Contractual Interest? - Judge doesent seem to think so

[InKogneeToh]

Indeed,

I was induced into entering into the contract with them (as opposed to some backstreet or foreign bank) by being given the impression that I would be protected by English law. Misrepresentation !!

 

Hi

 

That impression was not misrepresentation - you are protected by English law!

 

In the event of any dispute, English Law will apply - that is all that is meant by this statement - and you are in fact using that English law in challenging the level of charges applied to your account.

 

Regards, Pam

[photoman]

Hi

 

That impression was not misrepresentation - you are protected by English law!

 

In the event of any dispute, English Law will apply - that is all that is meant by this statement - and you are in fact using that English law in challenging the level of charges applied to your account.

 

Regards, Pam

 

I think this is a matter of semantics.

I do not have a copy of the contract anymore, but it may well have been phrased as "Subject to applicable English law" or "in accordance with English law" but any way whatever it said:

I was given the impression from the contract that the Bank throughout the contract would abide by and conduct themselves according to English law. This they DID NOT do. Misrepresentation.

[InKogneeToh]

hi

 

I don't think this is a question of semantics. If you are contemplating using the Misrepresentation Act in any claim then you have to show what it was that was misrepresented to you when the contract was entered into.

 

So if you are going to rely solely on the statement 'English law applies' or 'subject to English Law' or whatever, then you have to be certain of what that phrase actually implies!

 

Many millions of contracts exist that are subject to English Law. This does not mean that the parties are abiding by the law when drawing them up. It just means that if any dispute is taken to court, then it will be English law that is used to determine the rights of the parties, as opposed to e.g. Scottish Law (which is different) or French law or Russian law or whatever.

 

Regards, Pam

[progenic7]

Hi all seeing as i started the whole Misrepresentation Act thing off id better comment

 

I statrted researching this act when i thought about my PPI being mis-sold and what potential implications it could have for other contracts.

I dont want at this stage give to much away about my PoC because i know we have spies from the other side using this stuff in their defence.

But basically in part im making a Non admission as to whether a contract ever even existed between myself and the bank, and if so for them to prove to the contrary. If they do to show how this contract was entered into and under what circumstances. (and was the contract the terms and conditions, the application, the cca or whatever)

Im saying that at point of application the form (not contract) did not mention anything other than "free banking" and at no point was i informed that this was a fraudulent lie and concealment. At no point did i receive these "terms", have them drawn to my attention, or anything else alomg those lines.

Under s2 (1) the burden of proof now explicitly shifts to the defence to now prove that, thats not the case (impossible) case closed :o

of cousre for me th misrep act is useful in the fact the judge almost always awards compensation aswel as the disgorgment (fee + interest) because under quasi contract (a civil tort) the judge will see the injustice and makes an award (contractual interest)

 

Look around legal sites and read up on the case law, and you will see what i mean about this. There is plenty out there for the reading.

The other point for me ofcourse is that the Misrep act fits perfectly with my PPI claim (as i was self employed at the time) so they wont have a leg to stand on.

 

For the record i will be going for contractual interest (29.84%) and compensation of £1000, plus all my costs (ie time taken @ £9.25 per hour x 102 hours to date) postage, printing ect ect.

 

Before loads of you jump on this, yes i have very much over simplified this matter, and some of it maybe a little incoherant because i have rushed this response, as in all law its very complicated and requires months of research to discover the true potential of such things. I have done that and believe i understand the Act(s) and can use them in a viable legal argument against the defence, but to be honest i dont want to give to much away at this point and suggest anyone interested in it Read up !

 

Johnny

[InKogneeToh]

Hi

 

Yes, I can see that in terms of miss-selling of PPI and statements about 'free banking' then this Act may be of some use. I was just disagreeing with the other possible applications of this law as posted above.

 

Good luck with your claim

 

Regards, Pam

[golfscape]

I want to say a huge thank you to all those that have contributed to this thread.

 

Now an update.....Claim was stayed for one month until March 5th so that both parties could attempt negotiated settlement. During this period I have written to SCM 4 times and have received no written response, I am still waiting for them/Lloyds to tell me what the payment made to my account immediately before first allocation hearing represents.

