Tuttsi V Halifax ( 18 year claim )

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

xxxxxxxxxxxx

Quote:

Hi Tuttsi, I think personally that you either claim CI or you request stat, if CI not included in POC then I doubt a judge would award anything other than simple stat 8%. If your not bothered about CI then there is no point putting it in your POC.

Budgie comment : I have a cunning plan here. Can't say too much for obvious reasons. Annex 1 to the POC would just be a schedule of charges only. N1 would be filed on basis of charges plus stat interest. The full arguments relating to possible award of compound interest as opposed to statutory interest would not be introduced until witness statement / skeleton argument stage ( this would essentially be argued on basis on recent developments in law in this area ) and can be done this way because I have made reference to it in the POC.
Most important thing is to get this claim through the attempted stay that Halifax are 100% likely to request. There is no point in wasting compound interest arguments until we know whether the claim is going to be heard or stayed.

I have had a quick scan and it seems ok to me. The only thing I am unsure about is this section:

Quote:
s.32 (1)(c) of the Limitation Act 1980 on the grounds that the payments were conceded on the mistaken belief that the said charges and interest thereon did not amount to penalties and that the Claimant could not reasonably have discovered the said mistakes before the OFT report was published.
I believe that this has to be a mistake of law and not a mistaken belief. Having said that though I would still leave it in the POC though, but be preparred for this being their defence to this..
Budgie comment : If charges applied are adjudged by the Court as "penal" or "unfair" and therefore unenforcable under UTCCR then they can surely be considered to have been applied, by the Halifax, as a mistake of law. The "mistaken belief" is only relevant to Tuttsi's understanding of the legality or fairness of these charges when they were applied to her account. There are lots of supporting authorities we can use at the witness statement / skelton argument stage with regards to the limitation act, they do not all need to be included at the POC stage.

To be honest I think that either one of two things would happen with this claim. Halifax will apply for a stay and Judge will grant it, notwithstanding Tuttsi's hardship situation. Or Halifax will make an increased partial offer of settlement, based on hardship, with the balance of the claim to be resolved after the test case is resolved.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Budgie comment : I have a cunning plan here. Can't say too much for obvious reasons. Annex 1 to the POC would just be a schedule of charges only. N1 would be filed on basis of charges plus stat interest. So that we get this right our head, We do a schedule of charges only £xxxx to attach to the POC. So the wording which you already have on the POC is to stay as far as Charges and Interest.

The N1 would be completed on Charges and stat interest based on each charge and the date the charge took place as in the schedule which has already been sent to Halifax with our hardship letter.

The full arguments relating to possible award of compound interest as opposed to statutory interest would not be introduced until witness statement / skeleton argument stage ( this would essentially be argued on basis on recent developments in law in this area ) and can be done this way because I have made reference to it in the POC. We are OK with this.


Most important thing is to get this claim through the attempted stay that Halifax are 100% likely to request. There is no point in wasting compound interest arguments until we know whether the claim is going to be heard or stayed. Good idea.

This only leaves the wording for the hardship element to tackle.....any suggestions! When it comes to legal stuff I am useless.

Thank you so so much for all your help so far..... Cannot wait to complete the POC and send it off.

Also, if anyone else has any more suggestions before we put this all on the N1, please post ASAP.

xx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Comments in blue

quote=TUTTSI;88223]Budgie comment : I have a cunning plan here. Can't say too much for obvious reasons. Annex 1 to the POC would just be a schedule of charges only. N1 would be filed on basis of charges plus stat interest. So that we get this right our head, We do a schedule of charges only £xxxx to attach to the POC. So the wording which you already have on the POC is to stay as far as Charges and Interest.
Yes, that's what I am suggesting !


The N1 would be completed on Charges and stat interest based on each charge and the date the charge took place as in the schedule which has already been sent to Halifax with our hardship letter.

Yes, use the stat interest spready to calculate the figures for N1 purposes. Remember you need to calculate the interest up to the date you will actually be filing the claim. It doesnt matter that this figure is different ( a little bit higher ) to that in the letters you sent them. It's quite normal !

The full arguments relating to possible award of compound interest as opposed to statutory interest would not be introduced until witness statement / skeleton argument stage ( this would essentially be argued on basis on recent developments in law in this area ) and can be done this way because I have made reference to it in the POC. We are OK with this.


Most important thing is to get this claim through the attempted stay that Halifax are 100% likely to request. There is no point in wasting compound interest arguments until we know whether the claim is going to be heard or stayed. Good idea.

This only leaves the wording for the hardship element to tackle.....any suggestions! When it comes to legal stuff I am useless.

I will have a stab at something later this evening.


Thank you so so much for all your help so far..... Cannot wait to complete the POC and send it off.

