Claiming on a Business account? Lets join forces?

[Muffintop]

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"

 

 

 

 

 

 

 

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

Pete wasnt this lovely poc for a pre 6 year buss account? and limited co? can you clarify pse. skeggsy

[jodybuk]

Hi! I'm having a senior moment ( at 35 - it doesn't bode well does it!!) and have a few questions. The information I need is probably on the site somewhere but just can't seem to see the wood for the trees as there is sooo much info on here & I think my brain is about to go into meltdown!!

 

1) Does the oft test case apply to mortgage claims & business accounts?

 

2) I have three business account claims, the day the oft announced the test case I posted my LBA'S off - should I still proceed with them although not using mcol or am I best to wait & see?

 

3) Is the test case likley to be concluded this year- I know that no one can say exactly but what is the general concensus?

 

4) How come the banks have been given permisssion not to investigate any claims or settle any claims while the case is on going but can still impose charges for the duration of the case - they seem to be in a win win situation

 

I'm sorry if i'm covering old ground, I am getting more & more befuddled as I search for answers!!

Thanks

[tina9776]

My arguement for my husband's business account was that the test case would not affect the outcome as it did not include business accounts. 2 weeks later we got an offer from the solicitors of full settlement of over £2,000. The paragraph from my letter was "Although I am aware that a test case is to take place in the high court, I believe that this will not affect my case as it does not apply to business claims".

Worth a go, it worked for me. Let us know how you get on.

[PeterAnderson]

skeggsy

 

And others

 

I have just rung my lawyer re limited companies and PM POC just remove Para 5c - Supply of Goods Act

 

Otherwise all the other acts within this POC apply equally to all

[Celicaman]

Hi, Test case does not effect business claims, as noy using UTCCR, im not sure about mortgage claims exactly but i have a stay on a mortgage arrears claim, but working on negotiation to get it settled out of court as its not worth hassle of waiting.

I would proceed with filing N1 claim after LBA's have been ignored LOL, there is a good POC on this thread for using as template.

The OFT case could take months, or even years if it goes against the banks & went to appeal.

Keep reading & learning about POC so you understand the arguments in it before you file it, It does all come together in the brain eventually

 

Celicaman

 

 

 

 

 

Hi! I'm having a senior moment ( at 35 - it doesn't bode well does it!!) and have a few questions. The information I need is probably on the site somewhere but just can't seem to see the wood for the trees as there is sooo much info on here & I think my brain is about to go into meltdown!!

 

1) Does the oft test case apply to mortgage claims & business accounts?

 

2) I have three business account claims, the day the oft announced the test case I posted my LBA'S off - should I still proceed with them although not using mcol or am I best to wait & see?

 

3) Is the test case likley to be concluded this year- I know that no one can say exactly but what is the general concensus?

 

4) How come the banks have been given permisssion not to investigate any claims or settle any claims while the case is on going but can still impose charges for the duration of the case - they seem to be in a win win situation

 

I'm sorry if i'm covering old ground, I am getting more & more befuddled as I search for answers!!

Thanks

[photoman]

Hi! I'm having a senior moment ( at 35 - it doesn't bode well does it!!) and have a few questions. The information I need is probably on the site somewhere but just can't seem to see the wood for the trees as there is sooo much info on here & I think my brain is about to go into meltdown!!

 

1) Does the oft test case apply to mortgage claims & business accounts?

As far as aware, no, it is based up the UTCCR, so does not apply to Busines accounts

 

2) I have three business account claims, the day the oft announced the test case I posted my LBA'S off - should I still proceed with them although not using mcol or am I best to wait & see?

Just proceed, the courts are dealing with matters on a case by case basis

 

3) Is the test case likley to be concluded this year- I know that no one can say exactly but what is the general concensus?

 

4) How come the banks have been given permisssion not to investigate any claims or settle any claims while the case is on going but can still impose charges for the duration of the case - they seem to be in a win win situation

The banks have not been "given" any permission. They will try to aply for stays, but is ultimately upto the courts.

