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Megellen V Bristol & West


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We have decided to go after B&W for late payment fees, admin charges & Counsel fees levied against our account between 03/2005 and 03/2007. We have all the statements showing the charges (£460.00) and have the following letter drafted ready to send:


Request for repayment of charges


Dear Sirs,


We are writing to ask you to refund the charges which you have levied from our account in respect of late payment fees to the sum of £469.00 , the sum of £XXX representing the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest) and. We now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.


In the 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 as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.


In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. Your charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fee of XXXX which you deemed fit to apply to our account.


I would like to bring your attention to the following statement by The Office of Fair Trading:


"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.


We believe that the charges you have levied of XXXXX far exceed any true cost to yourself as a result of our breaches and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.


We really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus we are asking that you refund the charges which have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.


After that, there will be no further communication from us and we shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our intention to issue a court claim should you not comply with our request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.


My question is, as you can see, I need help in calculating the interest on the £469.00

What rate do I use and can I find on CAG forum, a template for the schedule referred to in paragraph 1??


Any help is appreciated at this stage.


Nationwide S.A.R. 31/03/07 Prelim Letter & Sched. 09/05/07 Claiming £2792 LBA 23/05/07

MCOL filed 30/06/07


Barclaycard S.A.R. 03/04/07 Prelim Letter & Sched. 11/06/07

Claiming £516.00 LBA Sent 03/07/07


Abbey S.A.R. 31/03/07 Prelim Letter & Sched. 12/06/07 Claiming £1380 LBA 03/07/07


MBNA S.A.R. 31/03/07 Prelim Letter & Sched. 12/06/07 Claiming £799 LBA 03/07/07


Waiting to do:- GE Capital Bank / M&S Money / Bristol & West / Capital One

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