Help with drafting Particular of Claim

[brown1950]

Need help with drafting a POC for an offset by M&S Bank

History :-

In 1991 obtained an M&S chargecard for use only within M&S stores. Have a copy of my original application and
Terms / Conditions.

In 2003 M&S sent me a new credit card (but no new / agreement /terms &conditions) New credit card can be used worldwide.

In 2008 owing to redundancy i entered into an agreement to pay £30 a month with M&S suspending interest charges.

Continued to pay the £30 a month until 2013 when i claimed a PPI refund via FOS
In 2014 received PPI settlement from M&S less £2,000 being the amount still owing on the credit card.

I challenged M&S on this offset and they advised the offset was in accordance with their Credit Card T&C's !
When i pointed out to M&S i have no agreement / T&C's for the credit card they then said offset was in
accordance with the 1991 conditions !

On looking at the 1991 conditions i cannot see any reference to a clause allowing any offset !

I have now come to the end of trying to resolve this with M&S accordingly i am looking to take them to
Salford CMC small claims and would appreciate any help with drafting a Particulars of Claim against M&S Bank

[nemesis45]

Re: Help with drafting Particular of Claim

Hi,

You must first address a " Letter Before Action".

This must layout your " complaint and state what remedy you seek from the bank so that you not start court action you give them 14 days from the date on the LBA to respond, no response or an inadequate one then you issue the claim.

nem

[brown1950]

Re: Help with drafting Particular of Claim

nemesis45

Many thanks for your reply.

Have sent M&S 'letter before action' giving them 14 days which expired earlier this week.

[brown1950]

Re: Help with drafting Particular of Claim

Anyone able to help ? Thank You

[nemesis45]

Re: Help with drafting Particular of Claim

Now you draft your claim!!
Do a draft and post here there will be plenty of help for you.

nem

[brown1950]

Re: Help with drafting Particular of Claim

Have drafted the following Particulars of Claim :-

PARTICULARS OF CLAIM

1) The Claimant entered into a 'Storecard ' agreement with the defendant on or about 15th June 1991. The Storecard
could only be used within M&S stores.

2) In October 2003 the defendant sent to the Claimant a new ' Credit Card' This card could be used to purchase goods
worldwide.

3) The Claimant received on 26th September 2014 PPI Compensation from the defendant less an offset amount of £

As the original 'Storecard' terms & conditions from 1991 does not allow the defendant any offset and as no agreement
exists for the 2003 Credit Card the Claimant considers the PPI offset by the defendant illegal.

The Claimant claims :-

A) £ being the amount offset by the defendant.

B) £ 24% interest in Restitution as per Sempra Metals v Inland Revenue Commissioners

C) £ Interest under Section 69 of the County Courts Act 1984 at the rate of £ per annum on the amount claimed
(daily rate of £ until judgement or sooner payment.

D) £ Court Costs

I believe that the facts stated in these particulars are true.

Comments would be appreciated.

[brown1950]

Re: Help with drafting Particular of Claim

Anyone able to help with my POC ? Thank You.

[MissFM]

Re: Help with drafting Particular of Claim

Hi Brown1950,

Don't worry, you will get fantastic help here but you may need to be a little more patient than usual it being Easter time. :tinysmile_twink_t2:

Are you aware of this, btw?

http://legalbeagles.info/santander-c...ew-misc-14-cc/

[brown1950]

Re: Help with drafting Particular of Claim

Hi Brown1950,

Don't worry, you will get fantastic help here but you may need to be a little more patient than usual it being Easter time. :tinysmile_twink_t2:

Are you aware of this, btw?

http://legalbeagles.info/santander-c...ew-misc-14-cc/

Thanks for your reply. Yes am aware of the Santander v Mayhew judgement. Sent copy to M&S and guess what ?
No comment from them ! Will use this judgement as part of my case against M&S.

[brown1950]

Re: Help with drafting Particular of Claim

Should also be noted The Financial Conduct Authority (FCA) has issued guidance for businesses handling PPI complaints.

Part of the guidance states :-

Where the complainant's loan or credit card is in arrears the firm may IF IT HAS THE CONTRACTUAL RIGHT TO DO SO, make
a set off to reduce the loan or credit card arrears.

I am of the opinion M&S do not have the contractual right to set off this particular PPI refund against the credit card arrears.

Any help with my POC would be appreciated.

[EXC]

Re: Help with drafting Particular of Claim

Should also be noted The Financial Conduct Authority (FCA) has issued guidance for businesses handling PPI complaints.

Part of the guidance states :-

Where the complainant's loan or credit card is in arrears the firm may IF IT HAS THE CONTRACTUAL RIGHT TO DO SO, make
a set off to reduce the loan or credit card arrears.

I am of the opinion M&S do not have the contractual right to set off this particular PPI refund against the credit card arrears.

Any help with my POC would be appreciated.

The thing is regulator guidance isn't usually actionable.

Offsetting PPI compensation where there's no explicit provision for it in the agreement is a bit of a grey area.

The regulator’s guidance to businesses handling PPI complaints says that where the consumer’s loan or credit card is in arrears, the business may use the compensation to reduce the consumer’s loan or credit card balance if it has the contractual right to do so.

Some loan and credit card contracts do include provision for this, but based on the cases we have seen, many do not. Where a contract does not include this provision, we take the view that this does not necessarily mean a business does not have the right to use some of the consumer’s compensation to deal with their arrears. In these situations, we will consider the wider legal position.

We take into account the law, which allows people to “set off” closely connected debts. This means that one person (A) can deduct from a debt that they owe another person (B), money which that person (B) owes to them (some businesses also refer to the “banker’s right of set off”, which is simply an expression of the legal right of set off – which may or may not apply depending on the circumstances).

http://www.financial-ombudsman.org.u...i/redress.html

[brown1950]

Re: Help with drafting Particular of Claim

EXC

Many thanks for your post.

Yes would agree this particular subject is indeed a 'grey' area. To summarize what we have is :-

a) M&S 1991 charge card - Application form with no prescribed terms - Not enforceable
b) M&S 2003 credit card - No signed agreement or terms & conditions .
c) M&S have set off PPI compensation against CC arrears on a charge card which is not enforceable.

As FOS do not judge on contract disputes i am left therefore with court action. As M&S had no contractual right to
set off i wonder what defence could they use in Court ? Some old 1850 law on Bank set- off ??? Would M&S be considered
to be a Bank ?

Your comments would be appreciated.

[brown1950]

Re: Help with drafting Particular of Claim

As i am now prepared to take legal action against M&S would somebody kindly comment on my POC ?
Is this good to go ? or does it need amending ?

[EXC]

Re: Help with drafting Particular of Claim

@nemesis45 is your man, I've given him a shout - thanks nem.

[nemesis45]

Re: Help with drafting Particular of Claim

As i am now prepared to take legal action against M&S would somebody kindly comment on my POC ?
Is this good to go ? or does it need amending ?

I'll be home later this evening and will help all I can.

nem

- - - Updated - - -

As i am now prepared to take legal action against M&S would somebody kindly comment on my POC ?
Is this good to go ? or does it need amending ?

I'll be home later this evening and will help all I can.

nem