 

I'm sorry if i'm covering old ground, I am getting more & more befuddled as I search for answers!!

Thanks

 

Keep to your schedule, and do not be put off by any assertions or claims on behalf of the banks that they are entitled to stay or avoid dealing with these matters. Ultimately, it is upto the courts.

 

PM

[photoman]

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"

 

 

 

 

 

 

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

 

well done Peter

 

Always good to get a professional opinion on things.

 

This particular POC has been composed after months of research on this site, my own reading up and researching case law, statutes and laws, and also after talking to several learned members and some professional solicitors etc.

 

It works. But any improvement are always welcome.

 

So far as your friends comments upon paragraph 7, and the wording regards safeguarding our money. I still stick by it, and although it is not particularly necessary, I feel it would really do no harm. You can either choose to include it or not.

 

Regards the OFT report, the actual details of the pararaphs could be included if you wish. Although the OFT report is admittedly only of relevance in so far as it is indicative of the general state of affairs. It is not a precedent or of any real legal consequence in relation to our own claims.

A judge may choose to either acknowledge it's relevence or not.

 

I must just add that I do not know how it would fare in regards to Limited company claims, as it was composed in regards to Sole traders, and small Business'. For those claiming upon Limited companies, I suggest you do a bit of extra research into this. Search this site for those in similar positions, I believe there are some threads started in regards to this.

I gather that the position of limited companes is somewhat different, in that any refunds would have to go to the directors (or creditors if in liquidation).

 

It is also perhaps more relevant to Banks such as LLoyds who use the defence argument that the charges were in relation to "Services".

If anyone is claiming against a bank that uses the alternative argument of the fact that the charges relate to "costs' then it would perhaps require some modification.

 

Anyway, there you all go, your all welcome to use or modify this in relation to your own claims, but I do of course add the universal proviso, that I cannot take any responsability for it's contents or any consequences of it's use.

 

PM

[PeterAnderson]

I must just add that I do not know how it would fare in regards to Limited company claims, as it was composed in regards to Sole traders, and small Business'. For those claiming upon Limited companies, I suggest you do a bit of extra research into this. Search this site for those in similar positions, I believe there are some threads started in regards to this.

I gather that the position of limited companes is somewhat different, in that any refunds would have to go to the directors (or creditors if in liquidation).

 

 

PM Only a tiny post here (easily missed) but I did answer this question after seeking her advice; which is that for limited companies this POC is fine if you just remove Para 5 c

[PeterAnderson]

Just another c'aviate to this.

 

As my lawyer friend teaches commercial law and what we are dealing with here is her special field I thought her comments were obviously a very wise thing to seek; in fact I spent about an hour on the phone with her re this POC. She is very interested in what the CAG are doing and is VERY sympathetic to our individual claims, and knows the misery this is causing us all.

 

[i have been with her in court on one occasion - ABSOLUTELY RUTHLESS - a bulldog in fact; shot the other side (and the judge) to pieces they must have thought they were facing a cannon loaded with grapeshot

 

What PM has said about the OFT para is absolutely correct of course And she commented that in reality this was no 'big deal'

 

I will expand on her comment when she read the OFT paragraph (I put her in the judges chair for the question). She said that as she read the POC everything was looking fine with well put forward points. Then when she got to the OFT bit she thought "Yes, we all know about the OFT original directive (both the court & banks) so why did the claimant not list the relevant page of the directive as he has done elsewhere in the POC" - it might just look more professional to show that the claimant clearly knows where they are coming from (her words PM [NOT mine] & certainly NO slight on you very good self).

 

She also wondered that within the OFT directive on credit cards is there any mention regarding "bank accounts" rather than just credit card accounts; because if it did this would give slightly more weight to the argument.

