Contractual Interest - Precedent - LOST

[voyager9]

well we will see now, have filed for judgement today!

 

my court is very unsympathetic to banks so heres hoping.

 

voyager9

[chezt]

Thanks for the reply Chatz and the (as always) sound advice.

 

I know what your saying is right, Im quite satisfied with that.

 

Regards

 

 

Aww gee thanks for the kind words! Well as long as you are satisfied with it & are happy not to proceed (fight maybe) for the rest then take the money & run ...all the way to wherever makes you happy

[overflow]

Oh Chezt

 

You have just sown a seedof doubt in my mind now,

Have I read inbetween the lines right . If it were you would you have continued till you got everthing.

This is the way I am reading it.

[chezt]

Oh Chezt

 

You have just sown a seedof doubt in my mind now,

Have I read inbetween the lines right . If it were you would you have continued till you got everthing.

This is the way I am reading it.

 

No no not at all ... If I were offered an amount which basically equalled charges + interest paid on them + court costs + any extra (8% or whatever) I would seriously consider doing a runner myself to my happy place!

 

In the end it all boils down to how much more work you are willing to put in for the rest & if it is ultimately worth it ..... Also how willing are you to go to court for the rest .... 'cos that's what could still happen too

[Fox Mulder]

As my claim included an 'either/or' for the Court to consider re: CI, do I need to be concerned now as my AQ has gone off and all the other bits, like request for striking out the defence, Draft Order for Directions, etc.

 

I mean, I included both the authorised overdraft interest rate AND eight per cent. Two separate Statements of Charges spreadsheets for the Court to consider.

 

So if I can't claim the authorised overdraft rate, surely the Court will just go for the eight per cent?

 

How can I best incorporate this information into my claim at this stage to ensure every chance of success?

 

Thanks in advance!

[Celicaman]

As my claim included an 'either/or' for the Court to consider re: CI, do I need to be concerned now as my AQ has gone off and all the other bits, like request for striking out the defence, Draft Order for Directions, etc.

 

I mean, I included both the authorised overdraft interest rate AND eight per cent. Two separate Statements of Charges spreadsheets for the Court to consider.

 

So if I can't claim the authorised overdraft rate, surely the Court will just go for the eight per cent?

 

How can I best incorporate this information into my claim at this stage to ensure every chance of success?

 

Thanks in advance!

 

Its not actually a problem at court IF it ever got there, as the court would only award what it sees fit and that at worst that is the 8%.stat

The problem with the claim that was lost was he had been paid the charges & 8% in full & cont with his claim for the CI alone. the bank only had to argue against the award of CI as there were no charges to account for.

Not Sure how to add it into claim at moment, i dont think its a problem at the moment but if it gets to court bundle you need a better argument than R & M. The bank may just wait till last minute & pay you the charges plus int plus costs and let you get on with it as they know you cant win CI claim alone.

However if you can back CI up with another legal case IE account of profits, then you fight on that basis, and the bank DONT know if they could win that one, so will settle for paying you off with CI.

Hope thats clear ( I think )

 

And no i dont understand the account of profits part yet either, Hopefully a MOD can confirm how to claim on that basis and give us a template.

 

Anyway its off to MIL's now for a goood old fashioned sunday dinner

 

CM

[monkey_uk]

Re: http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/70034-monkey_uk-halifax-bank-accounts-3.html#post998187

 

I've 2 claims running with Hfx, one for Visa charges, and one for charges on two bank accounts (one closed, one open).

 

they've paid money into my account that equates to:

 

all of the charges back, and the £120.00 court fee.

 

They've written to me and told me that they are paying this in "within 5 days" (it was done the same day that they sent the letter to me!), and have also put in the letter that they are also crediting money of what they calculate I was charged in interest on my account as a result of charges (they actually mean they've paid the 8% interest).

 

However, looking at this, they;ve credited for the interest:

 

£216.53 and £104.59

 

Now, using Mindzai;s spreadsheet, changing the date to the 12th of July, which is when they money was credited, the 8% interest due was actually:

 

£216.76 and £104.74.

 

I've even backdated the sheet to 11th July, just to make sure, which would make it:

 

£216.57 and £104.68.

