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  • carcos
    carcos Posts: 11 Forumite
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    1. Sorry i don't have any links so here it is.
    Particulars of Claim
    The Claimanthasan account *****("the Account") with the Defendant which was opened on or around 2006
    1. The account was conducted on the basis of the defendant’s own standard terms and conditions.
    2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
    3. During the period in which the Accounthas been operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
    4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
    5. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
    6. A list of the charges applied is attached to these particulars of g claim.
    The Claimant contends that:

    Insofar as they might be penalties the charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
    Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

    The purported terms imposing the charges levied by the Defendant are invalid under UTCCR becausea.They are contrary to the requirement of good faith.

    b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

    • Bank accounts have become a basic essential service
    • The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
    • There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
    • These banks exercise a collective dominance in the market.
    • The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
    • The charges exceed actual costs by several thousand percent
    • They are applied unilaterally in a standard form contract without the possibility of negotiation
    • The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
    • The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
    • The customer had no means of assessing the fairness of the Charges at the time of entering the contract
    • The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
    • Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
    • The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
    • The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
    • The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
    • The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.· As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey& 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.

      11.
      In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.Accordingly the Claimant claims:
      a) the restitution of the amounts debited in respect of charges in the sum of £*********


      and
      interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 15/01/2007 to 13/11/2009
      of ******

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

      Signed:


      Date: 13/11/2009

  • luckylynda
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    Hi All,
    Just wanted to let you know that yesterday I received my bank charges back in full from HSBC just over £3200.00.
    I claimed under hardship rules and this has been going on for 25 weeks,and really going round in circles with them,when we heard the court ruling we thought that it was all over but a week later they contacted us and said they still wanted to help,their attitude changed completly.
    So I just wanted to say to people dont give up hope they might still want to help.Wishing you all the best of luck xx:santa2:
    :jI am a M.S.E. addict and proud of it.:j
  • esmerellda
    esmerellda Posts: 2,237 Forumite
    edited 15 December 2009 at 7:09PM
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    Particulars of Claim
    The Claimanthasan account *****("the Account") with the Defendant which was opened on or around 2006
    1. The account was conducted on the basis of the defendant’s own standard terms and conditions.
    2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
    3. During the period in which the Accounthas been operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
    4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
    5. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
    6. A list of the charges applied is attached to these particulars of g claim.
    The Claimant contends that:

    Insofar as they might be penalties the charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.
    Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

    The purported terms imposing the charges levied by the Defendant are invalid under UTCCR becausea.They are contrary to the requirement of good faith.

    b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

    • Bank accounts have become a basic essential service
    • The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
    • There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
    • These banks exercise a collective dominance in the market.
    • The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
    • The charges exceed actual costs by several thousand percent
    • They are applied unilaterally in a standard form contract without the possibility of negotiation
    • The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
    • The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
    • The customer had no means of assessing the fairness of the Charges at the time of entering the contract
    • The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
    • Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
    • The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
    • The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
    • The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
    • The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.· As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey& 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.

      11.
      In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.Accordingly the Claimant claims:
      a) the restitution of the amounts debited in respect of charges in the sum of £*********


      and
      interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 15/01/2007 to 13/11/2009
      of ******

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

      Signed:


      Date: 13/11/2009

    Have made the now incorrect parts red - the rest is okay and will just want strengthening and other arguments adding (such as cca 140 unfair relationships and misrepresentation and competition etc) But as it stands there is enough 'in the alternative' which already puts the onus on the bank to prove are fair under 5(1) ( http://www.legalbeagles.info/forums/showthread.php?t=19062 ) and don't apply directly to the price adequacy that it shouldnt be struck out solely on the basis of the Supreme Court Judgment.

    Hopefully that sets your mind at rest a little. Will come back to you on the AQ.

    In the banks defence was there ANY mention of the 5(1) arguments made ?
    LegalBeagles
  • carcos
    carcos Posts: 11 Forumite
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    Thanks for all the help esmerellda, really appreciated.
    and No there was no mention of the 5 (1) argument.

    Regards
  • pingchris
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    Pingchris, it would genuinely helpful if you could ask that question on another thread as this one is too important to have turned into another general discussion. Cheers.

    no problem understood
    missed direct debit charges,very odd,theres no pain so how come the big gain,i.e £39.00 for a letter
  • esmerellda
    esmerellda Posts: 2,237 Forumite
    edited 16 December 2009 at 8:38AM
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    Carcos, sorry to ask but as CAG have amended their POC since you entered the claim - is this the exact POC you entered or was it the older version ? Just double check it for me would you pls.
    LegalBeagles
  • esmerellda
    esmerellda Posts: 2,237 Forumite
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    LegalBeagles
  • chipbeck
    chipbeck Posts: 1,372 Forumite
    Combo Breaker First Post
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    esmerellda wrote: »


    Be very surprised if they even touch on historical charges esmerellda. The way I see it is that they will in effect get the banks to mend their ways (they appear to be doing this anyway) and hope everything quietens down.
  • esmerellda
    esmerellda Posts: 2,237 Forumite
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    me too (sorry) at the very least though we want to push for a competition enquiry. We've (consumers/the OFT etc) have had a good effect on the future of banking so far, we'll keep up the pressure on that, as well as trying to get some form of redress for the banks actions over the last 10 years or so. Still it will be very interesting IF they have made a decision by then.
    LegalBeagles
  • carcos
    carcos Posts: 11 Forumite
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    Hi esmerellda
    Yes this was definately my POC, i had it saved on my laptop.

    Regards
    Carcos
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