Judgment & Beyond ~ Budgie Vs Capital One

[TANZARELLI]

Re: Budgie Vs Capital One

Hi Budgie,

Well what a read mate

Nothing jumps out at me but might give it another read though.

I think its very well wrtitten and especially like the way you got the clarification between the old school M&R arguements which we all know is something judges tend to jump on straight away, and the sempra arguements.

I especially like the way you have written this section:

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.

Good work mate and well done.

[rob banks]

Re: Budgie Vs Capital One

I agree with Tanzarelli - well writen and to the point.

My only comment really is that, in part 2 you mention UCTA 1977 but then don't mention it again. We don't think that this is relevant to bank/credit card claims and no longer include it in POCs. It might be wise to drop it in part 2.

The CI part is exhaustive, you might shorten it but I don't think it is worth the effort in all honesty.

S

[TANZARELLI]

Re: Budgie Vs Capital One

I agree with the UCTA point hard to make it fit we've found UTCCR is better suited.

[Budgie]

Re: Budgie Vs Capital One

Have made a few changes to the Compound interest section.

Now showing in red on the original post from earlier this evening.

Thanks Budgie

I agree with Tanzarelli - well writen and to the point.

My only comment really is that, in part 2 you mention UCTA 1977 but then don't mention it again. We don't think that this is relevant to bank/credit card claims and no longer include it in POCs. It might be wise to drop it in part 2.

The CI part is exhaustive, you might shorten it but I don't think it is worth the effort in all honesty.

S

Yes I agree RB, I actually couldn't find anything as resoundingly useful as the UTCCR1999 or the penalty aspects in the UCTA1977. To be honest I don;t know why I actually left it in the original POC. I suppose I can just leave it out of the skeletals. Will sort this tomorrow.

Thanks for spotting it

[Budgie]

Re: Budgie Vs Capital One

OK Thanks to all for your input.

Have made some additional changes myself as well.

Here is final version of Witness Statement

WITNESS STATEMENT OF CLAIMANT REGARDING STATUS OF SETTLEMENT PAYMENTS AND CLAIMANTS ENTITLEMENT TO INTEREST – Dated 19th July 2008

I am the Claimant in this case and in receipt of the Court’s order dated 25th June 2008.

This factual Witness Statement has been prepared by the Claimant in response to the referenced Court Order and is accordingly limited to the following issues :-

a) What payments the Defendant has made to the Claimant in respect of the subject matter of the claim whether before or after the institution of these proceedings ; when these payments were made ; how these payments were made ; and whether these payments should be credited against any sums claimed by the Claimant; and

b) Insofar as the Claimant is entitled to interest on any principal monies allegedly paid or payable by the Defendant, whether that interest should be simple or compound.


Claimant’s Response to Issue A

The Claimant contends that the “Claim chronology” and associated notes, detailed in the Claimant’s skeletal argument, provide the Court with clear evidence of the circumstances of the various gesture of goodwill offers made by the Defendant, before and after the institution of proceedings. The chronology and associated notes also provide clear evidence of the Claimant’s refusal of the gesture of goodwill offers and also clear evidence of the Claimant’s return to the Defendant of any forced payments made by Cheque and the Claimant’s requests for reversal of any forced payments made by the Defendant to the Claimant’s account. The Claimant submits that as all offers made by the Defendant have been rejected by the Claimant and that as all attempted forced payments made by the Defendant have been either returned to the Defendant ( if sent to the Claimant by Cheque ) or requested to be reversed ( if applied directly to the Claimant’s account’s ) then it is clear that there are no payments which should be credited against any sums claimed by the Claimant in relation to the subject matter of the claim.

Outstanding matters as at date of this witness statement :-

i) The Claimant awaits confirmation that the Defendant has reversed any forced payment that may have been made to the Claimant’s account.

ii) The Claimant still awaits copies of statements for the account covering the period Jan 2008 to July 2008. The Claimant submits that these would confirm whether the Defendant has actually attempted to force any payment to the Claimant’s account and also whether this payment has been reversed as requested by the Claimant on numerous occasions.

iii) The Defendant has indicated on numerous occasions that the Claimant’s account was sold to the Lowell Group. The Claimant has sent a SAR to the Lowell Group on 18th July 2008. A copy of information received from the Lowell Group will be forwarded to the Court once received by the Claimant. The Claimant expects that this information will confirm whether the Defendant has actually attempted to make any payment to the Lowell Group as part of any supposed gesture of goodwill payment. The Claimant has also requested full details of the sale of his account to the Lowell Group, in particular the price paid by the Lowell Group when purchasing the Claimant’s account from the Defendant.

