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Everything posted by Fellowes

  1. Barclays have written again, in light of the stay which expires on 29th February 2008 (copy of letter below). Has anyone else received the same, any suggestions on action which can be taken now? BARCLAYS LETTER I am writing regarding the Order of the 19 September 2007, which stayed the above case until 29 February 2008, at which time it will be referred to the District Judge for directions. The hearing of the Preliminary Issues in the 'test case' in the Commercial Court between the OFT and eight financial institutions (including Barclays) concluded on Friday 8 February 2008. It is anticipated, subject to appeals by either the OFT or the Banks or both, that further preliminary issues will be addressed in a second phase of the 'test case' following Judgment on the stage which has just been completed. As you will be aware, Barclays considers that the test case provides the most appropriate mechanism for the resolution of the complex legal and factual issues that arise in cases such as the present (as illustrated by the need in the test case for 14 days of oral submissions from nine Leading Counsel, hundreds of pages of written submissions, and more than 40 trial bundles). In this connection, the trial judge, Andrew Smith 1, remarked as follows on Wednesday 6 February 2008: I understand that many proceedings have been on hold in the expectation that this case will assist the management of the county court litigation, and the expectation that every effort will be made to provide that assistance without undue delay ... I haven't discerned anything during the hearing that undermines or significantly detracts from that expectation, and I certainly don't mind that being conveyed to those charged with managing the county court cases ... While it is anticipated that the judgment will be prepared as quickly as possible, Andrew Smith J has indicated that it is not possible to predict accurately when that judgment will be handed down. This may take some considerable time, given the complexity of the issues. Moreover, as mentioned above it is presently anticipated by the parties and the Court that, irrespective of the result, further hearings in the test case and/or appeals will be required before all the relevant legal and factual issues are finally determined. For these reasons, Barclays respectfully repeats its request that the case be stayed until the final determination of the test case (including all appeals). Please do not hesitate to contact me if you have any questions. Yours faithfully, Thomas Hickey Legal Assistant
  2. Well Barclays did not comply with the order, and so we sent the standard letter to the court highlighting the non-compliance and requested were were allowed to enter judgement. We have now received the stay from the courts detailed below. The bank have not applied for the stay, the court have just taken this action. What are the chances of applying to have this set aside Before HIS HONOUR JUDGE HA WKESWORTH QC Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it. IT IS ORDERED THAT This action will be stayed until 4:00pm on 29 February 2008 pending the decision in the Commercial Court involving various Banks and the Office of Fair Trading. Either party may apply on notice to lift the stay. Any such application must specify why the stay should not apply.
  3. Slick, Many thanks, just what I was after. Where did you find this, could not locate on the web. Do you have the link to this section on the Justice web site?
  4. Can anyone assist with the following query. In the non compliance letter GaryH put together, it makes reference to the Rule 3.4(2)© of the Civil Procedure Rules I've been unable to locate this rule on the Justice web site, I can only find 3.4 (2)(a) & (b). I just wanted to know what Rule 3.4(2)© of the Civil Procedure Rules was. Is this a type error?
  5. Are all cases now being stayed, or cases still being settled? What's the general view?
  6. Yesterday I received the following letter from Barclays, looks like a general one. Has anyone seen this before? Is any action appropiate? Unauthorised Overdraft Charqes ("bank charqes") You have referred your complaint about bank charges for determination in Court. We believe the charges are legal, fair and transparent. Since you filed your claim in Court Barclays (along with a number of other banks) has now become involved in legal proceedings with the Office of Fair Trading ("OFT") in relation to bank charges which we believe will resolve the legal issues regarding the fairness and legality of your bank charges. You should be aware that the bank will immediately apply to the Court for an order to stay your action until the resolution of the bank's proceedings with the OFT. As a result your case is likely to be put on hold until the outcome of these proceedings is known. Given this court case we have asked the Financial Ombudsman Service ("FOS") not to proceed with any other case they are hearing until the test case is resolved. The FOS has indicated that as a general proposition it will indeed not proceed with cases which rely on the legal issues being considered in the test case. We have asked the Financial Services Authority ("FSA") to suspend the normal timetable for dealing with bank charges complaints, and the FSA has agreed to this request subject to conditions that protect your rights. We will keep you updated appropriately about the proceedings with the OFT. You can also check the latest position on our website at www.barclays.co.uk. We can assure you we have registered and stored your complaint. Please retain your bank records, as this will make it easier for you to support your complaint on resolution of the test case. Once the legal proceedings between the OFT and the banks finish, we will resolve your complaint as quickly as possible applying the (test case) principles. As a general matter, we will ensure that your claim will not be adversely affected by the stay of your court proceedings. Yours sincerely Thomas Hickey Legal Clerk Barclays
  7. I've been looking for the letter by GaryH re non compliance, referred to in Peter Rabbit Vs Barclays, and posted by Falcom. Does anyone have the link to this, and advise on its use when the time is right. It would appear a letter needs to go to Barclays, reminding them the deadline has expired and no bundle has been received. Is this necessary, or can I just go with the court letter of non compliance? I'm not ready to do this yet, just researching in advance so I can act in a timely fashion.
