Example POCs with CI - for discussion - C/Card

[Amethyst]

..............

PARTICULARS OF CLAIM

1. The Claimant had an account xxxxxxxxxxxxxxxxxxxxxxxx ("the Account") with the Defendant which was opened on or around DATE and closed on or around DATE.

2. During the period in which the Account was 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. 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 list of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:

a) 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 not intended to represent or 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.

b) I find the charges listed on your statement are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to me, these charges constitute a “penalty charge� as the amounts bear no relation to the actual charges incurred by you. I have been advised to remind you that such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge.

c) The defendant concealed the nature of their charges and lead the claimant to mistakenly continue to pay the unlawful charges on the basis that they were lawful.

d) The claimants right of action has been deliberately concealed from him by the defendant.

e) The defendant continues to conceal both the nature of their unlawful charges and account holders rights to recover unlawful charges.

See Continuation sheet attached

f) Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

5. Accordingly the Claimant claims:

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

b) a declaration from this honourable court that the term of the contract leading to the application of the charges is unenforceable;

d) Court costs;

e) Interest at the contractual Rate of 22.1% per annum as set out on the attached list of charges as of the DATE.

f) The Claimant also claims interest at a rate of 22.1%, from the date of each transaction to DATE of £xxx.xx, as set out in the attached list of charges. The claimant further claims interest at the same rate up to the date of judgment or earlier payment, at a daily rate of 0.055% per day.

g)The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants purchase rate that would be applied under the terms of the above mentioned account.

[iancognito]

I assume the contractual rate of interest would be the one in effect at the time the charges were incurred? what would we (I ) do about a varying rate over the term of the account, i.e. the 7-9% they charge when trying to entice you to take a card, the 15% they put that up to after your 'introductory' rate, then the 29%+ they increase it to when you fail to make a payment on time (or is that just me)?????

[Simian]

No Ian - have another try at reading my sticky - slowly !!!

Because we are charging the bank interest, as per our contract, then we charge it at the rate in force at the time of our claim. That is the current rate.

Yes, we are able to claim back the apportioned interest which they charged us on the penalties, but that is no longer affected by interest rates. If they charged us £12 interest in a particular month, and £3 of that was due to penalties, then we claim £3. It doesn't matter anymore what the actual interest rate was back then. We were charged £3 - end of. This is generally being referred to as "debited" CI.

The CI which we are going to add to all this is not interest which they have charged us - it is interest which we are about to charge them for having this money all this time. So it is charged at the current rate, as per our contract. This is generally referred to as "Added" or "Extra" CI.

[crisbian]

There's a flaw in your argument with CI. The CI should reflect the amount being charged at present. i.e. If the CI was 19.9% when you opend and account and is now 29.9%, then by right should and can do it at 29.9% for whole period of the debt as interest incurred through the CI and the debt have all been charged at 29.9%. this is what I did with HFC and I won....

[Simian]

Yes Crisbian, I agree with that.

The only interest charged at previous rates is the interest which we were charged by the bank earlier, on our balance. The CI which we are now about to charge the bank - in reciprocity - is charged at the current contractual rate which, by definition, is agreed between us and the bank.

[Glenn UK]

IMHO

Its also worth adding to the POC that the bank are your fiduciary and have breached their responsibilities in this respect.

something else to argue about when/if the time comes.

As i understand it it alos opens up the Account of proifts issues somewhat too.

JMHO

Glenn

[Simian]

Yes, indeed, Glenn. The AoP aspect is becoming an interesting one, and is looking likely to supersede the CI M & R arguments, leaving the old CI arguments as alternatives.

[ditto]

Hello,

I've been having a look throu the posts on this forum for a while, but haven't posted before now.

Simian - I don't think reciprocity in contract means what you think it does. On what basis do you think your allowed to apply the same terms to the bank that they've applied to you? I think that reciprocity in contract actually means that if you fulfill your end of the deal your entitled to expect them to reciprocate by fulfilling thier end.

[Simian]

I'm sorry, Ditto, but I see reciprocity as an equal expectation of fulfilment, as you do. However, I also consider this equal expectation to apply to fairness and balance of a contract from the outset. Both (or all) parties to a contract share an agreement to all terms of the contract, unless specifically stated otherwise within it. An expectation that the contract is drawn up fairly from the outset seems reasonable to me.

