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Marbles - re-assurance needed on POC please


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Hi

 

I am currently at the stage of submitting my POC below, to court in my claim against Marbles, and would appreciate it if some of you ,more worldly ones in the field, might be so kind as to take a look at it before I do.

 

I'd be grateful if you could give me your comments/feedback on any points that I may have misunderstood, done wrongly, or just worded incorrectly, In particular para's 8 an 9.

 

Here goes.........sorry it's quite long!

 

 

_________________________ ____

 

 

 

PARTICULARS OF CLAIM

_________________________ ____

A N Other

V

HFC Bank Limited trading as Marbles

Account xxxx xxxx xxxx xxxx

 

GENERAL DETAILS AND BASIS OF CLAIM

1. The Claimant has a Marbles Credit Card Account numbered xxxx xxxx xxxx xxxx ("the Account") with the Defendant which was opened on xx.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Defendant also charged interest upon these 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 schedule of the Charges and the interest applied is attached to these particulars of claim.

 

4. The Claimant contends that:

a. The charges debited to the Account, as outlined in the attached schedule, are:

i. punitive in nature;

ii. unreasonable

iii. generally disproportionate

iv. unfair

v. not a genuine pre-estimate of cost incurred by the Defendant;

vi. exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;

vii. not intended to represent or are not 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.

viii. unlawful

 

b. The contractual provision that permits the Defendant to levy the charges to the Account is unenforceable by virtue of:

i. The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) paragraph 8 and Schedule 2(1)(e)

ii. The Unfair Contracts Terms Act 1977 (UCTA) section 4

iii. The Supply of Goods and Services Act 1982 (SGSA) section 15

iv. The Common Law.

 

c. The Charges levied on the Account are penalties;

A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable. Penalty charges are irrecoverable at Common Law.

The Claimant makes reference to, inter alia,the following cases in support of his claim and which set precedent for this:

 

i. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co. [AC 79

ii. Murray v Leisure Play [EWCA Civ 963;

iii. Alfred McAlpine Capital Projects Ltd. v Tilebox Ltd. [EWE-Information Commissioner 281 (TCC).

iv. Commissioner of Public Works v Hills [AC 368

 

Additionally, the Claimant makes reference to the following Office of Fair Trading (OFT) cases, as reported in their Unfair Contract Terms Bulletin 21 (July to September 2002) as persuasive authorities;

vi. Case 4 – Dampcure-Woodcure/30Ltd. (“OFT Case 4”)

vii. Case 15 – Kids of Wilmslow Ltd. t/a kidsunlimited (“OFT Case 15”)

viii. Case 18 – Legal & General Franchising t/a Parker Estate Agents (“OFT Case 18”)

 

d. In the alternative, if the Court finds the Charges to be remuneration for services rendered by the Defendant, then the Claimant contends that they are unreasonable within the meaning of section 15 of The Supply of Goods and Services Act 1982.

 

e. That the processes involved in processing late payments, exceeding credit limits, returned unpaid payments, etc. are entirely, or else almost entirely, automated and operate many thousands, if not millions, of times per year so that the cost is spread and shared widely.

 

 

CLAIMANT’S SPECIFIC REASONING, ARGUMENTS, ETC.

 

5. The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law.

 

6. If the Defendant avers that it’s charges are fair and reasonable, and therefore enforceable, it’s remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches.

 

7. The Claimant has written to the Defendant twice, prior to the issue of court proceedings, inviting the Defendant to justify its charges by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimants Account breaches, to prove that it’s costs are proportionate to it’s charges, but the Defendant has declined to do so.

 

8. On virtually every occasion, when the Claimant has made a late payment or exceeded his credit limit, the Claimant believes that the extent of the Defendant’s actions in processing that breach has been to add a short printed paragraph to the foot of Claimant’s following month’s statement, a statement which would have been posted to the Claimant anyway, advising of such a breach. On the other rare occasions, the Defendant’s action has included sending a separate computer generated letter advising of the breach. With this in mind, the Claimant estimates the costs incurred by the Defendant to be, literally, a few pennies in the first instance and probably less than 40 pence when the Defendant has printed and posted a separate letter.

 

9. The Claimant believes that, in general, businesses mark-up the base cost of a product by, anywhere between 100% to 400%, to include a contribution towards other direct costs associated with the entirety of its business, such as rent, rates, utilities, wages, etc., and including a reasonably amount of profit. Since the Defendant is a business, the Claimant finds it reasonable to assumes that the same mark-ups apply, hence by using the base costs of the product (the Charge), as estimated in paragraph 8 above, and multiplying it by 400%, the largest general mark-up mentioned, the Claimant calculates that, at most, a reasonable charge for a breach of contract would be in the range of £0.10 pence to £1.60, including an element of profit. As such the Claimant contends that, charges ranging between £12.00 to £20.00, which the Defendant currently charges and has charged in the past, exceed the costs incurred due to transgressions on the part of the Claimant, and/or are unreasonable if for the price of a service, and are deemed to be all of the points mentioned in paragraph 4. (a), and as such, are unenforceable by virtue of paragraph 4(b). Accordingly the Claimant is entitled to judgement as sought in paragraph 16.

 

10. Since the Defendant has repeatedly declined to provide evidence of it’s losses or costs in relation to the Claimant’s Account breaches, and based on the assumptions of paragraphs 8 and 9, and since the Claimant is aware that the Defendant has failed to defend other similar claims, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges indefensible, and unenforceable at law.

 

11. In the cases of Dunlop and of Murray, it was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that the Charges do not reflect any actual and or real loss.

