Judgment & Beyond ~ Budgie Vs Capital One

[HaliMac]

Re: Budgie Vs Capital One

Well worst thing that can happen is another court showdown, Bud Hope it turns out OK for you.

[Budgie]

Re: Budgie Vs Capital One

Be careful that you do not reveal the details of your offer to the court. You marked your letter "Without prejudice" which means that the circumstances in which the content of that letter may be revealed to the court are very restricted.

Gotcha Dan,

I planned to just discretley let the court know, in a roundabout way, that I communicated a WP settlement offer to Cap One, but not disclose details of course.

I plan to vary my claim slightly anyway to take into account the unpaid charges and a slightly lower interest rate but will also reiterate some of the points I made in my (WP) letter to Cap One.

I will post a copy up here at weekend for comments !

Rgds Budgie

[TANZARELLI]

Re: Budgie Vs Capital One

Yeah at least it shows the court you are trying to avoid using valuable court time even if you don't give them the details. You could just say that a WP reduced offer pre-hearing was made to Cap One which they declined.

[Budgie]

Re: Budgie Vs Capital One

LOL

I received a cheque in the post this morning !

However it's only another cheque for £541.62.

That makes it four cheques that they have now sent me in an attempt to force a settlement of my claim.

It's going back to them today with a covering letter ( copied to the Court ).

Plonkers !!!!

[TANZARELLI]

Re: Budgie Vs Capital One

You have to hand it to them, they do try LMAO.

[HaliMac]

Re: Budgie Vs Capital One

What a bunch of tos**s :rolleyes:

[Budgie]

Re: Budgie Vs Capital One

UPDATE :-

Just found out from Cap One that they are using the same Barrister for the final hearing as they used for the allocation hearing. I am in seventh heaven, because she is absolutely awful. LOL

Have prepared some notes for the final hearing which takes place on Frdiay at 10.30 and detailed these below for anyone interested to have a check through and see if I have missed any salient points.


Claim Number xxxxxxxxxxxx

1) I agree para 4 of Defendants WS. Account has always had a credit limit of £200

2) Re para 5 of the Defendants WS. I agree that I breached my credit card agreement and that the default fees were applied to my account as a direct result of those breaches as stated by the Defendant.

3) I agree para 7 thru 10 of the WS

4) With respect to paragraph 10 of the Defendant’s WS.
As part of the Defendant’s response to my original SAR they did not supply me with copies of the statements for the account covering the period February 2003 to May 2003 until July 2008.
It then became possible to establish exactly what was applied to the account during that period in respect of additional default charges or further payments to the account. I of course agree that I cannot claim either a cash refund or restitution by way of compound interest on the £220 of default charges that I have not actually paid to the Defendant and have adjusted my spreadsheet accordingly. However, I still require a waiver of the fees that have not actually been paid across to the Defendant.

5) I agree para 11 of the WS – this is a correct summary of my claim at the date of original filing.

6) Re para 12. The Defendant did not actually make an offer. The Defendant attempted to force settlement of the claim by making forced payment to the Claimant and then to defend the claim on the basis that they had settled the claim. The Defendant claims to have made an offer on a without admission basis. The Claimant does not understand why the Defendant would consider refunding the default charges when the Defendant argues that they are not unlawful! At the application hearing, held on 18th June 2008 the Defendant’s Barrister stated that the Defendant had attempted to settle the claim for commercial reasons. The Claimant feels that if the Defendant had wished to settle the claim at that time on commercial grounds and without admission of liability then they should have settled the entire claim and not just attempted to settle what they considered to be their corrected version of the claim.

7) Re para 15 of the WS. Here the Defendant now says that that they actually made the forced payments to the Claimant because they are responsible lenders and wished to avoid the Claimant getting into any further debt. So that’s another suggested reason for attempting to force a settlement.

8) The Claimant does not accept the Defendant’s simple explanation that it was purely an error that as part of the attempt to force settlement three separate cheques for £541.62 were sent out to the Claimant. Note that a further Cheque for the same amount £541.62 was also received by the Claimant on 8th September 2008, four days before the final hearing. This Cheque has been returned to the Defendant, copy of letter sent to Court.