I do not consider it reciprocal if one party may exercise a right to charge the another a certain rate of interest on money debited without authority, but the other party may not reciprocally do so to the first party in the same circumstances.

[Glenn UK]

As it goes its my understanding that the UTCCR actually gives examples of terms which are likely to be unfair.

whilst this doesn't mean that an unfair term has to be balanced by a 'reciprocal' term, it does mean that if a term brings about a significant imbalance in the consumers rights then the term is unfair and that a court could be asked to bring a judgement to this effect.

Of course the bank could accept the imbalance and counter that by allowing a reciprocal term to be applied, of course this is not going to happen unless someone makes the points in their POC and even then only if it gets to court :-)

Glenn

[Simian]

Thanks Glenn - yes - "fairness and balance" are the newer descendants of "mutuality and reciprocity," now, I believe, as they are literally backed up by the UTCCR.

I believe Phoenix managed to get some of his contract terms altered, didn't he ?

[Guest]

As this subject appears to be blossoming again, I would like to temper the enthusiasm with a different perspective and point of view. This is not to say either side is right or wrong, but open to interpretation and, along with the law, constantly evolving and changing.

I understand the principle upon which these claims are made and the reason for statutory interest existing and therefore the logic behind making a contractual compound interest claim. However, I must take issue with the concept itself and the understanding being expressed here about contracts and in particular mutual obligation.

We are claiming that we have been subjected to an unfair penalty for a breach of contract, our breach in fact, which resulted in the bank levying a charge. It has been ruled that charges that exceed what is reasonable are penalties.

CPR 16.3 and 16.4 covers interest and the claiming of it and of course we are entitled to claim interest at any rate, but the claim must have some basis. In order to claim interest at 29.9% we must be able to show that we have lost 29.9% return on the money.

It is simply not credible to assume that, had the bank not taken a sum in charges, we would have been able to earn 29.9% (or higher) interest on it and therefore we are entitled to claim that back on the whole sum for the entire period we are claiming for.

There is no legal basis for the “mutuality and reciprocity� argument. It is my opinion that the banks taking these charges and charging this interest rate cannot be interpreted as us lending them money.

Mutuality of contract is the reciprocal understanding or agreement between parties that is a requirement in the creation of a legally enforceable contract. It means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other. Neither party is bound unless both are bound. It does not mean that you are entitled to charge the other party just because they are able to charge you. Were that the case then you would also be obliged to provide your bank with chequebooks, credit cards, loans, clearing facilities along with all the other things that we expect from banks.

In Bank contracts, the Bank has a right to impose interest at the unauthorised rate. This is what we agree to when we enter into the contract. There is no right in the contract for us to receive interest at anything other than the published rate on credit balances. Any right to interest must be found under the common law.

Regarding the Account of Profits agument, this could get hugely complex. See for example Esso Petroleum Co Ltd v. Niad Ltd [2001] Ch D and A-G v. Blake [2001] 1 AC 268 where this is explained in more detail before you consider using this argument.

In A-G v Blake, an account of profits was described as

"An account of profits will be appropriate only in exceptional circumstances. Normally the remedies of damages, specific performance and injunction, coupled with the characterisation of some contractual obligations as fiduciary, will provide an adequate response to a breach of contract. It will be only in exceptional cases, where those remedies are inadequate, that any question of accounting for profits will arise. No fixed rules can be prescribed. The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. A useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit."

If you choose this course of action you are moving away from what is a relatively straightforward breach of contract claim (our breach too, remember) and into an area of law concerning the award of damages, both compensatory and exemplary, which is going to be tricky and could prove very expensive.

Bear in mind also that restitution does not necessarily mean recovery of all gains made by the Defendant. Certain other factors are relevant to the measure of recovery. Where the Defendant made a substantial contribution, to which the Claimant was not entitled, it is conceivable that the Claimant will only recover the value of that which was taken from him or that profits will be apportioned or that the defendant will receive quantum meruit for his contribution (Boardman v Phipps [1967] 2 AC 46 [32].) For example, the bank will have made profit with or without your money and unless you are George Soros, what money you have in the bank will have made little or no difference to their overall profit.

If you wish to begin a claim for exemplary damages, then this would appear to be the way to do it - but should you lose, you will lose a great deal more than a few extra pounds in interest. A claim such as this will not be heard on the Small Claims Track, irrespective of the value of the claim.

