BARCLAYCARD Round 2 ***WON***

[slick132]

Hi SB,

LoL

Whilst I'd love to take the credit, it was based on the older advice about AQ's and DDir'ns.

On a general note though, it's considered proper to address the courts with a certain degree of respect.

[skintboy69]

So 'Yo Dude, What's shakin'? Just won't cut it??

T.

[slick132]

[skintboy69]

Actually Slick and joking apart, assuming this case comes to court, how do I address the judge? Is it sir, your honour or mate?? (I think it's probabely one of the first 2)

Secondly, should I post BC's defence for you guys to peruse??

Cheers, T.

[slick132]

Whilst it's unlikely you'll actually go into court with this, Your Honour or Sir will suffice.

Post their defence when rec'd.

[skintboy69]

Here (I hope) is BC's Defence. What do you think??

IN THE LIVERPOOL COUNTY COURT

Claim No:

Claimant

SKINTBOY69

-V.

BARCLAYS BANK PLC T/A Defendant

BARCLAYCARD

DEFENCE



1. Barclaycard is a trading division of Barclays Bank PLC and not alegal entity in its own right.


2. To the extent it is alleged that the Claimant incurred charges on the Claimant’s account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the “Charges”), the Defendant puts the Claimant to strict proof of each charge and the date thereof.


3. The Defendant’s standard terms and conditions (“Terms”), which the Claimant accepted upon opening the account, entitle the Defendant to debit the Charges from customer accounts upon certain events (including, but not limited to, exceeding account credit limits and I or unauthorised borrowing and / or failing to make sufficient monthly payments to reduce the account balance by the required date).


4. It is the responsibility of the account holder to properly monitor the account so as to ensure compliance, for example, with the obligation to make payments by the required date.
5. The Terms gave the Claimant a fair and transparent view of the obligations and entitlements set out above, including the basis on which the Defendant would he entitled to debit the Charges from the Claimant’s account.

6. If, and to the extent it is the Claimant’s case that, the failure to make monthly payments and I or failure to remain within the agreed credit limit constituted a breach of the Terms, and that the contractual entitlement to debit the Charges from the Claimant’s account constitutes a liquidated damages clause, the same is denied. The Charges applied to the Claimant’s account were payments that the Claimant agreed to make upon the events described above by reason of the Terms. Accordingly, it is denied that the Charges or any such charges constitute unfair and / or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the Charges, as alleged by the Claimant, or at all, and / or that the charges are otherwise unenforceable.

7. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999 (or indeed any other provision).

8. Further or alternatively, without prejudice to the matters pleaded above, if the Claimant’s failure to make sufficient account payments by the required date and I or to remain within pre-agreed credit limits constituted a breach of the Terms, the Defendant avers that the Charges were nonetheless valid and enforceable.

9. It is further denied that the Charges were unlawfully debited from the Claimant’s account. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same.

10. Accordingly, it is averred that the Charges arc legally enforceable and the Defendant was entitled to debit the Charges from the Claimant’s account.
11.The Defendant denies that it is liable to the Claimant for the sums claimed and interest, as pleaded or at all.



12. In light of the foregoing the claim for interest is denied. Without prejudice to that denial, the Defendant does not understand the Claimant’s calculation and no admissions are made as to the accuracy or appropriateness of the rate on which the Claimant relies.




13. It is further denied that any such charges unduly enrich the Defendant.



14. In the alternative, and without prejudice to matters stated above, if (which is denied) the said Charges or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the Charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a consequence of such breach of contract by failing to make monthly payments and / or failing to remain within the agreed credit limit. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant,




STATEMENT OF TRUTH

I believe that the facts stated above are true. I am duly authorised by Barclays Bank PLC to sign this statement on its behalf.

Fred Karno
Solicitor
Barclays Bank PLC
Dated February 2009


Cheers, T.

[skintboy69]

AQ and Draft Directions delivered to court yesterday. I guess I'll just have to wait now. (bored already).

Keep the faith.

T.

[meerkatsmimm]

Good luck with this buddy, new to the site but reading your thread with great interest.

Stay strong through it all and you will come out on top!

[slick132]

Hi Skinty,

Their defence looks remarkably unremarkable.

You should now concentrate on:-

1. Making sure you understand the basis on which you're claiming interest on top of the charges, so you can include the relevant legislation to back this up.

