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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== 'In Accordance With T & C's' Statement == | == '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:******* | <center>Claim Number:******* | ||
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- 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. | - 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. 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. | + | - 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. | - 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. | ||
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- 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. | - 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. | ||
− | - 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 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. | - 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. | ||
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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. </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. | - 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. | ||
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All pre-litigation correspondence between the parties | 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
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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
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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
|