Contractual Interest - Precedent - LOST

[Fox Mulder]

cala99, I agree with Gary--that response you got sounds almost like a statement you will get your eight per cent, because they know the Court will award that without much if any doubt. I had a not dissimilar letter from my bank's solicitors and amended my demand to the eight per cent--frustrating I know, but until such time if ever an alternative argument for CI can be found and translated for us all to be able to use, we're not going to win CI.

 

I wouldn't argue unfair enrichment. In all my claims I'd be happy if they offered me the sum I was claiming plus eight per cent, frankly--even before CI was busted wide open, I'd have settled for that. Pursuit that can be interpreted as vindictive or greedy (I'm not saying it actually is) by the Courts can seriously backfire.

 

My understanding remains that we can still claim CI from credit cards, not banks. Can anyone confirm this once and for all?

[Pen]

Ci can still be claimed providing you are knowledgable of the current issues and case laws,

 

Pursuing what is rightful your's in the first place ie CI is not deemed Greedy or Vindictive by anyone, why should it be. If it is then I'm one very vindictive Greedy @@### I have been called lots of things but never that:D :D

[monkey_uk]

Well, to keep you all updated, at around 0020hrs this morning, I entered default judgement against Hfx in respect of my Visa card charges claim.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/70034-monkey_uk-halifax-bank-accounts-4.html#post1026713

 

EDIT: I've just chaecked my online banking at 0918hrs, and they've paid, apparently yesterday, the charges back, plus the 8% interest at the time of issue (i.e not up to the time of settlement), there's also no mention of the court fee. Edjits!

 

Not really sure what to do now to be honest, as the default judgement has already been requested!

[Hercules]

I'm just toying at the idea of charging CI based on fairness and balance, where is a good place to read up on case law and any other relevant issues.

[dad]

Hercules,

 

This is a very complicated area of the law. My evidence bundle ran to 1250 pages over three volumes and my skeleton argument was 19 sides of A4 that I thoroughly understood, having taken 6 months to prepare and I was still shown the door.

 

Incidently I see that the banks lawyers have published a case summary. In that case I think it is right to post my note of the judgement. This is not exactly what the judge said as I was taking it down as he spoke but I feel it is 95% of what he said:

 

In the High Court of Justice

Queen’s Bench Division

CC/2007/PTA/0119

 

 

Halliday - Appellant

 

V

HBos plc – Respondent

8 June 2007

 

 

 

 

Unapproved note of judgement

Representation:

Appellant in Person

Respondent Laura John (3 Verulam Buildings)

 

UNDERHILL J

1. From 1979 until earlier this year the Appellant had a current account with the Respondent. From time to time the Respondent debited charges from the Appellant in respect of “Excess Overdrafts”, “Returned Direct Debits” and “Account Maintenance Charges”.

2. On 2nd October 2006 the Appellant issued proceedings in the Bury St Edmunds County Court, claim number 6BV01859 to recover charges of £2,576.00, together with debtor interest and contractual interest on those sums.

3. The bank made payments to meet these claims in full without admission of liability as a pragmatic business decision. The payments had four elements:

i. The charges amounting to £2,576.00;

ii. Interest charged to the Appellant while the Account was overdrawn being £1,523.33. Precisely how this amount was calculated is obscure;

iii. £800.44 on the charges and interest above based on 8% simple interest, recognising that this is the maximum amount recoverable under section 69 of the County Courts Act 1984;

iv. Court fees of £300.00.

4. The bank then applied to strike out the remainder of the claim. On 1 February 2007 HHJ O’Brien acceded to that request.

5. On 23 April 2007 Mr Justice Langstaff granted permission to appeal on the basis of paragraph 1 of the Appellant’s notice to appeal, namely:

“The Judge made an error of law by incorrectly finding, in conflict with rulings from the House of Lords, that compound interest is not applied where a Banker Customer relationship exists involving an account current for mutual transactions. CPR 52.11(3)a.”

6. That drafting does not adequately express the point allowed by Mr Justice Langstaff. The Appellant’s case is that he is entitled to contractual interest on each deduction from the date of deduction until the date of repayment at the same rate as the bank in similar circumstances. That rate is 28.8%.

