Judgment & Beyond ~ Budgie Vs Capital One

[Budgie]

Re: Budgie Vs Capital One

Have you read this thread?

Legal Beagles

I think you should, in particular the discussions regarding the claiming of interest at such a rate and any arguable justification for it.

Hi Dan, yes I have thanks.

I am familiar with Sempra and can also demonstrate that only source of money available to me at the time would have been at extortionate interest rates, similar to those I have asked the court to consider awarding in this claim. I also had a business opportunity at the time in which I could have invested that would have yielded me a return in excess of the rate of interest I am claiming so think I am covered in that respect as well.

I know I am taking a risk and aware of the possible consequences but want to really give it a good go. If they settle before filing defence great if not then will have my day in Court.

[Budgie]

Re: Budgie Vs Capital One

Updated response letter, thanks Tools and Ame. Comments would be appreciated!

I refer to your letter dated 23rd April 2008. Your reference xxxxxxxxxxxxxx.
I refuse the refunds that you are proposing to make as a “gesture of goodwill” and respectfully request that you reverse the payment which you claim to have made to my account on 23rd April 2008. I will also return the Cheque which you claim you intend to send me within 21 working days.
The Particulars of Claim filed with Claim Number xxxxxxxxx quite clearly state the arguments to be adopted in support of my claim together with my request for return of the unlawful penalty charges applied to my account and justification for payment of compound interest as well as the Court fee. I do not therefore, at this moment, intend to further debate the particulars of claim with you.
I confirm that I have written to the Court today advising them that I have refused the refunds that you are proposing and that I consider my claim to be proceeding as previously directed by the Court.
Should you wish to settle this matter, without any admission of liability on your side, then I confirm that I would only consider an offer equivalent to the total value of my originally filed claim, £6725.55. Please note that according to the particulars of claim, interest is continuing to accrue on a monthly compounded basis so early settlement of this claim would be beneficial to Capital One and would also save wasting any more of the Court’s valuable time in this matter.
As requested in the particulars of claim, 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.

[Guest]

Re: Budgie Vs Capital One

Hi Dan, yes I have thanks.

I am familiar with Sempra and can also demonstrate that only source of money available to me at the time would have been at extortionate interest rates, similar to those I have asked the court to consider awarding in this claim. I also had a business opportunity at the time in which I could have invested that would have yielded me a return in excess of the rate of interest I am claiming so think I am covered in that respect as well.

I know I am taking a risk and aware of the possible consequences but want to really give it a good go. If they settle before filing defence great if not then will have my day in Court.

In post #27 I detail some more about this but Sempra Metals Ltd v Inland Revenue relates to an award of compound interest only in relation to the particular issues being decided in that case and only because of the nature of that case.

In addition, you must also consider that restitution does not necessarily mean recovery of all gains made by the Defendant. Certain other factors are relevant to the measure of recovery. (see Boardman v Phipps [1967])It should also be noted that all claims in restitution that I have managed to find are based on the premise that the contract breaker is also the defendant. This is not the case with us as we are breaching the contract, yet are claiming damages arising from the levying of charges as a result of our breach. Teacher v Calder (1898) 25R 661; (1899) 1 F (HL) 39 makes clear that the orthodox position is that damages are not measured by the defendant’s gains from breach of contract.

[Budgie]

Re: Budgie Vs Capital One

In post #27 I detail some more about this but Sempra Metals Ltd v Inland Revenue relates to an award of compound interest only in relation to the particular issues being decided in that case and only because of the nature of that case.

Thanks Dan. I have re read your referenced post and don't agree with your statement quoted above.

I spent some time studying Sempra with Brechiner at RUC and believe that the key points listed below can be sucessfully applied to our claims. I am going to proceed on this basis. If Capital One settle in full before offering a sensible defence then all will be well. If they decide they are going to offer defence against my Sempra based claim then I will have to sharpen my pencil and pick up again on previous work. I am prepared to take the chance, it's my claim after all.