In summary, with respect to issue A, the Claimant considers that his entire claim therefore remains outstanding and as fully detailed in the Particulars of Claim which were originally filed at the commencement of proceedings.

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. By accepting the Defendant’s gesture of goodwill offer the Claimant considers that he would also have been deemed 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 offer.

Claimant’s Response to Issue B

The Court has limited the Claimant to arguing whether insofar as the Claimant is entitled to interest on any principal monies allegedly paid or payable by the Defendant, whether that interest should be simple or compound. However the Claimant wishes to introduce certain aspects of his claim prior to arguing this issue.
So as to better quantify and validate his claim.

Introduction :-

The Claimant considers his POC to be factual and a true statement of his case.

In its amended Defence, the Defendant denies the contentions in the Claimant’s POC but also continues to plead, that as they have refunded the default fees in their entirety, they are no longer a disputed issue. The Claimant argues, as evidenced in the Claimant’s response to issue A, that this is clearly not the case, the default charges, as originally claimed, remain outstanding and are disputed by the Claimant in their entirety. Additionally, following the supply of suppressed statements by the Defendant, which were not originally included in response to the Claimant’s SAR, the Claimant has established that there are actually additional default charges, totaling a further £120, to be taken into account as part of the Claimant’s claim.

As set out in the Claimant’s skeletal arguments, the Defendant’s charges cannot be considered to be liquidated damages, nor contractual service charges. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially, extravagantly and unjustly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law. The Claimant therefore seeks a declaration that the Defendant wrongly applied charges to the Claimant’s account totaling £739.00 between July 2000 and February 2003 as identified in the claimants POC and schedule submitted at the commencement of proceedings. Additionally, the Claimant seeks an additional declaration that an additional amount of charges totaling £120, applied between February 2003 and May 2003 were also wrongly applied to the Claimant’s account.

Simple Interest


The Claimant assumes that when the court is refers to simple interest it is in fact referring to statutory Court interest under Section 69 of the County Court Act 1984 :-
Section 69 of the County Court Act 1984 states :-
69 Power to award interest on debts and damages
(1)Subject to [F1rules of court], in proceedings (whenever instituted) before a county court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and—
(a)in the case of any sum paid before judgment, the date of the payment; and
(b)in the case of the sum for which judgment is given, the date of the judgment.
(2)In relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) shall have effect—
(a)with the substitution of “shall be included” for “may be included”; and
(b)with the addition of “unless the court is satisfied that there are special reasons to the contrary” after “given”, where first occurring.
(3)Subject to [F1rules of court], where—
(a)there are proceedings (whenever instituted) before a county court for the recovery of a debt; and
(b)the defendant pays the whole debt to the plaintiff (otherwise than in pursuance of a judgment in the proceedings),
the defendant shall be liable to pay the plaintiff simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt for all or any part of the period between the date when the cause of action arose and the date of the payment.
(4)Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs.
(5)Interest under this section may be calculated at different rates in respect of different periods.
(6)In this section “plaintiff” means the person seeking the debt or damages and “defendant” means the person from whom the plaintiff seeks the debt or damages and “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
(7)Nothing in this section affects the damages recoverable for the dishonour of a bill of exchange.

The Claimant assumes, for the purposes of this Witness statement, that he would in the normal course of events, expect as a minimum to be entitled to receive Statutory Court interest under Section 69 of the County Court Act 1984. Indeed the Claimant contends that as the Defendant’s rejected gesture of goodwill offer purported to include an amount to reflect Statutory Court interest the Claimant would not therefore be required to argue his entitlement to this form of statutory interest award.

The Claimant notes however that the rate of interest to be used, should statutory interest be awarded under section 69, may be calculated at such a rate as the court see fit and is not necessarily set at a rate of 8% as the Defendant implies in his communications with the Claimant and the Court.

The Claimant has as an exercise, in appendix 1, included a spreadsheet detailing his own evaluation of section 69 interest that could possibly be relevant to this claim, interest has been calculated on the default charges from the date each charge was applied to his account up to the date of commencement or proceedings and an equivalent daily rate has also been established for use in calculating the additional interest due on the default charges from the date of commencement of proceedings through to the date of judgment or earlier settlement. For the purposes of this exercise the Claimant has used an interest rate of 8% pa. The Claimant notes that his own evaluation of the statutory court interest due differs considerably from that put forward by the Defendant in its gesture of goodwill offer.

