hsbc v sbennett ***WON***

[darkrage]

tbh i dont think dg care whats an extra £100 to them its not like its there money lol.

[lateralus]

that's only partially the point of it - to me - it shows you are reading and following this site and not inclined to be frightened of whatever they would try - so might as well deal!

i say this so often - think of where you'd be without this site - i'd never have made it passed the - we're looking into it - sorry we don't agree letter.

[darkrage]

your right (as always lol) i will organise nudge letter 4 ready for postage on the 23rd (when its due) im may be a bit more sarcastic in this letter and thank them allowing me to learn how the small claims process works and assure them my court bundle will be on its way to them very shortly.

 

rang the court they recieved my draft order but the judge has not got to it yet as the back log of mail is about a week so he may read it and think nah its due on the 10th july so why push it forward.

 

also the hearing will last 10 mins so im guessing the judge wants to see if dg turn up before he strikes their defence out.

 

will just wait and see - will post nudge 4 when its done:D

[harejon]

tick, I want to keep track off this.

[darkrage]

hey lattie - i dont know if i have a small problem.

 

im starting to get my bundle together ready for printing and i am using nowandas statement of case rather than the bundled statement of evidence and have noticed that most people including nowanda are using old letters recieved by the bank regarding charges - unforunately for me i moved home recently and most of my paperwork in respect of this was damaged beyond repair so i dont have any personnalised corrospondance with hsbc regarding charges except 1 letter just before i closed the accounts

 

also 1 of my accounts was opened in 1993 and 2 in 2005 - the 1 in 1993 which t&cs should i use and do you know if anyone has a copy - i think the closest i found was 1996 would that e good enough?

 

any help will be most welcome

[lateralus]

yes, i think that one is ok to use -

as for the no letters business - just leave that point off if that's better.

i'm a little afraid i didn't make it very clear - i meant for people to tweak theirs a little using the ideas as nawanda did - i hope peeps don't just copy it. did you get the old - we like our charges letter at any point -even since you started all this? i don't think it will do any damage - just go with what you've got.

[darkrage]

no i dont think i got that 1 but i have kept all corrospondence will look thru it

[darkrage]

when printing the terms and conditions for the bundle - do i just print off the pages im refering too like the bank charges page or do i print all of the t&c's off.

 

just printed the reference material for other cases was bloody 200 pages long im guessing i dont need all that just the ones i refer to in the statement of evidence.

[freakyleaky]

My thinking is the more information you send the better. I printed the fullT&C's for 98 and 04.

[darkrage]

ok will do - thx will need more help tho this week.

[darkrage]

ok guys starting monday i will be getting the court bundle completed and will require help and advice as to what goes where i have printed off about 220 pages so far but its all in a bundle which needs sorting but this is only some of the items needed.

 

will post on monday when i get started hopefully have it done by tuesday - have till 9th july to get it in.

[Tiffla]

Go for it, Darkrage!!!

 

I sh1t myself doing the bundle, but as it comes off the printer, it gets quite enjoyable!!!!

Almost to the point of "okay - i WANT to go to court now".

 

I'm no expert on here, but i will help as much as i can.

 

Good luck;)

[darkrage]

ok guys help needed in my statement of evidence i am citing robinson vs harmen but in all of the cases i got with various bundles - none have this case of which i refer to so does anyone have a link for me?

 

also here is my statement of evidence for you to look at

 

 

Claim Number: *****

 

In the Mold County Court

 

 

 

 

Between:

Steven Bennett

(Claimant)

 

and

 

 

 

HSBC Bank Plc

(Defendant)

 

 

 

_________________________ ______

 

STATEMENT OF EVIDENCE

 

_______________________

 

 

 

 

1. The Claimant has the accounts ***** (“Account 1”) and ****** (“Account 2”) and ******* (“Account 3") with the Defendant which were opened in 1993(“account1”) and 2005 (“Account2/Account3”) respectively.

 

2. During the period in which the Accounts have been operating the Defendant debited Fourty-Nine charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

 

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant submits that the charges levied to his bank accounts, as set out in the attached schedule, are, notwithstanding the contention of the Defendant, penalty charges arising from and relating directly to breaches of contract on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

5. It is admitted that the Defendant’s charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendant’s charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 4 above, exercises the contractual term in respect of such charges with a view to profit.

 

6. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

7. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty.

 

8. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have overdraft facilities with the defendant. These overdraft facilities have a contractually agreed limit, which is an express term of the bank account contracts between myself and the Defendant. When I exceeded the agreed overdraft limits, therefore breaching an express term of the contracts between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge, the charges range from £10.00 - £125.00.

 

9. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for;

 

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

I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem".

 

10. The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously.

 

11. The Claimant refers 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 that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 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.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

12. As submitted above, the Claimant believes the charges levied to his accounts to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contracts between itself and the Defendant. The Claimant vehemently refutes the Defence’s contention that they are legitimate contractual service charges.

 

13. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

14. Further, under the UTCCR:

 

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

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 of the contract.

 

The cost of HSBC's charges have increased on more than one occasion during the period in which my accounts have been held, at no time was I given the opportunity to negotiate, or even notified of these increases. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

15. Following on from the above, the claimant does not accept The Defendant’s contention that the charges are enforceable as a service charge. 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 bank’s right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

16. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that 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.

