Barclays' File Defence

[don.quixote]

I have filed my claim and Barclays has filed a defence (see below) before I found your forum.

 

I made my claim online and sent separately to Barclays a complete schedule of the dates and amounts together with a calculation of interest for every individual charge. I have all the original statements.

 

I have now received the Allocation Questionnaire and I am considering requesting a postponement so that I can refer the matter to the Financial Ombudsman as this may achieve a swifter and more certain resolution. This needs to be completed no later than Monday 9 July. So, should I do this?

 

Barclays defence reads as follows:

1. The Particulars of Claim do not provide details or particulars of the precise charges alleged to have been unlawful, or the date thereof. To the extent that it is alleged that the Claimant incurred bank charges on the Claimant's 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 the date thereof.
   
2. The particulars of Claim are summary in nature. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.
   
3. The Defendant is entitled to charge the Claimant for unauthorised 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):


1. 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)
   
2. The Defendant's 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)
   
3. The Defendant's entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

[*]The Defendant's 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 without an overdraft limit or where the Claimant exceeds the overdraft limit).

[*]If and to the extent it is the Claimant's case that the failure to make necessary payments and/or 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 Claimant's 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 the 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.

[*]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 (particularly but without limitation to, paragraph 1(e) of Schedule 2)

[*]Therefore it is denied that the charges were unlawfully debited from the account.

[*]If and to the extent the Claimant incurred charges on the 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 the failure to make payments to bring the balance of the account back into credit.

[*]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 sum claimed and interest as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 4 May 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980.

[*]In the alternative, and without prejudice to the 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 unauthorised overdraft. 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.

I look forward to any guidance and advice!

[saintly_1]

Hi and welcome to Barclays forum ... what you have received seems to be the standard defence

 

The Particulars of Claim do not provide details or particulars of the precise charges alleged to have been unlawful, or the date thereof. To the extent that it is alleged that the Claimant incurred bank charges on the Claimant's 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 the date thereof.

 

Send a copy of your schedule of charges to the court and to barclays litigation team

 

If you have only just found your way here can i suggest you use one of the spread sheets from here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/182-6-interest-calculation-spreadsheets.html as this utomatically works out your interest AND updates itself everytime you open it

 

 

Hope this helps

 

 

Saint

[don.quixote]

Thank you Saint.

I had already done a similar spreadsheet and sent it to Barclays but I am now sending it again with the AQ.

Should I also ask in Box G for Barclays to supply similar detail of the loss and expense actually suffered as para 11 of their Defence and Counterclaim?

[oneofakind]

Should I also ask in Box G for Barclays to supply similar detail of the loss and expense actually suffered as para 11 of their Defence and Counterclaim?

 

Ask away. They won't produce it. This is what we've been wanting to see from them since this whole thing began.

 

don't bother with the Ombudsman; go with the Court procedure, and the bank will settle before (just before!) court date.

 

[saintly_1]

http://www.consumeractiongroup.co.uk/forum/general/57708-draft-order-allocation-questionnaires.html

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires.html

 

 

Have a look at those for filling the AQ

[clubber]

Good advice,

 

Please please can anyone comment on the fact that my account number is not on my claim and the following opening paragraph contained in B's defence today;

 

hats great news well done, hopefully not far behind...i know i will need to start my own thread but can you help me with this response on Barclays recent defence letter..it reads;

 

"The particulars of claim do not provide details or particulars of the account in question and/ or the precise charges alleged to have been unlawful, or the date thereof. Furthermore they give no recognisable cause of action,nor is there sufficient material to enable Barclays to serve more than a bare denial of liability as a defence. The statement of case would appear to be an abuse of process and/ or will obstruct the just disposal of the proceedings and it does not appear to comply with cpr r16.2".....the defence goes on to request the claim be struck out.

 

Its true my account details are not on the claim but are of course on all the letters ive sent. On reflection, does nayone think I need to start the procedure again. The claim has a schedule and states why i believe the charges are unlawful. Is the lack of account number a major concern and if so is there anything I can do. i know from my local court that the judge has not looked at it yet. Any help/comments would be appreciated!!

[clubber]

...sorry the actual wording of the request to strike out my claim is as follows;

 

"The Defendant repectfully requests an order that the Claim be struck out pursuant to CPR r3.4 as it does not disclose reasonable grounds for bringing a claim and is an abuse of the courts process".

 

I've been looking how to start a thread but cannot work it out- I'm not normally stupid but fear I am guilty of such in 2 areas, one being my inability to start a thread and the other by not including seemingly fundamental information on my MCOL.

 

Doomed or salvageable- you decide!!??

[saintly_1]

to start a thread click back it will take you to the main page for this forum the new thread is just above all the announcements

 

 

Your going to have to send an amended particulars of claim in this will unfortunatly cost you a fee that is unreclaimable You will need a form N244 and use the particulars of claim found here

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/681-4-particulars-claim-n1.html

[don.quixote]

This is a reply to the Saintly One before my thread got hi-jacked!

Alas, I had to get my AQ in the post before dashing off for the weekend so I guess it's too late to follow this accelerated path! My fault for not registering on this excellent forum sooner! Still if I were that kind of person I probably wouldn't have got clobbered with so many charges!

[oneofakind]

We ALL got clobbered with those charges, Don....

 

[saintly_1]

even saintly_1's get clobbered with charges ;-)

[don.quixote]

Thanks guys/gals!

[clubber]

Started a thread now Don, many apologies for the hijack. Will continue to read yours and wish you the best of...