Difference between revisions of "Statement of Evidence"
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− | Here's the 'Statement of | + | Here's the 'Statement of Evidence' which can be used for c) of the Draft Direction Order (or if ordered in Directions by the judge.) |
Remember this is not to be submitted with the AQ, but after the judge has ordered directions. | Remember this is not to be submitted with the AQ, but after the judge has ordered directions. | ||
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The second statement is to be used if the bank has defended on the basis that the charges are proportionate to, or a pre-estimate of, their actual losses - ie. Abbey | The second statement is to be used if the bank has defended on the basis that the charges are proportionate to, or a pre-estimate of, their actual losses - ie. Abbey | ||
− | One or two banks don't plead in detail as to why their charges are not a penalty, only that they were debited in accordance with the T&C's, etc - | + | One or two banks don't plead in detail as to why their charges are not a penalty, only that they were debited in accordance with the T&C's, etc - ie. Barclay's. If this is the case, the third statement would be the most suitable. |
Please think carefully about what does or doesn't apply to your own particular claim and amend as necessary. Similarly, if you can think of any more evidence relevant to your claim, add that in too. | Please think carefully about what does or doesn't apply to your own particular claim and amend as necessary. Similarly, if you can think of any more evidence relevant to your claim, add that in too. | ||
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I, the Claimant, believe all facts stated to be true. | I, the Claimant, believe all facts stated to be true. | ||
− | Signed, | + | Signed, |
− | |||
− | |||
− | |||
− | |||
− | |||
+ | dated. | ||
+ | ---- | ||
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<span style="color:blue">Letter from Martin Orton, Lloyds TSB Customer Recovery Centre </SPAN>- <span style="color:red">or any letter or material in which the charges are described as 'defaults', 'penalties', 'covers costs', etc. </SPAN> | <span style="color:blue">Letter from Martin Orton, Lloyds TSB Customer Recovery Centre </SPAN>- <span style="color:red">or any letter or material in which the charges are described as 'defaults', 'penalties', 'covers costs', etc. </SPAN> | ||
− | Office of Fair Trading report, April 2006 | + | Office of Fair Trading report, April 2006 [http://www.oft.gov.uk/advice_and_resources/publications/guidance/unfair-terms-consumer/oft842 OFT Report] |
− | House of commons early day motion, May 2006 | + | House of commons early day motion, May 2006 [http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=30753&SESSION=875l EDM Report] |
Automated charge notification letter/s. <span style="color:red">Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day </SPAN> | Automated charge notification letter/s. <span style="color:red">Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day </SPAN> | ||
− | BBC commission conclusion - BBC | + | BBC commission conclusion - [http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/business/6170495.stm BBC Commissin Report] |
− | Australian Default charges report | + | Australian Default charges report: [[Australian Penalty Fees Report]] |
<span style="color:blue">Transcript of telephone communication with Lloyds TSB 'personal banking' department.</SPAN> | <span style="color:blue">Transcript of telephone communication with Lloyds TSB 'personal banking' department.</SPAN> | ||
Data Protection Act Subject Access Request for evidence of manual intervention | Data Protection Act Subject Access Request for evidence of manual intervention | ||
+ | |||
+ | </div></blockquote> | ||
+ | |} | ||
+ | |||
+ | |||
+ | |||
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+ | |||
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Text in black - template | Text in black - template | ||
− | |||
− | |||
− | + | <span style="color:red">text in red - guide notes </SPAN> | |
− | + | <span style="color:blue">text in blue - examples. Replace with your own information. </SPAN> | |
+ | == 'Genuine Pre-Estimated' Statement == | ||
+ | |||
+ | {| border="0" cellpadding="10" cellspacing="0" align="center" width="90%" style="background-color: #EEEEEE;" | ||
+ | |----- | ||
+ | | | ||
+ | <blockquote><div style= "font-size:87%;"><font color = #EEEEEE> — </font> | ||
+ | <center>Claim Number:******* | ||
− | |||
In the ******* County Court | In the ******* County Court | ||
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− | STATEMENT OF EVIDENCE | + | STATEMENT OF EVIDENCE</center> |
_________________________ _____ | _________________________ _____ | ||
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"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;" | "(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;" | ||
− | 7. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. Add an example of a charge incurred due to going over by a small amount, for example -On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence. I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate. | + | 7. The breaches of contract in this case relate to exceeding the contractually agreed limits of an overdraft facility, and having insufficient funds available to pay a direct debit or a standing order. <span style="color:red">Add an example of a charge incurred due to going over by a small amount, for example </SPAN> <span style="color:blue">-On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence. </SPAN> I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate. |