7. The Appellant calculated the interest in accordance with the practice of the Account, which is accumulating daily with monthly rests. His calculation is that the sum due to him is £5,130.00 rather than the £800.00 paid by the bank in statutory interest.

8. Judge O’Brien dismissed arguments by the Appellant based on equity, custom & usage and reciprocity rather than debt by contract. The Appellant referred the judge to Fergusson v Fyffe (1840-1) 8 Cl & Fin 121, 8 ER 49, HL and a later case of National Bank of Greece S.A. Appellant v Pinios Shipping Co. No. 1 and Another Respondents [1990] 1 AC 637 as well as ‘Paget’s Law of Banking’

9. The judge held that these cases concerned compound interest and implied terms but do not help with the proposition as to “reciprocity”. That the court will only imply a term if it is necessary to give business efficacy to a contract, not whether it would be fairer to have such at term. The Judge found that the present case was a million miles away from the test.

10. Before me the Appellant presented a clear case with good arguments as why the judge was wrong. The Appellant accepts that the businesses efficacy test applies to terms implied in fact. But that that is not necessary to the present case. The Appellant asserts that the contended term is implied by law as a necessary incident to the banker customer relationship.

11. The Appellant cited that following authorities:

i. Joachimson v Swiss Bank Corporation [1921] 3 KB 110;

ii. Liverpool City Council v Irwin [1976] UKHL 1;

iii. Romford Ice & Cold Storage Co v Lister [1956] UKHL 6;

iv. Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752;

v. Reddie v. Williamson (1863) 1 Macph. 228;

vi. Fergusson v Fyffe (1840-1) 8 Cl & Fin 121, 8 ER 49, HL;

vii. National Bank of Greece S.A. Appellant v Pinios Shipping Co. No. 1 and Another Respondents [1990] 1 AC 637;

viii. Turner v Royal Bank Of Scotland Plc [1998] EWCA Civ 529.

12. The Appellant also discussed the Unfair Terms in Consumer Contract Regulations 1999 and referred me to a consultation paper by the Law Commission entitled ‘Compound Interest’. Discussion covered sections of ‘The law of Contract’ by GH Treitel.

13. The Appellant says in cases of this type the courts are guided by general policy considerations affecting the type of contract in question, to this extent considerations of reasonableness and fairness may enter into the implication of such terms.

14. The term the Appellant seeks to imply is:

That unauthorised withdrawals made by a banker are subject to interest from the date of deduction until the date of payment on a compound basis at the same rate as the banker charges the customer for any unauthorised withdrawals by the customer.

15. In support of this the Appellant submitted a number of grounds which I will summarise:

a. In circumstances where the bank enjoys the right to compound interest at a rate of 28.8%, the customer should be entitled to the same rate in the same circumstances. This is the reciprocity point.

b. Provisions in the banking code, which the bank explicitly supports in the terms and conditions, and the Financial Service Authority’s principles of business set out in chapter 2.1 of the FSA handbook require fair dealing;

c. The Appellant sought to rely on the Unfair Terms in Consumer Contracts Regulations 1999. This is the only part of the Appellant’s submission, which were otherwise clear, that I had difficulty following. In the present case the bank is not seeking to rely on any term of the contract which the Appellant claims is unfair. I do not need to take a view on whether differential rates, withdrawal without authorisation are outside of core terms for the purposes of the Regulations, a point which was briefly argued before me. I did not fully understand the Appellant’s argument. It may be that what he intended to do was draw my attention to the importance the legislature attached to the protection of consumers.

d. He drew my attention to a number of cases: Fergusson v Fyffe, Reddie v Williamson, Yourell v Hibernian Bank and Inland Revenue Commissioners v Holder. To all of which the Appellant helpfully drew my attention to the summary in National Bank of Greece v Pinios. The Appellant said that these cases all showed that reciprocity was a recognised feature of the banker customer relationship. That is no doubt so. But it does not bear on the issue.

