Contractual Interest - Precedent - LOST

[jakaakos]

Hi every body,

I am new in the forum and am still strugling to use it.

 

Can anybody tel me whether I can claim back " unarranged borrow fee" when i got the charges summary I found out that there was a lot of charges they call it unarranged borrow fee" also they state at the bottom of the statement that if I am overdrawn without arrangement i will charged unarranged borrowing rate of 29.5%, can anybody tell how i can claim back that interest level.

 

Please send to me in private as i am struggling to go through all the messages.

 

Thanks,

[carolineiam]

I don't want to be a c... but dad may as well be a bank employee! I mean he is not giving us any specific details so that we check them ourselves .... I will reserve my judgement untill I see proof.

[steven4064]

If you read the thread through you will see that we are all really waiting to some extent for the official judegement

 

Steven

 

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[voyager9]

i did a search on googlr and there was a case on 8 june with that judge halliday vs hbos plc

voyager9

[carolineiam]

i did a search on googlr and there was a case on 8 june with that judge halliday vs hbos plc

voyager9

 

really ? what is the link ? I could not find anything on google !

[voyager9]

heres the search results however the court page updates to the cuurent day

halliday v hbos plc - Google Search

[GaryH]

I don't want to be a c... but dad may as well be a bank employee! I mean he is not giving us any specific details so that we check them ourselves .... I will reserve my judgement untill I see proof.

FWIW, I don't think there can be any doubt that this judgement is genuine.

[carolineiam]

FWIW, I don't think there can be any doubt that this judgement is genuine.

 

 

 

why not ?

[carolineiam]

heres the search results however the court page updates to the cuurent day

halliday v hbos plc - Google Search

 

halliday is the Judge ... and in your search there is absolutely no info i can find validating that there was a hearing a bout hbos on the 8th of june with this judge

[steven4064]

Just to add something else into the mix here which may or may not be relevant.

 

In claiming compound interest on the basis discussed above we seeking to establish a breach of trust thereby invoking equities juristiction to grant compound interest as a remedy.

 

Two of the maxims (or principles) of equity are;

 

- One who seeks equity must do equity

- One who comes into equity must come with clean hands

 

I think its important to remember here that the very cause of action in our claims is a result of OUR breaches of contract.

 

Is being awarded 100% of the charges imposed as a result of our breach then interest at an unathorised rate of 29.whatever% truely equitable?

 

I think perhaps not.

 

It's something that has worried me a bit for a while that we are claiming back 100% of the charges when what we ought to be claiming is the difference between the charges and the banks' consequential liquidated losses. (Some versions of the statement of evidence I have seen acknowledge this althouth the 'standard' ones in http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html do not). The problem, of course, is that we have no real way of knowing what the consequential liquidated losses actually are since the banks won't tell us.

 

I think that rephrasing our claims to say explicitly that what we are seeking is the difference between the charges and the consequential liquidated losses would certianly remove any objection because of the first maxim and probably the second also since we are prepared to accept an equitable solution and are only hidered from doing so by the defendants' concealement and secretiveness. (In the cases I have looked at (not exhaustive), clean hands seems to refer to cases where the claimant has deliberately acted wrongly in order to try and claim equitable relief - eg someone who kills a relative in order to gain an inheritance then being deprived of the inheritance that would otherwise have been theirs)

 

In the absence of any other information we would have to say that numerically this difference is actually the same as the total of the charges (ie the liquidated losses are zero), but we are willing to accept less if the information on consequential losses is provided (however, it certainly does not mean we will accept £12!!!)

 

Steven

 

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[voyager9]

halliday is not the judge he was called Mr Justice Underhill

 

The Appeal came before Mr Justice Underhill last week (8 June 2007)

 

the case listed on 8th june was halliday vs hbos plc

 

you dont normally get the judge vs defendant do you?

[voyager9]

JUSTICE UNDERHILL Friday, 8th June, 2007 At half past 10 UNROBED FOR HEARING OF APPEAL CC/2007/PTA/0119 Halliday v HBoS Plc

 

this is what it says on search results

[voyager9]

and in your search there is absolutely no info i can find validating that there was a hearing a bout hbos on the 8th of june with this judge

 

the info is in the first result of the following search pages as well

 

JUSTICE UNDERHILL Friday, 8th June - Google Search

[carolineiam]

the info is in the first result of the following search pages as well

 

JUSTICE UNDERHILL Friday, 8th June - Google Search

 

thanx and damn !!!

 

contractuall claim out of the window now !

[GaryH]

It's something that has worried me a bit for a while that we are claiming back 100% of the charges when what we ought to be claiming is the difference between the charges and the banks' consequential liquidated losses. (Some versions of the statement of evidence I have seen acknowledge this althouth the 'standard' ones in http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html do not). The problem, of course, is that we have no real way of knowing what the consequential liquidated losses actually are since the banks won't tell us.

