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I am a commercial litigation lawyer by profession and have now commenced proceedings against Barclays to claim back penalty charges imposed on my current account. The advice on this site is useful, but my approach was slightly different in that I took the matter as far as it could go pre-action much quicker. Rather than follow the stages of letter sending suggested on this site, I effectively consolidated my letter before action and DPA request into 1 letter, demanding that they agree when they will re-imburse me for all charges taken, even though at the time of writing the letter I did not know what those charges were. I do not see why that should prevent you from asking for them to agree in principle that they will pay all of it, whatever they are. I got the statements back within a week, and I then sent another very short letters asking again for them to confirm they will pay up. Very shortly after I received an offer from Barclays to pay 40% of my total claim. I have not accepted this and have now commenced proceedings.
From a legal perspective, they simply do not understand the principle. Their defence in correspondence is purportedly that I agreed to the money being taken by virtue of a contractual term. Although I have put them to proof on whether such a term does exists, they do not seem to understand that it is the very inclusion of the clause in a contract that forms the basis of my complaint. That is what a penalty clause is: a term that is incorporated into the contract as a term, but which is unenforceable. If it was not a term of the contract, then the bank would obviously still have no right to the money, but the claim would not be contractual, but in equity. I have put a section in my particulars of claim about how unreasonable Barclays have been in correspondence. Hopefully, the judge will agree.
I took the matter as far as it could go pre-action much quicker
The reason the letters are set the way they are is that the CPR state that a "reasonable" amount of time must be given to defendant to try and solve the issue without resorting to court, and that reasonable time is deemed to be 28 days.
From the point of view of the laymen who end up on this forum, who for the majority, have never undertaken any litigation before, setting out the steps in different "chunks" (S.A.R - (Subject access request), then letter 1, letter 2, court action) makes things easier to understand and less scary. The templates have gone through many incarnations, and the earliest ones were in fact SAR and request for refund rolled into one, but were discarded for the current ones, partly because it complicated the process for many, but also because some of the banks used that as an excuse not to comply with the SAR. Now you know and I know they're not supposed to do that, but one thing that never ceases to amaze me is their capacity to try any excuse not to comply with their lawful obligations.
Anyway, good luck to you. Barclays are just about the worst for dragging their feet, so I hope you're not in a hurry! ;-)
Apologies to people who I was in the process of helping, I may be gone some time.
Given that you are a lawyer what are your feelings on claiming back charges made more than 6 years ago - I intend to but there seems to be some discussion as to whether you actually have cause to or not. The Limitation Act appears to allow it given that the true nature of these charges has been hidden by the banks and we have only recently become aware of their illegality.
P.
Northern Rock; S.A.R sent 11/8/06 - Delivered. Recieved details of 6 yrs charges on 8th. Wrote back asking whether or not they hold information going back further than that.
MBNA; S.A.R sent 11/8/06 - Delivered 14/8/06
Barclays; S.A.R - (Subject Access Request) request sent 11/8/06 - Del 14/8/06
Diners Club; S.A.R sent 11/8/06 - Delivered 14/8/06. Recieved form to fill and return with fee on 17/8/06. Sent form back, delivered 4/9/06.
Intelligent Finance; Prelim letter emailed 16/08/06, claiming £318. Email recieved from "Anne-Marie" 17/8/06 saying my email has been passed to Customer Relations dept. Fob-off letter received 23/8/06, letter sent in return same day - Delivered 24/8/6 Recieved letter offer 25% settelement - refused - LBA sent. MCOL on 10th revcieved notification that they intend to defend on 13th. 06/9/2006 WON!!!!!!
This is my own personal view of course and is not advice. I see the arguments about concealement. This will be a question of fact for the court, but will I believe be a very high hurdle to climb for a claimant, who will effectively have to be shown that the bank has deliberately (i.e. dishonestly) concealed relevant facts. I specialise in civil fraud work and I can tell you that cases involving dishonesty in civil courts are very difficult to make good.
There may also be other arguments worth thinking about: e.g. because of the nature of the relationship (banker/customer), time starts to run when the money has been demanded to be repaid by customer, and not when it has been taken from the account.
I have not looked at these exceptions closely as they do not apply to my case, but I would certainly claim the charges dating back beyond 6 years if they had been imposed on my account. If the Bank pleads the Limitation Act in defence, I would reply on the basis of the relevant exceptions to the 6 year rule. In normal High Court procedings, rebutting this would be extremely unattractive for the bank, as it would have to disclose all sorts of material to show that it was not concealing facts etc in order to make good its limitation arguments. I am not sure what a county court approach to this will be as I do not do county court work, but the object is reasonablenes and proportianlity to the value of the claim. I am sure that the bank would of course try and limit the extent of its required searches, by arguing that such searches are not proportionate.
There may also be other arguments worth thinking about: e.g. because of the nature of the relationship (banker/customer), time starts to run when the money has been demanded to be repaid by customer, and not when it has been taken from the account.
rt
I was always under the impression that it did start to run from the time it was taken as that was the point at which the cause of action existsed, even though the customer didn't realise he had one?
P.
Northern Rock; S.A.R sent 11/8/06 - Delivered. Recieved details of 6 yrs charges on 8th. Wrote back asking whether or not they hold information going back further than that.
MBNA; S.A.R sent 11/8/06 - Delivered 14/8/06
Barclays; S.A.R - (Subject Access Request) request sent 11/8/06 - Del 14/8/06
Diners Club; S.A.R sent 11/8/06 - Delivered 14/8/06. Recieved form to fill and return with fee on 17/8/06. Sent form back, delivered 4/9/06.
Intelligent Finance; Prelim letter emailed 16/08/06, claiming £318. Email recieved from "Anne-Marie" 17/8/06 saying my email has been passed to Customer Relations dept. Fob-off letter received 23/8/06, letter sent in return same day - Delivered 24/8/6 Recieved letter offer 25% settelement - refused - LBA sent. MCOL on 10th revcieved notification that they intend to defend on 13th. 06/9/2006 WON!!!!!!
BDS -v- Barclays
to claim back penalty charges imposed on my current account. The advice on this site is useful, but my approach was slightly different in that I took the matter as far as it could go pre-action much quicker. Rather than follow the stages of letter sending suggested on this site, I effectively consolidated my letter before action
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Originally Posted by bds1977