Compound Interest


For the avoidance of doubt section 9 of the Claimant’s POC is listed below :-

9. COMPOUND INTEREST - The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1984 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.

In the recent case of Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 the issue of compound interest was raised. The relevant case law is referenced in the Claimant’s skeletal arguments.
The Claimant seeks a full remedy which allows complete restitution of the wrongful, unlawful and unjust gains of the Defendant and the Claimant submits that by virtue of the development of the law recently established in this referenced case, it is now wholly within the courts jurisdiction to make a restitutionary award of compound interest in the Claimant’s instant case. There is no conceivable reason, upon the facts of the present case, why the defendant should be allowed to retain part of the unjust enrichment which it has undoubtedly enjoyed, or that the Claimant should be denied a complete and just remedy which recognizes the reality and true extent of the unjust enrichment enjoyed by the Defendant and allows complete restitution of the wrongful gains made.
The Claimant also references the following summary of the Defendant’s business :-
United Kingdom VAT & Duties Tribunals Decisions
Capital One Bank (Europe) Plc v Revenue and Customs [2005] UKVAT V19238 (9 September 2005)
Paragraph 8 : COBE's business
COBE is licensed to provide credit and is regulated, within the UK, by the Financial Services Authority. Its business is run in much the same way as any other credit card business: its customers are issued with cards which entitle them to make purchases, and obtain cash advances, up to an agreed aggregate maximum amount. COBE is required to finance its customers' purchases by paying to the retailers and other suppliers, through the banking system, the cost of the goods or services acquired by the customer, less a charge—a variable percentage of the price—known as "interchange", and to make cash available, also through the banking system, to satisfy its customers' demands for advances. Monthly, customers who have any sum outstanding must pay to COBE an amount between a specified minimum and the total then outstanding. Those who do not pay the full amount are charged interest and COBE also levies some fees and penalties, for example for late payment by customers of the minimum amount. The interest, fees and penalties (that is, all of COBE's receipts from its customers, other than of capital are together known as "finance charges".

As evidenced in the above description regarding the nature of the Defendant’s business, it is clear that the Defendant has been able to re lend monies which, the Claimant contends were, wrongly, unfairly and unlawfully taken from the Claimant and that the Defendant has therefore been unjustly enriched by it’s actions. The Defendant may assert that the specific amount of profit derived from the use of the funds cannot be accurately measured and thus the level of unjust enrichment cannot be proved. However, it is submitted that proof of the exact use of the money or an account of profits is not required in order for a restitutionary award of compound interest to be made. This position was stated in the Sempra case by Lord Hope;

“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 (claimant) of what the Revenue (defendant) 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.”

Thus only the opportunity to turn the funds to profit is required to be established rather than the proof of precisely what profits were actually made. In the present case the as the defendant is a lending institution, it is inconceivable that it could have put the wrongfully debited sums to any other use but to earn further profits. The defendant has undoubtedly derived significant benefit from the Claimant’s money in its hands.


The claimant therefore submits that for a fair and just result, compound interest must be awarded in this case. Not only has the defendant derived benefit from the Claimant’s money, the claimant has also been denied use of his own money. This means the claimant was forced to attempt to replace those funds by way of an overdraft on a separate account, and loans at a higher rate. Something which in itself was virtually impossible for the Claimant to achieve owing to entries which the Claimant believes the Defendant has entered onto the Claimant’s credit files.
The reality is that any funds borrowed commercially carry compound rates of interest rather than simple interest. Furthermore the claimant whilst wrongfully denied benefit of the funds was denied the opportunity to invest it. Such investment would have invariably earned compounded rates of interest.
The Claimant seeks an award that can, insofar as it is possible, put both parties in the same position as before the wrongfully debited charges were imposed. Restitution requires that the time value of the money is also considered when the Claimant seeks a remedy for money paid under a mistake. Upon the facts of this case, simple interest at the statutory rate patently does not achieve restitution or a just result. It would leave the defendant, a powerful financial institution, unjustly enriched at the expense of the Claimant, a self-litigating Consumer. The Claimant urges the court therefore to exercise its power at common law to grant a restitutionary award of compound interest.