 

I think that rephrasing our claims to say explicitly that what we are seeking is the difference between the charges and the consequential liquidated losses would certianly remove any objection because of the first maxim and probably the second also since we are prepared to accept an equitable solution and are only hidered from doing so by the defendants' concealement and secretiveness. (In the cases I have looked at (not exhaustive), clean hands seems to refer to cases where the claimant has deliberately acted wrongly in order to try and claim equitable relief - eg someone who kills a relative in order to gain an inheritance then being deprived of the inheritance that would otherwise have been theirs)

 

In the absence of any other information we would have to say that numerically this difference is actually the same as the total of the charges (ie the liquidated losses are zero), but we are willing to accept less if the information on consequential losses is provided (however, it certainly does not mean we will accept £12!!!)

 

Steven

 

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The ethos of this site has always been that if the defendant won't tell us the true loss incurred as a result of the breach then the charge which arises from it is unenforceable in its entirety. Thats fine, but as you say we've also got to acknowledge that ultimately we have the burden of proof, although obviously its only the civil balance of probabilities.

 

This came up recently with this order which seems quite harsh but really its not - it represents what we'd need to demonstrate if a claim was seriously contested in court.

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/726-abbey-charges-4.html#post887258

 

The figure I came up with in response was between £0.20 and £1.75 per breach - based on CYNthesys, the Aussie report, data processing costs and a couple of other factors.

[voyager9]

your not the only one there is lots of people with claims already filed with ci including myself who are very dissapointed with this judgement.

 

in a way i am suprised he appealed and took that risk but he did so thats that the only hope people with claims already in is that they can keep their claims intact and not end up with just the ci, my account is closed so i know they cannot deposit anything but still think i will not pursue ci

 

the only thing going for me is i have included in my poc this below which i do not see how they can deny and defend therefore if they admit to this then i am entitled to judgement as sought

 

The Claimant is a disabled person and her husband is a full-time carer for there disabled son as such the only income into the Account was disability living allowance for the claimant, disability allowance for her son, income support, invalid carers allowance and child support all of which were paid into the account by the Department For Work and Pensions.

 

Section 187 of the Social Security Administration Act 1992 (SSAA) states that these benefits are

inalienable, that is, every assignment of or charge on these benefits and every agreement to assign or

charge such benefit shall be void. During the period ###### to #######, charges totaling

£####.## had been applied to the Claimants Account in relation to direct debit refusals, exceeding

overdraft limits and so forth in direct contravention of the Act. In that eventuality the Claimant is

entitled to Judgement as sought in paragraph 66.

 

so i am just waiting and seeing

 

voyager9

[steven4064]

The figure I came up with in response was between £0.20 and £1.75 per breach - based on CYNthesys, the Aussie report, data processing costs and a couple of other factors.

I think this probably about right.

 

I bank with Nat West and have both personal and business accounts. Penalty charges are the same on both. I believe that the cost of processing a default is exactly the same as for any other automated transaction (not twice as much as is arbitrarily assumed in the Aussie report). I also believe that the cost of transactions on a business account are the same as on a personal account.

 

On my business account, I get charged as follows:

 

BACS direct debits - £0.38

Other automated Debits - £0.40 (this is basically the ones I do online)

Automated credits - £0.20

 

As I said, I believe the cost of refusing a direct debit is the same as actually paying it via BACS - the request part is the same, the refusal instead of a payment. The charge to me contains a profit element, say 10%, therefore the actual cost of refusing a DD is no more than about 34p. I can't see that any other transaction costs anything different (BTW I also don't see why doing it myself cost 2p more than NatWest doing it!! But that's another story).

 

Steven

 

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[steven4064]

I am going to modify my approach to my NatWest claim, based on what we have been talking about: http://www.consumeractiongroup.co.uk/forum/natwest-bank/96598-my-own-natwest-claim.html#post922827

 

I am not using the unlawful charges for breach of contract argument (ATM anyway) but concentrating on breach of fiduciary relationship and going for CI on that basis.

 

Steven

 

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[Celicaman]

Hi all.

On the subject of mutuality & reciprocasy, i thought that the actual terms that were used in a law case that uses this in its argument was 'in fairness & balance' not M & R , so this being the case, using M & R as an example is no good as there is not / was not a case using that term.

I read that on this site somewhere.

 

CM

[Josie8]

I am going to modify my approach to my NatWest claim, based on what we have been talking about: http://www.consumeractiongroup.co.uk/forum/NatWest-bank/96598-my-own-NatWest-claim.html#post922827

 

I am not using the unlawful charges for breach of contract argument (ATM anyway) but concentrating on breach of fiduciary relationship and going for CI on that basis.

 

Steven

 

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Think thats a very good idea

[MgintyMIA]

If we have existing claims (mine are with 1st Direct), how should we now handle offers?

I have two claims proceeding.

One has a court date set for 4th Aug and the other they haven't filed their AQ in time so am going to send a nudge letter.

 

However in light of this precedent, I'm going to have to re-word it (and the other claim).

All my other letters I have been claiming contractual interest and that has been the basis of what I intend to settle on.

