Rochvespa v HSBC court letter, Very worrying !!!

[rochvespa]

Hello all,

 

We have received a letter from the court which I will type out in a momernt, we are very worried as we have no idea on how to tackle this.

Any advice on this would be greatly appreciated and many thanks in advance if anybody has any ideas.

 

IT IS ORDERED THAT :

 

1. The claim be stayed as it makes no serious attempt to comply with CPR 16.4 ( 1 ) by setting out a concise statement of the facts.

( Stylised particulars do not constitute compliance. ) The Claimant must amend or substitute the particulars of claim by setting out the case and by including details of the charges complained of, how they are calculated and in what circumstances they were incurred.

 

The Claimant should note that sending copy correspondence and/or copies of bank statements will not suffice.

 

The Claimant has until 4pm on 21st June 2007 to comlpy with this order. In default the claim be struck out without further notice.

 

Dated 25th May 2007

[sharongina]

Sorry cant help Lat is about this morning someone will help you shortly

[freakyleaky]

It looks like you have not given them enough detail in your particulars of claim. This has happened before and has been sucsessfully resolved so don't panic. Lateralus is the one who will be able to help. She is around today like sharon says and will come to the rescue before long.

[Todge]

rochvespa

 

Can you post up your 'Particulars of Claim'? Are they the PoC's from this site?

 

Also, which Court is it?

 

If you need to amend your details - which is allowed - check out BankFodders post here:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/41901-form-n244-application-notice.html

 

CPR16.4, if you fancy a read (it's a bit dull, but informative!), is here:

PART 16 - STATEMENTS OF CASE

 

It's just another hurdle they put in the way - it gets the standard CAG reaction: 'Brace yourself, clear it, and carry on'

 

Will be back ...

 

 

ADDENDUM: Which bank and which Solicitors?

 

HTH,

T.

[lateralus]

yes, rochvespa, we need some info to tell you what you've done incorrectly - exactly where did you get your poc's from and did you do a spreadsheet and in the spreadsheet did you give each charge a name as it appears on the statements.

it's either your poc's in your claim or your schedule of charges that's not been done properly - so, get back with what you've done - and we can take it from there - put your poc's on here with your personal id and acct no. marked out.

soon the better..... - it's correctable - don't panic

 

 

 

 

 

 

 

 

just in case you need this after we see what's gone wrong - i'm putting this here now for later:Nawanda Vs HSBC (1 2 3) from post 37, gary put what nawanda should use for her amended particulars - so follow that if it's the poc's that need doing better and include a scheulde of charges as i said with each item giving a date, amount and a name as it is on the statements.

[rochvespa]

Sorry I must sound really dumb ,what are POC's and no we did not send details via an excel spreadsheet

[freakyleaky]

POC (particulars of claim).

You need to put all details of charge into a spredsheet from this site. It enables you to give all the names of the charge, dates, interest to date of claim and account and claim number.

If you can't find the s/s just shout and I will put a link for you!

[freakyleaky]

Spreadsheets

[lateralus]

ok, rochvespa, the lack of a schedule of charges (you may have sent statements or some other unacceptable way of showing the amount you are reclaiming) this will be at least half of your problem - the particulars of claim (a section to be filled out on the mcol or the n1 whichever way you filed) will probably be the other one.

so, let's take the bull by the horns and get it done and back in before the deadline.

 

go on this thread:Nawanda Vs HSBC (1 2)

here's what to do with it - read post 37 what gary says

then: copy out post 40 - and make it your own - anything that needs to be made yours - do it (you can't literally copy nawanda's because your claim is different - so just read each bit and if it needs a little tweak to make it apply to you - do it - you can compare it to post 38 which was where gary first put it - you can see how she tweaked it in hers - you do the same -

then, check the small corrections gary gives her in post 42.

 

so, that will become your new particulars of claim to send to the court manager - she also shows you a letter to send it to the court manager.

 

JUST A THOUGHT HERE - PERHAPS IT WOULD BE BETTER TO DO THE SCHEDULE OF CHARGES FIRST - THEN DO THE PARTICULARS OF CLAIM......... SO RATHER THAN ME EDITING THIS AGAIN AND CHANGING THEM AROUND - DO THE FOLLOWING FIRST THEN GO BACK AND DO THE ABOVE.

