Is this witness statement OK for business (or is there a better example somewhere else on CAG site (that I havent found yet?) Following the excellant guidance offered by GaryH for consumer claims http://www.consumeractiongroup.co.uk/forum/show-post/post-732096.html and the defence from LLoyds saying UTCCR I have attempted to make sure I dont rely on consumer regs, but have kept some of the examples made by the OFT (is this worth keeping in as it applies to consumers?) I would be grateful if anyone would have a read through just to check there are no glaring errors, a thousand thank you's in advance. Have I left anything out? Sorry if its a bit long but I have struggled to make it relevant to Business. 1st WITNESS STATEMENT OF 1. I, the Claimant, am a litigant in person in this case. 2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank. 3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. 4. On 2 March 2007 I wrote to the Defendant, setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. I attached a detailed breakdown of the individual charges and asked for a response within 14 days. EXHIBIT B 5. On 23rd March having had no response from the Defendant, I wrote again to reiterate my complaint, once again setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. This time I asked for a response within 7 days or I would commence court proceedings to reclaim my money. I again attached a detailed breakdown of the individual charges EXHIBIT C 6. On the 29 March 2007 I again wrote to the Defendant and again set out the nature of my complaint and I refered the Defendant to the contents of my letter of 2 March and refused to accept the Defendants partial offer to reduce their charges in full and final settlement of my claim. I gave the defendant further time, until 3rd April, to offer a satisfactory response. Once again I attached a detailed breakdown of the individual charges. EXHIBIT D 7. On 5 April upon the Defendant's generic template rebuttal of my complaint, I filed an MCOL claim at Northampton County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim along with a detailed breakdown of the individual charges. The claim was sent via Nothampton County Court by first class post and deemed to be served on the Defendant on 10th April 2007. The defendant was given until 24 April to reply. EXHIBIT E 8. On the 7 April I received a letter from the Defendant dated 28 March enclosing a partial payment as full and final settlement. I wrote to the defendant to confirm I had received their letter dated 28th March 2007 on the 7 April, I referred the Defendant to my letter of 29 March (as referred to in 6. above) and returned the cheque. EXHIBIT F 9. The Defendant acknowledged service of the claim on 23 April. 10. On 30th Aprilthe Defendants solicitor messrs Foot Anstey wrote to me saying that I had not provided them with a detailed breakdown of the individual charges and threatened that if I did not provide them with a copy within 7 days Lloyds TSB bank would make an application to strike out my claim. I sent a further copy of the detailed breakdown of individual charges to Foot Anstey Solicitors on 2 May 2007. EXHIBIT G 11. On the 14 May I wrote to the Defendant in response to their letter dated 10 May in which the Defendant stated that the Unfair Contract Terms Act 1977 did not apply to me as I was a business customer. In my reply to the Defendant I outlined the case I was making and asked directly for the Defendant to justify that their penalties really do reflect their costs as a result of my breaches of contract and asked that the Defendant settle my claim to avoid further intervention by the courts. A copy of this letter was sent to their solicitor messrs Foot Anstey.EXHIBIT H 12. On 16th May 2007 I received notice from the court that a defence had been filed (in which the Defendants solicitors messrs Foot Anstey denied that the Unfair Contract Terms Act apply to business customers) and that the claim had been transferred to Yeovil County Court. . Overview 13. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Contracts Terms Act 1977, Supply of Good and Services Act 1982, and the common law. EXHIBIT I 14. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question as a result of my breaches of the contract. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead are unreasonable and unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 13 above, exercises the contractual term in respect of such charges with a view to profit. Disguised Penalties and breach of contract 15. The Defendant avers that the charges levied are legitimate fixed price contractual services, not related to breach of contract, and therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. I refute this interpretation and further submit that this contention is merely an attempt to 'cloak', or disguise its penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit. 16. The claimant believes the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the customer, and one which the customer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to her account by the Defendant could be any form of service', rather than a penalty. I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed any purported “services” on my account. 17. I understand the definition of a ‘breach of contract’ to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I had an overdraft with the defendant. This overdraft had a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. The definition of the word “limit” given by the Oxford English Dictionary is as follows; • noun 1 a point beyond which something does not or may not pass. 2 a restriction on the size or amount of something. 3 the furthest extent of one’s endurance. • verb (limited, limiting) set or serve as a limit to. When I exceeded the contractually agreed terms, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of charges of £10 - £35. 18. The banks charges arise directly from the happening of an event. It is a clear requirement of the terms of the account contract that sufficient funds are available to cover payments made by cheque, standing order or direct debit. A charge arises when these requirements are not met – I.e. when a payment or drawing is made from the account which is not supported by sufficient available funds (unauthorised). A letter from the Defendant confirming that ‘the account was opened on the agreement that it remained in credit’ is attached to this Witness Statement. EXHIBIT J 19. If the Defendant’s interpretation were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the customer and destroy the body of common law on liquidated damages which has been built up over the last 100 years. 20. It is further submitted that the Defendant's contention that the charges are now a service charge represents a contradiction to materials published by the bank previously. I am in possession of a letter, which is attached to this Witness Statement, signed by Martin Orton, a senior manager at Lloyds TSB's customer care department, which states – "as you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs". This was in response to a direct and plain request to justify Lloyds TSB's charges. Throughout the letter, no mention is ever made of the charges as being the cost of any type of 'service'. Also, a letter I received from the Defendant, disallowing a direct debit, stated “we make a charge to cover our extra administration costs” and made no mention of a ‘service’, nor did the letter in 18. above. EXHIBIT K Office of Fair Trading Analysis 21. I refer 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 in its overview that the principle of their findings would also apply to Bank account charges and indeed those of the entire financial and lending industry. They ruled that default charges at the current level were unfair. With regard to the 'cloaking' or disguising of penalties, the OFT said this; "4.21.Disguised Penalties EXHIBIT L 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.) 22. Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999”. Relevant sections from this report are quoted as follows; “Section 5.8 - Disguised penalties.Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.” Section 18 1.3 "These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.” 23. 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 part of the contract. The contract did not contain the actual charge and only referred to it. 24. The cost of Lloyds TSB's charges have increased substantially and indiscriminantly during the time my account has been in operation, from a friendly telephone call from our bank manager with no charge to £35 now, at no time was I ever given the opportunity to negotiate. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my detriment, and to their advantage. 25. I submit that it is wholly unfair that the defendant should hold such power in relation to the terms of the bank account contract relating to charges. The defendant, if its interpretation of its terms were to prevail, would have the unlimited power to increase the cost of its charges unregulated and without an assessment of fairness. The defendant and other UK banks would then be free to unilaterally alter the term and increase the cost of its charges to whatever it chose to unabated, with significant and highly detrimental consequences to the customer and the intentions of the regulations. Penalty Charges 26. If the court is persuaded that the charges were levied for breach of contract or that the penalty provisions are applicable irrespective of a finding of breach, it is the Claimant’s submission that the charges are indeed penalty clauses. 27. 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 resulting from the breach or a genuine pre-estimate thereof. A penalty however, is unenforceable. 28. I will cite the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach and 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. EXHIBIT M 29. 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. 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" and; "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part” 30. I will further rely on numerous recorded authorities dating throughout the 20th century 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. EXHIBIT N 31. It is submitted that the charge is an unconscionable penalty as it is extravagant and exceeds any loss that the Defendant could have expected to have incurred as a result of the Claimant’s breach and seeks to deter the Claimant from breaching the contract. 32. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored. The Defendant has ignored similar requests made by the Office of Fair Trading, and numerous orders obliging the disclosure of these costs that have been made in other cases have been breached by the Defendant. 33. 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. 34. For the 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. EXHIBIT O 35. 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 £35 by carrying out this completely automated process. The letter received notifying the customer 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. EXHIBIT P 36. The claimant submits that if smaller banks in Ireland can charge less than 5 Euros for unauthorised overdraft and less than 13 Euros for returning a direct debit or standing order then the Defendant with its economies of scale is profiteering on a gigantic scale. Yet when the same Irish bank operates in the UK, sometimes only a few miles away, it charges £30 for the same breaches. EXHIBIT Q 37. 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". EXHIBIT R 38. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that revenue derived from bank charges are used to subsidise free banking for all personal customers as a whole. EXHIBIT S 39. In a recent study undertaken in Australia, (Nichole 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 decit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above fugure, the study estimated that could be charging 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 Banks cheque and direst debit refusal fees were likely to be penalties at law. EXHIBIT T 40. The Scottish Law commission has reported its findings on “Penalty Clauses” and the report is enclosed. The report refered to the fact that issue of Penalty Causes and Liquidated Damages has also been considered by law reform bodies in England, California, Canada and particularly Australia as identified in 38. above. EXHIBIT U Supply of Goods and Services Act 1982 41. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising directly as a result of clear and demonstrable breaches of express and/or implied terms of the account contract between myself and the Defendant. I vehemently refute the Defence's contention that they are legitimate contractual service charges. 42. However, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982:. 15 Implied term about consideration (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. EXHIBIT V 43. If the charges are services, there must be a correlation between the service provided and the cost. The cost of Lloyds charges has increased substantially and indiscriminately during the time the account has been in operation. The defendant has repeatedly been requested to provide details of the costs of its charging process and has each time declined to do so. Further, at a conservative estimate their have been at least 300 claims of this nature brought against the defendant in the last 12 months. In a significant proportion of these cases orders have been made obliging the disclosure of these costs and each time these orders are breached by the defendant. If the defendant avers its charges are reasonable within the meaning of section 15, I would contend that it is incumbent upon it to justify the price by producing evidence of its actual costs. Summary 44. As set out previously, it is submitted that The Defendant's charges can not be considered to be a service charge. They arise as a direct consequence of an event demonstrable as a breach of the account agreement between the parties. In arguing that they are a service charge, the defendant also effectively admits that its charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can alter the term of contract to set the charges at whatever level they like without limit or regulation - contrary to the intended effects of legislation such as the UCTA, SOGA and common law. 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 disproportionate, punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are disguised contractual penalties and unenforceable at law. 45. Statement of Truth I, the Claimant, believe the facts stated within this Witness Statement to be true. Signed: ("EXHIBIT" Refers to evidence supplied in seperate folder)