Initially you will need to convince the Court that you are entitled to the remedy of an account of profits from what is your breach of contract. In itself, no mean feat. Then you will need to persuade the Court that subsequent to your breach of contract the charges levied constitute unjust enrichment to the bank and that the measure of damages is not only the loss to you, the contract breaching party, but also the gain to the enriched party.

Finally, crisbian for completeness we should not talk about winning these claims, to my knowledge nobody has won anything. There has yet to be a contest and if there is no contest then there is no winning or losing - thus far the banks have disposed of the litigation by paying out the claim prior to any hearing. You may have been paid the rate of interest that you claimed, but you did not "win" that rate of interest.

[Simian]

CPR 16.3 and 16.4 covers interest and the claiming of it and of course we are entitled to claim interest at any rate, but the claim must have some basis. In order to claim interest at 29.9% we must be able to show that we have lost 29.9% return on the money.

It is simply not credible to assume that, had the bank not taken a sum in charges, we would have been able to earn 29.9% (or higher) interest on it and therefore we are entitled to claim that back on the whole sum for the entire period we are claiming for.
Is it not sufficient to be able to demonstrate that we were unlawfully deprived of the opportunity to earn that interest on our money ? Or to be able to demonstrate that, in order to access these moneys - to which we always had a lawful right - we would have had to borrow it from the bank at their unauthorised borrowing rate ?
There is no legal basis for the “mutuality and reciprocity� argument. It is my opinion that the banks taking these charges and charging this interest rate cannot be interpreted as us lending them money.
Authorised borrowing and lending are the mutually-arranged actions of the contract, yes. But unauthorised borrowing or lending are not, surely. The bank, and the contract, may refer to our unauthorised borrowing as their lending us money, but as this is not authorised, then it is no more permitted than the penalties are, IMO. Yet, they not only allow us to access this unauthorised money, they charge us a penalty for having done so, and a high interest rate on it as well. We are simply doing the same for their unauthorised retention of our money. The difference is that we are simply asking for it to be returned to us, and to be restored to the position we would have been in, had the money not been retained originally. Additionally, we are not guilty of charging them any excessive penalties, as they did us, for this unauthorised retention.
Mutuality of contract is the reciprocal understanding or agreement between parties that is a requirement in the creation of a legally enforceable contract. It means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other. Neither party is bound unless both are bound. It does not mean that you are entitled to charge the other party just because they are able to charge you. Were that the case then you would also be obliged to provide your bank with chequebooks, credit cards, loans, clearing facilities along with all the other things that we expect from banks.
In order to fulfil our part of the contract, we are obliged to make funds available, and arrange payments by various means. This includes direct branch inpayments, telephone and online banking, loss of interest during monetary transfers (both by cheque and online electronic transfers, and even cash inpayments sometimes.) The bank is not obliged to call on us to collect money, or pay a portion of our internet access/phone bill. So we have a balance, I believe. Where is the balance in the interest rates being charged ?
In Bank contracts, the Bank has a right to impose interest at the unauthorised rate. This is what we agree to when we enter into the contract. There is no right in the contract for us to receive interest at anything other than the published rate on credit balances. Any right to interest must be found under the common law.
Then this must be an unfair contract term if it confers a right on one party but not the other.
Bear in mind also that restitution does not necessarily mean recovery of all gains made by the Defendant. Certain other factors are relevant to the measure of recovery. Where the Defendant made a substantial contribution, to which the Claimant was not entitled, it is conceivable that the Claimant will only recover the value of that which was taken from him or that profits will be apportioned or that the defendant will receive quantum meruit for his contribution (Boardman v Phipps [1967] 2 AC 46 [32].) For example, the bank will have made profit with or without your money and unless you are George Soros, what money you have in the bank will have made little or no difference to their overall profit.
But the idea of AoP is to ascertain what profit they actually are expected to have made fro mour little bit of money. This is done by finding the overall company profit as a percentage, and simply applying it to our charges in disgorgement. Any mitigating expenditure will already have been accounted for.
If you wish to begin a claim for exemplary damages, then this would appear to be the way to do it - but should you lose, you will lose a great deal more than a few extra pounds in interest. A claim such as this will not be heard on the Small Claims Track, irrespective of the value of the claim.
This then, will bring the risk of being asked for Standard Disclosure ?
Initially you will need to convince the Court that you are entitled to the remedy of an account of profits from what is your breach of contract. In itself, no mean feat. Then you will need to persuade the Court that subsequent to your breach of contract the charges levied constitute unjust enrichment to the bank and that the measure of damages is not only the loss to you, the contract breaching party, but also the gain to the enriched party.
Yes, I agree it won't be an easy task, but who said it would be ? I do know this approach is being discussed elsewhere, and progress is being made, I believe.
Finally, crisbian for completeness we should not talk about winning these claims, to my knowledge nobody has won anything. There has yet to be a contest and if there is no contest then there is no winning or losing - thus far the banks have disposed of the litigation by paying out the claim prior to any hearing. You may have been paid the rate of interest that you claimed, but you did not "win" that rate of interest.