No problem

Also, if anyone else has any more suggestions before we put this all on the N1, please post ASAP.

xx[/quote]

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Hi Budgie,

Budgie comment : If charges applied are adjudged by the Court as "penal" or "unfair" and therefore unenforcable under UTCCR then they can surely be considered to have been applied, by the Halifax, as a mistake of law. The "mistaken belief" is only relevant to Tuttsi's understanding of the legality or fairness of these charges when they were applied to her account. There are lots of supporting authorities we can use at the witness statement / skelton argument stage with regards to the limitation act, they do not all need to be included at the POC stage.

I agree with part of what your saying but how can you get a judgment that the charges are penalties or unfair if you fall at the first hurdle as the judge simply says I agree with the defendant that section 5 of the Limitation Act applies. You will need to then argue why you think that s32 applies and either be able to prove Deliberate Concealment (the key word being Deliberate) and or mistake or fraud. This will more often than not mean case management hearings to see if the case can continue. With a claim like this I think its more than likely gonna see a stay.

However following the outcome of the test case when it goes in our favour I beleive there will be a strong case for pre 6 years due to the fact its taken a test case to iron out the caselaw on PCA charges. There will then have been put foward a good arguement for s32 (c)and even s32 (b).

Like I said though I would still keep it in and its simply my opinion. I think the limitations act is wrong to have this 6 year block, but then saying that if it was a case against me I would be happy to use s5 as a defence.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Hi Budgie,

I agree with part of what your saying but how can you get a judgment that the charges are penalties or unfair if you fall at the first hurdle as the judge simply says I agree with the defendant that section 5 of the Limitation Act applies. You will need to then argue why you think that s32 applies and either be able to prove Deliberate Concealment (the key word being Deliberate) and or mistake or fraud. This will more often than not mean case management hearings to see if the case can continue. With a claim like this I think its more than likely gonna see a stay.

However following the outcome of the test case when it goes in our favour I beleive there will be a strong case for pre 6 years due to the fact its taken a test case to iron out the caselaw on PCA charges. There will then have been put foward a good arguement for s32 (c)and even s32 (b).

Like I said though I would still keep it in and its simply my opinion. I think the limitations act is wrong to have this 6 year block, but then saying that if it was a case against me I would be happy to use s5 as a defence.

Thanks Tanz, you've hit the nail on it's head.

Do you really think a Bank would want to go to Court to actually argue the Limitation Act, even at a CMC !! and potentially risk a ruling against them? Especially when taking into account all the suitable authorities that can be utilised together with the added evidence regarding the importance of charges to the Banks total income as detailed in the OFT's PCA report.

Of course they are going to request a stay, but Tuttsi also has a good case for stay avoidance owing to her financial hardship situation and she will have to argue the Limitation act at some point anyway. As Ceteleco stated in an ealrier post on this thread there is no obligation on the Claimant to refer to the Limitation Act, I have only done so in the draft POC as Halifax have focussed on the subject in their responses to her prelim and LBA letters. However I see no need to fire all Tuttsi's bullets in the first round. Let's see what Halifax come up with in their defence responses.

IMO Tuttsi would have nothing to lose by giving this a bash ( I presume she should be able to achieve a waiver of court fees through hardship ) and an awful lot to gain.

At the end of the day it's up to Tuttsi, it's her claim. All we can do is point out the pros and cons owing to the nature of her claim and let her make her own decisions.

Budgie

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

http://www.hmcourts-service.gov.uk/H...eaflets_id=172

http://www.hmcourts-service.gov.uk/c...ms/n1_0102.pdf

I have just posted the link here for future reference - for court fee exemption, and it is possible that I may be elegible for an exemption as Budgie says. I will print it out later and follow it through. The critera for being elegible is is not exactly the same for proving financial hardship funnily enough. Added N1 form

xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Thanks Tanz, you've hit the nail on it's head.

Do you really think a Bank would want to go to Court to actually argue the Limitation Act, even at a CMC !! and potentially risk a ruling against them? Especially when taking into account all the suitable authorities that can be utilised together with the added evidence regarding the importance of charges to the Banks total income as detailed in the OFT's PCA report.

Of course they are going to request a stay, but Tuttsi also has a good case for stay avoidance owing to her financial hardship situation and she will have to argue the Limitation act at some point anyway. As Ceteleco stated in an ealrier post on this thread there is no obligation on the Claimant to refer to the Limitation Act, I have only done so in the draft POC as Halifax have focussed on the subject in their responses to her prelim and LBA letters. However I see no need to fire all Tuttsi's bullets in the first round. Let's see what Halifax come up with in their defence responses.

IMO Tuttsi would have nothing to lose by giving this a bash ( I presume she should be able to achieve a waiver of court fees through hardship ) and an awful lot to gain.

At the end of the day it's up to Tuttsi, it's her claim. All we can do is point out the pros and cons owing to the nature of her claim and let her make her own decisions.

