Stornoway v Citicards incl Contractual Int & Pre 6 Years

[Stornoway]

I live in Scotland but i'm claiming in England by using a Mailbox I've set up as a correspondence address. The story so far ........

17 Dec 06 - Sent SAR

04 Jan 07 - Request for ID rec'd and returned

28 Feb 07 - Statements received

07 Mar 07 - Prelim sent

26 Mar 07 - LBA sent

30 Mar 07 - Decline letter rec'd (no offer)

10 Apr 07 - MCOL submitted

18 Apr 07 - Claim Acknowledged

01 May 07 - I offered to settle at a modest discount (rejected 8/5/07)

01 May 07 - Usual standard defence received

05 May 07 - AQ returned under new allocation strategy (details below)

 

Claim is for (approx figures)

- 1100.00 charges

- 1300.00 compound purchase interest (23.6%)

- 1300.00 compound contractual interest (at 23.6% purchase int rate)

- 3700.00 TOTAL

 

I'm really enjoying this whole process and whilst I would be delighted to settle out of court to avoid wasting court time, cant wait until I have my day with the infamous Mr Smith. Their claim of £12.88 costs is absolutely laughable and has holes in it bigger than the Mersey Tunnel. My brother's new girlfriend is a barrister who is now helping me in the process so roll on my day in Morpeth & Berwick Court !

[Stornoway]

My Particulars of Claim :

 

 

1. The Claimant has had a credit card account ("the Account") with the Defendant which has been open since before May 1999 and remains open.

 

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

 

3. A list of the charges applied is attached to these particulars of claim.

 

 

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

 

5. The claimant claims compound interest on the amounts claimed, using the rate and method as applied by the defendant to monies it is owed. A schedule of the charges and interest calculated is annexed to the Particulars of Claim. The claimant’s ground for seeking restitution of the compounded contractual rate of interest is that the defendant would be unjustly enriched if the claimant's entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates. Additionally, the Claimant has not had the benefit of the sums and has therefore been unable to use said sums to repay borrowing elsewhere.

 

 

6. Alternatively, if the court decides that the claimant is not entitled to the contractual rate of interest (as outlined at point 5 above), then the claimant claims statutory interest under s.69 of the County Courts Act 1984.

 

 

7. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges on the Account in the sum of £1,100

b) the removal of any prejudicial information which the Defendant bank may have passed to third parties in relation to the Account and in particular the removal of all Default Notices registered with credit reference agencies since this was caused solely by the level of disproportionate penalty charges. The Claimant’s request is made under the Data Protection Act 1998, section 14, which gives the power to the Court to order the removal of inaccurate personal data.

c) a refund of all interest paid on the said charges amounting to £1,300

d) Compound interest on the said charges at the contractual rate of 23.60% of £1,300,

e) In the alternative to point d above, interest under s.69 County Courts Act 1984 at the rate of 8% a year and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 85p.

f) Court costs;

 

 

8. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

 

 

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

[Stornoway]

I'm following the new strategy for Allocation Questionaire's (no response from judge yet):

 

In the Morpeth and Berwick County Court

Claim number XXXXX

 

 

 

 

Between

Stornoway - Claimant

and

Citifinancial Europe PLC - Defendant

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

b) Whether such charge is accepted to be a penalty, and if not why not;

c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

e) Any witness statements.

f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[Stornoway]

All advice, support, comments and help gratefully received !

[Stornoway]

Hi Gizmo, thanks for calling in !

 

Two points in their defence mention interest;

 

10. The Defendant avers that the Claimant's claim is not a Moneyclaim but a damages action and further avers that the Claimant's interest calculation is not applicable to this action or, if it is applicable, that it is wrong and the Defendant puts the Claimant to proof that this interest is owed. Specifically, as the Defendant is a credit instituition and not a deposit taker, it cannot set off default fees against money held on account. As such it cannot be held liable for interest on a notionally paid debt rather than actual one. It is averred by the Defendant that it is only from the time of any such payment that interest could have accrued on such payment as if it were a debt.

 

11. Further or alternatively, the Defendant avers that as this is a debt action then the statutory interest rate should apply rather than the compounded interest rate claimed as this contractual rate was agreed between the parties (LIKE I HAD A CHOICE IN WHAT INTEREST RATE THEY APPLIED !!!), is neither a penalty nor a default fee and was voluntariy incurred by the Claimant as a consequence of his breaches. It has not been subject to any OFT ruling or case law and the Defendant avers that the Court has no jurisdiction to pronounce on that element of the contractual agreement freely entered into by the Claimant.

[Stornoway]

Many thanks. I've had a lot of success in other claims so far and I'm treating Citicards as my "wildcard" - I'm happy to gamble on this one to an extent but obviously give it my very best shot. If nothing else I love the tone and content of Brian's letters - they are fantastic, like something from a bad 60's sitcom.

 

Looking forward to my battle !!! Will keep you posted.

 

Cheers.

[Stornoway]

Stornoway, which spreadsheet did you use for your calculations?

 

I created my own - happy to share with you if you want a copy (PM me your address).

[Stornoway]

Hi there love to see your spreadsheet how many ci claims have you been successful with is this the letter in your thread yo used for all ? Regards Gaz

Gaz - send me a private message with your email address and i'll send some docs through.

 

Cheers

[Stornoway]

Well .....the judge has taken his time but finally received response to Allocation Questionnaire and slightly disappointed that only standard directions were received so now have to wait until 13 August for my day in court. Still it does give me time to enjoy my summer holiday and fully prepare for court.

