Judgment & Beyond ~ Budgie Vs Capital One

[Amethyst]

Re: Budgie Vs Capital One

Application Notice

Order sought

(1) That 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 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.



Sorry I'd lose all that red bit



(7) The Defence states that its basis of defence is that the correct amount has been paid in full.

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 by the Claimant, in a letter dated XXXXX,

Copies of the Defendant’s offer (assume not without prejudice then) 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.
Take out that bit.


(8) The Defence is both frivolous and vexatious. The Defendant has had many cases concerning its default charges raised against it by Consumers. oops the next couple lines deleted


(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 in order to save valuable court time.

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.[/quote]

[Budgie]

Re: Budgie Vs Capital One

No further post received from Capital One this week. Will see what the weekend brings.

I f nothing on Monday then I intend to file the following Application notice and interim defence rebuttal.

Comments would be welcomed.


Application Notice

Order sought

(1) That 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 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, paragraphs 7 and 8 of the Particulars of Claim. As well as not having denied these allegations, the Defendant hasn’t dealt with these 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. 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 particularised in Paragraph 9 of the Particulars of Claim. 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. The defence refers to a Gesture of Goodwill Offer, made without admission of liability. This same offer was made in writing to the Claimant in a letter dated 23rd April 2008 and was refused by the Claimant in a letter dated 28th April 2008.,
Copies of the Defendant’s offer and the Claimants refusal letter 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.

(8) The Defence is both frivolous and vexatious. The Defendant has had many similar cases concerning its default charges raised against it by Consumers. 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 in order to save valuable court time and expense.

9) 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.



REPLY TO DEFENCE
________________________

THE DEFENCE IN GENERAL

1. The Claimant is unable to fully reply, or even completely comprehend, the Defendant’s Defence, which was served upon the Claimant via xxxxxxxxxxxxx Court and dated 1stxx/xx/xxxx (hereinafter referred to as the ‘Defence”). Therefore, until the Defendant better particularises its Defence the Claimant cannot fully reply to it. The Claimant reserves his right to plead further when, and if the, Defendant rectifies the Defence (should it be allowed to by virtue of a relevant statute). Nothing in this paragraph, Reply or the Particulars of Claim (hereinafter referred to as the “PoC”) should be construed as giving the Defendant the right to plead further at a later date. Nothing in this paragraph, Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.
2. Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.
3. The Claimant’s PoC is repeated, with the following additions, deletions, replacements, amendments, clarifications, deletions, etc. For the avoidance of any doubt, all references remain as defined in the PoC, unless it is stated otherwise in this Reply.
4. The entirety of the Defence is denied, save as it is otherwise pled, or implied, by the Claimant hereinafter.

SPECIFIC REBUTTALS TO THE DEFENCE


5. Paragraph 1 of the Defence is denied in it’s entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a) The claimant admits that his claim is for the total sum of £6725.55 and is in connection with the default sums charged to the Claimants account.
b) The Claimant denies that his claim for interest is on the basis of it having been charged to his account. The Claimant’s argument for interest is clearly particularised in paragraph 9 of the Claimant’s PoC.

6. Paragraph 2 of the Defence is admitted in it’s entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a) In response to the Defendant’s claim that the default sums, applied to the Claimant’s account, are not unlawful and are based on the costs incurred by the Defendant owing to the Claimant’s breaches of contract. The Claimant denies these points and argues that these points have been clearly particularised in para. 7 of the Claimants PoC.

7. Paragraph 3 of the Defence (Defendant’s contention that the Claimants interest amounts are incorrect ) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.


a. The Claimant’s case is that the Defence seems to assume that the Claimants interest calculations are referring to the amount of interest the Defendant charged the Claimant, this assumption is incorrect and the Claimant refers the defendant back to paragraph 9 of the Claimant’s PoC which clearly particularises the Claimants arguments for interest to be calculated based upon money owed and not claiming back interest incurred as stated in Defence, therefore Claimants interest calculations are correct.

8. Paragraph 4 and 5 of the Defence (Defendant’s contention that that the Defendant has or will refund a total of £1135.17 to the Claimant are neither admitted or denied.

a) The Defendant made the same offer in a letter to the Claimant dated 24th April 2008. Claimant rejected the offer of said amount in writing on 28th April 2008 and has returned any cheques since sent by the Defendant relating to this offer and requested that the Defendant reverse any payment made to the Claimant’s account made in relation to this offer.

9. Paragraph 6 of the Defence (Defendant’s contention that correct amount has been paid in full) is denied in its entirety.

