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light at the end of the tunnel

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  • #16
    Re: light at the end of the tunnel

    Originally posted by clayman View Post
    hi Amethyst
    Just read your reply thanks really helpful ,i have just got off the phone with the FOS ,who have said something very similar,HSBC have declined to increase the offer at the moment but have asked me in what way do i see their charges as unlaw, the FOS have given me as much time as i need to form a reply,could you or anyone else help?.The FOS also said that they are leaning towards the banks on business acconts
    thanks clayman

    Well I would be inclined to tell HSBC in response that you accept the offer (so they cant back out of it) as to under what terms you find the fees unlawful you can only really rely on common law disproportionate penalties.

    This will need us to look at the HSBC terms of the business account you have and show them to be penalties - which basically is showing there is a material difference betweeen the business terms and the personal account terms.

    Will get the HSBC penalty terms declared upon in the test case on personal accounts so we can look at the differences.
    #staysafestayhome

    Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

    Received a Court Claim? Read >>>>> First Steps

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    • #17
      Re: light at the end of the tunnel

      Rightio -

      Relevant parts of judgment which you have to show DON't APPLY to business terms. (HSBC will argue the readover form personal to current accounts)

      HSBC
      83. HSBC issued a leaflet entitled “Personal Banking, terms and conditions” in July 2001 that applied to the Bank’s current accounts and contained what I shall call the “HSBC 2001 current account conditions”. The leaflet stated, “These terms and conditions are a contract between you and us”. Condition 5 of Section 1 was headed “Clearing credits and cheques”. Condition 5.2 was headed “Credits you receive” and condition 5.2.1 read as follows:
      “We determine whether a cheque has “cleared” in order to:
      • decide whether to allow you to withdraw the money, and
      • calculate any interest that should be paid, either by us to you or by you to us, and
      • most importantly, confirm whether a cheque has been paid.
      A cheque can still be returned unpaid later even if we have decided to allow you to withdraw the money … Please ensure that you understand what happens when a cheque is returned unpaid later as set out below. If you do not understand, please ask us to explain.”
      The condition then set out various details about clearing procedures and continued, “You should not write a cheque unless you have cleared funds in your account from which such cheque can be met”.
      84. Condition 7 was headed “Borrowing from us”, and read, “Provided you are 18 years of age or over, borrowing can be arranged either by overdraft on your Bank Account subject to the terms below, or by a separate loan ..” It continued, at condition 7.1:
      “You should always keep your Bank Account in credit unless we have agreed an overdraft with you. We understand that occasionally you may accidentally overdraw your account by a small amount without an agreed limit. If we allow this to happen, we will not charge you our applicable fee for overdrafts not agreed in advance as long as your Bank Account is not more than £50 overdrawn. Customers under the age of 18 must always keep their bank account in credit. ”
      Condition 7.4 provided, “You must not go over any overdraft limit that is agreed with us unless you get our agreement first”. Condition 7.7 provided that HSBC might “decide not to pay a cheque or other item or to allow a card transaction if it would make your account go overdrawn or, for Bank Accounts, it would go overdrawn without an agreed overdraft limit or over any agreed overdraft limit. This would include standing orders, Direct Debits or bill payments which you had previously instructed us to make or Switch transactions you have made. If this happens, we may charge our fee for returned items”. Condition 7.9 provided that, if HSBC decided to pay upon a Relevant Instruction and this resulted in an overdraft or an overdraft in excess of an agreed limit, “this does not mean that we have agreed an overdraft or an increased limit”. Condition 7.10 provided for interest to be charged on overdrafts, and condition 7.11 provided, “As well as charging interest under 7.10, we may also charge our applicable fee for overdrafts not agreed in advance for any statement period when your Bank Account is overdrawn without an agreed overdraft or goes over any agreed overdraft limit, whether for one day or more, to cover our management and administration costs (see the relevant price list).”
      85. Condition 9.2 was headed “Your card and your account”, and dealt with the customer’s use of a bank card. Condition 9.2.2 provided, “You must not use your debit card to borrow from us on your Bank Account unless you are 18 and over and an overdraft has been agreed separately”. Condition 9.2 and subsequent conditions contained other provisions about what the customer “must not” do: for example, condition 9.2.4 provided, “You must not use your card after the end of the month when it expires as stated on your card…”.
      86. The tariff for the HSBC 2001 current account conditions provided for an Overdraft Excess Charge, an Unpaid Item Charge and a charge in respect of guaranteed cheques and Switch transactions. This was similar to a Guaranteed Paid Item Charge, but was not levied for each item but was initially a “£30 flat fee” and then levied on the basis of a charge of £30 per item “after the initial advice”.
      87. The OFT submits that conditions 5.2.1, 7.1, 7.4 and 9.2.2 are capable of being penal. It argues that, when condition 5.2.1 stated that, “You should not write a cheque unless you have cleared funds in your account from which such cheque can be met”, it created a contractual prohibition and the customer was in breach of contract if he contravened it. However, to my mind that does not take proper account of the context of the sentence. It was part of an explanation about how the Bank dealt with cheques paid to the credit of the account. I interpret it as advisory and not as creating a contractual prohibition.
