Court Date LoominG WON

Tiffla · June 20, 2007

Hi, everyone.

Sorry for starting a new thread, but panic and stress are starting to take over now.

My court bundle needs to be in by this Friday, so I just wanted to check if I have got everything correct.

I don’t have a copy of FD’s T&C’s (my account was opened in 1996) and I was wondering if a copy of HSBC’s would suffice – seeing as FD is “owned” by HSBC??

So far in my court bundle, I have the following documents :-

1) Statement of evidence

2) Letters from claimant (less the “without prejudice” ones)

3) Letters from defendant (less the “without prejudice” ones)

4) Bank statements

5) Schedule of charges

6) Relevant case law to penalty charges

7) Early day motion

8) Dunlop v new garage

9) UTCCR’s 1999

10) UTCA 1977

11) SOGA 1982

12) OFT’s summary on credit card default charges

Most of it seems pretty straightforward at the moment, although I am worried about the T&C’s not being available for my account.

Below is my Statement of Evidence.

1. The Claimant has the account XXXXXXXX ("the Account") with the Defendant which was opened in 1996.

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 and also charged interest on the charges once applied.

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimant submits that the charges levied to his bank account, as set out in the attached schedule, are, notwithstanding the contention of the Defendant, penalty charges arising from and relating directly to breaches of contract on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

5. It is admitted that the Defendant’s charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendant’s charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 4 above, exercises the contractual term in respect of such charges with a view to profit.

6. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

7. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty.

8. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft facility with the defendant. This overdraft facility has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded the agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge of £10 - £129.

9. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for;

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;”

I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem".

10. The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously.

11. Additionally, the Claimant believes there to be a high possibility that the terms and conditions of his account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the defendant that the claimant is aware.

12. The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

13. As submitted above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defence’s contention that they are legitimate contractual service charges.

14. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

15. Further, under the UTCCR:

"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.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

The Defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass-produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

The cost of First Direct's charges have increased on more than one occasion during the period in which my account has been held, at no time was I given the opportunity to negotiate, or even notified of these increases. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

16. Following on from the above, the Claimant does not accept The Defendant’s contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the bank’s right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

17. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred.

18. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

19. The Claimant will further rely on numerous recorded authorities dating throughout the 20th Century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

20. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

21. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

22. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

23. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

24. It is submitted that the Defendant’s charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £37.50 by carrying out this completely automated process.

25. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

26. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

I, the Claimant, believe all facts stated to be true.

Signed

Is there anyone that can advise if everything seems okay with all of the above??

Is there anything else I should add to my bundle?

Sorry for posting all over the place, but the clock is ticking now and I want to get this right. It’s my last chance before my court date!!

Thanks, anyone.

Zactheboy · June 20, 2007

PM a moderator directly - there are so many forums that they may not pick it up.

Everyone is so lovely here I am sure they won't mind

Z

lateralus · June 20, 2007

what about this:Litigation Section - View and print out litigation spreadsheets here for the settled claims printout.

did you see what i put for t & c's - on the other thread.

don't know if it's any good for you - it's off first direct's site

first direct Account Terms and Conditions

also, this off another fd thread:

post 6

First Direct T&C - anyone have a copy?

Tiffla · June 20, 2007

Thanks peeps for your speedy responses - it's a great help.

Sorry to bleet on like a moody old lamb, i'm just getting quite worried.

This is my last chance to get things right and i just want to make sure that that's what i do.

Obviously i'll keep everyone updated on this link as and when it happens.

Does everything look okay??

If it does come to "the crunch", everyone is welcome to attend my hearing - Walsall, West Midlands 6th July.

Thanks for replying with even more info, Lattie!!

All my paperwork will be sent tomorrow afternoon by special delivery to both the court and DG - so it should be there in time (although at the last minute).

The way i see it from the judges orders, is that i should also receive DG's defence by Friday too.

If i don't..... does that mean i'm in with a fairly good chance of an offer for the full amount?

Should i hold out for the daily interest of 66p per day since i started the claim?

I have this deep feeling that i'll be the "second" case that fails, just because i've missed something trivial or i didn't cross the t's or dot the i's.

Long night for me tonight, last time for special delivery around here is 4.45pm tomorrow.

Wish me luck.....!!!!

lateralus · June 21, 2007

the sight of the bundle is usually enough to make dg make an offer.

livelylad · June 21, 2007

Also hit them with a wasted costs order once the claim has been settled.

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/85726-wasted-costs-order.html

Tiffla · June 21, 2007

Thanks everyone, just putting the finishing touches to it then it's in the post by special delivery.

Tiffla · June 22, 2007

Quick update.....

After a lot of unnecesarry paincing and worrying, my bundle went out yesterday by special delivery - so the court and DG will receive it today.

