business claim 1992 and onwards

[caro]

i have in the centre of my statements black writing stating that if i go over my agreed overdraft they will charge 29.5% if they can do it why cant i (goose & gander) comes to mind

 

Not necessarily. Not all contracts are bilateral, ie apply both ways, and these contracts are just such an example.

[sharpgun]

hi caro did u just get my pm i dont know wether you got it or not

[caro]

Yep, got it thanks, although I don't advise by PM. I'll take a look though, but don't think I'll have a chance to look at it properly today. Will get back to you though.

[caro]

Have a look at the template in here. There are chunks at the end of your letter about what you hope to achieve by your letter and time scales which have not been included.

 

 

 

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/64975-business-claims-basic-guide.html

[photoman]

You seem to be alleging fraud in your letter, which I think you should be cautious of unless you have evidence to back it up. Thanks to ZootScoot who PM'd this information to me a while back.

 

 

 

In your own interests I suggest that you research very thoroughly about CI before going ahead. There is nothing to say that a court may not consider your case vexatious and strike it out, awarding costs to the bank, which could run into thousands.

 

I know a number of people still believe in claiming CI, but as far as I know, most, if not all mods would not suggest claiming CI unless the claim fell within the small claim track, including interest. Clearly your case would not fall into this category.

 

Caro

Hi, just wondering if you could expand on this comment by Zootscoot please?

 

"However, if they went for the tort of deceit there is a basis in law for contractual interest. Which applies where money has been obtained and retained by fraud".

 

Just wondering about this relationship between deciet/fraud and contractual interest?

Are you saying that the only circumstances that an action could carry Ci would be one based upon Fraud?

I agree that one needs to tread very carefully and to not alledge fraud in our actions, as this is a course of action that would require action through the criminal courts rather than the simpler remedies based upon contract that we all take. So a wholly different, and much more serious course of action.

Bearing this in mind I looked over Shapguns prelim, and I did not see any direct reference or accusation of fraud in Sharpguns prelim, perhaps I missed it, or perhaps you are saying it is implied by some of his other wordings ?

The nearest thing to such a reference I can see is the following:

 

"I am frankly shocked that you have operated the account in this way as I had always reposed confidence in the integrity and expertise of [YOUR BANK]. "

 

and this is pretty standard CAG stuff, taken from the templates.

 

(btw, Caro, I agree that an additional paragraph regards timescales would improve the prelim, although Sharpgun, if you've already posted off one without, you can always just send a revised one)

 

I do agree that Ci is a much more difficult route, it is not for the those who are not prepared to put in the time and effort to research, read, and take time time over preparing, as opposed to just rushing and whipping of some copied and pasted stuff, without any real understanding.

I am also interested in your statement regards the majority of mods not reccomending Ci unless it still keeps the claim within SCT?

I agree there is a great deal less risk at SCT, and so it is always wise for anyone to try to contain any case in SCT.

However if your case was likely to end up in a higher track (perhaps the charges alone took it such a way, or due to other contentious factors such as limitations act) anyway, then surely if there was sufficient confidence to still apply Ci at SCT then the same principle should apply at other levels?

As long as you maintain you claim intact, and so do not end up in court just over the Ci element, then the basis for your claim for interest (ie the charges) would have to be resolved by a court first, before the issue of interest, and in such a court this would require disclosure by the defence.

Or are you suggesting that if the claim including Ci retains the case in SCT that the Defence would just be less inclined to contest it, so no harm trying ?

 

Best regards

 

Photoman

 

BTW: For the record, Sharpgun, I still think you do actually really need to read up and prepare more if you are planning to apply for Ci, I am still not convinced that you understand the principles thoroughly yet, and I have said this to you before.

[caro]

LETTER BEFORE ACTION

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: xxxxxxxxx

 

I now understand that the regime of fees which you have been applying to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to Statute.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

Which relates to the below

However, s.32 (1) (b) of the Act says:-

Quote:

32.--

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

o (a) the action is based upon the fraud of the defendant; or

o (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

o © the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

 

Accordingly I claim:

 

a) the return of the amounts debited in respect of charges in the sum of £**;

 

b) Court costs;

 

 

c) interest at the contractual rate of **% AER, from the date of each transaction to **/**/**, which is £**, as set out in the attached list of charges. The Claimant further claims interest, on the resulting total of £**, at the same rate up to the date of judgment or earlier payment, at a daily rate of £**.

 

The Claimant believes this rate to be justified under the implied principle of mutuality and reciprocity, and is based on the Defendants interest rate that would be applied under the terms of the above mentioned account.

 

Should the court find that this interest rate is not applicable, then in the alternative the Claimant claims interest pursuant to Section 69 of the County Court Act 1984 at the rate of 8% per annum calculated from the date of each transaction to **/**/**, which is £** and also interest at the same rate until date of judgment or earlier payment at a daily rate of £**.

I believe that the contents of these particulars of claim are true.

 

 

I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

 

I have made bold and pink the mention of fraud, which on second reading I guess is not a direct accusation, but including it seemed to me to infer it. Or at least it did on first reading for me. Maybe it's ok as only quoting law.