 

Have also called SCM and left messages twice, these calls have been returned although nothing of substance was discussed, they tell me they are waiting for Lloyds instructions, that they are effectively the messenger.

 

As deadline up on Monday I will be submitting a second allocation questionaire to Court as instructed as no settlement reached. I was expecting Lloyds to drag their heels but not to totally ignore the date set by the judge, this seems particularly cavalier, cant imagine the Judge being impressed, suppose Lloyds might still act on Monday but how could they claim that gives time for any meaningful dialogue!

 

Balance of claim will certainly now go small claims, I shall use draft instructions as submited with my first AQ and make big ref to Lloyds lack of participation in the attempt at settlement

 

I anticipate the court will then allocate a final hearing date, just hope its not too far away.

 

Coming back to the comments made in this thread I must now decide which arguement to develop in readiness for the hearing. I need to do alot of reading and note taking!

 

The misrepresentation act will be getting some serious attention as will restitution and equitable retitutionary interest.

 

It has been suggested that the unjust enrichment argument may not be applicable in cotractual interest claims, is this now generaly accepted?

 

It wouldent hurt my case to show that Lloyds is paying contractual interest? A schedule of those contractual interest claims settled by Lloyds could prove very useful. Does such a list exist?

 

Like I said earlier I really appreciate all your comments, inevitably I do feel a little uncomfortable as this is not yet proven territory. I want and need to get this right so will be working hard on getting a sound case together, your help is much appreciated.

[natwesttookmymoney]

Good morning, golfscape

 

Whatever you do, go along on Monday armed with a draft order for disclosure. Ask the judge to order Lloyds to disclose their costs, in each and every instance of your claim. Either use the template in the 'New strategy for allocation questionnaires' thread, or try the one in mine (click on link below - it's towards the end).

 

And be prepared to ask the judge for strike down of defence under CPR part 16 (I think) and part 27, which cover (in the first case) failure to submit a defence and (in the second) likelihood of failure when it comes to court. Ask the judge to ask Lloyds how many cases have been submitted against them, how many have proceeded to court, and how many they have won with whatever defence they have submitted. Ask the judge if their behaviour is not, indeed, an abuse of process as the defendant has no intention of ultimately defending the claim, as they haven't defended any hitherto (get yourself the list from the site).

 

It's quite possible you'll be met on the steps with a settlement. But also be prepared to argue.

 

Best of luck!

[Glenn UK]

FWIW CPR 27 covers small claims and CPR 16 covers statements of case.

 

CPR 3 gives the court the power to strike of their own initiative

 

I would also ask the court to award costs if they do settle on the steps based on their unreasonable behavior in failing to enter into sincere negotiations to settle.

 

Did they ask for the 1 month set aside?

 

Edit : why do you think unjust enrichement is not relevant any more? As far as I can tell the banks have been unduly enriched and i havent seen/read anything that says this is not relevant in these claims. Arguably the contract is not the issue anyway, its the unlawful removal of moeny. As much as this arose as a result of the contract, it is not a matter for the contract since its unlawful imho.

 

Re which route to use, the best route is to use all the arguments you can, ie argue this, if the court dont like this how baout this one, and if you dont like that how about this?

 

If you have more than one argument available to you then unless you have to make a choice by virtue of the law, then you should present all of them as alternatives for the court to consider and the defence to argue against.

 

JMHO

 

Glenn

[natwesttookmymoney]

Glen

 

" Edit : why do you think unjust enrichement is not relevant any more?"

 

Were you asking me?

FYI, I don't disagree with you.

 

W

[progenic7]

Hi Golfscape,

 

i have been following your thread with interest and im really rooting for ya mate

Good luck with any further action that may result in the course of this claim.

FWIW i think it may have been me that was putting the arguments against using the unjust enrichment, but only is as much as the contratual interest goes.

Im not totally ruling the argument out, as i think in general it can be used, having said that i feel that trying to push this argument for the cause of CI claims would be a bad move.

This is mainly because (and the case law backs this up) judges when ruling on an unjust enrichment case will generally only rule that the defence "disgorges" what they had been unjustly enriched with...and nothing more. There is plently of case law that shows this and why the judges are reluctant to award anything above and beyond this.

