Claiming on a Business account? Lets join forces?

[lancasterchelsea]

A conundrum................ I initially made my business claim though MCOL, and because of (a) the particulars of claim were too brief/inadequate, and (b) all MCOL business claims were being stayed, I withdrew the claim within 2 DAYS (!!!) of filing the claim on MCOL.

 

About 6 months later, I made a new claim through my local court with a much more descriptive and much larger POC.

So the first claim was very quickly withdrawn and 6 months later a new claim was started. The new claim is proceeding normally without a stay.

 

I have now had a threatening letter from the bank's solicitors saying...that it is contrary to court laws and against the court process to issue the same claim twice. They also threaten that I will be charged with all their costs if I carry on.

 

Do the solicitors think

(1) I have 2 current court cases proceeding for the same claim.... which is obviously naughty.... and I haven't

or

(2) are they saying I cannot make a claim, withdraw it before it has got started, and before it might have been stayed, and reissue the claim later

 

I haven't done (1)... I have done (2)

[JOSH_IOU]

HI Lancaster.

 

If the claim was withdrawn by the courts how short was your claim?h

 

Did you use the templates on this site?

[photoman]

IMHO,

 

I think they are trying it on ?

 

Did they actually file a defence to your MCOL claim prior to your discontinuing it ?

 

Reading the CPR (Court procedure rules):

 

Discontinuance and subsequent proceedings

CPR: 38.7

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

 

 

Your claim would/could come under under part b, as the claim is substantially the same as your prior claim.

 

HOWEVER..... This part only kicks in if part a (ie: they had filed a defence before your withdrawal) had already occured.

 

So, I think the relevant bit here is whether or not they filed a defence prior to your withdrawing the first claim.

In which case you should have then applied to the court for permission to re-issue the claim.

 

If no defence had been filed to your original claim prior to your withdrawal, then you would not have had to apply for permission.

Edited July 1, 2008 by photoman

[photoman]

Here's the relevant link:

 

 

PART 38 - DISCONTINUANCE

[photoman]

Further to my last post.

 

Did you simply withdraw the claim online or by writing to the court?

Or did you also write to the Defendant?

 

This is the proper procedure for discontinuing a claim.

 

Procedure for discontinuing

CPR: part 38.3

(1) To discontinue a claim or part of a claim, a claimant must –

(a) file a notice of discontinuance; and

(b) serve a copy of it on every other party to the proceedings.

 

(2) The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.

(3) Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

(4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

 

 

If however, you only withdrew the claim online or by notifying the court, then my understanding is that there could theoretically be a liability for costs incurred by the defendant prior to their receiving notification of the discontinuance.

 

See this part:

 

Liability for costs

CPR: part 38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him.

 

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where right to costs arises on discontinuance)

 

 

HOWEVER;

 

A/ This rule does not apply to claims allocated to small claims.

 

and

 

B/ The decision to award costs is clearly stated as being at the discretion of the court.

 

Bearing in mind that you are a Litigant in Person, you may be given the benefit of the doubt, in that you presumed that simply notifying the court (who would in turn notify the defendant) was ample.

Also, it could be argued that as you had heard nothing from the defendant, you were unaware as to who to send any such notification anyway (ie: a solicitor had not yet been assigned).

 

Even in the worst case scenario, you could only be liable for any costs incurred dealing with the case prior to their becoming aware that the case was discontinued (not all costs relating to the whole case).

It couldn't have cost them very much to receive and rubber stamp the claim form, and I doubt it could be claimed or proven that very much work was done on the case prior to finding out a couple of days later it was discontinued.

 

 

 

IMHO: I doubt the court would grant any costs (and in any case, I doubt it will even get that far, and such costs.....in the very unlikely scenario the court would allow them... would only be allowed and assessed at conclusion of a full trial)

Edited July 1, 2008 by photoman

[lancasterchelsea]

I filed MCOL on 1st of month,

I wrote and phoned MCOL to discontinue on 2nd,

letter from MCOL confirming "claim has been withdrawn" on 3rd

(but MCOL didn't mark claim as withdrawn which they should have done)

acknowledge of service by bank(7th day)

didn't get defence

bank asked me for more info, (but I knew the case had been withdrawn)

[photoman]

IMHO,

 

I would write back to the solicitors reminding them of the chain of events, and by quoting CPR 38.7 stipulate that you were well within your rights to issue a fresh claim as no defence had been filed or received.