 

Now, they have until the 21st the enter a defence I believe.

 

They are considering the claim settled.

 

My question is, is it reasonable to leave it until the 21st, enter a default (they are unlikely to defence as they believe the figures are correct and that the only difference is the further £1342.38 in CI (28.8%) that I'm claiming.

 

Basically, defaulting them as they've paid me less than £1.00 less than what I'm owed. Is that reasonable?

 

One part of me says no it isn't, but the other part says that they should pay me exactly what they owe me.

 

How likely would I then be to secure a default against them?

[TANZARELLI]

Hi Monkey UK,

 

I think you should accept o be fair. Even though Mindzai's sheet is a good sheet their are others now that will give a true rate. You may well find that the bank has got it right. For this small amount I would accept the offer.

[monkey_uk]

But what about the CI part of the claim? I'm wanting to persue this if I can find a way...!

[TANZARELLI]

But what about the CI part of the claim? I'm wanting to persue this if I can find a way...!

 

It would depend really on the arguement you aere using as their is now a precedent for M&R, so if this is what you are using I would consider not going forward for the CI aspect alone. However if they have not agreed what you believe to be the full amount of charges then you could continue but you would need to reject their offer and ask them to remove it from your account. Give them poss 7 days to do this and if they don't then say you will off set it from the total in a way you see fit.

 

It its entirely up to you. But you will have to show you are being reasonable and this seems to be a close call IMHO.

 

Tanz

[monkey_uk]

well in my poc I stated that I'm claiming CI "on the basis of mutuality of contract AND unjust enrichment, at bank's unauthorised borrowing rate of 28.8%".

 

Quoted word for word from my PoC.

[steven4064]

Monkey

 

I've lost the thread a bit (if you'll pardon the expression). Is your claim for a current account or a credit card. If it's a CC I think you can claim CI on the basis that that is what you have actually paid them - ie it is the interest they charged you on the charges. This is not true of a current account claim.

 

If the claim come to court I think the judge woulkd throw out the CI aspect of your claim on the strength of the recent test case. However, if the bank settles out of court, they may well take the economic decision to pay it - it would still be cheaper than them actually defending the case.

[monkey_uk]

Steven, it is for bank accounts. I've yet to hear from them about the Visa, but don't worry, what you've said about that is exactly what I'll be doing.

[Celicaman]

Hi,To be able to win any case for CI, you would need to be able to back your claim up with a case of law.

Your POC claim for CI

"on the basis of mutuality of contract AND unjust enrichment'

as far as i know there is no 'case of law' that was set using that as a winning argument, the same as reciprocity & mutuality.

IMHO You would have no chance of winning on that basis.

The fact that the Bank have paid in full charges, interest & costs to within £1 (they would up the offer to finish if needed) frankly leaves you no argument for charges, and ultimatley for the CI part, as previous case tried same and lost. You need a new argument.

Now the banks Know they would win on R & M, they will pay up with charges plus stat, knowing if you continue, you will lose any further claim for CI.

 

If we can start to claim for account of profit, it is an argument the banks do not know they would win, so would pay out CI before they would set foot in a court to argue the point.

This is a new argument to which i do not know how to argue it so dont ask me how to do it.

Help MODS ?

 

Basically at this point YOU HAVE WON, take the money WELL DONE

 

Celicaman

[steven4064]

Hi,To be able to win any case for CI, you would need to be able to back your claim up with a case of law.

Your POC claim for CI

"on the basis of mutuality of contract AND unjust enrichment'

as far as i know there is no 'case of law' that was set using that as a winning argument, the same as reciprocity & mutuality.

In fact there is a recent case (Halliday v HBoS plc 2007) that specifically says you are NOT entitled to CI on this basis.

[overflow]

Just one question please.

If you put the M&R reason in the POC , could we then put the account of profit argument in the Court Bundle. Could we change things by doing this?

[GaryH]

Just one question please.

If you put the M&R reason in the POC , could we then put the account of profit argument in the Court Bundle. Could we change things by doing this?

I would say no - the court's are not stupid. Although I suppose it may be possible if the defence has not previously addressed the interest section of POC.

