Judgment & Beyond ~ Budgie Vs Capital One

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Unsurprisingly, my take on this is somewhat different from Budgie's.

With just £1 and the right six numbers between 1 and 49 he could have made a spectacular return. Sadly, we are into that eternal principle of folk logic that you cannot prove a negative. For whatever reason, the investment was not made and because of that, it is impossible to say whether or not it ever would have been.

Notwithstanding this, potential gain cannot be decided by the court, only actual loss can be.

Regardless of the nature of the cause of action, a Claimant to legal proceedings is able to recover their measurable losses as a consequence of establishing that the wrong was done in the first instance by the Defendant.

The key here is measurable losses. I imagine one could claim that such investments were implied by custom and practice if you could show that you frequently made them, but I would not like to count on it.

Only one response I can give to that Cetelco..........

“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 the Claimant of what the Revenue (Defendant) actually did with it. It was the opportunity to turn the money to account during the period of enrichment that passed from Sempra to the Revenue. This is the benefit which the Defendant is presumed to have derived from the money in its hands”

Maybe it would be easier if I were to post up my witness statement, I wish I could. There are reasons why I do not wish to do so at the moment.

Please wait a few days and I think all will become a bit clearer.

[ROBSTER]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Budgie You have the X factor !

Well done

Its also worth mentioning that had you had access to the funds (charges) you could argue that you would otherwise have used those funds to pay down another credit card.

Probably not applicable in your case if you were being charged on your "purchase" balance at 30% (which, to me is clearly the minimum by which Cap 1 were being unjustly enriched).

Had you paid off your balance or in the case of say a bank account (remember them ?) you might be able to argue (and more importantly demonstrate) that is what the "unavaliable" funds has otherwise cost you.

[Amy]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Unless I'm missing something here, you did not pay any money under a mistake as in the case of Sempra Metals. Therefore, you could not have turned the money (that you paid in charges) into a profit or into anything else as it was never your money in the first place.

I'm more than happy to listen or to have someone try and persuade me differently, but I just do not see the relevance of Sempra.

[scoobydoo]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Thanks I do understand a bit better now - although I am not sure about the comparison with a lottery ticket as all you have is odds - whereas with an example of investing the money in gold or a recorded investment fund you could produce actual figures.

On the otherhand I agree that you could also quote investment in a piece of Damien Hirst "art" and where would that get you?

But I thank you both for your explanations - all is clearer now.

Jan

[Guest]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Only one response I can give to that Cetelco..........

“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 the Claimant of what the Revenue (Defendant) actually did with it. It was the opportunity to turn the money to account during the period of enrichment that passed from Sempra to the Revenue. This is the benefit which the Defendant is presumed to have derived from the money in its hands”

Maybe it would be easier if I were to post up my witness statement, I wish I could. There are reasons why I do not wish to do so at the moment.

Please wait a few days and I think all will become a bit clearer.

I believe that you have been somewhat selective in your reading. There is much more to the judgment that does not support your interpretation.

However, I will wait for you to post your witness statement when you are ready to do so.

[EXC]

Re: Judgment Handed Down ~ Budgie Vs Capital One



Very nice. Did you get a number then?

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Unless I'm missing something here, you did not pay any money under a mistake as in the case of Sempra Metals. Therefore, you could not have turned the money (that you paid in charges) into a profit or into anything else as it was never your money in the first place.

I'm more than happy to listen or to have someone try and persuade me differently, but I just do not see the relevance of Sempra.

Amy, virtually the whole of the judgment was based on new and emerging law based on Sempra. The Judge saw the relevance of Sempra and that's all that matters. It's not the easiest of things to explain and certainly not possible in a forum post.

As far as my own case is concerned, YES the charges were taken by a mistake, a legal mistake an unlawful act or whatever you wish to call it.

Again as far as I am concerned it doesnt matter what I would or could have done with that money that was taken. I have argued that it was the fact that they took it from me that was unjust enrichment and I have demonstrated to the Court that during the period of unjust enrichment the opportunity existed for them to further unjustly enrich themsleves by turning MY money to account.

