yozzawood VS HSBC ###won###

[pinkduchess]

glad your brothers is sorted - now you can concentrate on yours!!

[Castlebest]

Well done.. one down one to go

 

pete

[lateralus]

congratulations to you and your brother - a good team effort.

now, get yours sorted!!

[oi-giz-it-back]

Thank you!!! Iv been offerd the full amont (well 40 quid short but as good as) The acceptance form has lots of conditions to it. Iv looked at letter templates but cant find one for accepting but with out the conditions. Whats peopls thoughts on that or should i just accept as is?

[Michael Browne]

Will this do?

Date

Dear Whoever

Ref: Your Offer of Settlement

 

Account: xxxxxxxx

Sort Code xx-xx-xx

Claim No: XXXXX in XXXX County Court

 

I acknowledge receipt of your letter date xx/xx/xx and your settlement offer of £XXX.

I accept your offer as full and final settlement only for this claim of bank charges made on my account between xx/xx/xx and xx/xx/xx(dates of first and last charge) However I will only accept an unconditional offer and will therefore not be signing your acceptance agreement

 

I accept this offer without prejudice and I reserve the right to make any further claims should you apply future charges that may be considered unlawful under common law or in violation of the Unfair Terms in Consumer Contracts Regulations 1999 or Unfair Contract Terms Act 1977.

 

I will be willing to withdraw my claim and will send a Notice of Discontinuance to the Court upon receipt of unconditional full settlement of my claim

 

I am also not prepared to agree to any confidentiality clauses you try to impose, unless of course your client wishes to make an offer of due consideration in addition to the amount of £xxxxx, in order to be afforded this privilege by myself.

 

I trust that you will find this arrangement acceptable.

 

Yours Sincerely

[Castlebest]

Freaky has a good acceptance letter, I wouldnt worry too much about the conditions they try to impose most of its rubbish... how can you keep quiet your a CAG member just cross them all out or use Freaky's letter..... would post it but I cant remember where he's hiddn it

 

 

pete

[oi-giz-it-back]

Spot on thats just what i was looking for!!! Thanks

[oi-giz-it-back]

Oh my lord!!! How much printing?!?! Just finished it all. Theres so much more than with my brothers. A lot more!! Think iv got every thing Just a few questions tho.

 

The order of it? I think iv got it right. Iv put the correspondence at the back. I dont know if thats right. Heres my cover.

 

Latest Schedule of Charges

Statements

Witness Statement

Relevent Case Law Summary

Early Day Motion from the Houses of Parliament

Dunlop v New Garage

UTCCR 1999

UCTA 1977

SOGA 1982

OFT Statement April 2006

OFT Action on Credit Cards 2006

UCTG April 2007

Terms and Conditions

Correspondence

 

For my witness statment iv just tweaked my brothers for Lloyds, Removed a few things ie Martin orson letter and the peter mcnamera radio interview as these where more to do with lloyds. But im 2 points down. Is there anything HSBC related?

 

Heres my statement:-

 

1st Witness Statement of xxxxxxxxxxxxxExhibit Sxx

xxJuly 2007

In the xxxxxxxxx County Court

Claim Number: xxxxxxxxxxx

Between:

Stephen Cole

-And-

 

HSBC BANK PLC

(Defendant)

 

_________________________

1st WITNESS STATEMENT OF

me _________________________

 

1. I, the Claimant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. On xxxx I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them.

 

5. Upon a unsatisfactory response from the Defendant, on xxxxx2007 I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.

 

6. Upon the Defendant's generic template rebuttal of my complaint, on xxxxxx I filed a claim at Northhampton County Court for the return of the charges levied by the Defendant, as particularized and detailed in the Particulars of Claim.

 

7. The Defendant acknowledged service of the claim on xxxxxxxx

8. The Defendant filed its defence on xxxxxxxxxxx

 

Overview

 

9. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.

 

10. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.

 

Disguised Penalties and breach of contract

 

11. The Defendant avers that the charges levied are legitimate fixed price contractual services, not related to breach of contract, and therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. I refute this interpretation and further submit that this contention is merely an attempt to 'cloak', or disguise, its penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

12. I believe the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one which the consumer agrees is at a reasonable market rate commensurable with the service provided. I believe it to be inconceivable that the charges levied to my account by the Defendant could be any form of service', rather than a penalty. I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed any purported “services” on my account.

