Monkeymax V Barclays

[monkeymax]

sub-title: they are trying to make a monkey out of me!!

 

Thought i'd share my experience with you all. Any help or comments would be greatly received as i'm all out of ideas.

 

I started my claim on March 28th with my letter requesting back £2510 + £585.81 interest. NO reply within the time scale.

Sent my second letter telling them if i didn't hear i would be going to court- They offer £1800 - no thank you

1 month leter sent them a letter stating i would settle for the figure minus interst- no reply

So i went to court - by this time charges were up to £2680

Barclays defended on MCOL after acknowledging and dragging it ou to the last day.

Case transferred to Kingston.

In the time before the hearing i had e mail correspondence with Dino who told me to come back one week before hearing and they would make me an offer.

Hearing scheduled for 30th August, contacted them the week before and heard nothing

e mailed and heard nothing

check MSE site and found out about the OFT case.

Dino's colleague then got back to me and stated all cases would be stayed and no offer will be made!!

 

i then attended the allocation hearing in Kingston along with about 15 others in the same boat. We put our views forward why it should not be stayed but the judge had his mind already made up - STAYED

 

i have now written to the judge asking for a lift on the stay in regards to Financial Hardship (a new born son, part time work for wife and a big mortgage (London)) and on the grounds that Barclays intended to make me an offer and purposely stalled all the way through the claim.

If this stay is not lifted via letter i will be paying £65 for a formal hearing.

 

Any comments??

[slick132]

Good luck, first off.

 

See what response you get to the letter and, depending on any feedback from Court, you could then decide whether to risk the £65 fee.

 

A Stay being lifted is exceptionally rare although you are right to make the points about new son, big mortgage, wife working p/time, I don't think you'll get anywhere re no offer made before OFT announcement.

 

The only other relevant point may be if Bank was taking charges out of Family Benefits which were being paid into the a/c.

 

Remember, the £65 in non-reclaimable.

 

Slick

[saintly_1]

It might be worth while looking at this http://www.consumeractiongroup.co.uk/forum/bank-templates-library/115023-application-removal-stay-grounds.html#post1142776

 

Hlope that helps

[monkeymax]

thanks, the letter i wrote was in the same vein of the application for removal of stay on grounds of Financial hardship thread. I have mentioned in the letter that i received 2 emails from Dino stating they would settle a week before the hearing but the OFT case was announced and Barclays said no offers made. I thought if i have written evidence that Barclays were going to make me an offfer that no stay could be upheld?

or is that just wishful thinking?

[slick132]

Hi Monkey,

 

I've now seen the draft letter on your other thread and it would help if you posted the ACTUAL letter you sent on here. Also, if you stick to one thread, it helps everyone.

 

Can you confirm if you actually received emails for Lit'n Team stating that "claim will be settled" and post the relevant detail on here.

 

Slick

[monkeymax]

Thanks Slick, please see final copy of the letter below, sent last week-

 

 

 

Claim number - *********

 

 

I wish to apply for the recent stay applied to my claim against Barclays be lifted due to the following reasons-

 

1. My claim was started in February 2007 and was delayed all the way by Barclays. I received no correspondence from Barclays apart from an offer of less than 50% of my original claim just some 40 days into the claim. Once I turned this down I no longer heard from Barclays unless I e-mailed or phoned them myself. I have received e mails from members in Barclays Litigation team before the test case was announced stating that I should contact them one week before my hearing and they would probably make me an offer. I also wrote to Barclays offering a reduced settlement (minus interest) and received no reply. I feel that if Barclays had responded to me this would have been sorted before the test case was announced on 27th July. One week before my hearing I contact Barclays by phone and was told no offer would be made now as all cases will be stayed. The litigation team member then proceeded to ask me questions about the date and time of the hearing as there was no information in my file. I then attended a allocation hearing on 30th August, I had no paperwork from Barclays supplying what they handed to you in support of their stay, no contact with the Barclays representative that was in the hearing and no further contact from Barclays since, even though e mails have been sent to their litigation team.

 

Hardship Issues

 

2. I would like to apply for the lifting of the stay on the grounds of financial hardship. I feel this amount of money is significant in regard to my current financial problems. Since my claim was registered with the court Barclays have continued to charge my account as I am now in a position where my monthly earnings minus compulsory bills do not take me out of my overdraft and I continue to be charged each month. Since June 07 I have been charged an additional £450 in charges and due to rejected direct debits have twice missed payments causing black marks on my credit rating. This will not cease until money (whether lawful or not) has been repaid by my bank. I calculate that the rate of charges being paid every month (sometimes as much as £95) will soon take me down to level that will not allow my budget account payment to be taken out. This will cause a shortfall in Mortgage payments, utility bills and council tax. The only other income received into our budget account is my wife’s part time earnings and Children’s tax credit that is now being swallowed up on bills I cannot pay. My wife cannot work anymore hours due to childcare obligations. If my charges were to be paid back to me this problem would cease as my only unaffordable bill is monthly bank charges. I have a 10 month old son that relies on me being able to provide him with food and milk. The Tax credits are there to help me do this but are now in trouble of being swallowed up by other debts. If this is allowed to go on for another year or so pending the test cases outcome I could be in debt to a degree where I will have to sell my house and move away or downgrade. This is not something I wish to do with a young child

 

I also attach a statement from the FSA website, this shows the FSA has demanded banks still deal with cases that fall within the ‘Financial Hardship’ bracket. I would ask the court to also act in regard to this and to accept the application of lifting stays to those in financial hardship (http://www.fsa.gov.uk/pages/Library/Communication/PR/2007/090.shtml).

