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Re: Tuttsi V Halifax ( 18 year claim )
any news......
any news......
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Re: Tuttsi V Halifax ( 18 year claim )
I dearly want to progress this further and just need help................with the POC.
xxComment
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Re: Tuttsi V Halifax ( 18 year claim )
I'll give Bud a kick up the bum for you xx#staysafestayhome
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Re: Tuttsi V Halifax ( 18 year claim )
and.......................Comment
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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.
BudgieComment
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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 dateComment
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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.
xxxxComment
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Re: Tuttsi V Halifax ( 18 year claim )
See comments in red Tuttsi
Originally posted by TUTTSI View PostComment
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Re: Tuttsi V Halifax ( 18 year claim )
Budgie,
Mr T said that in the POC should reference to the 'Bank' in each case be altered to 'Defendant'
On the second page paragraph 3 there is reference to 'The Bank, during submissions in the course of the Test Case' and which Bank are we referring to here, is it Abbey because there is reference to the Test case and Abbey on the previous page or does it refer to the Defendant Bank?
Thanks xx
Originally posted by Budgie View PostComment
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Re: Tuttsi V Halifax ( 18 year claim )
Originally posted by TUTTSI View Post
Hi Tuttsi,
I have no problem if you wish to go through the draft POC and change every "Bank" to Defendant. I was trying to produce a standard POC that could also be used by other Claimers with the minimum of modifications. But feel free to personalise your version as much as you wish !!
The comment regarding "submissions in the test case" is a general comment that is important in the context of the arguments we are presenting in the POC. Without looking I am not 100% sure which Bank or QC actually made the comment, I suspect it was Rabinowitz, who as lead QC would have been speaking on behalf of all the Banks. I feel its basically OK as written but have added an "s" which perhaps just tidies things nicely.
The reason Abbey is referred to is because Abbey is the named Bank in the test case title. I can understand your confusion, I have amended this by adding "and others" and removed "has" later in the sentence which again perhaps just tidies things a bit.
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.
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
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.Comment
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Re: Tuttsi V Halifax ( 18 year claim )
Thanks Budgie
I will hang on a day or so in case of anyone else wants to add/takeaway any more changes or indeed if TB makes any further amendments.
xxComment
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Re: Tuttsi V Halifax ( 18 year claim )
I will try to read through this tomorrow and see if I can add anything further.
Too tierd tonight.Comment
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Re: Tuttsi V Halifax ( 18 year claim )
Budgie,
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. I am still pondering on this one. It's either submit just a schedule of the charges or a statutory interest spready. We will need to recalculate the statutory interest anyway ( just because of the elapsed time - there is a bit more interest due )
Have you had any more thoughts on this! as would like to do the POC tomorrow.
Also, did you hear back from TB...
xxComment
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Re: Tuttsi V Halifax ( 18 year claim )
As I see it, these are the following points that still need further clarification and input:-
Following on from our discussion in chat, we can certainly add about the financial hardship as Halifax have already agreed the financial hardship in our case at 100% of charges only. Should this bit be included IYHO!
Spreadie of charges + 8% or just charges and how best to set this out in the POC so that it leaves it open for the judge to decide on the interest element simple or compounded.
If anyone else can add their input ASAP so that Mr T and I can get this completed at the weekend, and then post it up for further discussion.
xxComment
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Re: Tuttsi V Halifax ( 18 year claim )
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.Originally posted by TUTTSI View Post
I have had a quick scan and it seems ok to me. The only thing I am unsure about is this section:
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.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.Comment
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