THIS CASE IN GENERAL


10. The Claimant requests that the Defence be struck out. The Claimant’s reasons for making this application are detailed below.


a. The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide an alternative version of events.

b. The Defence does not comply with CPR 16.5(1), in that the defence must state precisely which allegations are admitted, denied, not admitted or denied but requires the claimant to prove. Accordingly, the Defendant is taken to admit these allegations. As such no reasonable grounds are disclosed for defending this claim and the court should seek to give effect to its overriding objective, as detailed in CPR 1.1, 1.2 and 1.4, and strike out the Defence.


c. By virtue of CPR 16.5(5) the Defendant is taken to admit certain allegations contained within the PoC. In particular, the Defendant is taken to admit:


i. that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the UTCCR 1999.
ii. that the Claimant’s description of the Charges detailed in paragraph 7 of the PoC are true.

iii. that the Claimant is entitled to charge the Defendant interest as described in paragraph 9 of the PoC.

d. The Defence:
i. does not disclose any reasonable grounds for defending this Claim,
ii. Does not adequately deal with many of the material allegations contained within the PoC and
iii. Accordingly it should be struck out

I believe the facts contained in this reply to be true.

SIGNED

[HaliMac]

Re: Budgie Vs Capital One

Superb defence Budgie - it has given me the inspiration I needed for mine now - as I was so dumbstruck by the laziness and lack of attention inherent in HFX's defence to my own claim :lol:
Well done.

So, is a response to Defence done via N244, then?

[Budgie]

Re: Budgie Vs Capital One

Nothing in post from Capital One over the weekend so I tried giving them a call today. They did not want to make an offer of settlement.

So off I trotted to Kingston County Court and filed application to have their defence thrown out together with an interim reply to the defence. Cost me £75 to file the application. The Clerk thought I should hear something fromt he Judge before the end of this week.

Just as well really because I will have to file my AQ on Monday next week, am working on this now. That'll be another £200 to fork out.

Budgie

[Budgie]

Re: Budgie Vs Capital One

Postman came today.

Here is copy of the three page letter he delivered from Capital One Legal Department.

I will post up my own comments on their letter shortly.
But also invite comments and suggestions from anypne who has a viewpoint.

Vexatious and disproportionate. Indeed !!!!!

Budgie

[stevokenevo]

Re: Budgie Vs Capital One

They have not said anything they have not said before, apart from giving their take on the sempra result.

My missus has a compound interest claim stayed with cap1 on jurisdiction grounds, so i will be interested to see where you go with this, while i set the judge straight on jurisdiction matters :okay:

[Budgie]

Re: Budgie Vs Capital One

Hiya Stevo,

In my view it is a devious and intentionally misleading letter. Intended to strike fear and desperation into a Claimant. LOL

Unfortunately it doesn't work on me though. So I just have to make sure the Judge isn't beguiled by their stupid explanations.

Am working on some comments, you may have wondered what the big letters were next to each paragraph. Will post up shortly.

I am also going to call them in a minute to see if they have submitted a copy of this letter to the Court. LOL

Budgie

[stevokenevo]

Re: Budgie Vs Capital One

Its not marked 'without prejudice' so there is nothing to stop you using the letter as evidence of their efforts to fob you off

[Budgie]

Re: Budgie Vs Capital One

I just spoke to Rachel at Capital One, LOL. She did send a copy of her letter to Court, snigger. So I will respond and copy Court as well. Even though I don't really need to at this stage.

Here's some notes' comments I have put together wrt their letter.

A) All they have done here is repeated what I have claimed for. Although they fail to acknowledge that I am only requesting that the Judge consider awarding compound interest. Deceipt !!

B) Oh this is interesting. In response to my SAR they sent me statements up to 8/2/2003, at which time the balance was £332.28. They didn’t send me statements covering the period up to 14th May 2003, when they say the balance had risen to £594. As I didn’t use the card after 8/2/03 there must therefore be some nice juicy additional charges to claim back. LOL. Concealment !!

C) I have already refused their stupid gesture of goodwill, without admission of liability offer. However, I just checked it and I calculate that the stat 8% interest figure should actually be £378.74 and not £73.51 as they offered. Could they really be serious in thinking that I do not know how to calculate statutory court interest. Deceipt !!

