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THIS IS A DRAFT - you need to personalise it to your own situation. This one is for HSBC account opened in 1994 (you'll see which bits need amending)
It would be an idea to go through and think of examples where each point applies to your situation and experiences with the bank, and if you can evidence issues with information from your bank transaction history. For ideas have a look at the FOS letter - FOS responses to keep complaint open.... - Legal Beagles
This will be the basis for all banks really - of course it needs individualising with the correct terms and conditions and wording from letters etc - there are a lot of examples of letters on this thread Charge Notification Letters Required - Legal Beagles and there is a number of terms and conditions Banks Terms and Conditions and Standard Contracts - Legal Beagles and specific charging terms can be found in the OFT documents (excel files)
Schedule A to OFT's particulars of claim (Excel 156 kb)
Schedule B to OFT's particulars of claim (Excel 586 kb)
We will slowly build a library of sample letters for each bank but people will still need to amend and personalise the letters heavily.
Also read FOS responses to keep complaint open.... - Legal Beagles
ALL RED BITS NEED PERSONALISING.
YOU need to outline some examples of where you feel the charges were imposed unfairly (so for example if you made a transaction that was worth less than the charge imposed and they bounced it, but charged the fee - that doesnt really demonstrate much consideration ---- also things like order of transactions being altered to gain the largest number of fees (so look for places in statements with multiple fees) have you ever tried to request an overdraft extension but been refused, then they have paid stuff anyway and charged you for it. etc.
I'd suggest doing that first - it will involve some time and effort and you will need to sit down with your transaction lists. If you don't have full transaction lists as you original only asked for a list of charges (aka MSE's advice) then you will neeed to go back to the bank and ask for full transaction lists - you should reply to the bank that that is the case and outline your reasons based on the below information.
This is likely to be refined and updated over coming days.
Use of any sample letters is at your own risk.
Dear Sirs
Thank you for your letter dated xx/xx/xxxx in which you state you will be ''not upholding your complaint and we will not be refunding the bank charges.''
You have stated that this is due to the Supreme Court Judgment ''confirming that the bank charges are not capable of amounting to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations.''
Whilst I recognise that this is the case and that the banks terms are unable to be assessed in terms of price under regulation 6(2)b of the Unfair Terms in Consumer Contracts Regulations (UTCCR), and as indicated in the Supreme Court judgment the terms are not precluded from the assessment of fairness under regulation 5(1), I still consider the overall contract including terms which allowed you to impose charges on my account to be unfair by virtue of regulation 5(1) of the UTCCR. I also consider the terms to be in breach of section 140 of the Consumer Credit Act.
Your letter also states that ''If you believe that the charges are unfair on grounds other than the level of charges, or that we have failed to address all the issues raised in your complaint, you may escalate your concerns by contacting us setting out the details so that we can consider this further''.
Please find the details of my concerns set out below:
I consider there was an imbalance in the contract to my detriment as consumer because;
I also consider that your bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between myself and your bank. In fact your terms & conditions make no reference whatsoever to the charges relating to the provision of any 'service', which was HSBC's adopted pleaded position during the test case.
The relevant terms at the time I opened my account were;
This belief was compounded by letters you have sent me at times when my account has incurred your charges which stated;
This misrepresentation appears to have been recognised by yourself in September this year when you informed customers;
I feel this was unlawful under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which your bank knowingly benefited.
In any case, the conduct of my account has relied on the misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and I contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services.
Therefore I request you continue to consider my complaint and refund charges imposed under the contract between 1994 and 2009 as previously requested.
Yours faithfully
Customer
It would be an idea to go through and think of examples where each point applies to your situation and experiences with the bank, and if you can evidence issues with information from your bank transaction history. For ideas have a look at the FOS letter - FOS responses to keep complaint open.... - Legal Beagles
This will be the basis for all banks really - of course it needs individualising with the correct terms and conditions and wording from letters etc - there are a lot of examples of letters on this thread Charge Notification Letters Required - Legal Beagles and there is a number of terms and conditions Banks Terms and Conditions and Standard Contracts - Legal Beagles and specific charging terms can be found in the OFT documents (excel files)
Schedule A to OFT's particulars of claim (Excel 156 kb)
Schedule B to OFT's particulars of claim (Excel 586 kb)
We will slowly build a library of sample letters for each bank but people will still need to amend and personalise the letters heavily.
Also read FOS responses to keep complaint open.... - Legal Beagles
ALL RED BITS NEED PERSONALISING.
YOU need to outline some examples of where you feel the charges were imposed unfairly (so for example if you made a transaction that was worth less than the charge imposed and they bounced it, but charged the fee - that doesnt really demonstrate much consideration ---- also things like order of transactions being altered to gain the largest number of fees (so look for places in statements with multiple fees) have you ever tried to request an overdraft extension but been refused, then they have paid stuff anyway and charged you for it. etc.
I'd suggest doing that first - it will involve some time and effort and you will need to sit down with your transaction lists. If you don't have full transaction lists as you original only asked for a list of charges (aka MSE's advice) then you will neeed to go back to the bank and ask for full transaction lists - you should reply to the bank that that is the case and outline your reasons based on the below information.
This is likely to be refined and updated over coming days.
Use of any sample letters is at your own risk.
Dear Sirs
Thank you for your letter dated xx/xx/xxxx in which you state you will be ''not upholding your complaint and we will not be refunding the bank charges.''
