business claim 1992 and onwards

[photoman]

Sharpgun,

Hopefully a link to a useful couple of threads will appear in my signature.

Firstly, a group of us have started a thread to help all those claiming against Business accounts. We've got together to share ideas, methods, views etc .

There are some subtle but VERY important differences regards claiming against Business accounts; mainly the fact that you cannot use Consumer law, (but there is plenty of other legislation, regulation and case law you can use)

I too am claiming on a Business account, and for prior to 6 years, and including Contractual interest.

Yes, the figures involved can look shocking at first...... but remember, this is exactly the same way that they have charged you, and then also gone on to use your money to acquire massive profits from others!!

Do not let the sums appearing deter you, remember that the law is very keen not to allow wrongdoers profit from their acts.

Secondly, in my sig. should also appear a link to another thread regards consolidation loans.

Like many here, you may have been forced at various points to take out consolidation loans, mainly to repay borrowing from the Banks. In many cases, much of the borrowing is in the form of overdrafts that consist of lots of charges. Had you not had the charges in the first instance, you would likely not have been so overdrawn? So, in effect, you've firstly paid interest on the overdraft caused by charges, ...and then gone onto pay interest on a further loan to clear charges that you should never have had in the first place !

Many are wising up to this double blow, taking actions, and have won. So, if this has also been the case for you then join in.

[photoman]

Try this,

http://www.zen122856.zen.co.uk/CompoundSheet_v1.9.xls

 

Remember to save it to your computer before working on it !!

(under the page icon on your browser, choose Save)

 

Do your sums and total things up......... but before you go ahead and file your claim, remember to have a good read up on Contractual Interest, and all the arguments and reasonings. It is a lot more complicated than simple statutory interest, so you do need to make sure you know what your doing, why, and how to argue your reasonings with confidence.

Here's some links to read.

 

http://www.consumeractiongroup.co.uk/forum/general/79524-key-arguments-against-compound.html

 

http://www.consumeractiongroup.co.uk/forum/general/18313-why-no-one-claiming.html

 

A couple of cases that included CI

http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/26172-mindzai-lucid-lloyds-tsb.html

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/20095-glenn-abbey.html

 

 

This is also a very useful post for finding pertty much anything.

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/53182-cant-find-what-youre.html

 

Also, didn't mind, but there is no need to send People PM's if they are already subscribed or contributing to your thread. They will get your question if you just post it. Save PM's just for when an issue is private or sensitive, and you don't wish to post it.

[photoman]

sharpie,

Got your email, and responded.

Looks like you've got lots of support and help here. Myself included.

Just be careful and have some patience. Don't rush and make mistakes.

Agree with Scott, that the size is quite immaterial to the arguments for and against, as the case law is behind us all. But those with larger claims will need to ensure that everything is totally watertight, as these are the cases they will cherry pick to scrutinise more carefully.

Best regards

[photoman]

Scott,

Just out of interest. Noticed you claim included interest.

What type and at what rate was your interest ?

[photoman]

if i win this ill have to have the mother of all parties i wonder if thier reading this

 

I hope we all get invited !!!

 

..... a weekend at a villa in Monte Carlo maybe ??

[photoman]

Sharpgun,

I'm online now, if you want to explain what you mean further?

[photoman]

Sharpgun,

Meet me in the chatroom (click on the button that says CAG chatroom near the top of the page just under the box that tells you if you have messages)

[photoman]

Scott

The issue of what account balance to put into your spreadsheet is not a simple one, and has brought about much debate on this site.

The most knowledgeable members on this matter seem to be Mindzai, Lucid and Bill-k.

I have to dash off, so look up the thread by Mindzai and Lucid and there are some very good answers on there. Very useful reading anyhow, especially as it is their spreadsheet you are using.

I will try to post later regards my own understanding of the conclusions.

[photoman]

changed it a bit

 

 

 

 

[their address]

 

 

LETTER BEFORE ACTION This is your prelim NOT your Letter Before Action !

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: xxxxxxxxx

 

I have just discovered that the regime of fees which you have been applying to my business accounts from 1992 to 1995 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. Have you actually looked up the meaning of Fiduciary anywhere?

Even though this was included in the original site templates, there is now some debate as to whether they actually are fiduciaries? Personally I chose to omit this reference, as it is controversial, and unnecessary in any case.

 

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.]

Sharpie, everything bwithin the [ and ] is not presented well, makes little sense and in any case is unnecessary at this point, save your arguments regards Limitations act etc until your POC.

