Contractual Interest - Precedent - LOST

[GaryH]

There is no provision for compound interest in statute. Where did that quote come from?

 

In Sempra Metals compound interest was awarded under EU law.

[steven4064]

Aren't we in the EU?

[GaryH]

Yes, but it doesn't mean we're always automatically governed under EU law. The EU legal system runs alongside that of its member states, and overrides it only in curtain circumstances - such as in Sempra.

[GaryH]

It's here, btw;

 

Sempra Metals Ltd v Inland Revenue & Anor [2005] EWCA Civ 389 (12 April 2005)

 

Interesting, but personally I don't think its of much use to us.

[GaryH]

the supreme courts act 1981 does not specifically exclude the award of compound interest at common law claims Rather it recognises that the court can award simple interest and the courts have the right to award compound interest to appropriate claims It would be down to the defendant to prove if they had borrowed the same sum of money from another financial institution they would have only paid simple interest then it is only fair that the defendant pays simple interest not compound. However the interest awarded in commercial transactions would normally be compounded Sempra Metals Ltd Vs Irc2005 ewca civ 389, 2005 3 wlr 521 539 para 44 (Chadwick L.J)

Here you go, section 35A of the Supreme Court Act 1981;

 

"Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages

there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit

or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and – (a) in the case of any sum paid before judgment, the date of the payment; and (b) in the case of the sum for which judgment is given, the date of the judgment."

The rate and period is discretionary, but it only provides for simple. Same as the County Courts Act.

[hisholinessthepope]

Right first of all I submitted my POC back in middle of May with CI on mutuality etc.

 

Then early in June Cap One wrote and said you have got it all wrong we will refund all charges plus all the interest ever on the account (only £30) plus court fees. You will get cheque by end of the June.

 

I wrote back thanks but no thanks. And the next day learned that CI via mutuality was dead in the water!

 

Anyway CapOnes defence just states I have miscalculated interest and is a cut and paste of their letter that I have already replied to. The defence doesn't question Contractual Interest at all. And the last part of their defence is we have paid the claim, plus all charged interest plus stat 6% plus court fee (£250ish) which they have not. The claim with CI is around £1200, being £126 in charges from 6 years ago!

 

So my task now is I have a court date 14th August 2007. Have to do my bundle by end of the week due to holidays! I have lots on CI under other guises such as AoP and fudicairy position, etc. But this is not what my POC mention.

 

Can I include new stuff not in POC in my bundle for court?

 

Do I need to bother as CapOne have not challenged it in their defence?

[Celicaman]

Hisholyness,

I thought with credit card claims that you can claim CI back on a claim.

I would check again with the court that they have not filed, and if they have not, then i would write to court asking for defendants case to be struck out. I had cap one claim and they didnt defend either, just paid up but wasnt claiming the CI ( didnt know i could at time LOL)

 

CM

[steven4064]

Yourholiness

 

You can claim back charges plus any interest they charged you. For a credit card, CM is right, this is just their APR compounded from the date of the charge until the date of the claim/now. Try recalculating on this basis and use the words "charges of £xx and interest of £yy levied thereon" and drop all reference to CI (it's confusing anyway).

[newbody]

Here you go, section 35A of the Supreme Court Act 1981;

 

 

The rate and period is discretionary, but it only provides for simple. Same as the County Courts Act.

 

but alongside

 

Westdeutsche Landesbank Girozentrale v Islington LBC [1996] UKHL 12 (22 May 1996)

[1996] UKHL 12, [1996] 5 Bank LR 341, [1996] 2 All ER 961, [1996] 2 WLR 802

the supreme court act 1981 does not specifically exclude the award of compound interest in respect of common law claims Rather it recognizes that the court can award simple interest for such claims The equitable jurisdiction to award compound interest is still available in appropriate cases.

In two very strong disseting judgements Lords Goff and Woolf rejected the arguments of the majority They asserted that scince the policy of the law of restitution was to remove benifits from the defendant compound interest should available in respect of all restitutionary claims regardless of wheather they arise at law or in equity This argument can be illustrated by the following example

In the straightforward case where the claimant pays money to the defendant by mistake and the defendant is liable to repay that money, the liability arises from the moment the money is recieved by the defendant who has the use of it and so should pay the claimant for the value of that benifit This was accepted by all the judges in the case The difficulty relates to the valuation of this benifit. If the defendant was to borrow an equivilent amount of money from a financial instituiton he or she would be liable to pay compound interest to that institution It follows that the defendant has saved that amount of money and so this is the value of benifit which the defendant should restore to the claimant, in addition to the value of the money which the defendant recieved in the first place .