 

Did you at any point prior to this current letter mention anything about the former case being withdrawn. If so remind them of the letter. If not, then stipulate in that letter that it should also be considered as a notification of discontinuance (just in case).

 

That is my opinion, perhaps a Mod will also be along soon to advise, otherwise maybe PM one and ask their opinion on the last few posts here before proceeding.

 

 

PM

[steven4064]

I think you are absolutely corretc photoman. CPR 38.7

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

 

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim

If they didn't file a defence then you can discontinue and start again, even with the same evidence.

 

The fact that you didn't tell the defendant that you had discontinued is unimportant as the court will have done so and they obviously know anyway or they woildn't have come up with this rubbish in the first place.

[TideTurner]

Surely they are not trying to confuse with the double jeopardy rule? How thick do they think you are? Make sure you make the Court aware of their tactics, point out your reasons for disagreement and include the line "I reserve the right to make a copy of this letter available to the Court".

 

Then proceed as normal.

[steven4064]

They may be confused also with the unlawfulness of dividing the cause of action under s35 of the County Courts Act 1984

35 Division of causes of action

 

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

[photoman]

Thanks Steven,

 

Was pretty sure I was right, but always nice to know others agree.

 

So, lancasterchelsea;

Simply write to the solicitors, reminding them of the chain of events, and by quoting the relevant CPR, inform them you are well within your rights to issue this claim.

Further to this, also remind them that as the 1st case was discontinued, (and the court would have informed them so), then no costs would be applicable (forget making the letter a note of discontinuance).

 

Inform them that you consider their letter as an attempt at intimidation, and that you will be bringing it to the courts attention at trial as evidence of such behavior.

 

PM

[photoman]

Hi all,

 

Okay, next week the judge in the OFT case is due to make an announcement upon whether or not the sample historic T&C's submitted by the banks could be considered as making the charges amount to penalties at law.

(interestingly, I get the impression that this sample selection has been submitted by the banks themselves, which is IMHO a flawed process, a bit like asking a mass murderer to only show you the plots of land where the bodies haven't been buried)

 

Anyway, what implications could this announcement have ?

 

IMHO:

 

Firstly, if ANY of the T&C's considered are deemed to make the charges amount to penalties, then this raises the issues of the payments having been made due to the banks concealment and/or the claimants conceding to such whilst acting under mistake.

Thus, any bar to restricting a claim to 6 years under the Statute of Limitations is raised, and claims can be brought going back as far as the claimant wishes.

 

Secondly, this also opens the issue of penalties at common law again, as even if any of the T&C's by your particular bank are deemed possibly so, then it enables business claimants to claim that there own T&C's be examined more thoroughly.

 

IMHO, even if the T&C's examined are NOT deemed as being capable of making the charges amount to penalties at common law, then as there are fundamental differences and applicable laws regards business account terms, the relevance of this to Business accounts is questionable and flawed, and should not be allowed to also encompass them by default. So (particularly if you have access to them) I personally think that business claimants could then still press to have their own T&C's examined properly.

 

 

 

......... "THERE IS ANOTHER WAY"

(no apologies to Nastywests crap ad campaign):

 

The Court of Appeal has recently confirmed in Judicial Review Proceedings before it that the Financial Ombudsman Service ("FOS") fair and reasonable jurisdiction does not require it to follow the law, nor is it obliged to hold a hearing or, as a matter of course, make its decisions public.

 

See this case:

 

Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor [2008] EWCA Civ 642 (11 June 2008)

 

 

Also:

 

It appears that it has now been upheld by the court of appeal that the FOS has the right to charge the respondent (ie: the Bank) a case fee for dealing with every single complaint brought to it (regardless of the outcome, and whichever way the decision goes).

 

The FOS, and is also not obliged to just dismiss cases in order to save the respondent such fees.

