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Claiming on a Business account? Lets join forces?

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Well not really relevant to this site, however he his liable for the debt, he should have gone to court at least he could have made an offer to repay the debt over a set period. He may still be able to negotiate some kind of stage payment, however he cannot get out of the debt, unless he is insolvent. This is contract law, and he has broken his side of the contract and does not have a leg to stand on.

 

Thanks ataction, I appreciate it is not bank charges, but many situations are not carried out correctly in business with regard to debt and there are certain criteria which have to be followed, especially when 'contracts' as you put it are challenged in courts. There are charges issues on this, and disputes over the amounts, but I didn't want to take up the thread with the detail for the very reasons you outline. He has suffered from a similar rip -off by the contractor he worked for to the tune of £130,000 so it's swings and roundabouts. I just needed to know if a credit agreement or any agreement needs to be in place before a county court judgment can be obtained had he attended court as do consumer credit agreements for consumers. Sole Traders (and this is why I posted on this particular thread as it's pertinent to businesses) are treated as 'consumers' and individuals when it comes to trading and are obviously not protected by Limited Liability and if a claim is being made and he likely to lose his home I need to make sure that ALL documentation and claims are to the letter of the law. I run a business myself so I am not looking to get out of the moral issue of paying one's debts, I am looking, like the banks do, for the correct documentary procedures whether by a bank or a business. I think this type of situation affects many sole traders so your responses, and I thank you for them, are of interest to many.

 

 

P.S - Thanks Goldlady that's handy to have.


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

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Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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Sale and Supply of Goods to Consumers Regulations 2002: "consumer" means any natural person who, in the contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession;

 

The definition of 'deals as consumer' is in the Unfair Contract Terms Act 1977 s12(1), which states:

'A party to a contract 'deals as consumer' in relation to another party if
(a) he neither makes the contract in the course of a business nor holds himself out as doing so; and (b) the other party does make the contract in the course of a business...'

 

 

 

 

Sorry but there you go. As someone who is paying a CCJ to the Inland revenue and has 60k of other debt all for being a sole trader when we had to make all our staff redundant due to foot and mouth I now have a limited company - never again lol!

 


BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

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Sorry Goldlady, I don't exactly follow your line here. the quote isn't actually saying what I think you are concluding with, which is the trading between a sole trader and its' suppliers is a 'contract' despite what has been written. The Inland Revenue are somewhat different are they not when it comes to 'contracts' between two parties? The Revenue always seem to have a different set of rules to other creditors.

 

I am just saying "how can a supplier raise a summons and prove a debt when no contract of any kind has been written?" The fact he got a CCJ was because he never even opened the envelope let alone turn up to court to defend. He disputed the debt value anyway, but with all the pressure close his mind to it all. I am just trying to establish the debt v CCA requirements as in a credit agreement.

 

I appreciate the input here, but I am trying to thrash out the exact answer if I can.


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

A click on the scales below is appreciated if my posts were helpful

Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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Hi Andrew, basically there does not need to be a written contract and if he purchased the goods or service in the course of his business he is not a consumer and the CCA cannot help him. My comment about the Inland Revenue debt was simply my way of saying beware of being a sole trader as you can lose everything! He could go back to court to dispute the amount (different form needed) but from what you have said he would have a hard time proving there was no contract. Presumably he placed orders and received goods and invoices from the supplier at the time and possibly also if there were any problems with the goods the supplier would have terms and conditions which would require any complaint to be made within a specified time limit.

 

I am not trying to be the angel of doom, but I have been in similar situations and I do wish I could say something more positive.


BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

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No, thanks that's just what I needed to know. I thought as much because I rarely signed contracts to buy goods, just ordered and received them so I hear exactly where you are coming from. Makes it clear for others too. I just wanted someone to confirm the facts and I thank you for that.

 

We have some negotiating to do, that's all now :D Good luck with yours Goldlady and that goes for anyone else too.


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

A click on the scales below is appreciated if my posts were helpful

Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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I don't know if anyone has noticed but when my hubby received the defence from HSBC it is a carbon copy of the defence on a personal bank account claim, in this event their defence is worthless. If anyone is at court stage you would be advised to check their defence and you will see it is nothing but a sham.

 

DS

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Is this witness statement OK for business (or is there a better example somewhere else on CAG site (that I havent found yet?)