Is this witness statement OK for business (or is there a better example somewhere else on CAG site (that I havent found yet?) Following the excellant guidance offered by GaryH for consumer claims http://www.consumeractiongroup.co.uk/forum/show-post/post-732096.html and the defence from LLoyds saying UTCCR I have attempted to make sure I dont rely on consumer regs, but have kept some of the examples made by the OFT (is this worth keeping in as it applies to consumers?) I would be grateful if anyone would have a read through just to check there are no glaring errors, a thousand thank you's in advance. Have I left anything out? 1st WITNESS STATEMENT OF 1. I, the Claimant, am a litigant in person in this case. 2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank. 3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. 4. On 2 March 2007 I wrote to the Defendant, setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. I attached a detailed breakdown of the individual charges and asked for a response within 14 days. EXHIBIT B 5. On 23rd March having had no response from the Defendant, I wrote again to reiterate my complaint, once again setting out the nature of my complaint and suggesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them. This time I asked for a response within 7 days or I would commence court proceedings to reclaim my money. I again attached a detailed breakdown of the individual charges EXHIBIT C 6. On the 29 March 2007 I again wrote to the Defendant and again set out the nature of my complaint and I refered the Defendant to the contents of my letter of 2 March and refused to accept the Defendants partial offer to reduce their charges in full and final settlement of my claim. I gave the defendant further time, until 3rd April, to offer a satisfactory response. Once again I attached a detailed breakdown of the individual charges. EXHIBIT D 7. On 5 April upon the Defendant's generic template rebuttal of my complaint, I filed an MCOL claim at Northampton County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim along with a detailed breakdown of the individual charges. The claim was sent via Nothampton County Court by first class post and deemed to be served on the Defendant on 10th April 2007. The defendant was given until 24 April to reply. EXHIBIT E 8. On the 7 April I received a letter from the Defendant dated 28 March enclosing a partial payment as full and final settlement. I wrote to the defendant to confirm I had received their letter dated 28th March 2007 on the 7 April, I referred the Defendant to my letter of 29 March (as referred to in 6. above) and returned the cheque. EXHIBIT F 9. The Defendant acknowledged service of the claim on 23 April. 10. On 30th Aprilthe Defendants solicitor messrs Foot Anstey wrote to me saying that I had not provided them with a detailed breakdown of the individual charges and threatened that if I did not provide them with a copy within 7 days Lloyds TSB bank would make an application to strike out my claim. I sent a further copy of the detailed breakdown of individual charges to Foot Anstey Solicitors on 2 May 2007. EXHIBIT G 11. On the 14 May I wrote to the Defendant in response to their letter dated 10 May in which the Defendant stated that the Unfair Contract Terms Act 1977 did not apply to me as I was a business customer. In my reply to the Defendant I outlined the case I was making and asked directly for the Defendant to justify that their penalties really do reflect their costs as a result of my breaches of contract and asked that the Defendant settle my claim to avoid further intervention by the courts. A copy of this letter was sent to their solicitor messrs Foot Anstey.EXHIBIT H 12. On 16th May 2007 I received notice from the court that a defence had been filed (in which the Defendants solicitors messrs Foot Anstey denied that the Unfair Contract Terms Act apply to business customers) and that the claim had been transferred to Yeovil County Court. . Overview 13. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Contracts Terms Act 1977, Supply of Good and Services Act 1982, and the common law. EXHIBIT I 14. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question as a result of my breaches of the contract. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss caused by the breach of contract, but instead are unreasonable and unduly enrich the Defendant, which by virtue of the legislation and provisions cited in paragraph 13 above, exercises the contractual term in respect of such charges with a view to profit. Disguised Penalties and breach of contract 15. The Defendant avers that the charges levied are legitimate fixed price contractual services, not related to breach of contract, and therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. I refute this interpretation and further submit that this contention is merely an attempt to 'cloak', or disguise its penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit. 16. The claimant believes the definition of a 'service’ to be a provision of knowledge, skill or other transferable facility that benefits the customer, and one which the customer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to her account by the Defendant could be any form of service', rather than a penalty. I did not want the Defendant to perform any services, I did not ask the Defendant to perform any services and I was not given any option as to whether the Defendant performed any purported “services” on my account. 17. I understand the definition of a ‘breach of contract’ to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I had an overdraft with the defendant. This overdraft had a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. The definition of the word “limit” given by the Oxford English Dictionary is as follows; • noun 1 a point beyond which something does not or may not pass. 2 a restriction on the size or amount of something. 3 the furthest extent of one’s endurance. • verb (limited, limiting) set or serve as a limit to. When I exceeded the contractually agreed terms, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of charges of £10 - £35. 18. The banks charges arise directly from the happening of an event. It is a clear requirement of the terms of the account contract that sufficient funds are available to cover payments made by cheque, standing order or direct debit. A charge arises when these requirements are not met – I.e. when a payment or drawing is made from the account which is not supported by sufficient available funds (unauthorised). A letter from the Defendant confirming that ‘the account was opened on the agreement that it remained in credit’ is attached to this Witness Statement. EXHIBIT J 19. If the Defendant’s interpretation were to prevail, it would be entirely conceivable that any supplier or contractual party in the future would be able to avoid the protection afforded by the law governing liquidated damages simply by describing the consequences of the relevant event as a payment for service rather than damages for breach. Such a result would seriously damage the interests of the customer and destroy the body of common law on liquidated damages which has been built up over the last 100 years. 20. It is further submitted that the Defendant's contention that the charges are now a service charge represents a contradiction to materials published by the bank previously. I am in possession of a letter, which is attached to this Witness Statement, signed by Martin Orton, a senior manager at Lloyds TSB's customer care department, which states – "as you are aware, I am afraid that it is the case that any items that are returned incur a fee in order that we can recoup our costs". This was in response to a direct and plain request to justify Lloyds TSB's charges. Throughout the letter, no mention is ever made of the charges as being the cost of any type of 'service'. Also, a letter I received from the Defendant, disallowing a direct debit, stated “we make a charge to cover our extra administration costs” and made no mention of a ‘service’, nor did the letter in 18. above. EXHIBIT K Office of Fair Trading Analysis 21. I refer 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 in its overview that the principle of their findings would also apply to Bank account charges and indeed those of the entire financial and lending industry. They ruled that default charges at the current level were unfair. With regard to the 'cloaking' or disguising of penalties, the OFT said this; "4.21.Disguised Penalties EXHIBIT L 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.) 