Please don't worry too much about a discussion about this at the present time, we all have enough to do analysing the Test Case Judgment and preparing for the next phase. However, you certainly appear to have done a lot of work on this in the past and I would appreciate your help if it comes to a battle

Rgds Budgie


Key points in Sempra :-

Lord Hope of Craigavon

22. I also think that the time has come to recognise that the court has jurisdiction at common law to award compound interest where the claimant seeks a restitutionary remedy for the time value of money paid under a mistake.

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."

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.

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.

Compound interest in domestic law

41. The fundamental point, however, is this. Compound interest is a necessary, and very familiar, fact of commercial life. As the Law Commission said in its Consultation Paper on "Compound Interest" (2002, No 167), para 4.1, the obvious reason for awarding compound interest is that it reflects economic reality. In its "Discussion Paper on Interest on Debt and Damages" (No 127, 2005), para 8.18 the Scottish Law Commission said that it endorsed the view of the Law Society of England and Wales in their response to the Law Commission's Consultation Paper that "simple interest never provides a full indemnity for the loss to the litigant." In para 8.38 the Scottish Law Commission said, having examined the arguments either way, that it was inclined to the view that the case against the compounding of interest was essentially a case against interest itself. Computation of the time value of the enrichment on the basis of simple interest will inevitably fall short of its true value. Such a result would conflict with the principle that applies in unjust enrichment cases, that the enrichee must give up to the claimant the enrichment with, as Professor Birks put it in Unjust Enrichment (2nd ed), p 167, no hint of a restriction to giving back. In my opinion the compounding of interest is the basis on which the restitutionary award in this case should be calculated.

Conclusion

50. For these reasons I agree with Lord Nicholls and Lord Walker that Sempra's claim for restitution ought to be measured by an award of compound interest at conventional rates calculated by reference to the rates of interest and other terms applicable to borrowing by the Government in the market during the relevant period. I would vary para 3 of the judge's order to that effect. I would delete para 2 of the Court of Appeal's order because the assumption on which it was based, that ordinary commercial rates of interest would be used, is being departed from. Otherwise I would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

52. We live in a world where interest payments for the use of money are calculated on a compound basis. Money is not available commercially on simple interest terms. This is the daily experience of everyone, whether borrowing money on overdrafts or credit cards or mortgages or shopping around for the best rates when depositing savings with banks or building societies. If the law is to achieve a fair and just outcome when assessing financial loss it must recognise and give effect to this reality.

Interest benefits and restitution

101. Against this background I turn to the two restitutionary causes of action asserted by Sempra. Sempra's claim is that it paid ACT in response to an unlawful demand and under a mistake of law. On both these bases the Inland Revenue's receipt of ACT comprised unjust enrichment at the expense of Sempra. Of these two formulations Sempra much prefers the second because of the extended limitation period applicable under the Limitation Act 1980, section 32(1)(c). Sempra's claim is that under both causes of action restitution requires the Inland Revenue to pay Sempra the value of the benefit the Inland Revenue obtained by having use of the money Sempra paid as ACT.

102. In principle this claim is unanswerable. The benefits transferred by Sempra to the Inland Revenue comprised, in short, (1) the amounts of tax paid to the Inland Revenue and, consequentially, (2) the opportunity for the Inland Revenue, or the Government of which the Inland Revenue is a department, to use this money for the period of prematurity. The Inland Revenue was enriched by the latter head in addition to the former. The payment of ACT was the equivalent of a massive interest free loan. Restitution, if it is to be complete, must encompass both heads. Restitution by the Revenue requires (1) repayment of the amounts of tax paid prematurely (this claim became spent once set off occurred) and (2) payment for having the use of the money for the period of prematurity.

103. In the ordinary course the value of having the use of money, sometimes called the 'use value' or 'time value' of money, is best measured in this restitutionary context by the reasonable cost the defendant would have incurred in borrowing the amount in question for the relevant period. That is the market value of the benefit the defendant acquired by having the use of the money. This means the relevant measure in the present case is the cost the United Kingdom government would have incurred in borrowing the ACT for the period of prematurity. Like all borrowings in the money market, interest charges calculated in this way would inevitably be calculated on a compound basis.

