Come on. Have you heard back from the solicitors yet?? Love to hear their reply !! I think you may have upset them!! FP

Check out Section 26.2 of the Civil Procedure Rules - Automatic Allocation. This pretty much sets out that cases of company vs individual *should* always transfer in favour of the individual. The courts favouring the individual like this is a fundemental part of the law. There are stated cases to support this (I have read and I can't remember now !!) Why is the defendant's solicitor asking the judge to break the CPR rules ? " AUTOMATIC TRANSFER 26.2 (1) This rule applies to proceedings where – (a) the claim is for a specified amount of money; (b) the claim was commenced in a court which is not the defendant’s home court; © the claim has not been transferred to another defendant’s home court under rule 13.4 (application to set aside (GL) or vary default judgment – procedure) or rule 14.12 (admission – determination of rate of payment by judge); and (d) the defendant is an individual. (2) This rule does not apply where the claim was commenced in a specialist list (GL) . (3) Where this rule applies, the court will transfer the proceedings to the defendant’s home court when a defence is filed, unless paragraph (4) applies. (Rule 2.3 defines ‘defendant’s home court’) (4) Where the claimant notifies the court under rule 15.10 or rule 14.5 that he wishes the proceedings to continue, the court will transfer the proceedings to the defendant’s home court when it receives that notification from the claimant. (Rule 15.10 deals with a claimant’s notice where the defence is that money claimed has been paid) (Rule 14.5 sets out the procedure where the defendant admits part of a claim for a specified amount of money) (5) Where – (a) the claim is against two or more defendants with different home courts; and (b) the defendant whose defence is filed first is an individual, proceedings are to be transferred under this rule to the home court of that defendant. (6) The time when a claim is automatically transferred under this rule may be varied by a practice direction in respect of claims issued by the Production Centre. (Rule 7.10 makes provision for the Production Centre) "

Yes, need to be very care of libel etc. FP

Good luck with it. I can't say it enough times. You need to apply for another bank account as a safety margin. They might, just might decide they don't want you as a customer anymore and give you 30 days notice, if you threaten legal action. As to whether this is legal or not - try a search on the forum. One thing is for sure, whether it is legal or not, the banks still do what they want. FP

Any suggestions for slogans on the Zeppelin? "Look how high our charges are!"

Love to hear how that case goes. Certainly, my limited research on the matter indicates that admissions or liablous stuff cannot be hidden under such a heading. Good luck. FP

Certainlly apply for another account right now. It will be a pain, because you have to move direct debits etc, but will hopefully be worth it. Speak to Citizen Advice Question. Is this the first time you have been given a charge? What is your account running like in general ? Are you going to just incur more charges if you move to another bank ? I don't wish to make assuptions, but if you are in debt to creditors legitimatley, then Citizen advice do offer some exclent negotiation facilities with creditors. It is worth speaking to your local bank manager about this. Remain polite, friendly, - explain your situation. Try to sell it to them. If this fails, then I would suggest hitting them with everything you have (not literally, - legally I mean!!). How much have they taken in bank charges? I think you will just have to follow the tried and tested forumula that is laid out on the FAQ's for getting your money back. Accept it will take a little time. I know I mentioned about an Interim Injunction, but all it takes is for them to raise a 'point of law' and it could end up in the fast track court. You really don't want that. Such cases, can end in costs being awarded for thousands of pounds. You have nothing to fear reference the Small Claims Court. FP

They have not commited a Criminal Offence. Or at least one the Police will not be interested in. Why not open another bank account somewhere else? Suppose you could apply for an interim injunction against the bank to stop it applying any more unlawful charges to your account. You would have to be very careful doing this and it could cost you major amounts of money if you lost. I'm sure some of the others will be along soon to advise you. FP

I have seen several references in this forum stating outright that any communication marked as "without prejudice" are automatically excluded from any court proceedings. I have done a little research, and I have found this is not always the case. A letter can be "without prejudice" even if not marked as such and a letter can be marked "without prejudice" and not have that protection. In other words, a letter marked as such, must be a 'genuine attempt at settlement'. If it is not, then regardless of how it is marked, it could still be entered as evidence. I'm not recommending anyone tries producing a letter marked as such - you would need to be absoultely certain about what you were doing! You could end up having the judge having to resign themselves from the case and maybe getting costs awarded against you. I see also, that after judgment, a letter marked as 'Without Prejudice' can be admitted as evidence for the purpose of arguing costs. From what I have read, it would appear you cannot just hide behind a letter marked as such. It is critical that the content is appropriate. I'd be interested to hear any other persons thoughts on this. FP

