BOBSCOUSE v Capital One

[BOBSCOUSE]

Hi,

I had a Hearing last Friday against CapOne, this is how it went. Sorry about the long read, but much appreciated if you could give some advice ahead of the re-hearing (adjourned).

Thanks!

CapOne lawyer (young, bright, sharp and smug) arrived and immediately approached me, gave me a copy of Halliday case which they were going to use as their defence - whatever happened to getting all evidence to be relied on to the court 2 weeks before hearing?

Went in to Judge, where he announced that they had mislaid the case file so had no information barring the Court Bundle I sent in, and hadn't even had time to read through that. In the case file were the letters which I had written showing how CapOne had manipulated situation by leaving just Compounded Interest to be argued. My whole approach for the Hearing was based around their dishonesty and presenting the paperwork from Sempra case. As soon as the Judge said that he did not know what was going on I basically went to pieces. I opened by stating to the Judge that I wished to apply for Judgement in my favour due to CapOne failure to comply with Judges order to hand in info relating to charges. Judge said that my form was only dated 6th September and he would not consider it. I explained that the clerks of the Court had told me to apply for Judgement by letter which I had done 2 weeks before the Hearing, that when I phoned for an update on the Judgement was told on Wednesday before the Hearing that the Judge wanted the application formally. Having ascertained that doing this was formally done by N244 form it was then too late to send in, so I followed the clerks instruction to bring the form into the Hearing. Lawyer explained that the info was not supplied because the case was not about charges but only interest, so the Judge then told me it didn't matter that they hadn't complied with the order as the information wasn't relevant.

Judge asked what the case was about, which the lawyer explained. He gave the wrong information about the interest I was claiming (basically described what I was claiming as being the same as Halliday did, Compounded and Statutory Interest for the whole period), so I jumped in and corrected him. Thing is, with the nerves I forgot about the relevance of Hallidays error and that it was of little use to CapOne in this instance, so I just corrected what he said. With reference to the charges the lawyer stated that they had all been paid back, so I countered that I had not agreed to any payments and had in fact refused them. Tried to explain the circumstances (offer letter sent on the same day they paid the money in) but as I passed the Judge a spare copy of that correspondence he simply waved it back and said he wasnt interested in details. Judge asked me if I had been paid the money, to which I replied yes so he just asked me what my problem was - WHAT A PRICK! Judge asked me what I was claiming for so I said that I wanted Compounded Interest and Costs to cover those incurred in seeking the claim. Judge just gave me short shrift on that as well, saying we don't award costs for that. I was totally **** by then. After Judge acknowledged that this was just a case about Compounded Interest the CapOne lawyer handed over the Halliday case paperwork and explained the case. I handed over the Sempra case paperwork and the Judge asked the CapOne lawyer what it was about - WHAT THE FECK WAS THAT ALL ABOUT?!! Lawyer gave explanation, then Judge asked whether the Halliday case proved their point - no further interest in me and my evidence at all. I was just wanting to get out by then, totally ****ed off.

Judge then decided that the Hearing had gone on too long - 25 minutes when only 5 mins allocated so he said he would adjourn to a later date and told the CapOne lawyer to speak to me in a meeting room afterwards - basically to try and dissuade me from pursuing any further.

That folks, is about it......................

 

Lawyer was a cock - Judge was a bigger one, pandering to their every whim and not showing me an ounce of respect or interest. I'm NOT giving this up without a fight though, 'cos now I just think that they haven't won with Halliday (please confirm that he lost because he claimed CI and Stat Interest for the whole period) and I just need to know exactly how to argue the Sempra case.

Forgot to mention above that I also told Judge that I had a list of cases in which CapOne had settled inclusive of Compounded Interest - He didn't want to see it and simply said that just because other people had been paid it didn't mean I was entitled to it. I never said, but what about CapOne treating all their customers equally? I would have thought that was a good enough argument in itself. As I said, bloke was a Piers Morgan - hope I get a different Judge/lawyer next time so I can try some of these arguments again.

