Judgment & Beyond ~ Budgie Vs Capital One

[Budgie]

Hi All,

Am planning to file my Capital One claim this week.

I started this claim ages OK but for various reasons never got the Court claim filed. I resent a final final LBA couple of weeks ago and got a NO deal response from them.
Below is my POC for N1, it's cobbled together from various POC's I have seen and worked on in the past. Just today I have added in the CI- Sempra summary I noticed on Hallimac's thread ( credit to Maxwall )

Would be grateful for comments on the POC before I print it off.

I am going for CI, no messing with alternative arguments etc etc


Working on this in the backroom with Ame, will re post once modifications made.

Can someone send in tea and biccy's please

[WendyB]

Re: Budgie Vs Capital One

You'll find Crap One will pay up as soon as they've acknowledged. But they'll pay charges, Purchase Interest and 8%. They'll then say they'll defend the claim on the basis they've paid up. I'm not too sure about the CI myself, and I know there was a case OTR where they paid everything except the CI, she continued to court and lost.

But the POC looks okay to me, not that I'm and expert. Only thing is, won't the pre-6year charges be statute barred? Or at least they'll go for that angle, won't they?

[Amethyst]

Re: Budgie Vs Capital One

point a - in this particular case or overall - cause they won't be so seems a bit odd saying that. i think u are saying it so they cant take claim into court based just on interest.

c) The claimant’s case is not that the contract should provide for the claimant to be entitled to charge interest at the rate which the defendant reserves for itself in the ordinary everyday course of dealings. The claimant is inviting the court to award interest and therefore compensate the claimant at the same rate that the defendant deems fair compensation for allowing the claimant to use its money, given that the defendant’s withdrawals from the claimant’s account were unlawful, and given that unlawful withdrawals were unforeseeable at the time of the entering into the contract.

like that

is there such a thing as an over limit charge?


5g)ii) appears to contradicts 5)a)

Claimant and Defendant need caps all way through


will go through it with you later on properly

[Budgie]

Re: Budgie Vs Capital One

My thanks to Ame and Cetelco.

We have now produced a miniature / shortened version of POC for my Capital One credit card claim.

Comments would be appreciated !

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant during November 1999, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxxxxxxxxxxxxxxxx (“The Account”).

2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.

4. 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.

5. A schedule of the charges is attached to these particulars of claim (See Appendix 1).

6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.

7. The Claimant contends that:

a) The charges debited to the Account:
i) are punitive in nature and constitute contractual penalties rather than liquidated damages.
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unjustly 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 Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

8. THE LIMITATION ACT 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.

b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

9. COMPOUND INTEREST
The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimants case for compound interest is not reliant on any implied contractual term.

The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in the Claimants instant case.

The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money.

It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Defendant has been in wrongful possession of funds over a number of years and as a lending institution would have earned profit by way of interest by re-lending those funds at its commercial compounded rates. Conversely, the Claimant having been denied use of the funds in the Defendant’s wrongful possession. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.


Details of individual charges applied to the account by the Defendant, interest calculated & rates used are attached to these Particulars of Claim in appendix 1

10. Accordingly, the Claimant claims:
a) Return of the amounts debited between July 2000 and February 2003 in respect of charges totaling £739
b) All applicable Court fees
c) Contractual interest at an annual rate 34.9% compounded daily from the date of each individual Charge to 4th March 2008 totaling £5905.34, and then continuing at the same calculation rate from 5th March 2008 to the date of judgment or earlier settlement.

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by Cheque, made payable to the Claimant.

[Amethyst]

Re: Budgie Vs Capital One


Loads better

The bits we have removed will come in at a later stage in the claim - should it go to defence.



I am a little concerned that these two paragraphs overlap a little but my brain has now gone to sleep....maybe take a look later on ?

The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money.

It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Defendant has been in wrongful possession of funds over a number of years and as a lending institution would have earned profit by way of interest by re-lending those funds at its commercial compounded rates. Conversely, the Claimant having been denied use of the funds in the Defendant’s wrongful possession. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

[Budgie]

Re: Budgie Vs Capital One

OK,

Here's my final version :-

N1 completed and ready to go.

Claim will be filed tomorrow

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant during November 1999, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxxxxxxxxxxxxxx (“The Account”).

2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.

4. 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.

5. A schedule of the charges is attached to these particulars of claim (See Appendix 1).

6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.

7. The Claimant contends that:

a) The charges debited to the Account:
i) are punitive in nature and constitute contractual penalties rather than liquidated damages.
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unjustly 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 Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

8. THE LIMITATION ACT 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.

b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

9. COMPOUND INTEREST

The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimants case for compound interest is not reliant on any implied contractual term.

The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in the Claimants instant case.

The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money. It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

I believe that the facts stated in these particulars, comprising of 2 pages, plus 1 appendix sheet are true.


Signed



Dated

[Budgie]

Re: Budgie Vs Capital One

I added paragraph 10 which is just summary of claim amounts.

Claim was filed at my Local County Court on 4th April 2008 - Will keep you advised as to how things progress.

Final version of POC is below for reference :-

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant during XXXXXXXXX XXXX, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxx xxxx xxxx xxxx(“The Account”).

2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.

4. 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.

