Is contract the correct basis for charges claims?

[Glenn UK]

An interesting thread I am surprised it has attracted little comment, particularly from those gain sayers who feel CI is itself immoral in some way (or would it be amoral?, English language never was my strong point, being from Essex an all).

 

Having gained and lost in the CI 'game' its good to see this post with some encouragement for those of us that believe its a fair response to the banks unlawful removal of our money.

 

Glenn

[Glenn UK]

Im with Bong on this and have been for a while.

 

THe UTCCR may make the terms unlawful because they are in effect unfair.

 

Read on thier own this term cannot be unfair, however, read in conjunction with the schedule of charges it then becomes unfair imho.

 

But the term alone is not unfair and no one has breached the term.

 

Something that has been bugging me for ages is that the commentators on TV keep saying that these charges have become ulawful due to consumer regs, they havent, they are unlawful beacuse they are penalites and the law has been establisehd since the 1880 or so.

 

JMHO

 

glenn

[Glenn UK]

Nevos, that's what I thought.

 

Bong, Glenn, aren't we in violent agreement - the contract allows a Bank to charge for unauthorised overdraft but the charges are disproportionate and not a genuine pre-estimate and are therefore unfair and unenforceable (UTCCR and case law on LDs). I can't help thinking we're getting hung up on semantics. UTCCR is about contracts and the case law on LDs relates to contracts. This where the confusion lies imho, the penaltys are not unlawful under the UTCCR. The term may be unfair but its because it creates and imablance between the two parties is it not? The remdey to an unfair term is to appyl to have it struck out should the benfiting party try to impose it rather than to claim back the money post event i would have thought.

The panaltys are unlawful at common law and this dates back to Dunlop Vs New Garage and probably beyond.

 

All of that is in relation to reclaiming the charges and associated overdraft interest and 8% on top. Perhaps the better question is whether the contract is the basis of claims for CI. CI brings in all the stuff about disgorgement, breach of trust (fiduciary relationship), exemplary damages, and all the other ideas people have come up with to justify CI claims, but even those exist as arguments because there was a contract which the Bank used to take money. I agree this issue but whether the penaltys should be claimed on the basis of the contract is a moot point and one well made by bf in the original post since there is actually no breach on the banks part.

 

Regards, Mad Nick

 

Oh how i wish i had studied contract law isntead of what i did,

 

Glenn

 

GLenn

[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 and therefore you must win the disproportionate costs argument for a service.

 

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.

 

As a service you are accepting, why have you waited x years to challenge them? The arguments don't work as well IMHO as they do when they are penalty charges which have been concealed.

 

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).

 

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.

 

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.

 

JMHO

 

Glenn

[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

[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

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JMHO

 

Glenn