Gez vs HSBC

[Gez]

Hi, I am going to follw the example set by bong & start a claim for my GF for charges back to 1999. She's really organised & has kept every statement she ever had so its time to read up & get going!

[Guest ian cognito]

Well done on your GF for being so organised, that will save you some time, plenty of reading advised before you start and I'm sure Bong will hold your hand along the way, and very safe hands they are!

 

Come back and shout if you have any questions.

 

Good luck.

[Gez]

Thanks Ian, much appreciated. I have already claimed from them 3 times for myself, but that was only for 6 years. This is a whole new ball game for me, but definitely one worth playing!

[Guest ian cognito]

Ah well - you can help me then! just waiting for their defence.........

[Gez]

Well fwiw, they entered their defence & settled in full on the same day for my personal accounts. Went to AQ stage for the business account. Both claims settled in full. That was last year when all this was aminefield for me. I applied 8% compound interest & they paid it! (unconditionally of course)

[Guest bong]

I'm watching:D

 

any idea how much the claim is going to be yet? and is this all pre-6 years or a mix?

[Gez]

About £3.6k after 15.9% apr. Its a mix 1999 - 2003. As long as the concequences of losing amount to no more that what it costs to bring the claim to court, I absolutely will not back down on the interest issue & will use this claim as a trial run for a bigger claim for my parents vs Abbey & Nat West back to the early 1990s as long as I can get hold of the rest of the data (we have some statements to about 1997).

 

Lets roll!

[Guest bong]

I seem to recall the overdraft interest rate has gone up from 15.9%, have you checked their website for the latest rate?

[Guest bong]

I've just checked and it seems to be 18.3% (wef Feb 2007) but you might like to check it yourself.

[Gez]

Excellent, it's now 18.3%

http://www.hsbc.co.uk/1/PA_1_5_S5/content/uk/pdfs/en/bank_ac_cards_trav_q4.pdf;jsessionid=0000u_4g9j90SWN0oIfJD5-ptyV:11j77gr6d

 

Now the claim is for £4.4k, well spotted bong!

[Guest bong]

did you have to twist your neck round to read their interest rates, or was it just my computer:p ?

[Gez]

lol, I'm a little unreasonable like that, I turned my monitor around

[Castlebest]

And this girl wants to use a pink teddy bear as her avitar whatever you decide on Bong it has to be blood red

 

pete

[Gez]

Right here is my prelim letter with a couple of lines borrowed from the lovely bong

 

I am writing to request a refund of £XXXX for penalty charges levied from my account No XXXXXXX Sort Code XX XXXX From Start Date to End Date, plus interest at the current contractual borrowing rate of 18.3% apr of £XXXX.

I have enclosed a detailed breakdown of all charges, including dates, amounts and reasons you gave for levying them. Also enclosed is a printout of the spreadsheet showing interest applied.

 

Regardless of the wording of any automated letters sent to me, these charges constitute a contractual penalty, as the amounts bear no relation to the actual loss incurred by you in relation to my purported breaches of contract. I remind you that such penalty charges are legally unenforceable under sections 5-8 of the Unfair Terms in Consumer Contracts Regulations 1999 and at common law.

I will rely on the provisions of S.32(1)(b) Limitation Act 1980 to argue that the six year period of limitation commenced with my discovery, through the OFT’s report of April 2006, of the bank’s deliberate concealment of the facts relevant to my right of action.

In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract, a penalty charge is not permitted. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

 

Please return the total amount of £XXXX within 14 days of the date of this letter.

 

I reserve the right to commence court proceedings to recover monies owed should you fail to comply with this request.

 

Yours sincerely

 

Going off tomorrow..

[progenic7]

Gez,

 

ok i made it to your thread matey

 

i'll PM ya a load of pre six year case law, though you will have to sift through it and decide what you want to argue infront of the judge (if necessary)

im a little concerned about the higher interest rate you may be using, dont get me wrong im all up for pushing on what you can get out of them but i have seen many cases where (on a pre six year/ time barred and or contractual interest claim) and the judge has said (or words to this effect) right young man what makes you think you can claim xxx% when for the last 17 years the bank has only charged you xxb%...

and usually at that point the claimant wants the ground to swallow them up...stumbles a little...the judge gets annoyed at the fact you tried such a thing without even thnking about it and then decides the whole contractual interest issue isnt a valid one.

