Claiming on a Business account? Lets join forces?

[JGJ]

Peter

Any idea on what i could put in reply to MARTINEAU JOHNSON RE. their

WITHOUT PREJUDICE -CONFIDENTIAL AND PRIVILEGED letter:

 

1. The amount of £____ will be credited against your liability to the bank which is currently being managed by Bank's Customer Debt Management Dept. As this liability exceeds the amount of your claim there will be no payment out to you.

 

They are offering £1,000 short of what I calculated - as they are excluding interest and statutory interest - stating that it does not form a valid part of an overcharing claim.

 

The credit will be in full and final settlement of the claim.

 

How can i say LOOK I WANT THE MONEY then I'll come to an arrangement with Banks Customer Debt Management Dept.

This is the second letter WITHOUT PREJUDICE we've received from solicitors - and since they are not counter claiming - as AQ stated in Section D - Have you made any application(s) in this claim ticked NO

 

any wise words please

[andrew1]

Good morning JGJ ! To be honest, this is all about negotiation and sussing out their position and how far you and they are prepared to go. Put yourself in their shoes for a second.. do they want to go to court? Doubt it. Are they chancing their arm not paying any interest? Probably. Would there be any compromise? Probably. How much? probably half way. So why not go back and say you'll settle, but you won't accept no interest at all as they have been in the wrong, however, you would be prepared to accept as a goodwill gesture ( they love that term) an additional £500 in F & F.

 

Ask yourself a) if they would prefer that or spend all the legal costs of going to court and b) whether you are prepared to accept that. Also, and only you can decide this, are you prepared to take it any further now you have got to this position if this is their final offer?

[photoman]

Hi all,

Haven't posted for a few days. I've been in the proces of setting up a new computer,which has been a chore.

Switching over to Mac from PC, as it's better suited to my overall needs. However, it does have some compatability problems with regards some of the programmes and files I need for claims usage (I think that Microsoft might be my next target with regards court action... boy they really make it dificult to switch over, in an effort to keep you buying and using their products) !!

Anyway, still about, and wil be working on next phase of claims, once I suss out how to adapt some of the files I need etc.

In the meantime, notice I've had a couple of PM's, which I will try to reply to soon. Skeggsy, particularly, I know you've ben having some doubts about your POC, and waiting upon filing. I'll try to take a look and get back to you, but as long as your using the POC's posted upon here, You should have no issues.

 

Regards the stay's issues, I think we need to pull together as Business claimants to compose a response, based upon our position as Business claimants, to such possible events. So peeps, start working on these.

 

I think we alll also need to start looking at the issue of consolidation loans more seriously. We need to make the Bank's aware that we are aware of their tactics of consolidating our debts and charging heaps of interest upon it....... when a lot of the debt is composed of unlawful charges in the first place!! This is a very sneaky and hidden way of screwing us !!

I've had an email from a very respected spreadsheet whizz about a spready I've been working on regards this. I hope to make it public soon. Please don't PM or pester me anyone for it, as it's still at trial stage, and I would not want to take responsability providing sheets may not yet work properly.

 

regards to all

 

PM

[tina9776]

Have received a letter from Foote Anstey (solicitors for LloydsTSB for my husband's business account) settling his claim for over £2,000. My husband has signed the acceptance letter so hopefully the money should go into his account in the next few days. It had not gone as far as a court date or having to get a bundle together so very pleased.

Just the joint account and court date of 10th September to come so fingers crossed!!

[andrew1]

Have received a letter from Foote Anstey (solicitors for Lloyds TSB for my husband's business account) settling his claim for over £2,000. My husband has signed the acceptance letter so hopefully the money should go into his account in the next few days. It had not gone as far as a court date or having to get a bundle together so very pleased.

Just the joint account and court date of 10th September to come so fingers crossed!!

 

Hey, Whooppie well done !

[photoman]

Okay,

I keep getting PM's from people asking me to look over their POC's.

 

This (or similar) has been posted by myself before on this thread, and it is a tried and tested POC. I really don't have the time to look over everyone else's POC's , and so can only really suggest that you use this.

 

If you wish to use it, then bear in mind the following.

 

1/ This is for Business account claims.

2/This includes reference to sec32 in order to raise the 6 year bar on claims. If you do not want or don't need to claim this, them remove the releveant sections.

