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HSBC-Business account closed anyone tried to exceed 6 year Law


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My business closed May 2001 but I continued to pay off debts through my private account.

Business failed and I am damn sure there will be monies I could claim if not for six year ruling.

What do you think?????????????

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  • 10 months later...

I have notification that HSBC have informed DG to accept proceedings from me.

It is my intention to commence proceedings on Monday.

Can anyone forward a template for a business account - POC that is for a claim beyond six years please?

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Can anyone have a look at this POC and give me their thoughts please?

 

Particulars of Claim:

 

1.The Claimant had a Business Bank account with HSBC (branch sort code xx-xx-xx) with the Defendant, between the periods of xx/xx/1994 and xx/xx/2003 which was governed by the Defendant’s Banking Terms and Conditions (the contract).

The relationship between the Claimant and Defendant is that of Customer and Banker.

This was held by the House of Lords in Foley v Hill (184 2HL Case 28 to be a relationship of contract).

The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

The Business account was held by the Claimant with the Defendant to be used primarily for the purposes of the Claimants Business banking activities, consequently any contract or account terms and conditions were never covered by or subject to the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR99) due to definitions as defined by paragraph 3. –(1){t2} of said regulations clearly excluding business accounts, ‘consume’ means any natural person who, in contracts covered by these regulations, is acting for purposes outside his trade, business or profession;

Thus the Claimant contends that;

i. The Defendant cannot make any reliance upon or reference to any other similar cases (whether past, current or pending) that were or are otherwise reliant upon UTCCR99 by way of any attempt or excuse to delay any compliance with any timetables set by the court.

ii. That as the present actions being taken by the Office of Fair Trade (OFT) (claim no: 2007 folio no: 1186) against the Defendant and similar institutions are clearly particularised as being solely in relation to the reasonableness of the Defendants contractual terms under UTCCR99, that such case should not be considered as to have any current or future bearing or relevance upon the conduct or outcome of this case.

Therefore under the overriding objectives of CPR1 the claimant respectfully pleads; that as the OFT’s current case is based upon wholly different particulars, it would be unjust for the court to declare any stay in proceedings if done so based upon awaiting the outcome of the OFT’s current case.

Similarly, the claimant respectfully requests that the court should also discount any applications for a stay by the Defendant if made upon similar grounds, and also that they should not be afforded any special considerations by the court if they attempt to delay or waiver their obligations in properly dealing with proceedings in a timely manner.

 

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

 

3. The Claimant’s breaches of contract have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xx/xx/1994 and xx/xx/2003. A list of the charges and interest on the charges is annexed to the Particulars of Claim.

 

4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendant on said charges.

In addition the Claimant claims Compounded interest on the full amounts as detailed in paragraphs 19 & 20.

 

5. In support of his basis of claim the Claimant contends that the charges are:

i. Excessive in that they are not truly reflective of any actual or genuine pre estimated loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant.

If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses, or pre-estimate of costs in relation to the Claimant’s accounts breaches.

Since the Defendant has been invited to do so prior to the issue of court proceedings, and has failed to do so, the Claimant thus contends the Defendant’s charges to be indefensible, unenforceable at law, and unauthorised.

ii. Excessive in that the Defendant is being at minimum fairly and amply compensated otherwise for unauthorised lending by the imposition of unauthorised overdraft interest rates.

iii. Devised and enforced by the Defendant with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit.

iv. Punitive in nature in that they are used in "in terrorem" to discourage the Claimant from presenting items on the account for payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforceable under common and/or statutory law.

 

Accordingly the Defendant’s default charges are a penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Defendant and therefore contrary to common law.

In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.

 

6. The Defendant has declined to answer the Claimant’s written requests for information about any manual intervention necessitated by, and/or any actual administrative costs incurred as a result of, the said breaches.

 

7. The Claimant contends that the Defendant failed to conduct itself in a manner befitting such a position of great trust.

The Defendant had a duty of care to safeguard all money entrusted to it by the Claimant, yet it repeatedly has taken sums and regardless of several requests has still failed to lawfully justify.

This amounts to a failure of the Defendants fundamental duties of trustworthiness, transparency, diligence and care.

 

8. The Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

 

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

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

c. Murray v. Leisureplay [EWCA Civ 963 ]

d. Nurdin & Peacock v D B Ramsden [1999] 1 W.L.R. 1249)

e. Lord Elphinstone v. Monkland Iron and Coal (1886)

f. Clydebank Engineering and Shipbuilding co v. Ramos Yzquierdo y Casteneda (1905)[AC6]

 

9. The claimant draws attention to a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006. The Claimant contends that it is not unreasonable to draw close comparisons between the functions and practices of Northern Irish and mainland UK Banks. This is thus reasonable evidence that the defendant is aware that the income derived from its default charges is;

(a) Excessive,

(b) Do not truly reflect the actual costs incurred in dealing with such breaches, and

© Unduly enriches the Defendant.