In Sempra, the Inland Revenue didnt actually do anything to turn the money taken from Sempra to account. The benefit to the Inland Revenue was that they didn't have to borrow that money, if you like they had an interest free loan. So the Court decided that the unjust enrichment was the interest that the Inland Revenue had saved on not having to borrow the money. That interest was compound interest at the rate that the Inland Revenue would have been able to borrow the money at.

My claim is different in that I have demonstrated that Capital One had the opportunity to turn MY money to account.

In my claim I consider it is now just the level of that remedy that needs to be decided.

[stevokenevo]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Very nice. Did you get a number then?

where can i get myself one of those??? reggers::whip:

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One


where can i get myself one of those???


Capital One have them on special offer.
Get one free with every court claim !!!!

[Tafflaff]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Budgie you are a genius.

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

UPDATE :

PMSL, according to the Court the first available date after 2nd January 2009 is 24th February and they have scheduled assessment of damages hearing for that date.

No contact yet from Capital One.

Budgie

[ROBSTER]

Re: Judgment Handed Down ~ Budgie Vs Capital One


Wheels of justice on cruise control as per usual, I am sure Cap 1 will see sense and settle before the case (like probably the day before!). It’s too much of a hot potato for them to see through to completion. Just a long wait either way I'm afraid Bud. Well done for seeing it through thus far, I’m sure the time will fly in once Christmas kicks in!

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

UPDATE :

Capital One had until 10th December to submit any further witness statements or documents to the Court ( and me ) upon which they wish to rely at the final hearing.

I spoke to them yesterday and they have decided not to submit any further documentation.

I did however receive a letter from them yesterday which states :

"We write following the directions hearing on 24th November.
It is clear from the Judgment that in order for you to claim compound interest you must prove your losses. I have read the witness statement you prepared in advance of the hearing and note the losses you have claimed.
You have made reference to an unauthorised overdraft with a rate of interest at 28.8% and a debt consolidation loan with a compound interest rate of 16.3%. You claim to have used these funds to pay the default fees that you have been charged. However you have provided no evidence in support of this. Neither have you confirmed the precise amount loaned or the overdraft used to pay the fees.

To summarise, we therefore need you to:

1) Fully particularise the damages claimed; and

2) Provide clear evidence to support the damages claimed including evidence that the overdraft and loan funds were used to pay the default fees. These could include account statements, copy loan agreements and relevant correspondance between you and the banks."

I am not at all surprised by the approach they have taken, they are looking to push the burden of proof back onto me in an attemot to limit the potential damages against themselves ( pretty much as Cetelco suspected would be the case ).

Below is the Witness statement that I submitted to the Court.

1) Claimant’s interpretation of Judgment

In his Judgment, dated 11/10/08, District Judge xxxxxx stated in paragraphs;

Para 13. In my judgement, the case of Sempra went much further than West Deutsche. It is clear in my judgement that the way is open for the Claimant to obtain compound interest outside claims ordinarily framed either in fraud, breach of contract, or breach of a fiduciary relationship. What was had and received by the Defendant was an enrichment. It is the enrichment itself that has to be valued not anything more than that as Lord Hope has said. Accordingly, it seems to me that there is no impediment for this Claimant to seek compound interest.

Para 14. The Claimant has taken a commercial rate of 30.34% as a percentage to calculate compound interest. As Lord Hope said:-
“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 the Claimant of what the Revenue (Defendant) actually did with it. It was the opportunity to turn the money to account during the period of enrichment that passed from Sempra to the Revenue. This is the benefit which the Defendant is presumed to have derived from the money in its hands.

Para 15. It seems to me we are not concerned here with implied terms. Sempra is clear. The Court has a common law jurisdiction to award compound as well as simple interest as damages subject to the usual rules as to remoteness, mitigation and so forth. Similarly applying Sempra the Court has a power to award compound interest whereas here the Claimant has sought a restitutory remedy for the time value of the money paid under a mistake.

Para 16. Having reached this threshold I find for the Claimant on the issue as to whether he is able to claim compound interest................


