Chubbasdad v A&L - succesfully defended strike out application // discontinued claim

[Sapphire]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Well done Chubbas dad it certainly sounds like you were very professional, I bet that impressed the judge lady.

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

FABULOUS xxx Well done hun thats brill news, completely as expected I might add

Have a break over the weekend and we'll get down to it on the POCs next week.

Read all the ''sticky'' threads in this forum about amending claims will give you a good idea of procedure /risks etc

Congrats, phase two is going to be a lot harder xxx

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

p.s. I love this bit !

after the hearing llp approached me again and said that the costs were near 3 thousand pounds. i just said nicely that my costs were in the same region and when i win, i will claim them also.she wasnt very impressed lmao.she thinks i will loose on the original POCs and i agreed. "thank god i can ammened".......didnt go down to well and she pulled a silly face.

you are an absolute star

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

this is what i have so far for phase two.....

Amended particulars of claim.

1. The claimant has an account (“the account”) in the name of Mr Chubby Account number; 11 22 3333, with the defendant which was opened on or around august 2002.between the 1st November 2002 to date the defendant has debited charges from the claimants account.

A.) The account was conducted on the basis of the defendant’s own standard terms and conditions.

B.) At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999

C.) Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.

D.) The Defendant also charged interest on the charges which were applied.

E.) The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.

2.A list of the charges applied is attached to these particulars of claim.

The Claimant contends that:

Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because

a.They are contrary to the requirement of good faith.
b. They are contrary to the requirement of good faith required in reg.5 Unfair Terms in Consumer Contracts Regs. 1999

c.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

Bank accounts have become a basic essential service. The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
These banks exercise a collective dominance in the market.
The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
The charges exceed actual costs by several thousand percent
They are applied unilaterally in a standard form contract without the possibility of negotiation
The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
The customer had no means of assessing the fairness of the Charges at the time of entering the contract
The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.

The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.·
As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.


In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.
The Supreme Court has indicated in its judgment of the 25th November 2009 that unfairness under reg.5 UTCCR 1999 may provide a basis for challenging bank charges.

Accordingly the Claimant claims:

a) the restitution of the amounts debited in respect of charges in the sum of
£ 4067.35
b) Restitution of interest charges which have been paid on the above charges in the sum of £ XXXXXX;
c) Restitutionary damages to be assessed by the court


Alternatively, the restitution of the sums levied in charges and related interest on those charges as set out above, and
interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 01 NOVEMBER 2002 to DATE of £ XXXX and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.021%

Court costs or other costs as allowed by the court;

I believe that the contents of these particulars of claim are true
------------------------------- merged -------------------------------
i did note that when i asked what track i was on the nice judge said it has not been allocated yet?

[TUTTSI]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

A great job, and you certainly stood your ground with their representative.

I doubt if it is a small claims court that they could get away with putting in a claim for £3k for their costs, I do believe that there must be limits and she obviously told you this to scare you imho.

Tuttsi xx

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

im not scared............im petrified.but im not just going to roll over and let them win without a good go.if i loose, then "so be it".im still me, im still happy, and i have my honda cb 250 superdream.......the dream lives on!!!

[enaid]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

you mean like this?

[EXC]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Nice, but I much prefer my Honda CRF250X.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

that is nice is it a 70s version? mine is a 1981 im not restoring per say.just refurb so i can have some transport for work.got it for 60 quid in a rusty state.had the gfs old man respray it massey red for 15 quid.i love it.........grrrr cant att a picy.....cant copy paste either?
------------------------------- merged -------------------------------

------------------------------- merged -------------------------------
i dont know about proffesional..........blithering idiot more like.

[Kafka]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Well done CD :first:

Keep your powder dry on the fact that she refused to divulge cost estimates to the court but was happy to reveal them outside to you as a frightener. This could come in handy later as a sign of bad faith.

[chubbas dad]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

nope still cant get the piccy on here sorry

[scoobydoo]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Hi chubbas dad

Well done for going to the hearing. I know a lot of people would have bottled it at the last minute and I know from experience A&L are a difficult opponent. So glad you are getting some help now and glad to see you are determined to carry on the fight

scooby

[Amethyst]

Re: help? A&L - hearing beginning March - strike out app from bank hearing

Was this your original POC ? (hence the penalty arguments etc ? think its an original CAG one ? ) obviously theres a lot of work to be done on this. I have sent you a pm to see what your plan is anyway before we start anything full throttle here as no point doubling up.

this is what i have so far for phase two.....

Amended particulars of claim.

1. The claimant has an account (“the account”) in the name of Mr Chubby Account number; 11 22 3333, with the defendant which was opened on or around august 2002.between the 1st November 2002 to date the defendant has debited charges from the claimants account.

A.) The account was conducted on the basis of the defendant’s own standard terms and conditions.

B.) At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999

C.) Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.

D.) The Defendant also charged interest on the charges which were applied.

E.) The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.

2.A list of the charges applied is attached to these particulars of claim.

The Claimant contends that:

Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because

a.They are contrary to the requirement of good faith.
b. They are contrary to the requirement of good faith required in reg.5 Unfair Terms in Consumer Contracts Regs. 1999

c.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

Bank accounts have become a basic essential service. The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
These banks exercise a collective dominance in the market.
The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
The charges exceed actual costs by several thousand percent
They are applied unilaterally in a standard form contract without the possibility of negotiation
The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
The customer had no means of assessing the fairness of the Charges at the time of entering the contract
The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.

The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.·
As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.


In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.
The Supreme Court has indicated in its judgment of the 25th November 2009 that unfairness under reg.5 UTCCR 1999 may provide a basis for challenging bank charges.

Accordingly the Claimant claims:

a) the restitution of the amounts debited in respect of charges in the sum of
£ 4067.35
b) Restitution of interest charges which have been paid on the above charges in the sum of £ XXXXXX;
c) Restitutionary damages to be assessed by the court


Alternatively, the restitution of the sums levied in charges and related interest on those charges as set out above, and
interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 01 NOVEMBER 2002 to DATE of £ XXXX and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.021%

Court costs or other costs as allowed by the court;

I believe that the contents of these particulars of claim are true
------------------------------- merged -------------------------------
i did note that when i asked what track i was on the nice judge said it has not been allocated yet?

chubbas dad v reliance fester - The Consumer Forums

[chubbas dad]

Re: Chubbasdad v A&L - succesfully defended strike out application

hello people.

bad news im afraid.

after a long period of reflextion and thought.i have decided the risks are to great.i therefore will not be continuing my claim at this time.i feel i do not have a good chance of staying in the small claim track,and if i am allocated to multi or fast track, i can not afford to loose and pay the costs.i would rather live to fight another day.and im sure ( hopes and prays ) it will come.

it is with a heavy heart that i have made this decision.but i feel it is right.

i would like to thank all the people who have helped me get this far.without your help and support it would not of been possible.

the alliance and leicester freedom fighter is down...but not out!

i will keep tabs, and if by any chance i can take up the fight again.i most definately will.


thank you all...................... ......

[Amethyst]

Re: Chubbasdad v A&L - succesfully defended strike out application

Absolutely respect your decision, and thank you for letting us know. You've given it a good fight so far, but I agree in the present climate the risk is disproportionate to the possible benefits of winning the claim.

You will have to let the court and A&L's sol's know and file a notice of discontinuance, that will give you more chance of getting away with no costs than leaving it to be struck out. The alternative is to try and agree a withdrawal with no costs via a consent order with A&L.

Am sure you're getting help with it anyway, so just shout if you need anything further.