 

See this case:

 

Financial Ombudsman Service v Heather Moor & Edgecomb Ltd [2008] EWCA Civ 643 (11 June 2008)

 

Also, the FOS is obliged to follow the banking code:

 

See this case:

 

Norwich and Peterborough Building Society, R (on the application of) v Financial Ombudsman Service Ltd. [2002] EWHC 2379 (Admin) (14 November 2002)

 

 

The FOS' official line (from it's website) at the moment regards bank charges complaints is, that as it intends to consider the law when dealing with Bank charges complaints, so it is holding back on considering individual complaints until the current OFT case is concluded.

 

Quote (from FOS website):

 

We need to know the final outcome of this important legal action, before we can make decisions in individual complaints about unauthorised overdraft charges. The law is one of the things that the ombudsman has to take into account when we decide cases. So we have decided not to continue our work on unauthorised overdraft charges until the legal position has been clarified.

 

 

Fair enough,

 

However, if a Business claimant were to argue that the OFT case bears little or no relevance to their own complaint (as it is brought under common law, and not UTCCR)........ then it may be possible to argue that all the relevant law pertaining to such a case was already decided.

 

So it could be argued that there was no justification for holding back on an investigation into a business account claim.

 

This argument could be further strengthened by next weeks announcement. ie; if ANY of the considered T&C's (relevant to your own bank) are deemed as possibly giving rise to the charges amounting to penalties at common law, then a business claimant could then argue that deems their own T&Cs as immediately open to investigation. At the same time, as nothing is submitted, claimed or relates to the UTCCR aspects of the OFT case, then no more delays with regard to the OFT case by the FOS should really be necessary any longer.

 

 

 

So:

 

1/ By taking the FOS route a business claimant may possibly be able to get some current progress.

 

Or at the very least they would still be able to bring a complaint to the FOS upon conclusion of the case.

The FOS could then still consider the case as they would not be bound to dismiss it based upon the OFT case outcome (as the courts may do), nor would they have to adhere to the ruling in the case.

 

Taking this route would also protect the claimant from the potential costs involved in losing in a court.

 

 

 

2/ By raising a complaint with the FOS, you would be costing the bank considerable fees to deal with such (regardless of the outcome).

 

So (dependent upon claim size) even just threatening to take the case to the FOS may be enough to prompt the bank to settle beforehand (in order to save itself what may be a greater expense in fees).

 

 

So, even if the conclusion of the OFT case were to shut the door on bringing complaints through the courts, then a business claimant (in fact anyone, so this even includes personal account claimants) could still take the FOS route, as the FOS are not bound to abide by the outcome of the case.

 

Also (up to a certain claim level) if faced with the cost implications of a complainant taking such the FOS route, then (regardless of the outcome of the OFT case) the bank may then consider settlement before it goes that far as being more cost effective.

 

 

 

................. Comments anyone ??

 

 

 

PM

[tifo]

The Court of Appeal has recently confirmed in Judicial Review Proceedings before it that the Financial Ombudsman Service ("FOS") fair and reasonable jurisdiction does not require it to follow the law,

 

Also (up to a certain claim level) if faced with the cost implications of a complainant taking such the FOS route, then (regardless of the outcome of the OFT case) the bank may then consider settlement before it goes that far as being more cost effective.

 

The appeal decision seems to be in conflict with section 228 of the FSMA 2000, as well as the FSA handbook DISP 3.6.4 which states they have to take into account all relevant law etc. in it's decisions. This was recently confirmed to me by the Treasury in response to a complaint made through my MP.

Edited July 6, 2008 by tifo

[photoman]

Tifo,

 

Looking at section 228 of the FSMA, I can only see that this judgement confirms section 228 rather than conflict with it ?

Section 228 of the FSMA 2000 stipulates that a complaint will be determined by the FOS by making reference to what they consider fair and reasonable.

 

Quote ( from section 228 )

(2)A complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case.

 

The FSA regulations then outline what these fair and reasonable areas are.