When the Claimant first opened the Account with the Defendant, the Claimant was permitted a credit limit of £200, this credit limit has always remained at this level. The terms and conditions for the Account, at the time the date was opened, show that the APRs based upon a credit limit of £200 were 34.1% for purchases and 34.2% for cash advances. In 2004 the APR’s were 32.7% for purchases and 35.2% for cash advances. The current APR’s for this type of account, with a credit limit of £200 are 34.9% for both purchase and cash advances. The Claimant’s claim for compound interest has therefore been instigated at an equivalent APR to the current commercial rates of interest as would normally be charged to the Claimant in equivalent circumstances.

For clarity the Claimant wishes to provide the Court with updated compound interest spreadsheets detailing the current status of the claim.

Spreadsheet A – Details the compound interest calculations based on an APR of 34.9%, on the spreadsheet compound interest has been applied at this rate to the individual default charges on an equivalent monthly basis from the date of each individual charge through to the 20th July 2008. The charges listed total £739, these are the total default charges that the Claimant was aware of at the date of commencement of proceedings. The total amount of compound interest due is shown as £6472.13, making a total claim of £7211.13

Spreadsheet B - Details the compound interest calculations based on an APR of 34.9%, on the spreadsheet compound interest has been applied at this rate to the individual default charges on an equivalent monthly basis from the date of each individual charge through to the 20th July 2008. The charges listed total £859, these are the total default charges that the Claimant was aware of at the date of commencement of proceedings together with the additional default charges that the Claimant was recently made aware of. The total amount of compound interest due is shown as £7082.74, making a total claim of £7941.74.

Statement of Truth - bla bla

[Budgie]

Re: Budgie Vs Capital One

and final version of current Skeletals Arguments :-

SKELETAL ARGUMENTS OF THE CLAIMANT

1) Background to the Claim

This claim concerns the Claimant’s request for return of default charges applied to his credit card account with the Defendant.

a) The Claimant entered into an agreement with the Defendant during xxxxxxxx 19xx.
b) Account number xxxxxxxxxxxxxxxxx.
c) The Account is governed by the Defendant’s Credit Card Agreement.
d) During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.
e) The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.


2) The Claimant’s Contentions

The Claimant in his POC contends that :-

a) The charges debited to the Account:
i) are punitive in nature and constitute contractual penalties rather than liquidated damages.
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unjustly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.
b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999) and the common law.


3) Common Law Penalty Arguments

The claimant submits that the charges levied to his credit card account are default contractual penalty charges imposed because of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. It is submitted that the Defendants charges are punitive in nature and wholly disproportionate and not related to or intended to represent any actual loss arising from a breach of contract, but instead are unduly, extravagantly and unjustly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. Accordingly, the charges are unenforceable by virtue of the Common Law. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause.

However, the law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position as before the breach occurred. This is backed up by case law – Robinson Vs Harman 1848

Lord Dunedin laid down rules in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 which are still applied in these types of cases and the Claimant submits are applicable to his instant case ;

“Though the parties to a contract who use the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The Court must find out whether the payment stipulated is in truth a penalty or liquidated damages.”

“The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage (Clydebank Engineering and Shipbuilding Co. v. Don Jose Ramos Yzquierdo y Castaneda ).”

“The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach (Public Works Commissioner v. Hills and Webster v. Bosanquet ).”

“It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. (Illustration given by Lord Halsbury in Clydebank Case).”

“It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid (Kemble v. Farren ).”

Ford Motor Co. v. Armstrong (1915)
In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

Bridge v. Campbell Discount Co. Ltd. (1962)
In this case a customer bought a car under a hire purchase agreement. He paid the initial and first payments and then cancelled the agreement. The company tried to recover the sums specified in the contract for canceling the agreement, but the courts held that the sums payable were excessive and constituted a penalty clause. It was, therefore, unenforceable.

Murray v. Leisureplay (2004)
Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages.

The Claimant submits that in order to fully ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the Defendant’s charges represents genuine pre-estimates of its likely loss incurred by the Claimant’s contractual breaches. Since commencing his claim in July 2007, the Claimant has requested, on numerous occasions, that the Defendant justify its charges by providing details of the true costs incurred as a result of contractual breaches. Each time those requests were rebutted or ignored and to date the Defendant has failed to respond to this request. The Claimant, in his Draft Order submitted with his AQ, also respectfully requested that the Court consider issuing a similar disclosure order to the Defendant ( Claimant’s Draft order dated 18th May 2008 para 2 b, c, and d ). The Court decided against issuing such an order. A separate letter, with a similar request was sent to the Defendant, by the Claimant on the same date. The Claimant therefore submits that the Defendant has ignored every opportunity, given by the Claimant, to establish it’s contention that the default charges applied to the Claimant’s account default charges are a genuine pre-estimate of the Defendant’s loss caused by the Claimant’s actions.