 

13. I understand the definition of a breach of contract to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. The definition of the word “limit” given by the Oxford English Dictionary is as follows;

 

• noun 1 a point beyond which something does not or may not pass. 2 a restriction on the size or amount of something. 3 the furthest extent of one’s endurance. • verb (limited, limiting) set or serve as a limit to.

 

When I exceeded the contractually agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge of £xxxxxx

 

14. The banks charges arise directly from the happening of an event. It is a clear requirement of the terms of the account contract that sufficient funds are available to cover payments made by standing order or direct debit, or overdraft drawings. A charge arises when these requirements are not met – I.e. when a payment or drawing is made from the account which is not supported by sufficient available funds.

 

15. If the Defendant’s interpretation were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the consumer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.

 

 

Office of Fair Trading Analysis

 

16. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated in its overview that the principle of their findings would also apply to Bank account charges and indeed those of the entire financial and lending industry. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR. With regard to the 'cloaking' or disguising of penalties, the OFT said this;

 

"4.21.Disguised Penalties

The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".

 

 

17. Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999”. Relevant sections from this report are quoted as follows;

 

“Section 5.8 - Disguised penalties.Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.”

 

Section 18 1.3

"These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

 

Unfair Terms in Consumer Contracts Regulations 1999

 

18. In the absence of an express term of the account agreement prohibiting exceeding the limit of the overdraft facility and/or prohibiting the payments of standing orders and direct debits without sufficient funds, I will aver that there is a term implied to the same effect. Without such term the consumer would be afforded no protection whatsoever from the inequity between the bargaining powers of the parties, and it is an intended effect fundamental to the UTCCR and other consumer contract regulationsto imply terms in order that such great imbalance in the rights of the parties is redressed to some extent.

 

19. Further, under the UTCCR:

 

"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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

20. The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.

 

21. The cost of HSBC’s charges have increased substantially and indiscriminantly during the time my account has been in operation, at no time was I ever given the opportunity to negotiate. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

22. I submit that it is wholly unfair that the defendant should hold such power in relation to the terms of the bank account contract relating to charges. The defendant, if its interpretation of its terms were to prevail, would have the unlimited power to increase the cost of its charges unregulated and without an assessment of fairness. The defendant and other UK banks would then be free to unilaterally alter the term and increase the cost of its charges to whatever it chose to unabated, with significant and highly detrimental consequences to the consumer and the intentions of the consumer regulations.

 

Penalty Charges

 

23. If the court is persuaded that the charges were levied for breach of contract or that the penalty provisions are applicable irrespective of a finding of breach, it is the Claimant’s submission that the charges are indeed penalty clauses.

 

24. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses resulting from the breach or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

 

 

25. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

and;

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part”

 

26. I will further rely on numerous recorded authorities dating throughout the 20th century to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

27. Further, under the UTCCR, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation"

 

28. It is submitted that the charge is an unconscionable penalty as it is extravagant and exceeds any loss that the Defendant could have expected to have incurred as a result of the Claimant’s breach and seeks to deter the Claimant from breaching the contract.

 

29. On numerous occasions, I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

30. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

31. For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer's breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

32. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system 'bouncing' the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £30 - £35 by carrying out this completely automated process. The letter received notifying the customer of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

 

33. On 22nd May 2006, the House of Commons 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".

 

 

Supply of Goods and Services Act 1982

 

34. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising directly as a result of clear and demonstrable breaches of express and/or implied terms of the account contract between myself and the Defendant. I vehemently refute the Defence's contention that they are legitimate contractual service charges.

 

35. However, and without prejudice to paragraph 18 above, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

 

36. If the charges are services, there must be a correlation between the service provided and the cost. The cost of HSBC’s charges has increased substantially and indiscriminately during the time the account has been in operation. The defendant has repeatedly been requested to provide details of the costs of its charging process and has each time declined to do so. Further, at a conservative estimate their have been at least 300 claims of this nature brought against the defendant in the last 12 months. In a significant proportion of these cases orders have been made obliging the disclosure of these costs and each time these orders are breached by the defendant. If the defendant avers its charges are reasonable within the meaning of section 15, I would contend that it is incumbent upon it to justify the price by producing evidence of its actual costs.

