Tuttsi V Halifax ( 18 year claim )

Re: Tuttsi V Halifax ( 18 year claim )

Hi Budgie

I have had a brief look at the POC and I cannot fault it in any way. However, when I get home from work I will ask Mr T to read it and see if he has any questions.

This is a Joint account so I will of course put both names.

i also like the idea of letting the court decide on the interest Compounded or Simple..... nice

I will down load the court form as I believe it is more beneficial than doing it online.

The Spreadie that goes with the POC should I do this with 8% statutory interest or do I just claim the charges on the POC and leave the interest for the moment and let the Judge decide!! just need further guidance here.

Other than that my thanks to you and TB.

xxxx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Tuttsi,

Following is a draft POC which I have posted for your review and comments, hopefully we can get some feedback and suggestions from others as well.

The POC has been prepared using a template POC produced by Tom Brennan for another claim. I have tried to adapt and amended certain parts of Tom's original to make it relevant to your own claim.

I think it's important with a POC to make it short, sweet and simple to understand from both the Claimant's, the Defendant's and the Court's point of view.

Please note that the bulk of your arguments concerning the penalty and unfair aspects as well as the Litigation act, your severe financial hardship and arguments concerning an award of interest should and will be included in supporting Witness Statements and Skeleton Arguments that we will produce once the claim has been filed and the Defendant Bank has filed a defence.

It is quite likley that the Bank will simply request a stay in your claim pending resolution of the test case. We can try to tackle this as and when it happens by further expanding upon the hardship issues and the FSA waiver etc etc.

I look forward to receiving your and others feedback on the draft POC.

Budgie


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.


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 [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 Bank, during submissions in the course of the Test Case, has 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.

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 Bank Charges claims and provided the Bank with documentary evidence relating to the Claimant’s severe financial hardship. The Bank acknowledged the Claimant’s financial situation 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 therefore 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, either compound or simple, 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 settlelment 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

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Am kicked !

Am working on it.

Will post up a draft tomorrow.

Still havent been able to chat with Tom but will try and catch him tomorrow and will email draft POC to him for his views.

Sorry this is taking a while but am totally overloaded at present.

Budgie

Re: Tuttsi V Halifax ( 18 year claim )

and.......................

[Amethyst]

Re: Tuttsi V Halifax ( 18 year claim )

I'll give Bud a kick up the bum for you xx

Re: Tuttsi V Halifax ( 18 year claim )

I dearly want to progress this further and just need help................with the POC.

xx

Re: Tuttsi V Halifax ( 18 year claim )

any news......

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

I have drafted an outline but still need to speak to Tom.

I will try and catch him tomorrow Tuttsi.

Rgds Budgie

Re: Tuttsi V Halifax ( 18 year claim )

Hi Budgie

Any news on the POC and have you spoken with TB!

Thanks
xx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

The last letter you sent was your LBA.

By the time we have POC prepared and a strategy devised the 14 days will have passed anyway.

I would recommend just cutting out the ping pong letters now and going straight for the jugular.

We have loads of material to use for the limitation act arguments, they have already admitted your hardship situation so there is a good chance we can get this into court and possibly avoid a stay. The hearing would be very very interesting !!

Bugdie

[Tools]

Re: Tuttsi V Halifax ( 18 year claim )

The Limitation Act 1980 also provides that

14A Special time limit for negligence actions where facts relevant to cause
of action are not known at date of accrual

(5) For the purposes of this section, the starting date for reckoning the
period of limitation under subsection (4)(b) above is the earliest
date on which the plaintiff or any person in whom the cause of
action was vested before him first had both the knowledge required
for bringing an action for damages in respect of the relevant
damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an
action for damages in respect of the relevant damage" means
knowledge both--
(a) of the material facts about the damage in respect of
which damages are claimed; and
(b) of the other facts relevant to the current action
mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts
about the damage are such facts about the damage as would lead a
reasonable person who had suffered such damage to consider it
sufficiently serious to justify his instituting proceedings for
damages against a defendant who did not dispute liability and was
426
able to satisfy a judgment.

..................................and

(10) For the purposes of this section a person's knowledge includes
knowledge which he might reasonably have been expected to
acquire--
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of
appropriate expert advice which it is reasonable for him
to seek;
but a person shall not be taken by virtue of this subsection to have
knowledge of a fact ascertainable only with the help of expert
advice so long as he has taken all reasonable steps to obtain (and,
where appropriate, to act on) that advice.

Re: Tuttsi V Halifax ( 18 year claim )

Time to file the claim at Court Tuttsi.

It will be a very interesting one because it combines a harship claim with arguments against the limitation act.

Lets see what everyone else has to say. But I suggest we start working on a really good POC for you.


Budgie

Thanks Budgie

Should we write one more letter putting them on notice that I will be taking them to court! or do we just do it.....

xx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Time to file the claim at Court Tuttsi.

It will be a very interesting one because it combines a harship claim with arguments against the limitation act.

Lets see what everyone else has to say. But I suggest we start working on a really good POC for you.


Budgie

Re: Tuttsi V Halifax ( 18 year claim )

Just received this letter from Halifax - how do I respond!!

HALIFAX
xxxxxx Halifax
Customer Relations PO Box 548
30th September 2008 Leeds
LS1 1WU
Mr x & Mrs x Tuttsi

Our reference xxxxxxx
Roll Number: xxxxxxxxxx
Dear Mr & Mrs Tuttsi
Thank you for your recent letter.
As stated in our previous correspondence, we note that you have requested charges dating back to 1990. The Limitation Act 1980 states that an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. Halifax considers that a portion of the time period which you have claimed for is statute barred as it is a claim for charges which may have been incurred prior to the 6 year time period from the date you made your complaint. However, if you have evidence to the contrary in regards to charges incurred in the past 6 years we will be more than willing to look at this again on receipt of this evidence.
You referred to The Office of Fair Trading statement on credit card charges. As the statement did not apply to bank account charges, I can't comment on it in connection with your complaint.
You have requested information on how we calculate our costs for dealing with these transactions. Please note that we are not obliged under the Data Protection Act to supply this information, and as it is commercially sensitive, I regret to inform you that I am unable to comply with your request.
I have enclosed another acceptance form, should you wish to accept the offer of £28.00 made in our previous letter please complete and return this form to us.
Yours sincerely
Tom Setterfield
Customer Relations Manager
Customer Relations
Halifax is a division of Bank of Scotland pic. Registered in Scotland No. SC327000. Registered Office: The Mound, Edinburgh, EH1 1YZ. Authorised and Regulated by the Financial Services Authority.

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

No probs Tutts, get yourself down that PO lol.