Nat West Business Account

[Budgie]

Re: Nat West Business Account

Jax, I have tweaked a few bits and pieces !

Budgie





Dear Sir

Sort Code : xx-xx-xx
Request for Payment of Default Charges on Business Account Number : xxxxxxxx
xxxxxxxx T/A xxxxxxxxx

Thank you for your letter of 10 September 2008. I note that you have offered an amount of £1,332 in settlement as a gesture of goodwill and without admission of liability or error on your part. However, this does not satisfy my requirements for compensation, and therefore I must decline your offer.

Please note that in my letter of 21st July 2008 I was not making a complaint but was requesting a refund of the unlawful penalty charges levied on my account.

I am aware that terms & conditions of your account contract are unfair as the charges applied are penalty charges, which are 'to the detriment of the consumer'. The Unfair Terms in Consumer Contracts Regulations 1999 highlights these in Section 5 Clause 1.5-(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.

The charges applied to my account are disproportionate penalties and therefore unlawful and unenforceable as they are contrary to Common Law. Regardless of the wording of automated letters sent to me, these charges constitute penalty charges as the amounts bear no relation to the actual costs incurred by you.

I consider that by levying these unlawful penalty charges, you have been unjustly enriched.
You have received the benefit of what amounts to an interest free loan and have been further unjustly enriched by then being able to re-lend and reinvest money that does not belong to you at your commercial rates.

My justification for a compensatory award of compound interest follows the recent developments in the Common Law authorised in the case of Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18 July 2007.

I have recalculated my claim and now consider that you should refund all unlawful penalty charges levied on my account totaling £1,848 plus compensatory interest of £2,790.43. The overall total that I require you to refund is therefore £4,638.43. I enclose an amended schedule of the charges and compensatory interest with this letter.

I hereby allow you a further 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment. If you fail to respond, or do not respond positively within this time period, there will be no further communication from me and I shall issue a County Court claim at the expiry of this deadline.

Please do not waste my time by offering further part payments as such offers will be ignored.

I trust that we can reach agreement on this and I look forward to receiving a full and unconditional refund.

Yours faithfully

[jax007]

Re: Nat West Business Account

You are quoting Compound Interest references, but you haven't actually asked for any repayment of this in your letter.
It only appears you are asking for the charges, plus the interest you have been charged on your overdraft.

Thanks for your input PK ... much appreciated.

This letter is actually a refusal of offer ... the original request for refund did include a claim for compound interest.

Unfortunately I'm getting right confused with compound, contractual, compensatory ............!!!!!!!!!!!!!!!!!!!!

jax

[Paule]

Re: Nat West Business Account

Unfortunately I'm getting right confused with compound, contractual, compensatory ............!!!!!!!!!!!!!!!!!!!!

As you are at the pre court stage we suggest that that in your prelim and LBA you refer to the interest as 'Compensatory' whether it be at 8% or 30%.

As Statatory Interest can only be claimed once you have filed at court, and Compound interest cases can be tricky and in some cases people have gone to court to claim only the interst part as the bank have paid out the main charges part. This is rarely sucessful, I think even a precedent has been set (Budgie will confirm)

By adding the compensatory figure, you are including an interest element to your claim pre court. So in essence if they want to settle your claim early, this compensatory interest is part of your initial claim from the start

[Budgie]

Re: Nat West Business Account

...................... Compound interest cases can be tricky and in some cases people have gone to court to claim only the interst part as the bank have paid out the main charges part. This is rarely sucessful, I think even a precedent has been set (Budgie will confirm)

Yes PKea this is very true.

When you are arguing for compound interest in restitution for the wrongful gains of the Defendant you need to argue and prove that the Defendant has committed an unlawful act or made a legal mistake ( ie you need to prove that the charges are either unlawful or were wrongly applied to your account ). This is fairly easy to do, we ask them to justify their charges by disclosing their true costs. If the Defendant has settled, or made a forced payment in respect of the charges part of your claim, which you have just accepted as a part payment of your claim it then becomes virtually impossible to continue on to a Court hearing purely on the compound interest arguments. This is basically because you have accepted the return of the charges from the Defendant on a without liability / gesture of goodwill basis, so the unlawful or legal mistake aspect of the charges no longer exists as a matter for the Court to decide or make a declaration about.

It is therefore important that a Claimant does not accept any partial payment or gesture of goodill payment from the Defendant during the claim process ( ie return any cheques that they send to you, with a refusal letter ). If the Defendant makes a forced payment to your account then this can be countered by writing to the Defendant and requesting that they remove the forced payment , they will probably not remove it but at least you have evidence to prove to the Court that you have not accepted any part settlement and that you consider your entire claim remains intact and can argue the unlawful or legal mistake aspects of the charges.

Hope that makes sense.