Can someone tell me how I should argue against the Halliday evidence which CapOne submitted. Also, is it allowable as evidence on their behalf, considering that they brought it along to the Hearing instead of providing it 2 weeks before the Hearing. If not allowable, can I ask for it to be withdrawn even though it has been discussed in the recent Hearing?

[BOBSCOUSE]

I also sent the following letter two weeks prior to the Hearing, requesting Judgement on grounds of CapOne failing to comply with Judges order, and detailing how they had manipulated payments to leave just Compounded Interest outstanding.

I have today visited Bath County Court with copies of all documents on which I intend to rely on at the hearing, complying with the request of the courts. I also presented a letter to the court in which I requested that the District Judge Rutherford consider awarding judgement in favour of the Claimant as Defendant had failed to comply with the court order of 9th August 2007 - to file and serve:

1. an itemised statement showing how each and every item charged is calculated

2. a copy of the contract with the customer

3. skeleton legal arguments if points of law are to be argued relating to punitive damages and/or unfair contract terms

While at the court I requested that the clerk of the court ensure that no such documentation had been received on this day. On returning to my home address I found I have today received documentation from the Defendant. I have attached copies of these documents.

 

The Defendant state that they have refunded the default fees in their entirety on a without liability basis. On this presumption, they have dismissed the order of District Judge Rutherford and withheld the information requested. The Defendants letter of 21st August 2007 states that they do not believe it is necessary to provide items 1). and 3). as above. The Defendant has also failed to provide item 2). as ordered. These are key items on which the Claimant would rely upon in this case.

 

The Claimant submits that the Defendant has intentionally attempted to strike out the validity of a claim against default charges in a tactical manoeuvre to deliberately avoid disclosing this information. The Defendant is adopting this tactic in every case that I am aware of, for disclosure of their true costs would prove confirmation that the Defendants charges are punitive and therefore unlawful. Also the Defendant has failed to provide either a copy of the original contract with the customer or a copy of current terms and conditions. The Claimant wishes to put it to the Court that the Defendants default charges are punitive and unlawful. Through denial that they should produce legal arguments relating to punitive damages and/or unfair contract terms, the Defendant, as well as acting in contemptuous disrespect to the orders of District Judge Rutherford, indicates that they have no argument against the fact their charges are unlawful.

 

It should be noted that none of the payments made into the Claimants account were with the agreement of the Claimant. I would suggest that the following details extracted from recent correspondence (copy correspondence enclosed) reinforces my assertions.

 

Defendants letter of 28th states in Paragraph 7 “Along with the above refunds for interest, I have also refunded the default fees totalling £66 and the court fee of £80. This brings my total refund to £227.77. I have arranged to send you a cheque for this amount, which you should receive within 14 working days”.

 

I, the Claimant, responded to this letter rejecting the amounts offered as derisory. Within my response of 11th July I stated “The credits which you have refunded to my account have been done without my request or agreement to this action. At this moment in time I demand that the full amount of credits made to date are withdrawn while I continue proceedings. It is my intention to return your cheque for the offered amount when received”.

 

The credits referred to in letter of 11th July are in relation to a refund of a partial amount of £52 made on 10th May 2007. In my letter of 19th May, I made it absolutely clear to the Defendant that the credit of £52 was accepted “only as a partial payment”. In paragraph 3 of this same letter I have stated “Note that the credit which you have stated you will refund to my account is done without my request or agreement to this action. You must accept at this time that this credit is considered only to be as partial settlement of my request for refund of charges. If you do not accept this, then I require that the credit is withdrawn while I continue proceedings”. The Defendant has not removed these monies as requested per the circumstances. A cheque was never received.

 

On receipt of my monthly credit card statement from Capital One Bank (Europe) plc dated 10th July, I found that the amounts offered in Defendants letter of 28th June 2007, to the sum of £227.77 had been credited to my account without my knowledge, the same day on which the Defendants letter had been raised. It is clear that the Defendant purposely did not wish to give the opportunity for a cheque to be returned, knowing that any amount of default charges which had not been refunded prior to submission of their defence would result in their having to disclose the true costs of a customer defaulting on a payment..