3/ DO research and try to download the relevant case laws cited within it. If you have not got them and had a chance to read them, then perhaps remove the ones you can't find for the time being. You will have a chance to submit them later in you witnes statement/statement of evidence.

4/ This is for claiming 8% statutory interest only. If you wish to try for anything more, it will require a lot of time and research on your behalf, and a completely different POC.

 

-------------------------------------------------------------------------------------

 

 

Particulars of Claim:

 

1. The Claimant had a 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).

 

2. The Claimant admits to breaches of the terms of the contract that required the Claimant to stay within any agreed overdraft limit.

 

3. The Claimant’s breaches of contract have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xx/xx/xx and xx/xx/xx. A list of the charges and interest on the charges is annexed to the Particulars of Claim at pages 4 to 7.

 

4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendant on said charges. In addition the Claimant claims interest on the full amounts as detailed in paragraphs 15 & 16.

 

5. In support of his basis of claim the Claimant contends that the charges are:

i. Excessive in that they are not truly reflective of any actual or genuine pre estimated loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses, or pre-estimate of costs in relation to the Claimant’s accounts breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has failed to do so, the Claimant thus contends the Defendant’s charges to be indefensible, unenforceable at law, and unauthorised.

ii. Excessive in that the Defendant is being at minimum fairly and amply compensated otherwise for unauthorised lending by the imposition of unauthorised overdraft interest rates.

iii. Devised and enforced by the Defendant with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit.

iv. Punitive in nature in that they are used in "in terrorem" to discourage the Claimant from presenting items on the account for payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforceable under common and/or statutory law.

 

Accordingly the Defendant’s default charges are:

a. A penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Defendant and therefore contrary to common law.

b. Unfair and unreasonable under section.4 of the Unfair Contract Terms Act 1977.

c. In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.

 

6. The Defendant has declined to answer the Claimant’s written requests for information about any manual intervention necessitated by, and/or any actual administrative costs incurred as a result of, the said breaches.

 

7. The Claimant contends that the Defendant failed to conduct itself in a manner befitting such a position of great trust. The Defendant had a duty of care to safeguard all money entrusted to it by the Claimant, yet it repeatedly took sums that despite several requests has still failed to lawfully justify. This amounts to a failure of the Defendants fundamental duties of trustworthiness, transparency, diligence and care.

 

8. The Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

 

a. Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co. [AC 79];

b. Lordsvale Finance PLC v. Bank o/Zambia [QB 752];

c. Murray v. Leisureplay [EWCA Civ 963 ]

d. Nurdin & Peacock v D B Ramsden [1999] 1 W.L.R. 1249)

e. Lord Elphinstone v. Monkland Iron and Coal (1886)

f. Clydebank Engineering and Shipbuilding co v. Ramos Yzquierdo y Casteneda (1905)[AC6]

 

9. The claimant draws attention to a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006. The Claimant contends that it is not unreasonable to draw close comparisons between the functions and practices of Northern Irish and mainland UK Banks. This is thus reasonable evidence that the defendant is aware that the income derived from its default charges are; excessive, do not truly reflect the actual costs incurred in dealing with such breaches, and unduly enrich the Defendant.

 

10. The Claimant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

 

a. The OFTs recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.

b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.

c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.

 

11. The Claimant seeks permission to proceed with the claim under section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimants right of action, before the report of the OFT was published on 5/4/2006. Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where;

b). "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges. Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.

 

12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)© of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties. The Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

Section 32(1)© of the 1980 Act postpones the commencement of the limitation period where;

c). "the action is for relief from the consequences of a mistake"

The claimant cites inter alia Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter.

 

13. In respect of paragraphs 11 and 12 section 32 of the Statute of Limitations act (1980) stipulates that:

"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".

 

14. In regards to paragraphs 11 & 12 the Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

i. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349

ii. Deutsche Morgan Grenfell V Inland Revenue (2003) EWHC 1779 (ch)

iii. Cave v Robinson Jarvis (House Of Lords) [2002] UKHL 18

 

 

15. Accordingly, the Claimant claims:

 

a). The return of £xxxx.xx taken by the Defendant in charges and interest of £xxx.xx applied on the charges between the period xx/xx/xxxx and xx/xx/xxxx.

 

b). All court fees and expenses.

 

c/ Statutory interest at 8% as prescribed by s.69 of the County Courts Act 1984 at the rate of 8% a year, from xx/xx/xxxx to xx/xx/xxxx of £xxx.xx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of xx.

