Claiming on a Business account? Lets join forces?

[steven4064]

Hi need some help please, filed a claim against HSBC for a business acc (sole trader), got a letter from DG solicitors his morning saying they will be applying for a stay waiting the outcome of the OFT case.

 

Now i know they cant really stay the case but is there anyway i can ask the court to refuse any requests for a stay before HSBC do file.?

 

Thanks

 

Sytra

Write to the court and attach a copy of the letter from HSBC. Tell the court all the reasons why the OFT case is irrelevant to business claims. Hopefully that will pre-empt the court unthinkingly aquiescing to HSBC's request.

[sytra]

Thankyou for your advice, letter being handed into court today

 

Sytra

[BankLover_not]

Thanks Guys,

 

Much appreciated for the above advice.

 

BankLover_not

[steven4064]

Thankyou for your advice, letter being handed into court today

 

Sytra

Sytra, please can you start your own thread so that advice to you and to BankLover_not don't get confused.

[crugga]

Right I sent off my reclaim for my personal account at the same time as my business account, even in the same envelope. I recieved a letter about the personal account saying its on hold but recieved one about the business account saying they wont be refunding me and the charges are fair for the service etc. So second letter I guess. What do we think my chances of Lloyds coughing up are? or are they likely to take it as far as court?. Also where do I stand with the ombudsman?

 

Also reading the letter there informing me some certain acts dont apply to me, ive uploaded copies of the letter here, sorry there with a digital camera so not the greatest but readable. Anyone got any advice?

[crugga]

[steven4064]

I like the bit where it says "I do hope you can see why I can't agree to refund or cancel your charges" - bless

[photoman]

Crugga

 

IDENTICAL letter.... word for word as my own (and many others) initial letters from Lloyds.

 

Continue with your own time-scale as you have relayed in your initial letter to them.

 

Send you LBA.

 

Then, file your claim POC.

 

And one of two things will happen (possibly even both):

 

1/ They will file a reply to your POC (their defence), which you can post up (removing personally identifiable info) on this thread if you want some help in composing your "reply to Defence".

 

2/ They will apply for a stay.

Post up the application, and we can help you get it removed..... which (bearing in mind that they themselves have actually very generously pointed out that the UTCCR do not apply to Business accounts), means that if they apply for a stay based upon awaiting outcome of the UTCCR biased OFT case, you should have a pretty good chance of lifting.

 

The initial letters are always a bit more scary first time round, until you realise that they are just standard forms.

 

Do not be phased or intimidated.

Carry on as per normal.

 

Best regards

 

PM

[Goldlady]

LTSB refunded our charges but we had them by the short and curlies as we owed them the same amount:D.

[andrew1]

Crugga, you will also notice as well as pointing out that you do not qualify under the UTCC's in your letter as you are a 'business customer' they mention sending the £10 fee for your statements. Now they also mention the 40 days. That my friend relates to SUBJECT ACCESS REQUESTS which are not for businesses at all they are for 'Subject (Data Subjects - YOU) not your company and if they offer to supply all your statements if you need them for £10 as a business then I'd snap it up as they usually charge at least £5 a statement to a business customer.

 

I'd also remind them that you are not claiming under the UTCC's anyway, you are claiming under the common law principles dating back to the Magna Carta that you cannot charge a penalty if it exceeds their liquidated loss. Since they do not wish to disclose their liquidated loss they have acted unlawfully and you'll continue to sue them unless of course they'd rather pay up now. Slap in your N1 !

 

 

Sarah

[crugga]

Right cheers everyone. Forward we go.

[hsbcfiddled]

I have notification that HSBC have informed DG to accept proceedings from me.

It is my intention to commence proceedings on Monday.

Can anyone forward a template for a business account - POC that is for a claim beyond six years please?

[photoman]

I have notification that HSBC have informed DG to accept proceedings from me.

It is my intention to commence proceedings on Monday.

