Reply from hsbc

[jowalshy]

You could always download this and see if it works to retrieve the data from your disk:-

 

BadCopy Pro - Floppy Disk, CD, DVD and Digital Media Data Recovery Software

 

 

or:-

 

CD and DVD Data Recovery/Rescue software, also featuring BD and HD DVD

[freakyleaky]

You can always take the disc to a high street computer shop and ask if they can help to retrieve the information. We have a very good one near to us and they are always willing to help with things like that. They do charge for it though!

[molly1959]

Hi i have got a copy of letter before acction and the one turning down there offer should i have many more was thinking of asking the court for longer to get it all in but not sure if that would go against me.

[jowalshy]

There should also be the preliminary letter (the first one you sent asking for the charges back). I wouldn't ask for an extension, I am sure that if we all pull together we can guide you through the bundle.

[jowalshy]

I've got to pop off now to pick up the kids, but I will be back a bit later. I will also hunt out my bundle for reference

[molly1959]

I have got my daughters letter i could change the figures and dates cause i did hers do you think that would be ok, also my daughter had a stay on hers and had a court hearing to remove it and we forgot about it i have been in and out of hospital so things have not been very good she has just had a letter from the court if you could just have a look for me please. I hope i have not messed up on hers as well. i have cut bits of to make it smaller

In the CHESTERCounty court

 

Hsbc Bank Pic DX7 12630 BIRMINGHAM

 

 

Date

 

07 November 2007

Before DEPUTY DISTRICT JUDGE LEIGH sitting at Chester County Court, Chester Civil

Justice Centre, Trident

House, Little St John Street, Chester, CH1 1SN.

Upon proceedings having been started in the Commercial Court, London on 27th July 2007 reference number 2007 Folio 1186 pursuant to agreements made between several of the major banks and the Office of Fair Trading ("The Proceedings")

And Upon reading the papers in the present action and the skeleton argument provided by the Claimant and responded to by the Defendant

And Upon it appearing that the issues raised in the present action are the same or similar to some or all of those raised in the Proceedings

And Upon it appearing to the Court to be just to stay the present action until the outcome of the Proceedings is known It is ordered that:-

1. The Application of 26th August 2007 made by the Claimant is dismissed. I 2. The Claim shall be continue to be stayed pending the ultimate determination of the Proceedings.

3. The stay be without prejudice to any negotiation between the parties to settle the action.

4. Unless the Court has given directions in the meantime, the defendant shall within 28 days of the final determination of the Proceedings apply on notice for directions.

Note: further information in relation to the test case is likely to be available through the website of the Office of Fair

Trading at:

http://www.oft.gov.uk/advice_and_resources/resource_base/market-studies/personal2

Dated 01 November 2007

The court office at CHESTER County Court,Chester Civil Justice Centre, Trident House, Little St John Street, Chester, CH1 1SN is open between 10am and 4pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 01244404200 Fax: 01244404300

Produced by:AMY

N24 General Form of Judgment or Order

[Castlebest]

Hiya Molly, your judge has decided to keep the stay in place until the test case has been heard, so just sit back and wait now.

 

pete

[freakyleaky]

Molly, can you remove your daughters name from the letter please! You never know who is reading these threads!

[molly1959]

Hiya Molly, your judge has decided to keep the stay in place until the test case has been heard, so just sit back and wait now.

 

pete

 

Thanks thats great just got to sort my bundle out and get it posted on sunday:)

[jowalshy]

Psst.. Can you remove your daughters name from the letter. As FL says you never know who is watching.

[molly1959]

Molly, can you remove your daughters name from the letter please! You never know who is reading these threads!

 

Thanks thought i had:)

[molly1959]

Psst.. Can you remove your daughters name from the letter. As FL says you never know who is watching.

 

Thanks just done it did you look at your bundle?

