Claiming on a Business account? Lets join forces?

[andrew1]

misposted - sorry...

[groovycaz]

Hi all,

im a little worried about my case, ive been reading about bbch66 and how the bank showed something to the DJ about Roman 1.4 etc, ive looked for hrs and cant find any reference to it, I dont want to put 2-3 days work in getting 3 bundles together, to get to court and some reference I know nothing about stops my case from going ahead. I cant understand the lack of communication from the Co-op, the last we heard from them, they requested a pre lim to argue the limitation act, they will by now have recieved the order from the court which is for a 2 hour hearing on the 12 Dec, Im well up to date with the limitation issue and got laws relating to penalty fees etc, but still got letter of evidence and whitness statement etc, Els, do you think i should write to the bank and ask if they are willing to negotiate a settlement before we go to court? I just wish Id heard something from them so no nasty supprises, Im sorry bur I think im going to need a little help with this one:eek: ..Gc

[elsinore]

Hi GC.

 

I agree with Castlebest's reply on your own thread.

 

Contacting the sol's will be taken as a weakness. Now is not the time to blink. The nearer you get to the hearing date, the more likely it is that you will recieve an offer to settle.

 

Don't worry about bbch66's case, it was a different bank, different court, different judge and bbch lost her application for the stay to be lifted, whereas you won yours!

 

Els:)

[BankLover_not]

Hi Guys,

 

I hope you don't mind me asking this here but can you tell me is the address to send LBA's for refund of PPI the same address as it is for refund of bank charges. I'm trying to reclaim back my PPI on a loan I took out from Lloyds TSB in 2003. I have typed up the letter but don't really know where to send it.

 

Many Thanks.

 

BankLover_not

[lancasterchelsea]

MY BUSINESS RBS STAY HAS BEEN LIFTED !!!!!

 

My local court has set prelim hearing for 3rd Jan..... to see if issues can be narrowed ???? and for court to give directions as to filing of stratements, fix length of hearing and choose track

[photoman]

MY BUSINESS RBS STAY HAS BEEN LIFTED !!!!!

 

My local court has set prelim hearing for 3rd Jan..... to see if issues can be narrowed ???? and for court to give directions as to filing of stratements, fix length of hearing and choose track

 

Well done !!

 

But you better not go out and get too drunk on New Years eve.... don't want 3 day hangover:-D

[photoman]

Hi Guys,

 

I hope you don't mind me asking this here but can you tell me is the address to send LBA's for refund of PPI the same address as it is for refund of bank charges. I'm trying to reclaim back my PPI on a loan I took out from Lloyds TSB in 2003. I have typed up the letter but don't really know where to send it.

 

Many Thanks.

 

BankLover_not

 

I would suggest you send it to the registered address at Gresham st as per normal. It'll find it's way to the relevant people.

 

PM

[lancasterchelsea]

I've forgotten what happens at this prelim hearing

It's been ages since I looked at any of my claims (since OFT malarki)

 

what haappens now, and what will RBS do ????

 

not much RBS business activity on threads at moment

[Goldlady]

RBS is same bank as Natwest is it not? Natwest refunded our business account charges last week - post earlier on this thread I think. You might find that they will settle before 3 Jan - maybe a little reminder in their direction? When we submitted our LBA to Natwest they said they would respond in 8 weeks - well they managed 8 weeks and 1 day and the refund was paid four days later.

[lancasterchelsea]

that sounds encouraging

 

I will get my 2 Natwest business claims restarted as well

I stopped them before I paid fees following OFT announcement

[andrew1]

Has anyone had any dealings with AIB Irish bank on the business claims?

[gaz2006]

Can anyone guide me to new POc for Lloyds Business claims cant see one Regards Gaz

[steven4064]

There aren't new PoCs specifically for business claims. Use the ordinary one but drop any reference to the UTCCR1999 (and change paragraph numbers accordingly).

[photoman]

You could consider this?

 

It is for a business claim, with an addition to paragraph 1 to pre-empt the possability of a stay being declared. Hopefully this could then relieve you of the hassle of dealing with applying to have a stay removed.

The bits in red are the latest addition, so it is upto yourself whether you wish to include them or not.

This is experimental and has not been tried yet, so no liability accepted by myself if anyone chooses to use it.

 

However in my opinion I do not see anything wrong with it.

 

Perhaps others would like to comment ?

 

 

PM

 

 

(ps; This also contains paragraphs to deal with a claim that includes charges before 6 years. That bit has been actually tried sucessfully. If you do not have charges older than 6 years, then you can remove the relevant sections, and alter your paragraph numbers and any references to them etc)

 

 

 

 

Particulars of Claim:

 

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 past, current or pending) that were or are otherwise reliant upon UTCCR99 by way of any attempt or excuse to delay any compliance with any timetables set by the court.

