Is contract the correct basis for charges claims?

[TANZARELLI]

aqua, lloyds will definately use the providing a service angle and you will prob find their whole defence is based upon a leaflet.

[nevos]

Agree with Glenn on this you need alternatives

[Glenn UK]

Hi all, I was reading on an alternative claim your charges back site recently where, claimants were sending off Pre-Lims and LBA's with undisclosed amounts of claims in them. This apparently was done in cases where the claimant did not know the full extent of the charges etc. I guess on the grounds that the Banks can access this info in minutes as we see more and more extracted lists of charges computer generated. I had always been doubtful about estimated claims on the basis that its always up to the claimant to prove their case. If it got to court in effect you would need to convince a court not only that the bank imposed unlawful charges, but also what type, how often etc. The bank could simply sit there and say we never levied charges and your claim would be stuffed.

However, this presumes you actually got to court, of course many would argue that the banks wont defend claims and therefore its a viable route. A bank would not have to go to court to challenge a claim for estimated charges if they chose not to, the ask for that portion to be struck out and there would be a hearing specifically to deal with that issue alone, or at least there may be. it could also happen at an AQ or directions hearing too.

It struck me that this could speed up the process provided, one has sent an SAR so, your claim can be moving along until you will get the statements. In the end you know what your charges have been, this could IMO save at least a months waiting time thus, beating them at their own game a bit. Then you could whack them with the incredibly inflated claim at the last minute. I like your sense of humour but it could all end in tears if someone did, 'whack in an incredible inflated claim' at any time.

 

I am of the view that if they wont produce your data a better route for claiming back estimated claims is to use the Data protection Act and claim for damages based on recent account history. however, I'm not certain how well this would work for old claims and how one would determine what the cause of the damage was.

 

Where a bank failed to produce data which should have been held by virtue of their data retention policy then it is clear IMHO that damage has been caused by the loss or damage of that data. I'm not certain of the arguments for data outside of their policy retention periods.

 

Just a few thoughts.

 

Glenn

[aqua2]

Thanks Glenn, that's what i need, defence arguments and you're doing a good job here. Scales Clicked.

 

the problem is its all or nothing isn't it?

 

If you haven't breached your contract then you cannot claim they are penalty charges (except for the fact, that they are unconscionable, relative to costs, or even their other charges and in my case, I discovered that whilst they charge me £35.00, if mine were a business account the same service costs only £15.00) and therefore you must win the disproportionate costs argument for a service. (This would require them to disclose costs, the thing they dont want to do and when they produice figures to show it actually costs them 53 pence, we all laugh.)

Seems to me going this route you are accepting the imposition of the unlawful charges as a service and therefore weakening the position that the charges were penalties. (Maybe, but my primary concern is having the charges returned, not whether they have a tag attached to them - hope this doesnt sound selfish.)

 

As a service you are accepting, why have you waited x years to challenge them? (Because I have always disposed trust in my fiduciary, if I trusted them to hold onto my money securely, there was no reason to doubt the integrity of their charging regime, until I felt ridiculously overcharged and discovered the truth).The arguments don't work as well IMHO as they do when they are penalty charges which have been concealed. (I agree for a basic charges, plus stat 8% interest, because in that case you simply say, I breached the agreement, although, if it ever got to court, you would have to show which term you breached)

 

I would also suggest that you rethink your strategy and use arguments in the alternative. It something which seems to be usual from a legal viewpoint, it was x) but if the Court doesn't agree with that then it was y) and if you don't like that then it was z). (Sorry, didnt realise, I had omitted this in the original post, I did say that in the following post.)

 

I am not sure that arguing on the basis of a single point of law is advisable when there are other routes which you can add legitimately. (Purely on the point of allowing the higher interest rate, I cannot find any other arguments, except equity, which I have used as grounds for account.)

 

Re their overheads being higher - the counter to that is the millions of letters they send out reduces the cost per unit and the overheads are ameliorated over all of the letters generated i would have thought? The fact that for a small mail shot you can pay a third party the cost plus a profit and it costs less than 50p per item would seem to be compelling.

 

(Does anyone have an actual quote, for this sort of thing from a supllier, that would sound like perfect evidence to me)

 

JMHO

 

Glenn

 

 

Thanks again, like your arguments, please feel free to tear apart some more...

[aqua2]

Sorry, not intending to hijack this thread...

 

The intention on my first post was to argue, there IS a contractual basis for a court to award the unauthorised borrowing rate.

 

I'll try and restrict my arguments to this point only...

[Glenn UK]

Originally Posted by Glenn UK

the problem is its all or nothing isn't it?

