Claiming on a Business account? Lets join forces?

[GuidoT]

PM, on the CI front this very recent case may be of interest, I have not quite dissected it myself yet.

[JOSH_IOU]

Banks make 63k off a £35 charge? are we getting thread's crossed?

[steven4064]

Like photoman I am claiming CI based on Sempra in my claim against Goldfish. However, the total claim is

[photoman]

Okay,

 

Firstly, I don't think hsbcfiddled is actually talking about the calculation of£63k in interest as arising from a single long ago taken £35 charge.

So, even if such a sum is actually calculated and based upon a more substantial amount of charges taken, the figure does still instantly seem astronomical.

 

But then, consider and bear in mind, that this viewpoint is mostly influenced by our own day to day personal experiences of how interest actually seems to work for common folk in practice.

And this is normally just limited to acquiring a small % return upon our own savings. So, had we ourselves had access to the same sums taken instead, we just cannot envisage how anyone could actually achieve such monumental returns.

So we naturally make comparisons to our experiences.

 

However; given enough time, capital, specialized know how, and decent rates of compounded interest over a significant period, it is feasible in theory, for someone/some business to turn what are originally quite small amounts into a very substantial gain.

 

Banks DO have all of the above, and it's their core business, so let us presume this really has been the case, and they really have made such sums.

Then, by applying CCI to a claim, what we would then be seeking is a form of restitution.

Not to be confused by any issues of seeking recompense for our own potential losses (ie; through our own loss of use of the sums), which could easily just be considered a claim for damages. But rather, being applied as an attempt at stripping them of their own most likely gains ie; a removal of their enrichment, had through the Time Value use of sums taken from and conceded to by ourselves, whilst acting under mistake (which also ties in nicely with sec 32).

 

This is all where the ruling in Sempra was very significant, and is an absolute study must for anyone considering such arguments.

 

 

Having now said all that, I don't think we should turn this into a Ci discussion thread.

 

I think the topic has been substantially covered elsewhere, and those who wish to investigate or pursue such ideas further, can seek out relevant threads, or go ahead and start further discussion threads on the subject.

 

So lets now please limit any further comments on the subject to one more post apiece (but do feel free to post within it links to existing or new threads on the topic), and then respond to and discuss it all elsewhere.

 

Lets then please keep this thread to the topic at hand.

 

Business claims.

 

 

PM

[steven4064]

Lets then please keep this thread to the topic at hand.

 

Business claims.

Quite right.

 

 

 

For those interested, CI stuff can be found here and here and in quite a few other places

[hsbcfiddled]

Hi Folks,

 

Thanks for all the replies, sorry I haven’t replied until now.

I have 5 children and last night I got mugged off the pc.

 

I will try to explain why I consider I am just in claiming £63k interest.

 

My threads are;

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78466-hsbcfiddled-hsbc-help-please.html

 

and

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78205-hsbc-business-account-closed.html

 

There are other threads

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/77661-hi-advice-please-loan.html

 

However a short explanation:

 

Business account- details supplied from accountant- During the period 1994 – 2001 HSBC took £8700 (I have exact figures for last two years and I am estimating 15% would apply to previous years) in charges roughly 15% would be account fees therefore £7400 is unlawful figures.

 

During the same period HSBC took £6500 in bank interest, and £3500 in loan interest.

 

Ceased trading and working as self employed 2001- business account still open whilst I tried to pay off debts at £250 plus per month.

 

September 2003 business closed – received refund payment of £1600+ recently for period 2001 -2003.

 

Personal account- opened 2001 Charges to date £9000+

 

However as a result of Business account debt being carried into personal account I got put on a Managed Loan – paid £10k on it then CCA’ed them for agreement – no agreement so no more payments made- ML is a dodo!- But they still have had £10k.

 

To summarise-

If HSBC hadn’t taken £7400 in unlawful charges there wouldnt have been bank interest of £6500 and definitely not loan interest of £3500.

Then there is the £10k in ML payments.

That’s roughly £27k that doesn’t belong to them.

 

Then when they put me on the ML they took away our overdraft and credit card and my average of £28 in charges per month went up to £280 per month.

With 5 kids we had to go to other credit suppliers who charged exorbitant rates of interest and it has cost us thousands- estimate £10k.

 

Now if I had that £37k I could have invested more money into my company pension for when I retire.

