At 2pm.. what about you?

Just spoken to the Court Managers Office about my hearing on Friday afternoon. I said I'd had a letter from DG saying that they were applying for a 'stay', he looked up my case on the system and said as far as he could see.. it was still due to be heard on Friday!! Although he did say it was probably worth calling them back on Thursday afternoon... so fingers crossed! I'll keep you posted!

I recieved a letter from DG yesterday saying they were applying for a stay.. I've not recieved an n244 and i'm supposed to be in Court on Friday 17th August in Blackpool!! Gonna call the Court Manager on Monday.. I'll let you know..

Thanks freaky.. DG only sent me a letter.. nothing else. I'm going to ring the Court Manager on Monday to find out exactley what's going on? Thanks for your help xx

Hi Jo, Our letters must have gone out together, but I got my 'we're applying for a stay' letter from DG! But.. I haven't heard anything from the Court, so I'm not entirely sure what happens now?! Hayley

I'll keep you updated too my hearing is on 17th August at Blackpool.. haven't heard anything.. yet.. bundles are done and with the Court and DG.. I'm just waiting.. oh and sweating a bit!!

Thanks, I've just got back from the Post Office, she said there was no point in posting it today, as they couldn't guarantee delivery til Monday!! So I'm gonna deliver the one to the Court by hand tomorrow and the other I'll just post tomorrow.. Not a great deal more I can do. Just glad the whole 'bundle' experience is over! Thanks for all your help by the way.

Got mine to the printers two copies with cover came to £25, but they were 250 sheets each! They look great and they've saved me sooo much time! My bit of advice (having completed mine today) for what it's worth is.. get stuck in, once you start it, it comes together quickly and if you get stuck.. ask! I did... thanks again for all the help I've had

Thanks debbie, god knows how I missed it! Anyway.. here's the finished artical.. all 250 pages of it!! I'm off to the printers and then I'm off to treat myself!! Statement of evidence 3-7 Correspondence from Claimant 8 -19 Correspondence from Defendant 20-23 Bank Statements 24-67 Schedule of charges 68 Relevant Case Law Summary 69-71 Dunlop V New Garage 72-73 Murray V Leisureplay PLC 74-104 Nicole Rich Unfair Fees Report 2004 105-193 BBC Money Programme Bank Commission 194 Parliamentary Early Day Motion 195 BBC Interview with Peter McNamara 196-197 UTCCR 198- 208 UCTA 209- 223 SOGA 224-230 OFT Summary 231-233 Terms & Conditions 234-249 Previously settled claims 250 Thanks everyone for all your help! I've well and truly had my hand held.. couldn't and wouldn't have done it without you.. Final question (well for now).. When I send it to DG, what's the best way to send it and will they allow for the postal strike? It's supposed to effect deliveries for the next few days.. Thanks Hayley

Thanks, In really appreciate the help! I've almost finished but I'm missing the 'Relevant Case Law Summary'. Maybe I've got it and I haven't spotted it.. I got the bundle e mailed to me from someone on here and it's been great. Anyway, here's my index.. I'd appreciate any comments.. I'd really like to number the pages properly then get it off to the printers this afternoon.. but I just want to make sure it's ok! Statement of evidence 3-7 Correspondence from Claimant 8 -19 Correspondence from Defendant 20-23 Bank Statements 24-67 Schedule of charges 68 Dunlop V New Garage 69-70 Murray V Leisureplay PLC 71-100 Nicole Rich Unfair Fees Report 2004 101-189 BBC Money Programme Bank Commission 190 Parliamentary Early Day Motion 191 BBC Interview with Peter McNamara 192-193 UTCCR 194- 205 UCTA 206- 220 SOGA 221-227 OFT Summary 228-230 Terms & Conditions 231-246 Previously settled claims 247

Thanks debbie, I can see a tiny bit of light at the end of the Court Bundle tunnel!! H xx

Thanks Lateralus! I'm gonna take it to the printers.. there's no way I've got time to do it myself. Thanks, I really appreciate all your help.