22. Further, in April 2007 the OFT issued a report titled “Unfair Contracts Terms Guidance – Consultation on revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999”. Relevant sections from this report are quoted as follows; “Section 5.8 - Disguised penalties.Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing. The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option.” Section 18 1.3 "These objections are less likely to arise if a term is specific as to what must be paid and in what circumstances. In that case, it may be considered a 'core' term and exempt from consideration for fairness provided it is in clear language and properly drawn to consumers' attention – see Part IV, paragraph 19.12. (But note that this may not hold good if it is a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.” 23. 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 part of the contract. The contract did not contain the actual charge and only referred to it. 24. The cost of Lloyds TSB's charges have increased substantially and indiscriminantly during the time my account has been in operation, from a friendly telephone call from our bank manager with no charge to £35 now, at no time was I ever given the opportunity to negotiate. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my detriment, and to their advantage. 25. I submit that it is wholly unfair that the defendant should hold such power in relation to the terms of the bank account contract relating to charges. The defendant, if its interpretation of its terms were to prevail, would have the unlimited power to increase the cost of its charges unregulated and without an assessment of fairness. The defendant and other UK banks would then be free to unilaterally alter the term and increase the cost of its charges to whatever it chose to unabated, with significant and highly detrimental consequences to the customer and the intentions of the regulations. Penalty Charges 26. If the court is persuaded that the charges were levied for breach of contract or that the penalty provisions are applicable irrespective of a finding of breach, it is the Claimant’s submission that the charges are indeed penalty clauses. 27. 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 resulting from the breach or a genuine pre-estimate thereof. A penalty however, is unenforceable. 28. I will cite the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach and 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. EXHIBIT M 29. 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. 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" and; "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part” 30. I will further rely on numerous recorded authorities dating throughout the 20th century 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. EXHIBIT N 31. It is submitted that the charge is an unconscionable penalty as it is extravagant and exceeds any loss that the Defendant could have expected to have incurred as a result of the Claimant’s breach and seeks to deter the Claimant from breaching the contract. 32. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored. The Defendant has ignored similar requests made by the Office of Fair Trading, and numerous orders obliging the disclosure of these costs that have been made in other cases have been breached by the Defendant. 33. 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. 34. For the 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. EXHIBIT O 35. 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 £35 by carrying out this completely automated process. The letter received notifying the customer 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. EXHIBIT P 36. The claimant submits that if smaller banks in Ireland can charge less than 5 Euros for unauthorised overdraft and less than 13 Euros for returning a direct debit or standing order then the Defendant with its economies of scale is profiteering on a gigantic scale. Yet when the same Irish bank operates in the UK, sometimes only a few miles away, it charges £30 for the same breaches. EXHIBIT Q 37. 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". EXHIBIT R 38. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that revenue derived from bank charges are used to subsidise free banking for all personal customers as a whole. EXHIBIT S 39. In a recent study undertaken in Australia, (Nichole 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 decit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above fugure, the study estimated that could be charging 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 Banks cheque and direst debit refusal fees were likely to be penalties at law. EXHIBIT T 40. The Scottish Law commission has reported its findings on “Penalty Clauses” and the report is enclosed. The report refered to the fact that issue of Penalty Causes and Liquidated Damages has also been considered by law reform bodies in England, California, Canada and particularly Australia as identified in 38. above. EXHIBIT U Supply of Goods and Services Act 1982 41. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising directly as a result of clear and demonstrable breaches of express and/or implied terms of the account contract between myself and the Defendant. I vehemently refute the Defence's contention that they are legitimate contractual service charges. 42. However, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982:. 15 Implied term about consideration (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. EXHIBIT V 43. If the charges are services, there must be a correlation between the service provided and the cost. The cost of Lloyds charges has increased substantially and indiscriminately during the time the account has been in operation. The defendant has repeatedly been requested to provide details of the costs of its charging process and has each time declined to do so. Further, at a conservative estimate their have been at least 300 claims of this nature brought against the defendant in the last 12 months. In a significant proportion of these cases orders have been made obliging the disclosure of these costs and each time these orders are breached by the defendant. If the defendant avers its charges are reasonable within the meaning of section 15, I would contend that it is incumbent upon it to justify the price by producing evidence of its actual costs. Summary 44. As set out previously, it is submitted that The Defendant's charges can not be considered to be a service charge. They arise as a direct consequence of an event demonstrable as a breach of the account agreement between the parties. In arguing that they are a service charge, the defendant also effectively admits that its charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can alter the term of contract to set the charges at whatever level they like without limit or regulation - contrary to the intended effects of legislation such as the UCTA, SOGA and common law. 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 disproportionate, punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are disguised contractual penalties and unenforceable at law. 45. Statement of Truth I, the Claimant, believe the facts stated within this Witness Statement to be true. Signed: ("EXHIBIT" Refers to evidence supplied in seperate folder)