Budgie

I can see where your going with it Budgie.

1) Defence claims s5 Limitation Act and in the alternative a stay pending outcome of test case
2) Tuttsi claims s32 (b) and s32 (c) to counter s5 and also claims financial hardship
3) Judge agrees the need for CMC to see if the claimant has a course of action under the Limitation Act
4) Banks think its maybe something they could loose and so make an offer prior to CMC maybe stating that they agree to help out Tuttsi as she is in financial hardship which would save them the chance of losing a pre 6 year claim during the test case and looking stupid.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

I can see where your going with it Budgie.

1) Defence claims s5 Limitation Act and in the alternative a stay pending outcome of test case
2) Tuttsi claims s32 (b) and s32 (c) to counter s5 and also claims financial hardship
3) Judge agrees the need for CMC to see if the claimant has a course of action under the Limitation Act
4) Banks think its maybe something they could loose and so make an offer prior to CMC maybe stating that they agree to help out Tuttsi as she is in financial hardship which would save them the chance of losing a pre 6 year claim during the test case and looking stupid.

Shhhhhhhhhhhh !!!! :beagle:

More or less but there are some interesting side issues as well LOL

Of course things never go to plan but IMO there is no harm in Tuttsi giving things a go !!

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

What does CMC stand for!

Just now waiting for the harship bit to be added and then it can be filed at court.

xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

What does CMC stand for!

Just now waiting for the harship bit to be added and then it can be filed at court.

xx

Case Management Conference

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Tuttsi,

I have added a bit more meat to the POC in relation to hardship.
I think that will be sufficient at this stage.
Revised draft is below.
Let me know if you need any help updating your statutory interest spreadsheet to obtain the statutory interest figures for entry onto the N1 or if you would like me to produce the schedule of charges (list only version ) for you to submit with the N1.

Rgds Budgie



DRAFT PARTICULARS OF CLAIM FOR TUTTSI – 18 YEAR HALIFAX CLAIM

By an Agreement dating from approximately 1990 (“the Agreement”), the Claimant opened a bank account (“the Account”) with the Defendant (“the Bank”).

The Account was a current account, under which, at all material times, in substance the bank agreed to hold monies deposited by or for the Claimant and to make payments to and on behalf of the Claimant. In return, the Bank was entitled to the use of the monies so deposited and to be paid interest on any monies borrowed by the Claimant.

At all material times the Account was operated by the Bank on the basis that the Account was subject to the Bank’s standard terms and conditions (“the Relevant Terms”).

These terms were allegedly set out in leaflets produced by the Bank setting out its bank charges and interest rates, and in terms and conditions issued by the Bank relating to a payment instruction (“a Relevant Instruction”) made by cheque, standing order, direct debit, or by a card linked to the Account (a debit card and cash point card).

The Bank allegedly varied the Relevant Terms from time to time when the Bank issued revised terms.

The Bank applied a number of charges or fees (“the Relevant Charges”) to the Account following a request or instruction from the Claimant to make a payment from the Account for which the necessary funds were not available. A spreadsheet of the Relevant Charges can be found in Schedule 1, annexed hereto. Letters and statements of the Account will be tendered as evidence of those charges.

Penalty Charges

It is averred that the Relevant Charges were payable in respect of Relevant Instructions that were issued by the Claimant in breach of the Agreement. The Amount of the Relevant Charges exceeded any genuine pre-estimate of the damage which would be suffered by the Bank in dealing with an unauthorized overdraft caused by a Relevant Instruction. In the premises the Relevant Charges are punitive in nature, amount to a penalty at common law, and are therefore unenforceable.

Unfair Terms

Further, or alternatively, it is averred that the Relevant Charges are “unfair” under the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”). The Relevant Charges are subject to the requirement of fairness under the Regulations; see Office of Fair Trading v. Abbey and others [2008] EWHC 875 (Comm) (“the Test Case”). The Claimant was at all material times a “consumer” within the Regulations.

It is averred that the Relevant Terms of the Agreement that provide for the Relevant Charges give rise to a significant imbalance in the parties' rights and obligations, to the detriment of the Claimant as a consumer, thereby rendering the Relevant Terms “unfair” under the Regulations.

Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the Relevant Terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision of the Relevant Terms (if incorporated):

The Relevant Charges are disproportionate by reference to the value of the individual instructions which incurred those charges, contrary to Paragraph 1(e) of Schedule 1 to the Regulations, or by analogy to Paragraph 1(e) of that Schedule.

The Relevant Charges exceeded the costs which the Bank could have been expected to incur in dealing with unauthorized borrowing and/or an unpaid item, contrary to Paragraph 1(e) of Schedule 1 to the Regulations, or by analogy to Paragraph 1(e) of that Schedule.

