CUTEPIGGY Vs HSBC - **WON**

[Celicaman]

Hi Cutepiggy, just a question

as your claim goes back past the alleged 6 year limitations bar, have HSBC tried to argue this in their defence ?

 

Celicaman

[Celicaman]

May have picked up wrong.

your account opened before 6 years, but cant find dates of charges on thread

 

CM

[lateralus]

do you mean the statement of evidence -

look at syd's mom's thread - i put 3 statements of evidence on there - just so you can see how to make them personal - get the original if you want from post 55 of the new strategy link - it's on the court bundle for dummies - item 3.

[cutepiggy]

hi cm

no, my claim only goes back 6 years but have tried to use the t&c's as far back as i could find them as i thought they have to be around when you opened your account but i opened mine in 1988.

still can't get OFT link to work on court bundle link!!

should i also be sending revised t&c's from 2006?

thanks auburngreeneyes, thought i would have writers cramp if it all had to be written out!!

cheers everyone.x

[lateralus]

this one? OFT Summary

it's from the court bundle in the template library Basic Court Bundle

[Celicaman]

this one? OFT Summary

it's from the court bundle in the template libraryBasic Court Bundle

 

thanks a bunch lattie, youve sorted it

 

flowerman lol

[cutepiggy]

thanks lattie, although still can't get OFT link to work, just comes up error cannot repair file, can't be opened, will try on my mams PC incase something is doolally with mine.

think i'm getting there with bundle now after going out to buy more ink and paper!!

i've printed out T&C's from 1996 but notice people are using later ones aswell so do i need to also send a more recent version with mine?

i've got a really stupid question now, am i ok to send bundle in a lever arch file or does it have to be done another way? sorry about this!

lin.x

[freakyleaky]

I used the t&c's from 98 but also added the 04/05 ones. My thinking is the more the better.

Tou may have some luck on another pc for the oft link. It sounds like a computer problem.

Lever arch file is fine. Anything to keeep it in order.

[cutepiggy]

thanks freaky, will send extra t&c's also then.

sorry about all the daft questions, just don't want to get it wrong and look a fool if i do go to court.

cheers, lin.

[jowalshy]

I don't know whether you live near a Lidl store or not, but my local Lidl's is selling binding machines at £19.99 at the moment.

[welshbaba]

Hi Cute, I have the OFT if you want it - if u want to pm me i will send it

Sha

[cutepiggy]

thanks jowalshy but will stick with my files cos i already bought them.

cheers

[Castlebest]

Must be a market for binding machines all of a sudden if Liddl are stocking them... I wonder why

 

pete

[jowalshy]

It's a really good one aswell.

[cutepiggy]

lol

come on Lidl, power to the people!

[lateralus]

i think it must be because you don't have adobe - you have to open it with adobe - it opens right up on mine - but i can't copy to send it as it's a pdf.

 

sounds like you are getting there!

[Castlebest]

you should be able to do a straight cut n paste from acrobat to word Lattie

 

pete

[lateralus]

how? when i open up one of those files and try to highlight - it won't.....

oh, do you mean just copy before you open it? - like the link?

[Castlebest]

no if you open the acrobat file there is a button at the top, think its an arrow that changes your curser and you can hilight the text

 

then do a Ctrl C on your keyboard.... switch to word and do a Ctrl V on the keyboard... hey presto cut n past...

 

Just checked, it is an arrow in acrobat but it doesnt work on scanned documents only on typed documents

 

pete

[lateralus]

thanks, i'll ask my son to show me

[cutepiggy]

thanks guys, i have finally managed to get the oft printed off.

i would like to say a great big thankyou to welshbaba as she emailed the oft to me, what a lifesaver.

just got my statement of evidence to complete now i think, slowly getting there.

thanks for all the help up to now everyone,lin.x

[cutepiggy]

hi

does anybody know how i can get a print of the radio interview transcript with pete mcnamara please, as i have printed this bit out in my statement of evidence?

thanks, lin

[lateralus]

Peter McNamara BBC radio -Sept 2004- sound file & transc

[cutepiggy]

thanks lattie

[cutepiggy]

Claim Number:********

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

 

Between:

 

************

(Claimant)

 

and

 

 

HSBC BANK PLC

(Defendant)

 

 

_________________________ ______

PARTICULARS OF CLAIM

_______________________

 

 

 

 

1. The Claimant has an account, ***************, with the Defendant which was opened on or around January 1988.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant submits that the charges levied to her bank account, as set out in the attached schedule, are, notwithstanding the contention of the defendant, penalty charges arising from and relating directly to breaches of contract on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

5. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 4 above, exercises the contractual term in respect of such charges with a view to profit.

 

6. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

 

7. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to her account by the defendant could be any form of ‘service’, rather than a penalty.

 

8. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft with the defendant. This overdraft has a contractually agreed limit, which is an express term of the bank account contract between myself and the Defendant. When I exceeded this agreed overdraft limit, therefore breaching an express term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge of between £10 and £150.

 

9. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;”

I.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem".

 

10. The Claimant further submits that the Defendant’s contention that the charges are now a legitimate service charge represents a contradiction to materials published by the bank previously.i have added nothing here as I have no such correspondence.

11. Additionally, the terms and conditions of the claimants account contract explicitly describe the charges as to be levied in instances of breaching those terms.

12. The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

13. As submitted above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

14. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

15. Further, under the UTCCR:

 

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

The cost of HSBC's charges have increased during the period in which my account has been held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.here I put charges have increased but missed out twice as I have had my acc since 1988 and not sure how many increases.

16. Following on from the above, the claimant does not accept The Defendants contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

17. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred.

 

18. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

 

19. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

20. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

21. On numerous occasions, the Claimant has 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.

 

22. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

23. 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.

 

24. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

25. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of between £10 and £150 by carrying out this completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

26. 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".

 

27. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

28. As set out previously, it is submitted that The Defendant’s charges can not be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by The Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held “in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

29. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £1188.50 and any interest charged thereon;

 

 

b) Court costs;

 

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 8th April 2002 to 2nd May 2007 of £152.61 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.021%.

 

 

I, the Claimant, believe all facts stated to be true.

hi, i know this is a pain but is this stmnt of ev. ok, i havnt added much or altered much.i'm hoping to get them posted tomorrow as they are due by monday and my court date is 1st august so a bit panicky! just need to number my pages and do index if stmnt is ok.

thankyou so much,lin