 

Accordingly I claim:

 

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

 

b) Court costs; No need to mention this, court costs come as standard.

 

 

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 £**. ]

Sharpie, do not offer them alternatives at this point. They will only try to offer you the lower rate. It is upto a court to decide which rate is most applicable. Save any alternatives until your POC's, and clarify that the alternatives are at the COURTS discretion.

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

This is NOT a Particulars of Claim, it is a prelim. Omit this.

 

 

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.

This is a Prelim. in order to be seen as having been reasonable you will still have to issue a Letter Before Action, giving them 14 days, before submitting a court claim.

 

 

 

 

Yours faithfully,

 

 

 

Sharpie,

Do not try to modify the sites templates too much !!!!

They are tried and tested, and you have obviously made some very fundamental mistakes by modifying them.

I don't wish to belittle you here, but I really do think you still need to spend a bit more time reading up and giving this matter the attention and research it deserves before jumping in too quickly. This is a large and controversial claim, and they will pick holes in anything they can.

Even the most experienced members on this site would tread very carefully with such a claim.

Here is an example Prelim to consider and maybe try.

 

Date; x/xx/xx

 

Thier Address

xxxxx

xxxxxx

xxxxx

 

 

ACCOUNT NUMBER: xxxxxxx SORT CODE: xx-xx-xx

 

Dear Sir/Madam,

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

If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have actually been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

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.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

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 the integrity and expertise of [YOUR BANK].

 

As per my attached schedule of charges:

I calculate that between xx/xx/xx & xx/xx/xx you have taken £xxxx.xx along with £xxxx.xx which you have charged me in additional overdraft interest for these sums you have taken. These two figures give a total of £ xxxx.xx

 

Furthermore, as there is an explicit or implied term of mutuality and reciprocity within the terms of our contract, then I am adding interest to what the Bank have taken. This is justified in respect of the fact that the Bank unlawfully took my money, and that is the equivalent of Unauthorised Borrowing. Therefore the total sum will be subject to a contractual rate of interest at your own Unauthorised Borrowing rate of x.xx% per month compounded monthly giving an A.P.R. of xx.xx% which will be applied to the penalties and the interest on the penalties you have charged me. This amounts to £xxxx.xx

 

Therefore the Total sum I now expect from [YOUR BANK] in respect of this matter is: £xxxx.xxx

 

[This sum will also be subject to daily interest at x.xx% (which amounts to £xx.xx per day), from the date of this letter until the claim is settled].

 

Yours sincerely

 

Sharpie

[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.

[photoman]

Zoot

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

Lots to take in and look up.

Regards

Photoman

[photoman]

ok next week can take nat west to court,got n1 forms, first question, brief details of claim?illegal charges and interest.

2nd question the values... with interest or with out?

3rd question if i want to claim expenses do i add these now?and finally p.o.c. do i need specifically for bussiness and pre six years?

any help appreciated some of tes questions i think i know but i just want to be right

 

1/ Brief outline of claim = "Return of penalty charges and interest thereon with regards bank account xxxxx sort code xx-xx-xx as held by the claimant with the Defendants company"

 

2/ Amount claimed/ Total amount = The full amount of the claim including any interest you are charging them.

 

3/ No, you don't add expenses on at this stage, the court fees will either be added onto any out of court negotiations with solicitors, or will be added on by the court at the time of judgement. Any other expenses (printing, travel costs, claim for time etc), you will need to claim after settlement/judgement as a wated costs order.

 

Remember to be careful about what you do and don't include in your particulars of claim, in light of fact that this is a business claim (eg, don't include references to UTCCR 99 or any other consumer only statutes, decided cases, laws or regulations etc).

 

Remember that if you are trying to claim Contractual interest, it is now pretty much decided that you cannot try to do so by pleading Mutuality and Reciprocity, or implied terms into contracts. Such an approach is now pretty much decided (see Halliday v HBOS) as being inapplicable, and will very likely not be regarded or allowed by a court.

[photoman]

Caro

 

Wondering whether you may have an opinion on this, or if you could bring it to the attention of those who may?

 

It appears that the Banks are of their own accord requesting to have stays lifted on claims that involve Business account claims???

 

See our thread. Particularly towards the end of the thread (pages 37, 38 etc)

 

http://www.consumeractiongroup.c o....ml#post1139291

 

They themselves are requesting the stays to be lifted, stating that it is due to the fact that the OFT case does not encompass Business claims.

 

This is VERY peculiar behaviour?

 

Would appreciate any views?

 

Photoman