The Defendant has never published information to support how its charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges. They have even failed to submit these figures to the Treasury Select Committee. Indeed, the Defendant has also failed to comply with many Orders from the Small Claims Courts requesting that they do so, preferring to settle with Claimants at an advanced stage in the small Claims process, without acceptance of liability, rather than disclosing the requested information. It is submitted therefore that the Defendant, is regularly abusing Court process. The Defendant is following an internal policy of 'unjust enrichment' because their vexatious actions show this to be the case.

4) The UTCCR1999 Arguments

The Claimant contends that the charges levied to the Claimant’s credit card Account are, contrary to the amended defence of the Defendant, unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 on the following grounds :-

a) At all material times the Claimant was a consumer within the Regulations.

b) At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

c) Without prejudice to the burden of proof, the Claimant refers to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(i) The terms relating to Charges were standard terms; they would not be individually negotiated.
(ii) The Charges were a penalty for breach of contract.
(iii) The Charges exceeded the costs which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(d)Accordingly the Claimant believes that the Charges were a disproportionate charge incurred by the Claimant for failure to meet his contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations are indicative of unfair terms.

(e)As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(f)As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(g)In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

(h) Without prejudice to the burden of proof, the Claimant contends that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(i)The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(ii)The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange.

(iii)The Charges are correctly described as default charges by the Defendant in the published tariff of charges.

(iv) By reason of the said matters the terms were not binding under regulation 8 of the Regulations.


The claimant also cites the report from the Office of Fair Trading (April 2006), “Calculating fair default charges in credit card contracts”. The OFT conducted a thorough investigation into default charges levied by the British financial industry. The report primarily focused on Credit card issuers, the OFT ruled that default charges at the current level were unfair within their interpretation of the UTCCR’s.

On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

The Claimant will vehemently refute any contention that the charges applied to his account are legitimate contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes any such contention to be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.

The Claimant refers to the statement from the Office of Fair Trading (April 2006). With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

5) Compound Interest Arguments

In his claim for Compound Interest the Claimant will rely on the case of Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 and in particular the following key rulings from Lords Hope and other Lords involved in the appeal which the Claimant considers are highly relevant and applicable to his instant claim :-


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

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

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

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

E (34). All this points to the conclusion, subject to what I say later about onus (see paras 47, 48) that, for restitution to be given for the time value of the money which was paid prematurely, the principal sum to be awarded in this case should be calculated on the basis of compound interest.

F (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.

G (47) A further question as to the measure of loss has been raised by my noble and learned friend Lord Mance (para 233). Why, he asks, should there be an onus on the recipient to displace a conventional or objective measure? The basic test of recovery should be, he suggests, to look to actual benefit. Otherwise the effect would be incorrectly to reverse the onus. Your Lordships did not hear argument on the question of onus, and it has received little attention in the authorities. But in Morgan Guaranty Trust Company of New York v Lothian Regional Council, 1995 SC 151, 165 I said that, once the pursuer has averred the necessary ingredients to show that prima facie he is entitled to the remedy, it is for the defender to raise the issues which may lead to a decision that the remedy should be refused on grounds of equity. This approach was based on the principle that a party ought not be required to produce proof of matters that are unlikely to be within his own knowledge.

H (48) That observation was, of course, made in the context of a legal system whose common law principles are informed by equity. But I think that it is capable of being applied here too. Once the claimant has shown that prima facie he is entitled to a restitutionary remedy, direct knowledge of the extent of the benefit, if any, that has been received can be assumed to lie with the recipient. It is open to the recipient to demonstrate that there was no actual enrichment when the money fell into his hands notwithstanding the opportunity to turn it to account. But the case for the Revenue was not that it did not use the money at all. On the contrary, its evidence was that, because of the nature of the financial relationship between the Government and the Bank of England, it was impossible to measure the amount of interest earned or saved by it, or by the Government generally, on the sample ACT payments paid by Sempra. It was not that there was no actual benefit, but that the benefit was extremely difficult to quantify. It seems to me that, on this evidence, the assumption that the Revenue derived some benefit from the receipt of the money prematurely has not been displaced, and that this justifies resort to a conventional rate of interest as the measure of that benefit.