Got a date for (Hearing) from my local court on 11th July (No allocation Q's) The court didn't respond to my request for directions and didn't charge the extra £100 normally paid even if AQ's are dispensed with - so far so good. I called court to check no additional fee was payable and they confirmed it was a mistake on their part but were going to live with it. I also asked how my wife could be granted permission for me to represent in her court even if she was unable to attend - they advised me to write asking permission from Court Manager - which i have done. The directions rec'd were: Each party shall deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing. So now preparing my court bundle

Hi all Do UCTA 1977 Protect Business? Just trying to make my posts clearer (I'm learning) 1 I am claiming as a business 2 I have refered to UCTA 1977 and common law in my POC Foot Anstey deny "Unfair Terms in Contracts Act apply to business customers" If Foot Anstey are wrong can I apply to court for a strike out of thier defence? I have done some reasearch on uk gov sites etc but find the language "mindboggling" so may ask for a greater mind than mine to come to my aid on this - a thousand 'thank you's' in anticipation Cheers Paul

Sorry link should be http://www.consumeractiongroup.co.uk/forum/show-post/post-811800.html where item 7 says "It is denied that the Unfair Contract Terms Act or the Unfair Terms inConsumer Contracts Regulations apply to business customers" I'm just learning how to display links and hope additonal post will save you time cheers Paul

Re Witness statement for LLoyds customers (above) Gary - this 'one hell of an argument' thank you for all the work you've done on this. I am claiming as a business so can I confirm that all i need do is delete para 20 & 25 which refer to Consumer acts? Also in Foot Anstey defence they deny Unfair Contract Terms Act apply to business - Is this correct? (details here http://www.consumeractiongroup.co.uk/forum/member.php?u=156006) Cheers Paul

excerpt form article by BBC news (full article here) BBC NEWS | Business | Lloyds wins second charges case "Judge Forrester, who heard the case, said: "It is ordered that the particulars of claim are struck out as disclosing no reasonable grounds for bringing the claim set out as a coherent set of facts, which if true, disclose a legally recognisable claim against the defendant." This is what I understood to be the main reasons as this excerpt from article states. I'm just trying to find out what was wrong with his POC. Cheers Paul

Thanks Photoman, I will investaigate this further and certainly use this against the banks if this is the case Cheers Paul

Yes me! Anyone else in SW england intereste? When we have a few more people and the poss of a moderator attending, then i think we can set a date, time and venue (remember a lot of us like me are quite skint - as a result of all these unfair bank charges - so keep it cheap and cheerful. Cheers Paul

I'm interested that you seem more definate about the laws pertaining to business accounts, i recieved a defence from 'Foot & Mouth' which stated UTCA do not apply to business. see http://www.consumeractiongroup.co.uk/forum/lloyds-bank/87126-paulsuebank-lloyds-tsb.html and full defence from Foots' It would be useful to 'nail' which terms of law are applicable to business claims - anyone?

