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LoidPhil v HSBC **WON**


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Things going to schedule, HSBC acknowledged the claim on 02/04 and have, by my reckoning, until 26/04 to enter a defence. No doubt they will do this at the last minute.

 

Two things - firstly I note that people are sending nudging letters/emails to DG to try and initiate an offer. Is this only happening once a defence has been issued, or is there any benefit in my sending an email now (i.e. pre-defence)?

 

Secondly, as per the advice from Lateralus, I sent a copy of my schedule of charges to MCOL, and then one to DG once they had acknowledged the claim. As with all of my other correspondence throughout this process I sent both by Recorded Delivery. To be completely honest I forget to track receipt as I've never had any problems before, but I've just checked and it seems that the copy to MCOL was never delivered. Trust Royal Mail to balls things up just at the wrong time! My question is whether, at this stage, the copy to the court is that important? Do you think I should send it again now, or wait until a defence has been filed?

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i'd wait to nudge to see what comes through from the court. also, i'd send a copy to be attached to your file - as it is the proper procedure - don't want anything wrong.

once they've defended (you can try pressing the button - but they will 99% of the time defend and even late - the courts let them file it - but go ahead and try). i think you can ring dg once - to make sure they have a copy of your breakdown - then do it all by letter.

so, press the button,

send the court a breakdown

wait to see what the court sends you

ring dg once to see if they have your breakdown

then start to nudge - an offer is the goal - so a nudge every 10 days until they send an offer.

New---after 28 Days - Maybe No Aq!!!!!!!

this may help.

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Accordinging to my reckoning the 28 days which HSBC have to lodge a defence expires today. I logged in to MCOL after returning home from work tonight expecting to see that a defence had been filed but the status of my claim still shows as "Acknowledged".

 

I'm wondering if I've got my dates wrong? I submitted my claim via MCOL on 28 March, it was issued by them on 29 March, and HSBC acknowledged on 2 April. MCOL states that the defendant has a total of 28 days from the date when they are served with the claim to reply. I have taken this 28 days to be from the date the claim was issued, not from the date they acknowledged, which means that today is day 28. Have I got this wrong?

 

I think I'll probably ring MCOL tomorrow to find out what's what.

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and even at that - the courts routinely give the banks an extra 7 sometimes 14 days to file - it ain't fair but that's the way it is. try pressing the button or even just after midnight - but they will most likely defend at the last minute.

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Well at least I can stop thinking about the date that they need to defend by because they've entered a defence. My MCOL status now shows "Defence (29/03/2007)" - wouldn't you have thought it would show the date they entered the defence??

 

Anyway I'm now going to compose an email to Kate Eaves @ DG to double check that she received the schedule of charges that I sent to her once they had acknowledged the claim (I know she has because it was signed for - but HSBC have a tendancy to lose my documents, even after signing for them!). This is more intended to get me known to her than anything.

 

One final thing is that throughout these threads I've actually been referring to "my" claim, although I'm actually doing all of this stuff on behalf of my wife who's now 8 months pregnant. She tends to get stressed out about stuff like this and is panicking now incase she needs to attend court around the time that the baby's due. This is why I'm trying to keep her involvement minimal and have done most things myself thus far (with her agreement obviously). The problem is that it's now getting to the stage where she's going to need to be involved more - making phone calls to various people for instance. I was wondering if it would be worthwhile mentioning this to DG in the email and giving authority for them to deal with me directly? What I don't want to do is play the pregnancy card and then them use that as some form of bargaining tool - we want the lot! The other thing is that it kind of gives away the anonymity of this thread (i'm sure they must read this board).

 

On the other hand maybe it will work in our favour mentioning it. I'm sure they wouldn't want any attention to be drawn to the fact that they've messed around an expectant mother throughout this whole saga! Hey, maybe we can go for damages! (that's tongue in cheek btw)

 

The timing of all this stuff couldn't be worse really!

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i did this for my son and he really was involved very little - signed the letters and that was it until dg offered and we accepted and the money was slow in coming - he got mad and rang - and that was the only time - could have done without him alltogether - lol! don't worry on that score.

so, it's been defended - wait until the court papers arrive and then start the nudge letters - one every 10 days until they offer. check the thread we've got going in my signature: new - 28 days.......

there are ideas for nudging letters in post 1

you could go ahead and send the letter you are talking about or wait a day or two and send a nudge (and another breakdown with each one) put in the letter that you would like to know that they have received your breakdown.....