The Claimant understands that this decision entitles him to present the interest element of the claim using either of two causes of action. Either as a claim for damages or as a restitution claim. The restitution claim requires the Defendant to disprove the gains alleged by the Claimant.

It is submitted that it is evident from the particulars of claim and the various witness statements and skeletal arguments presented to date that the Claimant prefers the latter cause of action. However, as directed by District Judge Stewart, the Claimant, in this witness statement will present arguments and proposals for settlement of the claim covering both causes of action.

2) Claimant’s duty to mitigate loss.

In his judgment, dated 11/10/08, District Judge xxxxxxxxx stated ;

“I remind myself that the Defendant made an offer to settle the claim for “£1,135.17 on a without admission basis. This is set out in paragraph 12 of the witness statement of Rachel Howey. The Claimant has a duty to mitigate his loss and I will require him to give evidence as to how and in what way he has attempted this since the Defendants maintain that the Claimant did not do so, ie. by accepting cheques when they tendered them.”

Paragraph 12 of the witness statement of Rachel Howey dated 29th July 2008 stated ;

To settle the matter, the Defendant offered to pay the Claimant £1135.17 on a without admission basis. This amount is for the following sums:
i.Default fees claimed in the sum of £739;
ii.Interest charged to the Claimant’s account on fees and purchases from March 2001 until May 2003 on both fees and purchases ( interest charged on fees and purchases is charged at the same rate “purchase interest” ) in the sum of £97.66;
iii.Statutory interest at 8% per annum in the sum of £73.51; and
iv.The Court fee of £225

The Claimant avers as follows ;

That the Defendant did not actually make an “offer” to settle the claim on the above basis. The Claimant submits that the Defendant attempted to force a settlement upon the claimant by crediting money against the Claimant’s account and by sending numerous cheques to the Claimant. The Defendant only attempted this exercise once the Claimant had commenced his claim in the County Court and at the time when they were due to submit the original defence. The Defendant then argued in the originally submitted defence that ;

“These refunds are made purely as a gesture of goodwill and Capital One will now defend the claim on the basis that the correct amount has been paid in full”

Despite the Claimant refusing to accept the Defendant’s forced payments and requesting reversal of the forced credit to the Claimant’s account and returning all and any cheques issued by the Defendant, the Defendant continued to maintain that the claim had been settled in full. Indeed in it’s amended defence the Defendant stated ;

Paragraph 3 – “As a matter of goodwill and on a without admission of liability basis the Defendant has already refunded the following amounts ………………”
And paragraph 7 - “The Defendant has refunded the fees in their entirety and therefore they are no longer a disputed issue. In addition the Defendant refunded ………….”

The Claimant submits it was his understanding that to have retained any of the alleged forced payments made by the Defendant would have prejudiced the compound interest element of his claim. Although the Defendant claimed to have made an offer and that payments were made as a goodwill gesture the Claimant avers that the wording of the supposed “offer” is quite clear in that the Defendant considered it to be intended as a full and final settlement.

As stated in the Claimant’s witness statement dated 19th July 2008.

“The Claimant wishes to advise the Court that the reasons for wishing to keep his entire claim intact are not vexatious. The Claimant contends that he wished his claim for compound interest to be viewed in the context of the instant claim rather than in isolation. Contrary to the Defendant‘s pleading in Paragraph 11 of the amended defence the Claimant does in fact consider that the instant claim is a restitution claim.
The Claimant is aware that, in a restitution claim, the Claimant is required to establish one of the prescribed causes of action referred to as ‘unjust factors’. The Claimant considers that to have accepted any form of gesture of goodwill offer from the Defendant would infer, as the Defendant pleads in its amended defence, that the default charges were no longer a disputed issue. Furthermore, the Claimant submits that by retaining the forced payments made by the Defendant he would also have been deemed by the Court to have accepted the Defendant’s erroneous calculation of statutory court interest. With all of these factors in mind, the Claimant therefore decided it was necessary to keep his entire claim intact and so refused the Defendants “gesture of goodwill”.”