 

17. 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 and how such clause may be ascertained from a liquidated damages 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"

 

18. The Claimant will further rely on numerous recorded authorities dating throughout the 20th Century up 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.

 

29. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

20. The Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches, including a written request in March 2007. Each time those requests were rebutted or ignored.

 

21. In a recent study undertaken in Australia, (Nicole 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 debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 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 Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

22. 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.

 

23. For their 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.

 

24. It is submitted that the Defendant’s 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 ranging from £10.00 – £125.00 by carrying out this completely automated process. Note that the letter received notifying 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.

25. 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".

 

26. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

27. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. 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 punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

28. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 2017.5;

 

 

b) Court costs;

 

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 16/03/01 to 10/02/07 of £413.5 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.45.

 

I, the Claimant, believe all facts stated to be true.

 

 

Signed, dated.

 

 

 

Documents attached in support of this statement

• Office of Fair Trading report, April 2006
  
• House of parliament early day motion, May 2006
  
• BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission
  
• Australian Default charges report, Nicole Rich - Domain Names, Web Hosting, Web Design, Search Engine Optimisation, and Search Engine Marketing at Melbourne IT
  
• Relevant case law summary
  
• Dunlop v New Garage [1915]
  
• UTCCR 1999
  
• UCTA 1977
  
• SOGA1982
  
• Data Protection Act Subject Access Request for evidence of manual intervention (included in correspondance)
  
  
• All Statements where charges have been incurred
  
• 1996 HSBC BANK Plc (Midland Bank Plc) Terms & Conditions extract
  
• 2004 HSBC BANK plc Terms & Conditions extract
  
• Correspondence

[freakyleaky]

I have not seen that one! I will have a scout round jsut now!

[darkrage]

dont worry about it freaky - its 270 pages long now so im sure i have enough in there to sway it in my direction also i have just dropped bundle off at printers who are copying it x2 and binding ready for postage today

 

270 pages printed and corollated in 3hrs - must be a record

 

need to do some highlighting on the t&c's before posting but thats it

 

the bit about t&c's above in statement instead of extract i just put all t&c paperwork in as suggested by someone above the biggest bit to the bundle was the australian report by nicola shed loads of pages lol.

[freakyleaky]

I was just going to say leave it out as I can't find it anywhere. 270 pages should be just enough. You have to carry that up 3 flights of steps at Mold.

[darkrage]

hihi no i dont the postman does as i should not need to carry mine anywhere dg should say now errm ok heres your money

[darkrage]

ok hre is my last nudge to dg to be sent with my bundle.

 

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

 

Date: 02/07/2007

 

Re: SBennett - v - HSBC

account no’s, XXXX

Case no XXX and filing date 16/04/2007

Court date XXXXXX

 

 

 

I am writing you today in a further effort to ask you to consider my claim and to also ask you to add my court bundle to your files as per District Judge Perry’s request, I have enclosed a copy of this bundle and have sent a copy to the court to be filed with my claim.

 

 

I have written to you in the past, asking for you to consider my claim and reply to me. I have heard nothing. When this case comes before District Judge Perry, it is obvious who is making any and all attempts at resolution.

It is my feeling that you seem to have no intention of defending this claim in court and are simply procrastinating.

 

I am mindful of the vast number of claims with which you and the courts are currently dealing. In order to more speedily resolve this matter, I am willing to accept the sum of £2651.00 this sum includes (£2017.50) charges, (£220.00) court cost’s, (£413.50) interest plus a daily interest rate of £0.45 per day from the date I filed the claim until the date it is resolved as a full and final settlement of this particular claim. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the courts would whole heartedly approve of our settling this matter in a timely manner and without their further intervention. I look forward to hearing from you.

 

Sincerely,

Steven Bennett

[freakyleaky]

Looks good to me steve. Don't forget there is a postal strike on so it might be better to deliver the courts copy by hand and then inform dg by email or voice message that the court has received their copy.

[darkrage]

when does the strike finish hmmm will look online - i could send it via ups or somethin.

[darkrage]

Industrial action: an update from Royal Mail

 

Update - July 2nd

 

Royal Mail is pleased to report that the 24-hour strike by postal workers is now over, and we are working hard to get back to normal as quickly as possible. We apologise to all of our customers for any disruption and inconvenience the strike may have caused.

We are dealing with the backlog of post in date order, which may affect services in the next few days, but we will do all we can to minimise any further disruption.

The position regarding further strike action is unclear. The Communication Workers Union must give at least seven days notice of any further action, and we have well-developed contingency plans that we will put in place in the event of this. We will do everything possible to minimise the impact on our customers should further strike action be taken.

We will continue to update this web site and you can also sign up to receive email updates.

[freakyleaky]

Well no worries then!

[darkrage]

ok bundles in post via special delivery guaranteed by 1pm tomoz

 

a quick question if dg now act on this how long before they contact me with the offer?

[freakyleaky]

I got the offer from dg the day after they received my bundle!

[darkrage]

well that would make me a happy bunny - marriage soon need to pay for honeymoon would be a better honeymoon if its on money owed by hsbc.