Tuttsi V Halifax ( 18 year claim )

Re: Tuttsi V Halifax ( 18 year claim )

The defence has a arrived - basically a bog standard one as we all thought. No mention of the 18 year claim or the limitations and the hardship, theres a surprise.

They want to stay it pending the test case! like they can control the courts! In the case of our court they probably will without having understood our argument. Hopefully, they will pass our papers to the Central Courts in London where they sent me for my Abbey case and at least I will hopefully get a more experienced Judge who may be more ofey with what is going on.

I will post it up latter when I get home from work.

We will also have the AQ to complete and return it to couert no latter than 2nd Jan09. I will have to do it well before the 30th as I am away then for a few days until after the New Year. We will need some help on this please.

xx

Re: Tuttsi V Halifax ( 18 year claim )

O/H phoned the court to day and he was advised that Halifax have entered a defence. The defence is in the post to us, so as soon as we get it I will post it up - looking forward to the challege.

xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Yep!!!!!!!!!!!

Re: Tuttsi V Halifax ( 18 year claim )

Nice one you can get ****ed and laugh while reading it lol

No doubt they will send a bog standard defence, without having read my POC!

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Nice one you can get ****ed and laugh while reading it lol

Re: Tuttsi V Halifax ( 18 year claim )

Received from the courts the 'Notice of Issue' for our claim and they have until 10/12/08 to put in an acknowledgement of service. So if they are going to defend a defence will have to be by xmas eve, game on.

xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Nice one Tuttsi and good work Budgie.

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

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

[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 )

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 )

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.

[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

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

[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 !!