Fans of this thread will be interested to learn that, after following slick's advice, it turns out that Woolwich County Court neglected to send me Barclays' defence, which was filed some time in August. HOWEVER, events move apace and on Saturday, I received a letter of settlement from Barclays. They have agreed to pay my charges, plus interest and court fees in full. Part of my claim was for removal of a default notice. I had been notified of this default by Mercers, however nothing has shown up on my credit file. Barclays made no mention of this in their letter of settlement and without receiving their defence it's difficult to know whether they acknowledge the existence of any default notice. However, the fact remains that I received a letter telling me that I had one. How should I play this? If I accept the offer of settlement, can Barclaycard enter information onto my credit file later? Is there any way of ensuring that they are unable to do so, within the terms of my acceptance? Finally - and it's not really a deal breaker - Barclaycard have applied charges to my account in the interim period between my claim being issues and this offer of settlement being made. Is it reasonable to demand that they repay these too? It will amount to some £75 out of a claim of £700ish, but it would be a nice icing on the cake. Any advice appreciated! Thanks, Michael

http://www.consumeractiongroup.co.uk/forum/barclaycard/121325-barclaycard-stay-lifted-but.html This thread that I started may be of interest to some of you. My stay was lifted after a letter to the District Judge. However, Barclaycard had not yet filed a defence at the time the stay was applied, and are still yet to do so. Should I apply for judgment in default?

Hello, I am taking Barclaycard to court for repayment of charges and removal of a default notice from my credit file. My case was stayed after Barclaycard's acknowledgement of service, but before the deadline for them to file their defence (about four days before, to be precise.) The stay was lifted on 11th October and the case moved to another court for a hearing on the 18th December. I received standard directions from the court (e.g. disclosure 14 days before etc.), but it struck me that I am yet to receive a defence from Barclaycard. My question, really, is what effect a stay has on the countdown for the defendant to file their defence? Does it simply 'freeze' the countdown, which restarts once the stay is lifted. If so, Barclaycard have gone over the time to file a defence. Even if the 14 day countdown started again, after the stay was lifted, they would still have gone over the time allotted. What should I do? I am preparing my bundle for trial as usual, but I am tempted to apply for judgment in default on the basis that Barclaycard has not filed a defence. I don't really see how I can be expected to prepare for a trial in which the defence of my opponent is completely unknown to me! Any help/advice would be much appreciated. Thanks, Michael

No ideas then? I've sent Sainsbury's lawyers a letter telling them that they are in breach of the order and given them 7 days to give me the information. If they don't come up with the goods I am going to apply to the court to have their statement of case struck out. Is this the right course of action, do you think?

Hello, I managed to get the District Judge to make an order for specific disclosure against Sainsbury's Bank plc when I had my hearing recently (I summarised the events in this thread) My case was in two parts: (1) repayment of unlawful credit card charges and; (2) removal of default notice. My argument was the standard line that charges led to the default, yadda yadda. The terms of the disclosure order were thus: 'IT IS ORDERED THAT 1. The defendant is to file and serve by 4pm on 7th November 2007 a further witness statement exhibiting any internal guidance and any industry-wide agreement as to when and in what circumstances a default notice is registered. The statement must also explain in detail why the defendant issued the default notice in April 2006 and not earlier.'. [This was basically to prove my point that my default was issued for being a long way over my limit, due to charges, rather than being persistently late with payments] [2] Save as aforesaid, the claim is adjourned generally with permission to restore and if not restored by 10th April 2008, it will be Struck Out. ENDS Needless to say, Sainsbury's have not complied. What are my options here? Are there any sanctions for failing to comply with an order of this kind? Thanks, Michael

Too right! Thanks to both of you for your help. I'll let you know how I get on.

I suppose this is something that could be haggled on if/when Barclaycard choose to settle the claim?

Thanks guys, that's very helpful. One side issue, though, since I made my claim, Barclays have continued to apply overlimit/late payment fees to my account. How does one incorporate these additional charges into the original claim? Michael

Anyone able to offer any advice on point (2) in particular? Will my claim still be validly served on Barclaycard if the named defendant is Barclays Bank plc?

