business claim 1992 and onwards

[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.

[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.

[GaryH]

1) Yes

 

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

[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.

[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.

[GaryH]

Add this section in.

 

5. a). In so far as any charges relating to the period before xx/xx/xxxx, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.

 

b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public.

 

[GaryH]

The date you enter should be 6 years ago from the date you file the claim. I.e if you file tomorrow it would be 27 July 2001.

[GaryH]

No, carry on as normal. Business claims are not effected as far as I'm aware. I will double check though, but for now carry on exactly as normal...

[GaryH]

There hasn't been a ruling, all thats happened so far is that a test case has been commenced. No, it won't effect your claim either way.

[GaryH]

Sharpgun, do you have the account terms and conditions?

[GaryH]

I'll PM you in a bit....

[GaryH]

Er.. yes! I pm'd you telling you to ring the court but you never got back to me. So, did you ring them?