 

10. The Claimant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

 

a. The OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.

b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.

c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.

 

11. The Claimant seeks permission to proceed with the claim under section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimants right of action, before the report of the OFT was published on 5/4/2006.

Section 32(1) (b) of the 1980 Act postpones the commencement of the limitation period where;

b). "Any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges.

Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.

 

12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)© of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties. The Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

Section 32(1)© of the 1980 Act postpones the commencement of the limitation period where;

c). "The action is for relief from the consequences of a mistake"

The claimant cites inter alia Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter.

 

13. In respect of paragraphs 11 and 12 section 32 of the Statute of Limitations act (1980) stipulates that:

"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".

 

14. In regards to paragraphs 11 & 12 the Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

i. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349

ii. Deutsche Morgan Grenfell V Inland Revenue (2003) EWHC 1779 (ch)

iii. Cave v Robinson Jarvis (House Of Lords) [2002] UKHL 18

 

 

15. In regards to paragraphs 11, 12, 13, & 14 the classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

In the present proceedings the Claimant submitted a demand for payment on 2nd January 2008.

The Claimant sent a letter to the Defendant asking for a refund of the Charges and Debtor Interest then outstanding on the Account.

It follows on from the settled law that the Limitation Act will bite on the Claimant on 2nd January 2014.

 

16. Further evidence supporting the claimant can be found in the Defendants letter to the claimant of 16th January 2008 in which the reasons the defendant rejects the claimants claim are ‘that the defendant has not concealed the charges’.

In the Defendants letter of the 2nd January 2008 to the claimant the defendant advances the submission that the Claimant was aware of the charges and their nature by way of the entries on periodic bank statements.

In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, [1985] 2 All ER 947 PC the Privy Council held that there is no duty on a bank’s customer to check his statements cited at paragraph 11.5 of Paget's Law of Banking.

The Defendant cannot therefore rely on a statement entry to start time running for the purposes of the Limitation Act.

 

17. The Defendant wrote to the Claimant on 14th December 2007 offering to settle the amount claimed in respect of Charges of £402 for the period of July 2001 to November 2001 and £136 in respect of subsequent interest for the period of November 2001 to September 2003 totalling £543 plus £1155 added compounded interest at 14.8% Apr (as has been applied to the claimant by the defendant in Managed loan agreements that contained these charges) totalling £1693. The Claimant accepted the £1693 as settlement for the period of the claims between July 2001 and September 2003 only.

The Defendant therefore unilaterally advanced the sum of £1693 by way of cheque to the claimant without the need for court proceedings.

The Claimant accepted these sums as payment for the period of that claim only.

Consequently on the basis of the term “…or makes any payment…”

Therefore the Claimant has accrued fresh rights under section 29(5) (a) of the Limitation Act 1980 (See below) running from 14th December 2007. (5) Subject to subsection (6) below, where any right of action has accrued to recover--

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

 

18. The defendant by offering payment on 14th December 2007 of refund of charges & subsequent interest between July 2001 and November 2001 has already acquiesced a payment beyond the Statute of Limitations Act 1980.

The payment of £1693 in December 2007 by the defendant to the claimant for charges accrued in July 2001 some 6 years and 5 months earlier.

This would exceed the Statute of Limitations Act 1980 by some 5 months and itself is evidence of the defendant agreeing to overide the Limitations Act1980.

 

19. Accordingly, the Claimant claims:

a). The return of £xxxx.xx taken by the Defendant in charges and interest of £xxx.xx applied on the charges between the period xx/xx/xxxx and xx/xx/xxxx.

b). All court fees and expenses.

c). Plus Compounded interest at 14.8% as has been acquiesced to the claimant by the defendant, which was acceptable as to the defendant by way of the recent payment beyond 6 year Limitations Act 1980.

 

20. In regards to paragraph 18 the claimant refers to HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) [2007] UKHL 34 whereby Sempra Metals Ltd v Inland Revenue where an award of compound interest was necessary to achieve full restitution and, hence, a just result.

Lord Nicholls held that, in the exercise of its common-law restitution jurisdiction, the court had power to make such an award.

 

a). and or plus Statutory interest at 8% per year as prescribed by law under s.69 of the County Courts Act 1984 upon all sums claimed from the date of the first charge until the date of judgement.

 

 

 

I believe that the contents of these particulars of claim are true.

 

 

Signed:

 

 

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