If it could be shown that had the defendant borrowed the equivilent amount of money the institution would only have paid simple interest it would be appropriate for the interest awarded to the claimant to be simple rather than compounded. Usually however the interest in commercial transactions will be compounded interest.

I think would go along way in showing that we should be awarded CI and not Simple interest

[GaryH]

Thats misleading and wrong to an extent - the Supreme courts Act does exclude compound interest.

 

There is the equitable jurisdiction to award compound interest, which is the route I've been researching quite intensely, but this has nothing to do with the Supreme Courts Act or any other statute. The equitable jurisdiction relies on a fraud or the breach of a trust or other fiduciary relationship.

[newbody]

i'll bow you to judgement then GARYH it is the way i read it from the documentation i have read that it wasnt actually excluded but was viable if the parties in question would use compund interest in their daily bussiness then as such it is equitable for such to be used in our claims

[steven4064]

In fact the argument advanced in the 2nd quote in newbody's post was recently thrown out in court (it was small claims so no precedent was set) - unfortunately I can't rememeber which thread I read it on.

 

In fact it is the Westdeutscher case which gives authority to the statement in Gary's post that the only circumstance in which compound interest may be awarded is fraud or breach of trust or fidudiary position.

[GaryH]

Yes - and the fact that there was no provision in either common law or the Supreme Courts Act to award compound is pretty much the entire crux of the Westdeutsche case. If the SCA or any other statute had allowed for compound interest then the Westdeutsche case would never have even existed.

 

Becouse there was no other provision, the bank claimed compound under the equitable jurisdiction. For this they had to argue the breach of a fiduciary duty - in this case a resulting trust - but none could be established, so compound was not awarded.

 

I think all the Lords agreed that the most appropriate remedy would have been compound interest - if the court had the jurisdiction to award it. Lord Brown-Wilkinson (main majority judgement) stated that becouse Parliament had made provision for interest but specifically not for compound interest (ie in statute), then it was not for the courts to overrule it.

 

IMHO this case is directly relevant to our situation with the banks - compound is appropriate, and would be fairer, and would provide full restitution, but unless we can establish a fiduciary relationship then the courts simply cannot award it.

[GaryH]

unless we can establish a fiduciary relationship then the courts simply cannot award it.

And for the record, I think we can. Not so much in general terms, but again - see Browne-Wilkinson's judgement in Westdeutsche. The basis of a trust is conscience. We could argue that the banks conscience is affected on receipt of the charges - I.e there is a constructive trust. This to a certain extent would be relient on a judgement in our favour on the issue of the charges - establishing the element of unconscionable behaviour. We'd also have to show that the bank were not ignorant to the facts relating to the unconscionable behaviour - I.e that they knew they had no right to take the charges.

[steven4064]

Doesn't 'conscience' just mean knowing about something (ie being conscious of it) in this context rather than having any moral connotation?

[brechiner]

I'm currently researching the BCCI collapse of 1991 and I'll post my findings. As you can recall many people lost their savings and livelihoods when it crashed. These wee people that had trusted the bank and as a matter of conscience lost their money.

 

I was in Court today (Willesden) - for a friend and we argued for CI and our case was not thrown out but the DJ said that there should be a hearing even though the Halifax had paid the claimant the charges +8% and Court Fees

[steven4064]

That could be interesting - on what basis is he claiming CI?

[brechiner]

Unlawful behaviour resulting in loss of trust, confidence and that their conscience has remained the same while enriching themselves. As it was a Cardcash account we could show 'custom and usage' on top.

 

I also explained to the judge about anticipatory limits

[GaryH]

Steven - this is the part of the judgement I was referring to re. conscience;

(i) Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied trust) or which the law imposes on him by reason of his unconscionable conduct (constructive trust).

(ii) Since the equitable jurisdiction to enforce trusts depends upon the conscience of the holder of the legal interest being affected, he cannot be a trustee of the property if and so long as he is ignorant of the facts alleged to affect his conscience, i.e. until he is aware that he is intended to hold the property for the benefit of others in the case of an express or implied trust, or, in the case of a constructive trust, of the factors which are alleged to affect his conscience.

(iii) In order to establish a trust there must be identifiable trust property. The only apparent exception to this rule is a constructive trust imposed on a person who dishonestly assists in a breach of trust who may come under fiduciary duties even if he does not receive identifiable trust property.

