Forcing a court case: Declaration

[TJ2007]

Hello all,

 

I must confess I have not read through the many excellent posts on this site, and so I apologise if I am repeating ideas others have already thought through and rejected.

 

I am a pupil barrister with some knowledge of contract law. I notice that a recurring theme is the inability to get a court case heard. But it is possible to sue for 'declaratory relief' on a contract: i.e. to sue for a Declaration that a term of the contract is (for example) unlawful. On the face of it, I cannot see why one could not sue for a Declaration that the term in a bank contract allowing for these charges is unlawful. One would not even need to sue for monies charged under that term to be repaid - - instead, anyone with a contract with a bank could sue for a Declaration that one of the terms is unlawful.

 

Of course the Claimant would be liable to the bank's costs if s/he lost. But (a) that seems unlikely; (b) you could seek a Costs Capping Order limiting the amount of costs which could be incurred by each side; © CAG could get together a fund to pay the costs.

 

Yet another way of avoiding the potential of personal bankruptcy would be to set up a limited liability company, for this very purpose, with a bank account, and then for that company to sue for a Declaration. This would be less ideal in that the company would not be able to rely on the Consumer Contracts regulations; but it could sue on the common law points relating to hidden penalty clauses.

 

Just a thought. As I say, this may have been considered and rejected for very good reasons, but on the face of it, it is unclear to me what those reasons might be.

 

TJ.

[Guest strangewayofsavin]

Hi, I like the idea, however most people on this site are not interested in going any further than getting their money back, most are terrified of going to court, so you may not get many takers. Most banks are saying in their defence that "there is no contract between them and the account holder, and the terms are conditions of having an account include the penalties which they now call fee's etc.

On a different note, with the idea of people clubbing together, would it not be easier to bring a claim against a Bank director/s, for financial loss due to some sort of failure in their legal duties to investigate the charges made by the many people reclaiming Bank charges?, I am not in the know but have been reading the statute law data base, and believe there may be some kind of breach of duty according to The companies act,the Fair trade act, and relevant other laws, to back up evidence, i.e trade practices act & trade decriptions act.

I may be way off the mark, but it may be the only way to force a hearing.

[indebtstudent]

I would be willing to bring such a case, my charges are only £300 ish but the trouble is I wouldn't have the means to pay if some order for costs was made against me (see my name which is to be read in the past).

[Guest strangewayofsavin]

to add to my post above, the first instance of which you spoke, the bank would have to be Abbey, this is the only bank with which we have proof (in a terms and conditions from 2002) that state it is a contract between them and the account holder.

[kevcam]

There is a case being heard in London Mercantile Court on Friday July 20th which includes such a declaration.

[crfx250]

Stephen Hone is in the process of a declaration case with Co-op bank

[indebtstudent]

I have a better idea and its so obvious somebody must have though of it before. My bro is currently battling with Natwest over the £4,000 they claim he owes them, the charges come to about this amount.

 

His circumstances are such that he needs to sort this out as soon as possible so he can have a realistic prospect of moving his mortgage away from them in the next few years.

 

I got thinking the other day what could they do if he simply did nothing? They could default (some people's credit rating is already shot at this point so there may be no hard), pass it to a DCA and go to court (at leat that is the threat).

 

The point is they would lose in court, what would thier likely cause of action be? Indeed you could use contract law as your defence.

 

Has anyone said this before or been in this situation? I would be very interested to know...

[Monty2007]

Interesting thread. Could I ask a question about contracts and the enforcement of interest rates following default.

 

I defaulted in two Amex accounts due to unemployment and they served a default notice on me, as such my understanding is that they have terminated my cedit agreement contract with them. Amex then had a DCA contact me and agree a repayment schedule, however not only have Amex continued to take compounded interest but have also increased it?

 

Under Data Disclosure I requested all my information and statements from Amex, note that had stopped sending them following default BUT when I got the pack they had still continued to produce monthly statements but NOT sent any to me. The statements were typical in that they detailed the debt and interest etc, but they have terminated these contracts through issuing a default notice and transfering the management of my accounts to a DCA (NCO Europe).

 

I should add that I have been paying them for 1.5 years at now £1k per month and have the debt at 50% of the original sum.

 

Do I have any response in law?

[dave]

indebtstudent - I did exactly that with Abbey, however, once I mentioned the charges, they dug their heels in, and I caved in and sued them.

[Monty2007]

Dear Dave

 

Interesting angle, how did you get on or is it still ongoing with your creditor?

 

In my case I have paid over £10 K in interest over the last three years, they have given me back my charges (about £500), I am not sure a judge would remove the interest in my case - is there any precedent here?

 

Kind regards

 

Monty

[BankFodder]

Hello all,

 

I must confess I have not read through the many excellent posts on this site, and so I apologise if I am repeating ideas others have already thought through and rejected.

 

I am a pupil barrister with some knowledge of contract law. I notice that a recurring theme is the inability to get a court case heard. But it is possible to sue for 'declaratory relief' on a contract: i.e. to sue for a Declaration that a term of the contract is (for example) unlawful. On the face of it, I cannot see why one could not sue for a Declaration that the term in a bank contract allowing for these charges is unlawful. One would not even need to sue for monies charged under that term to be repaid - - instead, anyone with a contract with a bank could sue for a Declaration that one of the terms is unlawful.

 

Of course the Claimant would be liable to the bank's costs if s/he lost. But (a) that seems unlikely; (b) you could seek a Costs Capping Order limiting the amount of costs which could be incurred by each side; © CAG could get together a fund to pay the costs.

 

Yet another way of avoiding the potential of personal bankruptcy would be to set up a limited liability company, for this very purpose, with a bank account, and then for that company to sue for a Declaration. This would be less ideal in that the company would not be able to rely on the Consumer Contracts regulations; but it could sue on the common law points relating to hidden penalty clauses.

 

Just a thought. As I say, this may have been considered and rejected for very good reasons, but on the face of it, it is unclear to me what those reasons might be.

 

TJ.

If you set up a limited liability company to sue for your own personal charges, you would immediately be faced with several difficulties. Firstly as the company would not itself be owed any charges it would lack privity. Similarly because the company did not have an account it would not even have the locus to sue for the declaration. Finally, even if the company was setup and obtained an account merely for the purposes of acquiring the necessary locus, I would expect that it would soon become clear to all the true purposes of the company and it would then become easy enough for the defendant to pierce the corporate veil. Furthermore I can imagine that the bank would ask for a security for costs and would easily be able to persuade the court that it should be allowed to receive personal guarantees.

[Monty2007]

Nice one, I am not a pupil barrister but spotted that one would be a can of worms!