Phoned Barclaycard today, who were very apologetic. They stated they have sent a letter to me today, and assured me they will completely remove any reference to this alleged late payment from my Credit Files. I think sometimes, it pays to make the intial approach on a friendly tone. Certainlly, had I gone in guns blazing and quoting the Data Protection Act, I would probably have just got their backs up. Not that this justifies their actions; - I just like an easier life sometimes ! FP

First Letter Sent to BARCLAYCARD:- --------------------------------- Late Payment Charge Dear Sir/Madam, ACCOUNT NUMBER: XXXXXXXXXXXXXXX I write reference your recent letter, the contents of which I note – in particular the requirement for me to take no action in relation to my Barclaycard account number being changed in respect of direct debit payments. You will therefore imagine my dismay when I received my statement, which showed a charge of £20 had been applied as a late payment in respect of an unpaid direct debit for £17 that occurred on 16th June 2006. I have phoned my bank [smile], and they tell me that Barclaycard staff cancelled my original direct debit and then set up a new one on 22nd June 2006. They state that Barclaycard did not wait the obligatory five days before claiming on the direct debit. Today, I spoke to a very helpful member of staff from Barclaycard who refunded me the £20 late payment charge in light of the confusion between Barclaycard and my Bank, Smile. A sensible solution given the circumstances, and my exemplary, timely payment history with yourselves. I understand that you will have marked my credit history with a ‘1’ indicating a late payment in respect of this. I respectfully submit that I have acted in good faith and through an omission either having occurred with yourselves or Smile – a bounced direct debit has occurred. It seems very unfair that you should mark my credit file with a late payment given the fact you wrote to me and told me I had to do nothing. I consider this entry will lower my reputation with other financial lenders and cost me the loss of potential future applications for credit cards / mortgages etc. I would further submit that I have always reposed confidence in your integrity and expertise as my fiduciary. I would be extremely grateful if you would remove this mark from my credit file forthwith. I look forward to your prompt reply and trust as has always been the case, I can rely on the good name of Barclaycard. Yours faithfully, Funky Parrot

I wonder whether anyone has shown one of these 'we will close your account letters if you sue us' to a district judge. Could this not be written into the particulars of claim. Perverting the course of Justice springs to mind. FP

Hi, I think you need to post up exactly what is contained in paragraphs 15, 23.3 and 29 of the organisation's terms and conditions. Clearly their Counter Claim makes reference to them. It follows, that anyone trying to help will need to know the content of these sections. FP

If you are absoultely sure that your claim is valid, let them counter claim away. You will have your day in court. The thing that troubles me is, I cannot imagine any Solicitor would write such a counter claim. Are you sure we are not missing something here? Are you absoultely %100 certain that you are only claiming for money you have not previously been refunded on? If the counter claim is as it sounds, it is almost childish. Was this written by a Solicitor? I'd almost be tempted to report them to the Law Society. But as I said, I am sure we are missing something here. This sounds unbelieveable BTW, what do the paragraphs the counter claim make reference to say (26 & 29) ? FP

I'm going to play Devil's Advokate here. Can anyone quote the Act of Parliment or Case Law that says this is true? I can understand to a degree they can do this if they have written a clause into your contract. However, remember you still have the Unfair Terms in Contracts you can rely upon. When I was a kid and worked at a well known chain of supermarkets, there used to be a £10 margin of error on the tills plus or minus. I think it is reasonable to assume that due to human error there will always be a 'reasonable' error. Of course, £10 is one thing - another amount - say £100 is completely different. FP