I do agree with the idea that "Settled" is more correct than "Won" - but I'm not so sure it's correct to say there's been no contest. No trial maybe, but the negotiation from Prelim through to settlement on the steps in my view is a contest. The claim is actually "contested" by the banks during this process - so in many respects, when settlement is finally made, I believe the claimant has some right to say they've "won," if they so wish. They have won a settlement, IMHO.

[Glenn UK]

As this subject appears to be blossoming again, I would like to temper the enthusiasm with a different perspective and point of view. This is not to say either side is right or wrong, but open to interpretation and, along with the law, constantly evolving and changing.

I understand the principle upon which these claims are made and the reason for statutory interest existing and therefore the logic behind making a contractual compound interest claim. However, I must take issue with the concept itself and the understanding being expressed here about contracts and in particular mutual obligation.

We are claiming that we have been subjected to an unfair penalty for a breach of contract, our breach in fact, which resulted in the bank levying a charge. It has been ruled that charges that exceed what is reasonable are penalties.

CPR 16.3 and 16.4 covers interest and the claiming of it and of course we are entitled to claim interest at any rate, but the claim must have some basis. In order to claim interest at 29.9% we must be able to show that we have lost 29.9% return on the money.

It is simply not credible to assume that, had the bank not taken a sum in charges, we would have been able to earn 29.9% (or higher) interest on it and therefore we are entitled to claim that back on the whole sum for the entire period we are claiming for. Speaking for myself i am not presuming i could have earned this or indeed any other specific rate.

There is no legal basis for the “mutuality and reciprocity” argument. It is my opinion that the banks taking these charges and charging this interest rate cannot be interpreted as us lending them money. I agree we haven't leant them money they have unlawfully taken it from us.

Mutuality of contract is the reciprocal understanding or agreement between parties that is a requirement in the creation of a legally enforceable contract. It means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other. Neither party is bound unless both are bound. It does not mean that you are entitled to charge the other party just because they are able to charge you. Were that the case then you would also be obliged to provide your bank with chequebooks, credit cards, loans, clearing facilities along with all the other things that we expect from banks.

In Bank contracts, the Bank has a right to impose interest at the unauthorised rate. I disagree the unauthorised rate is in effect a further penalty charged in terrorem upon our breach of contract. It is effect a cloaking term which allows the defendant to charge a further penalty upon our breach of contract. edit nearly forgot the bank has also breached the terms of the contract by acting outside of the law have they not? This is what we agree to when we enter into the contract. There is no right in the contract for us to receive interest at anything other than the published rate on credit balances. Any right to interest must be found under the common law.

Regarding the Account of Profits argument, this could get hugely complex. See for example Esso Petroleum Co Ltd v. Niad Ltd [2001] Ch D and A-G v. Blake [2001] 1 AC 268 where this is explained in more detail before you consider using this argument.

In A-G v Blake, an account of profits was described as

"An account of profits will be appropriate only in exceptional circumstances. Normally the remedies of damages, specific performance and injunction, coupled with the characterisation of some contractual obligations as fiduciary, will provide an adequate response to a breach of contract. It will be only in exceptional cases, where those remedies are inadequate, that any question of accounting for profits will arise. No fixed rules can be prescribed. The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. A useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit."

