Consequential Loss Questionnaire

The claims being pursued against both Clydesdale (including Yorkshire) Bank (“CYB”) and CYB’s former parent, National Australia Bank, involve allegations that CYB:

  • unlawfully increased the interest payable (“hidden margin”) by business borrowers when fixing the rate charged under commercial loans; and
  • unlawfully imposed charges (“break charges”) on its fixed rate business loan customers, when a business sought to vary the loan by ending it or varying the loan amount or the interest rate charged.

Due to the conduct of CYB (and NAB’s involvement in this conduct) in relation to these fixed rate business loans – known as “Tailored Business Loans” or “TBLs” – your business will have suffered certain types of losses that lawyers call “direct losses”.  For example, the business will have paid additional amounts of interest due to the hidden margin and/or break costs demanded by the banks or any additional interest paid due to being “trapped” in a fixed rate loan because the business could not pay the break costs.

As part of the ongoing Court action, these direct losses are already being analysed and calculated by the legal team, working with a loss quantum expert and utilising the information you have already supplied.

However, there may be other types of losses that your business suffered as a result or consequence of incurring the direct losses, i.e. having to pay additional interest or break costs may have had a prejudicial commercial impact on the business beyond just having to pay these amounts.  These other types of losses are known as “consequential losses”.

The purpose of this questionnaire is to gain sufficient information from you to enable the legal team and the loss experts to start the process of considering what consequential losses (if any) your business suffered and the quantum, such that any such amounts can be included in the ongoing legal claims.

However, before responding to the following questions relating to potential consequential losses, it is very important to note that such losses must have been incurred as a result of the direct losses suffered by the business caused by the banks and/or being “trapped” in a fixed rate loan.

In other words, losses that were incurred, when strictly viewed, by reason of the wider financial crisis at the time, or a weakness of the business generally, or some event unconnected to the banks that damaged the business, will not be recoverable in the legal proceedings, regardless of the banks’ conduct.

Please note: This questionnaire needs to be completed in one sitting; it cannot be saved part way through for completion at a later date. However, while completing it, you can go back to correct or add to previous sections. You may wish to glance through the questions in advance in order to understand what is required.

When you reach the end, it is essential that you click the button which reads ”Submit”, and tick the “Captcha box” that will appear to prove the answers have not been provided by automated SPAM software.

Please answer all questions that apply to your business.

We will immediately email to you a copy of your responses, for your records

Consequential loss questionnaire

Consequential loss – General

Q2. On the basis that direct losses suffered by the business are recovered against the banks, I believe the business did incur consequential losses.

If Yes, and you believe that consequential losses were also incurred, please continue to answer the remaining questions.

If No, please complete the Captcha tick box and press the Submit button at the bottom of this questionnaire - there is no need to respond to any further questions.

Q3. Has the business ever submitted a claim for consequential losses to the bank?
Maximum upload size: 134.22MB

Consequential loss - Forced sale of Property / Assets

Q4. Did the bank force the sale of property or other assets that the business would otherwise not have sold and that would have generated profit, and was any such sale/s as a direct result of the additional interest and costs incurred by the business under its Fixed Rate Tailored Business Loan(s) (“FRTBL”), including paying a break cost or not being able to pay and having to continue to pay a high interest rate?

If No, please jump to question 6.

Consequential loss - Forced sale of Property / Assets details

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Q5. At the time of the sale, what was the annual net profit/income (after direct costs) received from each of these properties?

At the time of the sale, what was the annual net profit/income (after direct costs) received from each of these properties

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Were any of proceeds of the sale used to repay the loan (debt) secured on the asset

Consequential loss - Additional costs

Q6. As a result of the negative financial consequences of the FRTBL on the business, did the bank charge additional fees or force additional costs to be incurred by the business?
The following are examples of such additional costs:
Bank charges: Compared with when the business first took out its FRTBL(s), did the bank subsequently charge what you considered to be excessive facility fees?

Bank charges: Compared with when the business first took out its FRTBL(s), did the bank subsequently charge what you considered to be excessive facility fees?

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Were there other additional management fees/costs charged by the bank?

Were there other additional management fees/costs charged by the bank?

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Did the bank ever impose higher or punitive interest rates over the agreed rate under the FRTBL?

Did the bank ever impose higher or punitive interest rates over the agreed rate under the FRTBL?

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Professional Charges. Did the bank ever insist on an ‘independent business review’ by a professional third party and impose the costs of it on the business?

Professional Charges. Did the bank ever insist on an ‘independent business review’ by a professional third party and impose the costs of it on the business?

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Did the business ever incur additional costs in meeting increased management reporting requirements imposed by the bank?

Did the business ever incur additional costs in meeting increased management reporting requirements imposed by the bank?

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Has the business previously incurred legal costs in relation to any legal action, complaint or claim for compensation against the bank?

Has the business previously incurred legal costs in relation to any legal action, complaint or claim for compensation against the bank?

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Other additional costs. Do you believe that the business incurred any other costs, charges or losses that would not have been incurred had it not taken out a FRTBL but remained on (or taken out instead) a variable rate loan?

Other additional costs.

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Consequential loss - Loss of Opportunity

As the name suggests, the “loss of opportunity” type of consequential loss relates to a specific business opportunity that was never started or was halted or could not proceed because of a lack of funds caused by the additional costs of the FRTBL, e.g. paying a high fixed rate or paying break costs.

Examples of such losses are expansion or investment opportunities – where there is contemporaneous evidence in support (e.g. planning permission applications or grants, formal business plans etc) – that were it not for the additional costs that were incurred under, or the bank’s negative attitude in relation to, the FRTBL, would have been exploited by the business.

Q7. Do you consider with a reasonable degree of confidence that the business missed out on specific commercial opportunities as a result of fees, costs and charges in relation to your FRTBL (including interest rate charges or break costs) that should not have been imposed by the bank?
Over what period would these losses have been incurred?

Consequential loss - Insolvency

In some cases, the actions of the bank led to the business becoming insolvent, resulting in the administration/liquidation of the business or the bankruptcy of a partnership or sole trader.

If insolvency-related consequential losses are to be alleged, then it will be necessary to demonstrate (prove) that the business would have survived had the bank, through its operation of an FRTBL, not imposed a high fixed interest rate and/or charged a break cost.

Q8. If your business became insolvent – if it didn’t, answer “No” to this question – do you consider with a reasonable degree of confidence that the insolvency was caused as a result of fees, costs and charges (including interest rate charges or break costs) that were imposed by the bank in relation to your FRTBL?
If Yes, and although a valuation of the business as it would be now but for the insolvency will require specific expert analysis, please provide the following:
Q9. Have you acquired the rights to the claim against the bank from the insolvency practitioner

Other

Please note that if you have supplied this information to us previously, we have pre-populated the answers below.
Q10. Has the business ever entered into any compromise / settlement agreement with the bank where redress or some form of compensation was received?
If Yes, please provide:
Did you sign an agreement?
Maximum upload size: 134.22MB
Settlement agreement already provided?
If this box is ticked, we already have a copy of a settlement agreement on file and you do not need to upload it here.
Thank you for completing this Questionnaire. It is essential that you press the Submit button to upload your answers. You will receive an email confirming the upload.