Oldman v Yorkshire Business claim

[oldman]

I am just starting this thread so my progress can be tracked in case I need help along the way.

 

I am claiming back charges plus contractual interest from the start of the claim

 

Sent first letter 14 days ago.

 

Received a a reply dated 30-May-2007 telling me I can't claim as this is a business account which I will post on here when have time to type it all out.

 

Letter before action is now ready and will be in the post in the morning.

[caro]

Make sure you use the templates for business claims. Funny they paid Lizzybee friend the charges on his business account only last week. More porkies.

[oldman]

Promised I would post the letter I received form the Yorkshire bank when I had time to type it out. Have not had time to type it out but have found it in another tread and as it's word for word identical I am just copying it to here.

 

Proves one thing whoever opened my letter obviously didn't read and understand the content preferring just to pump out another standard reply

 

 

Below letter from Yorkshire bank dated 30-May-2007

 

 

Dear Mr oldman

 

RE: Charges claim T/A a company / Business Account no *******

 

I refer to your previous letters, seeking to reclaim charges applied to the above business account.

 

You have sought to rely on the following legislation as a basis for your claim:

 

1. Section 4 of the Unfair Contracts Terms Act 1977 ("UCTA").

 

2. Para 8 and Schedule 2(i)(e) of the Unfair Terms in Consumer Contract Regulations 1999 ("the Regulations"); and

 

3. Section 15 of the supply of goods and Services Act 1982("SGSA")

 

Section 4 of UCTA relates to contract terms where one of the parties to that contract is a consumer. Section 25(1) of UCT provides that "Consumer" has the meaning assigned to that expression in the definition in the same section of "Consumer Contract". "Consumer Contract" is defined as a contract in which one party to the contract deals, and the other party to the contract ("the Consumer") does not deal or hold himself out as dealing, in the course of a business.

 

You deal with the bank in the course of your business. You cannot therefore rely on Section 4 of UCTA.

 

Section 3(1) of the Regulations provides that in these regulation, "Consumer" means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or professions.

 

As noted you deal with the Bank in the course of your business. You cannot therefore rely on the Regulations.

 

Section 15 of SGSA provides for a term about consideration to be implied into a contract where, under contract for the supply of a service, the consideration for the service is not determined by the contract.

 

The Terms and Conditions of the Contract between you and the bank provide the consideration to be paid where you use the unauthorised overdraft service provided by the bank. Section 15 is therefore of no relevance to this claim.

 

Further, your assertion that the charges are a penalty and therefore unenforceable is misconceived; the law of penalties is only an issue in relation to breach of contract. You have not breached your contract with the Bank as the terms and conditions provide for the event that you exceed your limit on your account.

 

In the circumstances you have no basis for a claim against the Bank.

 

Yours Sincerely

 

 

Advise Quality Unit-Charges section

 

 

 

 

I have just finished preparing my N1 claim form and particulars of claim which I will be taking in person to court on Monday morning.

[caro]

As a business claim, it is absolutely correct that you cannot rely on consumer law, so make sure that your POC are correct. Use this link http://www.consumeractiongroup.co.uk/forum/bank-templates-library/64975-business-claims-basic-guide.html

[oldman]

As a business claim, it is absolutely correct that you cannot rely on consumer law, so make sure that your POC are correct. Use this link http://www.consumeractiongroup.co.uk/forum/bank-templates-library/64975-business-claims-basic-guide.html

 

 

Yes I have used the business claim guide and the correct poc.

The letters are from the business guide that's why I have said they didn't read my letter or understand it as it doesnt rely on consumer law. They have made that assumption

[reclaimone]

I have just recieved same standard letter, even though they have not read my correct business claim letter. Whats the next step?

do we have a standard letter to respond back?

[oldman]

I have just received the following from the court

 

 

The court is aware that a test case has been issued in the high court between the office of fair trading and certain banks. This is with a view to determining issues of legal principle in relation to the recovery of charges made on bank current accounts and the applicability of the unfair terms in consumer contracts regulations and other legislation to such charges.

 

IT IS ORDERED THAT

 

1 The claim is stayed until further order with a view to awaiting the decision in the test case

 

2 either party may apply at any time to lift the stay, by application on notice, in accordance with part 23 of the civil procedure rules.

 

 

I firmly believe I should apply to have the stay lifted as this is a business claim and does not rely on consumer law such as the unfair terms in consumer contracts regulations but purely on penalty charge law which has been tested before.

 

I have used the business letters to the bank and the business poc.

 

Should I apply for the stay to be lifted on these grounds and can anybody help with what I should right to the court?

 

Thanks in advance for any help.

[hedgey06]

oldman, I really do think you need to contact the court to request that your claim is not stayed. As you point out, your claim is a business claim and does not touch on the UTCCR's.

 

You may also want to have a look in the RBoS forum. Both barneybubble and lANCASTERCHELSEA have recently received letters from Cobbetts (RBoS litigation team) that they're applying to have the stays lifted in their claims as they've realised that they're business claims and therefore not affected by the OFT test case!

[oldman]

Thanks hedgey that's what I thought but wasn't 100% sure

 

Have had a quick read of the suggested threads and will spend a bit more time reading and getting my head round it then will put together a letter to the court and ask for the stay to be lifted.