Can anyone forward a template for a business account - POC that is for a claim beyond six years please?

hsbc

I'll try to post something early next week. I'm away at mo. remind me if not posted by monday evening. I believe CAG are working on new business POC's sometime soon too.

regards PM

[photoman]

hsbcfiddled

 

Here is a sample POC for a Business account claim.

 

It is similar to one that I successfully used against Lloyds, but with some recent modifications to try to pre-empt the possibility of a stay being applied for/ granted.

With regards section 32. As I say, this was for Lloyds who at the time of the charges presented them to myself as pertaining to "additional costs" incurred in dealing with the returned items/overdraft excesses.

If you are intending to plead section 32 in order to extend your claim beyond 6 years, then you ought to check just how such charges were presented to you at the time. If they were presented as "services", "fees" etc, then you may need to modify how you present this

 

...... hopefully someone with experience of dealing with HSBC will be able to add to this ? Any takers ?

 

 

Anyway, here goes.

This POC is offered to yourself (and any others) without prejudice, and I cannot be held responsible for any consequences or losses arising from use of it (or any part of).

 

PM

 

 

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

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

 

 

NOTE:

 

This POC was composed a short while back, and was composed by modifying and adding to the CAG consumer account templates in use at the time (ie; references to consumer law and legislation removed, and some further law and legislation only relevant to Business claims added.

Although, I do still stand by it and believe it still absolutely perfectly adequate, and will certainly do the job, there have been some changes to Consumer account POC's on CAG in the meantime.

I believe that CAG may be considering working upon some "Business" account POC's that reflect the changes made to their consumer POC's.

 

If anybody is interested in collaborating in working upon some new Business account claim POC's, then please send me a PM, and we can do so. I'll also speak to some of the mods/ site helpers who may be interested in helping out.

[hsbcfiddled]

Thanks Photoman,

 

I am going to go for Compounded interest at the Unauthorised overdraft rate of today being 28.2 %- any suggestions as to how this should be included please.

 

Also this is beyond six year claim- I have been paid for post six year on this account plus compounded interest at 14,8%.

 

Regards

Fiddled

[GuidoT]

I know that you have not asked this, but this is a very risky proposition indeed, CI and pre 6 years charges only. These are grey areas.

 

Although I do not know the values, once you start applying CI to old charges considerable interest accrues.

 

Therefore, you are likely to be allocated to the fast track (or even Multi). If this is the case are you aware of your cost risks exposure, if you loose can you afford to foot the legal costs of the other side of say £5K?

 

Do you have a thread on this that you could link me too, I have some CI words somewhere.

 

I do not think what you are doing is hopeless, you just need to be aware of the risks. I did manage to obtain CI and 11 years charges but my claim was for under £5K against the Lloyds in the good old days where you could not really lose.

[JOSH_IOU]

Sorry to confuse matter's But if The business is a limited company then that company is an entity in its own right.

[hsbcfiddled]

Jamesrap- Sole trader not LTD

 

GuidoT- Charges between !995 and 2001 totalling £7k plus and with compounded interest equals £70k plus.

 

Swines also took over £8k in interest at the same time.

 

Recently had £400+ charges and £100+ subsequent interest = total £500+ and Over £1k compounded interest post 2001 on same account.

I would argue that Compounded has been paid post 6 years therefore should apply pre 6 years????? Do you think?

[photoman]

Thanks Photoman,

 

I am going to go for Compounded interest at the Unauthorised overdraft rate of today being 28.2 %- any suggestions as to how this should be included please.

 

Also this is beyond six year claim- I have been paid for post six year on this account plus compounded interest at 14,8%.

 

Regards

Fiddled

 

 

Agree with GuidoT;

Although not hopeless, a pre 6 years with Ci claim is a lot more difficult, and carries greater risks.

There are however certain benefits when it comes to responding to the standard "defence"() offered by banks if you are a Business account claimant. For example: their claims regards "free" banking are easily dismissed, as You only need point out, that as a business account holder, you accepted and paid regular charges to your account for most (probably all) transactions, not just those in default.

