Is contract the correct basis for charges claims?

[TANZARELLI]

An interesting post, I have been considering all other angles for my claim with Barclays especially as contract was entered into in 1993 so UTCCR was not an option to rely on.

 

Breach of fiduciary duty, unlawfull and dispropotionate charges, restitution, et al have all been things which I and others have been trying to get our heads around, also the whole limitation debate aspect too.

 

Tanz

[TANZARELLI]

......... The only way this particular term could be breached is if the bank failed to charge the fees.

 

lol. Like that is gonna happen.

 

Tanz

[TANZARELLI]

which term of the contract are you basing your claim in then?

 

The term itself, as to the levying of charges upon your breach is not unlawful, and has not been breached. If they had charged you actual costs you would have no claim/complaint. The claim arises because of the amount they've taken.

 

It is the level of the disproportionate charges that is unlawful and therefore this is our arguement which is backed up by case law.

 

The unfair terms states:

 

Unfair Terms

5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Unfair Contract Terms Act 1977 states:

 

"11. The "reasonableness" test.

(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made."

 

"(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen."

 

"(5) It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does."

 

Tanz

[TANZARELLI]

All I can say is fair play for spotting that Bill, is your middle name columbo? lol

[TANZARELLI]

I don't know how he does it for the money! (Espesch in his current avatar situation too - what has he got down there? )

 

Prob monkey nuts. lol

[TANZARELLI]

I for one would be content to get charges back plus the s69. I also believe for most the return of what was considered lost money is a pure windfall.

 

Nevos,

 

This is a valid opinion, however, why should the banks be allowed to profit from unlawfully taking our money as a direct result of disproportionate levying of what are penalty charges, which are irrecoverable under common law. They unjustly enrich themselves at our expense and should not be allowed to do so.

 

Whats good for the goose is good for Tanz.

 

Tanz

[TANZARELLI]

Hi aqua,

 

I would say that with more of the banks stating they are providing a service and that there fees are for the service they are providing, then this should be something which we need to consider a strong arguement for. The SOGA should help us there.

 

I see why you are not admitting breach of contract and see this as a good move IMHO. Carefully worded POC's are needed, but alot would I suppose depend on the strength of the banks defence and how well we can bat it back to them.

 

I am sure the banks will argue the fiduciary aspect of claims like these at some point so this we need to nail on to them so they cant wriggle out of it.

 

Tanz

[TANZARELLI]

Yep if they can prove it then fine we have know case, surely they would have done this previously without having to shell out thousands of pounds to its customers.

 

Tanz

[TANZARELLI]

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

[TANZARELLI]

Progenic7,

 

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

[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

[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