Well as expected Barclays have entered a Defence I was kind of hoping they would forget me & I would be able to enter judgement, but no such luck so here goes....
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. To the extent it is alleged that the Claimant incurred Bank charges on the Claimants account for unauthorised borrowing (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 Particulars of Claim are summary in nature. Accordingly this defence id summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.
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 Defendants 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 (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 Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised 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 unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the claimant exceeds the authorised overdraft limit)
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 and /or failure to arrange an authorised overdraft constituted a breach of the terms applying to the account ant 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 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 terms constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999, or 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).
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 are and remain lawful and enforceable and that the Defendant was entitled to debit the same. Therefore the Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded or at all
In the alternative, and without prejudice to the matters stated above, if ( which is denied) the said charges and interest or any part therefore 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 a damage as a consequence of such breach of contract in allowing the account o go into unauthorised overdraft. Accordingly in the event that the Defendant id 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.
Now I filed the POC as suggested by CAG so I know that paragraph 1 means Barclay say they haven't received it in full even though I sent it to the and the court.So I will send in my spreadsheet agiain & hope they get the message this time.
Is there anything else in this defence I should be worryin about or is it pretty standard?
Along with the defence MCOL ordered that the Allocation questionnare be dispensed with unless the District Judge at the Court of Transfer disagrees.
The case has been transferred to my Local court, Romford. Am I right in thinking I just need to call them to find out if the AQ is being dispensed with & If I need to pay the fee?
Anything else I need to do now?