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Re: Flangies v Capital One
No she hasnt shes wanting some help with her POC.
No she hasnt shes wanting some help with her POC.
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Re: Flangies v Capital One
OK, am finalising now.
Have just updated the spready and tweaking the POC.
Am adding section regarding "burden of proof" / "Duty of Court" will post up later this afternoon.
BudgieComment
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Re: Flangies v Capital One
Updated POC below and have also attached an updated spreadsheet.
Flangies you need to do the following,
1) Complete the N1 form for filing your claim at Court. ( Shout if you need help with this ).
2) Copy the POC below ( which you will attach to the N1 ) and fill in the personal bits. You need to decide on a date you will file the claim and input that date onto the spreadsheet, this will then calculate the interest you are claiming up to the date you are filing your claim. You can then note the total of charges, calculated compound interest from the spreadsheet and input these onto the POC.
3)Print off three copies of the finished N1, POC and spreadsheet. ( One is for you to keep and the other two are for the Court ).
Please ask Ame or myself to check this all for you before you actually file the claim.
4)The Small Claims fee will be £108 for this claim. But you may claim an exemption using form EX160 if money is tight. Her Majesty's Courts Service -Forms and Guidance
You will get the court fee back when Capital One settle up.
I expect that Capital One will follow their normal course, acknoweldge receipt of your claim and then try to force a settlement upon you ( based on return of all your charges plus any purchase interest you have paid them since opening the account plus statutory court interest and your court fee ). You can obvioulsy decide at that stage whether to accept that as a full and final settlement or whether to continue on and go the whole journey for the full amount including compound interest. This will be totally up to you to decide and there will be no pressure for you to continue if you don't wish to. Main thing is to keep us in touch with events as they unfold so that we can best advise you.
PARTICULARS OF CLAIM
1. The Claimant entered into an agreement (“The Agreement”) with the Defendant during XXXXXXXXX XXXX, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxx xxxx xxxx xxxx(“The Account”).
2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)
3. During the period the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.
4. 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.
5. A schedule of the debited charges is attached to these particulars of claim (See Appendix 1).
6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.
7. The Claimant contends that:
a) The charges debited to the Account: i) are 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) are 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; v) were paid by the Claimant under the mistaken impression that the charges were lawfully applied by the Defendant, in the first instance.
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) and the common law.
c) In any claim in which the unfairness of contractual terms in a Consumer contract are raised as an issue, the evidential burden rests with the seller or supplier to prove that the relevant terms are not unfair. The Claimant understands it has been firmly established, by the European Court of Justice, in a number of cases, that there is a duty on the Court, to raise of its own motion, the question of “unfairness” in respect of such terms. It inevitably follows from these judgments that in the context of legal proceedings within the UK, the burden for establishing that a term is “unfair” cannot therefore rest with the Claimant. The duty for proving that such a term is not “unfair” therefore rests on the Defendant in the instant case whether the issue is raised, either by the Court of its own motion or by the consumer themselves.
8. THE LIMITATION ACT 1980
a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.
b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.
9. COMPOUND INTEREST
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 Claimant’s case for compound interest is not reliant on any implied contractual term.
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 the Claimant’s case.
It is clear from the Sempra Metals case that the Court has a common law jurisdiction to award compound interest as damages. Similarly applying Sempra the Court has a power to award compound interest where the Claimant has sought a restitutory remedy for the time value of the money paid under a mistake.
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 remain 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.
10. Accordingly, the Claimant claims:
a) Return of the amounts debited between XXXXXXXXX XXXX and XXXXXXXXX XXXX in respect of penalty charges totaling £XXXXXX
b) All applicable Court fees
c) Compound interest at an annual rate XX.X% compounded monthly from the date of each individual charge to XX/XX/XXXX of £XXXX.XX and then continuing to accrue at the same rate from XX/XX/XXXX to the date of judgment or earlier settlement.
11. 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.Comment
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Re: Flangies v Capital One
Budgie
Thanks so much for this; I only noticed you sent me this today. | will look at this later today and will come back to you should I have any more questions.
Thanks to Ame to for her help and support.
xxxxxxComment
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Re: Flangies v Capital One
Hi Budgie
I sent you a PM on Monday with my almost completed POC, asking for your much needed help when you can give it to me of course.
I also asked if you could advise me where the N1 form is on the court website.
I look forward to your response
Flangie
xxxComment
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Re: Flangies v Capital One
Did you?
OK will check and get it sorted.