I think you stand a far better chance using mutuality of contract and or possibly a misrepresentation of fact/statement, as generally a judgement of this nature will also receive some form of compensation for said misrepresentation, ie contractual.

However as Glenn pointed out in another thread you do have to be careful when claiming the defence may have acted fraudulently, not so much for fear of a counterclaim, but that the small claims track is not allowed to deal with any allegation of dishonesty (especially a claim of fraud).

So be careful how you word things and avoid using the word fraud anywhere, as it seems using the word misrepresentation is ok by the judge. It seems a bit of a parodox to me but thats the rules in the small claims court and as i understand it also in the fast track.

 

Best of luck mate

[Glenn UK]

progenic raise a relevant point, if you use the unjust enrichment and disgorgement argument you would then need the court to assess the defendants gains for disgorgement, there is a formal process but i cant remember the name of it right now, but the point is this is not an argument for additional contractual interest.

 

Although i may have said it was elsewhere, I like many of use am learning as we go on.

 

The unjust enrichment/disgorgement arguments would yield something but i doubt there is any way we could estimate it, probably the banks couldn't either which in a way would make it attractive since then it would be down to the courts to determine which rate to apply.

 

Would they award more than the stat 8%? who knows?

 

JMHO

 

Glenn

[aqua2]

OK, i'm talking simple terms here to help me understand...

 

Disgorgement - If they make money, from the money they took from you, you are entitled to the extra money they made, because restitution is removing their gains, not necessarily compensating your losses.

 

It could be argued that the money they took from you represented turnover, or it could be argued that it was equity, either way they took your money and made profit on it.

 

I just looked at LLoyds financial statements...

 

If it was equity...

 

Shareholder Equity £ 11,155m

Profit Before Tax £ 4,248m

 

According to my calculator, that is 38% profit this year. Hmmm.

 

 

If it is based on turnover...

 

UK Banking Total Income £ 5,263m

Profit Before Tax £ 1,549m

 

According to the same calculator that is 29.4% profit this year.

 

 

I think i'll be using a double argument, which is they charged me 29.5% so that's what i'm reasonably charging them and in the alternative, if they would prefer to return their profits on my money at 38%, or 29.4% under the rules of disgorgement, then so be it.

 

So given the amount we would recieve under disgorgement, we are only being fair asking for the 29.5%

 

I guess it's another argument anyway.

[newbody]

key-arguments-against-compound

 

think this summaries the key posts from this thread and some others

[JonCris]

Yes thats right Glenn Facts and only the judge will decide on this.

The bank have a right to charge an interest rate on money borrowed lawfully or unlawfully as set out in their terms and conditions. They don't & that's the point of this site. Any penalties charged which are in excess of their liquidated losses are unlawful & that includes any amount of interest charged on those unlawful charges

We as an individual have no right to levy an interest to the bank or anyone for that matter without the required license. This is the judges decision and id agree with that and it would help to put a case together that could help persuade the judge and i say that word PERSUADE because i believe that the judges will not side on the side of the claimant in regards to contractual interest. This does not change depending on what the banks done with this money and this may be what the judge sees also. Your views Glen are always appreciated and lets hope someone gets a judge with a sympathetic ear.

 

I'm sorry but I find the forgoing rather spurious & misleading

 

The banks have clearly stated that their free banking regime is reliant on their unlawful penalty charges. Therefore it's not difficult to claim contractual interest as they have used your money unlawfully obtained to enrich themselves.

 

Most judges recognise this but a few have yet to catch on. Also the argument, as indicated above, together with the documented, recorded & video evidence available on this site needs to be included in the POC

 

As for the consumer having to have a licence...........sorry but that's nonsense

[joneshousehold]

I charge interest on my savings that are deposited in the Building Society (paltry as they are!) and I don't have a licence. My agreement with the BS says I will be paid interest which is the same as a loan but in reverse. You don't need a licence to charge interest, you need one to trade in the credit industry

[tim2718281]

Bank deposits ae not part of the banks' equity; nor are transfers in and out of the accounts part of the banks' turnover.