In this case the judge said his POC's were not satisafctory - It would be useful to know what mistakes were made in the POC's so we can all learn from this. Does anyone know this man so he may be encouraged to get in touch with us here at CAG.

It would be helpful to members if could learn what was wrong in the particulars of claim (POC) for the judge to dismiss them? (Maybe I've got something similar in my particualrs of claim)

Following being advised that AQ's may well be dispensed with, here is what I sent to my local court requesting special directions. Dear Sir/Madam Me -v- Lloyds TSB Bank Plc Claim Number: XXXXX It is noted that in my case referenced above that the Allocation Questionnaire may be dispensed with. I am aware that this is likely due to the large volume of claims that consumers are bringing against the high street banks. I am also aware that to date the banks have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily. In light of this, the Claimant respectfully suggests that special directions may be made as per the enclosed draft order. The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously. - The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to common law principles established since the early 1900's. - In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982. The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts. As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour. Yours faithfully, Also attached to this letter is 'The Draft Order For Directions' As set out by BankFodder here http://file:///e:/Documents%20and%20Settings/pc/My%20Documents/Hair%20Salon/March%20O7%20LLoyds%20Kate%20correspondance/53570-new-strategy-allocation-questionnaires.html As a business am I relying on too many points that rest in Consumer Law? Question: does the 'Supply of Goods and Services Act 1982' and 'the law relating to contractual penalties' cover business?

Many thanks Michael

Keen to set out my case more relevantly (following much more study on this great site) concentrating on Common Law, I send the following reply, both to Lloyds and Anstey Solicitors, that contains at least two errors. The main problem I have now created for myself (covered in the 'Small Claims Pack' I've just rec'd and read today) is when I offer to accept £2500 (instead of the MCOL claim for 2583.97) I did not put Without Prejudice at the top of my letter. Also, I did not date this letter. Dear Sirs N.B. Me v Lloyds TSB Bank Plc Case No Thank you for your letter 10 May 2007. You may know this matter is now being dealt with by your solicitors Anstey And Co following my online (MCOL) court action. I understand that you are attempting to defend this case and the matter will shortly be redirected to a local court. I am well prepared to make a more substantive case (not allowed in the MCOL particulars of claim) along with a mass of evidence of similar cases. I now understand that the regime of fees which you have applied to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law. The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by you 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 not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the common law. The precedent for the law relating to contractual penalties was set in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Co Ltd (1915) AC 79. Additionally, in the case of Murray v Leisureplay (2005) EWCA Civ 963 it was held that a contractual party may only recover damages in respect of its actual loss or liquidated losses. If you say that they are not penalties, then will you please demonstrate this by letting me have a full breakdown of the costs which you have incurred as a result of my breaches, in order to reassure me that your penalties really do reflect your costs. Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary. I would draw your attention to the terms of the contract which you agreed to at the time that I opened this account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law. I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider your repeated representations that your charges are fair and reasonable are deceptive and that they are an attempt to deceive me into agreeing to pay them. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets. It is my feeling that you seem to have no intention of defending this claim in court and are simply procrastinating. I am mindful of the vast number of claims with which you are currently dealing and in order to more speedily resolve this matter, I am willing to accept the sum of £2500 today, as full and final settlement of this particular claim. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality. Please find enclosed another copy of my schedule of charges relating to this claim, which shows costs at 31 May 2007. I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the courts would whole heartedly approve of our settling this matter in a timely manner and without their further intervention. I have learned from the simple errors I made in the early stage of this action and now know the extent to which your cases are well known by the judiciary and the world at large. I have invested a lot of time to learn from The Consumer Action Group, the right honourable Andrew George MP and others who have gone on record to reveal that customers are being charged more than £30 for processes – such as bouncing a cheque – that cost the bank less than £2. Do you not agree that it is in all our best interests for you to accept my offer to settle for £2500 today? If you do, I will immediately inform the courts by email. The irony of this situation is, as a business woman, I am going to invest this money in a new business whose money will naturally be handled by guess who? I look forward to hearing from you. Yours faithfully N.B. I am conducting this claim for my wife, who will not be impressed if I mess this up (seems I'm trying hard to) My question is: Am I now limited to claim for just £2500? Or are there more serious consequences for this blunder? Any help, as always, will be greatly appreciated.