Just to remind everyone ROYAL MAIL WILL BE HOLDING A 24 HOUR STRIKE ON JUNE 29th!!! So anyone who needs to post documents around that time should plan very carefully. The 29th falls on a Friday, so it may well take until early JULY to clear the back log of mail.

After doing some printing yeterday and laying everything out and having a good read, it actually became quite enjoyable putting the bundle together. Suddenly everything starts to fall into place and it wasn't so bad after all.

Thanks for everyones support and advice, i would never have been able to do it without the help from people on this site!!

I'll keep you all up to speed with any developments, and if DG do settle, then my donation will be winging it's way through the internet.

cookiecrumble2004 · June 22, 2007

Wishing you the very best of luck, and watching with interest.

Cookie

Tiffla · June 22, 2007

Didn't receive a copy of DG's bundle in the post today, so i made a quick call to the court this afternoon. Guess what... the court haven't received one either.

So, so far DG haven't complied with the judges orders - but i do suspect that they'll get away with the "a few days late won't matter".

Joeyboo21 · June 23, 2007

Go get em' Tiffla, dont worry about the courts lax attitude towards the defendants time keeping, just sit back and keep adding the daily interest, safe in the knowledge that they will settle, and if they don't, If is wasn't on holiday i would have been delighted to come and support you at Walsall CC. My case will be transferred there, and I am watching with baited breath! You will win, even the judge knows they don't have a leg to stand on.

damjef · June 23, 2007

Hello Tiffla,

sounds to me like you may have an offer soon with the confidentiality clause enclosed,

well done!

Tiffla · June 27, 2007

Well.......

Postie just arrived with an envelope bearing the stamp of DG Solicitors.

Thought it would be their bundle 5 days late, but, NO!!:o

It was infact an offer for the full amount - then some. I don't know where they got their figures from but i won't be reminding them that they've offered too much;) .

The usual "yaddie, yaddie, yaah" about them being confident in court and their management time and not forgetting the "agree to keep the fact of my claim and the ex gratia payment strictly confidential".

I will of course be accepting this offer, but i will not be agreeing to the confidentiality clause!!

I can't thank everyone enough for their time, patience, knowledge and understanding that has helped me win this claim. It would never have been possible for me without the help and support from this site and the people who share a wealth of information.

Of course i will be making a donation to CAG as soon as the money is "in the bank".

Now this "biggie" is out of the way, i'll be setting my sights on Barclaycard, GE Money and Capital One.

indigoblue · June 27, 2007

A job well done, spend it wisely, I have already dealt with GE money and Capital one, both of whom have settle quite quickly, should be a breeze compared to this!!

Best Wishes Indigo

theforger · June 27, 2007

Well done Tiffla, another success,

Make sure you hit them with wasted costs, just think of all the hassle and worry you had preparing your court bundle

congrats again.

Zactheboy · June 27, 2007

Congratulations

Nothing more to say other than - it is yours

Good for you

I hope that I and a good friend I have made on here are able to post our success stories soon!

Z

Tiffla · June 28, 2007

Thanks for your continued support, everyone!!!

I'm sure i've seen somewhere on this site, a letter that can be sent to the court saying something along the lines of "my claim is settled, but the money isn't quite in my account yet".

I'm not going to withdraw my claim until cleared funds are "in my pocket".

DG didn't say how long it would be before the money was in my account:(

As soon as it is though, i'll be hitting them with a wasted costs order - nothing to loose this time:)

Tiffla · July 1, 2007

Checked my bank balance on line on Friday night, and sure enough the money was there:) .

Just goes to show how much the banks don't want to go to court!!

RamSC427 · July 1, 2007

Excellent result Tiffla, well done to you, I am sure that after all of the worry the result made it all worthwhile.

I have been following your thread with great interest as I am at exactly the same stage as you seemed to be when you started the thread.

I have picked up some great advise from this thread, and from the whole site in general, and wanted to say thanks to everyone for their great advise and input and sharing their experiences so that we can all learn from them and then use the experience to stop the banks and the like from just doing what they want with our money.

They have had it their way for far too long and it is so good to the people power getting justice as last.

Would it be OK to ask you some questions about how you did what you did, as it proved to work very well indeed.

I have just received the defence from DG and it seems to be a standard defence that they are putting out, very short and basically arguing that the terms and conditions are not unfair.

From the pack that you put together, at what point was it that you submitted this to the Court, was it when you received the defence from DG with the court form to fill out?

1)Statement of evidence

Excellent evidence and well submitted

2) Letters from claimant (less the “without prejudice” ones)

3) Letters from defendant (less the “without prejudice” ones)

Can you not use any letter that has “without prejudice on the top of it?

4) Bank statements

Did you just submit copies of all of the relevant statements?

5) Schedule of charges

Is this just the spreadsheet listing all charges with interest due?

6) Relevant case law to penalty charges