 

12. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

13. Unfair Terms in Consumer Contract Regulations 1999 (UTCCR)

 

a. Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.

 

b. Regulation 5(1) of the UTCCR provides as follows: “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 unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.

 

c. Paragraph 1 (e) to Schedule 2 of the UTCCR includes all terms which have the object or effect of “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” as being part of an indicative and non-exhaustive list of terms which may be regarded as unfair. (Regulation 5(5) UTCCR)

 

d. Regulation 8 (1) of the UTCCR provides that An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer”.

 

e. Reference is made to OFT Case 4. Term ‘W’ had the potential to impose a high financial penalty when payment was not received within 7 days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment is not received within 7 days of the date of invoice.

 

f. Further reference is made to OFT Case 15. In that case, the Company’s term 7 provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the term so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.

 

g. Further reference is made to OFT Case 18. In that case, a commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

 

h. Accordingly, in light of paragraph 13(e),(f), and (g), the Defendant is being sufficiently compensated for damages arising from account breaches by the imposition of its interest rate ordinarily charged on an overdrawn balance of account. The imposition of further charges is unfair in terms of the UTCCR.

 

i. Regardless of whether or not this court finds that the Charges are remuneration to the Defendant for services rendered rather than compensation for damages arising from a breach of contract, if a term of contract exists between the parties hereto that purports to allow the Defendant to levy the Charges to the Account, then such a term is unfair, and hence unlawful and unenforceable, by virtue of regulation 5(1) of the UTCCR.

 

j. Accordingly, in light of the averments made hereinbefore regarding the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of regulations 5(1), 5(5) and 8(1), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR. As such the Claimant is entitled to judgement as sought in paragraph 17.

 

14. Unfair Contract Terms Act 1977 (UCTA)

 

a. Any term of contract between the parties hereto purporting to entitle the Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 17.

 

b. Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.

 

c. Under s1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made”.

 

15. Common Law

 

a. The authorities mentioned in paragraph 4 ©(vi), (vii), and (viii) and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the cases of Dunlop and Hills are powerful authorities in favour of the Claimant. Additionally, the case of McAlpine seems to re-affirm the views in these cases.

 

b. Lord Dunedin formulated the test for Penalty clauses as follows, in Hills “The general principle to be deduced is....that the criterion of whether a sum – be it called penalty or damages – is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or cannot be regarded as a ‘genuine pre estimate’ of the creditor’s probable or possible interest in the due performance of the principal obligation”

 

c. It was further noted in Dunlop that “ There is a presumption (but no more) that it is a penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

 

d. Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

1) The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be suppose to mean what they say, yet the expression used is not conclusive.

2) The essence of a penalty is a payment of money as ‘en terrorem’ of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

3) Whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judges as of the time of making the contract, not as at the time of breach. There are a number of tests which would prove helpful, or even conclusive:

 

i. It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach

ii. It will be held to be a penalty if the breach consists only in not paying a sum paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

 

e. In McAlpine, the aforementioned common law principles were held to generally be correct. Furthermore, it was held that where there was a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered it can be said that the agreed pre-estimate is unreasonable.

 

 

16. Implied and/or imposed contractual term regarding interest claimed

 

a. The Defendant charges compounded interest to the Claimant, via the Account, at its annual rate which has changed at various dates throughout the period that this claim relates, to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract. Details of the Defendants published rates of interest and the dates from when those rates applied are shown at the top of the attached schedule of charges and have been obtained from copies of the Claimants statements.

 

b. Using the same reasoning and maintaining the principal of equity, mutuality and reciprocity between the parties, the Claimant contends that he is entitled to equal rates of interest and from the dates that the various rates applied in this case, on the Defendants use or borrowing of the Claimants monies, being the Charges which the Defendant has levied on the Claimant’s Account.

 

c. The Claimant’s grounds for seeking restitution of the compounded contractual rates of interest is that if the Claimants entitlement was limited to the statutory rate of interest, the Defendant would be unjustly enriched in that it has had use of the Claimants sums and would have used these sums to re-lend at commercial compounded rates.

 

d. The Claimant notes, in particular, that the Defendant erred in law, had no legal right to levy the charges and has refused to return all of the Charges and the interest charged thereon when asked to do so.

 

e. For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the UTCCR

 

Regulation 5 (1) of the UTCCR states as follows:

 

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.”

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

CONCLUSION

17. Details of Judgement sought by Claimant:

 

Accordingly the claimant seeks:

 

a. The return of £xx, being the total amount debited to the Account in respect of the Charges and the interest charged thereon, as detailed in the ‘schedule of charges’ attached to these particulars of claim.

 

b. An award of £xx to remunerate the Claimant for printing and photocopying, admin and postage, and other general expenses necessarily incurred, and also the time spent in the research and preparation of this case. A detailed synopsis of these costs is also attached to these particulars of claim.

 

c. Court costs

 

d. Contractual interest pursuant to the implied and/or imposed term of contract between the parties as detailed in paragraph 16 (a) and (b). The Claimant calculates interest at the said rates and dates, and compounded daily from the date of each transaction to 18/06/07 of £xx, as set out in the attached ‘schedule of charges’, and also interest at the current interest rate up to the date of judgement or earlier payment at a daily rate of £x.

 

e. In the alternative to 17 d), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 18/06/07 of £xx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £x.

 

 

I believe that the contents of these particulars of claim are true.

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  • 3 weeks later...

This is a duplicate post, which I'll respond to in the appropriate forum.

 

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Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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