 

I have asked zootscoot to expand on your specific questions re CI/fraud as her legal knowledge is vastly superior to mine. If she says it, I tend to accept what she says, but you are right to ask.

 

The main reason that I would only agree with people keeping claims for CI in small claims is that should it get to court, there is less, but not quite no likelihood of costs being awarded to the bank. If it goes over £5,000 I think there is much more chance of the claim being struck out and huge costs awarded to the bank. As long as people are aware of this, willing to take the risk, (like Tom Brennan who risks everything in his case I believe), and can afford it, then that's up to them. I understand that there is not a legal argument for CI, and that includes mutuality and reciprocity. From things I have read I get the distinct impression that Judges are not generally sympathetic to CI, including the Mercantile Judge from the Leeds hearing in February linked below. Paragraph 1(b) is pertinent to this.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-564344.html

 

[zootscoot]

Just wondering about this relationship between deciet/fraud and contractual interest?

Are you saying that the only circumstances that an action could carry Ci would be one based upon Fraud?

 

 

No.

 

The only way in which you can claim contractual interest is if there is a provision in the contract allowing you to claim interest at that rate. Most banks will set the rate of interest payable to the customer when in credit much lower.

 

A term can not be implied into the contract on the basis of mutuality and reciprocity of contract. Contracts are not required to be balanced. Freedom of contract prevails. It is up to the parties to chose their own bargain and the courts will not interfere with the bargain so entered. This is one of the founding principles of contract law and therefore if the parties agreed that A would sell his brand new Mercedes for 50p, the courts would enforce the bargain. This position was stated in Chappell v Nestle and is also incorporated in UTCCR 1999 under Reg 6. A term can not be unfair in so far as it relates to the adequacy of the price or remuneration.

 

The only way in which a term may be implied is through custom or practice (Hutton v Warren), if it is necessary to give the contract business effect (The Moorcock) or where it is obvious that both parties would have agreed to the inclusion of the term at the time the contract was made (Shirlaw v Southern Foundries) or if it is a contract of a defined type (where the law generally offers some protection) then the court may imply a term where it is reasonable to do so (Liverpool City Council v Irwin, Wilson v Best Travel). Even in these areas where terms can be implied the courts are extremely reluctant to do so. I don't foresee that any of these methods of implying terms are likely to be successful in implying a term providing that the customer is entitled to interest at the contractual rate normally charged by the bank.

 

There may be another route to claiming contractual interest by invoking equity's jurisdiction to award compound interest. Where compound interest is awarded the judge will set the rate of interest at a level which is deemed just in the circumstances and it is open to the parties to suggest what rate they believe would be just and equitable. This is where it may be possible to argue the mutuality and reciprocity of contract. However, compound interest is always discretionary and the judge can refuse compound claim in total or can set it at a level lower than requested.

 

Compound interest is available in limited circumstances. Where money has been obtained and retained by fraud, President of India v. La Pintada Compania Navigacion or where trust money has been witheld or there has breach of fiduciary duty Westdeustsche Bank v Islington.

The tort of deceit is the civil version of fraud and is dealt with in the civil courts. Although you would need to prove that the defendant had made a false statement of fact and either knew that it was false, believed it was false or was reckless in that they did not care whether the statement made was true or false (Derry v Peak).

It may be possible to argue that a trust arises on payment of the charges. For this you would have to show that the bank knew of the circumstances that they had no right to receive the charges and were therefore under a legal obligation to return them from the moment of receipt. If this is succesful this would create the necessary trust relationship to claim compound interest. However, you would still need to convince the judge that the contractual rate is necessary to achieve a just result. This is going to be pretty tough on older claims where the contractual interest element can greatly exagerate a claim.

[sharpgun]

ye so what you are saying is continue with the claim and have a fall back interest rate??????????????????????????????????:-?as suggested by martin3030

[GaryH]

The only way in which a term may be implied is through custom or practice (Hutton v Warren), if it is necessary to give the contract business effect (The Moorcock) or where it is obvious that both parties would have agreed to the inclusion of the term at the time the contract was made (Shirlaw v Southern Foundries) or if it is a contract of a defined type (where the law generally offers some protection) then the court may imply a term where it is reasonable to do so (Liverpool City Council v Irwin, Wilson v Best Travel). Even in these areas where terms can be implied the courts are extremely reluctant to do so

This was also highlighted recently in the Berwick v lloyds judgement, paragraph 17.

I find it therefore on the evidence before me that there is no express term of contract between Mr Berwick and the bank of the type referred to above. Is there any term to be implied that a customer must not exceed his overdraft limit? It is trite law that a term will only be implied into a contract if it is necessary to do so to make the contract make business sense. The word "necessary" must be emphasised; it is not enough that a contract would make better sense if an additional term were written in, the court must be satisfied that the parties must be taken to have agreed the additional term becouse without it the contract would make no business sense at all.

[sharpgun]

sorry gang your way above me stating all these cases, what does it all mean?