 

 

 

I believe that the contents of these particulars of claim are true.

 

Signed:

 

 

 

YOUR NAME

[PeterAnderson]

FANTASTIC photoman - Just what I have waiting for - YOU ARE A STAR ****

 

I have just rung a friend of mine - she teaches commercial law and marks final exam papers for new lawyers coming out of Uni - I have asked her to pretend to be the banks lawyers and see if there is even the slightest crack and what would be her advice to the bank?

 

PS Could you please also post this to the business limited thread

[andrew1]

 

and see if there is even the slightest crack

 

 

 

oooooh - you doubting Thomas ! :D

[PeterAnderson]

Andrew - Hi,

I do not have the slightest doubt that PM POC is watertight, cos he is soooo good. But with nearly £19k at steak and I KNOW (I think anyway) the bank will turn up at court I just wanted to make sure

[andrew1]

Andrew - Hi,

I do not have the slightest doubt that PM POC is watertight, cos he is soooo good. But with nearly £19k at steak and I KNOW (I think anyway) the bank will turn up at court I just wanted to make sure

 

You're getting hungry already for it !

[ermie]

Hi I just thought you might be interested I issued my claim at court on 24th July which was served on 31st July and I received a letter from Martineau & Johnson to say they will settle in full with interest and court fee for the last 6 years which will be debited to my business account providing I agree confidentiality and that its a final settlement. This should be ok as loan cleared on account and no overdraft is in place. I only had £150.00 plus interest to claim beyond 6 years and I figured it would be worth waivering for quick settlement. Any one see any reason why I shouldn't settle.

 

Ermie. Can now use one of these

[PeterAnderson]

ermie - Hi,

 

If it were me I would take the offer as it seems to much hassle for £150 - but what was the size of your claim though?

[andrew1]

Hi I just thought you might be interested I issued my claim at court on 24th July which was served on 31st July and I received a letter from Martineau & Johnson to say they will settle in full with interest and court fee for the last 6 years which will be debited to my business account providing I agree confidentiality and that its a final settlement. This should be ok as loan cleared on account and no overdraft is in place. I only had £150.00 plus interest to claim beyond 6 years and I figured it would be worth waivering for quick settlement. Any one see any reason why I shouldn't settle.

 

Ermie. Can now use one of these

 

I'd agree with Peter Ermie, my one concern is this business with Confidentiality really. Why the heck should you sign a confidentiality agreement when they are in the wrong. It's to stop others knowing they are settling and that in my opinion is wrong. That said of course who'd jeopardise getting a pay-out? Nobody will blame you, but in principle I'd prefer to say no. If I were in your shoes, I don't know what I'd do - probably sign if pushed

[ermie]

My claim was for just over £3,000. I know what you mean about confidentiality. We had just paid loan off in bulk and once that had gone through we were closing the account which was pobably on our file. i think in light of what is going on we will sign

[lancasterchelsea]

I have got 5 business claims ongoing worth £13,000. I have one (RBS) with a defence already entered and today I filled in MCOL for 2 more.

Is there any evidence yet that business claims (common law etc) are going to proceed, and not get stayed ??

[GuidoT]

Phone MCOL and try and cancel these claims, say you have made a mistake, otherwise they are likely to automatically get stayed.

 

File the traditional way at a court that is not staying. I know the OFT test case should not apply to banks but that does not stop the stay being put in place indiscriminately.

[lancasterchelsea]

GuidoT are you saying that MCOL claims will automatically get stayed, even if they are business claims

[Celicaman]

GuidoT are you saying that MCOL claims will automatically get stayed, even if they are business claims

 

I think what guidot is saying is that when filing using MCOL, it is a basic claim, you only get 1080 characters and this is not enough to file a correctly worded Business POC compared to filling N1 claim form.

MCOL business claim is highly likely to just get caught up with the many personal claims and be stayed. The N1 business POC is much better worded and would have to be read fully by the court. Basically as this is a business claim you are not relying on the UTCCR and it is these that the oft case will be built around, and these do not apply to business claims

 

Celicaman

[JGJ]

Hi

posted 11th Aug. on this thread - ( see #621 ) does anyone know the answer ? Bank will settle - BUT -

1. Settlement figure £____will be credited against your liability - which is being managed by the Banks Customer Debt. Management Dept.

Can they do this.

I'am Claiming against them - if they want money from me - would they not have to counterclaim?

 

I need to decide which way to answer this offer - any help appreciated.

