GOT A COURT DATE? Important, please read......

[Johnsworld]

Hi Gary,

 

I'm under pressure to get my bundle submitted by next Friday so excuse me if my brain is not functioning too well.

 

I read your post about the OFT summary and am now worried about what to include.

 

You say "No need to print out the whole thing, but you do need the front cover, section 1 "overview" and most importantly, section 4.21 "Disguised penalties". You should put this in INSTEAD of the OFT report summary from the Basic Bundle in the templates library.

 

My case is against Barclays and I have used the summary from the basic bundle.

 

Does your advice only apply to Lloyds claimants or should I replace it as well?

 

THe AQ has been dispensed with and I have a hearing date. I must submit copies of all the documents I intend to rely on but I'm confused as to whether I need to produce a Statement of Evidence. It hasn't been asked for specifically.

 

Hope you can clarify.

 

Thanks,

John.

[Johnsworld]

Thanks Gary,

 

There is so much to try and remember so it is good to have somebody to bounce questions off.

 

It is much appreciated.

 

Regards,

John.

[Johnsworld]

Hi Sveng,

Although the OFT report focused on Credit Card Issuers, the OFT stated that the principles of their findings would also apply to Bank Account charges.

Not sure about the witness statement. I didn't put it in the bundle I sent to the bank today. You might think about taking your bundle into your local branch and sending it in their internal mail. That's what I did. They were so helpful! I'm taking the court bundle in tomorrow so I'll ask them. If they say the bank needs a copy I'll put it in the post.

Will let you know.

Regards,

John.

[Johnsworld]

Full OFT report here:

 

http://www.oft.gov.uk/shared_oft/rep...cts/oft842.pdf

[Johnsworld]

Hi Pen,

 

I'm like you. Submitted bundle to bank. Court one goes in tomorrow and I keep thinking maybe I should add something else. I included the current terms and conditions as they were all I had. Maybe someone will let us know if you can submit other things later on.

 

I've written a new more in depth Witness Statement this evening. I didn't have an AQ and thought the simple version of the Witness Statement wasn't strong enough. Some of it is derived from the Lloyds Bank forum but I'm sending it to Barclays so have cut or amended it. If anyone has time to read it and tell me if I've made any fatal errors, I'll be much obliged. Especially Paras 13, 14 and 16.

Thanks,

John

 

9. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract, both explicit and implied, between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.

 

10. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant, which by virtue of the legislation cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.

 

 

11. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part”

 

i.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied were not representative of any service provided by the Defendant, but instead are punitive and applied "in-terrorem".

 

12. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999.With regard to the 'cloaking' or disguising of penalties, the OFT said this;

 

"4.21. The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".

 

13. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising from clear and demonstrable express and/or implied breaches of terms of the account contract between myself and the Defendant. I will vehemently refute any contention that they are legitimate contractual service charges.

 

14. However, and without prejudice to paragraph 17 above, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

15. Further, under the UTCCR:

 

(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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.

 

The cost of Barclay’s charges have increased during the period in which my account has been held, with no opportunity to negotiate, or notification of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

16. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

17. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

 

 

18. Further, under the UTCCR, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation"

 

19. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches but each time those requests were rebutted or ignored.

 

20. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

21. For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer's breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

22. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system 'bouncing' the direct debit, and sending out a computer generated letter. The letter received notifying the customer of a charge is identical in every instance. It is therefore impossible to envisage how the Defendant can incur costs of £30 - £35 by carrying out this completely automated process.

 

23. Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

25. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that bank charges are used to fund free banking for all personal customers as a whole.

 

[Johnsworld]

Hi Gary,

 

Thanks for coming back. It is PRETTY MUCH the one from your thread but I was worried that some of the arguments were specific to Lloyds and I'm claiming from Barclays. I compared it to Barclays defence and left out bits that were doubtful.

 

I just needed reassurance.

 

I have used the headings you provided. I didn't post them in here because it contained all the personal stuff.

 

Thanks again,

John.

[Johnsworld]

FOR PARTICULAR ATTENTION OF SVENG

 

Witness Statement should be included in court bundle, just addto list. I'd put it as first item. The court were very helpful. I'd put my Witness Statement in a clear sleeve at the front of my bundle, but separate. The court said it would be fine like that and all I needed to do was to send a copy to the bank and make sure I kept one for myself. Hope that clears up any doubts.

