Phil & Alison V Coop 2

[phatram]

You're a star.

Thanks

[groovycaz]

Hey Celicaman im pinching some of that when the uncooperative pull the old statute barred, 'older than 6 years' stunt with my claim, thank you very much, best of luck phatram..GC

[phatram]

Where do you think I should put this bit?

 

c) The Defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the Defendant truly believes that these charges are lawful, then the Claimant contends that the Defendant is mistaken. As the Claimant only became aware during February 2006 that the charges debited were unlawful, then section 32(1 Xb), or section 32(1 )©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period.

If at all ?

[Celicaman]

Where do you think I should put this bit?

 

c) The Defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the Defendant truly believes that these charges are lawful, then the Claimant contends that the Defendant is mistaken. As the Claimant only became aware during February 2006 that the charges debited were unlawful, then section 32(1 (b), or section 32(1 )©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period.

 

If at all ?

 

I think i would probably go with putting it after no 7. so re number from there.. but im not quite sure if your wording is correct.

Where did you get that paragraph from.?

 

CM

[phatram]

Can't remember, I'm searching for it now.

[phatram]

Still can't find it .

The bit that bothers me is the Feb 2006 bit, any suggestions?

[phatram]

S.O.E was incorrect

[Celicaman]

Still can't find it .

The bit that bothers me is the Feb 2006 bit, any suggestions?

 

Ok, consulted with other half.

As i dont know what you have put before this quote and its labelled as ©

It should read before it

© 'The claimant contends that'

The defendant has concealed..etc.....................

 

and the rest is fine

 

 

Yes the date is strange as i thought it was april, it could be that the oft report of feb 2006 was published april 2006 ?????

 

Also in your statement, im not sure because of your claim starting in 1999 if you can still refer to the 1999 utccr, as they are same year, check that as well. If not then you rely on the utc 1977 ?

 

Going to check some other stuff later when home.

 

Celicaman

[phatram]

Cheers.

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/104039-help-o-e.html#post987223

[phatram]

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/75783-phil-alison-co-op-3.html

Hi,

would someone look at Co-Op's defence for me please and advise which S.O.E to use.This is urgent as I'm going away next week and so have to take it to court in the next two days.

And then look here,

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/104039-help-o-e.html

And advise please.

Many many thanks

[Celicaman]

hi, are you sorted yet.

I would go with zootscoots version. Both reasons are valid on the mistaken paragraph, but the one where we we mistaken in allowing the banks to take funds until disclosed in 2007 seems to carry more weight.

I think because it was not specific to any one bank, whereas the 2006 OFT report was more to do with credit cards, although the OFT did say in its report that it should also be for bank accounts it was not that specific.

Could do with somebody doing a histogram of who reported what & when LOL, and also what the hell it meant

 

CM

[phatram]

Hi,

finding this very confusing!!!!!

Getting very frustrated, do you mean use your SOE but with Zoots bits in it?

And thanks again

[phatram]

Between:

xxxxxxxx -And-

The Cooperative Bank Plc

 

(Defendant)

 

 

 

1st WITNESS STATEMENT OF

xxxxxxxxx

 

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 28/02/07 I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant refund the charges.
   
5. Upon unsatisfactory response from the Defendant, On 19/03/07 I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.
   
6. Upon a further unsatisfactory response from the Defendant, On 27/04/07 I filed a claim at Derby County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim.
   
7. The Defendant acknowledged service of the claim on 04/05/07.
   
8. The Defendant filed its defence on 30/05/07.
    
    
    
    
    
   Overview
   
9. 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 Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.
   
10. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. 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 unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.
     
     
    Disguised Penalties, breach of contract and statutes of limitations act
    
11. 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.
    
12. I believe the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one which the consumer agrees is at a reasonable market rate commensurable with the service provided. I believe it to be inconceivable that the charges levied to my 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.
    
13. 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 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. 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 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 between of £10.00 and £35.00 or multiples thereof.
    
14. 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 standing order or direct debit, or overdraft drawings. 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.
    
15. 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 consumer and destroy the body of common law on liquidated damages which has been built up over the last 100 years.
    
16. 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.
    