Thanks.. Got another question I hope someone can help me with about T&Cs!! I opened my account with the Midland Bank when I was about 15 or 16 I think.. so that'd be around 1993-4. Do I include T&Cs from then or from the time I'm claiming? (2001-2005)

Lateralus, Can I just ask.. I'm up to item 4 on the list for the bundle and it says about the litigation.. I've used the link, but do I just include HSBC's concluded claims with claim numbers/amounts etc? Sorry I going a bit stir crazy with it.. I've printed out the main bundle (198 pages) and the SOE and I've run out of ink!! Aaahhh!!! Thanks again! H

Hi kujina, I've got my hearing on the 17th August so my bundle has to be done by Friday.. so I'm a week ahead. Have you managed to find the OFT summary, I can't find it! I'm just printing off the bundle paperwork and I've done my SOE, can't believe how long it all takes! (Thank god I've got the 6 week holidays ~ don't think I could have done this without the time off work!)

Me again! Can anyone point me in the direction of the OFT statement? My poor printer's never worked so hard!!

Thanks freaky, I'll get back to it tomorrow. I'm off to see Scissor Sisters tonight and we're setting off soon.. I'll keep you posted though and thanks again, it so easy to feel way out of your depth doing this!

Ok.. well I've got my schedule of charges and all my statements with the charges highlighted as well as a copy of HSBC's terms & conditions from another thread and I've just done my statement of evidence.. could you tell me if I've done it right? Claim Number: XXXXXX In the XXXXX County Court Between: Sparkesister! (Claimant) and HSBC Bank Plc (Defendant) _________________________ ______ STATEMENT OF EVIDENCE ____________________ 1. The Claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law. 2. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 1 above, exercises the contractual term in respect of such charges with a view to profit. 3. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit. 4. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the defendant could be any form of ‘service’, rather than a penalty. 5. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded this agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, it is impossible to envisage how the Defendant can incur costs of between £10 and £100 6. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for; "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;” I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem". 7. The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously. 8. Additionally, the claimant believes there to be a high possibility that the terms and conditions of his account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the Defendant that the Claimant is aware. 9. The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this; “4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”. 10. As submitted above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges. 11. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982. 12. Further, under the UTCCR: "5. - (1) 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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. (3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract. (4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was." Schedule 2 also includes such clauses (to define examples of unfair clauses) as: "(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; (m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract." The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract. The cost of HSBC’s charges have increased on more than one occasion during the period in which my account have been held, at no time was I given the oppourtunity to negotiate, or even notified of these increases. This means the bank has unilaterally altered the terms of my account contract to my detriment and to their advantage. 13. Following on from the above, the claimant does not accept The Defendants contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable. 14. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. 15. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being - "The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach" 16. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof. 17. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as - "(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;" 18. The Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches, including a written request on 16th February 2007. Each time those requests were rebutted or ignored. 19. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law. 20. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges. 21. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes. 22. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of between £10 & £100 by carrying out this completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance. 23. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive". 24. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole. 25. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law. I, the Claimant, believe all facts stated to be true. Signed, dated. (Thanks for all your help by the way!) Also, if this is ok do I then need the basic court bundle.. Please tell me this is nearly over.. I've been at this 3 hours today!

Thanks for the bundle for dummies thread.. I'm on the way!

thanks.. looks like I'll be spending tomorrow on the Court bundle then.. it has to be posted on Thursday.. Can anyone point me in the direction of a Court Bundle thread? I'm not entirely sure where to start.. the only thing I've done is buy some new paper for the printer and a new cartrigde..

Me again! Just after some more advice.. I've just got back from holiday and had planned to spend today and tomorrow working on my court bundle as I've got a hearing date through for 17th August.. With the test case, I really don't know what to do?! Do I start to put together and send the bundle to DG (it should get there before Friday, which is 14 days before the hearing) or do I just watch and wait? Any help would be greatly appreciated!

Thanks Lateralus! I'll keep you posted!

Thanks, I sent my first nudge today too.. The Notice of Allocation to the Small Claims Track was sent on 15th June. The Hearings on the 17th August.

Thanks Lateralus! According to the paperwork recieved it says that: 'The hearing will take place at Blackpool County Court & should take no longer than 15 minutes. The court must be informed immediatley if the case is settled by agreement before the hearing date. Each party shall deliver to every other party and to the court office copies of all documents (including any experts' report) on which he intends to rely at the hearing no later than 14 days before the hearing. Original documents shall be brought to the hearing.' I guess that means I need to submit a court bundle to D&G on or before 3rd August?

Yes, thanks for all your advice. I've decided to send a 'nudge' tomorrow and I'm gonna start on the bundle this weekend. Is it ok to send the court bundle to D&G as soon as I've done it? I'll be sooo glad when this is over!!