5. A schedule of the charges is attached to these particulars of claim (See Appendix 1).

6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.

7. The Claimant contends that:

a) The charges debited to the Account: i) are punitive in nature and constitute contractual penalties rather than liquidated damages.ii) are not a genuine pre-estimate of cost incurred by the Defendant; iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant; iv) are not intended to represent or relate to any alleged actual loss, but instead unjustly 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 Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

8. THE LIMITATION ACT 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.

b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

9. COMPOUND INTEREST

The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimants case for compound interest is not reliant on any implied contractual term.

The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in the Claimants instant case.

The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money. It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

10. Accordingly, the Claimant claims:

a) Return of the amounts debited between XXXXXXXXX XXXX and XXXXXXXXX XXXX in respect of penalty charges totaling £XXXXXX

b) All applicable Court fees

c) Contractual compound interest at an annual rate XX.X% compounded monthly from the date of each individual charge to XX/XX/XXXX of £XXXX.XX and then continuing to accrue at the same rate from XX/XX/XXXX to the date of judgment or earlier settlement.

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by Cheque, which should be made payable to the Claimant.

I believe that the facts stated in these particulars, comprising of two pages, plus one appendix sheet are true.

[Budgie]

Re: Budgie Vs Capital One

Thanks for moving the thread Amy xx

Claim was issued on 4th April 2008
Court sent by post to Capital One on 9th April 2008
It will be deemed served on 11th April 2008
Capital One have until 25th April to reply.

Budgie

[Budgie]

Re: Budgie Vs Capital One

Claim acknowldeged by Capital One on 11th April.
They intend to defend all of the claim.
So they now have until 9th May to file a defence !!!

Budgie

[WendyB]

Re: Budgie Vs Capital One

I'll be really surprised if they do actually file a defence, they'll probably send you the standard "you are taking aload of rubbish but we're going to pay you anyway" letter soon. AlthoughI have actually got a copy (somewhere) I think, of the defence they sent when I did OH's Capital One. Only thing was, it arrived two days after their letter offering to settle in full! And it was a rubbish defence anyway, from what I remember. If I can find it I'll post it up.

[TUTTSI]

Re: Budgie Vs Capital One

Hi Budgie,

Capital One was my first claim when I was OTR, as Wendy says they paid out after the acknowledgement, but before submitting the defence. I claimed CI but not compounded - and from what I know now, it could have gone pear shaped. I would do now exactly what you are doing as I believe that to be the right direction - Good luck with your claim and hope it proceeds with an out of court settlement.

By the way the Maxwell POC was orinally posted to my Halifax claim thread and I gave it to Halimac. I decided not to use it as my Halifax claim came to over £50K as it went back 19 years and I was very nervous to use it.

Dxx

[Budgie]

Re: Budgie Vs Capital One

OK, here's copy of letter received from Capital one today.

Looks pretty standard template letter for this stage of claim.

[Budgie]

Re: Budgie Vs Capital One

And here is draft copy of my response.

Have gone for minimalist response.

Comments and suggestions would be welcomed.



I refer to your letter dated 23rd April 2008. Your reference xxxxxxxxxxxxxxxxx.
I refuse the refunds that you are proposing to make as a “gesture of goodwill” and respectfully request that you reverse the payment which you claim to have made to my account on 23rd April 2008. I will also return the Cheque which you claim you intend to send me within 21 working days.
The Particulars of Claim filed with Claim Number xxxxxxxxxxxx quite clearly state the circumstances of my claim together with my request for return of the unlawful penalty charges applied to my account and justification for payment of compound interest as well as the Court fee. I do not therefore intend to further debate the particulars of claim with you.
I confirm that I have written to the Court today advising them that I have refused the refunds that you are proposing and that I consider my claim to be proceeding as previously directed by the Court.
Should you wish to settle this matter, without any admission of liability on your side, then I confirm that I would be prepared to consider an offer equivalent to the total value of my originally filed claim. Please note that according to the particulars, interest is continuing to accrue on a monthly compounded basis so early settlement of this claim is desirable.

[Amethyst]

Re: Budgie Vs Capital One

I refer to your letter dated 23rd April 2008. Your reference xxxxxxxxxxxxxxxxx.

I refuse the refunds that you are proposing to make as a “gesture of goodwill” and respectfully request that you reverse the payment which you claim to have made to my account on 23rd April 2008.

I also intend to return the Cheque which you claim you intend to send me within 21 working days.

The Particulars of Claim, Claim Number 7KT01384, quite clearly state the circumstances of my claim for return of the unlawful penalty charges applied to my account.

I confirm that I have written to the Court today advising them that I have declined the refund that you are proposing and that I consider my claim to be proceeding as previously directed by the Court.

Should you wish to settle this matter, without any admission of liability on your side, then I confirm that I would be prepared to consider an offer equivalent to the total value of my originally filed claim, being £xxxxxxxx plus court costs of £xxxxx

Please note that according to the particulars, interest is continuing to accrue on a monthly compounded basis so early settlement of this claim would be desirable.

[Guest]

Re: Budgie Vs Capital One

Have you read this thread?

Legal Beagles

I think you should, in particular the discussions regarding the claiming of interest at such a rate and any arguable justification for it.