      88. HSBC accepts that conditions 7.1 and 7.4 were of contractual effect in that they set out the limits upon the customer’s rights to have the Bank honour his instructions. It disputes that the expressions about what the customer “should” or “must” do evince an intention that he should be under a contractual prohibition, and that the customer was in breach of contract if he gave a Relevant Instruction (or gave a Relevant Instruction that the Bank decided to honour). Accordingly, the Bank submits that these conditions were similar in their effect to condition 8.2 of Clydesdale’s current terms that I considered at paras 313 and 314 of my April judgment. I agree with this submission. As with other terms to which I have referred, I am not persuaded by the OFT’s submission that, because, unlike Clydesdale’s condition 8.2, HSBC’s conditions 7.1 and 7.4 are not expressed in the passive voice, they should be given a different interpretation.
      89. HSBC submits that condition 9.2.2 did not evince an intention to create a contractual prohibition on the customer about using a debit card to borrow from the Bank because the condition was directed towards actual borrowing and not to attempts to borrow with the card: that is to say, it was directed to what could come about only with the Bank’s consent. Again, I accept HSBC’s submission. The wording of the clause was not apt to cover an attempt to use the card to overdraw the account, and to my mind the natural interpretation of the condition is that it explained to customers their rights as account holders.
      90. I therefore do not need to consider HSBC’s further argument that if any of these conditions imposed a contractual prohibition, no Relevant Charge was payable upon breach of it.
      91. The version of the Personal Banking terms and conditions issued in September 2002 (the “HSBC 2002 current account conditions”) contained provisions similar to those at conditions 5.2.1, 7.1 and 9.2.2 of the HSBC 2001 current account conditions. Condition 7.4 was slightly differently worded: “You should always stay within an agreed overdraft limit unless you get our agreement to increase this first”.
      92. I come to the version of the Personal Banking terms and conditions issued in August 2005 and applicable to current accounts (the “HSBC 2005 current account conditions”). Condition 5.1.1 stated, “… You must only write a cheque if there are cleared funds in the account, or an agreed overdraft to cover it”. Condition 5.2.1 provided that if the customer drew against uncleared cheques which are subsequently
      returned unpaid “we may charge interest (if applicable) and/or our applicable fee for overdrafts not agreed in advance”.
      93. Condition 7 was headed “Borrowing from us”. Condition 7.3 stated, “You must keep your Bank Account and saving account(s) in credit unless we have agreed an overdraft”, and condition 7.4 provided, “We will give you a letter setting out the terms of any agreed overdraft. You must stay within the agreed limit.” Condition 7.11, headed “Unauthorised overdrafts”, said:
      “As well as charging interest … we may also charge our applicable fee for reviewing unauthorised overdrafts each time your Bank Account or savings account goes overdrawn, or further overdrawn, without an agreed overdraft. We may also charge this fee when your Bank Account goes over, or further over, any agreed overdraft limit.”
      Condition 7.16 provided:
      “We may not pay a cheque or other item or allow a card transaction, if it would make your account go overdrawn or over any agreed overdraft limit. We may charge you for this. If we do pay the cheque, other item or card transaction and your account goes overdrawn or over any agreed overdraft limit, this does not mean that we have agreed an overdraft or increased limit. You must immediately pay enough into your account to cover the overdrawn amount or the amount that is over your overdraft limit, or contact us to discuss the matter.”
      Paragraph 7.17 provided that the Bank might charge fees as well as interest if it paid a cheque guaranteed by a Maestro debit card or a Maestro transaction and the account went overdrawn or over an agreed overdraft limit as a result.
      94. Condition 9 concerned cards and condition 9.2.2 provided, “You must not use your debit card to borrow from us on any account without an agreed overdraft”.
      95. The tariff for the HSBC 2005 current account conditions provides for a Paid Item Charge, a Guaranteed Paid Item Charge and an Unpaid Item Charge.
      96. I do not consider the differences between the HSBC 2001 current account conditions and the 2002 and 2005 versions significant for present purposes. I consider that the 2002 and 2005 versions are not capable of being penal.
      And the declaration on terms considered attached tho probably easier to read http://www.oft.gov.uk/shared_oft/per...rder241008.pdf pages 28/29/30
      #staysafestayhome

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      Received a Court Claim? Read >>>>> First Steps

      Comment


      • #18
        Re: light at the end of the tunnel

        hi all
        I am reallyb struggling to compose a reply to HSBC and the FOS about why i think their charges are unfair, can anbody help please ?
        Thanks clayman

        Comment


        • #19
          Re: light at the end of the tunnel

          Post up what you have so far and we can take a look for you.

          Comment


          • #20
            Re: light at the end of the tunnel

            Clayman - have a read the Barclays Salford case stuff over in this forum >>> Legal Beagles

            and yep as Amy says pop up how far you have got so far on the letter

            Have you accepted the 19k as partial payment by the way ?
            #staysafestayhome

            Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

            Received a Court Claim? Read >>>>> First Steps

            Comment

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