For the sake of completeness, the order says as follows: 'An objection from the Claimant was considered by DISTRICT JUDGE BACKHOUSE who allocated the claim to the small claims track. The hearing of the claim will take place at 10:30 on the 18 December 2007 at Mayor's & City County Court, Guildhall Buildings, Basinghall Street, London and should take no longer than one hour. A hearing fee of £75.00 is payable by 07 November by the claimant unless you make an application for a fee concession. Failure to pay the fee wil result in the hearing being removed from the list. The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued.'

Hello, The stay that was applied to my claim against Barclaycard for unlawful charges has been lifted by the District Judge thanks to the superb template letter feature on here. However, two things arise: (1) The case has been transferred to the Mayor's and City County Court, Guildhall in London for a scheduled hearing date of 18th December. I am being asked to pay another £75 for the case to be heard, in spite of the £80 court fee already paid. Can I get out of this, or is it a necessary fee? Also, are there any implications of my case being transferred to the Mayor and City County Court? I would be interested to hear if anyone else has been treated likewise. (2) A rather more fundamental problem is that, although the claim is against Barclaycard, the Defendant named on my initial N1 form was Barclays Bank plc. This was a stupid oversight, as I had assumed that they were one and the same, but I am led to believe that for legal purposes they are separate. Is there any way to get this altered or, indeed, is it necessary to do so? The papers were served at the 1 Churchill Place address...Want to sort this out before I do another £75 in cold blood...! Many thanks in anticipation of your help! Michael

Well, I've just got back from court and I feel as if I've achieved a messy score draw. Hung around waiting outside Woolwich County Court No. 2 for 90 minutes whilst other bank charges claimants filed in and out (it was a block list). About 15 minutes before my hearing a ruffled looking old boy of about 60 approaches me and asks 'Mr Thatfellow'? 'That's me', I reply. 'I'm counsel for Sainsbury's Bank. Are you represented?' he asks. Counsel! Good to see that Sainsbury's are taking this seriously, I think (although I suspect the only silk that this chap has seen in his time is Silk Cut). He spends the remaining wait doing some debt collecting on his mobile. What a renaissance man- debt collector, barrister. Hats off. He reads my bundle - apparently for the first time - and at one point comes over to ask me whether I am a law student. 'It's very well pleaded.', he tells me. 'I had some help' (thanks you lot!), I reply. Into court and I get the impression from the outset that the Judge is not going to be that sympathetic. She starts by asking me why I think the case should not be struck out in the way that Sainsbury's suggest. She repeats the assertion of Sainsbury's that I was defaulted for 'misusing the account' (i.e. missing payments, going over my limit) and that the register is a fair reflection of this. I argue that this was because of the accrual of unlawful charges. She makes it clear that she is not going to deal with that issue today. I argue, as per my statement of evidence, that the two issues are intrinsically linked. I go on about there being a definite link between the two things. She warms to the theme as I explain my side of things - the clincher seems to be the fact that Sainsbury's defaulted me for being persistently over my limit to the tune of a few hundred pounds and failing to pay off the balance. At the time of default, I was making repayments. I explain that I have no way of knowing the reasons for which Sainsbury's defaulted me, and add that it would have been useful if they had provided such information. She agrees and asks my learned friend why this has not been done. He ums-and-ahs and says, more or less, 'good question'. I continue and say that if I have been defaulted for going over the limit, there is a clear link between the level of charges and the default. They made up 80% of my balance- presumably Sainsbury's would not have defaulted me had I been within my credit limit. At this point, the judge stops, pauses, and tells the Defendant that 'Mr Thatfellow's argument has some force'. Before I have time to be crushed by the weight of her faint praise, she asks me whether I would like to allow Sainsbury's time to disclose the exact reasons for my default and the process involved in making this decision. I agree to this and she gives my learned friend 28 days to comply with this notice, and 6 months for me to decide whether I want to pursue the claim. She then explains that if I were to pursue this, it may well have to go to a multitrack hearing and that I would therefore be liable for costs. Swallowing something hard and jagged, I say that I understand this and will go away and think about how I want to proceed from here. So it's a rather inconclusive result- the only hope is that the High Court comes to a judgement before I need to give a response to Sainsbury's. I don't want to be liable for costs. Counsel seemed a bit ****ed off at the end. I think he was expecting to put this one to bed today. That's something I suppose. Thanks again to everyone on here who has helped me over the last 6 months or so. Any final pointers on how to proceed would be most appreciated.