 

Also who has had the use of my monies these last 12 years?

Who has made profits-massive profits with yours and MY MONEY?

 

Thoughts please?

 

Hsbcfiddled – fiddled I thought was more polite than hsbcshafted!

[hsbcfiddled]

PM.

 

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.

 

Oh dont you worry - the condition of acceptance was the 'peroid of claim 2001 May - Sept 2003'

I am a strong character and love a 'Good fight' so to speak - or whatever.

fiddled.

[hsbcfiddled]

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

 

 

Thats the whole point - it is your money that they made their massive profits with.

 

What if someone stole £10 from you and bought a lottery ticket with that money- then they win the lottery jackpot of £10,000,000.00 would you be happy when they gave you your £10 back?

 

fiddled

[andrew1]

Thats the whole point - it is your money that they made their massive profits with.

 

What if someone stole £10 from you and bought a lottery ticket with that money- then they win the lottery jackpot of £10,000,000.00 would you be happy when they gave you your £10 back?

 

fiddled

 

Don't they refer to that as 'unjust enrichment'?

[photoman]

Oh yes indeedy !!

 

Not only are a lot of us subjected to the original charges, (and account interest thereon)...... we are then later subjected to further interest upon loan accounts to repay these initial charges (and interest thereon).....AND we are also subjected to additional interest upon the account that the loan repayments come from.

It becomes a right old jacobs ladder, and before you know it, a charge of say £35, has soon spiralled into your owing and paying out to them £100's !!

 

I have tried to raise this issue into a more general awareness before, and there is a link in my signature to a thread I started upon the issue.

I would be very happy if this could be revived, as it is an issue that is often overlooked (perhaps because of the complexity in calculating it all).

 

I for one am attempting to calculate ALL their subsequent gains from the initial charges, and in my next claims I will certainly be submitting a claim for such.

I must say though, that it is not an easy task, and involves calculating interest upon interest upon interest etc.

Anyone else interested in doing the same, please visit my other thread, leave some comments, and perhaps we can pool our knowledge and make some inroads into making such complete calculations more a matter of course for most claims.

 

PM

[hsbcfiddled]

PM...Going back to the POC you kindly posted for me could i try for the unauthorised overdraft interest rate at 9.9% above the bank of England base rate which i believe is 18.3% = 28.2%?

 

or CI at 14.8% APR as applied to me in a ML?

 

and leave it to the Court to decide?

 

fiddled

[steven4064]

Bank of England base rate is 5.5% (5/2/08 )

[hsbcfiddled]

I was told yesterday by a HSBC employee that the basic rate for an unauthorised overdraft on a business account was 18.3% and that a poorly managed or if consistent exceeding of an overdraft occurred then the rate could have up to 9.9% loading on to the 18.3% resulting in 28.2% interest applied.

 

Below is an extract that I have 'edited out' details of source.

 

 

Authorised overdraft interest rates

 

Over a third (35%) of those who said that they did know their authorised overdraft rate think they pay only 5% interest on their overdraft - cheaper than the most competitive personal loan rate on the market. A further 32% think they pay between 5-10%.

In reality analysis shows banks charge on average 12.35% for an authorised overdraft plus - but this was only cited by 12% of respondents - 1.7 million people - as the rate they think they are being charged.

Unauthorised overdraft interest rates

 

The study also revealed that many people are ill informed about the cost of going overdrawn without permission. ‘EDITED’ says that while the average unauthorised overdraft rate is a hefty 25.62%, some 11% (or 5.2 million people) believe that they are charged at 10% or less.

Unauthorised overdraft fees

 

Some 18 million people (41%) also admitted to being completely unaware of the charge their bank levies if they exceed their overdraft limit. One in seven of these (14%) had made a successful claim for a refund of charges against their bank yet still didn't know. A further 5.5 million people (13%) think they are being charged less than £20, but with the typical charge around £28 they are probably mistaken.

Makes interesting reading- Yes?

[hsbcfiddled]

Just found this;

sourced from a link via the British Bankers Association.