 

I think it might be important to include a copy of the SAR letter as it specifically asks the bank to detail any manual interventions. Automated process - cheap. Manual interventions - expensive. No manual interventions - how come you charged me £30? I only thought of it after I put in my bundle. I know the bank said in reply that the fact that they did not identify any manual intereventions didn't mean there weren't any - but I can't find the letter. If any Barclays customers read this and have a response letter saying something similar I'd appreciate a copy of the wording.

 

Regards,

John.

[Johnsworld]

SVENG,

 

I guess the crux of our argument is that the charges represent a penalty because they don't reflect the true cost to the bank of what is pretty much an automated process. If it got to court and the bank tried to claim they incurred these costs because they had to manually intervene would you be able to dispute that?

 

If you have time to send the SAR it will be proof that you requested details of such interventions (which the bank can't or won't tell you about). As you already have the statements you require I guess you could just write to the bank's HQ asking for specific instances of manual interventions. I just feel that the bank won't tell you anything unless you force them. I have reconsidered my opinion about the SAR going in the bundle. It will only be relevant if the bank introduces manual interevention as justification for their charges so I'd just keep it in case.

 

SAR is as follows or you could just pinch the bit about manaul intererventions. Don't forget the £10 if you do the SAR. The chances rae you will get the £10 returned with the info - don't ask me why!

 

Data Protection Act 1998

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER:

 

Please supply me with a complete list of transactions and charges relating to my banking history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

I would be happy to collect the Data from my local branch.

 

 

Yours faithfully,

 

Regards,

John.

[Johnsworld]

Manxlass, don't go chasing your tail!

 

If you have all your statements just take out the ones with charges on and list them on the spreadsheet at the following page:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/182-6-interest-calculation-spreadsheets.html

 

You should find the link to Martin Orton's letter here:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82148-got-court-date-important.html

 

The SAR includes the follwing paragraph:

 

"Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you."

It may or may not be important depending on the how the bank tries to justify its charges. I guess you could just write and ask them the question and you won't have to pay ten punds, but you're unlikely to get a straight answer whichever way you do it.

Regards,

John (Manxlover)

[Johnsworld]

Hi Guys/Girls/Ladies,

 

I need a couple of pointers if you could help please.

 

The court dispensed with AQs and directed both parties to submit documents on which they intend to rely to court and the other party by 18 May 2007. My Bundle was submitted to court and bank on 18 May, but have received nothing from the bank. The trial isn't until August.

 

I didn't put the witness statement in with the bank's stuff but the court office said it's OK as long as I send them a copy now. I've drafted a big nudge letter asking for all my charges plus interest to date and have printed a new schedule.

 

I just don't know if it's the right time to ask or whether, because the bank don't seem to have complied, I should wait to hear from the court .

 

Thanks and regards,

John.

[Johnsworld]

You are right. It is a stalling tactic.

 

I wouldn't split hairs over whether they use the word charges or fee.

 

Just send them your schedule (spreadsheet) again.

 

Regards,

John.

[Johnsworld]

Hi Makalu,

You are correct in that the banks might use different words. On my statement they were referral fees, but they are still charges on my claim. There has been some discussion about banks trying to pass off these charges as fees for a service but that's a duff defence as well. You could have alook at this thread:

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/23993-legal-arguments-support-claim.html

Regards,

John.

[Johnsworld]

Hi auburngreeneyes,

I used the Lloyds' one as a basis for my own Witness Statement against Barclays. You will need to look at your bank's defence and make sure you include all the paragraphs that will counter their arguments or support your case and make sure you remove paragraphs that apply specifically to Lloyds. I also had to renumber the paragraphs because I ended up with less than the original.

Regards,

John.

[Johnsworld]

MGP,

It would be a good idea to get the stuff for your bundle together. If you create a file for the letters you sent on your computer and copy the court bundle stuff from the CAG site and save that it will save you a lot of time. You also need the letters from the bank and the spreadsheet of charges, but don't print the spreadsheet until you need to because it will be adding interest. I wouldn't print or copy anything until you are directed to do so by the court.

Regards,

John.

[Johnsworld]

MGP,

 

I guess there's no harm in sending a nudge letter. It's doubtful you will get a reply but you can show the court that you are the one attempting to resolve the issue.

 

Have a look at this thread for some examples courtesy of lateralus

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/71343-when-you-have-filed.html

 

SHE (don't make the same mistake I did) has written a few letters and you could probably pick the bits you like to suit your case.

 

Regards,

John.

[Johnsworld]

MGP,

 

Why would you think of giving up? This sounds worse than it is and you are more concerned than you need to be because it's all new territory for you - but it's not for the bank. Don't be intimidated - you have lots of people on this site who will help and support you.

 

I didn't claim beyond six years but from what I've read since I wished I had. If I understood things correctly, if the charges are unlawful then the 6 years statute does not apply.