(iv) Once a trust is established, as from the date of its establishment the beneficiary has, in equity, a proprietary interest in the trust property, which proprietary interest will be enforceable in equity against any subsequent holder of the property (whether the original property or substituted property into which it can be traced) other than a purchaser for value of the legal interest without notice.

These are apparently authorititive propositions fundemental to trust law and its a commonly cited passage of the Westdeutsche case.

 

i) and ii) are relevant for our purposes IMO.

I was in Court today (Willesden) - for a friend and we argued for CI and our case was not thrown out but the DJ said that there should be a hearing even though the Halifax had paid the claimant the charges +8% and Court Fees

Argued for CI on what basis?

 

What sort of hearing was it?

[GaryH]

Unlawful behaviour resulting in loss of trust, confidence and that their conscience has remained the same while enriching themselves.

Huh?

[brechiner]

set aside hearing with half paid up

[srfrench]

In addition to this in "Custom and Usage"........ (highlighted bit relevant)..

 

Business & Commercial

Commercial Law

 

 

Gillhams Solicitors and Lawyers

 

 

Sources of Implied Terms in English Contract Law

 

Terms may be implied from a variety of sources which include legislation of general application in commerce such as consumer protection legislation and Sale of Goods Act; specific legislation applicable to a particular type of transaction such as those found between subcontractors in construction law; international conventions and common law principles created by court decisions.

1. Terms Implied by Statute

 

Implied terms are cumulative. For instance, the terms implied by the Sale of Goods Act 1979 apply concurrently with the terms implied by the Fair Trading Act 1973. Some of the most commonly implied terms from the application of the arise by virtue of the Supply of Goods and Services Act 1982; and the Sale of Goods Act 1979.

Contracts for the Sale and Supply of Goods

In a contract of sale of goods, terms of implied that the seller has the right to sell the goods; that the purchaser will enjoy quiet possession of the goods, allowing them to use the goods without interference from a third party or the supplier; and that the goods are free and will remain so when the property is to pass from any charge or encumbrance, not disclosed to the buyer before the contract is made.

Although these may not appear of particular interest, an instance of their importance may be drawn from an application of trade mark law. In the event that a proprietor purchases a registered trade mark with a business, it is an implied term of that contract that the purchaser will not be subject to claims of ownership by predecessors in title to the vendor of the trade mark.

Contracts for the Supply of Services

 

In a contract for supply of services, where the supplier is acting in the course of business terms are implied that the supplier will exercise reasonable skill and care in delivering the services, the services will be carried out within a reasonable time, unless a specific time-frame has been agreed. A 'reasonable time’ in this context is to be determined by what the parties had in mind at the time of the formation of the contract. Where no fee has been agreed, a reasonable charge will by implied for the provision of the services. Furthermore the services must be of a satisfactory quality and fit for the purpose for which they were intended.

2. Terms Implied Into Specific Contracts

Certain terms may be incorporated into particular types of contract. Specific regulations apply to conveyances of interests in land: Law of Property (Miscellaneous Provisions) Act 1994; contracts for marine insurance: Marine Insurance Act 1906 s 39; and Contractual licenses to enter property: Occupiers’ Liability Act 1957.

Where statute law has in a particular field codified terms implied at common law, the courts may import those statutory terms into similar transactions by way of analogy. For example, the repair of a motor car or erection of scaffolding.

3. Terms of General Application

 

Should a contract be made subject to a condition precedent - that is, where an event takes place prior to the contract coming into existence - the contract will generally be construed as imposing an obligation on the parties to do nothing to prevent the fulfillment of that condition.

A contractual responsibility may be implied upon a promise on the part of each party to a contract to do all that is necessary to secure the performance of the contract, except where such an implication would fetter the future legislative discretion of one party.

The cases reveal a broad range of events in which implied terms and duties are imposed upon the parties. They include:

• Where the consideration is controlled by a third party, neither contractual party would attempt to obtain an unfair advantage over the other.
  
• A contracting party in breach may be under a duty to inform the other party of his breach.
  
• a contract of service may be terminated after reasonable notice where there is no express provision in the contract for termination
  
• a right granted under a contract be exercised within a reasonable time of the events giving rise to the entitlement to exercise the right
  
• a right under a contract be exercised with reasonable care and skill
  
• an implied term that there is no satisfaction of a condition precedent to an agreement until such satisfaction had been communicated.
  
• where engineering designs are supplied under a contract, there is an implied obligation to carry out the design work with reasonable skill and care and this imports a duty to use reasonable care not to include material knowingly copied from a third party.