9) Re Para 18 of the WS. The Claimant notes with interest that the Defendant states that as a result of the claimants claim they bought back the debt from Lowell on 7th July. Earlier in the WS they say that they instructed Lowell to reduce the debt to zero. The Claimant is interested to know the nature of the price paid by Lowell in respect of this purported debt and why the defendant saw fit to leave it until July 7th 2008 to buy back the debt when the Claimants claim actually commenced in April 2008 The Claimant actually telephone Lowell in August 2008 and ascertained that the file is marked as uncollectable !!!! Balance zero!!!

10) I agree para 19 of the WS

11) Re paras 20 to 23 of the WS. The Claimant submits that the defendant is using the WS as a facility to again recalculate their own version of the claimants claim. The Claimant is quite capable of recalculating the claim based on the missing statement information provided late by the defendant. The courts instruction was to limit the WS to what payments have or have not been made by the defendant. Not a recalculation exercise of what the defendant believes they should actually pay to the Claimant. That matter is for the Court to decide. However the Claimant notes with interest another admission of a mistake by the defendant in their original calculations. Similar to the mistake in sending out four cheques instead of one no doubt.

12) Re para 24 , the defendant now refers to an offer of goodwill to settle the claim. So in the process of this claim the defendant has referred to their attempts to settle the claim as a) A without liability offer b) A commercial decision c) To avoid the Claimant getting into further debt and d) a gesture of goodwill. The Claimant doesn’t believe any of these explanations. The Claimant believes that the defendant merely wishes to avoid a court declaration regarding the unlawful nature of the default penalty charges applied to the Claimants account for the Claimants breaches of contract.

13) Re para 25 and 26. The Defendant refers to a refund of all purchase interest paid by the Claimant. The Claimant in his claim never actually requested a refund of any purchase interest actually paid by him. Although the Claimant does wish to comment that if the charges should never have existed then neither should any interest that they defendant might have applied on the default charges existed. The Claimant avoided any request for refund of this type of interest so as to avoid any confusion with regards to the nature of his claim. It is however interesting to note that the defendant refers to the fact that any interest charged to the claimant, in respect of charges would have been on a compounded basis.

14) Re para 27. The Claimant, as stated in his POC is not seeking to determne that there is an implied term in his credit card agreement that he may be entitled to compound interest. The Claimant has used the unjust enrichment, restitution, disgorgment arguments throughout his claim.

15) Re para 28. The Claimant agrees that he used the APR rate for purchases and cash advances relevant to his account as at the date of filing his claim. The defendant did not supply a copy of the credit card agreement, detailing the specific interest rates applicable to the claimants account as part of the response to the claimants original SAR request. So it was not until July 2008, when the defendant actually supplied a copy of the relevant terms and conditions that the claimant was actually able to determine the correct rate of compound interest that he considers should be applied to his claim. The Claimant is of course willing to argue the appropriate rate of interest to be adopted in settlement of his claim once the court have agreed to use discretionary powers and award compound rather than statutory court interest in this claim and the Claimant is agreeable to accept the Court’s decision on an appropriate rate of compound interest to be used once those arguments have taken place.

16) Re para 29. The Defendant argues that there is no evidence of unjust enrichment. This is clearly not the case. The Claimant has clearly identified in his own WS and Skeleton arguments that the possibility existed for the Defendant to become unjustly enriched by having use money taken from the Claimant by the defendant in the form of unlawful charges applied to the Claimants account and paid across to the defendant by the Claimant.

17) I have no real comments regarding Paras 1 through 14 of the defendants skeletal argument which merely seem to repeat the WS.

18) Para 15 of the SA. The Claimant does not agree that the central outstanding issue is that of interest. The Claimant seeks a declaration from the court that the default charges applied to the claimants account are unlawful penalty charges. The Defendant has refused every opportunity to disclose their true costs in relation to the Claimants breaches of contract.

19) Re para 19 of SA – The Claimant is not seeking an implied term

20) Re para 20 of SA – The Claimant is fully aware of this and indeed stated so in his POC.

21) The Claimant is aware of the nature of the contract between himself and the defendant and that it is not one of a fiduciary nature. However, the relevance of Westdeuetsche is covered in Sempra.

L (111) In these unusual circumstances I consider it is open to your Lordships' House on this appeal to re-examine the basic point of law conceded and not argued on the Westdeutsche appeal, namely, whether interest may be awarded by the courts in exercise of their common law jurisdiction to grant personal restitutionary relief. Further, I consider your Lordships should undertake this task. Having only recently been released from the shackles of implied contract and, hence, the restraints of the London, Chatham and Dover Railway case, the law of restitution should now have the opportunity to develop as a coherent body of principled law. The decision of the House in a case where this point was conceded and assumed cannot properly stand in the way.