16. I do not believe that the term does fall to be implied into the banker customer relationship. Terms might be implied into a defined type of contract, but that is a limited set such as employer employee contracts such as that considered in ‘Scally v Southern Health and Social Services Board’ [1992] 1 AC 294 cited at p208 of ‘Treitel’. Ms John for the Respondent points out that in general terms are not implied by law.

17. Authorities do not give comfort in the case of banker customer relationship to insert implied terms. It remains the case that the courts will only imply what it is necessary to do. It may well be as ‘Treitel’ states that necessary has a different shade of meaning from the business efficacy test. But the particular term must be necessary. I can find no necessity for the term the Appellant seeks to imply. The customer has a right to the charges, any interest deducted and a right to claim statutory interest for the period he was deprived of the deductions, provided he brings proceedings to recover them. I can find no gaps into which to imply a term.

18. There may be an argument that to bring perfect justice compound interest should be paid. This was reviewed by the House of Lords in ‘President of India v La Pintada Compania Navigacion SA’ [1985] 1 AC 104 and mentioned in the Law Commission’s consultation paper ‘Compound Interest’ referred to me. In that case the court held that in the general law there is no title to compound interest on debts. But if there is room for criticism of the general law it cannot be remedied by the implication of terms. Such an implication cannot stop at the banker customer relationship, but would extend to any debt where the claimant is inadequately recompensed. The courts have declined to exceed the statutory provisions in such cases.

19. The final point made by the Appellant was that due to imbalance of economic power in the banker customer relationship many of the customers subject to unauthorised deductions are persons at the limit of their credit and are therefore forced to borrow on credit cards much more expensively than the rates awarded by the courts.

20. The Appellant also submitted that the right to compound interest arises out of custom and usage. That may well be. But there is no evidence before me nor did the Appellant press this strongly in his oral submissions.

 

Order:

Appeal dismissed

No order to costs.

 

Dad

[Capitulator]

The idea of a closed forum area would be to get a course of action ready for use away from the prying eyes of the banks (who we all know read this type of forum).

 

Tanz, I agree completely - I have no doubt that some registered CAGgers (CAGers?) have not disclosed they are complete bankers [sic] even though they are required to do so but if it is a closed forum, how will those who really need this info going to get it ?

 

I, for one, am outraged at the total bankers who have charged me unlawfully, charged me interest on this (for many years) AND further profitted from this ! As Dickens wrote - "The law is an ass...and the worst I wish the law is that his eye may be opened by experience". Perhaps that is what we are achieving in our pursuits - opening the eyes of the law !

 

Just thoughts !

[Hercules]

Thanks Dad!

 

However did you try and claim just the interest after payout? If I go to court the whole claim will not get thrown out because of a dispute in the interest and I beleive the poc is worded to that effect.

[GaryH]

Its not as simple as that. The bank will probably just refund the charges + 8% then the only thing at issue will be the CI, or they could apply to strike out the interest part of the claim, as they did in dad's case. Besides that, I've seen your POC and the interest is pleaded under mutuality/fairness, which is precisely what there is now a pecedent against. See above.

 

Either stick to 8%, or else if your determined to claim compound interest you need to hold off for a while and properly research the unjust enrichment arguments - I.e the Sempra case discussed on the previous couple of pages. Thats the only way you'll be able to claim compound interest now.

[Hercules]

Oh right I thought that M&R ruling had taken place and equity and balance was still ok?

 

ok I have been researching the unjust enrichment as well at the moment.

[pjdavies2000]

Hi all,

sorry I have only briefly run through these pages, so pls excuse if this has already come up...

...I have just CCA'd BCard, and am waiting for them to not supply anything, when they don't I will be stating that the account is basically not enforceable.

 

When this happens, I will the be claiming back th charges they owe me on the account. Seeing as the account is in lay terms null and void, can I work on the principle that CI should be agreed because there was no balance of trust between us, and in theory I have unknowingly been 'loaning' money to BCard, so should be able to charge them back at their own standard compound rate?

 

I think I have this straight in my head, but would welcome any thoughts

 

Peter

[Fred_Funk]

Hi all,

sorry I have only briefly run through these pages, so pls excuse if this has already come up...

...I have just CCA'd BCard, and am waiting for them to not supply anything, when they don't I will be stating that the account is basically not enforceable.