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 being 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 upon the conduct or outcome of this case.

Therefore under the overriding objectives of CPR1 the claimant respectfully pleads; that as the OFT’s current case is based upon wholly different particulars, it would be unjust for the court to declare any stay in proceedings if done so based upon awaiting the outcome of the OFT’s current case. Similarly, the claimant respectfully requests that the court should also discount any applications for a stay by the Defendant if made upon similar grounds, and also that they should not be afforded any special considerations by the court if they attempt to delay or waiver their obligations in properly dealing with proceedings in a timely manner.

 

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% per year as prescribed by law under s.69 of the County Courts Act 1984 upon all sums claimed from the date of the first charge until the date of judgement.

 

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

Signed:

 

YOUR NAME

[steven4064]

This is good stuff PM. My only comment is that the 'new' POCs produced for this site have all now dropped any reference to UCTA1977 and SGSA1982 and rely wholey on contract penalty arguments and UTCCR1999. For a busines case this would mean jsut relying on penalty arguements.

 

S4 of the UCTA1977 only applies if you are 'dealing as a consumer'. S12 defines this and it looks like it may apply to business claims in particular circumstances and that bank charges would be covered by them. However, I think there is now some doubt as to whether claiming under this section is useful. perhaps others would like to comment.

[elsinore]

Just in case there were any remaining doubts:

 

From the FSA waiver review, published today

 

"The review has also clarified the status of small business accounts, which are not covered by the waiver. The FSA has agreed with the firms arrangements to ensure small business customers are not disadvantaged"

 

FSA publishes review of 'waiver' on the handling of complaints in relation to unauthorised overdraft charges

 

Els

[tifo]

"The review has also clarified the status of small business accounts, which are not covered by the waiver. The FSA has agreed with the firms arrangements to ensure small business customers are not disadvantaged"

 

That's good, but the main thing is courts will STILL be staying business claims as well and the banks will continue to offer tiny settlement ratios, pushing us into the court or just waiting ...

[elsinore]

I agree, tifo. It's just that, now, you can argue against a stay on your business claim with a little more authority than before (and some are being successful).

 

Els

[groovycaz]

Hi all,

Im in the middle of getting my court bundle together for my Business Claim with the Co-op, ive spent hours looking around for T&Cs for a business account with the Co-op dating back to 1996, no luck, can anyone quide me in the right direction please, my court date is 12 Dec so have to have my bundle ready before the end of the month.. Thank You..Gc

[photoman]

Well done Elsinore.

 

What do you think about including some reference to the FSA's statement in the opening paragraphs of a Business POC?

 

It appears that some courts are automatically staying all claims the moment they notice that they are in relation to bank charges, and perhaps by putting some of my ideas posted a couple of posts earlier, and also some ref to the FSA, we could avoid having to go through the whole rigmarole of applying to have stays removed if applied.

 

Any ideas anyone ?

 

PM

[GuidoT]

Can anyone guide me to new POc for Lloyds Business claims cant see one Regards Gaz

 

There are some POCs for a NatWest business claim here, depending on the service charge or breach of contract position no reason why these cannot be adapted for Lloyds.

[elsinore]

Hi all,

Im in the middle of getting my court bundle together for my Business Claim with the Co-op, ive spent hours looking around for T&Cs for a business account with the Co-op dating back to 1996, no luck, can anyone quide me in the right direction please, my court date is 12 Dec so have to have my bundle ready before the end of the month.. Thank You..Gc

 

Sorry, GC, there's nothing in the document library for the Co-op.

 

I know nothing about Co-op tactics or their lawyers, but you could try contacting them to ask if they will be including a copy of their T & Cs in their bundle. If they say yes, then you will be entitled to ask for and receive a copy from them. If they say no, confirm in writing that they have said so. If they then include them you can object.

 

Otherwise, all I can suggest is posting an appeal in the Co-op forum.

 

Els

[elsinore]

 

What do you think about including some reference to the FSA's statement in the opening paragraphs of a Business POC?

 

 

Hi PM.

 

Yes, I do think it's a good idea. Anything we can do, to ensure that business claims are excluded from all this flim-flam about stays, should be done.

 

I'm sure you can tweak your draft of a few posts back to reflect this latest bit of evidence.

 

Els

[steven4064]

You could try asking for the T&Cs under a CPR Part 18 Request - see here.

Strictly, CPR PArt 18 does not apply to Small Claims Track - sorry, I can't remember how much you claim is for - but can certainly be used tor FT or MT.

[groovycaz]

Hi all,

Today I recieved a letter from the Co-op Solicitors, Ive posted the details on my thread " Business Claim Stayed but with the right to have the order set aside", I would appreciate any comments and advice please..Many Thanks Gc