letter from LLoyds Customer Service Recovery Centre Charlton Place Andover Hants dated 10 May 2007 Thank you for getting in touch with us. I am sorry you are unhappy about your account charges. Like any business, we do make a charge for some of our extra services. When customers don't have enough in their accounts to cover a payment, this always means extra work - and it has to happen very quickly. We have to agree to make the payment by setting up or increasing an overdraft, or tell customers we can't agree it. We feel it's fair to charge for this service. We make sure our charges are available for our customers by making sure they are published in our charges brochure. If you know a payment is going to take you over your agreed limit, you're welcome to see if there's anything we can do. The Office of Fair Trading has published new guidelines on credit card default charges. We're still talking it through with them, but the important point is that the guidelines are about 'default' charges that people pay when they break an agreement with us. This doesn't apply to your charges as these were for dealing with your request to go over your agreed overdraft limit. They are not default charges because you haven't broken your agreement. They are our prices for the service we provide in these situations. I've noticed that you've referred to the Unfair Contracts Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations but these don't apply to you as you're a business customer and these acts and regulations only apply to consumers. I do hope you can see that we make our charging system as fair as possible - and why I can't agree to refund or cancel your charges. I hope this fully answers the points you raised with us. Please let me know if there is anything else I can do to help. If we cannot come to an agreement, I will provide you with details of the Financial Ombudsman Service so they can consider your complaint independently. If you are happy with the way I have dealt with your complaint, there is no need for you to reply to my letter. If I have not heard from you by 5 July 2007 I will close my file, though of course I will re-open it should you come back at any point afterwards. {ends} I note here that Unfair Contract Terms 1977 do not apply to business

Excellent summary here Sparkly - The challenge now is : How do we make this into a water tight case for court - both for Business and Consumers alike? I'll be watching for replies to your question with interest ( must go now -only another 50 or 100 more postings to look at ) Cheers Paul

Hi thanks for an excellent and informative post. I have read the link you made to LLoyds business terms thank you. One concern I have is that you refer to: Looking at the Lloyds T&Cs (link above) re business accounts paragraph 6.2.1. appears to me to be exactly the same: “You should only overdraw your account with an overdraft limit agreed in advance with your Relationship Manager”. The words “ONLY” and “AGREED IN ADVANCE” constitute exactly the prohibition the judge was talking about. Good point if we are able to leave it there - Then in the very next para 6.2.2 in lloyds Tcs&Cs they say: 6.2.2 They may at thier sole discretion permit us to exceed any agreed overdraft limit or overdraw our account where an overdraft limit has not been agreed in advance with our relationship manager. Such amounts will constitute unauthorised borrowing and may incur unauthorised borrowing interest and unauthorised borrowing fees. Does this not cover them somewhat? I hope not (I'm about to hear from my local court having been refered by MCOL) and will soon be making the case in my court bundle Any further thought will be gratefully received Cheers Paul

Hi I'm pretty new to this and like you I've read loads on this great site but I've still made mistakes as you can see from my posts. http://www.consumeractiongroup.co.uk/forum/lloyds-bank/87126-paulsuebank-lloyds-tsb.html I'd be surprised if LLoyds dont defend your action especially in the light of the recent 1st case they have won (subject to appeal). I recommend you read the latest posts particularly this one http://www.consumeractiongroup.co.uk/forum/lloyds-bank/90660-lloyds-victory-view-judgement.html just so you are clear. I think I am now! I have personally mailed you if you'd like to discuss further.

Just got my redirection from MCOL to my local court. Have sent request for directions to the court. Also a letter to LLoyds and thier solicitors asking to prove their 'charges' are not indeed penalties.

What concerns me here, is that CAG seem to be relying on 'Consumer Law', when many of us are business people who have to rely on Law of Contracts and Common Law. Therefore, is a business's action against the banks necessarily weaker? It would be interesting to learn of the CAG split of cases won by consumer/business to give us poor business folk some extra impetus.