 

On 10th August I submitted a further letter to the Defendant and to the Court, demanding that all credits refunded should be withdrawn from my account, as I wished that the case be able to continue with clarity. In spite of my demands the Defendant has failed to carry out this request.

 

The actions of the Defendant are clearly intended to engineer a situation whereby the default charges had been paid, and to only have to defend a request for compounded interest. The Defendant states in their letter of 21st August 2007 that “the claim for compounded interest has no legal basis. The Claimants terms and conditions set out the interest rate applicable to the credit card, but nothing in the terms and conditions entitles the Claimant to claim the same rate of interest. There is no basis to justify implying any such term”. As stated above, the Defendant has failed to produce the original terms and conditions of the account, and for this reason amongst others is in default of District Judge Rutherfords’ order.

 

The Defendant also counters this last argument, with the following legal basis of fairness and balance:-

 

The legal basis of "fairness and balance" appears to be:

 

“UTCCR Schedule 2, para 1(b) : inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;”

 

and the associated OFT Guidance document (OFT 143 @ http://www.oft.gov.uk/shared_oft/business_leaflets/unfair_contract_terms/oft143.pdf

which says at Annex B : “Terms Excluding Or Limiting Liability, paragraphs 1a and 1b of Schedule 2 : Fairness and balance require that both parties to a contract are equally bound by it, and equally liable to pay compensation for failure to abide by it. A term which could be used – even if that is not the intention – to prevent or hinder customers from seeking redress when the supplier is in default tends to upset the balance of the contract to the consumer’s disadvantage.”

 

1. "Fairness and Balance. They took your money, they took it without your authority. In a reverse scenario, they charged you interest rates when you did this, so you do likewise.

 

2. "Unjust enrichment". Statutory law is very clear in that contracts cannot contain clauses that enable a party to profit from the others breach. Your claim for interest above statutory is to ensure that they have still not profited as (especially given the nature of their business) they would almost certainly have profited more than the 8% statutory would impose upon them. So you charge contractual. It is not about recouping your losses, it is about preventing their gains.

 

Traditionally Compound interest has been awarded where the wrong has been carried out by a fiduciary (president of India Vs La Pintada Compania Navigacion SA (1985) ac 106, 116 Lord Brandon))

 

Compound interest is paid on the amount of money owed to the Claimant and on the interest of that money owed as well.

 

The Supreme Courts Act 1981 does not specifically exclude the award of compound interest at common law claims. Rather it recognises that the court can award simple interest and the courts have the right to award compound interest to appropriate claims. It would be down to the Defendant to prove if they had borrowed the same sum of money from another financial institution they would have only paid simple interest then it is only fair that the Defendant pays simple interest not compound. However, the interest awarded in commercial transactions would normally be compounded Sempra Metals Ltd Vs Irc2005 ewca civ 389, 2005 3 wlr 521 539 para 44 (Chadwick L.J)

 

The Claimant’s ground for seeking restitution of the compounded contractual rate of interest is that the defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates. The Claimant’s case for claiming interest at the rate applied by the Defendant to the claimant’s borrowing, is based in equity and a legal requirement for fairness and balance:

 

When entering into the contract with the Defendant, the Claimant had no reason to anticipate that the Defendant, having a long-established reputation in the banking industry, would make unlawful deductions from his account. Had this been a foreseeable event, the claimant might well have taken a different view about whether to agree to a contract which did not provide the Claimant with a mutual right to charge the Defendant interest in the event that monies were wrongly taken from his account, over a considerable number of years, thus producing a false picture of the Claimant’s indebtedness to the Defendant over the entire period covered by the claim and unjustly enriching the Defendant at the same time.

 

c. The Claimant’s case is not that the contract should provide for the Claimant to be entitled to charge interest at the rate which the defendant reserves for itself in the ordinary everyday course of dealings. The Claimant is inviting the court to award interest and therefore compensate the Claimant at the same rate that the defendant deems fair compensation for allowing the Claimant to use its money, given that the Defendant’s withdrawals from the claimant’s account were unlawful and given that unlawful withdrawals were unforeseeable at the time of the entering into the contract.