M (112) If the House takes this opportunity I venture to repeat there can only be one answer on this important question of law. Nobody has suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest is necessary to achieve full restitution and, hence, a just result. I would hold that, in the exercise of its common law restitutionary jurisdiction, the court has power to make such an award. I agree with the thrust of Mummery LJ's observations on this point in NEC Semi-Conductors Ltd v Inland Revenue Commissioners [2006] STC 606, 642-643, paras 172-175. To that extent I would depart from the decision on the Westdeutsche appeal.

N (113) If this approach is adopted the unfortunate decision in the London, Chatham and Dover Railway case will be effectually buried in relation to the payment of interest for non-payment of a debt and in relation to the payment of interest for having the use of money in personal restitution cases. The law will achieve a principled measure of consistency between contractual obligations and restitutionary obligations. The common law in Australia has developed in this way. The common law in England should do likewise.



22) Sempra. The Claimant is embarrassed that the Defendant has chosen to actually quote a paragraph from the recent Sempra Metals V Inland Revenue case in it’s skeleton argument and to use this in justification of it’s argument against the awarding of compound interest. The Claimant has actually used the same paragraph, one of the many relevant Sempra quotations used within the Claimants skeleton and WS.The Claimant however notes that the defendant has not actually quoted the full paragraph as the Claimant has done. The Claimant argues that a full analysis of that paragraph goes a long way to proving the validity of the claimants claim for compound interest and does nothing for the defendants argument against.

The Defendant quotes : (7) the claim in this case is not for more than what was had and received by the defendant.

The full paragraph, used by the Claimant states :-

A (7) The claim that is made in this case, however, is for restitution. It is presented as a claim for the time value of money by which the defendant was enriched unjustly. The claimant submits that the common law requires that it be paid a sum which represents the value of the money over the period of that enrichment, and that this sum falls to be calculated by compounding interest over that period. It has been held that in an action for money had and received the net sum only can be recovered: Moses v Macferlan (1760) 2 Burr 1005; Fruhling v Schroeder (1835) 2 Bing (NC) 78 and Johnson v The King [1904] AC 817, applying London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. But interest has been awarded at common law where restitution follows the reversal on appeal of a previously satisfied judgment: Rodger v Comptior d'Escompte de Paris (1871) LR 3 PC 465. Various other exceptions have been recognised: see Heydon v NRMA Ltd No 2 (2001) 53 NSWLR 600, 603-606, per Mason P. Furthermore the claim in this case is not for more than what was had and received by the defendant. What was had and received was the enrichment. It is the enrichment itself that is to be valued, not anything more than that.


23) Par 23 of SA.. The defendants argument here is flawed. In taking the Claimants money the defendant has denied the claimant the use of his own money. The Claimant therefore was denied the opportunity to invest or otherwise use his own money for his own benefit and denied the opportunity to enrich himself by the use of his own money. Paras 30 and 31 of Sempra support the claimants position.

B (30) The question then is whether the claimant in unjust enrichment must nevertheless have suffered a loss corresponding to the defendant's enrichment. In Unjust Enrichment 2nd ed, pp 167-168, Professor Birks said that there was no need for this to be the measure of the enrichment: - "By insisting, artificially but firmly, on an enlargement of the everyday sense of 'restitution' we avoid being accidentally trapped by the choice of a word into believing that the answer must be yes. If 'restitution' meant 'giving back', no other answer would be possible. The larger meaning leaves the matter open. An alternative strategy to the same effect would be to switch from 'restitution' to 'disgorgement', which has no restrictive overtone."