 

Full Account Details

 

HSBC

0845 740 4142

Account Name

Business Direct Account

 

 

 

 

Open To:

Sole Traders, Partnerships, Limited Companies,

Requirements:

Turnover under £500K

 

 

 

 

 

Account Name

Business Direct Account

 

 

 

 

Open To:

Sole Traders, Partnerships, Limited Companies,

Requirements:

Turnover under £500K

 

INTRODUCTORY OFFER

New businesses with a projected turnover under £500K receive 18 months' free banking. New businesses with a projected turnover between £500K and £1m receive 12 months' free banking. Businesses transferring from other banks with a turnover under £500K receive 18 months' free banking on accounts opened before 11.11.07

 

 

BORROWING

 

Authorised overdrafts:

 

%pm:

Negotiable

%EAR:

Negotiable

Arrangement fee:

Tiered r

Unauthorised overdrafts:

 

%pm: 2.09% pm% v

%EAR: 28.2%% v

Extra fee:

£8 per working day v

Unauthorised overdraft letter:

Free

[hsbcfiddled]

PM...Going back to the POC you kindly posted for me could i try for the unauthorised overdraft interest rate at 9.9% above the bank of England base rate which i believe is 18.3% = 28.2%?

 

or CI at 14.8% APR as applied to me in a ML?

 

and leave it to the Court to decide?

 

fiddled

 

 

bump

[photoman]

bump

 

hsbc

 

The POC I posted does not cover the pleadings, reasonings, and case law you would require if you decide to apply for interest in such a manner.

Applying for interest at rates other than statutory is more controversial, and untested.

If you plan to apply for such rates, you really really must have a good understanding of the principles and reasonings for applying for such, rather than just copy and paste some paragraphs into a POC.

For those reasons, it would do you more good to start researching and looking into the reasonings and arguments for yourself, and then to compose your own sections to add into the relevant parts of the POC I've posted.

 

For those reasons (and the fact that my own POC dealing with such is still in construction), I cannot provide you with the paragraphs you would need.

 

 

So, research away, and start composing some paragraphs to deal with such areas.

Then, feel free to then post up on this (or other threads dealing with that area of law), and I (and I'm sure others) will comment and help all we can.

 

PM

[hsbcfiddled]

Thanks photoman,

 

I have adjusted your POC and added to it.

 

 

Particulars of Claim:

 

1.The Claimant had a Business Bank account with HSBC (branch sort code xx-xx-xx) with the Defendant, between the periods of xx/xx/1994 and xx/xx/2003 which was governed by the Defendant’s Banking Terms and Conditions (the contract).

The relationship between the Claimant and Defendant is that of Customer and Banker.

This was held by the House of Lords in Foley v Hill (184 2HL Case 28 to be a relationship of contract).

The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

The Business 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, ‘consume’ 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.

ii. 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/1994 and xx/xx/2003. A list of the charges and interest on the charges is annexed to the Particulars of Claim.

 

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 Compounded interest on the full amounts as detailed in paragraphs 19 & 20.

 

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 has taken sums and regardless of 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 is;

(a) Excessive,

(b) Do not truly reflect the actual costs incurred in dealing with such breaches, and

© Unduly enriches 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 OFT’s 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. In regards to paragraphs 11, 12, 13, & 14 the classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

In the present proceedings the Claimant submitted a demand for payment on 2nd January 2008.

The Claimant sent a letter to the Defendant asking for a refund of the Charges and Debtor Interest then outstanding on the Account.

It follows on from the settled law that the Limitation Act will bite on the Claimant on 2nd January 2014.

 

16. Further evidence supporting the claimant can be found in the Defendants letter to the claimant of 16th January 2008 in which the reasons the defendant rejects the claimants claim are ‘that the defendant has not concealed the charges’.

In the Defendants letter of the 2nd January 2008 to the claimant the defendant advances the submission that the Claimant was aware of the charges and their nature by way of the entries on periodic bank statements.

In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, [1985] 2 All ER 947 PC the Privy Council held that there is no duty on a bank’s customer to check his statements cited at paragraph 11.5 of Paget's Law of Banking.

The Defendant cannot therefore rely on a statement entry to start time running for the purposes of the Limitation Act.

 

17. The Defendant wrote to the Claimant on 14th December 2007 offering to settle the amount claimed in respect of Charges of £402 for the period of July 2001 to November 2001 and £136 in respect of subsequent interest for the period of November 2001 to September 2003 totalling £543 plus £1155 added compounded interest at 14.8% Apr (as has been applied to the claimant by the defendant in Managed loan agreements that contained these charges) totalling £1693. The Claimant accepted the £1693 as settlement for the period of the claims between July 2001 and September 2003 only.