BudgieComment
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Re: Flangies v Capital One
Flangies,
Below is your POC, I have taken the liberty of filling in the bits you were uncertain about. You just need to print off ( put in full account number ) and attach to completed N1 with appendix 1 ( spreadsheet ).
Copy of updated spreadsheet is attached. You just need to add your personal details in the relevent boxes and print off. ( I have assumed that you might file claim on Friday 23/10/09, so have calculated spreadsheet up to that date and you will see I have used that date for calculation of interest in the POC as well.
Link to Blank N1 form that you can fill in online and then print off, or print off blank copy and fill in by hand Her Majesty's Courts Service -Forms and Guidance
Let me know if you need any help filling in N1. Most of it is pretty easy and guidance notes are helpful. But shout if you need help.
Rgds Budgie
PARTICULARS OF CLAIM
1. The Claimant entered into an agreement (“The Agreement”) with the Defendant in January 2002, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxx 9656 0401 xxxx.
2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)
3. During the period the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.
4. 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.
5. A schedule of the debited charges is attached to these particulars of claim (See Appendix 1).
6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.
7. The Claimant contends that:
a) The charges debited to the Account: i) are 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) are 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; v) were paid by the Claimant under the mistaken impression that the charges were lawfully applied by the Defendant, in the first instance.
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) and the common law.
c) In any claim in which the unfairness of contractual terms in a Consumer contract are raised as an issue, the evidential burden rests with the seller or supplier to prove that the relevant terms are not unfair. The Claimant understands it has been firmly established, by the European Court of Justice, in a number of cases, that there is a duty on the Court, to raise of its own motion, the question of “unfairness” in respect of such terms.
It inevitably follows from these judgments that in the context of legal proceedings within the UK, the burden for establishing that a term is “unfair” cannot therefore rest with the Claimant. The duty for proving that such a term is not “unfair” therefore rests on the Defendant in the instant case whether the issue is raised, either by the Court of its own motion or by the consumer themselves.
8. THE LIMITATION ACT 1980
a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.
b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under
section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.
9. COMPOUND INTEREST
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 Claimant’s case for compound interest is not reliant on any implied contractual term.
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 the Claimant’s case.
It is clear from the Sempra Metals case that the Court has a common law jurisdiction to award compound interest as damages. Similarly applying Sempra the Court has a power to award compound interest where the Claimant has sought a restitutory remedy for the time value of the money paid under a mistake.
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 remain 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.
10. Accordingly, the Claimant claims:
a) Return of the amounts debited between February 2002 and 28th October 2009 in respect of penalty charges totaling £1024.00
b) All applicable Court fees
c) Compound interest at an annual rate 25.00% compounded monthly from the date of each individual charge to 23/10/2009 of £3859.94 and then continuing to accrue at the same rate from 24/10/2009 to the date of judgment or earlier settlement.
11. 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.Comment
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Re: Flangies v Capital One
fantastic Budgie; always soooooooo helpful; I am hoping to file on friday ; BUT if I cant it will def be Monday, so I will amend the date on the spreadsheet and POC etc.
xComment
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Re: Flangies v Capital One
Hi Budgie
I do need a little help with N1; please find copies attached.
I would be grateful if you could add anything needed to this form for me please.
Kind regards
FlangiesComment
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Re: Flangies v Capital One
Nothing much to add, what you have done is perfect.
Maybe just add note in under Particulars of claim section ( back page )
Please find particulars of claim attached together with appendix 1 ( spreadsheet of charges and interest )
Dont forget to add claim number on tope right corner of front page, leave issue date blank for court clerk to fill in.
Go get em Flangies
BudgieComment
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Re: Flangies v Capital One
Hello Budgie
Sorry if I sound a bit dim but where will I get the claim number from?
"Dont forget to add claim number on tope right corner of front page"Comment
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Re: Flangies v Capital One
Originally posted by Flangies View Post
Oooops sorry, the Clerks at County Court will add that !!
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Re: Flangies v Capital One
Budgie
I cant believe it; I went down to my local court this morning to put myclaim in to be told they dnt do it there and that I need to go to slough court. this is so inconvenient.............. I cannot get to Slough easily so will have to file tocourt now.
Agh!!!Comment
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Re: Flangies v Capital One
Where do you live Flangies?
Which Court did you try to file your claim at ?
BudgieComment
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Re: Flangies v Capital One
Bracknell; I called them some time ago to discuss claiming for me bank charges and was told I could claim at Bracknell; I could claim online however I cannot Put all the POC you kindly helped me prepare as I can only use 1080 words
Any suggestions Bud?Comment
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