Claiming on a Business account? Lets join forces?

[photoman]

This was sent to another CAG member. I've replaced their surname with a string of xxxx' s for the moment. I shall PM them, to see if they agree, that as their CAG id cannot be linked to or determined from posting a surname, if they would mind my later replacing the xxx's with a name, (just to add more authenticity).

The CAG member had written to the OFT with a straight question about whether or not the UTCCR (and hence the basis of the current OFT test case) applied to Business accounts.

Although this is obviously not in it's original headed format, it does clearly bear their own reference, so the source should be undeniable, and thus the contents admissible in your pleadings.

 

I think it speaks for itself:

 

 

 

Our ref EPIC/ENQ/E/8770

 

Date 01 October 2007

Email [email protected]

 

Dear Mr XXXXX

Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs)

Thank you for your email of 27 July regarding your query. I am sorry for the

delayed response.

I can confirm that the UTCCRs only apply to consumer bank accounts and not to business accounts. The regulations implement an EC Directive on unfair contract terms and apply to standard terms in contracts between businesses and consumers. Under the Regulations unfair terms are not binding on the consumer.

They provide that 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.

 

Yours sincerely

 

Digna Castańeda

Enquiries and Preliminary Investigations

[photoman]

I have also done some work on an opening paragraph for a Business claim POC.

Some of the points here may be useful to incorporate into an appeal (although in hindsight I think it could perhaps be a little less officious).

 

1. The Claimant had a Business Bank account xxxxx (branch sort code xx-xx-xx) with the Defendant, between the periods of xx/xx/xx and xx/xx/xx governed by the Defendant’s Banking Terms and Conditions (the contract).

The account was held by the Claimant with the Defendant to be used primarily for the purposes of the Claimants Business banking activities, consequently any contract or account terms and conditions were never covered by or subject to the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR99) due to definitions as defined by paragraph 3. –(1){t2} of said regulations clearly excluding business accounts;
“consumer” means any natural person who, in contracts covered by these regulations, is acting for purposes outside his trade, business or profession;

Thus the Claimant contends that;

i. The Defendant cannot make any reliance upon or reference to any other similar cases (whether pending or current) that are otherwise reliant upon UTCCR99 by way of any attempt or excuse to delay any compliance with any timetables set by the court.

ii. That as the present actions being taken by the Office of Fair Trade (OFT) (claim no: 2007 folio no: 1186) against the Defendant and similar institutions are clearly particularised as solely in relation to the reasonableness of the Defendants contractual terms under UTCCR99, that such case should not be considered as to have any current or future bearing or relevance to the conduct or outcome of this case. Therefore under the overriding objectives of CPR1 the claimant pleads it would be unjust for the court to declare any stay in proceedings whilst awaiting the outcome of a case based upon wholly different particulars, and also requests that the court should similarly discount any applications by the Defendant.

 

 

 

 

PM

[TheyrCriminals]

Hi Photoman,

 

Thanks for the response. While I agree with you in that the OFT Particulars of Claim and the amended Particulars of Claim do not feature the penalties at common law argument, could I please direct you to the OFT's response on this in the form of question 11.

 

The Office of Fair Trading: Questions and answers for OFT personal current account work

 

Thanks.

 

TheyrCriminals

[TheyrCriminals]

Hi Photoman,

 

Thanks for the response. While I agree with you in that the OFT Particulars of Claim and the amended Particulars of Claim do not feature the penalties at common law argument, could I please direct you to the OFT's response on this in the form of question 11.

 

The Office of Fair Trading: Questions and answers for OFT personal current account work

 

Thanks.

 

TheyrCriminals

[TheyrCriminals]

Can I request some input on this issue from a Moderator please?

[zootscoot]

The penalty argument was not in the OFT's particulars of claim because they were part of the banks counterclaim to which the OFT responded. So the penalty issue was covered in the test case. Although in relation to business T & Cs they tend to be more explicit in relation to breach of contract than the personal T &Cs.

[TheyrCriminals]

Hi Zoot,

 

Therefore should complainants be pursuing the legal avenue in relation to reclaiming penalty charges on business bank accounts at this time, which is what this thread has been claiming we should be doing?

 

TheyrCriminals

[JOSH_IOU]

No .........complaints should be pursued via the civil court.

This is a civil business proceeding and the FSA waiver dose not cover this.

[TheyrCriminals]

Hi Josh,

 

What do you mean? The claim IS being pursued through a civil court!

 

TheyrCriminals

[TheyrCriminals]

Hello Again Zootscoot,

 

In addition to my question to you, did you mean to say counterclaim? Are the banks counterclaiming? Or did you mean defence?

 

TheyrCriminals

[JOSH_IOU]

The small claims track is part of the civil court.

 

The civil court can only hear civil matters.

and the criminal courts can only here criminal matters.

 

Unless you have a big combined court and they would be called the criminal or civil section (s).

[JOSH_IOU]

Please do not be put off reclaiming your charges.

These charges are unlawful.

They must be able to prove there costs are lawful.

 

And without a full break down this is not possible.

[JOSH_IOU]

As a business owner you should no this.

[freakyleaky]

Should "no" what?

[freakyleaky]

The small claims track is part of the civil court.

 

The civil court can only hear civil matters.

and the criminal courts can only here criminal matters.

 

Unless you have a big combined court and they would be called the criminal or civil section (s).

Sorry but you have completely lost me James. Who mentioned Criminal courts? :confused:

[JOSH_IOU]

ummmeeerrrr they should know that to prove a charge is not a penalty toc's are not enough.

 

They have to provide a Full break down of charges to prove a charge is lawful.

[freakyleaky]

So why should a business owner know this? Unless the business is a Bank of course!

[JOSH_IOU]

http://www.consumeractiongroup.co.uk/forum/general/68191-claiming-business-account-lets-55.html#post1420312

[JOSH_IOU]

They should no this because the terms of contract are supposed to be lawful. A good business person will keep accurate records.

 

If a consumer asks for a full break down of charges then the company should be able to provide them.

 

If they are not able to provide them how can the business man prove the charges are lawful?

[TheyrCriminals]

No .........complaints should be pursued via the civil court.

This is a civil business proceeding and the FSA waiver dose not cover this.

 

Josh,

 

I haven't understood what you have been talking about from the word go! Of course I have been pursuing my claim in the civil courts, namely the County Court! I haven't commenced action in the Magistrates court and asked for a commital to the Crown Court in the hope of a successful prosecution and get Mr. Lloyds TSB Bank plc CEO into jail (although the thought is probably quite justified)! But Josh your advice has been totally confusing and I really don't know what you are talking about.

 

Zootscoot are you there?

 

TheyrCriminals

[JOSH_IOU]

Well your saying its illegal.

 

Aren't you going down the civil route?

[freakyleaky]

I will bow to your superior knowledge James. I am myself a buisnessman but obviously not a very good one!

[JOSH_IOU]

Please stop calling me that my username is JOSH_IOU

[freakyleaky]

But Josh your advice has been totally confusing and I really don't know what you are talking about.

 

 

 

TheyrCriminals

I too am completely lost.

[JOSH_IOU]

Freaky how so?