Claiming on a Business account? Lets join forces?

[scott150663]

Hi everybody-am in process of claiming for both personal (£6758) and business (£11952) accounts with the Bank of Scotland.Heard nothing from Bank re business account despite having sent two letters. Phoned local court today and was told that I would have to consult a solicitor because of the amounts involved. Starting to crap it ! Will the fact that I don't have an overdraft or loan with my business account go against me ?

Any advice much appreciated x

largo

 

 

im claiming £37000 from a business account which is more or less the same process as claiming from a personal account. in my experience so far i would recommend doing it yourself just read lots of threads and make your own decision (the amount u r claiming makes no difference wether its £1000 or £ 40,000

 

regards scott

[Largo]

Thanks Scott

Do you mean by going through the small claims process?

[photoman]

largo

 

 

im claiming £37000 from a business account which is more or less the same process as claiming from a personal account. in my experience so far i would recommend doing it yourself just read lots of threads and make your own decision (the amount u r claiming makes no difference wether its £1000 or £ 40,000

 

regards scott

 

Okay guys just wanted to comment here.

 

The advice of the court that you HAVE to go through a solicitor is not correct. You do not HAVE to, but it is an option, it is up to yourself and worth considering if you feel you need help .

Basically, with larger claims you run the chance that they will get allocated to a larger court than Small claims. The whole principle of small claims is to allow litigants in person to take actions without running the risk of being exposed to costs should you lose. However, in a larger court, Fast track, multi or Mercantile, the losing party is liable for costs, ie legal fees etc. This can be considerable.

When you take a claim through a Solicitors, they will take out something called After The Event insurance (often reffered to as ATE). This is taken out with an insurance co, who basically insure you should you lose, and covers the legal fees. The premium for this is often a % of the total claim amount, but is itself self insured (ie, the premium will be paid itself by the insurance should you lose). If on the other hand you win, then the defendant will have to pay, your claim, the legal fees to your solicitor and also the insurance premium. (PS; ATE is not available to litigants in person)

This may sound like a perfect state of affairs for you, however, the possible drawback is that the Insurance company does then also have a say in whether or not you have to accept any pre-trial offers, ie they are covering themselves from being liable to costs should it go to court instead. In such circumstances, you therefore have to be aware that any pre-trial offers may not be sufficient to also cover any legal expenses, and ATE premium, and the settlement offer could be significantly eaten into by these costs.

Any Solicitors that offer a "No win, No fee" option (otherwise known as a Conditional Fee Agreement or CFA), are basically doing all the above. But you do need to take care about what the definition of "win" is. Is a pre-trial offer a "win"? If so, then you need to make sure that the Solicitors negotiate any such offers with the Bank, and add their (and any other) costs on top (ie, so you still keep 100%).

Of course, all this could be Academic anyway. Based upon the fact that the Banks do not want to disclose their costs, or be the ones to set any losing precedents in a court. If you case is allocated to Fast, Multi or Mercantile, then disclosure of evidence is required. ie, the Banks have to justify the actual liquidated costs of each incident, and back them up. This they cannot/ will not do. They certainly cannot prove they cost what they actually claim/charged, so how could you lose? Even, if they provided proof of them costing £12 instead of £30, then the judge would still have to find in your favour, as the difference is still punitive.

So, provided you do your research properly, put a strong case together, (and DO NOT take any partial payments. This will only give them grounds to then try and claim the charges were refunded, and so any subsequent court case they would argue to be only for the interest, which judges don't like), yet do consider any reasonable offers, then you should be okay.

This is my view anyhow, gleaned from many a late night posting and reading. I am going to PM this post to a couple of the more knowledgable beings on site here for comments, so usual disclaimers about this being my own views only, that I take no liability for any actions anyone takes upon it, and to seek proffesional advice if unsure.

[scott150663]

Largo

 

yes try through the small claims the judge might move it to fast track but the process is the same,the outcome of which ever track u use will be the same which is you win so don't worry about it to much it Incidentlly when you fill in your poc for the business account don't make references to consumer law. hope this has been some help

regards

scott

[scott150663]

photoman

excellent reply ithought about about using a solicitor but decided against it after reading through various threads (hours of my time ,but time well spent as i have gained alot of knowledge which im sure will result in me winning my case.