C (31) I would apply the reasoning in these passages to the claim for interest in this case. A remedy in unjust enrichment is not claim of damages. Nor is it a contractual remedy, so there is no need to search for an express or an implied term as the basis for recovery. The old rules which inhibited awards of interest to ancillary interest on sums due on contractual debts or on claims for money had and received do not apply. The essence of the claim is that the Revenue was unjustly enriched because Sempra paid the tax when it did in the mistaken belief that it was obliged to do so when in fact it was being levied prematurely. So the Revenue must give back to Sempra the whole of the benefit of the enrichment which it obtained. The process is one of subtraction, not compensation

24) Para 24 of SA It is not necessary for the Claimant to establish exactly hat the Defendant did with the money taken from the Claimant. See Sempra para 33

D (33) As Professor Birks pointed out, the availability of money to use is not unequivocally enriching in the same degree as the receipt of money: Unjust Enrichment, 2nd ed, p 53. But money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra of what the Revenue actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands, as Lord Walker puts it in para 180. The Revenue accepts that the money it received prematurely had a value, but it says that the restitutionary award should take the form of simple interest. I do not think that such an award would be consistent with principle. Simple interest is an artificial construct which has no relation to the way money is obtained or turned to account in the real world. It is an imperfect way of measuring the time value of what was received prematurely. Restitution requires that the entirety of the time value of the money that was paid prematurely be transferred back to Sempra by the Revenue.


25) Para 25 of SA. The Claimant has already distinguished his claim form that of Halliday Vs Halfax. And indeed para 31 of Sempra further supports the Claimants distinction.

26) Para 26 of SA. There is clear evidence of unjust enrichment. The nature of the defendants business is that of a lending institution.

As the Claimant in this case I am confident in the Court’s ability to use discretionary powers and make an award of compound interest rather than statutory court interest. I do acknowledge that it may be difficult to determine an appropriate rate of interest to be used in respect of an award of compound interest in this claim. The credit card in question is a 'Classic Visa card' and still has a credit limit of £200. The APR for the Classic Visa card is currently 34.9% APR and this is the rate I originally used for my claim. On the current version of the Classic Visa card credit agreement the defendant actually use an applicable rate ( for interest calculation ) of 30.34 % on cash advances and purchases. This is the rate that I now consider most appropriate for calculation of the compound interest element of my claim.

I do, however, acknowledge that Capital One, in normal day to day business, uses a variety of differing rates and methods to calculate interest on balances owed by Customers. The rate used appears to vary depending on the type of card, the credit history of the particular Customer, the credit limit applied to the account, whether the interest is being charged for purchases or for cash advances etc. Applicable rates currently range from 8.22% to 30.34% on purchases and 23.29% to 30.34% on cash advances. I am actually happy that should the Court agree my request for an award of compound interest then I will be happy to rely upon the Court's decision regarding an appropriate rate of compound interest to be adopted. In anticipation of this I have prepared a number of other versions of my spreadsheet using different interest rates. Which may be used later as a basis for any such discussion.

Whilst examining current terms and conditions for the defendants entire credit card range, I noticed that they are in the process of amending terms and conditions. With effect from October 1st 2008 they are modifying the method of interest calculation for the default charge aspect on all the various card types. I quote from the current online terms and conditions for the Classic Visa account.

“If you incur a default charge (see Key Information - Default Charges below) on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums until repayment. Any interest payable on the outstanding amount will be calculated at 30.34% p.a. (variable). Interest on default charges will be calculated on a simple basis.
Interest is calculated from the date of the transaction or incurring of a fee, charge or expense, until the outstanding balance has been paid in full, with the exception that if you incur any default charges on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums.”

It is evident that prior to this amendment they would have calculated interest on default charges using the same method as applied to purchases and cash advances; a compound interest basis. I quote from the terms and conditions applicable to my own Classic Visa account at the date of opening.

“Interest will be charged for each statement period ( being the period between monthly statement dates ) on the average daily outstanding balance including all transactions and other charges debited to the Account.”

It appears that this substantial modification to the defendants terms and conditions may have been implemented to attempt to counter the possibility of future requests for an award of compound interest as part of a customer claim for return of unlawfully applied default charges.




In summary, taking some of the the Defendant’s WS and skeletals arguments into account.


I have adjusted my calculation spreadsheet ( copies attached )

(1) I have updated the list of charges to include all charges actually applied to the account.
(2) I am not now claiming any interest on default charges which have been applied to the account but not paid by me.
(3) I have adjusted the interest rate that I am claiming from 34.9% ( the APR ) to 30.34% ( the applicable rate ) but have also produced some additional sheets showing compound interest calculated at varying rates should the Court wish to discuss aletrnative rates.
(4) I have recalculated all of these the spreadsheets up to today’s date.