 

Following the excellant guidance offered by GaryH for consumer claims http://www.consumeractiongroup.co.uk/forum/show-post/post-732096.html and the defence from LLoyds saying UTCCR I have attempted to make sure I dont rely on consumer regs, but have kept some of the examples made by the OFT (is this worth keeping in as it applies to consumers?)

 

I would be grateful if anyone would have a read through just to check there are no glaring errors, a thousand thank you's in advance. Have I left anything out?

 

Sorry if its a bit long but I have struggled to make it relevant to Business.

 

1st WITNESS STATEMENT OF

 

1. I, the Claimant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. On 2 March 2007 I wrote to the Defendant, setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. I attached a detailed breakdown of the individual charges and asked for a response within 14 days. EXHIBIT B

 

5. On 23rd March having had no response from the Defendant, I wrote again to reiterate my complaint, once again setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. This time I asked for a response within 7 days or I would commence court proceedings to reclaim my money. I again attached a detailed breakdown of the individual charges EXHIBIT C

 

6. On the 29 March 2007 I again wrote to the Defendant and again set out the nature of my complaint and I refered the Defendant to the contents of my letter of 2 March and refused to accept the Defendants partial offer to reduce their charges in full and final settlement of my claim. I gave the defendant further time, until 3rd April, to offer a satisfactory response. Once again I attached a detailed breakdown of the individual charges. EXHIBIT D

 

7. On 5 April upon the Defendant's generic template rebuttal of my complaint, I filed an MCOL claim at Northampton County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim along with a detailed breakdown of the individual charges. The claim was sent via Nothampton County Court by first class post and deemed to be served on the Defendant on 10th April 2007. The defendant was given until 24 April to reply. EXHIBIT E

 

8. On the 7 April I received a letter from the Defendant dated 28 March enclosing a partial payment as full and final settlement. I wrote to the defendant to confirm I had received their letter dated 28th March 2007 on the 7 April, I referred the Defendant to my letter of 29 March (as referred to in 6. above) and returned the cheque. EXHIBIT F

 

9. The Defendant acknowledged service of the claim on 23 April.

 

10. On 30th Aprilthe Defendants solicitor messrs Foot Anstey wrote to me saying that I had not provided them with a detailed breakdown of the individual charges and threatened that if I did not provide them with a copy within 7 days Lloyds TSB bank would make an application to strike out my claim. I sent a further copy of the detailed breakdown of individual charges to Foot Anstey Solicitors on 2 May 2007. EXHIBIT G

 

11. On the 14 May I wrote to the Defendant in response to their letter dated 10 May in which the Defendant stated that the Unfair Contract Terms Act 1977 did not apply to me as I was a business customer. In my reply to the Defendant I outlined the case I was making and asked directly for the Defendant to justify that their penalties really do reflect their costs as a result of my breaches of contract and asked that the Defendant settle my claim to avoid further intervention by the courts. A copy of this letter was sent to their solicitor messrs Foot Anstey.EXHIBIT H

 

12. On 16th May 2007 I received notice from the court that a defence had been filed (in which the Defendants solicitors messrs Foot Anstey denied that the Unfair Contract Terms Act apply to business customers) and that the claim had been transferred to Yeovil County Court. .

Overview

 

13. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Contracts Terms Act 1977, Supply of Good and Services Act 1982, and the common law. EXHIBIT I

 

14. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question as a result of my breaches of the contract. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead are unreasonable and unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 13 above, exercises the contractual term in respect of such charges with a view to profit.

 

Disguised Penalties and breach of contract

 

15. The Defendant avers that the charges levied are legitimate fixed price contractual services, not related to breach of contract, and therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. I refute this interpretation and further submit that this contention is merely an attempt to 'cloak', or disguise its penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

16. The claimant believes the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the customer, and one which the customer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to her account by the Defendant could be any form of service', rather than a penalty. I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed any purported “services” on my account.

 

17. I understand the definition of a ‘breach of contract’ to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I had an overdraft with the defendant. This overdraft had a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. The definition of the word “limit” given by the Oxford English Dictionary is as follows;

 

noun 1 a point beyond which something does not or may not pass. 2 a

restriction on the size or amount of something. 3 the furthest extent of one’s

endurance. • verb (limited, limiting) set or serve as a limit to.

 

When I exceeded the contractually agreed terms, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of charges of £10 - £35.

