skeggsy v lloyds ** SETTLED JULY 28th **** Oh yesssssss

[skeggs885]

skeggsy v lloyds

managed to find an extended poc and had to make a start on this tngt, its taken me about 4 hours and iv run out of space so printed off what iv done and will continue the rest on a blank sheet of paper.

The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world.
The Claimant has an account (hereinafter referred to as 'the Account') with the Defendant which was opened during or around 1984.
During the period between 10/09/01 - 20/04/07 or thereabouts, the Defendant debited numerous charges to the Account, in respect of "Overdraft usage fee", "Overdraft excess fee", "Unpaid Item(s)" . The Defendant has also charged interest upon these once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as "the Charges" and all detailed within Schedule A attached hereto).
The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant.
The Claimant was only able to obtain complete details of the Charges by virtue of a Subject Access Request, served upon the Defendant, pursuant to s7 Data Protection Act 1998. The cost for said request was £10.00 and the date whereof was 29th March 2007.Details of Charges were sent to the Claimant from the Defendant on 3rd May 2007, these were not original bank statements as requested but statement entries for the period in question.
On 10th May 2007 the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said etter the Claimant made various assertions and arguments to substantiate his request, quoting relevant sources of law and evidence. Claimant concluded therein that the Charges were unlawfully levied to the Account by the Defendant.

The Claimant subsequently received a letter from the Defendant dated 21st May 2007. Therein the Defendant, informed the Claimant that the Charges would not be refunded. Further, the Defendant averred that the Charges were "fair, reasonable and transparent" and were provided for by the Defendant's "published tariff" which, it claimed,complied "with all applicable laws and regulations". Unfortunately, the Defendant, was unable to provide any legal and/or factual basis for its assertions.

A letter before action was sent on 20th May 2007 or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated 21st May 2007 or thereabouts giving its "final response" to the claim, denying a refund of inter alia the Charges, to the Claimant.
Claimant notes that the Defendant, to date, has made no attempt whatsoever to present a competent defence to the Claimant's claim.
Brief Outline Of Claim.

thats as much as I can copy, dont know how to do a link im afraid and knackered with around 6 hours of reading and typing plus being at work all day.....thats how worried I am.

anywayz, my question now is Ame, shall I do as you said with this in post above and will I have to pay again the 120.00, not amending the claim am I just extending it, my original claim via mcol was as per the templates and worded right just brief.

I await someones reply and will have to make the final decision around tuesday (do I have to take to court or just post rec del?) lesa

[Amethyst]

just to bring thread up to date - Skeggy is using different POCs to these

attached t&c's for you too - amend the POCs in the library to suit - I think they are the ones using this 2001 lloyds T&C but just double check first.

Paste up and PM me to have a look Hope it helped in chat hun. You'll be fine honestly xxx

[granby]

dont forget the utccr's
the effect of diguising the penaltys as "fee's for a service"

[skeggs885]

skeggsy v lloyds

just to bring thread up to date - Skeggy is using different POCs to these

attached t&c's for you too - amend the POCs in the library to suit - I think they are the ones using this 2001 lloyds T&C but just double check first.

Paste up and PM me to have a look Hope it helped in chat hun. You'll be fine honestly xxx

Thanks Ame, printed off your pocs from lb and will have to do on N1 again tomorrow night spent far too long on it yesterday, will paste when done, you cant save them can you thats the problem from the hmc site only print them so they cant be amended after?

thanks for the t and cs have printed off, but i really dont understand how they will help me as its clearly saying if you, go overdrawn or whatever then we will charge you, surely thats a defense for them charging me? as they have pre warned me,, just dont get that and havent got my head around the importance of the t and cs can you explain in child speak pse xx

[skeggs885]

dont forget the utccr's
the effect of diguising the penaltys as "fee's for a service"

Granby my god your up later than me! are you saying that I must put something about the utccrs in my poc to the judge? or is this to save in case of a bundle? can you tell me what it means in full, get confused with all the abbreviations, sure its something to do with unfair terms etc.

[Amethyst]

These should be fine for you to use now skeggs - just add in your dates and amounts and check through that you understand it all (more or less anyway)




PARTICULARS OF CLAIM

1. 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)

2. 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.

3. The Claimant has attached a copy of the terms and conditions that related to the account at the time of signing his contract. (exhibit B)

4. The terms and conditions of the account contract explicitly describe the charges as to be levied in instances of breaching those terms and conditions. This is highlighted on exhibit B and states:
‘Charges:If your account remains out of order future transactions may be declined, your credit limit may be reduced and the following charges may be applied to your account if you continue to break the conditions of your agreement’

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

6. 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.