The present position in English law

104. The present state of English law does not accord with this analysis. At present the court is considered to have no jurisdiction, that is, no power to make an award of compound interest on a personal claim for restitution of a sum of money paid by mistake or following an unlawful demand. The court has power to make an award of simple interest under section 35A of the Supreme Court Act 1981. But, as the authorities now stand, English law does not recognise that a restitutionary award at common law should include restoration to the claimant of the time value of the money he transferred to the defendant and which the defendant enjoyed by having the money in his possession.

105. How did this divergence from reality come about? How is it that, to paraphrase Lord Goff's words in Westdeutsche Landesbank Girozentrale v Islington London B C [1996] 669, 691, English law is revealed as incapable of doing full justice? Once more the answer lies in the historical origin of this area of the law. The restitutionary cause of action relied upon by Sempra derives from a contrived extension of the indebitatus assumpsit form of action. A plea of 'money had and received to the plaintiff's use' was regarded as apt where a defendant was under an obligation 'from the ties of natural justice' to refund money to the plaintiff. This plea appears to have been in common use from the early 17th century. The law implied a debt, and gave a cause of action, 'as it were upon a contract', in the well known words of Lord Mansfield CJ in Moses v Macferlan 2 Burr 1005, 1008. Lord Mansfield likened this to a claim 'quasi ex contractu, as the Roman law expresses it'.

106. That was in 1760. Heavily influenced by the fictitious nexus with a claim for breach of contract, the courts set themselves against awarding interest on a claim for money had and received: see Walker v Constable (1798) 1 Bos & Pul 306, De Havilland v Bowerbank (1807) 1 Camp 50, per Lord Ellenborough, De Bernales v Fuller (1810) 2 Camp 426, Depcke v Munn (1828) 3 Car & P 112, per Lord Tenterden CJ, and Fruhling v Schroeder (1835) 2 Bing (N C) 78. This approach culminated in the Privy Council decision in Johnson v The King [1904] AC 817. On a claim for repayment of money paid by mistake the Board considered an order for payment of interest would be inconsistent with the law as settled in London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. In other words, in the London, Chatham and Dover Railway case your Lordships' House had decided that at common law a court had no jurisdiction to award interest on the late payment of a debt. The position was the same regarding an award of interest on a claim for repayment of money paid by mistake because a claim for repayment of money paid by mistake is founded on an implied contract.

109. The court has jurisdiction to award simple interest under section 35A of the Supreme Court Act 1981, because 'debt or damages' in section 35A includes any sum of money recoverable by one party from another: see BP Exploration Co (Libya) Ltd v Hunt (No 2) [1983] 2 AC 352. But no interest, whether compound or simple, is recoverable at common law. Sometimes interest, compound as well as simple, is recoverable in equity.

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.

114. I add that, as with awards of compound interest as damages for non-payment of a debt, so also with awards of compound interest as restitutionary relief in respect of a defendant's unjust enrichment: such awards do not conflict with section 35A of the Supreme Court Act 1981. As already noted, section 35A is concerned with interest on 'a debt or damages'. An amount of money recoverable as restitutionary relief falls within this phrase. Section 35A bites on that amount. But section 35A says nothing about the principles to be applied by the courts at the anterior stage when assessing the amount of money required to achieve full restitution.

An effective remedy

130. I can now state my conclusion on whether English law provides an effective remedy for the United Kingdom's breach of article 43 of the Treaty. In my view it plainly does. For the reasons given above, compound interest is available under English law when quantifying the extent of Sempra's losses and when quantifying the extent of the Inland Revenue's unjust enrichment.

131. I would not refer a question to the ECJ for preliminary ruling. A reference to the ECJ is not necessary. It would serve no useful purpose. English law provides for compound interest to be awarded or taken into account when quantifying the financial remedies available to Sempra under the three asserted causes of action. There would be no point in seeking a ruling on whether Community law requires payment of compound interest. Subject to the variation in the judge's order mentioned above, I would dismiss the appeal.