If you choose this course of action you are moving away from what is a relatively straightforward breach of contract claim (our breach too, remember) and into an area of law concerning the award of damages, both compensatory and exemplary, which is going to be tricky and could prove very expensive. agreed

Bear in mind also that restitution does not necessarily mean recovery of all gains made by the Defendant. Certain other factors are relevant to the measure of recovery. Where the Defendant made a substantial contribution, to which the Claimant was not entitled, it is conceivable that the Claimant will only recover the value of that which was taken from him or that profits will be apportioned or that the defendant will receive quantum meruit for his contribution (Boardman v Phipps [1967] 2 AC 46 [32].) For example, the bank will have made profit with or without your money and unless you are George Soros, what money you have in the bank will have made little or no difference to their overall profit. disagreed, the bank makes substantial profits on the basis of their unlawful removal of money from their customer accounts, to consider a single charge as insignificant is IMHO missing the point. although of course a court may agree with your viewpoint.

If you wish to begin a claim for exemplary damages, then this would appear to be the way to do it - but should you lose, you will lose a great deal more than a few extra pounds in interest. A claim such as this will not be heard on the Small Claims Track, irrespective of the value of the claim.

Initially you will need to convince the Court that you are entitled to the remedy of an account of profits from what is your breach of contract. In itself, no mean feat. Then you will need to persuade the Court that subsequent to your breach of contract the charges levied constitute unjust enrichment to the bank and that the measure of damages is not only the loss to you, the contract breaching party, but also the gain to the enriched party.

Finally, crisbian for completeness we should not talk about winning these claims, to my knowledge nobody has won anything. There has yet to be a contest and if there is no contest then there is no winning or losing - thus far the banks have disposed of the litigation by paying out the claim prior to any hearing. You may have been paid the rate of interest that you claimed, but you did not "win" that rate of interest.

Agreed, before any interest or AoP can be considered the court has to decide if the claimant is entitled to recover the charges full stop and there's the rub, if the claimant asks for stat interest or is offered stat interest plus the charges they have to decide whether to accept and stop action or whether to refuse and proceed to court.

The only course of action where the latter action can be considered in any way sensible is if the claim for CI or AoP is included is if a claim for unlawful charges has to be heard at the same time. The question then becomes whether the claimant blinks first or the bank does. Blinking first could become very expensive.

[Guest]

CPR 16.3 and 16.4 covers interest and the claiming of it and of course we are entitled to claim interest at any rate, but the claim must have some basis. In order to claim interest at 29.9% we must be able to show that we have lost 29.9% return on the money.

It is simply not credible to assume that, had the bank not taken a sum in charges, we would have been able to earn 29.9% (or higher) interest on it and therefore we are entitled to claim that back on the whole sum for the entire period we are claiming for.
Is it not sufficient to be able to demonstrate that we were unlawfully deprived of the opportunity to earn that interest on our money ? Or to be able to demonstrate that, in order to access these moneys - to which we always had a lawful right - we would have had to borrow it from the bank at their unauthorised borrowing rate ?

You could demonstrate that you were unlawfully deprived of the opportunity to earn interest your money, but how do you propose to demonstrate that you can earn a rate of 29.9%? You would be lucky to get a fraction of that even in the most audacious of investments. What access are you referring too? You only pay the unauthorised rate for a few days at a time - to attempt to apply that to six years worth of charges is not credible.

There is no legal basis for the “mutuality and reciprocity� argument. It is my opinion that the banks taking these charges and charging this interest rate cannot be interpreted as us lending them money.
Authorised borrowing and lending are the mutually-arranged actions of the contract, yes. But unauthorised borrowing or lending are not, surely. The bank, and the contract, may refer to our unauthorised borrowing as their lending us money, but as this is not authorised, then it is no more permitted than the penalties are, IMO. Yet, they not only allow us to access this unauthorised money, they charge us a penalty for having done so, and a high interest rate on it as well. We are simply doing the same for their unauthorised retention of our money. The difference is that we are simply asking for it to be returned to us, and to be restored to the position we would have been in, had the money not been retained originally. Additionally, we are not guilty of charging them any excessive penalties, as they did us, for this unauthorised retention.

