardian article about Bank Charges, February 2006;

                          v. Radio4, Mike Dailly of the Govan Law Centre about Bank Charges, 19th February 19th 2006;

                          vi. Stephen in Sunday Express, 12th February 2006;

                          53. The Pursuer has never been the subject of debt recovery action, or been pursued for payment of debt, by the Defender. In addition, the Defender has never been required to undertake any work other than sending automated letters to the Pursuer with regard to Unpaid Items, Unarranged Overdrafts and Referral Charges.

                          Aggravated and Exemplary Damages

                          54. The facts contained hereinbefore indicate that the Defender’s behaviour included but was not limited to:

                            1. 55. As such the Pursuer contends that the Defender’s behaviour is:

                                1. 56. Accordingly, the Pursuer asks the court to grant aggravated and exemplary damages as detailed in Paragraphs 64(f) and 64(g) of these particulars.

                                  Implied and/or imposed contractual term regarding interest

                                  57. Defender charges interest to the Pursuer, via the Account, at its published “unarranged overdraft rate” of 27.5% (22.5% + base rate). The Defender claims that it is entitled to charge this rate, by virtue of the Terms & Conditions.

                                  59. The unarranged overdraft rate is charged to the Pursuer, via the Account, when the Pursuer draws money from the Account whilst he has not obtained permission from the Defender for exceeding any overdraft limit that he has. It is in effect, a rate that the Defender charges the Pursuer when he draws funds from the Defender when he has no right for doing so.

                                  60. Using, that reasoning and maintaining the principal of equity, mutuality and reciprocity between the parties, the Pursuer contends that he is entitled to an equal rate of interest in this case. The Pursuer notes in particular that the Defender erred in law. had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Pursuer.

                                  61. If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defender must pay the Pursuer at the same rate of interest which it reserves for itself, in similar circumstances. If no express contract exists between the parties hereto then the Pursuer contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Pursuer’s right to charge interest to the Defender at the rate which it reserves for itself in relation to similar circumstances.

                                  PART 3 CONCLUSION

                                  Details of Judgement Sought by Pursuer

                                  62. Accordingly the Pursuer seeks:

                                    1. 64. In conclusion total amount sought by the Pursuer is £2387.22, plus interest at a rate of 8% from 14th November 2006 until date of settlement.

                                      Statement of Truth

                                      The Pursuer believes that the contents of these particulars of claim are true

                                      SIGNED

                                      Date:


                                  1. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £739.64 as in Schedule attached
                                  2. the return of the Subject Access Request Fee, in the amount off £5.00, that the Pursuer was required to pay in the perusal of this case
                                  3. an award of £100.00 as compensation for the significant inconvenience caused to the Pursuer by the Defender erroneously levying the Charges to the Account;
                                  4. court costs;
                                  5. interest as calculated and shown in the Schedule:
                                  6. personal expenses relating to printing costs, research time, stationary, postage, time spent composing letters etc, as outlined in Schedule
                                  7. pursuant to the implied and/or imposed term of contract between the parties hereto as detailed in paragraph 64. Pursuer calculates interest at said rate (27.5%) up until 14 November 2006 as being £1399.88, details whereof are provided in Schedule and attached hereto.
                                  8. The judicial rate of interest at 8% should be applied to the total from 14 November 2006 until the date of settlement.

                              1. objectionable; and
                              2. is such that the court show profound disapproval of

                          1. levying disproportionate and unlawful charges against the Account;
                          2. refusing to refund the Charges when it was made clear to the Defender that the Charges were unlawful; and

                      5. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.
                      6. The essence of a penalty is a payment of money as “en terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.
                      7. Whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests which would prove helpful, or even conclusive:

                  1. Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co. [ AC 79 (hereinafter referred to as Dun1op”);
                  2. Lordsvale Finance PLC v. Bank o/Zambia [ QB 752;
                  3. Murray v. Leisureplay [ EWCA Civ 964; and
                  4. Bridge v. Campbell Discount Co. LtLL [ AC 600
                  5. Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [ EWE-Information Commissioner 281 (TCC) (hereinafter referred to as “McAlpine”)
                  6. f Commissioner of Public Works v Hills [ AC 368 (hereinafter referred to as “Hills”)

              1. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated.

          1. without prejudice to paragraphs 16(b), 21 and 22 of this claim, all contractual provision(s), if any, between the parties hereto, which purport to permit the Defender to levy the Charges to the Account, are unenforceable by virtue of:

      2. the Charges have been unlawfully applied to the Account;
      3. no contract ever existed between the parties hereto that purports to allow the Defender to levy the Charges to the Account. In that eventuality the Pursuer is entitled to Judgement as sought in paragraph 64.
      4. should such a contract exist it could only exist in the form of the Terms & Conditions.
      5. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter. In that eventuality the Pursuer is entitled to Judgement as sought in paragraph 64.
      6. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defender for services provided then they are irrecoverable as set out hereinafter, due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable. In that eventuality the Pursuer is entitled to Judgement as sought in paragraph 64.
      7. the Defender’s levying the Charges to the Account has resulted in significant inconvenience and distress being inflicted upon the Pursuer, which he is entitled to compensation for; time used in researching the data, the correspondence to the defender, the printing cost, and the postage costs.
      8. the court should award exemplary and aggravated damages, to the Pursuer.

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Hi there,

 

Received a cheque tody for £1,563.00 instead of the full £2,220.00 I was claiming for. They stated in their lettle that the interest I have included is only vaild from the date that I served the summons onto the Clydesdale.

 

I have drafted a letter and will be rejecting this offer and going for the full amount.

 

3rd hearing date is the 2nd March.

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Kaiser,

 

I recieved exactly the same letter on tuesday. I have already responded and told them no! However, the offer also contained the line: "a copy of this letter will be lodged with the court to show that your claim has been settleed in full"

 

I spoke to the Sheriff's Clerk about this and her reponse was "cheeky buggers".

 

She also advised me to submit a letter to the court (with a copy of the above offer from the CB) stating that i was not satisfied with the offer and would be continuing my action. This has been carried out and the CB have been informed of this as well.

 

They have to have their defense in by 19/02/07. So hopefully I will hear soon.

 

I'll keep you updated,

 

Paul

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Hi Guys,

 

Got my 5 minutes of fame this morning on BBC Radio Scotland!!

 

Fantastic debate on 'Morning Extra with Gary Robertson' this morning.

 

Check out the listen again service to hear the debate again at BBC - Radio Scotland

 

We've got them on the run chaps....keep on the pressure!!

 

Dominic

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Kaiser, any news on your case yet?

 

Paul

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Hi there. Iwas hoping one of you guys could help.

 

I'm taking the Clydesdale Bank to the small claims court in Scotland and have lodged my summons with the local sheriff court. A week or so later I received in the post copies of Farm 1 and Form 1b, stamped and dated with the return and hearing date.

 

What I want to know is how will I know if my summons have been served (delivered) on the bank?

 

Also, what is this 'Particulars of Claim' document you've posted, how does it relate to the process I'm involved with, can I still use it and if so, how?

 

sorry if that's a lot to ask of you guys, but I'm three or so weeks from the court date and starting to get angsty.

 

D.

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