Foot Anstey Solicitors in Plymouth

I sent solicitors a copy of my claim ammounts and have now rec'd this defence against my claim - as follows (Help what do I do now?) LLOYDS TSB BANK PLC Defendant DEFENCE 1. The Defendant, Lloyds TSB Bank pic (the Bank), is a bank. It is admitted that the Claimant has been a customer of the Bank at all material times. 2. By opening a business account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with a Welcome Pack, which includes the Bank's charges leaflet. By using the account, the customer acknowledges that the charges are incorporated into the contract. 3. In the leaflet, in the section headed Unauthorised borrowing the Bank explains that "If you overdraw your account or exceed an overdraft limit without prior agreement, a higher rate of interest is charged on this unauthorised borrowing. The rate is displayed in all branches. We may cover the additional work involved in monitoring your account by charging the fees detailed below. Unauthorised borrowing fee We charge this when you first overdraw your account, or go above the agreed overdraft limit by £50 or more. There will be a further charge each time you increase the amount borrowed by £50 or more, unless a higher limit is agreed with us or until the account is within its existing limit or in credit. This fee will apply, for example, if you draw against cheques which have not fully cleared and this takes you overdrawn or over an agreed limit. £12.50 Unpaid item We charge each time we have to return a cheque unpaid, or cannot pay a standing order or a direct debit, because there isn't enough money in your account. £30 for each item not paid." By a letter of June 2005, the Bank gave notice of an increase in these charges to £15 and £35 respectively. 4. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank's own funds. If the Bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract. 5. There is no breach of contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank's loss. It is denied that the charges are punitive or that they unduly enrich the Bank. 6. The customer is given advance warning of charges being imposed; customers are warned by letter when they go overdrawn or over their agreed limit without arrangement with the Bank, that items will not be paid and that charges will be incurred. Notice is given of arrangement fees. Statements show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following month's statement. 7. It is denied that the Unfair Contract Terms Act or the Unfair Terms in Consumer Contracts Regulations apply to business customers, who are not contracting as consumers, as required by the Act and the Regulations. 8. Without prejudice to the matters pleaded in paragraph 7 it is averred that the charges are fair and reasonable, and it is denied that they are unlawful. 9. Without prejudice to any other pleading in this Defence, it is not admitted that the sum claimed for charges and interest is correct. 10. In the premises: 10.1 the charges are for banking services, and are not damages nor a penalty; 10.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable; 10.3 it is denied that the charges are unlawful or contravene any statute or regulation. 11. The Claimant's claim is denied.

Thanks Michael - will do

This is my first posting and I apologise if my post is a bit long, but hope it’ll be useful for others. The battle has begun with Lloyds, I opted to use MCOL (online court) to issue the following Particulars of claim? My other concern is, technically we are a business (A Person Trading as a Business name) and I’m unsure how this could affect our action. CaseXXXXXX 1.The Claimant had an account 01XXXXXXXX 0X- XX-XX with the Defendant since Oct 1981 2. Since XX/0x/01 the Defendant has debited many unreasonable charges in respect of overdraft excess and returned direct debits 3.Defendant has been given the list of charges in question, a further copy will be sent to the court 4.Claimant contends a/The charges exceed the Defendant's losses by debiting them to the account b/The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. The precedent for this was DunlopPneumatic v New Garage 1915 AC79 also Murray v. Leisure play 2005 EWCA Civ 963 5.Claimant claims: a/return of the amounts debited of £1XXX.xx b/Claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 20 April 2001 to 4 April 2007, of £XXX.xx and also interest at the same rate £0.xx per day up to the date of judgment or earlier. On reflection I see I refer only to overdraft excess and returned direct debits and not as I listed in my schedule (ie fee unpaid items, unauth’d borr fee, fee unpaid cheque, d/d charge, s/o charge) Have I really messed up here? The address on MCOL I used for Lloyds was 2 Brindley Place Birmingham – Then I was sent a cheque for £750 which I sent back after talking to a moderator in the CAG chat room and my claim has ended up with Foot Anstey Solicitors in Devon who have written to me :– “We are unable to respond to the claim as you have not provided details of the individual charges which you are claiming. You mention that copy lists have been sent to the bank and will be sent to the court. They have not reached us. Please send within 7 days of this letter a breakdown from you , showing each charge, what it relates to and the date levied. Otherwise, the Bank will make an application to strike out the claim.” This is despite the fact that I have sent (recorded dely) three copies detailing unfair charges, dates and interest amounts to Lloyds 2 Brindley Place Birmingham and one copy (recorded dely) to the MCOL court in Nothampton which actually identified what the charges were for ie unpaid items, unauth’d borr. fee, etc. My question here is, do I now have to (or need to) send a further copy to Lloyds solicitors? Why can’t they get a copy from their client? (who surely should have forwarded this seemingly vital piece of information to their solicitor!?) This is where I own up to not having spent quite enough time looking at all the info available on this great site (I did two days study where three is recommended) so its well done CAG and not so well done me. But I’m here now, learning a lot and ready, willing and able to do more battle with Lloyds. I know I’ve made several mistakes: 1 In my initial letter to Lloyds and in the LBA I site reasons as ‘I do not believe these charges reflect true cost to Lloyds and that they are unlawful’ (I should have used the more thorough templates offered by CAG’s KARNEVIL at Business Claims - basic guide 2, I revealed interest amounts to Lloyds in my pre action letters. 3, I did not use form N1 to add more detail to particulars of claim at a local court. Have I really blown it and is there any way back for me to correct these errors?