At this point I consider the claim to be as follows :-

i) Waiving of the default charges applied to the account but not actually paid by me totaling £220.
ii) Return of default charges actually paid by me as detailed in the attached spreadsheets totaling £639.
iii) Compound interest at an applicable rate of 30.34% per annum. But applied on a compounded daily basis and calculated from the date of application of each default charge actually paid across to the defendant ( £639 ) through to today’s date and totaling £4629.41
iv) Return of Court fees incurred, Filing claim £225, AQ £200, Application hearing £75, Final Hearing fee £300 ; Totaling £800.

My calculation of the final settlement required as at today’s date is therefore £6068.41

I accept that the Defendant may deduct from this £373.55 to clear the revised balance of the account.
= 593.55 - 220

Additionally, I request the removal of any prejudicial information which Capital One Bank (Europe) PLC has passed to third parties in relation to my account and in particular the removal of the Default Notice registered with credit reference agencies which was caused solely by the application of disproportionate penalty charges. In addition to this I also require the removal of any late payment markers which would also have a negative effect on my ability to obtain credit in the future.



Will then obviously leave this bit until the relevant point in proceedings


Additionally any other costs that the Court may see fit to award in addition to Court fees listed above ;

Estimate of Litigant in Person ( wasted ) costs as at todays date :

Time spent preparing claim and associated letters and documentation £370
( 40 hours at Litigant in person rate of £9.25 per hour )

Telephone and Postage costs £20

Travel Costs ( Inc car parking ) £60

Loss of annual leave ( 2 days total @ £200 per day ) £400

Total £850

[HaliMac]

Re: Budgie Vs Capital One

I am in seventh heaven, because she is absolutely awful. LOL

I'll vouch for that. Unbriefed and unprepared, she didn't know her a*se from her elbow and was in and out of the courtroom calling her clients for info about 900 times :lol:

With regard to the point you were making about their opportunity for unjust enrichment, and further to our recent conversations on the subject; I would invite the court to compare and contrast this with your own position, whereby their forced settlements into your card account merely accrue back to themselves as interest over a relatively short period.

As if it needed reinforcing (and regardless of what they might say about the right of offset), this should really bring the intrinsic inequity of the relationship into sharp relief.

[Budgie]

Re: Budgie Vs Capital One

Here's who Budgie is facing tomorrow.




Natasha Sethi (2001)

Born 1976

LL.M The College of Europe, Bruges (DfEE scholarship) 2001

LL.B The University of Essex and the University of Liege 1999

Diploma and Scholarship from the International Institute of Human Rights, Strasbourg 1999

Internship at the Supreme Court of India 2000 (scholarship)

European Lawyer in Brussels 2001 - 2002

Judicial Assistant to the Court of Appeal 2002
Editor of the European Law Reports

Languages: French, Spanish, Hindi and Punjabi

[Amethyst]

Re: Budgie Vs Capital One

I don't really need to wish you good luck because you don't need luck....just a clued up Judge, but I will for convention

GOOD LUCK BUDGIE

If its not going your way just name the 5 Lords from the appeal ~ should swing it for you

Be thinking of you tomorrow, you have put stacks into this and I look forward to hearing every ickle detail tomorrow afternoon.


Night babe :kiss: xxxxxx

[TUTTSI]

Re: Budgie Vs Capital One

YOU HAVE WORKED EXTREMELY HARD ON THIS BUDGIE, I WONDER IF MS SETHI HAS A GOOD KNOWLEDGE OF SEMPRA, CAUSE I AM SURE YOU CAN ENLIGHTEN HER IF SHE HAS'NT.

GOOD LUCK

XXXX

[Paule]

Re: Budgie Vs Capital One

Good luck for tomorrow

You are, as far as i'm concerned, the most knowledgable person on CI and you should have no problems with your case.

You have put a lot of research and thought into this and you deserve to win.

But remember to keep us informed and not rush of to the boozer to celebrate.

Paul

[jax007]

Re: Budgie Vs Capital One

LOTS OF LUCK BUD ... YOU DESERVE HUGE SUCCESS WITH THIS ... AND I HOPE YOU GET IT!!

jax

[TANZARELLI]

Re: Budgie Vs Capital One

What time are you in Budgie?

All the best for it mate not that you'll need it. I am sure she will be fumbling and stuttering due to lack of understanding of the issue regarding CI.

Look forward to the update tomorrow bud.

[bloomingflower]

Re: Budgie Vs Capital One

Good Luck for 2 moz Bud ! will be thinking of you x....( I remember you telling me you had court tomorrow lol)



BF xx