 

When I write my letter should I mention "in light of the precedent ...(details) ... I am willing to accept an offer based on 8% statutory interest this being £xxxx" Or should I just not mention the precedent and quietly drop the CI claim and just state I will accept an offer for £xxx (which will be lower that what I have previously been claiming)?

 

What are others doing?

 

Thanks

[MadKit]

Should we be doing this?

 

When I write my letter should I mention "in light of the precedent ...(details) ... I am willing to accept an offer based on 8% statutory interest this being £xxxx" Or should I just not mention the precedent and quietly drop the CI claim and just state I will accept an offer for £xxx (which will be lower that what I have previously been claiming)?

 

I for one will not be helping them by pointing out precedents and offering to accept a lower offer if they have not pointed it out themselves. I have a couple of claims that have hearing dates for charges and PPI in the next 2 weeks and I have applied CI to the charges but not 8% compounded as well. I won't be changing my claim so will see what the judge has to say rather than trying to pre-empt. I figure the worst that can happen is the claim is struck out or settled before court.

 

Do I have this wrong?

 

[Josie8]

Should we be doing this?

 

When I write my letter should I mention "in light of the precedent ...(details) ... I am willing to accept an offer based on 8% statutory interest this being £xxxx" Or should I just not mention the precedent and quietly drop the CI claim and just state I will accept an offer for £xxx (which will be lower that what I have previously been claiming)?

 

I for one will not be helping them by pointing out precedents and offering to accept a lower offer if they have not pointed it out themselves. I have a couple of claims that have hearing dates for charges and PPI in the next 2 weeks and I have applied CI to the charges but not 8% compounded as well. I won't be changing my claim so will see what the judge has to say rather than trying to pre-empt. I figure the worst that can happen is the claim is struck out or settled before court.

 

Do I have this wrong?

 

 

 

I still think we need to wait and see what the judgement actually says and more importantly the reasoning applied by the judge in reaching his decision. With respect to Dad I know personally how you can not fully take in everything the judge is saying as they're reading judgement out. You need to see the judgement.

[Josie8]

Halliday v HBoS plc

QUEEN'S BENCH DIVISION

[2007] All ER (D) 66 (Jun)

HEARING-DATES: 8 JUNE 2007

8 JUNE 2007

CATCHWORDS:

Bank - Banker/client relationship - Implied term - Bank making unauthorised charges on client's account - Bank realising error and making full repayments with simple and statutory interest - Client contending his entitlement to compound interest on repayments - Whether term to be implied for compound interest.

 

HEADNOTE:

This case digest has been summarised by LexisNexis UK editors.

 

The claimant opened a current account with the defendant bank. From time to time, the bank debited the claimant with various charges. The claimant contended that those charges were made unlawfully. He issued proceedings in the county court. The bank repaid the claimant the full amount which had been deducted, together with a number of other amounts which comprised simple and statutory interest, but not compound interest. Thereafter, the bank applied to strike out the claimant's claim, on the ground that there was no sum between it and the claimant outstanding. A single judge acceded to that application. The claimant appealed.

 

He submitted that the judge had erred in law, having not awarded him compound interest on the repayments which had been made by the bank. He argued, inter alia, that a term should be implied as a matter of law, to entitle him to the receipt of compound interest, as such a course was fair in the circumstances, particularly in light of the fact that the bank enjoyed a contractual right to charge compound interest to a customer for any unauthorised overdrafts.

 

COUNSEL:

The claimant appeared in person; Laura John (instructed by DLA, Leeds) for the bank.

 

PANEL: UNDERHILL J

 

DISPOSITION:

The appeal would be dismissed.

 

Having regard to settled law, a term could not be implied simply for reasons of fairness, but could only be implied in circumstances where it was necessary to give business efficacy to a contract. In the instant set of circumstances, it was not necessary for such a term to be implied. The claimant had his rights protected by virtue of the fact that the bank had repaid him the full amount which it had unlawfully charged, together with the simple and statutory interest which would have accrued during the period that those charges remained with the bank.

 

Accordingly, compound interest would not be awarded on the repayments which had been made by the bank.

 

Scally v Southern Health and Social Services Board (British Medical Association, third party) and other appeals [1991] 4 All ER 563 applied.

 

 

 

[2007] All ER (D) 66 (Jun)

[steven4064]

This might be a useful point to remember that the situation is different for credit cards (and store cards). Jclancy has put some useful stuff on Berwick v Lloyds and its application to CCs (*http://www.consumeractiongroup.co.uk/forum/show-post/post-926976.html)

 

Also on this thread (post #13) dad points out that the judge in his case (Halliday v HBoS) said that we can legitimately claim

 

a. The charges

b. Interest charged by the bank on the charges

c. s69 Interest on a & b.

 

In the case of CCs, b is compound contractual interest.

 

In summary, I believe Halliday v HBoS gives authority to claim compound contractual interest on credit card and store card claims. (But as Joisie says, we probabaly need to see the actual judement).

 

Steven

 

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