 

FWIW and IMHO if your going down the contractual route (especially on a LA case) atleast use the interest rate the bank used on you, that way your arguments will look well thought out and professional, the judge will see your reasoning and very probably go with it.

I think you may have a hard enough time arguing the limitation act, without making things harder on yourself.

 

i am also just about to file N1's on two time barred cases, which i will be pushing all the way on CI, which i wont let drop, for two reasons, 1) to be perfectly honest im not loaded or anything but the money doesnt bother me (its only about £1500) and 2) to prove a point to some people that may be a little nervous about this whole issue, so for them im going to prove they will always pay up, rather than defend and risk proving their costs.

Of course the whole scenario changes if its 100% time barred claim, then you could be on tricky ground, but if its a mix of pre and post six year, and the account is closed, then you have nothing to lose and they will pay (within reason) anything you ask.

 

the last paragraph may seem somewhat of a paradox, but i feel its always best to err on the side on caution, expect the worst, prepare well and you will do well.

 

ill PM you mate with some handy notes

 

johnny

 

heres my threads mate, my PoC isnt on there just yet as im tweaking some final points for the LA cases (its 22 pages long and taken me 3 months to prepare) but the pre lims may help.

 

http://www.consumeractiongroup.co.uk/forum/mbna/59101-progenic-mbna.html

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/59100-progenic-rbs-advanta.html

http://www.consumeractiongroup.co.uk/forum/barclays-bank/59103-progenic-barclays.html

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/59099-progenic-halifax.html

http://www.consumeractiongroup.co.uk/forum/other-institutions/61874-progenic-line-finance.html

 

best of luck

[VeryTrying]

Of course the whole scenario changes if its 100% time barred claim, then you could be on tricky ground, but if its a mix of pre and post six year, and the account is closed, then you have nothing to lose and they will pay (within reason) anything you ask.

 

Hi, Gez, I've arrived here as well. What Progenic has said is what I've managed to work out too. My claim is fully over 6 years, but at least I'm not going for any interest (other than statutory, of course).

 

So, I'm taking things very, very slowly. Only done the prelim so far.

[Gez]

im a little concerned about the higher interest rate you may be using, dont get me wrong im all up for pushing on what you can get out of them but i have seen many cases where (on a pre six year/ time barred and or contractual interest claim) and the judge has said (or words to this effect) right young man what makes you think you can claim xxx% when for the last 17 years the bank has only charged you xxb%...

and usually at that point the claimant wants the ground to swallow them up...stumbles a little...the judge gets annoyed at the fact you tried such a thing without even thnking about it and then decides the whole contractual interest issue isnt a valid one.

 

FWIW and IMHO if your going down the contractual route (especially on a LA case) atleast use the interest rate the bank used on you, that way your arguments will look well thought out and professional, the judge will see your reasoning and very probably go with it.

I think you may have a hard enough time arguing the limitation act, without making things harder on yourself.

 

 

Thanks Johhny, I'll keep an eye on your progress. The rate I'm charging is the rate that the bank charges now, they have only one rate. Actually, that prelim is not actually the letter I sent. With help from VeryTrying, it was quite heavily revised. I'll post it below.

I have a few arguments to put forward about why I am applying CI that I think would be quite hard to argue against.

a) Claimant having been denied the opportunity to invest funds unlawfully taken. - A bit difficult to quantify, but the principle has plenty of merit. Anyone who took out a mortgage 8 years ago can show can easily show what this money could have done.

 

b) Claimant being denied the economic benefit in the first instance of funds unlawfully taken

 

c) The defendant having been unjustly enriched, being able to re-lend that rightfully belonged to the claimant at commercial rates many times over. - I would ask that the defendant show just what kind of profit they have made from the sums I am claiming over the last 8 years, I'm sure it would far outweigh what I am claiming in CI..

 

Like you, I am willing to push this all the way. I have already won 4 claims using CI so this one is now a shot to nothing. As long as the consequenses of losing only means losing court costs.

[progenic7]

Gez,

 

i totally understand and agree with the reasoning behind claiming contrcatual interest, but what i mean is (and i have seen this several times now) say for instance for the last 5-10 years (for example) the bank have charged say 16%, but just last week they have changed the rate to, say 17.2%, and you then use this rate.

The judge will want to see precise details of how you have come to your figures, and what he/her will almost certainly say is, what gives you the right to charge more than the bank has done over the last 8 years (remembering they only upped the rate last week).

