business claim 1992 and onwards

[caro]

I haven't read all of your thread, but wonder if you have evidence of fraud. If not I strongly urge you against claiming contractual interest.

[caro]

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.

 

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.

 

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]

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.

[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

[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

 

[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

[caro]

Yes add them on. I'm rather curious about the arrangement fees. For £5,000 they must have done an awful lot of arranging. Could you post a bit more detail about them please.

[caro]

It would seem a genuine service charge then, but by the same token a nice little earner for the bank.

[caro]

What does your application to strike out say sharpgun? It should show some reason for the application, and it's impossible to advise you without more information.

[caro]

I didn't get the 3rd but have sent you my email addy. Give me a bit of time to go through and see if I can come up with anything.

[caro]

Are both accounts for the business? I think you should still do the AQ as ordered by the court.

[caro]

I don't think you have too much to worry about sharpgun. It seems to me that they are applying for the strike out on the grounds of the case being over the 6 year limit, as they stated in their defence. It is up to the judge to decide on that issue, but it may be worth asking the court if they intend to hold a hearing to decide whether to allow the strike out, in which case you will have the opportunity to explain why it should be denied. As a business claim there should be no question of the case being stayed if the application to strike out is denied.

[caro]

The link isn't working Photoman, but I know that some have applied to have the stays removed, but as I see it, it's in cases where there should never have been a stay in the first case, ie business claims.

 

I've not been about much the last week or 2 though so maybe I've missed something.

[caro]

Have a look at this thread, and if you have any problems post them here. http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[caro]

As I read it all of the charges you are claiming are over 6 years, and to my extremely untrained and amateur eye, they do seem to be relying on that pretty much. If they can get it struck out on that basis then they don't need to worry about the charges issue. There may be some merit in amending your POC if the judge felt they were inadequate and I think it's likely you would be given the opportunity to do that if there's a hearing for it, but I don't think you have a problem. As I've said though I am not a professional so don't rely on my word.

 

Personally I would phone the court for advice on what may happen.

[caro]

There is a bundle for a stay hearing, but keep an eye out for any updates to it. http://www.consumeractiongroup.co.uk/forum/bank-templates-library/114505-bundle-stay-hearing.html

 

The information for completion of the AQ is in the link I gave you in post 173.

[caro]

Sorry sharpgun - I must have been having a blonde moment. I'll get back to you on this.

[caro]

Gary won't be around much for a few weeks sharpgun. I think it would be wise to write back to Cobbetts as soon as possible, and tell them that you prefer to keep everything in writing with your pending court case. You could provide an email address to speed things up.

 

I guess you need to sort out a court bundle, ensuring you have plenty covering the Limitations Act.

[caro]

Hey Sharpgun, how did you get on in court? Is this settled now or still rumbling on?