I should add that the notice was sent a few months ago- even accounting for a delay in the info being processed, this seems a bit odd.

Barclaycard handed over my account to Mercers recently and I subsequently received what purported to be a 'Default Notice' through the post. Checking my Experian report, however, there is no mention of the default- just a note saying that I am behind with payments. Two things: is it possible to be defaulted but for the default not to show up? And secondly, is this bad form from Mercers- essentially a groundless threat intended to put the frighteners on me? I should add that the whole account is in dispute due to an unlawful charges action (currently stayed) Thanks

Thanks very much overflow.

No update, I'm afraid. I guess I'll see them in court! Any guidance or reassurance on the points in my first post would be much appreciated.

hi wiggins, Yes, although my claim is for credit card charges, I think that our arguments are more or less of a piece.

Hello all, I'm sorry for posting up my case at such a late stage, but I have been picking up advice, piecemeal, for the past 6 months or so from other sources. Thanks to anyone who has helped me with this! My claim was for: £650 of unlawful charges Removal of default marker from register (on basis of Data Protection Act) Sainsbury's agreed to refund my charges, plus statutory interest (although, to date, I have not received a thin dime of this - the money went straight to Blair, Oliver Scott and the balance hasn't been forwarded.) To explain the other half of my claim, I should give you some background. I was defaulted in May 2006 for a balance of £832. £650 of this consisted of bank charges - almost 80%. My statement of evidence puts it like this: Default Notice Removal 20. The Defendant applied a default marker, relating to the Claimant’s credit card account, to the Claimant’s credit file on or around April 2006. The ‘default balance’ was £832. 21. Under s.14 (1) of the Data Protection Act 1998, a data controller may be ordered by the court to ‘rectify, block, erase or destroy’ such inaccurate personal data, or ‘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.’ 22. The charges, amounting to some £650, should not - for the reasons outlined above - have been applied to the Claimant’s account by the Defendant. Such charges accounted for a very substantial proportion of the default balance (some 78%). 23. But for the imposition of these penalty charges, and the consequent unaffordable increases in the monthly minimum payments owed to the Defendant (occasioning further penalty fees), the balance of the Claimant’s credit card would not have exceeded the credit limit of £500 agreed with the Defendant bank. Without the application of these charges, the Claimant therefore submits that a default notice could not have been applied to the Claimant’s credit file. 24. The Claimant therefore contends that this default marker constituted – and continues to constitute - ‘inaccurate personal data’ within the terms of the Data Protection Act 1998 (DPA 1998). 25. The Claimant asks the court to use the powers available to it by virtue of section 14(1) DPA 1998 to order the erasure of this inaccurate data from the Defendant’s records 26. The Claimant also asks that an order under section 14(3) DPA 1998 be made to the effect that any third parties – in particular, any credit reference agencies – to whom the Defendant has disclosed the inaccurate data, be informed of such erasure. Sainsbury's argue in their Witness Statement (received today) that: They have satisfied the money claim in full and therefore have no case to answer on the validity of their charges. Furthermore, there were occasions on which I went over my limit and was not charged (oh! the magnanimity!). The default marker had nothing to do with charges - it reflected persistent failure to make payments on time, going over credit limit, etc. My planned response to this is as follows: The fact that I was not charged when, according to my terms and conditions, I ought to have been is neither here nor there. I am contesting the validity of those terms and conditions per se. If anything, the fact that Sainsbury's did not feel compelled to recover charges in those months strengthens my claim that they do not represent the loss (if any) that they incur by my breach. The money claim has been satisfied in full, however, the validity of the charges has a direct bearing on the default notice applied. But for these charges, I would not have been defaulted. My persistent missing of payments was purely and simply down to my inability to afford the inflated minimum payments that resulted from this. A familiar tale! I am due in Woolwich County Court on Wednesday 10th October. Although I am sure of my arguments, I am worried that: Sainsbury's will argue, succesfully, that my claim for charges and my claim for a Data Protection Act order are two separate claims (even though I have made it clear in my particulars and subsequent correspondence that they are intrinsically linked). Having satisfied the former, they will say that the default marker is fair dinkum because of my persistent late payments, etc. If I lose the second half of my claim, or if the judge decides that Sainsbury's have no case to answer, will I be liable for the costs of HBOS lawyers? What is the maximum/minimum downside if I am unsuccessful in persuading the judge of my case? I would be grateful for any comments, advice ahead of 10th October. My main concern is that my default argument is too weak - I know that other default claims have succeeded, but only when the unlawful charges equal/exceed the full amount of the default. I still think that it is arguable, though. If anyone has any questions about their own claim, I am happy to pass on any advice, letters that I used in my own case.