 

When this happens, I will the be claiming back th charges they owe me on the account. Seeing as the account is in lay terms null and void, can I work on the principle that CI should be agreed because there was no balance of trust between us, and in theory I have unknowingly been 'loaning' money to BCard, so should be able to charge them back at their own standard compound rate?

 

I think I have this straight in my head, but would welcome any thoughts

 

Peter

 

There are people far better qualified than me to respond to your post but, seeing as no-one has yet done so, I'll give it a go! ;-)

 

I'm fairly certain you are making your claim more complicated than it need be. Moreover, if you proceed on the basis you suggest then, IMHO, you may come a cropper!

 

While there may be some logic to what you're suggesting, it isn't, IMHO, as simple as making up the law to suit your own ends - you can't just demand Barclaycard pay you compound interest because in your eyes there was 'no balance of trust between you'.

 

However, it has, I think, already been established that with credit card claims you can reasonably ask for compound interest on the basis that this is what you will have been charged on the money unlawfully taken from you by your card company. Whether or not, they can provide you with a properly executed contract is, in this respect, irrelevant.

 

*Here to be corrected*

 

Fred_Funk

[pjdavies2000]

Thanks!

 

I'll take head of your advice when deciding what to do!

 

Thanks

 

Peter

[Fred_Funk]

Guys

 

Just trying to get one or two things straight in my head and was hoping to pick your brains regarding a claim, including CI, which I'm about to submit.

 

(1) I was intending to use the new Particulars of Claim we've been provided with. I'm just beginning to familiarise myself with them. In doing so, I've noticed they don't refer explicitly to unjust enrichment. Given this will be the basis for my CI claim, I assume I ought to add this in?!

 

(2) GaryH has said in that he doesn't think there is now any hope of claiming CI at the unauthorised rate. While not doubting this is correct, can I ask - if only for my peace of mind - what's changed?

 

(3) With regard to GaryH's stuff, would I be right in thinking that, despite recent developments, lots of his arguments mentioned on this thread and elsewhere could still be utilised (though, clearly, there's no longer any need to cite the breach of a fiduciary duty but, instead, we must make reference to Sempra)?

 

(4) And finally... on the subject of Sempra, someone who, seemingly, is pretty knowledgeable suggested to me that there's a case which is even more pertinent. Haven't, as yet, had a chance to investigate this further and even then I'm not sure I'd be qualified to judge so wondered what you thought.

 

This is the relevant thread...

 

http://www.consumeractiongroup.c o....g-test-23.html

 

and it's post 452 which, I reckon, you may well find interesting.

 

Look forward to hearing from you

Fred_Funk

[steven4064]

See below

Guys

 

Just trying to get one or two things straight in my head and was hoping to pick your brains regarding a claim, including CI, which I'm about to submit.

 

(1) I was intending to use the new Particulars of Claim we've been provided with. I'm just beginning to familiarise myself with them. In doing so, I've noticed they don't refer explicitly to unjust enrichment. Given this will be the basis for my CI claim, I assume I ought to add this in?! Yes, you should include it

 

(2) GaryH has said in that he doesn't think there is now any hope of claiming CI at the unauthorised rate. While not doubting this is correct, can I ask - if only for my peace of mind - what's changed? Nothing has changed. It is doubtful anyone would have got it before had it gone to court.

 

(3) With regard to GaryH's stuff, would I be right in thinking that, despite recent developments, lots of his arguments mentioned on this thread and elsewhere could still be utilised Yes, with care (though, clearly, there's no longer any need to cite the breach of a fiduciary duty but, instead, we must make reference to Sempra)? Yes

 

(4) And finally... on the subject of Sempra, someone who, seemingly, is pretty knowledgeable suggested to me that there's a case which is even more pertinent. Haven't, as yet, had a chance to investigate this further and even then I'm not sure I'd be qualified to judge so wondered what you thought.

 

This is the relevant thread...

 

http://www.consumeractiongroup.c o....g-test-23.html

 

and it's post 452 which, I reckon, you may well find interesting. THis is a European case and I'm not sure you can use it as a precedent in a UK court (I might be wrong though). Sempra can definitely be used.