 

I think were you to argue for contractual interest on the unlawful charges, and argue that the rate should be related to the banks profit as a percentage of equity or turnover, your agument would fail spectacularly.

 

Actually, I'd have thought that any argument for interest that is not based on the contract would weaken the argument that contractual interest should be charged at all. Surely if the contract results in the consumer being entitled to interest, the contract would define the interest rate.

 

Tim

[aqua2]

I cant remember where, but there is an excellent thread on this site summarising Contractual Interest, this is not to be confused in any way with profits, accounts for profits or disgorgement.

 

The two are not related, Contractual Interest is based upon a contract with terms that specify interest rates. An account for profits, disgorgement etc are equitable remedies, judged by a court in equity.

 

I repeat, they are NOT related, if anyone wishes to claim Contractual Interest, find the summary thread, understand it and then decide.

 

At the moment, if you have any confusion about Contractual Interest, then do not even consider equitable remedies (account for profits etc.), because these are very complex subjects.

 

For this reason, you will not find a thread on my claim at present as I am going down a complex route to test the water and do not want to give away any aces to the bank.

 

Further, whilst the input of fellow claimants would be sincerely appreciated, I definitely do not want to create any confusion for fellow claimants.

 

That's my tuppence anyway, as always, it's your claim.

 

Good Luck everyone.

[aqua2]

Stupid Me!

 

The link to CI is above this post on Newbody's post. Ha Ha ha.

[newbody]

For thoose of you more used to legal arguments and analysing things reading through a case and saw this extract now to me it reads as if there is a certain duty emposed upon the banks if so do you think this would hold water in proving they have this duty to us

 

75 ) That is the point on which I have found this appeal more difficult than the rest of your Lordships. If this issue affected only banks, I would be slow to conclude that there could never be liability for carelessly failing to comply with a freezing order. Banks are already subject to strict regulation and potential sanctions in connection with money-laundering and similar activities. They are enjoined to know their customers. They become liable for breach of fiduciary duty if they shut their eyes to dishonest dealings by their customers. VAT (and PAYE) collected on behalf of HM Revenue and Customs by trading companies is not trust money, but banks cannot be unaware that VAT (and PAYE) collected in this way is often not properly accounted for, through fraud or mismanagement. There is a public interest in banks responding with particular care, promptness and vigilance to any freezing order obtained by HM Revenue and Customs.

 

 

case : [2006] UKHL 28 on appeal from [2004) EWCA CIV 1555

 

Her Majesty's Commissioners of Customs and Excise (Respondents)

v.

Barclays Bank plc (Appellants)

[aqua2]

Congratulations on your research newbody.

 

I have briefly read through the appeal you cite, but cant help feeling it is a red herring.

 

Your bank automatically has a fiducial responsibility to you, as you deposit funds into their care, which forms the basis of the trust relationship.

 

That particular appeal was on the basis of whether the bank also had a responsibility to a third party, following an injunction. It was found that they did.

 

Anyhow, as we have identified, obtaining an equitable remedy is different from compensation under contract law i.e contractual interest.

 

I note you are claiming contractual.

[nevos]

Why not make the charges claim and CI claim in 2 separate actions, I mean how can you ask for CI if firstly, you have to be proved right that the charges alone are unlawful. This would also keep average claims below £5K. Once you got a judgment on the charges then go for CI, just a thought!

[newbody]

because unfortunatley the banks settle the charge element without getting into court therefore leaving the lawfullness/unlawfullness of the charges unproven

 

and the claiming of the CI element is as restitution for being deprived of your money instaed of the courts 8% sec 69

[Pliny the Penuriosus]

There are 2 forms of interest one of which has been already paid by you. The unauthorised borrowing rate (sometimes called the 'purchase' rate) which because it also is a penalty is recoverable.

 

In oher words if you have actualy paid the charges plus increased interest then not only should you reclaim the interest applied but you should then add a further interest charge as they have 'borrowed' your money without your consent

 

eg £25 + interest 30% = £27.50 after adding further interest of 30% = £35.75 to be reclaimed

 

The figures are for illustration purposes only

 

Any charges which you have yet to pay will only attract the single rate of interest applied