150. There is a final point to which I should refer, namely, whether, if the law does allow Sempra a claim to interest as a restitutionary remedy, the remedy should be regarded as a remedy as of right or as an equitable, and therefore discretionary, remedy.

151. The discussion about whether interest on money paid by mistake can be recovered as part of a restitutionary remedy has led your Lordships to consider claims to interest on debts, on contractual damages, and on tortious damages as well as on money paid by mistake. I concur with your Lordships in concluding that interest, whether simple or compound, can represent an item of contractual damages or tortious damages, subject to the normal rules applicable to such claims.

164. "The issue here is not about interest on damages but about interest as damages."

The thrust of Lord Nicholls' observations on interest benefits and restitution (paras 101 et seq of his opinion) might be encapsulated similarly as being 'not about interest on restitution but about interest as restitution.'

[Budgie]

Re: Budgie Vs Capital One

Received in post this morning.

Not just one but TWO cheques from Capital One for £541.62 each ( different cheque numbers )

According to their letter, which I received yesterday, they were going to send ONE cheque for £541.61 and said that I should receive this within 21 WORKING DAYS

They really have got this down to a fine art haven't they !
What a bunch of plonkers !!

Cheques will be sent back to them on Monday with my rejection letter.
Unless another 11 identical cheques happen to arrive in the post on Monday. Wouldn't surprise me !!

[Budgie]

Re: Budgie Vs Capital One

Updated letter is below, sent by fax and post to Capital One today. Also returned the two cheques to them by post. Also copies of all correspondance sent to Court.



Dear Ellie Renshaw,

I refer to your letter dated 23rd April 2008. Your reference XXXXXXXXXXXXX.
I refuse the refunds that you are proposing to make as a “gesture of goodwill” and respectfully request that you reverse the payment which you claim to have made to my account on 23rd April 2008. I will also return the cheque which you claim you intend to send me within 21 working days. In fact I actually received two separate cheques from you on 26th April 2008 ( Numbers xxxxxxxx and xxxxxxxx, each for £xxx.xx ) both of these are being returned to you and are attached. Please provide written confirmation to myself and to the Court that you have reversed the payment which you claim to have made to my account on 23rd April 2008 and that you have received the enclosed cheques.
The Particulars of Claim filed with Claim Number xxxxxxxxxxxxx quite clearly state the arguments to be adopted in support of my claim together with my request for return of the unlawful penalty charges applied to my account and justification for payment of compound interest as well as the Court fee. I do not therefore, at this moment, intend to further debate the particulars of claim with you.
I confirm that I have written to the Court today advising them that I have refused the refunds that you are proposing and that I consider my claim to be proceeding as previously directed by the Court.
Should you wish to settle this matter, without any admission of liability, then I confirm that I would consider an offer equivalent to the total value of my originally filed claim, £xxxx.xx. Please note that according to the particulars of claim, interest is continuing to accrue on a monthly compounded basis so early settlement of this claim would be beneficial to Capital One and would also save wasting any more of the Court’s valuable time in this matter.
As requested in the particulars of claim, 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.
Budgie

[Budgie]

Re: Budgie Vs Capital One

Guess what arrived in the post this morning.

Yep, you guessed it, another cheque for £541.62.

They are sneaky critters.

OK, well I used to like playing tennis, so off it goes back in the post tonight. Just drafting a suitable accompanying letter.

Budgie

[Amethyst]

Re: Budgie Vs Capital One

pmsl

[Budgie]

Re: Budgie Vs Capital One

OK, here for reference is the letter I have prpeared to send back with the third cheque for £541.62.

Dear Ellie Renshaw,

I refer to your letter dated 23rd April 2008. Your reference xxxxxxxxxxxxx and my reply dated 28th April 2008. I am writing to confirm that I have received yet another Cheque from you for £541.62. Cheque (number xxxxxxxxxx ) arrived in an envelope today with no explanatory letter.