 

18. The banks charges arise directly from the happening of an event. It is a clear requirement of the terms of the account contract that sufficient funds are available to cover payments made by cheque, standing order or direct debit. A charge arises when these requirements are not met – I.e. when a payment or drawing is made from the account which is not supported by sufficient available funds (unauthorised). A letter from the Defendant confirming that ‘the account was opened on the agreement that it remained in credit’ is attached to this Witness Statement. EXHIBIT J

 

19. If the Defendant’s interpretation were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the customer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.

 

20. It is further submitted that the Defendant's contention that the charges are now a service charge represents a contradiction to materials published by the bank previously. I am in possession of a letter, which is attached to this Witness Statement, signed by Martin Orton, a senior manager at Lloyds TSB's customer care department, which states –

 

"as you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs".

 

This was in response to a direct and plain request to justify Lloyds TSB's charges. Throughout the letter, no mention is ever made of the charges as being the cost of any type of 'service'. Also, a letter I received from the Defendant, disallowing a direct debit, stated “we make a charge to cover our extra administration costs” and made no mention of a ‘service’, nor did the letter in 18. above. EXHIBIT K

 

Office of Fair Trading Analysis

 

21. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated in its overview that the principle of their findings would also apply to Bank account charges and indeed those of the entire financial and lending industry. They ruled that default charges at the current level were unfair. With regard to the 'cloaking' or disguising of penalties, the OFT said this;

 

"4.21.Disguised Penalties EXHIBIT L

The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.)

 

22. Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999”. Relevant sections from this report are quoted as follows;

 

Section 5.8 - Disguised penalties.Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.”

 

Section 18 1.3

"These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

 

23. The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract. The contract did not contain the actual charge and only referred to it.

 

24. The cost of Lloyds TSB's charges have increased substantially and indiscriminantly during the time my account has been in operation, from a friendly telephone call from our bank manager with no charge to £35 now, at no time was I ever given the opportunity to negotiate. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

25. I submit that it is wholly unfair that the defendant should hold such power in relation to the terms of the bank account contract relating to charges. The defendant, if its interpretation of its terms were to prevail, would have the unlimited power to increase the cost of its charges unregulated and without an assessment of fairness. The defendant and other UK banks would then be free to unilaterally alter the term and increase the cost of its charges to whatever it chose to unabated, with significant and highly detrimental consequences to the customer and the intentions of the regulations.

 

Penalty Charges

 

26. If the court is persuaded that the charges were levied for breach of contract or that the penalty provisions are applicable irrespective of a finding of breach, it is the Claimant’s submission that the charges are indeed penalty clauses.

 

27. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses resulting from the breach or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

28. I will cite the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. EXHIBIT M

 

29. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

and;

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part”

 

30. I will further rely on numerous recorded authorities dating throughout the 20th century to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof. EXHIBIT N

 

31. It is submitted that the charge is an unconscionable penalty as it is extravagant and exceeds any loss that the Defendant could have expected to have incurred as a result of the Claimant’s breach and seeks to deter the Claimant from breaching the contract.

 

32. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored. The Defendant has ignored similar requests made by the Office of Fair Trading, and numerous orders obliging the disclosure of these costs that have been made in other cases have been breached by the Defendant.

 

33. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

34. For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer's breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes. EXHIBIT O

 

35. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system 'bouncing' the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £35 by carrying out this completely automated process. The letter received notifying the customer of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance. EXHIBIT P

 

36. The claimant submits that if smaller banks in Ireland can charge less than 5 Euros for unauthorised overdraft and less than 13 Euros for returning a direct debit or standing order then the Defendant with its economies of scale is profiteering on a gigantic scale. Yet when the same Irish bank operates in the UK, sometimes only a few miles away, it charges £30 for the same breaches. EXHIBIT Q

 

37. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive". EXHIBIT R

 

38. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that revenue derived from bank charges are used to subsidise free banking for all personal customers as a whole. EXHIBIT S

 

39. In a recent study undertaken in Australia, (Nichole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct decit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above fugure, the study estimated that could be charging 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Banks cheque and direst debit refusal fees were likely to be penalties at law. EXHIBIT T

 

40. The Scottish Law commission has reported its findings on “Penalty Clauses” and the report is enclosed. The report refered to the fact that issue of Penalty Causes and Liquidated Damages has also been considered by law reform bodies in England, California, Canada and particularly Australia as identified in 38. above. EXHIBIT U

 

Supply of Goods and Services Act 1982

 

41. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising directly as a result of clear and demonstrable breaches of express and/or implied terms of the account contract between myself and the Defendant. I vehemently refute the Defence's contention that they are legitimate contractual service charges.