 

Something you should really ought to look into and clarify at this point though, is the terms of agreement regards your last win.

Do check whether it was in "full and final settlement", and if so, what this actually encompassed. ie; was it just that particular claim, or was it with regards to all claims upon that account per se.

 

For the record, I shall myself be pursuing CI with my own future claims, (as I believe it has solid substance..... and I would have pursued this much harder in my prior case... if only I had found out about and based it upon cases such as Sempra Metals in time).

 

But (as GuidoT says), you should personally weigh up the substantial risks involved, and be committed to spending a great deal of time researching and preparing such a course (take you current friends, social time, and hair, then divide them by four, whilst also multiplying your wrinkles and chest pains by the same factor).

 

You must also be fully aware of the risks involved if you don't do this.

 

Personally, I do have the time, commitment and confidence to pursue such an aim. Plus (hopefully), certain advantages that may safeguard me from some of the risks and grief. This includes; knowing that in the case that I do not win, the only person who could really suffer is myself.

 

However, I would not advocate going this route to everyone, unless you meet the above criteria.

 

PM

[JOSH_IOU]

Jamesrap- Sole trader not LTD

 

GuidoT- Charges between !995 and 2001 totalling £7k plus and with compounded interest equals £70k plus.

 

Swines also took over £8k in interest at the same time.

 

Recently had £400+ charges and £100+ subsequent interest = total £500+ and Over £1k compounded interest post 2001 on same account.

I would argue that Compounded has been paid post 6 years therefore should apply pre 6 years????? Do you think?

 

good gawd wish i could get away with that.

[JOSH_IOU]

wonder why no one asks for the interest they make off the charges?

[steven4064]

wonder why no one asks for the interest they make off the charges?

Some people do and some people get it (but, as Guido says, it is a bit of a grey area - less so now, actually).

[GuidoT]

I am too slow this is a response to post 994.

 

If they previously paid it, it will be on a without prejudice, gesture of goodwill, on the basis of proportionality and all that palaver and therefore cannot be used as a basis for reclaiming forwards.

 

I would strongly advise against a claim comprising of £63K of interest.

 

Do you have a thread on this claim?

[steven4064]

I would strongly advise against a claim comprising of £63K of interest.

Despite what I said in my previous post, I wholly agree with this.

[photoman]

Agree with GuidoT;

Although not hopeless, a pre 6 years with Ci claim is a lot more difficult, and carries greater risks.

There are however certain benefits when it comes to responding to the standard "defence"() offered by banks if you are a Business account claimant. For example: their claims regards "free" banking are easily dismissed, as You only need point out, that as a business account holder, you accepted and paid regular charges to your account for most (probably all) transactions, not just those in default.

 

Something you should really ought to look into and clarify at this point though, is the terms of agreement regards your last win.

Do check whether it was in "full and final settlement", and if so, what this actually encompassed. ie; was it just that particular claim, or was it with regards to all claims upon that account per se.

 

For the record, I shall myself be pursuing CI with my own future claims, (as I believe it has solid substance..... and I would have pursued this much harder in my prior case... if only I had found out about and based it upon cases such as Sempra Metals in time).

 

But (as GuidoT says), you should personally weigh up the substantial risks involved, and be committed to spending a great deal of time researching and preparing such a course (take you current friends, social time, and hair, then divide them by four, whilst also multiplying your wrinkles and chest pains by the same factor).

 

You must also be fully aware of the risks involved if you don't do this.

 

Personally, I do have the time, commitment and confidence to pursue such an aim. Plus (hopefully), certain advantages that may safeguard me from some of the risks and grief. This includes; knowing that in the case that I do not win, the only person who could really suffer is myself.

 

However, I would not advocate going this route to everyone, unless you meet the above criteria.

 

PM

 

Just bumping this, as I was composing it whilst others were in process of responding.