Capital One MCOL questions - help please!

mojo-jojo_2

I have just started my MCOL against Cap one and I have a few questions:

in the 'particulars of claim' box, do I need to put it all in 'legalese' or would the following suffice?

'The claimant claims that all late payment/over limit and default fees added to their account number **** **** **** **** between the dates of 03/01/2002 and 03/07/2006 and totaling £338.00 do not reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate (supported by The Office of Fair Trading's April 2006 statement into cerdit card charges).
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 03/01/2002 to 01/09/2009 of £120.16 and also interest at the same rate up to the date of judgment or
earlier payment at a daily rate oF 0.022%'.

Also......which address do I put for the claim to be sent to? The address that has been dealing with my claim was Po Box 5283, Nottingham, NG2 3YG, however I read somewhere that you can't send an MCOL to a Po Box...is this right? Any idea which address I should use?

Any shove in the right direction would be great

mjjj x

esmerellda

Legalese isnt necessary but probably be much better doing a proper N1 moneyclaim than MCOL. just a suggestion below.



:

PARTICULARS OF CLAIM

1. This claim is brought following publication in April 2006 of the OFT document - Calculating fair default charges in credit card contracts - A statement of the OFT's position which clearly states – “[penalty charges should]:“reflect a reasonable pre-estimate of the net limited additional administrative costs which occur as a result of the specific breaches of contract and which can be identified with reasonable precision” On 21st February 2006 the OFT stated ''Following consultation with eight leading credit card issuers we have concluded that default charges in most credit card contracts across the sector are highly unfair in terms of the Unfair Terms in consumer Contracts Regulations (UTCCRs) and therefore unlikely to be enforceable against consumers''.

2. The Claimant operated the account number (s) xxxxxxx ("the Account(s)") with the Defendant which was operated between approximately xx/xx/xxxx and xx/xx/xxxx(present day if still open)

3. During the period in which the Account (s)operated the Defendant levied disproportionate charges to the Account(s) in respect of breaches of contract by the Claimant and also applied interest on the charges levied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms and conditions of the contract between itself and the Claimant. There was no negotiation on these terms.

4. A detailed schedule of charges levied is enclosed with this claim.

5. It’s the claimant’s contention that the defendants charges are a disproportionate penalty , do not reflect a true representation of actual loss and therefore are unenforceable in common law and statute.

6. The claimant quotes the following Common law Principles (Penalty charges are irrecoverable at common law). The precedents for this were:
a) Dunlop Pneumatic v New Garage [1915] AC 79. Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges. They are; 1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach. 2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

b)Murray v. Leisure play [2005] EWCA Civ 963 “English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

c) CMC Group Plc And Others V Zhang [2006] EWCA Civ 408. “'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

7. Furthermore , or in the alternative , penalty charges are also contrary to: The Unfair Terms in Consumer Contracts Regulation 1999 No 2083 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfill his obligation to pay a dis-proportionately high sum in compensation .Further , or in the alternative , if the defendant states that there was no breach of contract and that the charges are for a service, then it is the Claimants belief that the defendants have attempted to restructure accounts in order to present events of default spuriously as additional services. However The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just their mechanism. For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.


8. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ xxx.xxx(charges total) and any interest charged thereon;

b) Any Court costs incurred by the claimant;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of charges to (the date you are issuing the claim) of £xxx.xx and also interest at the same rate up to the date of judgment or settlement at a daily rate of £xx.xx per day

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Don't forget to sign and date the forms.

You will need to submit THREE copies of this form, each with your full schedule of charges attached, and your fee payment (or exemption form) to your local county court.

Downloadable N1 form in pdf (note: You can not save data on this form, please print 3 copies, one for the court, one for the defendant and one for yourself, before closing).http://www.hmcourts-service.gov.uk/c...ms/n1_0102.pdf
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The butterfly counts not months but moments, and has time enough.
~ Rabindranath Tagore

DaisyDaisy82

Hi

Keep me posted how this goes.

I had an acknowledgement from the FOS about 2 weeks ago saying it should all be resolved within two months.

Just thought it might be interesting to compare the processes and results for each.