[Glenn UK]

Having read through photomans posts the issues re the court and small, fast track etc i agree with. Im no expert on the issue of the ATE CFA side of things although i am aware of the self financing principle.

 

Re the chances o f going to court, i think the banks really dont want to get into court, where people arelsoing partso ftheir claims it is usually related to elements which are contentious such as charges older than six yeas, contractual interest.

 

I think we are learning more about keeping claims intact and allowing claiamnts to maximise their returns in this respect.

 

I cannot see any reasons why this sholdnt be carried over into the business forum.

 

JMHO

 

GLenn

[GaryH]

Yes, FWIW I would agree with the majority of PM's post. There are risks of which you should be fully aware of before embarking on a claim of that size and a 37k claim would go into the multi-track, or Mercentile, with full costs exposure. However, your claim dispite its size is still reletively straightforward - there are no complicating factors such as the Limitations Act, CI, or default removal, etc. For this reason I see no reason why you need to employ a solicitor, and in a sence you are right when you say that it makes no difference whether its 1k or 40k - the bank still don't want to go to court. Plus, as has already been mentioned, you have the availibility of disclosre in the higher tracks.

 

With a claim that large its imperitive that you know what your doing and don't make any silly mistakes or try to cut corners. Research the legal principles upon which your claim is based, and understand the court procedure and what is expected at each stage. If you do everything by the book I personally see no reason whatsoever why your claim would not be successful.

[photoman]

Okay,

Got a couple of weeks yet until I file my N1, but decided to use the time productively by starting on the particulars. (remember this is for a Business account) !

Here's a draft of what I have done so far, and all comments appreciated.

 

I have yet to source and read up on the actual case laws cited, and will do so taking particular care that I am not trying to rely on precedents and case law that are specific to Consumer case law (anycomments or pointers in that direction by anyone appreciated)

Also, yet to compile a section suggesting the application of Authorised Interest rates in the mid alternative to Unauthorised or Statutory, so that will be added soon.

Also, the History/ Background to the claim will need to be compiled nearer the time dependent upon any correspondance or communications in the intererim.

 

Anyhow, any other comments anyone ??

 

 

1. The Claimant had a bank account xxxxx (branch sort code xx-xx-xx) with the defendant, between the periods of xxxx and xxxx governed by the Defendant’s Banking Terms and Conditions (“the contract”).

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

3. The breaches have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xxxxx and xxxxx. A list of the charges and interest on the charges is annexed to the Particulars of Claim at pages 1 & 2.

4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendent on said charges. In addition the Claimant claims interest on the full amounts as detailed in paragraphs 12 & 13.

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;

ii. Devised and enforced by the Defendent 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.

iii. 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 unenforcable 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 - (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79).

b. Invalid under s.4 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 s.15 Supply of Goods and Services Act 1982.

 

6. The Claimant makes reference to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

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

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

Murray v. Leisureplay [ EWCA Civ 963 ];

Bridge v. Campbell Discount Co. LtLL [ AC 600 ];

Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [ EWE-IC 281 (TCC)];

Commissioner of Public Works v Hills [ AC 368 ]

 

Additionally, the Claimant makes reference to inter alia the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin 21 (July to September 2002). as persuasive authorities:

Case 4 — Dampcure-Woodcure/30Ltd

Case 15 — Kids of Wilmslow Ltd

Case 18 — Legal & General Franchising t/a Parker Estate Agents.

7. 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.

8. The claimant will rely on a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006, as evidence that the defendant is aware that the income derived from its default charges is excessive, does not truly reflect the actual costs incurred in dealing with such breaches, and unduly enriches the Defendant.

 

9. The claimant will further rely on the statement of 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.

10. The Claimant seeks permission to proceed with the claim under s.32 (1)(b) Limitation Act 1980 on the ground that the claimant could not reasonably have discovered the defendant’s deliberate concealment of the facts relevant to the claimant’s right of action before the report of the OFT was published on 5/4/2006.

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the the Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity. The Defendant has continually presented its charges as if they were a 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.

