defence for claiming contractual interest

[adam1976brown]

started a thread in the wrong area so sorry if this has been read already....just sorting out my court bundle and i am going to add this part in for my reason for claiming contactual interest... can anyone have a look and see if it is ok... or maybe it could do with some tinkering....

 

 

As to Paragraph xx of the defence, the defendant asserts that there is no valid basis for the claimant to claim compound interest at xx.xx%.

The claimant notes that Paragraph xx of the Defence, which purports to deal with this aspect of the claim, does not give a reason for the defendant’s denial of the claim.

A. The claimant contends that this aspect of his claim should not be determined until there has been a judicial ruling on the lawfulness of the defendant’s charges. The claimant acknowledges that the terms of the contract only provide for the defendant to charge and receive compound interest on monies the claimant borrows from the defendant. The claimant’s case for claiming interest at the rate applied by the defendant to the claimant’s borrowing, is based in equity and a legal requirement for fairness and balance

 

 

B. When entering into the contract with the defendant, the claimant had no reason to anticipate that the defendant, having a long-established reputation in the banking industry, would make unlawful deductions from his account. Had this been a foreseeable event, the claimant might well have taken a different view about whether to agree to a contract which did not provide the claimant with a mutual right to charge the defendant interest in the event that monies were wrongly taken from his account, over a considerable number of years, thus producing a false picture of the claimant’s indebtedness to the defendant over the entire period covered by the claim, and unjustly enriching the defendant at the same time.

 

C. The claimant’s case is not that the contract should provide for the claimant to be entitled to charge interest at the rate which the defendant reserves for itself in the ordinary everyday course of dealings. The claimant is inviting the court to award interest and therefore compensate the claimant at the same rate that the defendant deems fair compensation for allowing the claimant to use its money, given that the defendant’s withdrawals from the claimant’s account were unlawful, and given that unlawful withdrawals were unforeseeable at the time of the entering into the contract.

 

D. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to provide evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim at trial, the claimant deems the defendant’s charges to the account to be indefensible, and unenforceable at law. It was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply penalty charges to the account, or to profit in an unlawful manner from the claimant’s account breaches.

 

E. It should also be noted that the claimant had no bargaining power to determine the terms of the contract and as all banks trade in similar terms, the claimant had no effective choice in the matter.

 

F. For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 ("UTCCR").

 

 

Regulation 5 (1) of the UTCCR states as follows:

 

"Unfair Terms

5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer."

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract should provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank. The interest claimed is therefore deemed to provide an equitable remedy in the context of the claim.

 

The claimant’s claim for compound interest should be viewed in the in the context of the claim rather than in isolation, and with full regard for the seriousness of the defendant’s misdemeanours which have led to the defendant profiting unlawfully from the claimant’s account defaults. It is entirely inequitable that the defendant should have deprived the claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the defendant to the position where it had not received any benefit from having had use of the claimant’s money.

 

 

 

i hope this goes some way to helping a claim for getting contractual interest..... post ur thoughts and if u think its pants then i will bin it....

[adam1976brown]

bumpy bumpy!!!!!

[Lula]

Adam, in the defence received by you from them, did they happen to mention the fact that they dont agree with you claiming contractual interest? if they didnt, it doesnt really matter as if they havnt defended it, they cannot rely on it in court. I have claimed contractual, there is no mention of it in their defence, in fact, their defence fails to respond to any of the POC's at all

[adam1976brown]

here r a few quotes from their defence they sent a few months ago..

 

" save as is specifically admitted in this defebce, the defendant denies each and every allegation set out in the POC "

 

also stated...

 

"blah blah... the defendant denies that the claimant is entitled to claim interest of in the sum of £8407.30p or at all "

 

iguess they r going to defend all so i need a good letter to defend my case for contractual interest.... the good thing is they cant go into court and give in on the charges and defend the interest... so as long as i stick to my guns i should and hope to get £16+k....

 

but in short does the letter seem ok....

[GaryH]

For a start you are not defending anything - you are claiming.

 

So is it part of a witness statement then? Looks fine, although to stand any chance whatsoever of getting the contractual rate in court you will need to attempt to invoke equities juristiction to award compound interest by alleging a breach of fidiciary duty. Which means obviously that first you've got to try to establish a the existance of a fiduciary relationship in the first place. Even if you were successful in doing that then its solely at the courts discretion as to what rate is equitable under the circumstances.

 

Google and have a read of

 

Westdeutsche v. Islington BC. [1996] A.C. 669

 

Obviously they may pay up before court, which is great, but the only way to get compound interest awarded by a court, as I understand it, is in equity if you can satisfy the court a fidiciary duty has been breached. Its a tall order.

 

Compound interest is not available in common law or statute, and its almost inconceivable that the court would imply a term on the basis of "mutuality and reciprocity".

[adam1976brown]

thks gary... thats why i am spending more time on reading the contractual interest threads so i have an understanding if i need to fight it... but i am keeping abreast on the charges aswell so i am not just concentrating on one area... but i am hoping it wont get to court and they fight the interest part.. but am i right that they cant just defend one area, they have to defend both???? cause if they admitt ( well they dont admitt it) and pay up on the charges then all i have to do is stand my ground and get them to pay up for both????? i hope i got it right... as with the ordert i got sent and the 2 different dates, the chap at court apologised for the 3 week delay in getting it typed up and marked on the claim that there was a delay and the 28 days stated from 2 day and not the 8th may as stated... well more to read up and get my head round the leal side of the interest... cheers gary for help and i might if i have a brain fart in the future relie on ur knowledge ... tks again....