I (49) The proposition that a conventional rate should be used leaves open for further discussion questions of detail such as how that rate is to be arrived at and what rests should be adopted. The enrichment principle indicates that these questions should be resolved by looking at the circumstances of the enrichee. The use of ordinary commercial rates of interest, at ordinary rests, would be appropriate if those rates were relevant to the enrichee's circumstances. But I would hold that it is open to the enrichee to show that it would have been able to borrow money at rates or on terms more favourable to it than those available in the ordinary commercial market. If it can do that, then ordinary rates and other terms must give way to those that are relevant to the circumstances of the enrichee. The unusual position of the Revenue has been sufficiently demonstrated. It seems to me that Mr Glick's suggestion is in accordance with principle, and I would adopt it.

J (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 :-

K (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.

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

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

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


6) Reading Lists

Common Law Penalty Aspects

Robinson Vs Harman 1848
Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co 1915
Ford Motor Co. v. Armstrong (1915)
Bridge v. Campbell Discount Co. Ltd. (1962)
Murray v. Leisureplay (2004)

UTCCR1999 Aspects

UTCCR1999
OFT report April 2006 “Calculating fair default charges in credit card contracts”

Compound Interest Arguments

Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007

Estimated reading time for above – 3 hours


7) CLAIM CHRONOLOGY

1) 2/7/07 - Claimant’s original Subject Access Request ( SAR ) sent to Defendant.
This SAR requested that the Defendant send the Claimant all data that the Defendant holds relating to the entire history of the Claimant’s account. Including, details of all transactions, a copy of the original contract by which the account was governed at the time it was opened and including all amendments made to the contract terms since the account was opened. The Claimant also requested a schedule of charges and interest applied to the account including details of any instances of manual intervention

2) 10/7/07 – Claimant received letter from Defendant. Defendant could not locate Claimant’s Account.

3) 18/7/07 – Claimant received some SAR information from the Defendant
Defendant only supplied a shortform summary of the account, on a monthly basis, covering the period 8/1/99 to 8/2/03. The total charges applied during this period were £739 and the account balance as at 8/2/2003 was -£332.28. The Defendant also supplied a copy of a computerised record of the account which the Defendant presumably used to maintain a record of the account. This record shows that the Account was sold to the Lowell Group on 12/12/2006. The Defendant did not supply actual copies of statements at all and no shortform summary information covering the period from 8/2/2003 to July 2007 was supplied by the Defendant at this time. Defendant did not supply copies of original agreement or any terms and conditions for the account.

4) 18/7/07 – Claimant received letter from Mackenzie Hall ( acting for the Lowell Group )
This letter requested that the Claimant pay an outstanding balance on the account of £593.55

5) 20/7/07 – Claimant sent preliminary letter to the Defendant
This letter requested repayment of penalty charges plus compound interest

6) 22/7/07 – Claimant sent letter response to Mackenzie Hall
Advising Mackenzie Hall that account was in dispute with the Defendant.

7) 27/7/07 – Claimant received letter from the Defendant
This was in response to preliminary letter (5.) Defendant claimed to be unable to locate Claimant’s account.

8) 31/7/07 – Claimant sent letter to Capital One
Confirming account and address details

9) 7/8/07 - Claimant received letter from Defendant
In this letter the Defendant offered a gesture of goodwill payment of £252. Letter stated that if Claimant would like to accept the offer, the Claimant should sign and return an attached settlement form. The Claimant did not wish to accept this gesture of goodwill offer so did not sign or return the settlement form. This letter also confirmed the SALE of the account to the Lowell Group. “Now that we have sold your account, we don’t report anything about it to the credit reference agencies. As Lowell own it, it’s their responsibility to report on this debt, and you’ll need to agree repayments with them for the remainder of your balance.”
10) 10/8/07 – Claimant received letter from Mackenzie Hall
Reduced settlement offer £356.13

11) 15/8/07 – Claimant sent Letter Before Action (LBA) letter to Defendant
The Claimant also indicated refusal of the gesture of goodwill offer in this letter.

12) 22/8/07 - Claimant sent updated LBA letter to Defendant
Defendant’s letter to Claimant dated 7/8/07 (9 above ) not received by Claimant until 22/8/07 so Claimant confirmed to Defendant they would given an extra 7 days to respond to LBA.

13) 29/8/07 – Claimant received letter from Defendant
Defendant was not prepared to increase their previous Goodwill offer. This letter again included a reference to the fact that the Claimant’s account had been sold to The Lowell Group. “As you know we have sold your debt to Lowell. While we are happy to honour the refunds we have already offered, you’ll need to contact them directly to arrange repayments.”