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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 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 Lloyds charges have increased twice during the period in which my account was 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. | + | <span style="color:blue">The cost of Lloyds charges have increased twice during the period in which my account was 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. </SPAN> |
19. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law. | 19. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law. | ||
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I, the Claimant, believe all facts stated to be true. | I, the Claimant, believe all facts stated to be true. | ||
− | Signed, | + | Signed, |
+ | |||
+ | Dated. | ||
+ | ---- | ||
+ | |||
+ | |||
+ | '''Documents attached in support of this statement''' | ||
+ | |||
+ | Office of Fair Trading report, April 2006 [http://www.oft.gov.uk/advice_and_resources/publications/guidance/unfair-terms-consumer/oft842 OFT Report] | ||
+ | |||
+ | House of commons early day motion, May 2006 [http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=30753&SESSION=875l EDM Report] | ||
+ | Automated charge notification letter/s. <span style="color:red">Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day </SPAN> | ||
+ | |||
+ | BBC commission conclusion - [http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/business/6170495.stm BBC Commissin Report] | ||
+ | |||
+ | Australian Default charges report: [[Australian Penalty Fees Report]] | ||
+ | |||
+ | <span style="color:blue">Transcript of telephone communication with Lloyds TSB 'personal banking' department.</SPAN> | ||
− | |||
− | |||
− | |||
− | |||
− | |||
− | |||
− | |||
Data Protection Act Subject Access Request for evidence of manual intervention | Data Protection Act Subject Access Request for evidence of manual intervention | ||
− | Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB. | + | |
+ | Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB. [http://www.consumeractiongroup.co.uk/forum/cuttings-soundfiles-library/118-peter-mcnamara-bbc-radio.html Mcnamara Interview] | ||
+ | |||
All pre-litigation correspondence between the parties | All pre-litigation correspondence between the parties | ||
+ | |||
+ | </div></blockquote> | ||
+ | |} | ||
+ | |||
Remember that all settled cases and statutes are to be submitted for direction d) | Remember that all settled cases and statutes are to be submitted for direction d) | ||
− | + | ||
+ | == 'In Accordance With T & C's' Statement == | ||
+ | This is the statement for banks whose defence says that the charges were debited in accordance with the T&C's, etc - ie. Barclay's | ||
+ | {| border="0" cellpadding="10" cellspacing="0" align="center" width="90%" style="background-color: #EEEEEE;" | ||
+ | |----- | ||
+ | | | ||
+ | <blockquote><div style= "font-size:87%;"><font color = #EEEEEE> — </font> | ||
+ | <center>Claim Number:******* | ||
+ | |||
+ | In the ******* County Court | ||
+ | |||
+ | Between: | ||
+ | |||
+ | |||
+ | |||
+ | |||
+ | Your name | ||
+ | (Claimant) | ||
+ | |||
+ | |||
+ | |||
+ | and | ||
+ | |||
+ | |||
+ | |||
+ | |||
+ | Bank Plc | ||
+ | (Defendant) | ||
+ | |||
+ | |||
+ | |||
+ | |||
+ | _________________________ _____ | ||
+ | |||
+ | |||
+ | STATEMENT OF EVIDENCE</center> | ||
+ | _________________________ _____ | ||
+ | |||
+ | |||
+ | |||
+ | - The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges imposed because of and relating directly to breaches of contract, both explicit and implied, 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. | ||
+ | |||
+ | - 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 and extravagantly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. | ||
+ | |||
+ | - The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. <span style="color:red">Add an example of a charge incurred due to going over by a small amount, for example </SPAN> <span style="color:blue">-On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence. </SPAN>I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate. | ||
+ | |||
+ | - The law 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. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848. | ||
+ | |||
+ | - It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred. | ||
+ | |||
+ | - Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 - | ||
+ | “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; the essence of liquidated damages is a genuine covenanted pre-estimate of damage” | ||
+ | |||
+ | - 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; | ||
+ | |||
+ | - It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. | ||
+ | |||
+ | - In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches. | ||
+ | |||
+ | - 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. | ||
+ | |||
+ | - 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 banks’ 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 return charges were likely to be penalties at law. | ||
+ | |||
+ | - Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65. | ||
+ | |||
+ | - 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. | ||
+ | |||
+ | - 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. | ||
