HELP-Please! wubberchicken - new POCs entered

[Amethyst]

Re: HELP-Please!

Okay next bit is witness statement - summarising test case and putting the case forward that you DO still have a claim - basically when Abbey receive the stay lift they will ask to strike out so the hearing will be about that in the main part. But then again we dont want to preempt them asking for a strike so we only want to tell the court why we want to amend particulars and that there is a case to answer despite it.

[wubberchicken]

Re: HELP-Please!

Ithink there was something on PenaltyCharges about that. I even used a few bits from it tailored to my POC.

Is that the one you mean?

[Amethyst]

Re: HELP-Please!

I know

Yes you could use that, its worked- which always helps - although remember it is a DEFENCE to a strike out application - so need amending on that score as you havent been threatened with a strike for any other reason than you havent contacted the court - but the bits you have used you can use in a witness statement to support your application.

Was just playing with this a bit for you, but yes Stephens PCF Defence is a good option.

[wubberchicken]

Re: HELP-Please!

Well plagarised this "summary" of the Test Case and the reason I have a good case and need for amending my POC.

What do you think?

1.In the recent case of The Office of Fair Trading (Respondents) v Abbey National plc & Others [2009] UKSC 6, the Supreme Court was extremely careful to say that their Lordships’ judgment did not “close the door on the OFT’s investigations and may well not resolve the myriad cases that are currently stayed in which customers have challenged [Bank Charges].” (para.61 of the Supreme Court judgment)

2.What is more, their Lordships also confirmed that a number of challenges could still be brought under Regulation 6(2)(b), and Lord Phillips held (at Para 60-64) that a legal challenge could, in fact, still be brought under Regulation 6(2)(b) when he confirmed the point that was raised by Andrew Smith J at Paragraph 400 of his judgment in the Commercial Court:
“Moreover, the basis of the whole package argument is that the Relevant Charges are not the price or remuneration for services but part of the price or remuneration for services. An assessment of the fairness of the Relevant Charges does not involve an assessment of the level or adequacy or appropriateness of the overall price or remuneration for the package of services supplied by the Bank, and an assessment of the fairness of the Relevant Charges as against those services, apart from being entirely beside the point, would not intrude upon the essential bargain between the parties that the Directive and the 1999 Regulations intend should be protected from assessment. The whole package argument does not engage the policy of the Directive and the 1999 Regulations for exempting the fairness of the Relevant Terms from assessment. Indeed, I am far from convinced that an assessment of part of the price or remuneration (or at least for less than what is manifestly the predominant part of the price or remuneration) for goods or services would ever be covered by Regulation 6(2)(b), but since this is not an argument advanced by the OFT, I say no more about that.”

3.The Supreme Court also referred to regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 ( Para 8 ) , which states:
“A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.”

4.The current account contract was not individually negotiated, because the Defendant imposes its own standard terms and conditions on its customers and is not prepared to agree or to permit any individually agreed variations to the supplier/customer relationship.

5.The lack of competition amongst High Street banks has been the focus of concern by the Government and the OFT, and was even highlighted by Lady Hale in her judgment in the recent OFT litigation against 8 UK banks. Indeed, Lady Hale even suggested that the lack of competition was the cause of the present bank charges problems. (Para.93 of the Supreme Court judgment)

6.There is a significant imbalance in the parties' rights and obligations and this is to the detriment of the customer. This can be seen at least in the following ways:-

a.The bank reserves itself the right to vary terms and conditions as it sees fit.
b.These variations are imposed without discussion with the customer.
c.The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated.
d.The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer.
e.It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made.

7.There is lack of mutuality in the bank/customer relationship. There is no reciprocity so that the customer is not permitted to impose any contractual variations on the bank.

8.The current account contract allows the bank to impose charges at a high rate in the event that the customer makes some error in the management of his account. The bank will not accept any similar liability in the event that it makes a similar error in the management of the customer’s account.

9.The bank reserves to itself a right to terminate the banking relationship at any time for any reason. There is no requirement of ‘reasonable cause’ and the peremptory exercise of this contractual right is a frequent cause of future financial problems for many bank customers. Many banks in fact terminated Consumer accounts because they exercised their right to bring legal proceedings.

10.The bank reserves itself the right to terminate any overdraft facility and to require repayment within a time schedule of its own choosing. There is no requirement of ‘reasonable cause’ and the peremptory exercise of this contractual right is a frequent cause of grave financial problems for many bank customers.