2.Getting your Court Bundle together - put it in a file ready to print when necessary. It'll run to 100's of pages as there's 3 copies to be printed off.

They'll settle before a court hearing but you'll have to submit your bundle to show BC you're serious.

[skintboy69]

Hi Slick.

I was of the same opinion. The only issue that caught my eye was the 'The Defendant does not understand the calculations'.

This is hardly a surprise, as I don't myself. But i believe it is the principle of the case that we will be arguing. The maths can be sorted out any old time.

Printing the bundles shouldn't be too much of a bind. I'll put the files on a memory stick and print them off in work. Much quicker that way - not to say cheaper.

Thanks for keeping an eye on me.

Cheers, T.

[skintboy69]

More than three weeks have passed since I took the AQ and Draft Directions to the court. Since then I have not heard a peep, either from BC or the court.

Does anyone know what their usual timescale is??

Cheers, T.

[slick132]

Hi Skint,

Ring the court and ask if they could give you an update.

[skintboy69]

Now, why didn't I think of that???

It must be age!!

Cheers Slick.

T.

[skintboy69]

I phoned the court this morning. They apologised for the delay. They said they are v. busy. I wonder why??

The case has been allocated to Small Claims and they will be sending some paperwork out today. There is still no date for the hearing but they are 'working on it'.

Keep the faith.

T.

[slick132]

Makes you wonder how they'll d/w the Stayed cases, once the OFT case is over and the claims start moving again.

[skintboy69]

Do you ever get the impression that the courts are not really on our side (or even impartial)?

I received Notice of Allocation and Directions yesterday. The judge made the order 8th April. It has taken them a month to post it.

Here is the bad news:

2) Each party must deliver to every other party and to the court office copies of all documents etc etc no later than 4.00 pm on Wednesday 13th May

4) The Claimant's request for detailed disclosure by the Defendant is refused as Part 31 of CPR does not apply to Small Claims and in any event is disproportionate.

They have allocated 30 minutes for the hearing. Have they already decided the outcome, do you think??

I have seven days to apply for a stay, set aside or variation. Seven days is AFTER the deadline for providing the bundles.

I intend, unless someone has a better idea, to phone the court on Monday and ask them what they think they're doing and do they, in fact know their business. (politely, of course).

Keep the faith.

T.

[meerkatsmimm]

Thats really wrong of the courts taking so long to supply you with this information.

On the upside, BC have the same amount of time to supply what they need (if I am reading correctly), so you have more chance of being organised in this time frame than they do.

You should ring the court on Monday and try and asscertain if BC did get this info at the same time as you. If not and they did get it earlier, then surely that is the court showing favour to the creditors.

This could work in your favour, so dont panic. Im sure slick will be back with better info shortly.

meerkat x

[slick132]

Write to the court saying how the Order of the 8th April has only been received a MONTH LATER !

You require a further 14 days to put your case together and to File and Serve the court bundles.

Also, contact Barclays Litigation Team, confirming the court dates (if you have one yet) for the hearing. Ask them if they'd like to reach a settlement and avoid the need to use more of the court's valuable time.

Get your bundle together now anyway.

[skintboy69]

Hi Slick. You are, as ever, my German Shepherd in shining armour.

That, in general, was what I planned to do. I'm a little concerned about the judge rejecting my request for a detailed disclosure. Surely that is central to the claim?

I do not, as yet, have a hearing date. The Notice of Allocation says 'Please see court directions order and notice of preliminary hearing attached'. but 'attached' is crossed out, with 'to follow' written in biro.

Stapled to the back is an internal memo, which probably shouldn't have been sent to me. It appears to be instructions for the person preparing the notice. Reading it, it seems to me that the notice was prepared by someone with very litttle experience.

Would it be of help if I posted it??

Lastly (for now) do you have a contact telephone number or e-mail address for the Litigation Team??

Cheers, T.

[slick132]

Try here for contact details - Email or contact details for Barclays Send an email saying "please pass this on to whoever is dealing with my claim, and confirm their email address".

If you think the court has sent you something they shouldn't, keep a copy and return it to them.

Don't be alarmed at the judges refusal re disclosure. You asked the judge to consider using your suggestion and it's been refused for the reason stated.

That's the judge's prerogative.