Summary

 

37. As set out previously, it is submitted that The Defendant's charges can not be considered to be a service charge. They arise as a direct consequence of an event demonstrable as a breach of the account agreement between the parties. In arguing that they are a service charge, the defendant also effectively admits that its charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can alter the term of contract to set the charges at whatever level they like without limit or regulation - contrary to the intended effects of consumer legislation such as the UTCCR. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are disproportionate, punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are disguised contractual penalties and unenforceable at law.

 

 

38. Statement of Truth

 

I, the Claimant, believe the facts stated within this Witness Statement to be true.

 

Signed:

 

 

 

Dated:

 

 

I know theres a few questions there and if anybody has got down this far thank you. Thank you for taking the time to help me. This has been such a brain bleeder for me and i couldnt have got this far without your help. But im nearly there now, I must admit tho. I am getting nervous!!! Anyway Nite Nite i can here my bed shouting!!!

[lateralus]

list of settled claims and copies of all correspondence between you and the bank/solicitors since you started this.

[oi-giz-it-back]

OK thanks lat. Will have a scout round for settled claims now. Take it thats just case numbers. With any bank or just HSBC? I wont include correspondence iv had from the court. And T and C's, All of it?all 48 pages? Iv printed it all off, just struggling for room in my folder!! Its gonna look like a littlewoods catalog at this rate!!!! LOL

[freakyleaky]

Include all the correspondence form the courts and all of the T&C's. The more the better!

[lateralus]

Litigation Section - View and print out litigation spreadsheets here

 

doesn't give a very good print out - i've been on to the mods about this.

[oi-giz-it-back]

Right i think thats it now just gonna number it and print off my contents sheet. I dont think it matters to much about the order. Im sure its going to be moree than they submit!!!! Thanks all for your help.

[oi-giz-it-back]

Ok here goes!!! Thats it. Not doing any more to it. IT THE POST SHE GOES!!!! (Cant believe iv just kissed and envelope)

[pinkduchess]

laughing - good luck oi

[oi-giz-it-back]

ANOTHER LUCKY WINNER!!!!!!!!!!!!!!

 

Full offer of 2546.56!!!! They didnt question one penny of it. Even the ones that are now over 6 years. So nice one. Done it!!!Im so chuffed. Iv sent today a letter of acceptance but not agreeing to any of there terms and conditions. And thats it bump bump. Thats bosted the travleing fund some what.

 

A big big thank you to all those that have helped me with all this. i really wouldnt have got this far without your help.

 

All that leaves me to do is pm a mod and get my thread moved and to make a donation to this site so you can continue to help others like me.

I will still be about for a bit tho, im still interested in how other peeps are getting on.

[freakyleaky]

Nice one OI!!!!!!!

CONGRATULATIONS!!!!

 

 

PM Zootcoot he/she is around somewhere! (sorry Zoot I don't know if your male or female:o )

[pinkduchess]

well done oi!! you got there!!! really pleased for you

 

lol freaky!! i think her avatar gives us a clue!

[Castlebest]

Well Done Oi you WINNER !!!

 

 

pete

[lateralus]

ok, oi, we got there!!!!

big hug and a hurrah!!!!!!

CONGRATULATIONS!

[jowalshy]

CONGRATULATIONS ON YOUR WIN.

WELL DONE

[HSBCrusher]

won!

 

superb!

 

Crusher

[Anne26]

WELL DONE!!!!!! Whehey:D

[oi-giz-it-back]

nows the tricky bit. They aint left much time for my letter to get to them and for them to put my money in my account before i need to cancel my claim. In the judges orders it states in bold letters

 

The court must be informed immediately if the case is settled by agreement befor the hearing.

 

HSBC said that they would inform them for me but i said oh no you dont. I will tell them once the money is in my account.

 

Should i let the court know they have made an offer or just leave it till about wednesday and just send a notice of discontinuance? or is that to risky??? Any thourts

[freakyleaky]

When is your date set for?

If you have sent your acceptance letter then they should receive it tomorrow. In which case you will get your money within 5 days or so. If you don't think the money will be there in time then you can ring the court and ask for an adjournment until the funds have cleared in your account. I have seen a few in this position but the money is usually with them before the court date. They have even sent a cheque enclosed with the offer letter to ensure that the case is stopped with the court before the hearing date.