11. Alternatively, the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the ground that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - citing the case of Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

 

12. The Claimant claims compound interest on the amounts claimed - using the rate and method specified in the said contract, and applied by the Defendant to monies it is owed. The Claimant’s ground for seeking restitution of the compounded contractual rate of interest is:

i. That there is an explicit or implied term of mutuality and reciprocity within the contract and equity dictates that sums owed by the Defendant should be subject to interest under the same terms and at the same rates that the Defendant has itself imposed upon the Claimant throughout the term of the contract.

ii. That the defendant has and would continue to be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

Under the terms of the contract money taken without prior permission constitutes Unauthorised Borrowing and is subject to specific rates for such. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant’s bank account. That the charges were taken by the Defendant from the Claimant without prior permission is by the Defendants own definition equivalent to Unauthorised Borrowing and so should be deemed subject to interest at the same rates and in the same manner imposed by the Defendant. A schedule of the interest calculated in such manner is annexed to the Particulars of Claim at pages 3 & 4.

13. Alternatively, if the court decides that the Claimant is not entitled to the contractual rate of interest, then the Claimant claims interest under s.69 County Courts Act 1984. A schedule of the interest calculated is annexed to the Particulars of Claim at pages 5 & 6.

14. Accordingly, the Claimant claims:

a). The return of £xxxxx taken by the Defendant in charges and interest applied on the charges between xxxxx and xxxxx.

b). Court fees

c). Compound interest at the contractual rate of 29.85% EAR from xxxxx to xxxxx of £xxxx, and also interest compounded at the same percentage rate up to the date of judgement or earlier payment.

d). In the alternative to c., interest under s.69 County Courts Act 1984 at the rate of 8% a year, from xxxxx to xxxxx of £xxxx and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of xxx

[empowered]

Having just read Photoman's proposed POC I am now totally confused (doesn't take a lot!) Am just starting out on preparing N1 with POC for a sole trader account. Am claiming for approx £3700 in charges plus 8%. Looked at the "Particulars of Claim;Business accounts" sticky which seems so much shorter than the consumer version and now I have seen the proposed one above - so much longer - which version should I use? Any advice VERY gratefully received!:o

[photoman]

Having just read Photoman's proposed POC I am now totally confused (doesn't take a lot!) Am just starting out on preparing N1 with POC for a sole trader account. Am claiming for approx £3700 in charges plus 8%. Looked at the "Particulars of Claim;Business accounts" sticky which seems so much shorter than the consumer version and now I have seen the proposed one above - so much longer - which version should I use? Any advice VERY gratefully received!:o

 

DON'T PANIC !!

 

Firstly do account for the fact that my claim is for charges prior to 6 years, so I am including my arguments and reasonings for such. If your claim is not for prior to 6 years you don't need a large portion of my POC's. Also I am claiming for Contractual interest, which again necessitates another large portion of particulars, and it appears you are not, so you don't need that either.

Regards all the case law references, once I have researched these all thoroughly, some may be omitted if not relevant etc.

i get the impression that the template you are using is excellent and has produced many good results....(but do remember it is only a template, and should be carefully studied and checked that it does all apply to yourself )....I'm just trying to be a smarta**e !!

 

Regards

[empowered]

Aaah ! mind set at rest - thought I had lost the plot along the way. Thank you so much for quick reply and I shall watch with great interest your gruelling fight to the finish!

[make_me_happy]

Hello,

 

I am a business claimant and I have filed my MCOL on 5 March and I am SH****G my pants scared like hell that they are going to close our account with card processing facilities, loans and so forth. I heard that they are harsher on business accounts. My cliam is with HSBC (which it doesn't help) and it is for about £4K.

 

i am currently searching for a parachute account and also have tried to contact Ombsdman, but the e-mail address in the website does not work and the message comes back undelivered.

 

If anyone can help, please do.

 

Let's be strong and kick some bank's butts...!!!

[empowered]

Hello MMH - I moved my business account with card facilities etc to Barclays with no problems even though I must have had an awful credit rating - however this was before I started action and didn't want an overdraft facility and I owed Lloyds nothing - could be worth pursuing?

[make_me_happy]

Thanks empowered.

I had a business account with Barclays for 2 years and I never used it so I decided to close late last year. If I had known...!!!

 

I am sure it will be easy to open account again with Barclays the only thing is that their card facility is waful. It takes 30 days for the customers money to reach our account once customers pay with credit or debit card.

 

i will look into it, in the meantime I am trying to contact Ombsdman to ask for advice.

[make_me_happy]

You can all refer to my thread if you want. Here it is:

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71876-make_me_happy-hsbc.html

 

I don't know how to make internal links. please let me know someone!!