Budgie

[jax007]

Re: Nat West Business Account

OK have gotten around to drafting the POC for this business account for SiL .... any comments, edits, deletions welcome

The bits in RED I am not sure whether they should be included or have been superseded

PARTICULARS OF CLAIM FOR BUSINESS ACCOUNT T/A

1. The Claimant has an account ("the Account") with the Defendant, which was opened on xx/xx/xx. The Account is a personal current account trading as Ruff Cutz.

2. Between July 2002 and July 2008, the Defendant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant or in respect of various purported services provided by the Defendant. The Defendant 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 Schedule of Charges is attached to these Particulars of Claim.


4. The Claimant contends that:

a) The charges debited to the Account are i) punitive in nature and constitute contractual penalties rather than liquidated damages; ii) are not a genuine pre-estimate of cost incurred by the Defendant; iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant; iv) not intended to represent or relate to any alleged actual loss, but instead unjustly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999),the Unfair Contract Terms Act 1977and the common law.

Mr Justice Smith has indicated that the relevant charges, particularised within this claim, are subject to the requirement of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”); see Office of Fair Trading v. Abbey [2008] EWHC 875 (Comm). The OFT has now written to each bank in the Test Case and indicated that it considers these specific terms to be Unfair under the Regulations.

c) Insofar as they purport to be services provided by the Defendant, the High Court on the 24th April 2008 rejected the notion that the returning of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore, the High Court held that the Defendant's charges were subject to tests of as to fairness under the Unfair Terms in Consumer Contracts Regulation 1999.

d) The terms imposing the charges levied by the Defendant are contrary to the requirement of good faith. Furthermore, the terms imposing the charges cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

e) Unlawful conduct by a party which voids or renders unenforceable a payment made under a contract can be recovered by a claimant at the contractual rate which was levied on that payment; see Hurstanger Ltd v. Wilson and another [2007] EWCA Civ 299.

5. COMPOUND INTEREST

a) The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimants case for compound interest is not reliant on any implied contractual term.

b) The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in a claim for restitution, where such an award is necessary to achieve full justice for the claimant and in the Claimant’s instant case.

c) The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors 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 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. It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.


6. Accordingly, the Claimant claims:

a) Return of the charges debited totalling £1848

b) Either
i) Interest, calculated from the date of each charge to the date of judgment or earlier settlement, at such a rate of interest, on either a compound or simple interest basis as the Court thinks fit, in it's equitable jurisdiction to impose, or alternatively
ii) Interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge to nth November 2008 totalling £xxxx and then at a daily rate of £xx.xx from
nth November 2008 to date of judgment or earlier settlement. (need to do 8% calculations here)
3) Court fees £xxx

7. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by Cheque, which should be made payable to the Claimant.

I believe that the facts stated in these particulars, comprising of two pages, plus one appendix sheet are true to the best of my knowledge.

Many thanks
jax

[jax007]

Re: Nat West Business Account

Am bumping this for someone to give me an opinion on the POC please - remember it's a business account (personal account trading as ............. ) which I think comes under the same rules as a personal account?

Thanx
jax

[Budgie]

Re: Nat West Business Account

I will have a look tomorrow Jax, sorry but been busy with a few things the last week or so.

Budgie

[jax007]

Re: Nat West Business Account

No worries Bud - I know you have your hearing on Monday and so have to prepare for that. If you don't have time then leave it till Tuesday if you like - as long as I know it's getting looked at then no probs.

Cheers hun
jax

[jax007]

Re: Nat West Business Account

Bump again for Budgie

Thanx
jax

[jax007]

Re: Nat West Business Account

Bumping ... 1 ... 2 ... 1 ... 2

[Budgie]

Re: Nat West Business Account

Thanks Jax, will sort tomorrow morning for you xx:rudolph:

[Ed1237]

Re: Nat West Business Account

Ok but UTCCR are not applicable in business claims and shold therefore be deleted.

[jax007]

Re: Nat West Business Account

Thanks Ed

Because this is a 'personal' account 'trading as' I am not sure whether it is governed by UTCCR or not??

jax

[jax007]

Re: Nat West Business Account

Bumping POC one more time ............. PLEEEASE!!

jax

[piesky]

Re: Nat West Business Account

Hello Jax. I have been reading you thread very closely as I too am just about to commence the charges reclaim process on three business (T/A) accounts with Nasty Westy. A few questions if I may. 1. Did you SAR the bank to obtain all info including statements going back to day one? and if you did, was the info forthcoming? 2. Could you share with me the preliminary letter sent in the first instance to get the ball rolling? 3. Do you have any other letters or info particularly related to business bank accounts that may prove useful?

Like you, I want to get this right first time and am following Budgies case very closely as I too have a claim to commence against Cap One. (reading up on as much relevant case law as possible)

How is your claim going, by the way? I think that my claim to Nasty Westy is going to be close to £5000 on each of the three accounts. Charges cost me my main business in the end and they even put markers on my personal account which is now dealt with from a security centre in Manchester.

Regards Piesky