 

Quote (From the FSA handbook (section 3.6.4)

 

2 In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account:

 

(1) relevant:

 

(a) law and regulations;

 

(b) regulators' rules, guidance and standards;

 

© codes of practice; and

 

(2) (where appropriate) what he considers to have been good industry practice at the relevant time.

 

So such regulations and sections only outline what the FOS must consider, it does not put any actual real requirement upon them to actually abide by any of the laws or regulations considered.

 

Just that they are considered.

 

The FOS has the authority to take other matters and evidence into account too, and to the use it's own judgement to determine what it considers to be a fair and reasonable decision (regardless of whether or not it is actually in line with the laws and statutes considered).

 

In any case, if the FOS is required to account for all such things in bank charges claims, and so feels a requirement to await the outcome of the OFTs' case before proceeding, then;

1/ So far as Business claims go the aspects of law cited by the claimant are settled, and the regulations under the UTCCR being considered in the OFT case do not apply anyhow.

2/ The OFT case will only be considering Personal account T&C's and not Business account T&C's. So, determining whether or not the Business account claimants own (quite different) T&C's make them penalties will not be decided in such a case.

 

So, I cannot see why any consideration of the OFT case by the FOS should really be necessary or reasonable justification for delaying a business account claim?

 

 

PM

[TheyrCriminals]

Hi Guys,

 

I have a friend who is in desperate need of a business bank account for his small business, however all the banks appear to be turning him down. He doesnt have great credit history admittedly but he hasn't ever had a CCJ or been made bankrupt or anything like that. He has no borrowing needs whatsoever and just simply wants an account to deposit cheques and cash and arrange cash transfers into. Is there anything at all he can do? He asked me but I dont have a clue where to start with this one!

 

Any help greatly appreciated.

 

TheyrCriminals

[JOSH_IOU]

Get a Halifax Treasurers Account.

 

The bank will need to no exactly where the money is coming from.

 

I suggest he also opens a pre-paid mastercard or visa card there is some verry good deals out there I would reccommend to my clients.

[GuidoT]

If possible do not bother with a business account at all, just open a normal account.

 

This may of course not work if cheques are sent to a business name rather than the name the account is held in.

[TheyrCriminals]

Hi Guidot and Hi Josh,

 

Thanks for your replies. The business is a small company so all cheques received are made out to the business name so setting up another personal account I don't think will work.

 

With regards to Halifax Treasurers account, what is that? And how does he go about see if he qualifies to open one up. I do know that he has already been turned down for a Halifax business current account.

 

TheyrCriminals

[TheyrCriminals]

Hi Again,

 

Also Josh are you saying that you can now open one of those pre-paid credit card accounts in a business name?

 

TheyrCriminals

[JOSH_IOU]

There arent any credit checks's

 

He has to go into the halifax branch with 2 forms of ID. Normally a bank statement and a passport.

 

The aplicant is assesed by the bank manager and Id advise him to say his anual turnoever is going to be less than 30,000.

 

These accounts are not offerd as a general rule but you can apply for them if you ask for them.

 

So I would take evidence of what he is going to do and where the money would be coming from. A marketing or and a business plan would be verry handy at this stage. Even if it is brife and then the bank manager could and usually dose advise further.

 

Bank managers ussually want to help when they can on these type of accounts.

 

So Id advise him to phone and make an apointment to see the business manager or go into the branch. Phoneing is better I think.

[JOSH_IOU]

Or Natwest handle Adverse credit as well.

 

I would advise against a current account as he will be turned down with adverse credit as you no.

 

ring natwest up and ask what accounts they do for adverse credit and you will be directed to the adverse credit team they do them on the phone and by post.

 

Thats if he has not had probs with Natwest b4

[JOSH_IOU]

EasyKard do a one

[TheyrCriminals]

Hi Josh,

 

Thank you so much for all that help, I will most certainly pass it on.

 

Cheers,

 

TheyrCriminals

[andrew1]

Thank you Photoman for post 1363

[TheyrCriminals]

Hi Josh,

 

Can I please ask what exactly is a Treasurers account and why is there a chance a bank manager would grant one to a customer who has been refused a business current account?

 

TheyrCriminals