 

42. However, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982:.

15 Implied term about consideration

(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge. EXHIBIT V

 

43. If the charges are services, there must be a correlation between the service provided and the cost. The cost of Lloyds charges has increased substantially and indiscriminately during the time the account has been in operation. The defendant has repeatedly been requested to provide details of the costs of its charging process and has each time declined to do so. Further, at a conservative estimate their have been at least 300 claims of this nature brought against the defendant in the last 12 months. In a significant proportion of these cases orders have been made obliging the disclosure of these costs and each time these orders are breached by the defendant. If the defendant avers its charges are reasonable within the meaning of section 15, I would contend that it is incumbent upon it to justify the price by producing evidence of its actual costs.

 

Summary

 

44. As set out previously, it is submitted that The Defendant's charges can not be considered to be a service charge. They arise as a direct consequence of an event demonstrable as a breach of the account agreement between the parties. In arguing that they are a service charge, the defendant also effectively admits that its charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can alter the term of contract to set the charges at whatever level they like without limit or regulation - contrary to the intended effects of legislation such as the UCTA, SOGA and common law. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are disproportionate, punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are disguised contractual penalties and unenforceable at law.

 

45. Statement of Truth

 

I, the Claimant, believe the facts stated within this Witness Statement to be true.

 

Signed:

 

("EXHIBIT" Refers to evidence supplied in seperate folder)


[sIGPIC][/sIGPIC]paulsuebank

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I wish I had found this site before the hearing at Leeds Mercantile Court today ...... Looking at all this info I would have done things very differently !

Things seemed to be going Ok till yesterday ( the day before the hearing when I recieved a copy of the banks request to strike out) - this has been going on since January

Apart from paying a solicitor to check it all through (bearing in mind it has cost me 360 so far and I am only claiming £1480 including interest) I can't see a way through right now ...

The confusion is I was director (9/01 to 11/03) of 'my' LTD company, charges were incurred july 02 to nov 03.I became ill and my mum became director(11/03 to 12/04) charges incurred nov 03 to aug 05 Account then closed aug 05 when all banking requirement with hsbc ceased. LTD company sold Dec 04 was bought along with business and new directors appointed (20/12/04 to date) company still trading. The account in question WAS NEVER used by the new directors, they were never signatories, never signed anything with HSBC ! I opened the HSBC account as director and was the sole signature until illness forced mum to take over.

The bank seem to be saying that the account is the ltd companies - though when I requested copy statements in January they sent me, at my home address the whole lot without question !

Anyone any ideas ?

I know the phrase involving gates and horses bolting will spring to mind - but please be gentle ...

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I wish I had found this site before the hearing at Leeds Mercantile Court today ...... Looking at all this info I would have done things very differently !

Things seemed to be going Ok till yesterday ( the day before the hearing when I recieved a copy of the banks request to strike out) - this has been going on since January

Apart from paying a solicitor to check it all through (bearing in mind it has cost me 360 so far and I am only claiming £1480 including interest) I can't see a way through right now ...

The confusion is I was director (9/01 to 11/03) of 'my' LTD company, charges were incurred july 02 to nov 03.I became ill and my mum became director(11/03 to 12/04) charges incurred nov 03 to aug 05 Account then closed aug 05 when all banking requirement with hsbc ceased. LTD company sold Dec 04 was bought along with business and new directors appointed (20/12/04 to date) company still trading. The account in question WAS NEVER used by the new directors, they were never signatories, never signed anything with HSBC ! I opened the HSBC account as director and was the sole signature until illness forced mum to take over.

The bank seem to be saying that the account is the ltd companies - though when I requested copy statements in January they sent me, at my home address the whole lot without question !

Anyone any ideas ?

I know the phrase involving gates and horses bolting will spring to mind - but please be gentle ...

 

Hi Pollypoppy,

 

It is difficult to answer you without knowing all the details, ie what you put on your N1 claim form, because for business accounts it is slightly different, are you claiming contractual or just statutory 8%, how did you calculate it, ie did you use a speadsheet.

 

Maybe it might be possible to amend you Particulars of Claim if you have done it incorrectly.

 

To enable peeps on this site to give you all help you need you might find it helpful to post a thread in your name v bank!! and give everyone as much info as you can about your case to date including a brief summary of the events so far.

 

You also need to post the exact wordings of why the bank are requesting a stike out.

