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Reclaim the Right Ltd. - reg.05783665 in the UK
reg. office:- 923 Finchley Road
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NW11 7PE
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Good luck claiming your bank charges. We strongly suggest that you register under a UserID and not your own name |  | 
3rd January 2007, 19:17
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#3 (permalink)
| | Classic Account Customer |  Re: Please help!! Defence recieved!!
Hi
Thanks for the reply! Its nice to be reassured 
Here is the defence:
1. The particulars of claim does not provide details of the precise charges alleged to be unlawful or the date therof. To the extent it is alleged that the Claimant incurred bank charges on his/her account for unauthorised borrowings (whether unpaid fees for returned cheques, 'Paid referral fees' or any other such fees), the defendant puts the claimant to strict proof of each charge and date therof.
2. The Defendants standard terms and conditions give the claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn withou an overdraft limit or where the claimant exceeds his/her authorised overdraft limit).
3. The defendant is entitled to charge the claimant for unauthrised borrowings by reason of its standard terms and conditions. The claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised):
a. The Defendants right to charge and 'Paid referral fee' where the defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25.)
b. The Defendants right to charge an administrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).
c. The Defendants entitlement, if the claimantbecomes overdrawn without an overdraft limit, to charge interest at the unathorised borrowing rate on the excessbalance.
d. If and to the extent it is the claimants case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits failure to arrange an authorised overdraft constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the claimants account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the claimant agreed to make by reason of the terms and conditions of his/her account and were consideration for the defendant advancing credit to the claimant, which the defendant was under no obligation to advance. The defendant was entitled to impose such charges and interest when the claimant incurred the overdraft.
5. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relavant or applicable to the facts set out above. 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 (particularly but without limitation to , paragraph 1 (e) of schedule 2), or are in breach of the unfair (contracts) terms act 1977 (or any other provision), or are unreasonable within the meaning of s.15 of the supply of goods and services act 1982 (or indeed any other provision).
6. It is further denied that any such charges unduly enrich the defendant.
7. Therefore it is denied that the charges were unlawfully debited from the account.
8. If an to the extent the claimant incurred the charges on his/her account, this was caused by the claimant having gone into overdraft without having agreed with the defendant an authorised overdraft facility or to increase the overdraft facility and/or his/her failure to make paymemts to bring the balance of the account into credit.
9. 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. Accordingly the claimant is not entitled to a declaration by the court as to the enforceability of the said charges.
10. The defendant denies that it is liable to theclaimant for the sums claimed and interest as pleaded by the claimant or at all. In the alternative, which is denied , if the said charges amount to sumes payable on breach of contract, it is averred that the charges asserted by claimant to have been applied to the account prior to 28 November 2000 would not be recoverable for reason of exhasution of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.
11. In the alternative, and without prejudice to paragraph 7 above, if (which is denied) the said charges and interest or any part therof are unlawful or unenforceable as alleged by the claimant or at all, the defendant has nonetheless suffered loss and damage as a consequence of theclaimants breach of contract in allowing the account to go into unauthorised overdraft. Accordingly , in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraphs2, to 4 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not neccessarily be limited to the value of the said charges, and the defendant seeks to set off such sums against any liabilty owed hereunder to the claimant. Barclays bank Plc.
Any ides would be much appreciated!
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reg. office:- 923 Finchley Road,
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NW11 7PE
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