 

Look forward to hearing from you

Fred_Funk

[hisholinessthepope]

If I were you I would write to both the court and the bank stating that a recent judgement has just been published which is highly relevant to your claim and which you wish to include within your submissions and rely upon at the hearing.

 

 

Some advice please.

 

I have claim in to CapOne for charges and CI. CapOne's defence is that 1 - They have repaid the charges and SI and court fee on the 8th June & 2 - Do not agree CI as no unjust enrichment, cos we have repaid charges.

 

Until today they had not repaid me anything despite writing to me and the court twice to say we have repaid the charges and have included it in their defence. So I wrote to court last week when I got CapOnes' defence and said no repayment, plus there are three major errors in the witness statement they are relying on in court (it gives the wrong date in court by 3 months!) please will the court strike out the defence.

 

Today get back from work and the cheque is on the door mat! Drawn on the 25th July and envelope postmarked 9th August! We are in court on Tuesday 14th August.

 

Was quite happy to attend court and take my chances with POC for CI via M+R because the claim was intact and they are a credit card not a bank.

 

Now am thinking I should write (fax first thing Monday) to both the court and CapOne and say that as the cheque is finally here and together with the recently judgment in the Sempra case I wish to revise my claim and my court bundle. Would the court please postpone the court date for a month while I revise my position and to give CapOne the opportunity to reconsider their position. Is that the right way to do this?

[hisholinessthepope]

I started a new thread and it is sorted see here

 

http://www.consumeractiongroup.co.uk/forum/legalities/110199-i-want-delay-my.html

[patrickq1]

IN the letter i have received from GOLDFISH/MORGAN STANLEY

tHEY STATE I HAVE ONLY ONE ppp INSURANCE (PPP)i thought this was PPI but any way back to the letter they quote an example

"if ona particular statement you owed £1000.00 for purchases at 16.9% pa and £1000.00 for a balance transfer at a promotional rate of 5.9% pa.,your statement would show two entries for PPP-£7.60 for the purchase balance and £7.60 for the balance transfer (at the current premium level of 76p per £100.00 of the outstanding balance ).if applicable,the first £7.60 would atract intrest @ 16.9% pa and the second £7.60 would atract intrest at 5.9% pa.is this compound intrest and why transfer ppp its all gobbldy goop to me now i am lost cause when i look at the statements i see two ppi charges every month like this 1/10/03 ppp 25.38

1/10/03 ppp 12.62 also billed defered charges two lots of intrest insurance cancelled insurance re instated default and this was every month..yet on the goldfish letter they deny this has happened they are trying to explain the two different rates of intrest so why two ppp on each statement ...sorry if it dosent make sense but i am lost with all this.....and really i should nt be looking at all,if anyone replies i am on tonight at some time tomorrow in hospital for my pre op tests again...

patrickq1

[patrickq1]

and besides the fact they have not complied with the sar no contract has yet apeared through my day despite demanding a copy as well as all paper work all they sent was statements thats it

[Fred_Funk]

Hi. This thread seems to have veered off topic a little over the course of the last few posts.

 

I've been away for a while but am just about to get going again on my claim and would welcome any further thoughts on the questions I posed a few weeks ago...

 

Just trying to get one or two things straight in my head and was hoping to pick your brains regarding a claim, including CI, which I'm about to submit.

 

(1) I was intending to use the new Particulars of Claim we've been provided with. I'm just beginning to familiarise myself with them. In doing so, I've noticed they don't refer explicitly to unjust enrichment. Given this will be the basis for my CI claim, I assume I ought to add this in?!

 

(2) GaryH has said in that he doesn't think there is now any hope of claiming CI at the unauthorised rate. While not doubting this is correct, can I ask - if only for my peace of mind - what's changed?

 

(3) With regard to GaryH's stuff, would I be right in thinking that, despite recent developments, lots of his arguments mentioned on this thread and elsewhere could still be utilised (though, clearly, there's no longer any need to cite the breach of a fiduciary duty but, instead, we must make reference to Sempra)?