 

if you see my point, the judge will be swayed on the contractual, but he will certainly want to see you have reasoned your maths properly and if he suspects you may be pushing your luck a little too much, then he will probably decide against it.

 

Do you see my point ? its not the CI thats the issue its the maths !

 

but as we all know, the banks will do anything to stay out of court, particularly on post six year charges because the entire crux of the argument is for them to prove the actual costs involved.

However on a time barred case, having slightly blurry figures on the CI will only cause you problems i fear, because the chances of the defence actually making an argument are higher. (they will/may try and argue the CI and the LA if they feel they can do that without compromising their position on the post six year charges)

 

all im saying is be careful on the CI, make sure you use either a constant figure (the same as the bank did) or use an average figure (but less than the bank did) so the judge can see where your coming from.

 

Johnny

[Guest bong]

hi Johnny, I'm interested to know what these cases were that you are referring to, because it's the first I've heard of the rate being queried on these grounds. As far as I know, other users have been applying the current rate to claims. It wouldn't be correct to pick a rate, say from December 2006, when there has been several rate changes during the period covered by the claim and you would have to justify why you used that one. I think the hardest part is convincing the court that there is an entitlement to contractual interest - if you can get the bank/court to agree to that, but not the rates used, then it would be just a matter of getting the calculator out to alter the figures.

 

I know statutory interest isn't comparable in all senses but say for arguments sake the statutory rate was raised to 9% next week. Claimants wouldn't have to apply 9% to part of their claims and 8% to the rest.

[Guest bong]

seen this gez? http://www.consumeractiongroup.co.uk/forum/general/80486-claiming-beyond-6-yrs.html#post712882

[progenic7]

hi bong,

 

clean off the top of my head i cant remember thread names though not all are from this site, but as i remember it atleast two instances have occurred on CAG (leave that with me and i'll have a hunt around when i get a minute and try and find them)

I see your point and dont get me wrong i see both sides of this, its just that because i have seen a few instances of this now, it seems that maybe (in law at least) our reasoning is not quite the same as the judges, as they seem to share this common theme about working out interest. And i see what you mean about rate changes also, but what i could gather from the judges reasoning was he wanted something accurate at least, and when he questioned the claimants (sadly) all they often could say was "well i used vamps spreadsheet from CAG" or words to that effect, clearly meaning nothing to the judge, he went on to probe into this matter, asking on what authority they were basing this interest calculation (as from what he could tell the rate the claimant was using was entirley different to the rate the defendant was charging throughout), in several cases he also questioned the validity of the fact that because (this is in the case of a credit card BTW) several thousands pounds was still owed on the account, then the charges may not have been fully paid, so therefore any interest applied may not be fully accurate.

 

The general theme and bone of contention with the judgs on this issue seemed to arrise out of the fact, that there may have been an indescrepancy in the calculation, not so much that the claimant was trying to claim CI (but how they came to the figures they had done), so i think the general argments we are using for it are very valid, and can be argued successfully. However the judges clearly wanted a very precise working out of any interest that may or may not be due.

I must admit i didnt read the POC's of these claimants, but im gathering they may have been slightly light on detail and the claimant may have been light on argument.

So it comes down to how confident you are of your arguments i guess, and as usual right time right place.

But my point is especially on a time barred case, be wary of mistakes in working out interest and be ready to be questioned on how you came to that figure.

I have read your POC Bong and think its certainly one of the better ones to pass through CAG, and (though i have done before) congratulate you on your win, (though i do feel just a tiny tiny bit that if you had held your bottle you would have got the CI, in your case anyway) but understand your reasons as to why you took the offer

 

Im in the same boat as you as i have a couple of claims which are time barred, but are a mixture of pre and post six year (which i dont expect much trouble over TBH) but as you rightly said there are plenty of claims that have been paid out on using the latest web based rates, with no trouble at all.

 

So i guess its personal choice as to what you go with, i have seen the arguments for and against and i think there are possible pitfalls with both, but thats what makes it so much fun

 

regards

 

johnny

[progenic7]

just read bankfodders interpretation of the Limitation Act, (edit)

 

well lets not count our chickens

[progenic7]

Gez,

 

check your PM's mate i have forwarded some notes, case law ect on time barred claims. hopes this helps you somewhat, BTW sorry its in no particular order, its really just copied and pasted from my own notes on the subject, so pick and choose what you feel may help you.

 

Johnny

[Gez]

Thanks a lot mate, will start working on it