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  • 2 weeks later...

We've received a Notice of Transfer of Proceedings in the post this morning but I'm a little puzzled as to whether the AQ has been dispensed with or not???

 

The Notice of Transfer of Proceedings states to "Please read the accompanying documents carefully and note that the allocation questionnaire should be returned to the (court of transfer)".

 

I then turn the page and it appears that District Judge Murdoch sitting at Northampton County Court (not the court of transfer btw) has, without hearing, ordered that "The filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise.

 

The remaining 2 pages appear to be photocopies of DG's defence submission papers, and then there's a mediation leaflet.

 

Probably all standard stuff but it's just baffled me a little in that the first page indicates that we need to return the allocation questionnaire, and the 2nd seems to suggest that an order has been made for it to be dispensed with??

 

There's also no indication of what happens next. Will I receive something from the court of transfer shortly with dates for hearings etc?? Do I start the "nudging" process now or wait until I hear something definite re a court date? Help!!!!

 

Thanks,

LP

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it normal - it's because the paperwork always refers to the aq - but in these cases it is being dispensed with - so no aq - and yes, start with a nudge letter to dg. post one on my thread about aq's has some ideas to start with - and i suggest a letter every 10 days.

you will no doubt receive some further instructions from the court sometime soon. several have had judge m listed on their paperwork - could probably put him in the blue line search above the posts and see some others - but for now - just wait a little - in a week or so - it might be advisable to ring the court and ask if the aq fee will be required - that also seems to be up to local courts now and mostly it isn't required but a few do still require it when they allocate a track.

so it's best to ask.

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  • 2 weeks later...

We've received notice that our claim has been allocated to the Small Claims Track to be heard at 10:30 on 20 August 2007. The following directions apply to our claim:-

 

1) Each party shall deliver to every pther party and to the court office copies of all documents (including experts' reports if the Court has given permission for expert evidence to be used) on which he intends to rely at the hearing - I guess this is copies of all of my correspondence to date with HSBC (and subsequently DG), plus the statements printed from the HSBC website showing the charges, plus the basic court bundle that I know is somewhere on this site. Is that the lot? Do I take it that DG have to prepare the same and send it to me?

2) The copies shall be delivered by 4pm on Wednesday 20 June 2007 - Is it best to prepare all of the above as late as possible in terms of this deadline. I'd hate to waste my time with all that copying if I'm not going to need it.

3) The original documents shall be brought to the hearing - Yep, I understand that.

 

4) Signed statements setting out the evidence of all witnesses (including expert witnesses if permission has been given to use them) on whom each party intends to rely shall be prepared and copies included in the documents mentioned in paragraph 1. This includes the evidence of the parties themselves and of any other witnesses whether or not the witnesses are going to come to court to give evidence - What on earth is this???

5) The court must be informed immediately if the case is settled by agreement before the hearing date - please, let it be!!

 

There's no mention of the requirement to complete an Allocation Questionnaire, but similarly there's no indication that the District Judge has ordered that it be dispensed with. I'm taking it that it has been dispensed with unless anyone has an alternative view??

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this is from post one of my aq thread:

 

Also on the COURT side of things:

If the judge agrees with the draft order and makes it a direction, it will come back to you and you will have 14 days (the date will be on the paperwork) to send in four things.

a) your schedule of charges.

b) your statements showing the charges. Alternatively, the list of charges which the bank provided under your S.A.R (subject Access Request) (only send the statements with charges on them.)

c) A Statement of Evidence: (post 55 in the new strategy): New strategy for Allocation Questionaires

d) All the statutes and decided cases on which your claim relies. ie, UTCCR's, UCTA's, SOGA, case law, etc. For this, I'd just submit the whole of the Basic Court Bundle.

This whole thing runs to around 200 pages and should be done in triplicate: one copy for you, one for the court and one for dg – that’s 600 pages of copying – LEAVE IT UNTIL YOU KNOW FOR SURE YOU NEED IT. If an offer comes in from DG and is accepted you wouldn’t need it. Really leave it until you have to do it to meet the deadline set by the court!

 

 

 

these are the same four things you would need for that date -

 

 

there are links on the fuzzy ones - and yes,you've got all the rest correct.