 

Nevertheless we on CAG do have access to a very clever lawyer - although I will not 'tap on her shoulder' for little Q's

 

Just a thought

 

PS In the light of the change to just one small paragraph i.e Para 5C

Why not combine the Limited Company claims and this thread into one - more knowledge leads to better results ?? Maybe

[elsinore]

She also wondered that within the OFT directive on credit cards is there any mention regarding "bank accounts" rather than just credit card accounts; because if it did this would give slightly more weight to the argument.

 

 

From the OFT report 5th April 2006

 

Implications for other standard default charges to consumers

1. 5.14 The broad principles set out in this statement are likely to be relevant to other default charges in standard agreements with consumers, such as those for mortgages, store cards and bank accounts. We expect the banks and other finance businesses to consider the wider implications of these principles, and to bring any similar charges they impose for breach of contract into line with them, where and as appropriate bearing in mind the different legal and practical contexts in which they operate. If appropriate steps are not taken within a reasonable timescale, further regulatory investigation of the position can be expected.

Els

[tifo]

if appropriate steps are not taken within a reasonable timescale, further regulatory investigation of the position can be expected

 

yes, and now we are seeing the investigation as the banks did not willingly comply with the report for current accounts.

[elsinore]

Exactly!

 

Els

[lancasterchelsea]

Just got letter from Cobbetts/RBS, saying they have applied for a stay on my business claim. It has got past MCOL and been allocated to my local court. The judge at Nothampton says in the Order that "any party may apply inder rule 3.3(5) to have it set aside. such a party must apply under rule 23.3 within 14 days ie by 24th August. That is just what Cobbetts have done... evn though it is a business claim

[PeterAnderson]

elsinore + lancasterchelsea

 

elsinore - Many many thanks for your post.

 

I think as per l/c post what we have to do is to get the message across loud and clear to the DJ right at the very start to make it very clear that that our claims do not rely on UTCCR's (which is the main point behind the OFT case); so I will definitely add your post to my POC in the hope that the DJ sees this (rather than hide it away in my witness statement, which is only of any use once the DJ has decided to hear the case in the first place). I would also add this covering letter (posted on here already) to reinforce the point at the very start rather than fight to have the Stay put aside, if that were so ordered in the first place.

 

So I think when submitting my N1 I would add this letter and the modified POC to your local court

 

Dear Sir/Madam

 

You -v- XXXXX Bank Plc

 

I write in relation to the matters as detailed on my N1 and my Particulars of Claim.

 

I am aware of the recent directions given by Lord Justice Moore-Bick to Designated Civil Judges on the issue of how to manage live Bank Charges cases. It is understood that he considers that in most cases it would be appropriate to stay proceedings pending a decision of the OFT action."

 

I respectfully request that should the defendant apply for a stay in this case that this should not be granted. This is upon the contention, that as the central focus and grounds for the OFT’s case is to determine whether or not the charges are subject to the test of reasonableness, as required under the Unfair Terms in Consumer Contracts Regulations (UTCCR 99), then it is not of any consequence to the basis of my claim in this case.

 

As a Business account claimant my claim does not include any reference to nor make any reliance upon the UTCCR. As such, it would serve no purpose to delay proceedings in order to await the outcome of a case that would have no bearing or relevance upon this case.

 

As such I respectfully request that any application for a stay be declined so that this case may proceed without further delay.

 

 

Yours faithfully

 

I will also pass this by my lawyer friend and put her back into the DJ's chair and see weather or not she would either hear the case or agree to a 'Stay' BUT her comments to me was that in the light of the "Public Policy Element" she may actually grant a Stay - her reason were as follows: "I might - just - allow the Stay on the grounds that up until now all courts have been inundated with bank claims and now with the OFT case under way; I suspect that if I set the Stay aside then everyone else would be ignoring the OFT 'test' case & and adopt 'our' approach and that this may not be in the best interest of the courts - not withstanding the different reliance on legislation"

 

Remember that no actual case has been 'won' at court, OK we use the words won cos peeps have had their money refunded mainly due to the fact that up until now the banks lawyers have not actually defended the case but have settled beforehand; and in the cases lost, this has been either badly prepared cases, or in two cases the claimants have said they - were not in breach of the contract - which fortunately PM's POC now clearly states we WERE in breach of contract.

