Will I have to give it back?

[redsue]

I currently have a claim ongoing - on my particulars of claim I gave the judge 3 options

- Compounded contractual interest at the banks unauthorised rate of 24.9%

- Compounded contractual interest at the banks authorised rate of 7.75%

- Simple 8% (s.69)

The bank in question have chosen to give me back 8% compounded as they say I'm not 'entitled' to any more.

My argument is that it is not up to them to decide how much I'm 'entitled' to - it is the judge's decision and I'll see them in court.

My question is - If we go to court and the judge sides with the bank would I have to give back the cash that they have already given me?

I'm determined to get the rest of my cash but obviously don't want to end up out of pocket (again)

Can anyone out there help?

[nathal]

In effect are you trying to get more than what you have paid

[meagain]

Probably not, though depending on the circumstances the judge would be entitled to reduce your claim to amount paid. On the other hand, if the bank have put it to you in writing that you are only entitled to 8%, they may look unfavourably upon it and award you the full amount anyway.

[redsue]

I mentioned in my LBA 'the principle of mutuality, or reciprocity, applies to the aforementioned contract'

If they see fit to charge me 24.9% when I go overdrawn isn't it only fair that I charge them the same figure for taking my money

BTW they said I wasn't entitled to it on the phone I don't have it in writing - boo

[nathal]

It may seem fair.

 

but your case may be struck out for claiming too much (extra)

[meagain]

OK. You won't be asked to return it - remember that if you have already filed a court claim and the money refunded didn't include your court fee (+AQ if necessary) you can probably keep going safe in the knowledge you won't have to fork the money back to them. But, as has been said, you might lose your deposit, or win, but have the claim reduced to money paid.

[redsue]

Yes, they did include my £120 court costs. It's fine if the judge simply deems the action as money paid - just as long as he doesn't say don't be greedy give it all back!

[meagain]

£120? Sounds like a big claim. You won't be asked to give it back (after all, the bank has EDIT from you), but the judge may strike out the claim (i.e. you lose).

 

Moderator Note: Edit required due to libelous word...

[redsue]

thanks meagain - sorry for sounding dumb but what are the implications if the judge strikes out the claim

[zootscoot]

I think they have been quite generous in giving you the compounded 8%. Strictly speaking you are only entitled to simple interest at 8%. You may ask the judge for compounded interest but this is an equitable remedy and not available as of right but is discretionary. If you refuse the offer the court is likely to see this as acting unreasonably in refusing to accept an offer which is more than what you are entitled to and is unlikely to award compound interest at any rate. So yes you may end up having to pay some back if you force this through the courts.

[Guest willowb]

You walk away with nothing.

 

I think (I don't mean you personally:) ) that people can get a bit carried away with 'how much' they can claim back, the question is surely 'what is reasonable' to claim back. Although I agree that contactual rate is 'reasonable' the Judge may not necessarily agree and therefore you are putting the fate of your claim in his/her hands (if it goes to Court) because it isn't as black and white as CHARGES + 8% or even contractual, your going for compound contractual? . I think the likelyhood is that the Judge may reduce the amount.....but this is only conjecture. I personally, would rather be seen by the Judge to be 'reasonable' rather than trying to get every last penny I could out of it.....although in my view the principle is right.

 

People may have been successful with this route but you are upping the stakes and it is ENTIRELY up to you but the best of luck to you.

 

Wxx

[meagain]

because it isn't as black and white as CHARGES + 8% or even contractual, your going for compound contractual?

 

Contractual interest is compounded.

 

At this point, if redsue has had an offer, they should think carefully about accepting it. If the bank have actually paid already, and the payment has cleared, then withdrawing the action at this point is probably a good idea - making sure that the bank don't "inadvertently" file a defence in the meantime, though.

[Guest willowb]

Contractual interest is compounded.

 

[Guest willowb]

http://www.consumeractiongroup.co.uk/forum/barclaycard/22690-contractual-interest.html?highlight=compounded+interest

 

This is a good thread.

 

Wxx

[Guest bong]

I think they have been quite generous in giving you the compounded 8%. Strictly speaking you are only entitled to simple interest at 8%. You may ask the judge for compounded interest but this is an equitable remedy and not available as of right but is discretionary. If you refuse the offer the court is likely to see this as acting unreasonably in refusing to accept an offer which is more than what you are entitled to and is unlikely to award compound interest at any rate. So yes you may end up having to pay some back if you force this through the courts.

 

I understand what you're saying (sort of) but I'm struggling to understand why we (increasingly more of us) are pursuing contractual interest in the first place if it is not something the court is likely to award (assuming that we have presented a convincing argument for it).

[zootscoot]

The court is more likely to award it if you have not refused a reasonable offer. Claiming contractual interest is not available as of right but if you don't ask you don't get! Its always advisable to put the alternative of statutory interest in case the contractual is refused.

[Guest bong]

so if 8% simple interest were offered on a claim for contractual interest (with 8% as the alternative rate), are you saying it would be advisable to take it and not argue the case for contractual? It's just that I feel we are more or less admitting here that we have no case for contractual interest, and we are relying on the banks' generosity rather than a chance to see what a judge would make of it.

 

Sorry zootscoot, I feel like I'm using up more than my quota of your time!

[Guest willowb]

Bong, look through the thread I linked in the post above.....I think you'll find it a very ineresting read:)

 

 

Wxx

[zootscoot]

so if 8% simple interest were offered on a claim for contractual interest (with 8% as the alternative rate), are you saying it would be advisable to take it and not argue the case for contractual?

 

Its a gamble. If the only remaining issuing is interest and you force it through the court and lose you will end up paying the banks costs. Not worth the risk I would say.

[Guest bong]

would a claim for under £5k be transferred out of small claims track then?

[Guest bong]

Bong, look through the thread I linked in the post above.....I think you'll find it a very ineresting read:)

 

cheers willowb. another one to add to the subscriptions - I seem to spend all my life these days reading replies to subscriptions!!

[zootscoot]

No sorry been too used to advising people in the mortgage section where generally they are fast track cases!

 

You would lose your right to claim your court cost though.

[Guest willowb]

Yeah me too;)

 

But I have to say, I'm enjoying the 'learning process' it's like being back at college LOL.

 

I think that I may have changed my mind about contractual interest after reading that thread. If I could do my claims again I may have opted to include it at the prelim stages. It's important to remember and a great bit of advice from Glenn UK that the safest rate to claim is the contractual overdraft rate. BF has urged people to claim contractual rates and it's in the FAQs stating that 'you can only claim for interest before you file a claim if you are claiming contractual interest and you do this at the prelim stage'.

 

It can't be clearer really can it? I think we all need to see a few more cases.

 

Wxx

[Guest willowb]

No sorry been too used to advising people in the mortgage section where generally they are fast track cases!

 

.

LOL I was gonna pull you about that but didn't have the nerve:oops:

 

Wxx

[redsue]

Thanks to everyone for their input - as for us not being 'entitled' to compounded interest I have to disagree but I certainly welcome everyones differing opinions. The only bug bear I have is that the bank in question has determined what rate they should pay and I believe that was a job for the judge. So I suppose it boils down to what side of the bed the judge got out of the morning he hears my claim