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  1. Hi, I have been having a think about my judges decisions regarding limitation and interest based on Sempra Metals. I would like to understand this more and see what others think: Limitation In the Kleinwort Benson case, there was a change in the law as a result of another case that meant the contract terms were void. Barclays argument was that there was no change in the law that the terms relating to their charges were unlawful. Additionally, the outcome of my case would not change the law as it was only a small claims decision. Furthermore, if this point was upheld, then it would "open the floodgates" for any contractual term to be challenged. For me, this last point seemed tenuous, as we are specifically considering terms that have been deemed unlawful. However, I did not have enough understanding of the law to comment on whether the change aspect of Kleinwort Benson is crucial in determining whether it can be used in this context. Furthermore, I was not sure whether the charges being determined as unlawful as a result of my claim was equivalent. Clearly, on the day, this judge felt my case failed on these points so it would be good to understand whether the case could have been pleaded better. Compound Interest in Restitution In Sempra Metals, HMRC received money that it was not entitled to and Sempra subsequently argued that they should receive interest calculated according to their own lost opportunity of investment. This was calculated at prevailing interest rates of the time at around 5% compounded. Barclays main argument was that I had not demonstrated an actual "loss" - i.e. How much extra had I actually paid to Barclays in interest and increased payments. Furthermore, I had not quantified my opportunity to profit from this loss. On this second point, I was actually trying to argue that Barclays had profited from the charges and had the opportunity to lend said monies at very high interest rates (19.5%). Although, it is possibly still relevant to consider how much they had been given to invest. Clearly, the above charges are a liability and they will be paid (with interest) by the time my mortgage is completed. Indeed, at an average rate of 3%, Barclays will profit approx £3000 in interest on ~£1500 worth of charges. On the first point, without a specific calculation of the current loss in my POC, I was left arguing that a liability is equivalent to payment for the terms of calculating interest in restitution as per Sempra. This does seem a bit dodgy, although it is difficult to divorce the cause and effect like this. For example, consider the clearer example that interest has been added to the account in relation to these charges but it won't have been paid yet. I would imagine this kind of thing comes up quite regularly in disputes so is their a precedent? Perhaps in hindsight, a claim for the the charges + interest added + Statutory interest is easier to argue. In my example, this would still have been a claim ~£4k vs £10k. To me, it does now appear that in combination the arguments against limitation and interest in restitution are a little contradictory. They have argued that charges happened in the past and cannot be challenged, yet they should only provide restitution based on the affect this has had to date and the future is immaterial... This seems a little unfair and surely they can't have it both ways? Thanks and I look forward to your thoughts. J
  2. It is a blow but I hope that there are some things that can be learned from this. I still believe my judge would have been unwilling to award the interest without further demonstration of the actual loss I had suffered - she didn't seem to feel that a line on a balance sheet was evidence enough and said the onus was on myself me to quantify how much I was actually out of pocket over the period restitution would be claimed. Maybe there is a better way that I could have answered this though? J
  3. I did mention unjust enrichment, although I guess again it has never been entirely clear how this squares away with the Sempra Metals case, which does concern restitution based on the loss of the claimant. J
  4. The main thrust of Barclays defence in relation to the limitation and compound interest arguments is contained in their skeleton argument: [ATTACH=CONFIG]60274[/ATTACH] On top of this, I would add that my pleading of the limitation aspect was probably fairly poor, since the fine detail of the mistake of law has always been a bit hazy to me (specifically what exactly it was, who committed it and when it was committed). That said, I ultimately don't believe that the judge would have ruled in my favour on this if I had done a better job in the hearing. Their main argument was that the law has not changed and hence there is no cause for there to have been a mistake as per the Kleinwort Benson Case. The judge did not accept my argument that the mistake was the misunderstanding/misapplication of the overruling regulations. The defence also raised a concern that this would "open the floodgates" for the overruling of any contractual term, although I did point out that the case was more specific than this, in that it related to the legality of a term in a contract. In relation to the interest in restitution, I think my pleading was better on this but the