Courts have declined to imply duties and obligations where:

• it was alleged that the price quoted for building work was exclusive of value added tax, despite the existence in the building trade of a custom to that effect.
  
• a contract is in existence between a bank and its customer and the customer insisted that the bank was under an obligation to inform the customer about a new type of banking facility
  
• a power vesting the majority of the lenders under a syndicated loan facility agreement that entitled the majority of the lenders to alter the agreement, would only be exercised for the benefit of the lenders as a whole.
  
• a contract conferred absolute discretion.

Specific Contracts

 

Terms may be implied due simply to the nature of the contract, and are presumed to exist in the contract for this reason. In a contract of employment for instance, an employee has duty of good faith towards their employer; in licensing a product, products made pursuant to a licence agreement may be exploited after the terms of licence may be exploited by the licensee.

Express terms in intellectual property contracts may displace the extent and scope of terms that may be implied. Suppose technical drawings were required to be prepared in order to repair a patented product – there is authority to state that a subcontractor tasked with the repair of the patented product is entitled to prepare drawings to complete the task.

Patent Licences

An example of implied rights may be a case where a purchaser of a patented product has a licence to extend the life of a product by replacing parts of the product by repairing it. To do otherwise, it is said, would derogate from the grant of the licence. The right does not extend to replacing the entire product. A licence to repair may extend to subcontractors who reverse engineer equipment in order to repair them.

Copyright Licences

Where material is produced for a specific purpose, a licence is implied to use the material for that purpose, but not to resell the material for their own commercial profit by sale or rental.

Licensing generally is a complicated area, or rather complex and thorough licensing arrangements may be reached due to the divisibility of the rights granted under intellectual property legislation and the flexibility of contract.

5. Terms Implied by Custom

 

In commercial transactions, custom and usage is admissible as evidence to imply terms. There is a presumption that in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but meant to contract with reference to those usages. Much turns on the size and detail in the contract, as the greater the detail the more likely it is that the parties catered for the particular event and was an exhaustive statement of the rights between the parties.

In the absence of evidence of a contrary intention, a court may be inclined to order that a local custom or usage forms part of the contract where the terms is:

1. Notorious
   
2. Certain
   
3. Legal
   
4. Reasonable, and
   
5. If it can be shown that the custom or usage is commonplace for the particular type of contract, it will be regarded as part of that contract in precisely the same manner as if the parties had expressly agreed to it it.

The custom or usage will only be imported into a contract where there is nothing in its express or necessarily implied terms to prevent its inclusion and is not inconsistent with the tenor of the contract. However, it is well established that a custom or usage may be imported whether or not the parties knew of it. Furthermore, it may be possible to import the term on the basis of the previous course of dealings between the parties, for instance: an implied promise to pay compound interest on a debt; the incorporation of terms printed on the back of ‘sold notes’; the obligations of the parties to a commission agency.

Application of Implied terms

 

On the face of a contract, a party may have a right that they seek to exercise in the terms that it is stated. After a consideration of the terms of the contract and the law that applies to the subject contract, it may well be that the party seeking to exercise the right seeks to do so unreasonably, which may not be entitled to do. Again, contractual rights must be exercised within a reasonable frame, and where financial penalty clauses apply, they must be exercised in terms of quantum as well. Contract law conceptually simple - it is simply an agreement between at least two parties - however contract law has developed over hundreds of years both as a result of court disputes and legislative reform.

Terms implied into contracts are one mechanism to manage what might otherwise appear to be a dire state of affairs arising from a lop-sided contract. Such terms contribute to the avoidance of disputes and proper contract management during the term of the contract.

[dad]

B*gg*r,

 

New ruling by House of Lords on Compound Interest. If only this had come before my case I may have won as it overturns one of the judgements that the Judge used to dismiss my appeal.

 

See

House of Lords - Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)

[GaryH]

Excellent! Thats the appeal from the case discussed on the previous page of this thread. Only half-way through but it looks promising!

I also think that the time has come to recognise that the court has jurisdiction at common law to award compound interest where the claimant seeks a restitutionary remedy for the time value of money paid under a mistake.

[Fox Mulder]

I must admit to being completely boggled by all this but encouraged by the fact that clearly some of you folks are discerning a path forward on CI. I hope as a complete dork when it comes to legalese that a 'potted solution' for a template and strategy can be developed soon. I've been enormously grateful ever since discovering CAG through a friend for the empowerment given by others more knowledgeable on law than I am! So thank you!