[GuidoT]

We have just learnt that MCOL are automatically staying claims, it is a little too early to tell if credit card, business claims, i.e. those that should not be, are being caught.

 

So advice here is do not use MCOL.

[lancasterchelsea]

I couldn't be more annoyed..

just phoned MCOL. I had waited til 10.00 am to make sure they were open and lines were clear etc.

BUT.... 10.00 am was the deadline for cancelling yesterday's claims. If I had phoned before 10.00, I could have had my money back. So I have just lost £240, I can ill afford.

Also all claims are likely to be stayed by the banks, including business claims etc. The banks won't miss that trick

The lady was very helpful and suggested I write in and try to get my money back.

So I have paid £240 for nothing. Every year I claim back money on my NIC, and it takes them months to get the money to me. But the ink wasn't dry on these claims, and I cannot get the money back.

The government/OFT have handed the banks a brilliant result. Five years of ripping us off as usual, and we are gagged whilst they do it.

[lancasterchelsea]

written to, and faxed, MCOL to try and get my money back

[PeterAnderson]

photoman This is mainly for you - as you did not want PM's

(Legal comment on post 632)

 

As mentioned before I was going to put your POC passed a friend of mine for comments - she teaches commercial law and marks final exam papers of new lawyers coming out of (forgot the name) the big London Law Uni thing.

 

Her overall comment was that it is well written and the cases sound and relevant; there were two other comments; there maybe a public policy element that may sway the judge to order a stay and although not her field - is there any EU directive that helps the way banks conduct their business? (I will put this question on a new thread on the General Forum

 

I have not altered the POC and her suggested changes and comments are in RED - so here goes with the cut & paste thingy: -

 

Para 1 - I have added the word Business in front of the word "account"

 

7. The Claimant contends that the Defendant failed to conduct itself in a manner befitting such a position of great trust. The Defendant had a

COMMON LAW AND A STATUARY

duty of care to safeguard DELETE THE WORD safeguard AS IT SOUNDS LIKE THE BANK HAVE LOST YOUR MONEY AND REST NEEDS TO BE RE-WORDED TO REFLECT THIS CHANGE all money entrusted to it by the Claimant, yet it repeatedly took sums that despite several requests has still failed to lawfully justify. This amounts to a failure of the Defendants fundamental duties of trustworthiness, transparency, diligence and care.

 

SHE SAYS THIS IS SLIGHTLY SHADY GROUND AS IT NEED S TO QUOTE THE PAGE No; AND DIRECT QUOTE FROM THE REPORT & IF THERE IS ANYTHING IN THE REPORT THAT MENTIONS BANK ACCOUNTS RATHER THAN CREDIT CARDS?

10. The Claimant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

 

In 11b add the words - [now claimant] (KEEP IN BRACKETS) after the word - plaintiff's

 

Otherwise she says this POC is Not Unsound

 

Asked what she would do if she were the District Judge seeing this document

A: "I really don't know to be honest. I would probably allow it; but that may depend on the public policy element at the time"

 

Asked if she were the lawyer for bank, what would be her advice to them?

Q: This is really quite tricky, as what would be their defence be? I am not sure at the moment what advice I would give them

 

There yer go peeps

[PeterAnderson]

For those claiming back over 6yrs this is a ***MUST MUST***read

Post 904

 

http://www.consumeractiongroup.co.uk/forum/general/80486-claiming-beyond-6-yrs-46.html

[groovycaz]

Hi

posted 11th Aug. on this thread - ( see #621 ) does anyone know the answer ? Bank will settle - BUT -

 

1. Settlement figure £____will be credited against your liability - which is being managed by the Banks Customer Debt. Management Dept.

Can they do this.

I'am Claiming against them - if they want money from me - would they not have to counterclaim?

 

 

I need to decide which way to answer this offer - any help appreciated.

 

Hi AGJ

It looks like they offered you £1000 less than what your claiming, for them to offer this amount means they dont want to go to court, The halifax did the same to me and tried to get me to take £800 from a £1500 claim, I called their bluff and they paid up, im not saying this will happen in your case but you have to weigh up your best options, personaly if I was to accept what they were offering I would make it a condition that it was paid by way of a personal cheque and not to repay any loans which are a separate issue altogether, I believe the banks will attempt to recover other outstanding debts to them in this way, do you have a repayment plan with them at present? also how much difference would the extra £1000 make to your liability with them..Gc