 

Any ideas how I should word the letter and anything I must include would be greatly appreciated.

 

Thanks again for the help

[oldman]

I have spoken to the court and have been told I must fill in a form N244 which they have sent me. This all seems fairly straight forward but could do with a little help with the following.

 

Part A

2 Intend to apply for an order a draft of which is attached.

"Any help with how I should wright it and what to put"

 

3 Briefly set out why you are seeking the order include the material facts on which you rely identifying any rule or statutory provision

Again any help would be appreciated.

[oldman]

I have applied for the stay to be lifted and attached the following to my N244 most of which I found on here

 

In the ********* County Court

Claim Number *******

Claimant Mr Oldman

Defendant Yorkshire bank PLC

Reference application notice Part A section 3

 

The basis upon which a stay has been granted is with regards to awaiting the

determination in the High Court of the case between the Office of Fair Trading

and various banks under folio number 2007 Folio 1186 (“ the case “).

 

I respectfully request that this stay be lifted. This is upon the contention, that as the central focus and grounds for the “OFT’s” case is to determine whether or not the charges are subject to the test of reasonableness, as required under the Unfair Terms in Consumer Contracts Regulations (UTCCR 99), then it is not of any consequence to the basis of my claim in this case.

 

As a Business account claimant my claim did not include any reference to nor make any reliance upon the UTCCR. As such, it would serve no purpose to delay proceedings in order to await the outcome of a case that would have no bearing or relevance upon this case.

 

As such I respectfully request that the current stay be lifted so that this case may dutifully proceed to be heard.

If the court does accede to my request for a removal of stay then I respectfully request that the case be allocated to the small claims track but that the defendant is ordered to make standard disclosure.

 

It is submitted that an order for standard disclosure will assist greatly in bring these and other similar claims to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges.

I look forward to hearing from the Court as quickly as possible.

 

Yours sincerely

Mr Oldman

I have now received the following from the court

Take notice that the claimants application will take place on 29 November 2007 at 3.00 PM before District judge ****** at ****** county court when you should attend. 10 minutes has been allowed for the claimants application

What do I need to do to prepare and what should I take with me?

[oldman]

The court has now lifted the stay and have a court date for early January so am now starting to prepare my court bundle.

 

The bank have made an offer of the charges plus interest at 8% this is simple interest not compounded. I have written to them to tell them I will accept this as part payment as my claim is for the charges plus interest at the contractual rate. I have since spoken to one of there solicitors who has said I am not entitled to this and they will go all the way to defend it.

 

Has any body else got contractual interest of the Yorkshire without going to court and have the Yorkshire ever turned up at court to defend it?

[caro]

Which track is your claim in. If it is not small claims you are risking costs by holding out. If they've offer you charges, 8% interest and court costs you will be hard pushed to justify CI, although the CYNthesys evidence will show concealment so you might get away with it, but if not you could expose yourself to paying substantial costs to the bank.

 

Which court is it?

[oldman]

It has been allocated to the small claims track.

 

My argument is they have charged me interest at there contractual rate on unlawful charges that they have taken from my account. If they hadn't charged me the charge I wouldn't have paid the interest on them so on these grounds I should be claiming the charges plus the interest they have charged me plus 8% on top of this. By claiming charges plus contractual interest all I get back is what they have taken and am making nothing for the money they have had of mine for the last six years.

 

All I want is what is mine I would even pay a fair amount to them to cover there actual losses

[caro]

I'm not entirely sure if we are talking about the same thing regarding contractual interest. Did you base your claim on the proportion of the interest that you were charged from your bank statements that related to charges, or did you use a spreadsheet that specifically calculates CI?

[MilkTrayMan]

U mention 'Contractual Interest' oldman.

...But U are if fact referring to the Unauthorised O/D Interest.

 

Peeps on CAG know 'Contractual Interest' as it meaning a different thing.

...i.e. Charging the Bank for it 'Borrowing' YOUR money @ the Banks own Unauthorised O/D Interest % Rate.

 

Perhaps if U peruse the following link + ALL the further links contained within each link, U may understand more about the difference I've mentioned...

http://www.consumeractiongroup.co.uk/forum/show-post/post-823693.html

 

btw...Methinks caro was enquiring as to WHICH Court??

...i.e. Manchester, St Albans etc

 

 

...

[oldman]

Just to let everybody know went to court and they sent somebody along who was waiting for me when I got there and tried to convince me to take an offer before we went in with the judge. When we got in with the judge he said it was uneconomical for his client to defend so the judge stayed the case for 14 days to allow them to pay. Haven't got the cheque yet but am expecting it in the next couple of days.

 

Don't know how to change the title to won but if anybody does let me know and I will change it.

[MilkTrayMan]

...Don't know how to change the title to won but if anybody does let me know and I will change it.

Wait until the Cheque actually clears, then 'Click' on the 'Warning' Triangle, to the left of a Post.

Type in your request + a Moderator will sort it out for U...

...

[freakyleaky]

Congratulations Oldman!

[JOSH_IOU]

hmmmm

[freakyleaky]

hmmmm