 

There are lots of experienced peeps on this site and I am sure given all the info they will be able to help you in more detail.

 

DS

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Hi, did you claim in the name of the Ltd Co?


Donate to keep this site open

 

Any help or advice is offered as just that, help and advice without any liability. If in doubt consult a legal expert or CAB.

 

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Pollypoppy, I fear you will not succeed with your claim as it stands. Presumably you have claimed in your own name (Pollypoppy v HSBC), in which case the bank is correct in seeking a strike-out.

 

Any unlawful charges which the bank might pay out will belong to the Limited Company. If you were to re-submit your claim as Ltd Co v HSBC then you would have to sign as a director, which itself would be unlawful. As the Company is now owned and directed by others, it would be for those current directors to file a claim for a refund of charges, with all monies being repaid to the Company.

 

The only way in which you could have benefited, would have been for you to file the claim whilst you (or your mother) still owned/directed the Company.

 

This is only my opinion and I think you might want to seek other views before proceeding further.

 

Els


BANK CHARGES CAMPAIGN CONTINUES - PLEASE SIGN THIS PETITION

 

Aktiv Kapital £300.00 SETTLED IN FULL

Capital One £741.47 SETTLED IN FULL

Citi Cards £1221.00 SETTLED IN FULL

LTSB(personal) £3854.28 SETTLED IN FULL

LTSB(business) £7487.97 SETTLED IN FULL

 

What poor education I have received has been gained in the University of Life

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I have to say that I agree with elsinore, when you sell a Ltd company all the accounts are taken on by the new directors (past and present). As far as I am aware the only person who can claim is the Ltd company, ie- the present directors who sign on behalf of the Ltd company.

 

Has HSBC mentioned in their strike-out that you or your mum are no longer directors?? Have they checked this out on Companies House??

Please give us more details of the strike-our.

 

Regards

Danler

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I have to say that I agree with elsinore, when you sell a Ltd company all the accounts are taken on by the new directors (past and present). The bank account with HSBC was not taken over - in as much as the ltd companies new directors opened their own bank account with another bank - The HSBC account remained open until all dealings during my ownership of the company were sorted. The only directors ever able to sign on the account were me and then my mum. As far as I am aware the only person who can claim is the Ltd company, ie- the present directors who sign on behalf of the Ltd company. This appears to be the case - but as they never signed on behalf of the company on this account I presumed (wrongly ?) that I could claim

 

Has HSBC mentioned in their strike-out that you or your mum are no longer directors?? Have they checked this out on Companies House?? Yes - we are no longer directors - and yes they checked

Please give us more details of the strike-our.

 

Regards

Danler

 

This is why I claimed, as me not as the company, (wrong again I think ! ) BUT when I wrote from my home address requesting copies of all statements I was sent them immedietly without argument in January 2007. No mention was made until the day before the hearing that I was not eligible to claim !

At the end of the day I think I made a boob and got it wrong - I just hope it helps others - it all seemed like common sense to me at the time - let no one else presume the law is common sense !!!

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This is why I claimed, as me not as the company, (wrong again I think ! ) BUT when I wrote from my home address requesting copies of all statements I was sent them immedietly without argument in January 2007. No mention was made until the day before the hearing that I was not eligible to claim !

 

At the end of the day I think I made a boob and got it wrong - I just hope it helps others - it all seemed like common sense to me at the time - let no one else presume the law is common sense !!!

 

Pollypoppy,

you said you took Solicitors advice, if he/she has misadvised you you may be able to claim some compensation through their professional indemnity insurance, unless they were not aware of the full facts.

ds

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Apart from paying a solicitor to check it all through (bearing in mind it has cost me 360 so far and I am only claiming £1480 including interest) I can't see a way through right now ...

 

No what I meant was I haven't paid a solicitor yet .... but would it be worth doing it at this stage as I only have a max money 'back' of 1120 and a solicitor would probably nearly cost me that much !!!!!8)

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I've Won!!! Lloyds Tsb's solicitors have sent me a letter saying they will pay my claim in full. My original claim was filed on 2nd May 2007, I entered an amendment on 3rd May. Had a letter off Lloyds solicitors on 24th May asking for a stay of the claim until the particulars were recieved by them. I wrote back explaining about the amendment and was in no position to supply particulars until I received a sealed copy off the court. Heard nothing more off them. I went on holls for two weeks on 14th June. Got home to a letter from court dated 14th June saying I need to reserve the claim as the amendment had been granted AND a letter from Llloyds solicitors dated 14th June stating that the bank is willing to settle! Once I get the money in the account a donation will be on its way. Thanks to everyone on this thread and this site for all the help.:) I have my own thread 'dorisfluffy v Lloyds TSB' but I've found this thread extremely helpful.