Well, I have been reading the various statutes and see that the Data Protection Act may well be suitable for my requirements. Barclaycard being a Data Controller have a duty of care towards me the data subject. The act states that the data controller must adhear to the following points when processing data:- lawfully processes, accurate, adequate, relevant and not excessive processed in line with your rights If it comes to it, I could possible sue Barclaycard seeking a court order that they do remove the incorrect marking on my credit file. I see that the court could make this order contary to section 14 of the Data Protection Act. 14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate , the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data. Looking at other posts, it would appear that the Information Commisioner has said these types of matters should be dealt with in the County Court. I have written a very polite letter to Barclaycard requesting they remove their entry. If they don't, I shall be forced to consider a letter before action, then the good news. FP

Unfortunatley I can't find my book with this case, but there is definatley a bit of case law that basically states as soon as a private individual posts a letter addressed to a company in a Royal Mail post box, the letter is deemed to have been received by the company at that point in time (when it falls inside the letter box). I recall the narative to this judgment speaking about the balance of rights in respect of individual vs company. This judgement only applies this way around and not the opposite. I will try to dig out this piece. It may be the case that this judgment has been clarified or changed (in a higher court) since. FP

My understanding is that if a set aside is granted, the judge has allowed the bank to enter a defence, and if they do - the matter goes to court. In short, no - you do not get your money immediately. You have to win the case. It is scary how easy it is to get set asides. Excuses range from the summons not being routed through their internal mail correctly to the specific solicitor's department (despite them admitting the company received it), through to the dog having ate it. They could probably provide a written note from their mother and the court would look favourably on it setting aside judgement. It does appear to make a mockery of the whole system. FP

It may not be due process, but why not write to the district judge setting out how often you believe Abbey are getting these judgments set aside. The small claims court system is designed so that the lay person can have access to the law regardless whether he or she is represented by a solicitor. Why not play on this and use it to your advantage ? FP

Hello, I recently reported my Barclaycard Lost. I was sent a replacement card with a new number. I was further sent a letter saying that I should not worry about my direct debit, and that they would take care of setting a new one up automatically. I have received my latest statement and see that they have charged me a £20 unpaid direct debit fee. After phoning my bank, I was told that Barclaycard cancelled my old direct debit and set up a new one. However, they say Barclaycard did not wait the five days it takes to set up a new direct debit and tried taking money; hence the direct debit bouncing. I phoned Barclaycard today and they refunded me the £20 fee, however the refussed to remove the late payment record on my credit card, telling me I had to write in and there were no promises they would remove it. I know this does not seem like much in the grand scheme of things. Barclaycard sent me a letter telling me not to worry about the direct debit transactions. They then have the nerve to charge me £20 for a failed payment (due to some mess up with direct debits) and mark my credit file with a late payment marker. Surly a financial institution such as Barclaycard can reasonably be expected to be true to it's word (as per my letter). Why should I have to suffer a mark on my file which *could* damage my credit worthiness reputation with other financial institutations? I doubt I will be able to get this resolved. Barclaycard being who they are can probably sit there being smug and get away with this, because they can. Safe in the knowledge that I could never afford legal action over something involving loss of reputation. If there is a way, I would love to know. Yours fuming. FP

Whats to stop him instructing another solicitor on his behalf who lives locally to you? Just playing devils advocate with you. Solicitors are not stupid, he didn't say that no-one would turn up - just not him. If he is in charge of litigation at Barclays, it would be unusual for him to turn up at a case himself anyway. Its much more normal for them to instruct a firm who live locally to you. FP

I won't repeat the full details here because I have already posted on my original thread. Today Barclays have offered me full and final settlement over the phone. I was literealy about to walk out the door and file my claim at the local court. FP

Barclays last day for refunding their charges was yesterday. I was litereally just about to pop down to the county court to file my claim papers, and guess who phones up? Barclay's very apologetic for not realising their had been charges to my back account going all the way back to 98! I told them unless they gave me all the money back within the next 20 mins to my account I was serving papers. I politely informed them it would cost them more than £60 for them to instruct their solicitors to defend this action. I was given an immediate refund over the phone for £60. No attempts to stall. I am a little dissapointment that I didn't get the chance to go to court. I really wanted to try out the Statute of Limitations Arguement against them in court. I have accepted their offer so long as it is in my account today. I could't justify serving the papers after their offer - because this would have been seen as unreasonable by the judge. Just wish I didn't pick up the phone - then I could have claimed an extra £30 in interest under the County Courts Act !! Parrot.