 

As for the defence that "The Defendant is unable to verify the amount claimed prior to the 19.2.2001 as the particulars of claim does not show how the amount claimed is arrived at." Did you use MCOL or did you submit an N1 to the court? Did you complete a spreadsheet using the template on the CAG site itemising each charge and did you submit it with your N1 or send a copy to the court?

 

I'm guessing you might not have. I can't think of any other reason why the bank could question what you're claiming.

 

If you post details of how you claimed and what you submitted (no personal details) I'm sure you'll get the advice you need.

Regards,

John.

[Johnsworld]

Try not to be scared. Just think that they've let you get in a mess and then stung you bigtime - you should be angry!

 

It seems you have done things correctly. Not sure why the bank is questioning what you are claiming. Maybe someone else might have a view.

 

As well as what you are sending to the court, I'd be inclined to send a letter to the bank in reference to their comments with another copy of the POC showing latest total with interest accrued.

 

Regards,

John.

[Johnsworld]

Had a thought.

 

When you listed each charge did you show what it was for?

 

John.

[Johnsworld]

I think you will find that the Ts & Cs will be very different now to what they were then. The banks have tightened up the wording to avoid any misinterpretation so I would try and get hold of the old ones.

 

It depends how pushed you are. I had a trial date and to submit my bundle just as the Ts & Cs judgement happened. All I had was the latest copy so I put that in.

 

I've no idea whether I'll be allowed to but I figured that if I included them it would make Ts&Cs relevant to my case and I would argue that I should be allowed to introduce those Ts&Cs that were in effect if or when I get copies.

 

I just hope that common sense will prevail.

 

Probably no help but just my take on it. Obviously it would be better to have the correct ones.

Regards,

John.

[Johnsworld]

Hi Mick,

 

I'm a bit confused so forgive me I I've misunderstood. I found out at my final hearing that the bank doesn't have to submit a bundle. I presume they filed a defence right at the start and that is all they will be able to rely on at trial. I tried arguing failure to comply but while the judge asked the banks defence why they had not submitted a bundle it didn't have any bearing on the outcome.

 

Barclays won a stay against me.

 

With hindsight I'd use the failure to submit a bundle to show the judge a history of non-compliance and failures to defend in court. I'd try to show the judge how many were settled out of court and that the banks are abusing the court process to bully and intimidate claimants into giving up.

 

Good luck,

John.

[Johnsworld]

Mick,

 

My directions said the same as yours. To each other and the court by May 18th? Despite writing twice the bank never responded and did not comply. My case was last week and they still hadn't. Their defence tried to say that it was because the bank anticipated a stay (clairvoyant obviously). Depiter that the Judge didn't give it much creedence.

 

So it seems you have the same argument and other Judges have upheld it but mine didn't. That's why I think you need to pitch a bit harder. Argue failure to comply but add the bit about taking advantage of the court to bolster your defence.

 

I didn't say in my previous posting, but if you meet the defence before the hearing DON'T discuss the case and don't give them anything before you get in there. They will try and intimidate you if they get a chance and tell you you have to give them copies of you evidence, that you won't be qualified to argue the leagal complexities etc.. That's what they did to me and I let them see my stuff just as we went in but I wouldn't next time. They smile at you but the knife is behind their back!

 

In you favour is the fact that the defence advocate isn't prepared or briefed to defend non-compliance. Mine was a freelance and her instructions from the bank were only to seek a stay so you have a good chance of catching their defence off guard.

 

Good luck. Let's know what happens,

John

[Johnsworld]

Sammy, I put my witness statement in court bundle but not bank's copy. I told the court office on the last day to submit and they said no problem, just send it to bank. Try ringing court. I reckon you'll be able to slip it in.

[Johnsworld]

JGJ,

Don't bet on it. Alll it means is bank doesn't submit bundle, bank only has basic defence to rely on. It's not likely to be thrown out. Some people have won by default but not many.

[Johnsworld]

JGJ,

The onus is on you to prove your case and that is why you need a bundle. If the bank are confident in their initial defence, or that your case is rubbish, more likely they never intended to argue in court, they don't HAVE to submit anything. I thought as you do but it isn't the case. Some people were lucky I guess and maybe their Judge decided the bank were taking the pee. You can still overturn the application for a stay though and as I've said they can be wrong-footed. Hit them with the failure to comply just as a starter.

[Johnsworld]

Thanks for the explanation about directions Gary. I lost my objection to stay but I'm sure it will be helpful to people with cases pending.

 

Kind regards,

John.