The Defendant therefore unilaterally advanced the sum of £1693 by way of cheque to the claimant without the need for court proceedings.

The Claimant accepted these sums as payment for the period of that claim only.

Consequently on the basis of the term “…or makes any payment…”

Therefore the Claimant has accrued fresh rights under section 29(5) (a) of the Limitation Act 1980 (See below) running from 14th December 2007. (5) Subject to subsection (6) below, where any right of action has accrued to recover--

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

 

18. The defendant by offering payment on 14th December 2007 of refund of charges & subsequent interest between July 2001 and November 2001 has already acquiesced a payment beyond the Statute of Limitations Act 1980.

The payment of £1693 in December 2007 by the defendant to the claimant for charges accrued in July 2001 some 6 years and 5 months earlier.

This would exceed the Statute of Limitations Act 1980 by some 5 months and itself is evidence of the defendant agreeing to overide the Limitations Act1980.

 

19. 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). Plus Compounded interest at 14.8% as has been acquiesced to the claimant by the defendant, which was acceptable as to the defendant by way of the recent payment beyond 6 year Limitations Act 1980.

 

20. In regards to paragraph 18 the claimant refers to HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) [2007] UKHL 34 whereby Sempra Metals Ltd v Inland Revenue where an award of compound interest was necessary to achieve full restitution and, hence, a just result.

Lord Nicholls held that, in the exercise of its common-law restitution jurisdiction, the court had power to make such an award.

 

a). and or plus 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:

 

 

Comments or additions please?

[photoman]

Okay, some comments of my own,

In paragraph 1 you put:

 

 

The relationship between the Claimant and Defendant is that of Customer and Banker.

This was held by the House of Lords in Foley v Hill (184 2HL Case 28 to be a relationship of contract).

The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

 

I don't personally think it is necessary to include this in paragraph 1.

The purpose of paragraph 1 is designed to pre-empt any applications by the defendant for a stay regards the case, and for the court to be made aware in advance of the reasonings that such a stay should not be granted.

You have included pretty much the same statement later in the POC, so I think this makes the POC unnecessarily lengthy, and is not relevant to the purpose of this paragraph. By all means keep this statement in, but contain it to the relevant paragraph.

 

Then in paragraph 16:

 

16. Further evidence supporting the claimant can be found in the Defendants letter to the claimant of 16th January 2008 in which the reasons the defendant rejects the claimants claim are ‘that the defendant has not concealed the charges’.

 

Just how were the charges presented to you?

Did you receive notification letters at the time of the charges, and if so were they presented to you as pertaining to their "costs" incurred in dealing with the matter?

Or were they presented in the letters as being in relation to "charges" or "fees" etc.

If you do not have (or cannot get hold of similar letters from other HSBC Business account customers from the same time), then how did the charges appear on you statements? How were the charges worded?

 

You were most likely aware of the charges at the time, but remember, it is not the fact that the charges were concealed, it is the fact that the "true nature of the charges" was concealed from you. ie; were they presented to you as "costs" (recuperation of their liquidated damages), or were they presented to you as "fees".

In actual fact you are better relying upon the claim that the charges were conceded by yourself whilst acting under mistake. ie; you conceded to the charges by mistake, believing that the defendant was indeed entitled to them, (which was due to the manner that they were presenting them to you).

This argument ties in better if you intend to apply for compounded interest upon the grounds of restitution, using Sempra Metals as case law.

 

At paragraph 19 you have stated the following:

 

c). Plus Compounded interest at 14.8% as has been acquiesced to the claimant by the defendant, which was acceptable as to the defendant by way of the recent payment beyond 6 year Limitations Act 1980.

 

20. In regards to paragraph 18 the claimant refers to HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) [2007] UKHL 34 whereby Sempra Metals Ltd v Inland Revenue where an award of compound interest was necessary to achieve full restitution and, hence, a just result.

 

 

Okay, I think you may be getting a little confused as to what you are applying for here.

Yes, I fully agree that as a matter of course, we should all be applying for a return of all and any subsequent interest conceded to the Bank as a direct or indirect result of the charges.

This includes any portion of subsequent interest you also paid out upon later loans, that were used to repay total borrowing to the bank (borrowing that contained a portion of charges). Therefore, I think this is what you are trying to do, and I'm in agreement with what you are stating here at para 19c.