OK, well this is what I've cobbled together. Any thoughts, suggestions appreciated: Default Notice Removal 20. The Defendant applied a default marker, relating to the Claimant’s credit card account, to the Claimant’s credit file on or around April 2006. The ‘default balance’ was £832. 21. Under s.14 (1) of the Data Protection Act 1998, a data controller may be ordered by the court to ‘rectify, block, erase or destroy’ such inaccurate personal data, or ‘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.’ 22. The charges, amounting to some £650, should not - for the reasons outlined above - have been applied to the Claimant’s account by the Defendant. Such charges accounted for a very substantial proportion of the default balance (some 78%). 23. But for the imposition of these penalty charges, and the consequent unaffordable increases in the monthly minimum payments owed to the Defendant (occasioning further penalty fees), the balance of the Claimant’s credit card would not have exceeded the credit limit of £500 agreed with the Defendant bank. Without the application of these charges, the Claimant therefore submits that a default notice could not have been applied to the Claimant’s credit file. 24. The Claimant therefore contends that this default marker constituted – and continues to constitute - ‘inaccurate personal data’ within the terms of the Data Protection Act 1998 (DPA 1998). 25. The Claimant asks the court to use the powers available to it by virtue of section 14(1) DPA 1998 to order the erasure of this inaccurate data from the Defendant’s records 26. The Claimant also asks that an order under section 14(3) DPA 1998 be made to the effect that any third parties – in particular, any credit reference agencies – to whom the Defendant has disclosed the inaccurate data, be informed of such erasure.

The 'repayment' was carried out unilaterally by Sainsbury's, and I wrote to them - and the court = rejecting the settlement. Am I right in thinking that I am still free to argue that the charges are unlawful, as per my particulars? More specifically, are there any templates for statements of evidence available on the site that deal with default removal? The only ones I can see don't tend to mention this issue. Would it just be a case of saying: 'in light of the unlawfulness of the charges, this information is duff and as per s.14 should be removed, etc.?' (paraphrasing, obviously...!)

Sorry to bump, but I am quite desperate for an answer to the above- court papers have to go off in the next few days, and I want to know whether I am wasting my time! Thanks.

Thanks very much zoot, that was exactly the kind of thing I was after.

My account was defaulted in May 2006 for £821. The total amount of penalty charges applied at that point was £650. Although this does not exceed the default total, my credit limit was £500 and but for these charges I would never have been in a position where a default would have been applied- if you see what I mean? Contractual interest on these charges, as well as the statutory 8% would have probably pushed the total cost of the charges over the default amount too. Also, if Sainsbury's have already paid the unlawful charges to me, am I even entitled to the statutory interest claimed in my particulars? Thanks for your help.

Hello, I am due in court on 10th October against Sainsbury's Bank. I originally requested the repayment of unlawful charges and the removal of my default notice. Sainsbury's have repaid my charges in full, but refused to remove my default notice. Consequently, I am going to court. But here's the thing: I'm really unsure as to my argument re. default notice. My Particulars of Claim make reference to s.14 of the Data Protection Act and 'innacurate personal data', but I am unsure how to argue this in court. Would the court be able to enforce s.14 against Sainsbury's- or would it only be enforceable against Equifax, Callcredit, Experian, etc.? And does it matter that they are not parties to the case? I never thought I would have to go to court, but with no settlement forthcoming it seems that I will have to do so. Any clear explanation of my argument regarding the default marker would be much appreciated, together with any guidance as to what I should add to my court bundle in regards to the removal of default markers. I don't want to mess this all up at the last minute! Many thanks, Michael

I have just received a stay order in respect of my litigation against Barclaycard, made on the court's intiative. Is there a standard form letter available which addresses the fact that the 'test case' to which the stay order refers deals only with bank charges, and not credit card charges? If so, could some kind soul could point me in the direction of it? Otherwise, could somebody tell me the jist of what the argument distinguishing the two types of cases is? Thanks, Michael