I am returning this Cheque to you as I presume it has been sent in error. If you have not sent in error then I would respectfully request that you re-read my letter dated 28th April 2008 wherein I indicated my refusal to accept your settlement proposal. Incidentally, please note that I am awaiting written confirmation from you that you have reversed the payment which you claim to have made to my account on 23rd April 2008 and also that you have received the two cheques (numbers xxxxxxxx and xxxxxxxxx ), each for £541.62 that I returned to you with my reply letter dated 28th April 2008. I also request that you provide written confirmation of receipt of the enclosed additional Cheque ( xxxxxxxx ) upon receipt of this letter.

I would like to draw your attention to my Particulars of Claim from which I quote.

“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.”

I believe that this is a clear indication to you that I do not intend to accept any partial offer against my claim. I therefore respectfully request that you refrain from making any further partial payments into my account, or from sending partial payments by Cheque as these will only be returned to you, without further explanation.

You are already aware of what is necessary to settle my claim and should you wish to do so without any admission of liability, then I once again confirm that I would consider an offer equivalent to the total value of my originally filed claim, £6725.55. Please note that according to the particulars of claim, interest is continuing to accrue on a monthly compounded basis so early settlement of this claim would be beneficial to Capital One and would also save wasting any more of the Court’s valuable time in this matter.

I confirm that a copy of this letter has also been sent to the Court today.

[Budgie]

Re: Budgie Vs Capital One

OOOOhhhh.

Postman's just been.

No not another cheque LOL

This time it's the notice of filed defence from the Court.

Just having a read and will post up later.

Budgie

[Amethyst]

Re: Budgie Vs Capital One

Lovely

[Budgie]

Re: Budgie Vs Capital One

Here you go.

I pretty much know how I am going to handle this but would appreciate anyone elses views before I commit pen to paper.

Comparing their defence to my POC,

They have basically just re confirmed my account details. They appear to have admitted that the default fees are a penalty for a breach of contract but denied that they are unlawful. Argued that they are based on costs incurred when I breached contact, but not supplied any proof as to what their costs actually are. So that makes that part nice and easy doesnt it.

They have NOT denied my arguments for compound interest they have merely stated that they believe it to be 'incorrect' they then say I am claiming £5761.55 for interest "INCURRED" ( I do not refer to interest incurred in my POC ) and then argue that they only apply their purchase interest rate to charges and stated details of the purchase interest they have applied to my account. As I have not reclaimed for purchase interest this is therefore irrelevant.

In my POC I am asking the Judge to consider awarding compound interest by virtue of my claim that I consider Capital One to have been unjustly enriched by their actions. As Capital One have not defended against my claim that they have been unjustly enriched I believe I am able to argue that they have admitted it. LOL

Also as they are not admitting liability I believe their Gesture of goodwill is therefore purely an offer to settle at a lower amount than I have claimed and not a full settlement of the claim as they suggest. As you can see from earlier posts I have refused this offer and returned the payments to them and will keep doing that everytime they send me similar payments until we get to Court.

I think you can follow how I am going to proceed.

I plan to write a letter to the Court and Capital One.

Would be interested to hear anyone's views on the above reasoning.

Budgie

PS, They haven't even contested the pre six years portion of may claim.!!!!!!!!!!!!!!!!!

[Budgie]

Re: Budgie Vs Capital One

OK Here's a draft of an application I intend to send to the Court later this week to have Capital One's defence struck out. Am just working on my reply to the Defence and will post that a bit later. The two docs will go into the Court together.

I found the basics of this on CAG and have adapted it for my own claim.

Suggestions and comments would be appreciated !

Application Notice - Will ask for this to be heard at a hearing



Order sought

(1) The Defendants Defence be Struck Out

(2) Summary Judgment be granted in favour of the Claimant, as sought in the Particulars of Claim.


Because

(1) The Defendants Defence discloses no reasonable grounds for defending the claim.


(2) The Defendants Defence does not adequately deal with most of the pertinent grounds contained within the Particulars of Claim.