3) Claimant’s re-definition of the Value of the Claim

The Defendant, in the witness statement of Rachel Howey dated 29th July 2008 detailed a “settlement recalculation” Paragraphs 20 to 23 which the Claimant considers replaced the original settlement calculation as detailed in paragraph 12 of the same witness statement.

The judgment of District Judge xxxxxx confirmed permission for the Claimant to amend his claim which the Claimant wished to amend for three reasons, the receipt of the additional account statements provided by the Defendant, the Claimant’s part acceptance of the explanation provided in the paragraphs 20 – 23 of the above referenced witness statement of Rachel Howey and also the Claimant’s further research concerning the rate of compound interest he sought to claim.

For the avoidance of doubt and taking onto account the Judgment of District Judge xxxxxxxxx the Claimant therefore wishes to confirm the present status of his claim ;

The Claimant seeks ;

i)Waiving of the default charges which have been applied to the account but not actually paid across to the Defendant by the Claimant totaling £220.

ii)Return of default charges actually paid to the Defendant by the Claimant, as detailed in the attached spreadsheet and totaling £639.

iii)Compound interest in respect of the default charges in (ii) above at a rate and calculation method to be decided by the Court. This interest to be calculated from the date of application of each default charge to the account through to a date to be decided by the Court. The Claimant suggests a rate of 30.34% and that this rate of interest is applied from the date of each charge through to the date of handing down of judgment.
iv)Return of Court fees incurred by the Claimant, Filing claim £225, AQ £200, Application hearing £75, Final Hearing fee £300 ; Totaling £800.

v)The Claimant accepts that the Defendant may deduct from the total settlement an amount of £373.55 to clear the revised balance of the account. The revised balance of the account being £593.55 – £220 ( the waived default charges detailed in (i) above).

vi)The Claimant also requests the removal of all prejudicial information which the Defendant has passed to third parties in relation to the Claimant’s 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 the Claimant also requests the removal of any late payment markers which have also had a negative effect on the Claimant’s ability to obtain alternative credit.

vii) Any other costs allowed by the Court.

The Claimant therefore contends that the main remaining issue to be decided by the Court is the rate and method of calculation to be used in respect of the compound interest element of the claim. The Claimant’s arguments and proposals in respect of the two specified causes of action in this respect are detailed in (4) below.


4) Compound Interest element

a)As a damages claim

The Claimant contends that the actions of the Defendant in applying the relevant default charges to the account caused the Claimant considerable loss.

i)The monies so taken in default charges by the Defendant could have been used by the Claimant for reduction of the balance of his credit card account in respect of the purchases and cash advances attributed to the account. Reduction of the balance on the account would have resulted in reduced interest charges being levied to the account by the Defendant. The Defendant charged the Claimant interest at an applicable rate of 30.34% per annum on both purchases and cash advances and that interest rate was applied on a compounded daily basis.

Alternatively

ii)It is averred that the financial circumstances of the Claimant were not such that he would have been able to invest the monies taken by the Defendant in default charges into an interest bearing savings account. The losses applicable to the Claimant are the cost to the Claimant in replacing money, levied by the Defendant in default charges, from other sources of borrowing that were available to the Claimant at the time. Owing to the Claimant’s poor credit history, which was not improved by the Defendant’s passing of default information to the credit reference agencies, the only form of personal current account overdraft available to the Claimant was an unauthorized overdraft with an applicable rate of compound interest charged at 28.8%. The Claimant actually took out a secured loan in 2001 for the purposes of debt consolidation; a compound interest rate of 16.3% per annum was applicable to this secured loan.


b)As a restitution claim

This is the Claimant’s preferred cause of action and is accurately summarised in the Judgment of District Judge xxxxx, paragraph 5 ;

“5. In essence as I understood the argument he advances Mr xxxx seeks the grant as he put it of personal restitutory relief at common law by an award of compound interest to achieve full restitution from the Defendants who have had use of these penalty charge payments that he has made of £739. He says in essence that the sums applied by the Defendants by way of these charges were unlawfully applied and that it would only be equitable to him to receive restitution since the Defendants would have been unjustly enriched by the application to his account of these penalties. He seeks to apply the compound rate of 30.34% but he tells me that the Defendants have only offered 8% simple interest. This really is the only issue between the parties but it is an important one.”