You are asking for a great deal more than to be "restored to the position we would have been in, had the money not been retained originally" It is a well established legal principle that where a party sustains a loss caused by a breach of contract by the other party to the contract, the innocent party is, so far as money can do it, entitled to be placed in the same situation, via the payment of damages incurred, as if the contract had been performed (i.e. had there been no breach) Robinson v. Harman (1848) 1 Ex. 850 at 855. How do you reconcile a claim of 29.9% with this? You have not lost this money. It has not been charged to you for six years, yet you attempt to claim it.
Mutuality of contract is the reciprocal understanding or agreement between parties that is a requirement in the creation of a legally enforceable contract. It means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other. Neither party is bound unless both are bound. It does not mean that you are entitled to charge the other party just because they are able to charge you. Were that the case then you would also be obliged to provide your bank with chequebooks, credit cards, loans, clearing facilities along with all the other things that we expect from banks.
In order to fulfil our part of the contract, we are obliged to make funds available, and arrange payments by various means. This includes direct branch inpayments, telephone and online banking, loss of interest during monetary transfers (both by cheque and online electronic transfers, and even cash inpayments sometimes.) The bank is not obliged to call on us to collect money, or pay a portion of our internet access/phone bill. So we have a balance, I believe. Where is the balance in the interest rates being charged ?

This is chalk and cheese. Contracts are not necessarily symmetrical, that is to say, the obligations that rest on each party are not identical for each party, you seem to want all of the good bits and none of the bad bits.

In Bank contracts, the Bank has a right to impose interest at the unauthorised rate. This is what we agree to when we enter into the contract. There is no right in the contract for us to receive interest at anything other than the published rate on credit balances. Any right to interest must be found under the common law.
Then this must be an unfair contract term if it confers a right on one party but not the other.

Then it is within your power to renegotiate the contract or to refuse to agree to the contract and not only that, the test for an unfair term is not as clear cut. Again, these contracts are not symmetrical as the two parties to the contract are not symmetrical.

Bear in mind also that restitution does not necessarily mean recovery of all gains made by the Defendant. Certain other factors are relevant to the measure of recovery. Where the Defendant made a substantial contribution, to which the Claimant was not entitled, it is conceivable that the Claimant will only recover the value of that which was taken from him or that profits will be apportioned or that the defendant will receive quantum meruit for his contribution (Boardman v Phipps [1967] 2 AC 46 [32].) For example, the bank will have made profit with or without your money and unless you are George Soros, what money you have in the bank will have made little or no difference to their overall profit.
But the idea of AoP is to ascertain what profit they actually are expected to have made fro mour little bit of money. This is done by finding the overall company profit as a percentage, and simply applying it to our charges in disgorgement. Any mitigating expenditure will already have been accounted for.

This is a very simplistic view of an Account of Profits and not one that a court would take. If you have billions of pounds at your disposal then you are able to secure a much better return on any investments than if you have just a few thousand. It is not enough to simply do some simple arithmetic because the use to which you could put your money versus a banks billions cannot be so simply compared.


If you wish to begin a claim for exemplary damages, then this would appear to be the way to do it - but should you lose, you will lose a great deal more than a few extra pounds in interest. A claim such as this will not be heard on the Small Claims Track, irrespective of the value of the claim.
This then, will bring the risk of being asked for Standard Disclosure ?

Absolutely yes, but it moves you away from the relatively simpl and established tennet that the law is clear on liquidated damages and into a whole new area - notwithstanding Standard Disclosure you could lose on a myriad of other more complex points of law.

Initially you will need to convince the Court that you are entitled to the remedy of an account of profits from what is your breach of contract. In itself, no mean feat. Then you will need to persuade the Court that subsequent to your breach of contract the charges levied constitute unjust enrichment to the bank and that the measure of damages is not only the loss to you, the contract breaching party, but also the gain to the enriched party.
Yes, I agree it won't be an easy task, but who said it would be ? I do know this approach is being discussed elsewhere, and progress is being made, I believe.
Finally, crisbian for completeness we should not talk about winning these claims, to my knowledge nobody has won anything. There has yet to be a contest and if there is no contest then there is no winning or losing - thus far the banks have disposed of the litigation by paying out the claim prior to any hearing. You may have been paid the rate of interest that you claimed, but you did not "win" that rate of interest.
I do agree with the idea that "Settled" is more correct than "Won" - but I'm not so sure it's correct to say there's been no contest. No trial maybe, but the negotiation from Prelim through to settlement on the steps in my view is a contest. The claim is actually "contested" by the banks during this process - so in many respects, when settlement is finally made, I believe the claimant has some right to say they've "won," if they so wish. They have won a settlement, IMHO.


I would liken this to a duel. The protagonists will argue shout and posture in order for one to make the other back down. This is the prelim and LBA stage - the trial is where they actually stand back to back and begin to pace before turning to fire.

So far none of the banks have had the stomach for it - and given what they stand to lose, I do not imagine they will.