(3) The Defendants Defence has no reasonable prospect of success.


(4) The Defendant has issued a frivolous and vexatious Defence


Part C

The Claimant wishes to rely on the following evidence in support of this application:

(1) All abbreviations/references remain as defined in the Particulars of Claim and the Reply to Defence unless it is stated otherwise below.

(2) The Defence discloses no reasonable grounds for defending this claim.


(3) The Defence does not comply with CPR 16.5(1), in that the Defence has failed to deny, admit or required the claimant to prove, all each and every allegation in the Particulars of Claim. In these circumstances the Defendant is taken to admit to all allegations that have not been covered by the Defence.


(4) The only allegation the Defence has answered is that the Claimant contends that the charges are unlawful; therefore according to the rules of CPR 16.5(3) all other allegations are admitted.


(5) The Defence does not deny, as detailed in paragraphs 7 and 8 of the Claimant’s Particulars of Claim, 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.

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), the Unfair Contract Terms Act 1977 and the common law.

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.

As well as not having denied these allegations, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3) (b) in the Defence with relation to these allegations. Accordingly, the Defendant is taken to admit these allegations. As the Defendant admits these allegations there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.

6) The Defence does not deny that the Claimant is entitled to claim from the Defendant interest at its own published rate of interest, which would allow the Claimant a full remedy and complete restitution of the wrongful and unjust gains of the Defendant. In fact, the Defendant merely states that he believes the Claimant’s calculations to be incorrect. Additionally the Defendant argues that the Claimant is claiming for interest incurred. This is not the case in this claim, as is clearly detailed in Paragraph 9 of the Claimant’s Particulars of Claim :-

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 Claimants 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 Claimants instant case.

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 be 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.

As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3) (b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.


(7) The Defence states that its basis of defence is that the correct amount has been paid in full, this statement is untrue. The Defendant refers in their Defence to a Gesture of Goodwill Offer, made without admission of liability by the Defendant. This same offer was made in writing to the Claimant in a letter dated 23rd April 2008 and was refused bty the Claimant. Copies of the Defendant’s offer and the Claimants refusal letter, dated 28th April 2008, plus a copy of a further letter from the claimant to the Defendant dated 1st May 2008 have already been sent to the Court by the Claimant.
Cheques sent to the Claimant, including two received on 26th April 2008 and a further cheque received on 1st May 2008 have been returned to the Defendant and the Claimant has requested that the Defendant reverses a credit which it also claims to have made to the Claimant’s account. The Claimant has also requested written confirmation from the Defendant that the returned cheques have been received by the Defendant and that the payment claimed to have been made to the Claimant’s account has been reversed. The Claimant confirms that no alternative offers of settlement have since been made by the Defendant.

(8) The Defence is both frivolous and vexatious. The Defendant has had many cases concerning its default charges raised against it by Consumers. These cases are usually settled for the full amount just before the court trial date. This ensures that the Defendant isn’t required to justify its charging regime but does result in a lot of wasted Court time, especially when considering that these matters could easily be settled for the full amount when the claims are initially issued (or even at the letter before action stage).


(9) Accordingly, the Claimant requests that this court should seek to give effect to its overriding objective and strike out the Defence at this early stage so that no more valuable court resources are wasted in dealing with a claim, where the defence to which has absolutely no prospect of success and the Defendant will almost certainly settle for the full amount anyway.


10) In view of the above averments and the Statement of Claim the Claimant respectfully requests that the Defence should be struck out and summary judgment granted in favour of the Claimant, as sought.

[stevokenevo]

Re: Budgie Vs Capital One

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(4) The Defendant has issued a frivolous and vexatious Defence


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Hopefully the judge does not reckon you have issued a frivilous and vexatious claim!

Good luck mate, my fingers will be Xd for you :okay:

[Budgie]

Re: Budgie Vs Capital One

Hopefully the judge does not reckon you have issued a frivilous and vexatious claim!

Good luck mate, my fingers will be Xd for you :okay:

How could he possibly think that !!!!