 

i'd say you'll be looking at an offer well before 20 june and so, now if you haven't before - you nudge - write to dg every 10-14 days with a breakdown - and include details like i see the judge has..... 20 june.....

etc. get it -

there are ideas in post 1 of both my aq threads.

carry on nudging.........When you have filed your AQ................

New---after 28 Days - Maybe No Aq!!!!!!!

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  • 2 weeks later...

Well, 2 nudges down and still no contact from DG. I think I may try an email for my 3rd as I'm fed up forking out £1.05 of my hard earned to the Post Office just to be ignored!

 

Anyway, I thought it's high time I did a bit of prep work for the court bundle that I may need to submit. Infact I'm thinking of compiling and sending it sooner rather than later (has to be delivered before 4pm on 20 June) in the hope of showing DG that I mean business.

 

The one thing that has concerned me for some time, although stupidly I haven't thought to seek advice until now, is the (lack of) hard evidence that I have to support the claim. Infact it's fair to say that the only evidence I have which is specific to this claim is 50 or so printed statements (taken from HSBC's online banking service) depicting various "Total Charges" that were taken from the account. Unfortunately my wife kept no letters forewarning of impending charges, no original statements, zilch!

 

I appreciate that the statement of evidence template on this side needs to be edited to a degree in order to personalise it to each specifc claim, but I can only think that point 7 is particularly crucial in proving that it is only recently that HSBC have inferred that charges for going overdrawn are a service charge and not a penalty. Unfortunately though I have no personal evidence that that is the case.

 

That being the case should I omit point 7 from my statement of evidence, or should I make an effort to contact HSBC to ask that they provide copies of all letters that were sent to my wife to notify her of impending charges in the hope that somewhere down the line they have referred to a "penalty"?

 

For the record point 7 states:-

 

7. 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. Here, add in details of any correspondence in which the bank referred to the charges as ‘penalties’, ‘defaults’ or ‘exist to cover costs’, etc.

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Thoughts have now turned to my next nudge letter (the 3rd). I'm thinking of sending it by email direct to Kate Eaves, but will probably follow it up by a hard copy as well. I'm also considering a slight change of tack in terms of an acceptable settlement.

 

What I intend to propose is for them to offset the outstanding overdraft (which is virtually maxed up) against my full claim amount. Essentially it adds up to the same sum, but I'm hoping that it may be a bit more palatable to them and help things to move along a little faster. Plus I also figure that it demonstrates to the District Judge that I've tried to be flexible in terms of resolving the matter without his intervention. Thoughts???

 

 

Dear Kate,

Claim No xxxxx etc

I refer to my previous letters of xx and xx May.

Whilst I appreciate that you are likely to be inundated with claims similar to mine, I am, nonetheless, disappointed that you have not even acknowledged receipt of my correspondence.

I have now compiled the original paperwork in terms of the evidence that I intend to rely on, as ordered by District Judge xxxxxxx. This evidence includes, but is not limited to, copies of all correspondence with both yourself and your client in respect of this claim, a statement of evidence, copies of relevant bank statements, plus copies of your clients earlier Terms & Conditions as applied to my account.

The 2 copies that I am required to provide (1 to you and 1 to the court itself) amounts to a considerable amount of preparation time and personal expense. This in addition to the extensive time that I have already spent in what has, thus far, been a virtual one way communication exercise on my part with both yourselves and, before that, your client.

If it is not your sincere intention to proceed to court to defend this claim then I hope that you will give some genuine consideration to my previous proposal to settle this matter forthwith.

Although my previous proposal for an immediate settlement to this matter still stands, you may wish to put the following proposal to your client by way of an alternative means of settling this matter. My account with your client currently carries an agreed overdraft limit of £xxxx. That being the case I would be prepared to settle this matter with your client by way of a payment of £xxxxx and the clearance of the aforementioned overdraft; effectively my account to be placed in credit to the sum of £xxxxx plus the difference between my existing balance and my maximum overdraft limit.

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it's an idea - and i guess you'll have to try it to see if it works - my only thought on this is - court bundles due 20 june - that's just 3 weeks away now - and the game up to now has had these rules - both court bundles due the same day, you send yours in, dg won't, dg sends offer. you can try this out - as there are about 3-4 going in just now - so i'm saying in less than a week all of them should have offers. just playing devil's advocate!