D) They say the only element of my claim outstanding is the claim for compound interest. Again they forget that I have refused their offer, sent back their cheques and told them to remove the payment from my account. An account which they have sold on to Lowell anyway. Furthermore, my POC requests that my claim for compound interest be viewed in the context of the whole claim rather than in isolation. So I really don’t see what they hope to achieve by insisting that they have settled and that all I am arguing about is the compound interest. Concealment and Deceipt !

E) My claim for compounded interest certainly does have a legal basis and that’s why it will be up to the Judge to decide and not them. Again my POC clearly states that I am not implying any legal term. However they do conveniently seem to forget the fact that their cash advance rate for this card is was 34.9%. By taking these unlawful charges from me I do actually consider they have helped themselves to cash advances from me. Therefore as 34.9% is a rate of compound interest that they deem suitable for cash advances I see no reason, if I were to be arguing an implied term, that this rate would be disregarded by a Court. Concealment !!

F) Sempra, snigger. What are they on about. Mine is a restitution / disgorgement claim. They have picked up on the one point that a Judge might pick up on in Sempra and put their own slant on it. They are wrong, see post 19 in this thread for key Sempra points, which fully argue against their reasoning and then some. LOL

G) As above

H) The one good point they have made. But I have the argument to answer this it becomes necessary anyway. Deviousness on my side !!

I) WTF are they going on about Halliday for. I already stated I was aware of it and that it wasn’t relevant to my claim. ******s, Deviousness on their side!!

J) A great paragraph. Why do they think that the Judge will not see through what they are trying to do here. I deliberately didn’t claim any debit interest for this very reason. I am not claiming for interest incurred LOL. They also entirely forget to mention cash advance interest. A deliberate attempt here methinks to hoodwink the Judge. Deceipt !!

K) Clever first sentence. “ We have refunded all the fees charged to your account whilst it was active.” But they haven’t offered to refund any fees they added whilst it was inactive ( another couple of hundred quid by the looks of it. In fact I can now prove they have deliberately tried to conceal those LOL. Here they also go about them being able to claim something in respect of my breach etc etc and how generous they are that they haven’t done that. What a load of old ********. Concealment !!

L) The sum up from them says it all, lie lie deceit flannel.


OK, an evening or two of nasty letter drafting coming up.

Budgie

[Budgie]

Re: Budgie Vs Capital One

I received notification from my Court that the hearing to hear my application to have the Capital One defence thrown out has been scheduled for 18th June.

Actions for this weekend, finish my AQ and Draft Order ready for filing at Court on Monday and respond to Capital One's letter as detailed in an earlier post.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

Good luck Budgie!

And if you hadn't been so lazy yesterday, you'd have had all that lot done by now!

[Budgie]

Re: Budgie Vs Capital One

LOL Halimac.

Actually AQ is now done and printed as is Draft Order.

Working on the response to their devious and misleading letter at the moment.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

I need to go buy myself a new stapler and some bloody toner :rolleyes:

If you want a second pair of eyes on your response to their letter, fire it over, btw...

[Budgie]

Re: Budgie Vs Capital One

Will do!

Will post here shortly

Budgie

[Budgie]

Re: Budgie Vs Capital One

Draft reply to Capital One's letter :-

Comments gratefully welcomed !!!!



Dear Rachael Howey,

I am writing with reference to your letter dated xx/xx/xxxx.

I understand that you have sent a copy of your devious and misleading letter to the xxxxxxxxxxxxxxxxxxxxx County Court.

Whilst I am happy with the manner in which my claim is currently proceeding through the Court system, you will no doubt now be aware that a hearing has been scheduled for xx/xx/xxxx to hear my application to have your defence thrown out, I feel that as you have copied your letter to the Court I should therefore respond. Please note that a copy of this letter has also been sent to the Court for filing with my claim.


Regarding the paragraph entitled “Your Claim”

Here you have basically restated your understanding of my claim. I refer you to the PoC which fully details my claim.

Regarding the paragraph entitled “Payment”

You state that my account defaulted on 14th May 2003 with a balance of £5xx.
I sent Capital One a SAR on 2nd July 2007. Capital One supplied some of the requested information via mail with an accompanying letter dated 18th July 2007. The information supplied only covered transactions up to 8th February 2003, at which time I believe the balance on the Account was £3xx. Would you therefore supply copies of Account statements covering the period from 8th February 2003 to the present date and in particular supply details of how the balance on the account increased from £3xx to £5xx. Also, the account administration paperwork shows that the Account was sold by Capital One to another Company. Could you therefore supply full details of this account sale. In particular please provide details of the price that was agreed for the sale of my account.