 

:)

[hsbcfiddled]

subscribing

[lancasterchelsea]

is it worth trying to remove the stays on my 3 business claims

all partnership accounts not limited. My local court is applying stays to all claims.

[JGJ]

The stays are they the one month or the "Awaiting for the outcome of test case type?? Business claims surely are not subject to the result of test case as we rely on common law, Battle on, D.Js. have to decide on individual cases presented to them at their court/our court, do not be deterred by mis-information being circulated by the Banks/Solicitors;)

[PeterAnderson]

lancasterchealse - have a look on this forum (not too many pages from the end) and you will see a really good layout from photoman on removal of a stay for business accounts

[lancasterchelsea]

thanks Peter...... is it in this thread "claiming on a business account"

what post no. please

[PeterAnderson]

Here yer go

 

This is photmans letter I forgot the post No but somewhere around page 27

 

 

Dear Sir/Madam

 

You -v- XXXXX Bank Plc

Claim Number: *******

 

I write in relation to the matters as detailed above, and specifically the order of a stay in proceedings made by district judge XXXXX on **/**/**.

The basis upon which a stay has been granted is with regards to awaiting the outcome of the ongoing "test case" currently being taken by the OFT against several banks.

I respectfully request that this stay be lifted. This is upon the contention, that as the central focus and grounds for the OFT’s case is to determine whether or not the charges are subject to the test of reasonableness, as required under the Unfair Terms in Consumer Contracts Regulations (UTCCR 99), then it is not of any consequence to the basis of my claim in this case.

 

As a Business account claimant my claim did not include any reference to nor make any reliance upon the UTCCR. As such, it would serve no purpose to delay proceedings in order to await the outcome of a case that would have no bearing or relevance upon this case.

 

As such I respectfully request that the current stay be lifted so that this case may proceed without further delay.

 

Yours faithfully

 

[PeterAnderson]

Penman - I need your advice on the POC please

 

This is the extract from your POC

 

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.

 

Was this from the OFT Statement ? Or through your extensive research did you find bits & bobs elsewhere.

 

The reason I ask is that this extract was posted by elsinore:-

 

From the OFT report 5th April 2006

Implications for other standard default charges to consumers

1. 5.14 The broad principles set out in this statement are likely to be relevant to other default charges in standard agreements with consumers, such as those for mortgages, store cards and bank accounts. We expect the banks and other finance businesses to consider the wider implications of these principles, and to bring any similar charges they impose for breach of contract into line with them, where and as appropriate bearing in mind the different legal and practical contexts in which they operate. If appropriate steps are not taken within a reasonable timescale, further regulatory investigation of the position can be expected.

 

And I am just wondering if it is worth including the whole wording of the above and then altering your wording slightly to remove any duplicated bits

 

Just a thought

[JGJ]

Has anyone had the misfortune of an offer from the banks being used to offset liability against BUS. loans or overdraft arrears, would love to hear from someone who has experienced this and how in fact to manage/handle the offer??.

[frenchconnection]

Hi everyone

 

Im claiming against Lloyds have my own thread but thought i would mention that today after waiting since the 31st of May 2007 for a court date or something from the court, Today Ive finally received a letter from the court it reads:-

 

xxxxxxx -v- Lloyds TSB Bank plc

 

District Judge xxxxxxx has requested I enquire whether you have any objection to the above mentioned action being stayed pending the outcome of the Office of Fair Trading test case.

 

 

 

Anyone seen a letter like this before?

 

Ive seen a letter to the court on this thread, wonder if this will be ok for me to send. Also Lloyds defended my case as if I was a personal account. I wonder if I should point this out to the judge?

 

thanks

 

sue

[JGJ]

FRENCHCONNECTION, you must read the thread from GARYH (MOD) on the subject A.Qs. and stays and strike out thread before you go any further;)

[frenchconnection]

OK thank you very much i will have a look at that

 

cheers

 

sue