Woolwich/Barclays defence

[notlam]

Im due in court next week for the provisional hearing:

No court documents received from Barclays apart from this defence submitted six weeks ago.

• The Particulars of Claim do not provide details or particulars of the account in questionand / or the precise charges alleged to have been unlawful, or the date thereof. To the extent it is alleged that the Claimant incurred bank charges on his account for unauthorized 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 the date thereof.
• The Defendant is entitled to charge the Claimant for unauthorized 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 summarized):

a.The Defendant’s right to charge a “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).

• • The Defendant’s right to charge an administration 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).
  • The Defendant’s entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorized borrowing rate on the excess balance.

• The Defendants standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorized borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds his authorized overdraft limit).
• If and to the extent it is the Claimant’s case that the failure to make necessary payments and / or failure to remain within authorized overdraft limits and / or failure to arrange an authorized 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 account and wereconsideration 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.
• Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant 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 or are in breach of the Unfair (Contracts) Terms Act 1977, or are unreasonable within the meaning of the Supply of Goods and Services Act 1982.
• Therefore it is denied that the charges were unlawfully debited from the account. If and to the extent the Claimant incurred charges on his account, this was caused by the Claimant having gone into overdraft without having agreed with the Defendant an authorized overdraft facility or to increase the overdraft facility and / or his failure to make payments to bring the balance of the account back into credit. It is further denied that any such charges unduly enrich the Defendant.
• 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.
• The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant or at all.

In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest 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 in allowing the account to go into unauthorized overdraft. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraphs 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.

Can anyone see anything new, or difficult to tackle, in the above?

I guess this is what the Judge will refer to, and ask me questions on, at the Preliminary Hearing.

Any advice would be much appreciated.

[welshcakes]

Hi Notlam

Sorry that you didn't get any responses in time for your Prelim hearing last week. Can you update on what happened?

[notlam]

Sorry for the late update.

Two days before the hearing the bank agreed to settle in full and payment now received.

[welshcakes]

Excellent Notlam, am so pleased for you.

Could you PM a MOD and let them know so they can move you to successes? Also filling in the survey will be a big help!