7. 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.”

8. 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.


9. 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

[Amethyst]

Okay Skeggs the point of including that paragraph in the POC is to show the judge the charge is CLEARLY made by the bank for a BREACH of CONTRACT - hence is a PENALTY - as opposed to service charge which is what they are arguing.

[granby]

PARTICULARS OF CLAIM

1. 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)

2. 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.

3. The Claimant has attached a copy of the terms and conditions that related to the account at the time of signing his contract. (exhibit B)

4. The terms and conditions of the account contract explicitly describe the charges as to be levied in instances of breaching those terms and conditions. This is highlighted on exhibit B and states:
‘Charges:If your account remains out of order future transactions may be declined, your credit limit may be reduced and the following charges may be applied to your account if you continue to break the conditions of your agreement’

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

6. 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.

7. 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.�

8. 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.


9. 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

tis a mighty fine looking poc that amethist
could be a contender for a sticky
what say you?

[Amethyst]

aye say I.... thought you might like it

We updated it in the templates library a couple days ago so we're all singing from the same hymn sheet.

Slightly amended this one to cover Skeggs T&C's situ.

Thanks Minky

Ame
xx

[skeggs885]

skeggsy v lloyds

Ame thanks so much for the pocs above, have done them now would you check em over for me pse I didnt write in the claim number and issue date on the n1 as it states that this is for court purposes,,, should I put my details in there?

1. The Claimant operated the account number xxxxxx with the Defendant which was operated between approximately 1984 and 25.07.2007.

2. During the period in which the Account 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.

3. The Claimant has attached a copy of the terms and conditions that related to the account at the time of signing his contract. (exhibit B)

4. The terms and conditions of the account contract explicitly describe the charges as to be levied in instances of breaching those terms and conditions. This is highlighted on exhibit B and states:
‘Charges:If your account remains out of order future transactions may be declined, your credit limit may be reduced and the following charges may be applied to your account if you continue to break the conditions of your agreement’

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

6. 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.

7. 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.�

8. 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.


9. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £1,641.58 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 20/4/2007 of £1,641.58 and also interest at the same rate up to the date of judgment or settlement at a daily rate of £24.9% per day

[skeggs885]

skeggsy v lloyds

guys, my last requests hopefully. Do I send one of the two copies of the N1 to SCaM?
Do I need to do anything with the seal on the front of the N1 I presume this is for the court.

I didnt put anything at the top of the N1 where it asked for the claim no and the date of issue as this said for court purposes, should I write this in?

I have discovered a fundemental error (I think with the template I used for my bank charges interest calculations taken from moneysavingexpert.com
The dj at St Albans is asking me to provide how the charges complained of, how they were calculated and in what circumstances were they incurred, the template only gives the charge value, date and interest and total, there is no column for the REASON for charge. Do you guys know something I dont and do you have a better sheet that I can put the charges in again on? ok it means that I will have to go through the summary of charges again but it will be correct to take the dj next week.

Again I cant thank you enough for helping me through this wobble.skeggsy x

[iancognito]

Skeggsy

The bits you've mentioned on the N1 are completed by the court, the form is then stamped before they send your copy on to SCaM (and one back to you if you gave them 3).

Theres a spreadsheet here:

http://legal-beagles.co.uk/forums/showthread.php?t=168

Click on the first tab at the bottom (marked 'charges') then fill that in, it will generate the second sheet (S.69) interest for you to print off and send to the court.

[skeggs885]

skegsy v loyds

thankyou iancognito,,,, do you know that I have already filed this claim in april and it has gone to local court. already have a claim number and wasnt sure if i should put this on form, only send n1 in for full pocs which wernt attached first time. Do you still think I should leave this space blank for them to put my claim number on it from existing paperwork?

thanks for the spreadsheet going to do over the weekend. skeggsy

[Amethyst]

SKEGGS

Yes put your claim number on the form.

Send 2 copies into the court. Keep one. And send a copy to SCaM for tehir information.

The court will seal it and serve it for you (they may send you a sealed one to serve yourself but as the judgehas asked for it I believe the court will do it)

Send it in now with your schedule of charges if you have it sorted - you need to have it in BEFORE FRIDAY.

I'm double checking your POC is okay now. two mins,

[Amethyst]

Okay dont forget to attached the highlighted T&C as exhibit B