 

(4) And finally... on the subject of Sempra, someone who, seemingly, is pretty knowledgeable suggested to me that there's a case which is even more pertinent. Haven't, as yet, had a chance to investigate this further and even then I'm not sure I'd be qualified to judge so wondered what you thought.

 

This is the relevant thread...

 

http://www.consumeractiongroup.c o....g-test-23.html

 

and it's post 452 which, I reckon, you may well find interesting.

 

Look forward to hearing from you

Fred_Funk

 

I'd be particularly keen to hear from anyone who's adapted the new PoC (http://www.consumeractiongroup.co.uk/forum/natwest-bank/109339-new-poc-natwest-now.html) to take account of a claim for CI on the basis of unjust enrichment and Sempra as this is my next challenge.

 

Clearly, it'd be great if we could open up the debate on here but if, as has been mentioned might be the case, you feel more at ease communicating by PM then, it goes without saying, any such correspondence would be equally welcome.

 

Look forward to hearing everyone's thoughts!

Fred_Funk

[GaryH]

(1) I was intending to use the new Particulars of Claim we've been provided with. I'm just beginning to familiarise myself with them. In doing so, I've noticed they don't refer explicitly to unjust enrichment. Given this will be the basis for my CI claim, I assume I ought to add this in?!

Yes, in the section in which you plead your case for compound interest, not necessarily in the main body of the POC.

(2) GaryH has said in that he doesn't think there is now any hope of claiming CI at the unauthorised rate. While not doubting this is correct, can I ask - if only for my peace of mind - what's changed?

Answered here - http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/41729-pen-lloyds-tsb-totally-40.html#post1094867

(3) With regard to GaryH's stuff, would I be right in thinking that, despite recent developments, lots of his arguments mentioned on this thread and elsewhere could still be utilised (though, clearly, there's no longer any need to cite the breach of a fiduciary duty but, instead, we must make reference to Sempra)?

Yes, but only the unjust enrichment parts. As you say, you can forget all about trying to establish a trust now.

(4) And finally... on the subject of Sempra, someone who, seemingly, is pretty knowledgeable suggested to me that there's a case which is even more pertinent. Haven't, as yet, had a chance to investigate this further and even then I'm not sure I'd be qualified to judge so wondered what you thought.

 

This is the relevant thread...

 

http://www.consumeractiongroup.c o....g-test-23.html

 

and it's post 452 which, I reckon, you may well find interesting.

Yes I'd seen that. I think this (Sempra) does open the door to claim compound interest at common law in this type of claim. Obviously its still not totally straigtforward, and you've got to understand the arguments for it, but the grounds are now clearly there IMHO. The main barrier is establishing the enrichment is unjust - I.e getting a judgment on the charges - but with the test case coming up hopefully that will be exactly what happens fairly soon. If the charges are unlawful and you paid them under a mistake then it now stands to reason that the time value is also recoverable as well as the principle sum. All of this IMHO, you understand.

 

I've not read the other case TBH.

[hisholinessthepope]

Yes I'd seen that. I think this (Sempra) does open the door to claim compound interest at common law in this type of claim. Obviously its still not totally straigtforward, and you've got to understand the arguments for it, but the grounds are now clearly there IMHO. The main barrier is establishing the enrichment is unjust - I.e getting a judgment on the charges - but with the test case coming up hopefully that will be exactly what happens fairly soon. If the charges are unlawful and you paid them under a mistake then it now stands to reason that the time value is also recoverable as well as the principle sum. All of this IMHO, you understand.

 

I've not read the other case TBH.

 

I have a charges plus CI claim against CapOne. Their defence was they had refunded the charges (and they ignored the CI). They paid the charges in my claim the day before court. I faxed the court to advise them and also requested leave to consider Sempra. The court gave me a month to revise my POC. I am half way through reading Sempra.

 

As the charges have been paid, I can not get a judgement. But given that CapOne paid them the day before court can I not argue that this was just a ploy to avoid a judgement and undermine my CI claim?

[Fred_Funk]

GaryH et al

 

Thanks for your input. As I've said, I'm intending to use the revised Particulars of Claim recommended by this site...