14) 15/11/07 – Claimant sent updated LBA to Defendant - Restatement of Claim
Claimant restated claim – using new spreadsheet. Amount claimed at this stage was £739 charges plus £4994.23 compound interest – Total £5733.23 ( calculated up to 15th Nov 2007 )

15) 23/11/07 – Claimant received letter from Defendant
Defendant not prepared to increase offer of Goodwill.

16) 18/1/07 – Claimant received letter from Meritforce
Letter stated that an authorised collector would call at home of Claimant to collect £593.55 ( debt owed to Mackenzie Hall.) Claimant telephoned and advised that account was in dispute with Defendant.

17) 2/4/08 – Claimant issued County Court Claim number 8KT01384
Note: Charges £739 plus compound interest £5761.55 ( Calculated up to 2/4/08 ), plus court fee £225

18) 11/4/08 – Defendant acknowledged

19) 23/4/08 – Claimant received letter from Defendant
Letter refers to an OFFER from the Defendant, as a gesture of goodwill, totalling £1135.17. ( Charges £739, £97.66 purchase interest, £73.51 Statutory court interest, Court fee of £225 ) The Defendant claimed that they would credit the Claimant’s account with £593.55 and send cheque for balance of £541.61.

20) 26/4/08 – Claimant received two letters from Defendant
Each letter contained a separate cheque for £541.62

21) 28/4/08 – Claimant sent letter to Defendant
Claimant refused the gesture of goodwill made by the Defendant ( 20 above )and returned both cheques ( each £541.61 ) to the Defendant. Claimant also requested that the Defendant reverse any payment that they might make directly to the Claimant’s account. The Claimant clearly stated in this letter that he would only accept full amount claimed in settlement. Claimant copied this letter to the Court.

22) 1/5/08 – Claimant received letter from Defendant
Letter contained a third cheque for £541.62

23) 1/5/08 – Claimant sent letter to Defendant
Claimant returned the third cheque for £541.62 to the Defendant and again confirmed refusal of the gesture of goodwill offer referred to in 20 above. Claimant referred Defendant to his POC which clearly stated “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 misdemeanours which have led to the Defendant profiting unlawfully from the Claimant’s account defaults.” The Claimant also stated in this letter “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 me any further partial payments by cheque as these will only be returned to you, without further explanation.” Claimant copied this letter to the Court.

24) 1/5/08 – Claimant received written notification from Court
Court advised Claimant that Defendant had filed a defence. Court also requested AQ and draft order from Claimant.The actual defence was not attached to the Court notification. Claimant phoned Court and defence was faxed to him.

25) 12/5/08 – Claimant received letter from Defendant
Defendant invited Claimant to discontinue claim. Stating that the Defendant believed they had settled the claim in full. They also suggested that the Claimant’s claim for compound interest was vexatious and disproportionate.

26) 14/5/08 – Claimant filed application to Court to dismiss Defence
Court Fee £85 – sealed copy of this application received from Court on 15/5/08.

27) 18/5/08 – Claimant sent letter to Defendant
This was a response to Defendant’s letter of 12/5/08 ( 25 above ). In this letter the Claimant also requested additional information that had not been provided by the Defendant in response to the Claimant’s original SAR. Copy of this letter sent to Court.

28) 19/5/08 – Claimant received copy of Defendants AQ

29) 19/5/08 – Claimant filed AQ and Draft Order for Directions
Fee £200

30) 28/5/08 – Claimant received Order from the Court
Hearing date TBA – Court requested statements of evidence 14 days prior to final hearing. Ordered Claimant to pay final hearing fee of £300 before 11/6/08

31) 5/6/08 – Claimant received letter from Defendant
Defendant still claiming that in their view they have settled claim in full ( yet confirm they have received cheques back from the Claimant, copies of monthly statements supplied but only up to Jan 2008 – these statements were referred to by Defendant as “suppressed statements” .
Defendant enclosed copies of application to the Court and witness statement requesting that Court dismiss Claimant’s application to dismiss their original defence and request that Court accept revised defence which was also enclosed.
Defendant claimed that Claimant’s claim is not a restitution claim and that there was no evidence that they had been unjustly enriched.
Defendant also enclosed copy of signature sheet of Credit Card Agreement ( CCA ). They also enclosed copy of terms and conditions, but for Jan 2004, not 1999 when account was first opened.
The additional statements enclosed by the Defendant, covering the period Feb to May 2003 included an additional £120 of penalty charges which had not been claimed by the Claimant in his original claim. The Claimant will therefore seek permission from the Court to vary the original claim to include these additional charges and associated compound interest.