[GaryH]

When you are claiming CI, you claim it alledging an implied term - of contractual mutualty and reciprocity. You would request that the court implies the reciprical term to award you the same rate as you pay the bank.

 

What zoot is saying - and what is further reinforced by the Berwick judgement - is that the court simply would not imply that sort of term into a contract.

 

You agreed and signed a contract when you opened your account which allows the bank to charge you 29.9% on overdraft drawings - there is an express term allowing them to charge that rate. There is nothing in the contract which allows you to charge the same rate backwards. If there was nothing agreed at the time the contract was entered into then the court won't add a term for you.

 

I think its become abundantly clear that CI claims rely solely on the bank folding before court. With a claim of the size of yours it's a huge risk to take.

[zootscoot]

sorry gang your way above me stating all these cases, what does it all mean?

 

If you want to claim compound interest you will need to start reading cases.

 

This is a highly complex area involving trust law where lawyers, academics and judges disagree over the circumstances giving rise to a trust. Even if you fully research the area, fully understand the issues and come up with a strong argument then the chances of success are still going to be minimal.

 

If the interest element takes the claim into the multi-track the cost implications of losing, if you push the claim to court, will be huge.

 

If you do go ahead with the compound interest claim then you will need to put statutory as an alternative and be prepared that this is the amount that you are likely to get.

[caro]

I think that this is relevant for you.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/11164-cank-halifax-9.html#post847697

[photoman]

Zoot

Thanks for all you comments. Very helpful and interesting read.

Lots to take in and look up.

Regards

Photoman

[sharpgun]

right been thinking about all the advice given to me. My account with the nat west moved three times to different branches because my bank manager moved . now the accounts have three different sort codes which means that in effect they are three different accounts.so i could break them down i think.they are £300... £3000...£4000 plus interest charged to me plus ci would you seperate them? obviously with ci they are massive,any advice? i have already sent a prelim that has expired but it was for the total amount inc ci ........which comes to alot.

 

any ideas

[sharpgun]

B U M P:confused:

[sharpgun]

hello everyone or no one, got letter back from nat west saying that because it is beyond six years, limitation act etc etc etc.I know this is a standard reply, but in view of recent cases I take it the compound interest theory is out of the window? My prelim included ci interest if i want to change my claim to the standard 8% do i have send a new prelim?

anybody please:rolleyes:

[Parkvale]

Yes i would send a new prelim. How much are your figures comIng out at ? You have had some pretty sound and helpful advice over the CI issue. When you say the standard 8% you don't mean the court S69 interest of 8% do you. You cannot claim this until you start your claim at court. Good luck.

[sharpgun]

hi all if any one is there?

sent my second prelim two weeks ago as i am now only going for the standard 8% only to find a load more statements that i didnt know existed. i have two questions

1. can i just add the additional figures to the lba?

2.i am now going for standard 8% is there any reason why it cant be 8% compouded or anything else ?

 

any advise would be appreciated:D

[GaryH]

1) Yes

 

2) The 8% has to be simple interest, unfortunately - The County Courts Act does not allow compound interest.

[sharpgun]

thanks gazzz

well gonna send lba on monday just recalculated with latest statements 29k with 8% interest. I have seen on some threads where people have asked for expenses and damages? any comments anyone

[GaryH]

You'll be in the multi-track so you'll get your costs back if/when you win anyway. Keep a record of your time spent at £9.25 p/h and any receipts, etc. You claim that back upon judgement or when they offer to settle.

 

Damages is a different thing altogether. I wouldn't advise you to claim damages personally but thats not to say a claim for damages is not valid - I just don't know enough about the issues and the basis for claiming it. It will add another level of complexity to your claim though and you'd have to be 100% sure of what you were doing.

 

Zoot's the best person to ask on whether a damages claim is viable or not - she posted earlier on in the thread so hopefully she'll comment.

[sharpgun]

hi gang i have slightly ammended CAROS lba this is my lba is it ok?

thoughts appreciated

LETTER BEFORE ACTION 09/07/2007

 

Dear Sir/Madam,

 

I now understand that the regime of fees which you have been applying to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to Statute.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

Which relates to the below

However, s.32 (1) (b) of the Act says:-

Quote:

32.--

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

o (a) the action is based upon the fraud of the defendant; or

o (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

o © the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

 

Accordingly I claim:

 

a) the return of the amounts debited in respect of charges in the sum of £**;

 

b) Court costs;

 

 

c) The Claimant claims interest in pursuant to Section 69 of the County Court Act 1984 at the rate of 8% per annum calculated from the date of each transaction to **/**/**, which is £** and also interest at the same rate until date of judgment or earlier payment at a daily rate of £**.

I believe that the contents of these particulars of claim are true.

 

 

I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

 

Yours sincerely

[GaryH]

Better off just sending the standard template IMHO. No need to go into your legal arguments in an LBA, and you don't even need to mention the Limitations Act. Save that for your POC.

[sharpgun]

hi all,

just found some more statements with arrangement fees totalling 5k can these be claimed?