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/109337-new-poc-n1-natwest.html

 

While I've done lots and lots of reading and would like to think I have a fair understanding of the arguments, I'd be the first to concede when it comes to preparing court documents I need all the guidance I can get.

 

Having studied the PoC, I was thinking in terms of the following amendments (in red) to take account of my claim for CI on the basis of unjust enrichment.

 

4. The Bank has debited charges from the Account in respect of unauthorised overdrafts, unpaid items and paid referrals, relying on terms of the Banking Contract which were either: (1) a penalty payable on breach of contract and unenforceable at common law and/or (2) unfair terms within the Unfair Terms in Consumer Contract Regulations 1999 (The Regulations") and unenforceable. The Claimant is accordingly entitled to repayment of the sums wrongly debited and interest. In addition, the Claimant is also entitled to Compound Interest at a rate of xx.x% per anum from [date of first charge] to [date of court claim]under the principle of unjust enrichment and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £x.xx.

 

And the Claimant claims

(1) A declaration that the sums totalling £xxxx.xx have wrongly been debited from the Account.

(2) Payment of the said sum of £[as above] charged by the Bank thereon.

(3) Compound interest on the basis of the Bank's unjust enrichment at the Claimant's expense, based on the Bank's authorised borrowing rate that would be applied under the Standard Terms of the Account:

(i) compound interest at a rate of xx.x % per anum, from the date of each transaction to [date of court claim], which is £x,xxx.xx, as set out in the attached list of charges.

(ii) the Claimant further claims interest, on this resulting total of £xx,xxx.xx, at the same rate up to the date of judgement or sooner payment at a daily rate of £x.xx.

(iii) should the court find that this interest rate is not applicable, then in the alternative the Claimant claims interest under Section 69 of The County Courts Act 1984 at the rate of 8% per annum from the date of wrongful debit to date in the sum of £xxx.xx, and at the daily rate of £xx.xx until judgment or sooner payment.

(4) Court costs.

So, what do you reckon? Am I thinking along the right lines? It goes without saying, any thoughts and further guidance would be very much appreciated.

 

Thanks in anticipation

Fred_Funk

 

PS Am I right in thinking I needn't cite any case law, such as Sempra, at this stage but that that can wait until my court bundle?!

[GaryH]

I would suggest adding something like this;

...... The defendant has not paid them or any of them.

 

Mistake

 

XX. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

Compound Interest

 

XX. The Claimant seeks restitution of the time value of the wrongfully debited sums by way of an award of compound interest calculated at the banks standard overdraft borrowing rate of [authorised rate]%.

 

XX. The Claimant contends that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to recovery of the wrongfully debited and fees and a compensatory award of simple interest at the statutory rate. The bank has been in wrongful possession of the Claimant’s funds for a considerable period of time and as a lending institution has earned profit by way of interest by re-lending those funds at its commercially compounded rates. Conversely, the Claimant having been denied use of its funds in the banks wrongful possession was forced to replace those funds by lending from the bank by way of overdraft at its commercially compounded rates. Thus an award of compound interest is necessary to provide full restitution and a just remedy.

 

XX. The Claimant in its submissions will rely on the recent case of Sempra Metals v Inland Revenue Anor [2007] UKHL 34 where the House of Lords held that compound interest is available at common law where the Claimant seeks a restitutionary remedy for the time value of money paid under a mistake.

Your right that you don't need to quote case law in the POC, but I've mentioned it as this is such a recently developed area.

 

The 'and the claimant claims...' section is fine.

 

I didn't give 8% as an alternative either, but thats completely up to you.

[hisholinessthepope]

I have a charges plus CI claim against CapOne. Their defence was they had refunded the charges (and they ignored the CI). They paid the charges in my claim the day before court. I faxed the court to advise them and also requested leave to consider Sempra. The court gave me a month to revise my POC. I am half way through reading Sempra.

 

As the charges have been paid, I can not get a judgement. But given that CapOne paid them the day before court can I not argue that this was just a ploy to avoid a judgement and undermine my CI claim?

 

Any thoughts???

[andrew1]

Any thoughts???

 

Be useful to try and gather details of any other Cap 1 examples where they have done exactly the same thing to others. Judges get very p'd off with this.