  8. What are the odds Barclays will complete and return a court bundle? How many do you know of being submitted?
  9. The word for word order is on my post 28.
  10. Is this 42 days from when I took my bundle to court, or 42 days from when my allowed 14 days expired?
  11. So should my action plan now should be just to wait till the court date. Surely Barclays will not want to submit their court bundle detailing the true costs of administering such charges.
  12. I was Peter Rabbit Vs Barclays used the same order, and Barclays did not comply in the time allowed. The judge did grant an extension but this was not met either, and a full settlement followed. If Barclays do not declare the true costs of administering such fees, as requested in the order will the judge not through the case out as not all points of the order have been complied with.
  13. What are the dates when we will here is the charges are unfair? Has anyone else used the order, and had Barclays submit their bundle? Or have the cases settled prior to this?
  14. Dar£n, My understanding was with the proposed order, and the case being assigned to fast track, they had to comply with disclosure and provide all the information within the 42 days ordered by the judge. Are Barclays going to comply with this, and so proceed to court in Jan - Feb 2008?
  15. Thanks Dar£n. I've now hand delivered the Court Bundle to Keighley, and sent recorded to Barclays. From the court order Barclays have 42 days to submit their court bundle, thereafter. Does this mean from the date I delivered to court, or from when my 14 days expired. What is my best course of action now? Do I approach Barclays litigation team and establish if they have received my bundle, and would they like to settle. Or should I wait the full 42 days to see if Barclays comply with the order.
  16. Does anyone have a working link for the "Australian Default charges report, Nicole Rich", which is in the statement of evidence document. The link works, but it does nto take me to the correct site, or so it would appear.
  17. Thanks Saintly & Dar£n. Is there anthing else which should be included, based on Barclays Defence?
  18. Can one help with my last few posts, a few questions I'm trying to obtain clarification on with regard aspects of the court bundle. Any assistance would be appreciated. Thanks
  19. Hi Dar£n, Yes SOC sent recorded and special a few times. I'm confused with the bundle, so i just need the link you sent plus my docs to add. What is the pdf pack of docs all about? Can i just copy and paste the statement of evidence, some make reference to making changes.
  20. Is anyone able to help with my previous posts? Looking for some assistance with the court bundle and statement of evidence.
  21. Can anyone provide assistance on the court bundle? I've seen all the links for "Court Bundles For Dummies" & the offer from Guido of the pdf containing all the legal bits. Do all 198 pages of this pdf, and the Court Bundle need combining, plus printing the 2 web links contained on page 5? Any assistance is greatly appreciated; I need the bundle in by 4th August 07.
  22. I sent the proposed draft order to the court, and on the conference call this was accepted. I've now received the order, I've listed it below. Before DISTRICT JUDGE HICKINBOTTOM sitting at Keighley County Court, Yorkshire Bank Chambers, North Street, Keighley, West Yorkshire, BD21 3SH. Upon hearing the Claimant in person and the Solicitor for the Defendant IT IS ORDERED THAT The matter be allocated to the Fast Track with a trial window of 21 January 2008 to 8 February 2008. Time estimate 4 hours. Each party shall file a completed Listing Questionnaire by 4.00 pm on 17 December 2007 1 The Claimant shall within 14 days of service of this order send to the Defendant and to the Court; a) A schedule setting out each charge repayment of which is sought, showing the date, amount and reason given (if any) for that charge being made b) Copies of any statement or other document relied upon as showing that each and every charge has been made c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise d) Copies of decided cases and other legal material relied upon 2 The Defendant shall within 42 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon b) Whether such charge is accepted to be a penalty, and if not why not c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true costs of dealing with the matter was d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant" s actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable e) Any witness statements f) Copies of decided cases and other legal materials to be relied upon Costs in the case Dated 18 July 2007
  23. Thanks Welshcakes. Just realised I’d not listed Barclay defense either, is there anything contained in this which is different from anyone else’s? Just want to make sure before completing my statement of evidence. They have put in the standard clause stating I’ve not provided a SOC, which is incorrect they must have had 3 or 4 by now. BARCLAYS DEFENCE: 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 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): 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). b. 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) . c. 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. 4. 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 authorised overdraft limit). 5. If and to the extent it is the Claimant's case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits 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. 6. 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 l(e) of Schedule 2), or are in breach of s.4 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). 7. Therefore, it is denied that the charges were unlawfully debited from the account. 8. 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. 9. It is averred that the said charges and interest are and remain lawful and enforceable and that the De 10. The defendant denies that it is liable to the Claimant for the sums 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 April 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action. 11. 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 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. Barclays Bank PLC
  24. I have now received the court order, how do I post this? Can I scan and attach, or do I have to type it out?
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