The way you appear to utilising the ruling in Sempra here, is as a means to call for a restitution of your own subsequent losses (through additional interest paid upon subsequent loans), which can also be seen to be their own corresponding unjust enrichment.

 

However, the judgement in Sempra Metals is more significant than this.

Where Sempra goes further is to call for a total restitution.

 

Sempra recognises the fact that the defendant has had the benefit of ALL the sums taken from you (the charges, the account interest upon the charges, plus the additional interest on the subsequent loans), and has had such sums for a period of time in which to use them and further enrich themselves (eg, by lending that money out to others and then charging and making interest upon it).

Therefore under the principles of restitution, they cannot be permitted to have still gained (been unjustly enriched) from their original unlawful acts.

Thus, they should be made to give up such additional profits.

The fact that you have not "lost" out or you yourself have not paid them these additional unjust gains yourself is by the by.

Thus, you apply to have their own lending rates of interest applied on top of EVERYTHING they have taken from you, stating that if they were not taken from them they would still be left unjustly enriched.

 

An analogy would be,;

Imagine you unlawfully took £100 off me, and then invested it in a savings account, which you earned say £10 on.

If I took you to court to recover the £100, then even though I myself had not given you the extra £10, I could call for the court to also award me that £10, because otherwise after just giving me back my £100, you would still be left £10 up overall.

Thus you would still be left unjustly enriched from you original unlawful act.

 

This is a simplification, and the way it is justified in Sempra is through a principle called Time Value (TV).

 

You really need to read the case thoroughly.

 

 

PM

 

[hsbcfiddled]

PM thanks for the reply.

 

Re; Para 16

 

The point i am trying to make is- HSBC have already paid me a refund of charges on this business account. The initial claim was from July 2001 to Sept 2001 on charges alone.

 

I then made a second claim along similar lines for the tax years 1998 -2001 inclusive. I pointed out to them that if they objected to the claim under the limitations act 1980 that i would argue 'mistake and concealment' using sec32 of limitations act.

 

Hsbc wrote back to me;

I note your comments regarding the provisions of the Limitaion Act 1980 but I do not agree with them.The bank has never attempted to conceal the charges applied to your account which have always been clearly recorded, notice of which you wiill have received by letter or specific detail on your statements. For this reason, I do not consider that there has been a concealment, deliberate or otherwise, on the part of the bank.

You have submitted a further schedule with your letter representing transactions being unpaid items for the period 1998-2001 inc.

This claim is rejected , for the reasons stated above, and please be guided accordingly.

 

I wrote back stating that the concealment was the 'whole crux' of the refund cases. The concealment being that the charges have not been justified, or accountable as to the actual cost of the bank granting/refusing the payment transaction that we have been charged for.

 

If the only reason that the claim is rejected was 'no concealment' then there is no case for the bank to refuse going beyond six years because the concealment has been proved by their earlier offer of payment which incidently goes back beyond the Limitation Act 1980 that they are trying to hide behind.

 

 

Does this make sense?

 

I think I know what i want to say/argue but I am not that good at placing it in the correct sequence.

 

fiddled

[steven4064]

The bank are right - they have never concealed their charges. They have, however, concealed the NATURE of their charges, ie that they are really penalties. They have always claimed they are charges for a service but we know (now) that they are just there to make a profit.

 

Furthermore, because you didn't know this at the time, you paid the charges thinking they were lawful when in fact they were not - in other words, you made a mistake. Recovery from a mistake is also covered by s32 of the Limitations Act 1980.

[photoman]

HSBC

 

Okay, it appears they are trying to throw you a red herring here, by pretending to misunderstand what is actually being alleged regards "concealment".

They probably never did actually conceal the charges.

They sent you letters regards them at the time, and probably also listed them on your statements.

 

But, what you are actually really pleading with regards concealment, is that the "true nature" of the charges was concealed.

Either:

They were presented as a legit recuperation of their "costs" (otherwise termed as "liquidated damages") involved with dealing with your breaches of contract..... whereas in actual fact they were really unlawful "penalties", but just presented to you and "disguised" or "cloaked" as "costs". ie: concealment.

 

Or, on the other hand, if they were actually presented to you as "fees" or "service charges". Then in such circumstances, one need's to ask them what "services" were provided, and to what benefit they were to you.... and if they then fail to do so, then cloaking or concealment is evidently still occurring. Concealment again.