[Stornoway]

Starting to get my court bundle together - ideally I want to get it out the way before I go on summer hols. Have noticed a few mistakes in the Citi defence document including the fact that they claim to have paid me c.£500 being the difference between the charges and the OFT £12 - this is simply not true, I 've had nothing off them so far. I'll enjoy highlighting the mistakes to the judge.

[Stornoway]

love your style and "patter" Stornoway, I am using the MCOL sytem for a claim against the A&L. I would like too subsribe to your thread, I'm sure you will overcome any tactics thrown delivered to you.

 

All the best..............William (From sunny Saltcoats on the west coast)

 

Thanks William - your support is appreciated !

[Stornoway]

Hi Gizmo

 

Have sent a PM with my address.

 

Many thanks

[Stornoway]

Thanks Dusary - love the new avatar BTW.

 

Court bundle was delayed until after hols but in the interim period both Barclaycard and First Direct settled claims on the day before court (both with contractual interest) - i'm now on a roll !

 

The court bundle is almost ready to go and its long at 112 pages. I want to do a little more research on claiming contractual interest so may add another case law example if I can find something relevant.

 

I have also written to the court to ask if the allocated time for the case can be increased from 10mins to 2 hours.

 

Here is what I have in the bundle so far;

 

 

Documents

 

 

Description Pages

Correspondence 1 - 8

Statements 9 - 55

Latest Schedule of Charges 56 - 57

Relevant Case Law 58 - 60

Early Day Motion from Houses of Parliament 61

Dunlop v New Garage 62 – 63

UTCCR 1999 64 – 74

UCTA 1977 75 - 83

SOGA 1982 84 – 96

OFT Statement Summary 97 – 99

Copy Terms and Conditions 100 – 103

Sheldon v Outhwaite 104 – 137

Disclosure Orders 138

Response to Citicard Defence 139 - 142

[Stornoway]

Thanks - Alice Rose. Give me a shout if you need any help with your claim.

[Stornoway]

Received the court bundle from Citi this morning (9 days before court date - it was supposed to arrive 2 weeks before). The skeleton arguments look fairly standard but there is a copy of a judgement granted in their favour at Salford Court on 6th June this year -Timothy Potter v Citifinancial. Does anyone have any knowledge of this case ?

[Stornoway]

Don't know who the claimant is - not a CAG member AFAIK. But don't worry it doesn't mean a thing SCC anyway - also there is bongobazs thread where judgement was made against Citi so suggest you use that to counteract.

 

Have taken today off work to prepapre for case on Monday. Thanks for the tip re Bongobaz Gizmo - i'll research that one. Enron has also kindly given me a copy of the statement he used to support his case in court so will use this as a start point in preparing my own statement.

[Stornoway]

I tried to get the court to order Disclosure but suspect that I was simply too late with the case being heard on Monday (I had also tried at AQ stage but was ignored).

Have accordingly today received correspondence from court regarding my claim with "the Court is not minded to Order any further disclosure but invites the defendant to note the points raised".

Hopefully this will mean that the Judge is minded to take on board my argument re costs in the hearing on monday.

[Stornoway]

Thanks for all the good luck wishes - in court at the moment and still waiting to be called (was supposed to be 2pm).

 

Citicard lawyer has introduced herself and advised that she fully expects all 4 bank charge being heard today to be stayed - I suspect I am about to be stitched.

 

So frustrating - especially given 2 days holiday taken to prepare for and attend court plus the 200 mile round trip to get here.

[Stornoway]

What a waste of a day. Was eventually called at 4.30pm - judge asked me to give very brief outline of claim which I did. He then asked for Citi to comment. Citi asked for a stay quoting the OFT test case. Lots of ums and aahs from the judge then he asked me for my views to which I highlighted that ;

1. test case was for overdraft charges not credit cards

2. OFT had already reported on credit cards

3. FOS are continiuing credit card claims and have only stayed c/a claims

4. a delay would infring my rights to a speedy trial under Human Rights Act

5. there is no status quo as Citi can continue to charge

 

There was some toing and froing including Citi arguing that the underlying issues are the same in overdraft and credit card claims but judge particularly commented on points 3,4 and 5 above. Citi said that if I proceeded and won they would appeal and timescales are then similar to the test case. Judge mentioned that a delay is also against CPR Over-riding Objectives rules and even if there was an appeal it would still be concluded before the test.

 

STAY WAS NOT GRANTED. Out of the 4 bank charge claimants I was the only one to appeal the Stay successfully and incidentally I was the only one who used CAG (incidentally the judge stayed two claims heard imnmediately in front of me).

 

On the downside it is now to go to trial in 6 to 8 weeks (I thought this was why we were there today) so another 200 mile+ round trip coming but it does give me more time to prepare.

 

I had tried last week to ask for full cost disclosure but response was that "judge was not minded to grant but asked defendant to note points raised". With hindsight I should have asked again today but the Stay application threw me completely off guard.

[Stornoway]

That's a shame, but I would be tempted to request for a wasted costs order, it was granted in my claim - albeit Citi paying it in a timely manner maybe another thing.

 

One thing to note, is don't put anything up here that you would be unhappy with Citi reading. As Brian's likely burning the midnight oil every couple of days and looking in here.

 

Might have a few extra points for you regarding Citi's costs soon.....

Cheers Enron - will PM you later tonight / tomorrow.

[Stornoway]

I'm now working abroad so had to ask for court date in November to be postponed and now waiting on new date coming through. I've asked the court if this hearing can be by phone conference as it'll be a real hassle if I have to come back to the UK. Citi did write three months back to say that they would be crediting my account with the differenece between the charge applied and the £12 level set by the OFT but surprise surprise - nothing ever was credited - they are completely useless. Slow slow process - now wish I had used ombudsman.