 

Before people get carried away, its not just a matter of asking for an account of profits in your POC. I'm sure someone will correct me if I'm wrong, but my understanding is that account of profits is an equitable remedy which relies on a fiduciary duty. Asking for a remedy is one thing - the hard part is establishing why you are entitled to it.

 

Therefore if you want to go down that route you must base the interest claim in equity. Compound interest is not available at common law or in statute. See Westdeutsche v Islington.

And no i dont understand the account of profits part yet either, Hopefully a MOD can confirm how to claim on that basis and give us a template.

This is the problem and its why none of us advocate claiming compound interest anymore. Its not about sticking in a template and hey presto you'll all be able to claim 'contractual' interest again. If you want to embark on complex and potentially risky legal arguments you must at least research and understand them yourself first - and be prepared that you may have to argue it in court.

[Celicaman]

Quote:'This is the problem and its why none of us advocate claiming compound interest anymore. Its not about sticking in a template and hey presto you'll all be able to claim 'contractual' interest again. If you want to embark on complex and potentially risky legal arguments you must at least research and understand them yourself first - and be prepared that you may have to argue it in court.'

 

Thank you GaryH for clearing this up, i knew it wasnt quite as simple as putting in a template and claiming it, but more of a basic template of how to claim on the grounds of account of profits.

Suppose this closes the CI argument for now, tis a pity cos i had eventually got my head around the R & M argument

 

Back to drawing board i suppose

 

Thanks Gary

 

CM

[steven4064]

Gary

 

Perhaps it would be worth starting a discussion under 'general' on account of profits to thrash out our (joint) understanding

[overflow]

Thank you for the reply Gary.

 

It wasnt something I was contemplating doing . I was just wanting to know cause a freind of mine said she thought it might be possible as she wanted to try. Rather than tellin her I did not think she could ,( dont regard myself knowledgable enough about the subject). I thought Id pose the question on here first.

 

Regards

[mfpa]

well in my poc I stated that I'm claiming CI "on the basis of mutuality of contract AND unjust enrichment, at bank's unauthorised borrowing rate of 28.8%".

 

As others have already stated, the mutuality argument is currently dead.

 

What about the unjust enrichment angle? Potentially, HBOS have profited in credit card interest by unlawfully taking monies from your bank account: that money is not available to pay towards your credit card account. No idea how or if that could be argued.

 

 

 

 

 

 

[GaryH]

Gary

 

Perhaps it would be worth starting a discussion under 'general' on account of profits to thrash out our (joint) understanding

Good idea. Perhaps you could start a thread and link it from here?

 

As others have already stated, the mutuality argument is currently dead.

 

What about the unjust enrichment angle? Potentially, HBOS have profited in credit card interest by unlawfully taking monies from your bank account: that money is not available to pay towards your credit card account. No idea how or if that could be argued.

It could be argued, but not on its own. You need to establish a fiduciary or other trust duty first. As per my last post, compound interest is only available in equity.

[Glenn UK]

FWIW

 

AoP is NOT (oops, nearly forgot the most improtant word) reliant on a fid duty, AG Vs Blake i believe.

 

Re the 'precedent' has a transcript or formal account of the case been published as of yet? The reason for asking is that a precedent is only a precedent when its heard before a high court, as far as I know this was a county Court judgement which is far from binding.

 

Secondly, until we know what arguments were put by both parties the value of this 'precedent' is in question.

 

JMHO

 

Glenn

 

Edit PS whats to say that the bank dont owe you a fid duty?

[steven4064]

Good idea. Perhaps you could start a thread and link it from here?

See: http://www.consumeractiongroup.co.uk/forum/general/105377-ci-mutuality-dead-long.html#post1005957

[jubaxt]

ah-help

 

cci or not cci????

 

i have a claim with lloyds-just ready for submitting n1-charges + stat 8%-no probs

 

crap one-theyve acknowledged claim and going to defend-i've asked for 28.9%apr cci or stat at the courts discretion.this is a credit card claim.presume they will offer stst and i should settle for that

 

welcome-ppi and charges-gone as 2 seperate claims with cci but only just sent lba-if i file should i just add stat and drop the cci claim??

 

please help-i'm not thick -just bamboozled with the arguments for claiming cci