 

Alliance and Leicester WON £308.01:D

Capital One WON £495.50:D

Lloyds TSB Business WON £1205.85:-D

 

Lots more to go!!

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Congratulations

 

Well done, another one in the bag

 

Enjoy

 

 

:) :) :) :) :)

Celicaman


Templates Library

 

GE Capital Won

Capital 0ne Won

Northern rock Claim stayed working on negotiation

HSBC personal claim 1 ''WON''.

£1800 plus full stat interest plus costs.

Claim started 14/02/07 offer 3/07/07

 

Next:Coming soon to a thread near you! :)

HSBC personal Part 2 'return of the Celicaman'

HSBC business 1 ' my empire strikes back' N1 claim POC in progress after usual offensive offer from bank

HSBC business 2 'attack of the Celicaman'

HSBC business claim 3 'bank account menace'

HSBC business 4 'Revenge of the CAG Member' the final insult ....................... 'Maybe'

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Well done Dorisfluffy - bang, bang, bang - another one bites the dust !:D :D


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

A click on the scales below is appreciated if my posts were helpful

Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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CONGRATULATIONS

Well done Dorisfluffy another one bites the dust!!!!!!GC

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Apart from paying a solicitor to check it all through (bearing in mind it has cost me 360 so far and I am only claiming £1480 including interest) I can't see a way through right now ...

 

No what I meant was I haven't paid a solicitor yet .... but would it be worth doing it at this stage as I only have a max money 'back' of 1120 and a solicitor would probably nearly cost me that much !!!!!8)

 

Polly, another thought do you have household insurance, because on some policies you would have free legal cover and would get free advice. Also, if you had a business account you may have had business insurance and you may have been covered for Legal eventualities.

DS

  • Haha 1

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As a business I have membership to the FSB ( Federation of Small Businesses) which for £70 a year gives you free legal helpline 24/7. worth every penny.


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

A click on the scales below is appreciated if my posts were helpful

Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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Thankyou who ever it was that gave me a reputation point.

DS

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Thankyou who ever it was that gave me a reputation point.

DS

 

Must have been something you said LOL :)


Templates Library

 

GE Capital Won

Capital 0ne Won

Northern rock Claim stayed working on negotiation

HSBC personal claim 1 ''WON''.

£1800 plus full stat interest plus costs.

Claim started 14/02/07 offer 3/07/07

 

Next:Coming soon to a thread near you! :)

HSBC personal Part 2 'return of the Celicaman'

HSBC business 1 ' my empire strikes back' N1 claim POC in progress after usual offensive offer from bank

HSBC business 2 'attack of the Celicaman'

HSBC business claim 3 'bank account menace'

HSBC business 4 'Revenge of the CAG Member' the final insult ....................... 'Maybe'

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Does anyone have details of Lloyds TSB solicitors that they use for defending business account bank charge claims - Many thanks.

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Does anyone have details of Lloyds TSB solicitors that they use for defending business account bank charge claims - Many thanks.

 

It appears that Lloyds have split dealing with the large number of claims across two firms of solicitors.

Most claims are dealt with by Sechiari, Clarke and Mitchell, but a large number of cases are now dealt with by a firm called Foot Anstey.

 

It appears that the split is that Consumer complaints are dealt with by SC&M whilst business are dealt with by Foot Anstey.

 

Why do you need their details?

If they are actually dealing with your case they would have contacted you and provided them anyway.

If, on the other hand you are pre-empting the likelihood of your claim going via Foot Anstey and planning to contact them, I would not advise you do so, until you know for certain they are handling your case.

Doing so could confuse matters, and perhaps be considered undue pressure or even harrassment.

 

If you need the details simply because you have lost them, here they are:

 

Foot Anstey

21 Derry's cross

Plymouth

Devon

PL1 2SW

 

T: 01752 675000

F; 01752 675500

 

PM


---------------------------

ARE YOU A BUSINESS CLAIMANT?

CAG NOW HAVE A BUSINESS CLAIMS FORUM !

GO HERE !

 

CAN'T FIND WHAT YOUR LOOKING FOR?

Look here.

Got your old T&C's ?

Visit this thread to help others.

 

-----------------------------

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

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