The Banks, during submissions in the course of the Test Case, stated that the Relevant Charges are reflective of the costs of operating a “free-if-in-credit” model of banking. If this is correct, the Relevant Charges are a cross-subsidy by the Claimant of the costs of banking by other consumers.

The Relevant Charges could be very much higher than the amount of the Unauthorised Overdraft.

The Relevant Charges could be imposed repeatedly, with a higher rate of interest imposed on top.

The cumulative effect of the Relevant Charges and higher rates of interest would be to increase the debt burden on the customer, and make it more likely that further Relevant Charges and interest would be imposed on the Account thereby contributing to the Customer’s spiral of debt leading into severe financial hardship. It is averred that this is the scenario for the Claimant in the instant case, the relevant charges and associated higher rates of interest applied to the Claimant's account by the Bank contributed significantly to the Claimant's present severe financial hardship.

The Relevant Charges would penalise those who had little or no credit. The Customer who incurred Charges was likely to be the least able to afford to pay those charges.

In the premises, the effect of the Relevant 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 Bank in a way which was inequitable.

By reason of the said matters the Relevant Terms were not binding under regulation 8 of the Regulations.

The Claimant avers that the Bank wrongly debited the Account with Relevant Charges totaling £xxxxx between xx/xx/xxxx and xx/xx/xxxx.

On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly debited. The Claimant was aware of the Financial Services Authority waiver relating to Bank Charges claims and provided the Bank with detailed documentary evidence relating to the Claimant’s severe financial hardship. The Bank acknowledged and confirmed the Claimant’s financial situation in writing and offered, on a without liability basis, to refund one charge of £28, arguing that all other charges claimed were statute barred in accordance with the Limitation act 1980.

The Claimant did not become aware of the nature of the charging regime of the Bank until the Office of Fair Trading published the report “Calculating fair default charges in credit card contracts” in April 2006. The report states that the principals covered have wider implications for analogous standard default terms in other agreements including bank accounts.

The Claimant avers that section s.32 of the Limitation Act 1980 is applicable to the instant claim in that ;

Section 32 (1) (b) is applicable on the grounds that the Claimant could not reasonably have discovered the deliberate concealment of the facts relevant to the Claimant’s right of action before the report of the Office of Fair Trading’s report was published in April 2006, or alternatively,

s.32 (1)(c) of the Limitation Act 1980 on the grounds that the payments were conceded on the mistaken belief that the said charges and interest thereon did not amount to penalties and that the Claimant could not reasonably have discovered the said mistakes before the OFT report was published.

The Bank has not repaid the said sums or any of them.

The Claimant therefore claims £xxxx, being the total of the Relevant Charges imposed on the Account, as set out in Schedule 1.

Interest

The Claimant claims such rate of interest, applied to the total of the relevant charges so claimed, on either a compound interest or simple interest basis, as the Court thinks fit, in its equitable jurisdiction, to impose.

Alternatively the Claimant claims interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the dates of the charges set out in Schedule 1 to the date of filing the instant claim, being the sum of £xxxxx and also interest at the same rate up to the date of judgment or earlier settlement at a daily rate of £xxxxx.


Statement of Truth
I believe that the facts stated in these particulars of claim and Schedule 1, annexed hereto, are true to the best of my knowledge.

Signature and date


Please note that this post or it's contents may not be reproduced elsewhere without permission having first been sought and obtained from the Author.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Thanks a million for the aditional info.

Will be dealing with the POC this afternoon, and yes can I take you up on your offer for the revised spreadies as I am unable to alter the you previously sent.

Cheers

xx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Re Tel con

Value

1) Return of the charges totalling £xxxxxx
2) Either
a) Interest, calculated from the date of each charge to the date of judgment or earlier settlement, at such a rate of interest, on either a compound or simple interest basis as the Court thinks fit, in it's equitable jurisdiction to impose.
or alternatively
b) Interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge to 17th Nov 2008 totalling £xxxx and then at a daily rate of £xx.xx from 17th Nov 2008 to date of judgment or earlier settlement.
3) Court fees £xxx


Amount claimed £xxxxx ( 1 +2b )
Court fee £xxx
Solicitors costs £0
Total Amount £xxxxxx ( 1+2b+3 )

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Thanks Budgie,

That make more sense.

Will now finish this off tomorrow with a clear head and it will be ready to hand deliver on Monday.

My only concern is that our proof of hardship which has been submitted to Halifax is current hardship.... although things have always been tough for us one way or other and the last time a charge appeared on that account was 30th September 2002 and account became redundant within the last 3 years and that they were not operating the Cardcash account any more they closed the account as it was redundant.

xx

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Just an update....

The N1, POC and spreadies have all been done and will be hand delivered tomorrow 17/11/2008 at the court,

My thanks to Budgie for all your help in giving your time to help us achieve this.

xx