Hi, My claim is for £60 in charges (£30 in interest at 8% if they don't cough up in five days)- the first in 02/12/98 and the last in 01/02/2001. I know I am pushing my luck with this claim owing to the statute of limitations. I have included in my particular of claims :- "6. The claimant contends that the defendant, in it's fiduciary capacity, has concealed the true nature of said charges over recent years." Barclays in the infintie wisdoms have sent me a template letter that totally contradicts it's self. The first paragraph states they are aware of the elements that support my claim, but that they disagree with it. They then say they can't find any charges that were applied to my account. MUPPETS!! They were the ones, - in previous weeks, that sent me the microfiche printouts that show me all the charges! I really can't be bothered with them now. They have had my letter before action. They have only ever replied with template letters. They now ask me to state which charges I am refering to, when it was they who sent me a breakdown of the charges in the first place. I believe I have acted reasonably in trying to mitigate the matter. They will have a summons in five days. To that end, would anyone like to comment on my particulars of claim ? "1. The Defendant is a high street bank. The Claimant has had with the Defendant a current account, number xxxxxxxx, sort code: xx-xx-xx. The claimant is unable to provide the date the contract commenced, owing to the defendant's failure to fully comply, with a recent s7 Data Protection Act request. 2. Between the date of commencemnt and 1 June 2006 the Defendant deducted various amounts in respectof: ‘unauthorised borrowing fees’/‘overdraft usage fees’/‘overdraft excess fees’/'unpaid charges'/'cheque charges' (See attached schedule A). 3. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant. 4. The Claimant contends that the terms of the contract with respect to these charges are unfair and unlawful in light of the fact that: i. They are punitive charges designed to penalise the Claimant for a breach of contract. That they unduly enrich the Defendant, which exercises the contractual term in respect of such charges with a view to generating a profit. That under the law of penalties they are ‘extravagant’ and therefore unlawful. ii. They are not a genuine pre-estimate of cost incurred by the Defendant and exceed any alleged actual loss to the Defendant in respect of the breach of contract on the part of the Claimant. It is averred that pursuant to paragraph 8 under schedule 2 (1)(e) of the Unfair Terms in Consumer Contracts Regulations (1999), (‘a term is unfair if it requires any consumer who fails his/her obligation to pay a disproportionately high sum in compensation’) and under the Unfair Contract Terms Act (1977), in which it is stated that a trader can only include a clause in the contract requiring a consumer to indemnify him against any loss he may incur through negligence or breach of contract if he can show that the clause satisfies the test of reasonableness, that the charges which have been applied to the Claimant’s account are unfair and therefore unenforceable at law. iii. In the event that the charges are not a penalty, then they are unreasonable within the meaning of the Supply of Goods and Services Act (1982), s.15, which requires the supplier of a service to carry out that service for a reasonable charge. iv. Under the law of mistake, the Claimant’s grounds for restitution are that the bank automatically debited the amount of the charge from the Claimant’s account and was not legally entitled to do so. 5. The Claimant will be relying on, inter alia, judgements made in the cases of: Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co. 1915 Ford Motor Co. v. Armstrong 1915 Bridge v. Campbell 1962 Murray v. Leisureplay 2004 6. The claimant contends that the defendant, in it's fiduciary capacity, has concealed the true nature of said charges over recent years. 7. Accordingly the claimant claims from the Defendant a sum equivalent to £60 unlawfully debited to the Claimant’s account in the period 02 December 1998 to 01 February 2001. The sums are detailed in the attached schedule A. 8. The claimant claims interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% a year from 02/12/98 to 01/06/06 of £31.98 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.048 . 9. The Claimant further claims the court fee of £30. 10. I believe that the facts stated in these particulars of claim are true. " I am a little fearful that they will apply for the claim to be struck out immediately before it has even got to court, citing the statutes of limitations act. I am hoping that point 6. in the particulars of claim will stop this. At the end of the day, it is going to cost them money to defend this. All I stand to lose is £30 (I don't even think there is a cost for allocation questionnaire for the amount I am claiming). FP

Banks love it when you write to the Ombudsman. Because the Ombudsman, mostly, never do anything. Read the FAQS. If you don't get what you want issue a summons through the court. Don't bother with the Ombudsman nonsense. Stick to your timetable and not the banks. FP