[jowalshy]

My bundle consisted of:- (bear in mind that mine was settled prior to the OFT announcement and there maybe some changes that need to be done)

 

DOCUMENTS

Description: Pages

 

Witness Statement

Draft Order for Directions

Correspondence from Claimant

Correspondence from Defendant

Bank Statements

Schedule Of Charges

Statement of Evidence

Relevant Case Law Summary

Early Day Motion From The House Of Parliament

Dunlop v New Garage

UTCCR 1999

UCTA 1977

SOGA 1982

Terms & Conditions 1997

Price List for 1997

Terms & Conditions 2005

OFT Statement Summary

BBC Commission Conclusion

Transcript for Peter Mcnamara BBC Radio Interview

Australian Default Charges report by Nicole Rich

[freakyleaky]

Looking good to me Jo. I am thinking of reviving my old thread to use as reference!

[jowalshy]

I think I might do the same .

 

Hi Molly, if you just tick off what you have got and then post up what you haven't got, we can point you in the right direction to get all the bits and bobs you need.

[Castlebest]

Looking good to me Jo. I am thinking of reviving my old thread to use as reference!

 

Including the last two days before you got your offer Freaky?

 

 

pete

[molly1959]

Hi

 

Not got anything yet going to spend all day today and then post it tomorrow there is a post office open near us on a sunday i can take thwe court there copy on monday. Am i better putting it all on a disk then printing it of can i number pages by hand not to sure how to do it on comp.

[freakyleaky]

Hi Molly. You will have to number pages by hand. We all did this as noone could work out how to do it on the comps!

 

I would not bother saving it to disc. just open what you need and print it off. You can save it all to a file on your comp incase you ever need it again.

[molly1959]

Hi

 

Not getting very far i can not print first 3 months of statements hsbc on line don't go that far back, also do i use the 55 letter and use nawanda's letter to fill the holes in or the other way round:confused:

[jowalshy]

Yes use the 55 letter and adjust it with nawandas letter. Also make it personal to your own claim. Read through every bit and change it if necessary. If your stuck, just post up what you have done and we can read through it to make sure it is ok.

[molly1959]

Hi not sure if this is ok feel free to change any of it:) Also not got 1st 3 statements i have got them of internet and don't go far enough back.

 

 

Claim Number:7QT11771

 

 

 

In the Birkenhead County Court

 

 

 

 

 

Between:

 

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

Hsbc Bank Plc

 

 

(Defendant)

 

 

 

 

 

_________________________ ______

 

 

 

STATEMENT OF EVIDENCE

 

 

 

_______________________

 

 

1. The Claimant submits that the charges levied to his bank account, as set out in

the enclosed schedule, are, notwithstanding the defence of the defendant, penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 10 above, exercises the contractual term in respect of such charges with a view to profit.

 

3. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

4. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty.

 

5. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded this agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge of £**.

 

6. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for; "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;”

I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrterrorem

7 The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously In correspondence with Lloyds TSB’s Customer Services Recovery’ in department,

In July 2006, Martin Orton, who is the manager of the department, stated this in a letter; “As you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs”. This was in response to a direct and plain request to justify Lloyds TSB’s charges. Throughout the letter, no mention was ever made of the charges as being the cost of any sort of

‘service

8 Additionally, the terms and conditions of the claimants] account contract explicitly describe the charges as to be levied in instances breaching those terms.

 

9 The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

10. As submitted above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

11. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

12. Further, under the UTCCR:

 

"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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

 

13. Following on from the above, the claimant does not accept The Defendants contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

14. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred.

 

15. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

 

16. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

17. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

18. On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

19. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

20. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

21. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

22. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out this completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

23. Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

25. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

26. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

I, the Claimant, believe all facts stated to be true.

 

Signed, dated.

[freakyleaky]

Have you read it through and made sure that everything stated is relevant to your own claim? For example section 23 says you asked for evidence of manual intervetion and that no such information was forthcoming. Did you ask for that?

Just double check everything is rellevant!

[molly1959]

To be honest i don't understand most of it that bit is not relevent will delete it, i struugle so much with things since my stroke, feel like leaving it i have got to post it be 4 today just checked whta time post office shut, was suprised any were open.

[freakyleaky]

Just take your time Molly! If it is a day late then so be it! The banks always get there stuff in late.

If you are using statements on line I suggest you print them all out now as you will lose the earliest on every month.

Just send in the ones you have got and if it is spotted then they will adjust your claim figure to allow for the missing statements.

Don't stress over it molly. It's not worth it!

[molly1959]

Thanks don't know why i am worrying the bank will take my claim to pay my overdraft:)