 

If you haven't breached your contract then you cannot claim they are penalty charges (except for the fact, that they are unconscionable, relative to costs, or even their other charges and in my case, I discovered that whilst they charge me £35.00, if mine were a business account the same service costs only £15.00) Its true, but the term 'penalty' implies something other than simply a disproportionate cost, it also implies that the intent of the charge is in terrorem (i think thats how you spell it!) and that its a for profit rather than a true refleciton of the liquidated damages suffered by the defendant. If its a service then theydont have to worry about anyhting else oh and of course theyre entitled to make aprofity from a service. If its a service then the costs could be of the order of £12 maybe (?) rather than if its a penalty where the charges can only reflect a genuine pre estimate of their costs or the actual costs i.i there should be no intent to dervie profit from the breach althogh there may in fact be a small amount ultimately by virtue of the supposed difficulty in estimating the actual losses at the point of drawing the contract up (and no i dont believe this but it more or less where contract law sits i think in general terms). and therefore you must win the disproportionate costs argument for a service. (This would require them to disclose costs, the thing they dont want to do and when they produice figures to show it actually costs them 53 pence, we all laugh.) theoretically they must produce their costs to argue against penalties or service charges, the diference is on service they are allowed to make a profit.

 

Seems to me going this route you are accepting the imposition of the unlawful charges as a service and therefore weakening the position that the charges were penalties. (Maybe, but my primary concern is having the charges returned, not whether they have a tag attached to them - hope this doesnt sound selfish.) No, it doesnt soudn greedy, i just thik the penalties is a much stronger argument and is likley to result in the return of a higher proportion of your losses should it even get to court.

 

As a service you are accepting, why have you waited x years to challenge them? (Because I have always disposed trust in my fiduciary, if I trusted them to hold onto my money securely, there was no reason to doubt the integrity of their charging regime, until I felt ridiculously overcharged and discovered the truth). Ok, I accept that but what was the cause of action that gave rise to youtr claim? This is of course not crtical if you are only claimng back within the last six years, its critical if you wish to go back further. The arguments don't work as well IMHO as they do when they are penalty charges which have been concealed. (I agree for a basic charges, plus stat 8% interest, because in that case you simply say, I breached the agreement, although, if it ever got to court, you would have to show which term you breached) True.

 

I would also suggest that you rethink your strategy and use arguments in the alternative. It something which seems to be usual from a legal viewpoint, it was x) but if the Court doesn't agree with that then it was y) and if you don't like that then it was z). (Sorry, didnt realise, I had omitted this in the original post, I did say that in the following post.)

 

I am not sure that arguing on the basis of a single point of law is advisable when there are other routes which you can add legitimately. (Purely on the point of allowing the higher interest rate, I cannot find any other arguments, except equity, which I have used as grounds for account.) I keep meaning to look for claims brought under the UTCCR for argumentsd about the application of terms in cotracts whichj would apply or help us out in this respect of this.

 

Re their overheads being higher - the counter to that is the millions of letters they send out reduces the cost per unit and the overheads are ameliorated over all of the letters generated i would have thought? The fact that for a small mail shot you can pay a third party the cost plus a profit and it costs less than 50p per item would seem to be compelling.

 

(Does anyone have an actual quote, for this sort of thing from a supllier, that would sound like perfect evidence to me) Nope never bothered, simply the fact that the OFT in their report into banking in NI say the costs of charges cannot be justified on commerical grounds is pretty strong too.

 

JMHO

 

Glenn

.

 

JMHO

 

Glenn

[aqua2]

I'm trying to keep the posts a litlte briefer, so have truncated, let me know if you cant find a part..

 

Its true, but the term 'penalty' implies something... ...the diference is on service they are allowed to make a profit.

Yes, but they have already covered their costs and a profit for the service, with the higher interest rate charged, which I wholly agree with, after all, I am asking for the same rate to cover my costs.

 

Ok, I accept that but what was the cause of action that gave rise to youtr claim?

 

And this is genuine.. Had always just accepted £30 - £60 charges (trust), but in January, they charged me £280, yep, £280, because my salary was paid in late.

 

I rang to query and they just said, I was aware of the charges and they would stand. That is the point where I started googling and found out they were unfair.

 

I keep meaning to look for claims brought under the UTCCR... - So whoever gets the unenviable task of fighting this part of a claim in court, gets to be setting legal precedent. (Sort of).

 

Yep, we're definitely back on track of "Is contract the legal basis for claims?"

[photoman]

Aqua and Glenn

I have been watching your to and fro discussion with interest, and IMHO I side more with Glenns view here.

The whole basis for our actions here is that they are cloaking penalties as a service.