+ | |||
+ | - It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. 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. | ||
+ | |||
+ | - <span style="color:blue">In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff actually told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”. </SPAN> | ||
+ | |||
+ | - Additionally, I asked the Defendant to provide me evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming. | ||
+ | |||
+ | - The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole. | ||
+ | |||
+ | - The claimant cites 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 UTCCR’s. | ||
+ | |||
+ | - 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 discribed such default charges as "exorbitant" and "excessive". | ||
+ | |||
+ | - 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. | ||
+ | |||
+ | - <span style="color:blue">The cost of Lloyds charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. </SPAN> This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage. | ||
+ | |||
+ | - As pleaded above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties. The Claimant will vehemently refute any contention that they are legitimate contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendent. The Claiment believes any such contention to be an attempt by the Defendent to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit. | ||
+ | |||
+ | - The Claimant refers to the statement from the Office of Fair Trading (April 2006). 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”. | ||
+ | |||
+ | - However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982. | ||
+ | |||
+ | - As set out above, the Defendant’s charges cannot be considered to be liquidated damages, nor contractual service charges. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law. | ||
+ | |||
+ | I, the Claimant, believe all facts stated to be true. | ||
+ | |||
+ | Signed, | ||
+ | |||
+ | Dated. | ||
+ | |||
+ | ---- | ||
+ | |||
+ | |||
+ | '''Documents attached in support of this statement''' | ||
+ | |||
+ | Office of Fair Trading report, April 2006 [http://www.oft.gov.uk/advice_and_resources/publications/guidance/unfair-terms-consumer/oft842 OFT Report] | ||
+ | |||
+ | House of commons early day motion, May 2006 [http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=30753&SESSION=875l EDM Report] | ||
+ | |||
+ | Automated charge notification letter/s. <span style="color:red">Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day </SPAN> | ||
+ | |||
+ | BBC commission conclusion - [http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/business/6170495.stm BBC Commissin Report] | ||
+ | |||
+ | Australian Default charges report: [[Australian Penalty Fees Report]] | ||
+ | |||
+ | <span style="color:blue">Transcript of telephone communication with Lloyds TSB 'personal banking' department.</SPAN> | ||
+ | |||
+ | Data Protection Act Subject Access Request for evidence of manual intervention | ||
+ | |||
+ | Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB. [http://www.consumeractiongroup.co.uk/forum/cuttings-soundfiles-library/118-peter-mcnamara-bbc-radio.html Mcnamara Interview] | ||
+ | |||
+ | All pre-litigation correspondence between the parties | ||
+ | </div></blockquote> | ||
+ | |} | ||
+ | |||
+ | |||
+ | == Related Pages == | ||
+ | |||
+ | [[Basic Court Bundle]] | ||
+ | |||
+ | [[Draft Direction Order]] | ||
+ | [[Category:Bank_Charges]] | ||
+ | |||
+ | [[Category:Legal_Information]] |
Latest revision as of 12:46, 21 July 2007
Here's the 'Statement of Evidence' which can be used for c) of the Draft Direction Order (or if ordered in Directions by the judge.)
Remember this is not to be submitted with the AQ, but after the judge has ordered directions.
The first statement is to be used if your bank has defended the claim on the basis that the charges are a legitimate contractual service charge - ie. Lloyds TSB
The second statement is to be used if the bank has defended on the basis that the charges are proportionate to, or a pre-estimate of, their actual losses - ie. Abbey
One or two banks don't plead in detail as to why their charges are not a penalty, only that they were debited in accordance with the T&C's, etc - ie. Barclay's. If this is the case, the third statement would be the most suitable.
Please think carefully about what does or doesn't apply to your own particular claim and amend as necessary. Similarly, if you can think of any more evidence relevant to your claim, add that in too.
Usual disclaimer applies - Im not a lawyer (far from it!) and the following is just my interpretation which I prepared for my claim and that I have amended to be relevant to others. Its offered without liability.
text in black - template
text in red - guide notes
text in blue - examples. Replace with your own information.
Contents
'Service Charge' Statement
|
This next statement is suitable for claims in which the defence contends that the charges are proportionate to or a pre-estimate of their actual loss.
Again, think carefully about what applies to your claim and amend to suit if necessary.
Text in black - template
text in red - guide notes
text in blue - examples. Replace with your own information.
'Genuine Pre-Estimated' Statement
|
Remember that all settled cases and statutes are to be submitted for direction d)
'In Accordance With T & C's' Statement
This is the statement for banks whose defence says that the charges were debited in accordance with the T&C's, etc - ie. Barclay's
|