i have received a copy of the defence from barclaycard and with it a notice to say that the AQ has been dispensed with at my local court. What happens now then?
Also follows a copy of their defenc, is it any different to what others have had or is this just a standard defence?
1. barclaycard is a trading division of barclays bank plc and not a legal entity in its own right.
2.the particulars of claim are summary and do not provide details of the account held with the defendant. Accordingly, this defence is summary in nature and the defendant reserves the right to amend this statement of case in due course.
3. to the extent it is alleged that the claimant incurred charges on the claimant's account for unathourised borrowings (whether late payment fees, exceeding overdraft credit limit fees, or any other such fees (the "charges"), the defendant puts the claimant to strict proof of each charge and date thereof.
4. The defendants standard terms and conditions ("terms"), which the claimant accepted upon opening the account, entitle the defendant to debit the charges from customer accounts upon certain events (including, but not limited to, exceeding account credit limits and/or unathourised borrowing and/or failing to make sufficiant monthly payments to reduce the account balance by the required date).
5.it is the responsability of the account holder to properly monitor the account so as to ensure compliance, for example, with the obligation to make payments by the required date.
6. the terms gave the claimant a fair and transparent view of the obligations and entitlements set out above, including the basis on which the defendant would be entitled to debit the charges from the claimants account.
7. if, and to the extent it is the claimant's case that the failure to make monthly payments and/or failure to remain within the agreed credit limit, constituted a breach of the terms, and that the contractual entitlement to debit the charges from the claimant's account constitutes a liquidated damages clause, the same is denied. The charges applied to the claimants account were payments that the claimant agreed to make upon the events described by reason of the terms. Accordingly, it is the denied that the charges or any charges constitute unfair and/or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the charges, as alleged by the claimant, or at all, and/or that the charges are otherwise unenforceable
8. futher 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 1(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).
9. further or alternatively, without prjudice to the matters pleaded above, if the claimants failure to make sufficiant account payments by the required date and/or to remain with a pre agreed credit limits constituted a breach of the terms, the defendant avers that the charges were nonetheless valid and enforcable
10.it is further denied that the charges were unlawfully debited from the claimants account. it is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitiled to debit the same.
11. accordingly, it is averrd that the charges are legally enforceable and the defendant was entitled to debit the charge from the claimants account.
12. the defendant denies that it is liable to the claimant for the sums calimed and interest, as pleaded or at all.
13. in the alternative, and without prejudice to matters stated above, if (which is denied) the said charges 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 consequenceof such breach of contract by failing to make monthly payments and/or failing to remain within the agreeed credit limit. 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 reover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the valueof the said charges, and the defendant seeks to set off such sums against any liabilty owed hereunder to the claimant.