11.It is submitted that the points listed above are all highly symptomatic of a want of good faith by the banks in the form and in the application of their standard form contract.

12.Until the recent OFT litigation, the banks had failed to be transparent about their charges in that they had denied that cross-subsidy took place at all and had even attempted to suggest that their charges represented value for money by claiming that that the charges were informed by the administrative costs of dealing with insufficient funds situations.

13.It is submitted that this deceptive information was calculated to deny their customers a chance to judge whether they really were receiving value for money in respect of the charges they were being forced to pay. The information was not given to their customer in good faith and was calculated to make them act to their own detriment.

14.There are further legal arguments to the said charges that can be brought under the Consumer Credit Act 1974, section 140A, Unfair relationships between creditors and debtors which states the following:

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following

(a) any of the terms of the agreement or of any related agreement;
(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

(2)In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).

(3) For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.

(4) A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.
(5) An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).]

15.FSA – Banking: Conduct of Business Regs.2008, the new FSA regulations which are binding on banks require that they treat their customers fairly. The FSA regulations are enforceable against the banks by means of substantial fines. It is submitted that because of the obligatory nature of the FSA Regs, that they are incorporated into the personal banking contract and are enforceable as contractual terms.

16.Assessment of fairness by the OFT, although the Supreme Court decision has prevented the OFT from applying any finding of unfairness for the purposes of the Unfair Terms in Consumer Contracts Regs 1999, such a finding will be highly probative of a breach of the banks’ obligations under the FSA Regs and therefore their implied duty to act fairly under the banking contract.
------------------------------- merged -------------------------------
LOL....your a faster typer than I madam.

Again thanks for that. How do you find the time to have and maintain a family...I'm impressed 8)

Will start typing it all out in full and getting it into Court this Friday.

[Amethyst]

Re: HELP-Please!

Sounds fine to me, need to put the Witness Statement bits around it - eg para 18 of the bit I pasted below and paras 1 - 6 ??


Are you happy with it, understand it and comfortable to argue it in court ?

[wubberchicken]

Re: HELP-Please!

Yes indeedy...no problems arguing anything in Court. I have understood the initial (2206-2007) claim and the SCoJ judgement (after the initial shock) so that's not an issue. It was just putting it all on paper that was the problem.

Whilst we're on that subject a further 3 points of Law has become known to me that not only supports the CCA and UTCCR argument but are capable with evidence of standing on their own merits.

I think the coming months are going to be interesting to say the least.

[Amethyst]

Re: HELP-Please!

Are we going to share ? lol.

[wubberchicken]

Re: HELP-Please!

Oh...mais oui

They are......

THE MISREPRESENTATION ACT 1967
1. The Claimant believes it is possible to bring an argument under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which Abbey National knowingly benefited.
2. Historically either;
i. Abbey National misrepresented that their relevant terms were penal as opposed to contracting to provide services, or
ii. Abbey National was aware of the Claimants’ “mistaken belief” that their relevant terms were penal but failed to correct this, to the detriment of the Claimant but to the benefit of the Bank, or
iii. Abbey National was aware that the relevant terms were penal in nature but realised they could argue they were in exchange for a package of services and misrepresented to the Court accordingly.
3. In any case, the Claimant would aver that the Defendant had been acting on a misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and would contend that the charges should not have been part of the consideration in exchange for any so-called contracted “package” of services.
4. Should it matter if the relevant charges are for a service disguised as a penalty or for a cross-subsidy disguised as a service? At the end of the day it is £2 disguised as £38 and simply a deceitful description. After all, say in the utmost extreme the Defendant charged £1,000,000 for the same “service”, what would the learned opinion be then? Indeed, to charge £30 for an unpaid Standing Order or Direct Debit would be stretching credibility if it were a fee for a service, as what actually does this automated service perform that is not different to other free services?
5. Until the recent OFT litigation, the Defendant had failed to be transparent about their charges in that they had denied that cross-subsidy took place at all and had even attempted to suggest that their charges were informed by the administrative costs of dealing with insufficient funds situations.
6. It is submitted that this deceptive information was calculated to deny the Claimant a chance to judge whether the Claimant was really receiving value for money in respect of the charges the Claimant was being forced to pay. The information was not given to the Claimant in good faith and was calculated to be detrimental to the Claimant.