 

 

 

now, also,you will need to do a proper schedule of charges - that means you need to fill in an excel simple spreadsheet - on the link freaky gave you above - if you fill in each charge you are reclaiming starting with the oldest and put in a date, an amount and a name for each charge as it was on the statements.....then move along from the oldest to the newest. at the bottom you will then have a total for the charges and also the 8% interest which you are claiming ......copy this out when you are done putting them in and get a total - this is your schedule of charges.

 

and like nawanda - send a cover note, your new particulars of claim and your new schedule of charges to the court.

 

 

 

 

AND AFTER YOU'VE GOT IT ALL READY FOR THE COURT:

then, also like she did - send copies of the schedule and the particulars to dg solicitors with a cover letter like hers - with your totals on it.

 

it would be a shame to come this far with your claim and then have it rejected because those two parts weren't done properly .

 

if you take the hour it will take you to do this - you will be right back on track with the court, your claim and the solicitors.

 

get it right......

 

like anything new - my advice is to read through this thread three times.

the first time it may look daunting, the second read - it will be more familiar and by the third read - i promise you will be taking it in and you'll be ready to tackle it.

 

good luck. the clock is ticking - don't let this be late - get it done and get it in and you will get your money back. if you don't do it or get it in late - your claim very well may be thrown out.

[Castlebest]

Its another MSN set of pocs

 

pete

[rochvespa]

Is this correct??

PARTICULARS OF CLAIM

1. The Claimant had an account HSBC account number xxxx sort code xxxx with the Defendant which was opened on or around 24th May 2002 and closed on or around 25 April 2005

2. During the period in which the Account was operating the Defendant debited numerous charges to the Account 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) and the common law.

5. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £415.14 and any interest charged thereon;

b) Court costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 02/10/2002 to 12/06/2007 of £107.64 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.37

 

plus then

HSBC Bank PLCSort code - Account number - SCHEDULE OF CLAIM FOR CHARGESPERIOD - 02/10/02 - 17/09/03In Respect of:AmountDate IncurredDays since offenceInterest 8% APRUNPAID ITEM CHARGE£28.0002/10/20021714£10.56UNPAID ITEM CHARGE£28.0008/10/20021708£10.52UNPAID RECALL S/O-D/D CHARGE£56.0014/10/20021702£20.97UNPAID ITEM CHARGE£28.0018/10/20021698£10.46UNPAID ITEM CHARGE£28.0012/11/20021673£10.31STOPPED CHQ CHARGE£7.5017/03/20031548£2.55UNPAID ITEM CHARGE£28.0014/05/20031490£9.18UNPAID RECALL S/O-D/D CHARGE£28.0020/05/20031484£9.14UNPAID RECALL S/O-D/D CHARGE£28.0023/05/20031481£9.12UNPAID ITEM CHARGE£10.0024/05/20031480£3.26UNPAID RECALL S/O-D/D CHARGE£10.0003/07/20031440£3.17UNPAID ITEM CHARGE£28.0017/09/20031364£8.40

£307.50 INTEREST £107.64

TOTAL = £415.14

X 3 COPIES ATTACHED TO PARTICULARS OF CLAIM PRINTED OUT ON FORM N1 IS THIS CORRECT?

I omitted 4 charges from the original letter/claim to HSBC do I need to inform the Court or HSBC of this?

Plus shall I use a similar letter to NAWANDA PERMALINK 40???

thanks x

[freakyleaky]

Helen, remove your name from the above!

[rochvespa]

Hi there!

Can anyone give advice on the whether or not the information I have typed out is what the court is wanting?????

thanks

xxxxxxxxxxx

[charliedog]

Rochvespa - don't worry you have grasped the kind of info the court needs - Lattie or Netty G will probably assist you - they are always on or you can send a pm to a moderator [the guys up there !!] like HSBCrusher etc and they will assist - Charliedog:p

[lateralus]

is that from nawanda's thread -

that looks like the poc's from the n1 which would have been good enough if you had sent that in the first place - but as they have questioned it - we are suggesting you send the whole enchalada.....