 

d. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to provide evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused and since the Claimant is aware that the Defendant has failed to defend any other similar claim at trial, the Claimant deems the Defendant’s charges to the account to be indefensible and unenforceable at law. 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.

 

e. It should also be noted that the Claimant had no bargaining power to determine the terms of the contract and as all banks trade in similar terms, the Claimant had no effective choice in the matter.

 

f. 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 Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

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

 

“Unfair Terms

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 should provide a term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank. The interest claimed is therefore deemed to provide an equitable remedy in the context of the claim.

 

The Claimant’s claim for compound interest should be viewed in the in the context of the claim rather than in isolation and with full regard for the seriousness of the Defendant’s misdemeanours which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his/her monies for this length of time without repaying it with interest at the rate which it charges the claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money.

 

The Defendant has concluded that they have acted entirely reasonably, and that my continuance with the claim on the basis that I am entitled to compounded interest is both vexatious and disproportionate. I, the Claimant, must counter that the Defendant, by their manipulation and abuse of their fiduciary position is being unreasonable and shamefully lacking in integrity.

 

Further to my request for judgement in the Claimants favour, dated 23rd August 2007, I reiterate that the Defendant is unarguably in default of District Judge Rutherfords order, and has shown a clear lack of respect for the judicial system. I once again request that the Judge strike out the defence of Capital One Bank (Europe) plc and award the remaining sum outstanding of £522.33 in favour of the Claimant (Schedule B attached). I also request that the Judge consider awarding Costs in favour of the Claimant, to cover losses incurred by the Claimant in pursuing this case (Order for Costs attached) as per letter of 23rd August.

 

Yours faithfully,

 

I tried at the Hearing to submit this with a N244 form but the Judge wasn't interested in considering Judgement. Have to say I'm a little perplexed and could really do with some advice.

 

Bob

[steven4064]

Bob

 

Halliday lost because he claimed CI on the wrong grounds. He claimed compound interest (CI) on the basis that the contract had an implied term that if HBoS (in his case) charged him CI on money he owed them they ought to pay it on money they owed him - the so called mutuality and reciprocity (or fairness) grounds.

 

People her on CAG always felt that this was bound to fail becasue of the 'implied term' argument and so it turned out. The judge ruled that the contract required no such term, using the concept of "business efficiency" (full story http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/97691-contractual-interest-precedent-lost.html plus lots of discussion, including more detail on what I've written next)

 

There is another case which is important - Westdeutsche Bank v Islington BC (1996) - in this case, the court ruled that it is possible to award CI under common law but only in cases of fraud or breach of fiduciary relationship. THere was a minority view that CI could be awarded in all cases.

 

THe importance of Sempra is that it upholds this minority view - ie that a court may award CI even in cases where there is no fraud or breach of fiduciary duty.

 

The grounds for claiming CI cannot be based on mutuality (Halliday saw to that) but on the grounds that Cap1 (in your case) took or kept money that rightly belonged to you and, in order for you to replace this money, you would have had to borrow it from your bank and that would have incurred CI (at the bank's authorised borrowing rate). In order to put you back in the situation you were before all this happend, the court should therefore award you CI.

 

THe basis of the 8% s69 interest is also to compensate you for not having had access to the money - in other words, if you claim CI on the above grounds then you should not claim s69 interest as well.

 

However, there is another common msiunderstanding about all of this stuff relating to interest. Cap1 levied charges on your account and they charged you interest at their normal APR on these charges - that is also money that properly belongs to you that Cap1 took/kept. Some people refer to this interest as CI - hence the confusion (on another thread the term 'demonstrable interest' or DI was coined to describe this interest) - you are entitled (IMO) to claim DI without any reference to Halliday, Westdeutsche or Sempra as it is your money taken unlawfully by Cap1. Therefore, you can claim CI as described above on that as well for the same reasons - you would have had to borrow money at the bank's rate compounded to replace it.

 

If this doesn't tie up with the details of your claim, you could modify using the N244 you were going to submit anyway.

 

I hope this helps.