17. The Defendants comments that my claim is statute barred is in my opinion incorrect for the reasons I set out below.
    
18. The Cooperative Bank have already paid beyond 6 years plus interest at 29.9% to my wife MRS xxxxx xxxxxxx who is the joint account holder with myself.
    
19. a). In so far as any charges relating to the period before 21/09/2000, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.
     
    b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.
     
    It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public

Office of Fair Trading Analysis

1. 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 within their interpretation of the UTCCR. With regard to the 'cloaking' or disguising of penalties, the OFT said this;
    
   "4.21.Disguised Penalties
   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".
   
2. 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."
    
    
   Unfair Terms in Consumer Contracts Regulations 1999
   
3. In the absence of an express term of the account agreement prohibiting exceeding the limit of the overdraft facility and/or prohibiting the payments of standing orders and direct debits without sufficient funds, I will aver that there is a term implied to the same effect. Without such term the consumer would be afforded no protection whatsoever from the inequity between the bargaining powers of the parties, and it is an intended effect fundamental to the UTCCR and other consumer contract regulations to imply terms in order that such great imbalance in the rights of the parties is redressed to some extent.
   
4. 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."
   
5. 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.
   
6. The cost of The Cooperative Bankscharges have increased substantially and indiscriminately during the time my account has been in operation, at no time was I ever given the opportunity to negotiate, or even notified of this increase. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my detriment, and to their advantage.
   
7. 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 consumer and the intentions of the consumer regulations.
    
    
   Penalty Charges
   
8. 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.
   
9. 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.
   
10. 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.
    
11. 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"
    
12. 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.
    
13. Further, under the UTCCR, 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"
    
14. 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.
    
15. 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.
    
16. 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 £4.5 billion in profit a year from their charging regimes.
    
17. 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 £30 - £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.
    
18. 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".
    
19. 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.
     
     
    Supply of Goods and Services Act 1982
    
20. 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.
    
21. However, and without prejudice to paragraph 18 above, 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.
    
22. If the charges are services, there must be a correlation between the service provided and the cost. The cost of The Cooperative Banks charges has increased substantially and indiscriminately during the time the account has been in operation. Further, there have been numerous 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
    
23. 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 consumer legislation such as the UTCCR. 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.
    
24. Statement of Truth
     
    I, the Claimant, believe the facts stated within this Witness Statement to be true.
     
     
     
    Signed:

Dated:

[phatram]

Hi Celicaman,

take a look here please and let me know what you think.

Thank you.

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/104039-help-o-e.html#post989812

[phatram]

Anyone?

[phatram]

Sorry to put this here, but I have to take this to court tomorrow.

Phil & Alison V Co-Op 2

Hi,

would someone look at Co-Op's defence (above) for me please and advise which S.O.E to use.This is urgent as I'm going away next week and so have to take it to court in the next two days.

And then look here,

Help with S.O.E

And advise please.

Many many thanks

[hedgey06]

phatram, I've asked for further advice on the above.

[caro]

4 threads merged. It's hard to help when you don't keep all your progress on one thread.

 

Unless I'm missing something in the defence you have posted, I didn't see anything about a service, so you should not use the above SOE in my opinion, although I'm not an expert.

[livelylad]

Thread moved to the Co-op forum.

[phatram]

4 threads merged. It's hard to help when you don't keep all your progress on one thread.

 

Unless I'm missing something in the defence you have posted, I didn't see anything about a service, so you should not use the above SOE in my opinion, although I'm not an expert.

 

Would you please tell me which paragraphs to leave out, eg, number 12, 42 etc.

Thank you

[why!!!!!!]

Hiya

there is a S.O.E posted on here somewhere by peter rabbit which covers both angles (service and pre estimate) i will have a look and post it here for you.

claire

[phatram]

Thanks

[why!!!!!!]

This is all i can find so far http://www.consumeractiongroup.co.uk/forum/show-post/post-492578.html .

i will carry on looking

[phatram]

Thanks Caro,

sorry to be a nuisance but this is getting urgent.

Surely it wouldn't hurt to have bits in which maybe irrelevant as the court will just ignore them?

We think we will go with it and cross everything!

Thanks for your help.

[caro]

I'm sorry, but I'm really no expert on SOE's, and can't seem to find anyone around today who is. At the end of the day, the claim is yours and you must do as you see fit, but I would suggest that you make sure that you do cover the issues raised in the defence.