 

This is why I asked, and it is important to determine how the charges were presented to you.

To be honest, I have only dealt with Lloyds, and in my own particular case the concealment was very easy to prove. I actually had sample letters which clearly stated that the "charges occurred as a result of their need to recuperate their extra costs involved in dealing with the matter"..... yet despite my subsequent requests, they still failed (or refused) to provide evidence or a breakdown of such costs.

I have had no direct dealings with HSBC, so without knowing how they actually presented these charges at the time, I cannot advise how to deal with their response.

Hopefully some others viewing this thread, who've dealt with HSBC will.

 

But it would still help if you could post some examples of how any letters you received at the time were phrased (or even just how they were listed on statements) ?

 

PM

 

PS: regards the rest of my earlier response, does it make sense ?

[photoman]

In fact, actually I would forget trying to use any past settlement, and the fact that any of it crossed over into pre 6 years, as your last settlement was probably given "without prejudice".

This means that it cannot be used as evidence of any admission on their behalf, so cannot be used as evidence of the fact that they consider the pre 6 years charges had any merit.

 

Just use the straightforward concealment angle, and do not over complicate matters by trying to bring past cases into the equation.

 

PM

[gaz2006]

HSBC

 

Okay, it appears they are trying to throw you a red herring here, by pretending to misunderstand what is actually being alleged regards "concealment".

They probably never did actually conceal the charges.

They sent you letters regards them at the time, and probably also listed them on your statements.

 

But, what you are actually really pleading with regards concealment, is that the "true nature" of the charges was concealed.

Either:

They were presented as a legit recuperation of their "costs" (otherwise termed as "liquidated damages") involved with dealing with your breaches of contract..... whereas in actual fact they were really unlawful "penalties", but just presented to you and "disguised" or "cloaked" as "costs". ie: concealment.

 

Or, on the other hand, if they were actually presented to you as "fees" or "service charges". Then in such circumstances, one need's to ask them what "services" were provided, and to what benefit they were to you.... and if they then fail to do so, then cloaking or concealment is evidently still occurring. Concealment again.

 

This is why I asked, and it is important to determine how the charges were presented to you.

To be honest, I have only dealt with Lloyds, and in my own particular case the concealment was very easy to prove. I actually had sample letters which clearly stated that the "charges occurred as a result of their need to recuperate their extra costs involved in dealing with the matter"..... yet despite my subsequent requests, they still failed (or refused) to provide evidence or a breakdown of such costs.

I have had no direct dealings with HSBC, so without knowing how they actually presented these charges at the time, I cannot advise how to deal with their response.

Hopefully some others viewing this thread, who've dealt with HSBC will.

 

But it would still help if you could post some examples of how any letters you received at the time were phrased (or even just how they were listed on statements) ?

 

PM

 

PS: regards the rest of my earlier response, does it make sense ?

 

Hi Is there any chance I can have copy of these letters you refer to etc "actually had sample letters which clearly stated that the "charges occurred as a result of their need to recuperate their extra costs involved in dealing with the matter"..... " as this wiill help me in case Im dealing with can you send me link thread or pm me please ? regards Gaz

[hsbcfiddled]

Thanks PM & Steven for your responses.

 

PM asks - Does it makes sense? Im struggling sorry.

 

I dont have any letters i am afraid- but then dont ever remember any being sent.

 

Charges appear on statements as -

Charge Unpaid Item

Charge recall S/O - D/D

 

 

You are quite right it does say 'Without Prejudice'

 

However i do have another letter dated 03/01/2008 from another branch of HSBC stating- We have recieved a payment of £1693 from HSBC- refund of charges paid into your account number XXXXXXX.

We enclose cheque for £1693 which we are unaable to apply as the account XXXXX is closed.

 

This letter does not state 'Without prejudice' and is evidence of refund of charges from the account over the 6 year limitation.--Is this any use?

[photoman]

Okay,

 

Gaz2954

 

Here is a sample letter from Lloyds which clearly presents the charge as being in relation to a recuperation of their "costs"

 

DO BEAR IN MIND (AND THIS APPLIES TO ANYONE INTENDING TO USE THIS). THIS APPLIES TO A BUSINESS ACCOUNT.

IT SHOULD NOT BE USED IN RELATION TO A PERSONAL ACCOUNT.

 

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