If they avow that the charge is for a service and you agree with that, then I don't see how you can argue much with that? The only argument really is that the cost of service is very high. They will countermand this by saying that they informed you of the cost, and you were at liberty to "shop" elsewhere. Just as, if you think the cost of service for a plumber or a hairdresser is too high you can go elsewhere.

Of course there is then always the argument from ourselves, that the Banks were operating a real or virtual "cartel", with each watching and setting rates in line with competitors. So as a consumer the option of "shopping around" for a cheaper "service" was not available.

 

Incidentally, I did actually notice someone post last week that the bank had actually admitted that the charge was as a result of a contract breach ??!!!

I need to check if this was actually true, or if someone had just misunderstood. If this is the case then that I believe is a first (correct me someone if I'm wrong), and this mysteriously changes their whole gameplan somehow. I will try to find the post and get back to you.

[photoman]

Here's the post I mentioned, it relates to progenic7 v online finance:

 

http://www.consumeractiongroup.co.uk/forum/post-723427.html

 

any comments ??

[progenic7]

Oi thats my thread

 

lol

 

well as much as i dont agree/fully understand zootscoot tells me that the banks or anyone in court for that matter can do the following.

 

Banks accused of being unlawful and taking £2000 without consent

 

Banks accept the £2000 but do not accept being unlawful, and this is all fine.

 

my personal view is that if somebodies claims that an tort or injustice has occurred and that has costs attached to it, how can you accept the costs but not the act ? surely by accepting the costs by default you then accept the act, do you not ?

 

well apparently this is the new approach in court to avoid everything claimed, apart from the bare charges aspect. ie they are now fully admitting liability but denying everything else.. ie the CI, LA, Damages, Costs anything and everything else. And aparently because they admit in their defence the liability of the charges then clearly they do not have to disclose anything in court.

 

My question to zoot (which she did not fully answer) was why then are they not doing this in each and every case, thus avoiding having to pay thousands of pounds over the odds. Zoot tells me they do do this sometimes but didnt give reasoning about it.

 

I cannot for the life of me understand the reasoning, the law, the basis of bringing the whole claim if this is the case. But why dont they do it all the time then ?

 

any thoughts ?

 

 

(BTW i argued till i was blue in the face with Onlines solicitor, and this evening he offered settlement on my terms, via email, so maybe the argument was a bluff) but id still like thoughts on it

[aqua2]

Hiya..

 

Banks accused of being unlawful and taking £2000 without consent

 

Banks accept the £2000 but do not accept being unlawful, and this is all fine.

I think you will probably find that this will be the case in law, because no court has ever found their charges to be unlawful.

If they have settled the amount, there is nothing left to claim in that regard, so they will not be found to be unlawfull.

 

Once they have paid, they need not argue that point, or be required to prove it.

 

I think, but I cant state categorically...

[Guest bong]

unless your claim seeks a declaration that the charges are unlawful, I believe.

[progenic7]

bong and aqua

 

well goes without saying that i would strongly aver that the charges are unlawful.

and further any payments in any shape or form would be declined unless it was full payment of total claimed, so in theory they would have paid nothing and would still have to prove everything.

 

i asked my dad about this (law lecturer) and hes not sure about the standpoint on this, but does also seem to think that they may be able to admit the claim for the money aspect only, and yet disregard the claim of being unlawful.

 

If this is the case, then the law sucks big time.

[TANZARELLI]

Progenic7,

 

That must come in handy having a dad who lectures in law.

[progenic7]

tanz,

 

lol yeah just a stroke of luck really but i have got him to the point now where is actually starting to take an interest in all this, and every now and then he phones me to give me another idea lol.

[TANZARELLI]

tanz,

 

lol yeah just a stroke of luck really but i have got him to the point now where is actually starting to take an interest in all this, and every now and then he phones me to give me another idea lol.

 

Let us know if he comes up with a water tight angle for the CI stuff. lol

[aqua2]

Progenic - well goes without saying that i would strongly aver that the charges are unlawful.

 

I'm a little in the dark here, I keep hearing it mentioned that the penalty's are unlawful and I am presuming this is because of case law.

What the UTCC says is this...

Effect of unfair term

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term

It doesn't say anything about unlawful, it doesn't say that it is treated as breach of contract, it simply says it will not be binding on the consumer and then says that it does not nullify the contract. (Hence, NOT a breach of contract).

 

Even after the earlier discussion, I still like the SOGAS act, because the implied term about reasonable fee, in law actually forms a part of the contract, so in this case, they are in breach of contract.

 

Just Aqua's tuppence again.

[TANZARELLI]

Found this which may be useful as it refers to some of the cases we are referring to also, even though it is in relation to construction:

 

http://www.mondaq.com/article.asp?ar...mail_access=on