judge felt that I failed on 2 points: 1. Quantifying and demonstrating the actual loss 2. Quantifying the opportunity that I would have been afforded had I not been out of pocket for this loss Point 1 is a little trickier in the context of a mortgage as the deduction of charges is not instantaneous, as per a bank account. I did highlight that the charges (and the interest levied on them) had resulted in higher mortgage payments to date and that they would continue to do so over the lifetime of the mortgage but this was accepted as sufficient. I suspect that had I attempted to quantify this directly based on interest levied and the actual increase in my mortgage payments, it may still have been difficult to produce the kind of figures needed to substantiate the level of restitution claimed. Especially given the currently low interest rates and a limited window of 6 years. Furthermore, the judge asked for further demonstration of the opportunity I may have had to invest the monies lost. I was asked if I did have investments and when I answered yes, she inquired if I did at the time of these charges, to which I had to answer no. I don't think this was overly material to her decision though, as she had probably decided on point 1 in advance of this. Thanks, J
  5. An update to my case. Defendant proposed that the judge should rule on the limitation and interest part of the claim before considering fairness or penalty clauses. Whilst I could see that this was an opportunity for them to avoid a full determination by the judge, it felt like understanding the judges view on these points would inform my position better. Ultimately, the judge determined that my arguments failed on both points. I will provide a little more detail in respect of her reasons for this later, although I am unable to add anything more in relation to the dispute. J
  6. Thanks Andy. Will keep you posted with the outcome. Fingers crossed! J
  7. It's just witnesses that aren't coming ( the solicitor and bank representative). My belief is that the barrister who drew up this skeleton argument will be their to represent them. J
  8. So what would you suggest are my options and how would you recommend I deal with this? I guess I am also a bit unsure about how to deal with the hearsay evidence - should I simply ask for that this be struck out as no witness is available? I assume it is only point 10 of their original witness statement that should be removed not everything. I am feeling a little intimidated by this now, although not totally out of my depth! My legal friend said that I should expect the barrister may engage in negotiation beforehand, so I guess it would be good to understand the likelihood of my success on the further points of limitation and interest based on 19.5% or some other compounded rate. J
  9. I agree, this is late breaking and especially prejudicial given that I am representing myself. In reality, there's not that much in here that goes beyond the arguments presented in the original solicitors witness statement. However, it does flesh out things in a little more and submission the day before gives me very little time to prepare or refer this. I have prepped som responses to the arguments he's put in, but i guess the first thing to do in the hearing is to ask whether this will be allowed? If so, is it fair, wise for me to continue with the hearing tomorrow or ask for more time? J
  10. I've just spoken to a legal friend of mine and his interpretation of the documentation I have received is that Barclays are not sending their key witnesses (the solicitor handling the case and their own representative), but they will be sending a barrister to argue the above skeleton on their behalf (he is named at the end of the skeleton). J
  11. Just received the following skeleton argument that was likely filed with the court around 5pm today. J [ATTACH=CONFIG]60274[/ATTACH]
  12. Ok. I also notice that the last offer is not marked without prejudice. Is this because they intend to wheel this out as a a example of "unreasonableness"? How are offers of settlement disclosed to the court, as these are suppose to be kept out of the documents the judge sees initially. What would be my best response to this last minute offer? If indeed I am better to respond rather than ignoring it? J
  13. The costs they state are for a solicitors "hearing fee" and the I would expect the closest allowable expense would be this: (d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing (g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; and I would expect d is hard to argue if they don't turn up! So it's only if I am deemed to be unreasonable. I'm just about to go and check the last bundle of documents sent through, but it doesn't seem that they have filed a notice with the court or myself prior to today as no record on the system with the court just now. Is it possible for a judge to ignore/overule the direction under part 27 if they haven't complied? J
  14. Oops, I meant 27.9.1a, as they haven't given myself and (presumably) the court 7 days notice they are not going to attend the hearing. There are no new documents. j
  15. Also, what about this: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9 They haven't complied with point 27.9b by giving me notice today. J
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