CLAIMING AS A BUSINESS
Sole Trader / Partnership / Limited Company
Claiming as a business is the same process as claiming for a personal account - the main difference is you cannot rely on consumer law.
Requesting your transactional history
As a business you, or your accountant, should already have access to all your statements. However things happen so if you do need to submit a request for the information from your bank the following should guide you.
Sole Trader/Partnership – The Data Protection Act applies in the same way as for a personal account.
Ltd Company – Unfortunately, the right of subject access under the Data Protection Act 1998 only concerns personal data, so you won't be able to use the S.A.R - (Subject Access Request). There are no statutory provisions for right of access to business data..
Spreadsheets - Interest
Business account can claim the statutory interest under s.69 County Courts Act in the same way personal accounts can. The is not added to the claim until you enter a claim within the courts.
A schedule/spreadsheet showing just the charges, and any overdraft interest you are claiming should be sent with your Preliminary and Letter before Action.
Spreadsheets are here
CHARGES YOU CAN CLAIM
You can reclaim charges added to your account for a breach of contract, such a cheque referral, unpaid direct debits. You can't claim for standard business fees for running the account/fee for a particular service.
Letter Authority
Sole Trader Business - Sole Trader named
Partnership - either partner if sole signatory is authorised for account management/ cheque signing.
Ltd Company - the director/s
Asking for a refund
Preliminary Request for Repayment
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Request for repayment of charges
Dear Sir/Madam,
ACCOUNT NUMBER: xxxxxxxxx
Company Name: xxxxxxxxxxxxxxxxxxx
I am writing to ask you to refund to me the charges which you have levied from my account over the last XXXX years.
I now understand that the regime of fees which you have been applying 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 the bank; exceed any alleged actual loss to the bank in respect of any breaches of contract ; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the bank which exercises the contractual term in respect of such charges with a view to profit. The precedent for this was Dunlop Pneumatic v New Garage [1915] AC 79.along with Murray v. Leisure play [2005] EWCA Civ 963.
If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by 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 that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.
Your concealment of the true nature of your charges has prevented me from asserting my right until now.
I calculate that you have taken £XXXXX plus £XXX which you have charged me in overdraft interest for the sum which you have taken. Total £XXXXX .
I enclose a schedule of the charges which I am claiming with this letter
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.
I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.
If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.
After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.
Yours faithfully,
[name]
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Letter before Action
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[your address]
[their address]
LETTER BEFORE ACTION
Dear Sir/Madam,
ACCOUNT NUMBER: xxxxxxxxx
I now understand that the regime of fees which you have been applying to my business account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law and contrary to Statute.
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my 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 the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.
I calculate that you have taken £XXXXX plus £XXX which you have charged me in overdraft interest for the sum which you have taken. Total £XXXXX
I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.
Yours faithfully,
[name]
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Taking your claim to the courts
Particulars of Claim for N1
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PARTICULARS OF CLAIM
1. The Claimant [has] [had] an account1("the Account") with the Defendant which was opened on or around 2[and closed on or around 2 ]
2. During the period in which the Account [has been] [was] 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. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.
3. A list of the charges applied is attached to these particulars of claim.
4. The Claimant contends that:
a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by 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.
5. Accordingly the Claimant claims:
a) the return of the amounts debited in respect of charges in the sum of £ 3and any interest charged thereon;
b) Court costs;
c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.
I believe that the contents of these particulars of claim are true
Signed: DON'T FORGET TO SIGN IT
Date:
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Particulars of claim for Moneyclaim Online
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The claimant has held a current account with the defendant, conducted on their
Standard terms and conditions since (DATE) , The defendant from
(DATE) to present day has applied charges to the claimant account,
totalling £XXXXX. The bank's charges are a disproportionate penalty and therefore unenforceable. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop Pneumatic v New Garage [1915] AC 79.along with Murray v. Leisure play [2005] EWCA Civ 963. The claimant has repeatedly asked the bank to refund their charges or offer proof that they are true pre-estimate. They have declined to do so.
The claimant claims £XXXXX, being the sum unlawfully debited
The claimant claims interest pursuant to S69 of the County Courts Act 1984 at the
rate of 8% per annum, being the sum of £XXXX
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ALLOCATION QUESTIONNAIRE
See the template for completing the AQ Allocation Questionnaires - A guide to completion
here
BUNDLE
As a business you will need everything from the Basic Court Bundle, EXCEPT the consumer regulations - leave those out.
TAX
If you trade under the umbrella of a limited company, any claim for refunding of bank charges must be made by the company itself and normally will not affect you personally. A similar set of circumstances will apply to the company as the situation described below applies to you personally, but the advice of a fully qualified accountant will always be recommended
If you have claimed as deductible expenses against self-employed income any bank charges which are subsequently refunded, those refunds must be declared on the tax return pertaining to the period in which the refund was made.
This can be done by reducing the bank charges paid in the same period of the refund. If this results in a negative figure it can be entered as a negative cost or as other trading income received.
This will have the unfortunate effect of increasing your taxable profits (or decreasing your trading losses); and although you may not wish to do this, you are in fact required to do so by law.
If HM Revenue and Customs were to discover an omission of such a declaration, they will re-assess your tax liability and may impose fines, penalties and / or interest.
Note that any receipts from the bank in excess of that which you had claimed as a tax deductible expense will be treated separately as a personal receipt. How this excess is treated will depend on your personal tax situation.
You are recommended to seek the professional advice of a qualified accountant if you are in receipt of such refunds and are in any way unsure of how to treat them on your tax return.