THE COMPETITION ACT 1998, CHAPTER II
1. The Claimant contends that consumers have suffered loss due to the anti-competitive behaviour of Abbey National and other Banks.
2. The Competition Act 1998, Chapter II states;
S.18 – Abuse of dominant position
1) Subject to Section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.
2) Conduct may, in particular, constitute such an abuse if it consists in;
a) Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.
3. Chapter II is usually difficult to apply to oligopolies as it is hard to demonstrate the collective dominant position. However, the Banks have publicly admitted to the collective dominant position via the British Banking Association (BBA) and individually all UK Banks are members of the BBA – this covers 100% of the personal current account providers.
4. The stated position is that free-if-in-credit is the Banks’ preferred model and there is general agreement to keep to this model. This model relies on cross-subsidy via the Relevant Charges.
5. The free-if-in-credit model is effectively price discrimination on the basis of property, i.e. the less money a customer has, the higher the overall cost of the package account.
6. This is evidenced by the OFT PCA study data showing customers with less than £1000 in savings are much more likely to incur charges.
7. Also, from the Supreme Court judgement, bank revenue from these charges accounts for 30% of revenue from only 20% of the customer base.
8. Banks via the Relevant Terms cause the overall price of an account to be higher than in a competitive market for the people that incur them. This is evidenced by the OFT PCA study data showing a steep upward trend in Relevant Charge levels over the years.
9. Therefore the Banks may be in breach of Chapter II by imposing unfair selling prices upon and engaging in price discrimination against their most vulnerable customers including the Claimant.
10. The Claimant has long suspected that the Banks collude to artificially maintain the price of insufficient funds charges. During a House Of Commons Scottish Affairs select committee oral evidence session – “Banking In Scotland” – in March 2009, Group Chief Executive, Scotland, for Lloyds Banking Group, in answer to question 366, told the committee that, “The Banking industry has generally come to an agreement that they will charge certain amounts for overdraft letters.” Uncorrected Evidence 319.
11. The lack of competition amongst High Street banks has been the focus of concern by the Government and the OFT, and was even highlighted by Lady Hale in her judgement in the recent OFT litigation against 8 UK banks. Indeed, Lady Hale even suggested that the lack of competition was the cause of the present bank charges problems. (Para 93 of the Supreme Court judgement.



UNDUE INFLUENCE (COMMON LAW)
1. It has long been recognised that the relationship between banker and customer is that of debtor-creditor (Foley v Hill 1848).
2. It is also recognised that when the banker transacts on the customer's instruction he does so as agent (Westminster Bank Ltd v Hilton 1923).
3. These transactionary functions were originally described as 'superadded', or extra to the main bargain, 'by custom' (Foley v Hill 1848).
4. The Supreme Court has ruled that current accounts are contracted as a package of services and that is the main bargain - these services are not ancillary or extra (OFT v Abbey National 2009).
5. These services are provided not against the customer's money, as it is now the Bank's, but against the resulting chose in action constituted by the account.
6. It follows that in the context of modern current accounts the main relationship is no longer banker-customer rather service provider-customer; the majority of transactions are no longer deposits and debits between banker and client, rather credits and debits between the customer and third parties via the bank.
7. Under Common Law, Undue Influence lends support to this characterisation, not by automatically presuming an agent-principal relationship, but deriving the characteristics of such a relationship in the particular case (National Westminster Bank plc v Morgan 1985).
8. The exact nature of a relationship is determined by contract but also by the level of trust, confidence, reliance, dependence and vulnerability of the customer. (Royal Bank of Scotland v Etridge 2001).
9. Where the customer pays their wages / benefits into the hands of the bank it is submitted that to do so requires a high degree of trust and confidence in the way the bank will transact against the resulting account.
10. Where most of the customer's outgoings are through the account it is submitted there is reliance and even a dependence upon the bank.
11. Where the customer has no great savings in the event of misfortune, it is submitted that the customer is vulnerable.
12. When all the above is true and where the customer is already indebted to the bank it is submitted that the customer is yet more vulnerable.
13. It is not unusual for points (38) through (41) to be true in an individual case such as the Claimants’.
14. Given that the customer allows the bank to make use of their money as if the banks own, or pays interest to the bank for their debts, it is submitted that it would be inequitable to allow the bank to take advantage of the customer's circumstances.
15. It is submitted that any transactions entered into that are manifestly against the Claimants’ interest are done so under undue influence.
16. This undue influence arises either as an abuse of the agent-principal relationship when transacting against the account or alternatively, due to abuse of the circumstances described at points (38) through (41) above, amounting to the same.
Also:
17. The Claimant was vulnerable in addition to the above because the Claimant lacked understanding of the complex charge structure (item fee / daily fee / monthly fee) and how this will operate upon the account.
18. Furthermore, daily maintenance fees are unnecessary to both the customer and the bank. When the overdraft assessment is initially performed the bank should be able to determine how long they are willing to loan the money for so a daily assessment is redundant. The Claimant understands that the overdraft is repayable on demand and is already paying interest at the 'unauthorised' overdraft rate. This is an artificial device to inflate the interest rate beyond what would normally be considered an acceptable level, again made possible by the undue influence of the bank.
19. As noted above, when Relevant Transactions are manifestly not in the Claimants’ interest, they are only entered into because of the bank's undue influence.
20. It is strange that companies providing such a fundamental service to our society cannot be assumed to be trustworthy? It's hard to imagine that caveat emptor should be applied to stock brokers, personal assistants or the Post Office for example - we should be able to trust these agents implicitly.
21. The fundamental service isn't using the Claimants’ money for their own ends; it's in acting as the Claimants’ financial intermediary.