[photoman]

Just a general note to all you Business claimant peeps out there.

 

Maybe put a link to this Business thread into your signatures, so that whenever you post anywhere else, other Business claimants will be encouraged to come and join us? The more the merrier.

(for those not yet figured out how to do it yet:

Go to the url address at the very top of your page, and click on it once, then right click on your mouse to get the copy command, copy it, then go to the edit signature option on your user cp page, and paste the link into your signature)

regards to all

[make_me_happy]

Let me try if it works...

[MARTIN3030]

I agree with the earlier comments about specific info for limited companies.

We have discussed various angles of the business threads and we were agreed that we should have some stickies that cover the different scenarios for different positions.

We are naturally open to suggestions and input.

The difficulty in having a single thread and having info there is that it gets lost and takes time to search out.As this thread goes on then,may be an idea to get an idea of faqs and put something together from it all in a later stickie.

[empowered]

Hope this isn't invading this thread but Make Me Happy - have you considered using Cardsave/Streamline for your card transactions? I used Lloyds but they were so expensive and Cardsave was so much cheaper - plus the money hits your account on the 4th day. Don't have Cardsave number, the Streamline one is 0845 7616263 - could be worth getting a quote!

[photoman]

I agree with the earlier comments about specific info for limited companies.

We have discussed various angles of the business threads and we were agreed that we should have some stickies that cover the different scenarios for different positions. I think maybe a Forum instead would be a better plan? This can then contain various threads/stickies to the various types of Business claims , etc ?

We are naturally open to suggestions and input.

The difficulty in having a single thread and having info there is that it gets lost and takes time to search out. As this thread goes on then,may be an idea to get an idea of faqs and put something together from it all in a later stickie.

 

Pleased that this thread can be of some use, I think all on here (including myself) have learnt a fair bit more regards the specifics involved in Business claims. by pooling our thoughts.

 

I hope that all subscribed here will take note of Martin's generous request for ideas and suggestions relating to Business claims, and do post some ideas, questions etc

Some initial suggestions:

1/ Key differences between Business and Personal account claims (rights and regulations in law, legislation, decided case law etc).

2/ Different types of Business's ie: Sole Traders, Partnerships, Limited Companies etc. who is entitled to file claims in each case, who needs to be informed etc

3/ Business loans

4/ What effect if any will claiming have on my relationship with my Bank, How will claiming affect opening another account, will affect my Business's credit rating, what rights do they have to call in an overdraft if I claim etc

5/ How do I deal with refunds in regards taxation?

Just some ideas........anyone else ??

[make_me_happy]

Hope this isn't invading this thread but Make Me Happy - have you considered using Cardsave/Streamline for your card transactions? I used Lloyds but they were so expensive and Cardsave was so much cheaper - plus the money hits your account on the 4th day. Don't have Cardsave number, the Streamline one is 0845 7616263 - could be worth getting a quote!

 

Thanks empowered, could you please have a look and see if you can find number for CardSave, i would love to give them a call and see what is the position. I will definetely try that. HSBC charges us at the moment around 1.75% per transaction.

[elsinore]

mmh, try here

 

Credit Card Processing

 

Els:)

[louloujs]

Photoman - your wisdom is very reassuring. Everything is making a bit more sense having read your long message above. Feeling a bit more confident now too.

 

BOS will today have opened my letter requesting £13700.

 

Tomorrow will be looking around for a new 'generous' bank manager.

 

Lou

[judi3]

I was wondering if i could join your thread to seek advice on this issue .

 

I seperated my requests for charges personel and non ltd co and then joined them for court action lloyds paid in full .

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=72910&referrerid=31310

[photoman]

Photoman - your wisdom is very reassuring. Everything is making a bit more sense having read your long message above. Feeling a bit more confident now too.

 

BOS will today have opened my letter requesting £13700.

 

Tomorrow will be looking around for a new 'generous' bank manager.

 

Lou

 

There are many much wiser than myself on this site, and have given me many pointers directions and help along the way.

Glad your feeling a lot more confident,and good luck !!

 

Remember (and this applies to everyone), other peoples posts, their Prelims, Letters, Particulars, case citations etc are all very helpful, but you must take care if you use any part of them, or quote, cite or rely upon them, that they are relevant to your own case, and that you understand the issues involved.