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  • 2 weeks later...

Apologies in advance but hold on to your hats cos it's a long 'un!

 

Court Bundle needs to be submitted 20 June, wife already 4 days overdue with baby, so thought I should get my finger out and start pulling everything together ready for printing before it all gets rather hectic! I'm quite happy with what I need to submit (thanks Latty!), but I'd like a fresh set of eyes to mull over my statement of evidence, so I'm posting it below (minus all personal info of course).

 

I'm particularly interested in thoughts on paras 10 & 11 as I've added these in as my own interpretation of how the terms & conditions of the account were breached by my wife (para 10) and how the descriptions of the charges applied by HSBC contradict their "service charge" defence (para 11). Is there anything else within the T&C's that need to be highlighted in support of the claim? Do I need to PM a Moderator and have them take a look? Thanks in advance for any comments.

 

Cheers,

LP

 

 

 

Claim Number:xxxxxxx

 

In the xxxxxxx County Court

 

 

 

 

 

Between:

 

xxxxxxxxxxxxx

 

 

(Claimant)

 

 

 

and

 

 

 

HSBC Bank Plc

 

 

(Defendant)

 

 

 

 

 

_________________________ ______

 

STATEMENT OF EVIDENCE

 

_______________________

 

 

 

 

 

1. The Claimant has a Bank Account (“the Account”), account number xxxxxxxxxxx, with the Defendant which was opened circa 1993 with the then Midland Bank (now HSBC Bank plc).

 

2. During the period from xxxxxxxxx to xxxxxxxx the Defendant debited thirty-nine separate charges to the Account 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 (further evidenced on the enclosed prints of the relevant monthly bank statements taken from the online banking services that are available on the Defendants website; Home: personal, business, online, internet, banking: HSBC Bank UK) is attached to these particulars of claim.

4. The Claimant submits that the charges levied to the Account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, penalty charges arising from and relating directly to breaches of contract, both explicit and implied, 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 Defendants charges were levied in accordance with the terms and conditions of the Account. However, it is submitted that the Defendants 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 10 below, 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 her 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 an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded this agreed overdraft limit, 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 ranging from £10 to £100 (as stated on the enclosed schedule of charges).

 

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 believes that she was in breach of the terms and conditions that applied to the Account and would like to draw specific attention to clause 7.3 of the Midland Bank Terms and Conditions 1996, superseded by clause 7.4 of the HSBC Personal Banking Terms and Conditions 2004 (and earlier versions), which respectively state:-

  • 7.3 You must not go over any overdraft limit that is agreed with us unless you get our agreement first.
  • 7.4 You should always stay within an agreed overdraft limit unless you get our agreement to increase this first.

The Claimant believes that, by exceeding her agreed overdraft limit without prior agreement with the Defendant, she has effectively breached the terms of her contract and, therefore, the charges applied by the Defendant are penalties associated to these breaches.

The Claimant can confirm that these clauses were replaced (or reworded) effective from 1 December 2006; after the period to which this claim relates.

11. Further, The Claimant would like to draw attention to clause 7.9 of the Midland Bank Terms and Conditions 1996, superseded by clause 7.13 of the HSBC Personal Banking Terms and Conditions 2004 (and earlier versions), which respectively state:-

  • 7.9 As well as charging interest for unauthorised overdrafts, we may also charge a fee to cover the cost of the administration involved (see the relevant price list).
  • 7.13 As well as charging interest under clause 7.10, we may also charge our applicable fee for reviewing overdrafts not agreed in advance on each occasion that your Bank Account goes overdrawn, or further overdrawn, without an agreed overdraft. We may also charge this fee when your Bank Account goes over, or further over, any agreed overdraft limit. This fee is to cover our management and administration costs (see the relevant price list for details of the fee).

The Claimant can confirm that these clauses were replaced (or reworded)effective from 1 December 2006; after the period to which this claim relates; specifically that the description of the fee was changed to exclude any reference to a fee to cover management and administration costs.