32) 11/6/08 – Claimant paid Final Hearing fee of £300

33) 12/6/08 – Claimant received notification from Court of final hearing date
Final hearing scheduled for 10/9/08 at 2PM, duration 2 hours

34) 16/6/08 – Claimant submitted Witness statement to Court
This was summary witness statement of Claimant regarding Defendant’s application to submit revised defence

35) 18/6/08 – Application Hearing

36) 20/6/08 – Claimant received letter from Defendant
Defendant provided copy of full terms and conditions of account from date account was opened. Also provided copy of introductory letter from The Lowell Group which confirmed that The Defendant sold the Claimant’s account to Lowell on the 12/12/06.

37) 24/6/08 – Claimant sent letter to Defendant
Claimant formally requested remainder of outstanding information outstanding from original SAR and confirmation that any payments made directly to the Claimant’s account have been reversed. This letter also confirmed, once again, that Claimant had rejected any and all goodwill offers made by the Defendant and that the entire claim remains outstanding.

38) 25/6/08 – Claimant received Orders from Court
Court confirmed outcome of Application hearing and listed orders following the Application hearing.

39) 3/7/08 – Claimant received Orders from Court
Court advised that date of Final Hearing change to 12/9/08 at 10.30Am, duration 4 hours.

[HaliMac]

Re: Budgie Vs Capital One

In: Claimant's response to Issue A

The Claimant wishes to advise the Court that the reasons for wishing to keep his entire claim intact are not vexatious.

Did the Defendant claim that you were being vexatious? If not, I'd be inclined to keep the rest of the para., but keep this out so it doesn't plant any seeds if things aren't going your way for whatever reason.

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 an ‘unjust factors’.

I think the 'an' at the end of the sentence needs removing.

Still going through - it will come back to you if anything else presents itself.

Mac

[Budgie]

Hi HaliMac,

Yes they did say they thought I was vexatious Litigant, so will keep that bit in.

Well spotted re "an", have removed from document and from post on here.

Budgie

[Budgie]

Re: Budgie Vs Capital One

I printed everything off and popped into Kingston to pop my documents in Court post box last night.

Phone Court today, they have confirmed receipt of my WS and Skeletals but said that they have not received the requested documents from the Defendant, which should also have been filed by 4PM on 20th July.
All today's post has been opened and sorted.

LOL

Will wait till Wednesday and phone again.

If no show by FRiday I will then whack in a request for summary judgment !!!!!!

Budgie

[Amethyst]

Re: Budgie Vs Capital One

Excellent It looks really really good Bud - sorry I've been a bit useless xx

Good luck xxx

[HaliMac]

Re: Budgie Vs Capital One

Good luck with it, Budgie. If its the same shower you dealt with earlier, it's no wonder they can't get their documents in on time - they can't even brief their Counsel properly! :rolleyes:

[Budgie]

Re: Budgie Vs Capital One

You know I won't count my chickens.

It's not unknown for these arses to send in documents weeks late and then get forgiven by the Judge. Even if I get summary Judgment awarded they will no doubt go through set-aside procedures. It's just a big game to them and the more delaying tactics they can use the better from thier point of view.

However, saying all of the above, I do think that my Judge is not likely to look kindly upon his orders being ignored in this case.
Let's see what the next few days brings

Budgie

[stevokenevo]

Re: Budgie Vs Capital One

Whats the latest Bud?

Any news??

[Budgie]

Re: Budgie Vs Capital One

Yes, am p****d off.

I phoned Court again this morning.

Apparantly the final date for submission of WS and skeletals is actually 30th and not 20th July.
The 20th July date typed on the official Judges Order is apparantly a typo and should read 30th July, which is the original date that was indicated by the Judge at the hearing.
Apparantly, Capital One contacted the Court on 10th July and suggested that the date was incorrect and the Court Manager checked and agreed that the date should read 30th July. Well it was nice of the B******s to let me know wasnt it !!!!
This was third time I have phoned the Court on this issue, why didn't they tell me about this on either of the two previous calls?? W*****s.

Basically Capital One have had my WS and Skeletals since 20th July and don't have to submit their own until Wednesday this week. B******

[stevokenevo]

Re: Budgie Vs Capital One

Oh dear, extremely annoying, but not entirely surprising.

It would appear banks etc and the courts are allowed to make errors a plenty without recourse.

I am sure your case is strong enough, no amount of time will be enough for them to get out of this one :okay:

Chin up big chap