THE SUPPLY OF GOODS AND SERVICES ACT 1982, PART II SUPPLY OF SERVICES
1. The Claimant believes that if the Charge was not a Penalty or a Cost but a Service then under the above Act s.15 Implied term about consideration (1) & (2) applies;
1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.
2) What is a reasonable charge is a question of fact.
2. The Claimant believes that the only method of factually determining what a “reasonable” charge is, indeed, to provide a breakdown of their true costs.
3. The Claimant contends that if the fees charged are a fee for a service then the Claimant is at a loss to explain why the charges levied on the Claimants’ account due to unpaid items are a service? The vast majority if not all fees levied on the Claimants’ account are for unpaid Standing Orders and Direct Debits. Since it is highly improbable it was for any manual intervention, then this would have been an automated service. If the Claimant attempted to withdraw cash from a teller or from a cash machine without sufficient funds the transaction would have been refused, but importantly, no fee charged. One was a manual intervention, the other automated.
4. The Claimant believes that any analysis performed on the way fees were levied on the Claimants’ account would stand as being extortionate and unfair in practice and as such would fail any unfairness test.
Happy reading.......:tung:......... saying that you probably already know all this anyway?

[Amethyst]

Re: HELP-Please!

yes, bummer, thought you had some funky new stuff then ! Legal Beagles

Thanks babe

Pleeeeeease keep me up to date as the claim progresses obviously theres a lot to do on the POCs and next steps.

[wubberchicken]

Re: HELP-Please!

Further in point 17 of the Witness Statement I amended it a bit with the following in red:

The Claimant respectfully asks the Court to order the Defendant to make available to the Court and the Claimant the terms of the original contract between the parties and further, each and all subsequent periodic variations to said contract since its inception. Further, it is requested that the Defendant makes available to the Court and to the Claimant true copies of the notification letters sent on each transgression of the account by the Claimant. It is the Claimants belief that the Defendant holds such archives of said material which will be readily available without expense or difficulty.

Hope that's ok?

[Amethyst]

Re: HELP-Please!

indeed it is good plan ! (they'll argue it wasn't a transgression tho ? maybe 'in each instance a charge was incurred/applied' ????)

[wubberchicken]

Re: HELP-Please!

Damn, didn't think of that. However we may be able to argue and in refering to their T&C's that in order to trigger the "charges" levied I must have breached my agreement - ipso facto - a transgression?

I must say you've re-ignited my fire for all this now.....I've been sat rusting away for nearly 3 years with this......

[Amethyst]

Re: HELP-Please!

GOOD !


ummmm ''However we may be able to argue and in refering to their T&C's that in order to trigger the "charges" levied I must have breached my agreement - ipso facto - a transgression?''

I think the whole point now is there was NO BREACH - as confirmed by Smiths Penalty charges judgments on current and historical terms AND ALSO the Supreme Court (completely bizarrely) ruled that the charges do not relate directly to the transactions which caused them and even if they did it would be irrelevant. (i did paste something yesterday on this will locate hang on)

Yorkshire banks case summary - Legal Beagles last post on there (killed THAT conversation to it seems)

[wubberchicken]

Re: HELP-Please!

Damn blast and poo.

Ah got it.......how about....

Further it is requested that the Defendant makes available to the Court and to the Claimant true copies of the notification letters sent after each triggering of a levied charge on the account of the Claimant.

Is that better?

[Amethyst]

Re: HELP-Please!

Sorted