 

 

Here you go, just copy and paste this -

 

Quote:

Claim Number:*******

 

In the ******* County Court

 

Between:

 

 

Your name

(Claimant)

 

 

 

and

 

 

 

 

Bank Plc

(Defendant)

 

 

 

 

_________________________ ______

 

 

PARTICULARS OF CLAIM

 

 

_______________________

 

 

 

 

 

1. The Claimant [has] [had] an account 1 ("the Account") with the Defendant which was opened on or around 2 [and closed on or around 2 ]

 

2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

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

 

4. The Claimant submits that the charges levied to his bank account, as set out in the attached schedule, are, notwithstanding the contention of the defendant, penalty charges arising from and relating directly to breaches of contract 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.

 

5. 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 4 above, exercises the contractual term in respect of such charges with a view to profit.

 

6. 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.

 

7. 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.

 

8. 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 £**.

 

9. 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-terrorem".

 

10. 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. Here, add in details of any correspondence in which the bank referred to the charges as ‘penalties’, ‘defaults’ or ‘exist to cover costs’, etc. For example -In correspondence with Lloyds TSB’s ‘Customer Service Recovery’ department in July 2006, Martin Orton, who is 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’.(If anyone wants a copy of this letter, drop me a PM with your address and I'll post it to you.)

 

11. Additionally, the [claimant believes there to be a high possibility that the] terms and conditions of [his / the claimants] account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the defendant that the claimant is aware. However, the bank has failed to provide me with a copy of the account contract, despite repeated requests to do so, so unfortunately this cannot be proved. A right of subject access request for this document was submitted to the defendant under the Data Protection Act 1998, on 8th September 2006. The defendant has failed to comply. Here, if your account contract states the charges as ‘breaches’ use the text in black. The blue bit was true in my case and I’ve left it there as an example. If it applies to you, keep it in, if not, just take it out.

 

12. 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”.

 

13. 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.

 

14. 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.

 

15. 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.

 

The cost of HSBC's charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

16. 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.

 

17. 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.

 

18. 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"

 

 

19. 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.

 

20. 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;"

 

21. 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.

 

22. 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.

 

23. 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.

 

24. 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.

 

25. 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.

 

26. 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.

 

27. 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".

 

28. 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.

 

29. 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.

 

30. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 3 and any interest charged thereon;

 

 

b) Court costs;

 

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from [date when the money became owed to you] to [the date you are issuing the claim] of £ [amount] and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of [enter the daily rate of interest]

 

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

 

Signed, dated.

 

Remember to go through it properly - add your personal details where necessary and amend to suit.

 

 

now, you look at Nawanda Vs HSBC (1 2) post 40 and compare it to the one i've just put here - nawanda made changes in the original and you should - to make it relevent to your case. i suggest you print both out - put them side by side and see where she altered it and you alter it in the same places only to your details.

when you#ve finished that - that will be your new particulars of claim which you will submit.

 

you also need a new spreadsheet -

not just a list of all the charges.

so you need to go on one of these:

England - Simple - Excel

England - Simple - Works

England - Simple - OpenOffice

list all of your charges on one of the spreadsheets - oldest first and every one should have a date, a name (just like it shows on the statement) and an amount.

you will need to overwrite the date of the spreadsheet to the date you filed your claim to get the interest correct.

once you have done this - you will have the new corrected schedule of charges.

 

your new schedule of charges and new particulars of claim should be sent to the court and to dg to arrive before 4pm on the 21st - so you still have loads of time to get this correct.

 

also, on nawanda's thread - she did a letter to the court as a cover letter which is very good and with just a little tweaking you could use.

 

 

Here also is my draft covering letter to the Judge.

 

RESPONSE TO COURT ORDER DISTRICT JUDGE DUERDEN OF 10TH May 2007, SERVICED 22nd May 2007

Dear Court Manager

 

As Ordered by District Judge Duerden, I respectfully file a Statement of Case and a Schedule of Claim, with a copy for the Defendant.

 

In addition I have today sent a copy of these documents directly the Defendant’s legal representatives, DG Solicitors.

 

As a litigant person I sincerely hope his or her Honour Judge Duerden will find these documents satisfactory, as I have no legal experience prior to this claim. I am happy to be given an opportunity to state my case, as I found the MCOL Particulars of Claim section a little restrictive.

 

 

Please contact me at your convenience should there be any more information I can provide.

 

Yours Faithfully

 

 

 

so:

1. get the spreadsheet done

2. tweak the particulars of claim i've put above as nawanda did - make them personal to your claim

3. use the cover letter - and send two copies of both to the court and another copy of the two items to dg.