You have stated that this is due to the Supreme Court Judgment ''confirming that the bank charges are not capable of amounting to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations.''
Whilst I recognise that this is the case and that the banks terms are unable to be assessed in terms of price under regulation 6(2)b of the Unfair Terms in Consumer Contracts Regulations (UTCCR), and as indicated in the Supreme Court judgment the terms are not precluded from the assessment of fairness under regulation 5(1), I still consider the overall contract including terms which allowed you to impose charges on my account to be unfair by virtue of regulation 5(1) of the UTCCR. I also consider the terms to be in breach of section 140 of the Consumer Credit Act.
Your letter also states that ''If you believe that the charges are unfair on grounds other than the level of charges, or that we have failed to address all the issues raised in your complaint, you may escalate your concerns by contacting us setting out the details so that we can consider this further''.
Please find the details of my concerns set out below:
I consider there was an imbalance in the contract to my detriment as consumer because;
- I consider that HSBC by virtue of the contract can choose which service they offer without consideration for or confirmation of what I intended. For example you could consider a request for overdraft and pay or simply reject payment on grounds of lack of funds. In performing these services you act as agent for the myself and therefore should have had regard to the Consumer‘s intent. The Consumer‘s intent may be for the request to be facilitated if there are sufficient funds, to be rejected if there are not or to be asked for confirmation (where practicable) otherwise. However the contract denies the Consumer the opportunity to express that or any specific intent other than that determined by the Banks.
This is evidenced by TRANSACTIONS WHICH EVIDENCE THIS
- I consider that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair.
- I suggest that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied? The Consumer could therefore not intend subsequent payments to be requests for assessment, and it would be to their detriment for them to be regarded as such. If the fee was argued to be for checking the Consumer's account, the Banks would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.
This is evidenced by TRANSACTIONS/EXAMPLES WHICH EVIDENCE THIS
- It is apparent that I am required to subsidise the running and/or operation costs of accounts other than that of my own. In so doing so the Bank‘s charging structure reverses the usual pattern of cross subsidisation by delivering heavily subsidised banking services to those with the most financial competence or resources at the expense of those with the least.
- I contend that you have control over the distribution of my salary or benefits paid into the account, and the relevant terms allow for the automatic application of the relevant Charges, with little or no notice to the Consumer.
I suggest that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied? The Consumer could therefore not intend subsequent payments to be requests for assessment, and it would be to their detriment for them to be regarded as such. If the fee was argued to be for checking the Consumer's account, the Banks would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.
This is evidenced by TRANSACTIONS/EXAMPLES WHICH EVIDENCE THIS
- In my experience HSBC, by virtue of the relevant contracts, have priority over my other debtors with regards to the application and payment of the relevant Charges to the Account. There is no consideration in advance of applying the charge as to whether or not the bank applies the charge.
- Additionally, the HSBC's contracts include a right of offset by which they are able to offset an unauthorised overdraft from my savings or other account. An imbalance exists in the contract as there is no equivalent equitable arrangement in favour of the Consumer. There is no contractual means by which additional funds, required to enable payment of a transaction and which would otherwise trigger relevant charges, could automatically be transferred from my savings account or other account to the relevant personal current account by the Bank.
I suggest that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied? The Consumer could therefore not intend subsequent payments to be requests for assessment, and it would be to their detriment for them to be regarded as such. If the fee was argued to be for checking the Consumer's account, the Banks would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.
This is evidenced by TRANSACTIONS/EXAMPLES WHICH EVIDENCE THIS
- The relevant terms have frequently forced me into a cycle of debt, where the Relevant Charges directly or indirectly give rise to the application of additional charges to the account, without any restriction or limitation.
I also consider that your bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between myself and your bank. In fact your terms & conditions make no reference whatsoever to the charges relating to the provision of any 'service', which was HSBC's adopted pleaded position during the test case.
The relevant terms at the time I opened my account were;
- 1994
7.2 You must always keep your current account in credit unless we have agreed an overdraft with you.
7.3 You must not go over any' overdraft limit that is agreed with us unless you get our agreement first.
- ANY OTHER TERMS APPLICABLE TO THE PERIOD YOU HELD YOUR ACCOUNT
This belief was compounded by letters you have sent me at times when my account has incurred your charges which stated;
- August 2002 ''We will deduct £30.00 from your account to cover the cost of recalling this standing order''
This misrepresentation appears to have been recognised by yourself in September this year when you informed customers;
- September 2008 '' In the Terms and Conditions prior to September 2007 the above stated explanation would not have used the terminology of 'informal overdraft' they would have described the fees being incurred as default charges as the account is not running within its agreed limit. In the most recent Terms and Conditions the charges are no longer described as default charges. I apologise for any confusion cause to yourself regarding this matter''
I feel this was unlawful under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which your bank knowingly benefited.
- HSBC misrepresented that the relevant terms were penal as opposed to contracting to provide services, or
- HSBC were aware of your Customer‘s 'mistaken belief' that their relevant terms were penal but failed to correct this, to the detriment of the Consumer but to the benefit of the Banks, alternatively HSBC were 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.
In any case, the conduct of my account has relied on the misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and I contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services.
Therefore I request you continue to consider my complaint and refund charges imposed under the contract between 1994 and 2009 as previously requested.
Yours faithfully
Customer
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