Note : the figure of £739 in the above paragraph is incorrect and should read £639.

District Judge xxxxxxxx also made reference to several paragraphs of “Sempra” within his judgement which are extremely relevant to the Claimant’s restitutory claim ;

8……….Lord Hope said this at paragraph 7 of his lead judgment in Sempra “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.

9. He went on in the same paragraph to add this:-
“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 has to be valued, not anything more than that”.

14. The Claimant has taken a commercial rate of 30.34% as a percentage to calculate compound interest.
As Lord Hope said:-
“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 the Claimant of what the Revenue (Defendant) actually did with it. It was the opportunity to turn the money to account during the period of enrichment that passed from Sempra to the Revenue. This is the benefit which the Defendant is presumed to have derived from the money in its hands”

The Claimant has contended throughout the course of the instant claim that the Defendant, in applying these default charges, has been unjustly enriched. This unjust enrichment has occurred not just by the Defendant applying default charges, but also by the Defendant then being able to turn the Claimant’s money to account in the normal course of its business.

The Claimant acknowledges that the Defendant, in its normal day to day business, uses a variety of differing rates and methods to calculate interest on balances owed by Customers. The rate varies depending on the type of credit card, the credit history of the individual Customer, the credit limit applied to the account and whether the interest is being charged for purchases or for cash advances. The applicable rates used by the Defendant range from 8.22% to 30.34% on purchases and 23.29% to 30.34% on cash advances.

The Claimant’s credit card account in the instant case 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 which equates to an applicable rate ( for interest calculation ) of 30.34 % on cash advances and purchases.

The Claimant avers that the Defendant, being a major provider of credit card facilities is likely to have many thousands of Customers to whom it has provided the same type of credit card as provided to the Claimant.

The Claimant avers that the opportunity existed for the Defendant to use the default charges taken from the Claimant to provide credit ( to finance either purchase or cash advances ) to a considerable number of those other Customers and has subsequently charged those other Customers interest at the applicable rate of 30.34%. This is the benefit that the Claimant presumes the Defendant to have had from the use of the Claimant’s money.

The Claimant contends that it is not necessary for the Claimant to provide proof of the extent of the full unjust enrichment of the Defendant. The Claimant submits that it is only required that he demonstrate that the opportunity existed for the Defendant to turn the Claimant’s money to account for the period of the unjust enrichment.

District Judge xxxxxxxxx has confirmed in paragraph 13 that the Defendant has been unjustly enriched by applying default charges to the Claimant’s account.

The Claimant therefore submits that should the Defendant be unable or unwilling to provide the Court with strict proof that that there was not an opportunity to turn the Claimant’s money to account during the period of unjust enrichment then the Court should grant judgment in favour of the Claimant with respect to the rate and method of calculation of the compound interest element of the claim, order payment of the Claimant’s full claim and also order that the Defendant should pay the Claimant’s costs.

Attachment : Updated spreadsheet of Claimant detailing the relevant default charges and updated calculation of claimed compound interest.


I pretty much know what my next move is likely to be but would of course, as always, appreciate the advice and views of anyone who is inclined to offer.

[Curlyben]

Re: Judgment & Beyond ~ Budgie Vs Capital One

In S 3 vii) you umention your costs.
I'd be inclined to throw a whole bunch of LIP in there at the normal £9.25 per hour.

Otherwise, WoW.

I think you have more room with the restitution claim then with damages.
There's certainly growing case law in this area, alot of which is under gagging orders, for obvious reasons.

[fuzzybrain]

Re: Judgment & Beyond ~ Budgie Vs Capital One

All I can say is - bloomin heck!!! You really know your stuff and if i were Cap 1 i'd be shaking in my boots right now!!

Well done on this, I think it's amazing what you are achieving - Perhaps we should change your name to King Budgie!!!