The Claimant contends, therefore, that the “cost of administration”, and thereafter “management and administration costs” which the Defendant has applied to the account must be proportionate to the actual costs incurred as a result of the claimant’s breaches. The Claimant disputes that charges ranging from £10 to £100 are excessive in the extreme and cannot, in any way, represent the actual costs incurred for what is, effectively, an automated operation. The Claimant has made several attempts to clarify the actual costs incurred by the Defendant as a result of the breaches but has received no response. Paragraph 23 below contains an impartial view on this issue which states that the maximum conceivable costs that could be incurred by a direct debit refusal or overdraft excess is £2.50

12. 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”.

 

13. As submitted above, the Claimant believes the charges levied to the Account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

14. 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.

 

15. 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.

 

16. Following on from the above, the claimant does not accept The Defendants 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 banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

17. 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.

 

18. 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"

 

19. 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.

 

20. 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. On numerous occasions, the Claimant has 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.

 

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 Defendants charges are applied by an automated and computer driven process, resulting in a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of up to £100 by carrying out this completely automated process.

 

25.22nd 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.

 

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

 

Signed, dated.

 

 

 

 

Documents attached in support of this statement

 

 

 

  • Schedule of Charges (prints of the relevant monthly bank statements taken from the online banking services that are available on the Defendants website; www.hsbc.co.uk).

  • Copies of all correspondence with the Defendant (and their representatives) in relation to this claim.

  • Relevant case law summaries.

  • Office of Fair Trading report, April 2006.

  • House of commons early day motion, May 2006.

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The Claimant disputes that charges ranging from £10 to £100 are excessive in the extreme and cannot, in any way, represent the actual costs incurred for what is, effectively, an automated operation
.

 

So you don't think they are excessive? :D

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Excellent. You've done exactly what you'd need to do if a claim was ever seriously contested - quote the specific terms you alledge have been breached and demonstrate how.

 

Is there a term relating to DD/SO's? I.e. that you must not allow payments to be made from your without sufficiant funds, etc? If so include that within para 10.

 

Include some paragraphs from here as well if you like. This is all relevant to HSBC claims becouse they defend on exactly the same basis as Lloyds -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82148-got-court-date-important.html#post732096

 

Since the Berwick judgement we are actually working on witness statements for specific banks which state the individual terms you allege to have been breached - obviously these things take time though!

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Well, 2 Inkjet Cartridges, 1 and a bit reams of paper, and about 7 hours of printing and collating later, the Court Bundle is all done.

 

I've hand delivered 1 copy to the court this morning and sent another, by Special Delivery, to DG. Rather funny when the lady at the Post Office asked the value of the contents and I explained that there were 200+ sheets of paper that were, hopefully, worth £xxxx!! Could be rather interesting if they fail to deliver them as once I had told her that the cost of delivery went up another £2! Fingers crossed for an offer soon.

 

Has anyone ever managed to speak to DG? I've left 3 voice messages on the phone number that they put on the defence paperwork to MCOL (which belongs to Rachel Tomlinson, despite Kate Eaves' name being on the paperwork??), most recently yesterday when I phoned to obtain the name of the person to whom the court bundle needed to be addressed (as none of my letters addressed to Kate have been acknowledged let alone replied to), but still they didn't ring me back. They've seriously hacked me off :-x , especially as our baby is now 8 days late and showing no imminent signs of appearing!!

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Good luck with your claim. My prediction is an offer tomorrow or saturday! I sent an email asking for name and address to send bundle and they actually replied with the information! My offer came the day after aI sent the bundle!

Best of luck with the baby!

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Incase you need them!

 

Rachel Tomlinson 0121 455 2701 [email protected]

Debbie Daubney 0121 455 2111 [email protected]

Kate Eaves 0121 455 2196 [email protected]

Alan Burden 0121 455 2206 [email protected]

 

Oh yes and 999 for ambulance service!:)

[sIGPIC][/sIGPIC]

 

Welcome to the Consumer Forums

Free advice and support to to solve your consumer problems.

You will soon discover what a friendly place this is and get lots of hints about standing up to consumer bullies or dealing with other consumer rights.

 

Which guide to the Sale Of Goods Act

 

New advice guide explains credit card rights

 

Help the CAG!!

Make a donation

 

ARE YOU A VICTIM OF COWBOY BUILDERS?

 

Has your RBS account been transferred to Santander?

 

Forum rules. Please read these before posting

 

PLEASE CHECK OUT THE CAG LIBRARY!! IT HAS LOADS OF USEFUL STUFF IN THERE. CLICK HERE

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