You continue to refer to an offer of goodwill that Capital One have made. How many times do I need to state that I have refused this offer? Any cheques that you have sent have been returned to you and I have requested that you reverse the payment you claim to have made to my account. Incidentally, how you can have actually made a payment to my account when it appears that the account has been sold to another Company? I also repeat earlier requests that you provide written confirmation of receipt of the returned cheques and confirmation that you have reversed the payment you claim to have made to my account. On a general note it may interest the court to know that your calculations with respect to the statutory interest portion of your offer appear to be incorrect. I actually calculate a figure of £37x for statutory court interest ( 8% ) on the listed charges which is considerably higher than the figure that you actually offered £7x.
In summary, I confirm that the total amount of my claim remains outstanding, no offers of settlement have been accepted by me and any unsolicited payments that you have made to me or to my account have been returned to Capital One. Please do not continue to argue that you have settled my claim as this is not true.

Regarding the paragraph entitled “ Outstanding Issues – Compound Interest”

This paragraph heading is incorrect and misleading, as detailed above it is clear that my total claim remains outstanding. I refer you, once again, to the PoC in which I specifically request that my claim for compound interest be viewed in the context of my instant claim and not in isolation. It appears that your strategy here is to try to mislead the Court.

Paragraph 9 of the PoC precisely details for my claim for compound interest to be awarded in the instant case.

With regards to the Terms and Conditions of the Account. I hereby advise you that you failed to supply a copy of the Terms and Conditions of the Account in response to my original SAR letter of xx/xx/xxx7. I therefore now repeat my request that you supply a copy of the original contact, signed by myself and a copy of the terms and conditions purported to be supplied at that time together with any subsequent amendments to these terms and conditions until they reflect current terms and conditions of the account.

In relation to your statement regarding an implied term, I once again refer you to paragraph 9 of the PoC, in that my claim is not reliant upon any implied term.

Justification of my claim and the relevance of “Sempra Metals Vs HM Commissioner of Inland Revenue” together with other applicable case law will be fully detailed in the “Statement of Evidence” that I will shortly submit to Court. I therefore see no necessity to go into any further detail in this response. However, in answer to your claim that there is no evidence that Capital One has been unjustly enriched by their action I would draw your attention to the following paragraph of the Sempra judgment :-

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.

There are, of course, many other such references within Sempra to support the arguments detailed in my PoC and these will be referenced in my Statement of Evidence.

Additionally, I would at this stage, also like to draw your attention to the Law Commission Consultation paper no 167 with respect to Compound Interest.

You continually refer to your purchase interest rate and the fact that your goodwill offer, which I have refused, refunded all of the purchase interest that I had ever paid on the account. You conveniently forget to mention that the Cash advance rate you applied to my account was 34.9%. This rate is more relevant to my claim as I believe that in applying these unlawful charges Capital One have benefited from a cash advance taken from me. I am not arguing that any implied term exists in this claim. However, I am sure that if that were to be the case then that rate would not be disregarded by the Court.

Regarding the Paragraph entitled “Your Breach of Contract”

In response to the points made here I refer you to paragraphs 6 and 7 of the PoC and repeat them below for clarity.


7. The Claimant contends that:

a) The charges debited to the Account:
i) are punitive in nature;
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.


Furthermore, the charges debited to the Account constitute contractual penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the contractual breach. A penalty clause is void in its entirety and unenforceable.

I agree that your charges have been applied to my account following a breach of my contract. I also agree that you are entitled to recover from me the actual losses that Capital One have incurred and prior to commencing this claim I would have been quite happy to pay this. However, as you quite rightly state in your letter, you have not sought to claim these losses from me. To do so you would actually need to establish and prove the true cost to Capital One. With this in mind I will be submitting a Draft Order for disclosure to the Court together with my AQ, amongst other things the draft order will request that the Court issue Capital One with disclosure orders similar to those shown below :-

a) Whether such charge is accepted to be a penalty, and if not why not.

b) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

c) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

Regarding the Paragraph entitled “Settlement”

My claim remains as un-settled in it’s entirety.

I am confident in my claim and in the Court’s ability to understand and adjudicate fairly upon the contended issues.
I strongly object and disagree with your comment that my claim is vexatious and disproportionate. My claim is properly constructed and calculated, unlike your rejected offer which is lacking in any logical basis and also incorrectly calculated according to the written explanations provided.

I strongly urge you to resolve this matter and in doing so avoid further wasted costs and further wasting of the Court's valuable time by settling my claim, in full and without further delay.

Yours sincerely


Budgie