 

Human rights

 

3. The stay infringes my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

 

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

 

4. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable, even indeed probable that final resolution may not be reached for 2 – 4 years or perhaps even longer. It is thus submitted that the time of the final determination of the test case cannot be predicted and so the stay would be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

 

Blanket Stays

 

5. I would respectfully draw the courts attention to the Master of the Rolls decision that all outstanding bank charges cases should not be automatically stayed. My understanding is that the Deputy Head of Civil Justice has written to all designated Civil Judges, inviting them to consider staying outstanding claims on an individual case by case basis as appropriate.

 

6. I therefore object that this stay has seemingly been imposed indiscriminately without regard for or consideration of any individual factors which may distinguish it from other similar cases or indeed the fundamental issues of the OFT test case itself.

 

7. Accordingly, I would urge the court to reject the indiscriminate blanket staying of claims as is seemingly being sought by the defendant in this and other similar claims by way of its generic template letters.

 

Distinguishing Factors

 

8. The test case between the banks and the OFT is primarily to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999. The OFT's Particulars of Claim are attached. The fundamental issue to be tested is whether the contractual provisions which permit such charges are subject to an assessment of fairness under the Regulations and fall within the ambit of regulation 5, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a 'core term'. Regulation 6 provides;

 

"(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate -

 

(a) to the definition of the main subject matter of the contract, or

 

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."

 

9. It is accepted that this is a complex issue of legal interpretation and one on which clarity is needed. However, this issue should be viewed in the context of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach of contract. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms.

 

10. In view of the preceding paragraphs, I wish to draw the courts attention to the following matters;

 

a) The OFT Test Case will not, primarily, test the position at common law of whether or not such clauses amount to an unenforceable penalty; and,

 

b) It is settled by virtue of the unanimous decision of the House of Lords in the case of Director General of Fair Trading v First National Bank [2001] UKHL 52 that a default provision, that is one concerning the consequences of a breach of contract, is not and cannot be excluded from the regulations by virtue of regulation 6.

 

11. It is thus submitted that my claim should proceed on the grounds that the vast majority of the charges imposed by the bank were levied in advance of the redrafting of its contractual terms and as such were imposed as default charges as a consequence of breaches of contract. The issues are therefore distinguishable from the fundamental issues of the OFT Test Case, are relatively straightforward issues of fact, and can be routinely and expeditiously disposed of by the County Court.

 

Balance of convenience

 

12. The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

 

13. Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

 

14. It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

 

Defendants Notorious Conduct

 

 

15. At least 300 claims have been brought against the defendant this year involving similar issues. This is evidenced by a sample list of settled claims, which is attached. Despite flatly denying its customers complaint in the preliminary stages then subsequently always indicating an intention to defend, then filing a defence, then an allocation questionnaire, then breaching any directions, the defendant has compromised each and every such claim in advance of the hearing, usually following unnecessary and protracted litigation. The defendant purports to settle these claims without liability for ‘costs’ or ‘commercial’ reasons, yet for example on many occasions previously, as the court may already be aware, it has gone to the expense of setting aside default judgments only to settle the claim shortly after. The defendant continues to spuriously defend claims only to subsequently settle them, flagrantly breaching multiple court orders and provisions of the CPR as it does so. Many County Courts now consider the litigation tactics employed by banks in these cases as an abuse of court process and are regularly striking out their defences as a result.

 

16. The present case has now been ongoing for X months, during which time the defendant has attempted to prevaricate and frustrate justice at every opportunity. Therefore I submit that to stay this claim at this stage is wholly unjust and would have the obvious effect of favouring a defendant notorious for its wilful refusal to comply with court orders and the litigation process in general.

 

The Overriding Objective

 

 

17. The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

 

The Status Quo

 

 

18. The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

 

19. Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

 

Conditional Orders

 

 

20. In view of the preceding paragraphs, if the court does not accede to this application, I respectfully request that the stay remains subject to the following orders:

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
  
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.
  
• That the defendant is prevented from closing my account.
  
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
  
• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 )
  
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998.)
  
• That these injunctions remain in place until the settlement of my claim.
  
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent.
  
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

21. I, the Claimant and applicant, believe all facts stated to be true.

 

 

If you wish to see any of the documents I have mentioned in support of my application I would be more than happy to send you copies.

 

contents of letter included Barclays case information and FSA 'hardship' statement released on their site.

 

Please note, I receievd an e mail stating that an offer would be made to me but not until 1 week before the hearing. I still hold a copy of this.

.

Thanks, Max

[slick132]

Monkey

 

Take your name off your previous post using EDIT button

 

Slick

[slick132]

What did the email say and on what date.

 

Please edit out your name at top of big letter.

[monkeymax]

(i do not have a copy with me, in work!!) it said that they could not offer me money before a hearing date and then they would only make me an offer one week before the hearing and not to contact them until then. My hearing was on the 30th August. These emails were received at the end of June.

[slick132]

Monkey,

 

Check the emails later and post them here if you want.

 

I have to say, however, that what you've just described sounds more like Barclays saying they're NOT making an offer at that time. As opposed to you having email from Dino offering a to settle by any certain date.

 

Just playing Devil's Advocate, of course.

 

Come back with the actual emails later, Slick

[dar£n]

Hi Monkey,

would you like to post this comment

Please note, I receievd an e mail stating that an offer would be made to me but not until 1 week before the hearing. I still hold a copy of this.

 

on here:

http://www.consumeractiongroup.co.uk/forum/barclays-bank/115124-have-you-been-offered.html

 

would be appreciated.

 

Daz

[monkeymax]

Hi Monkey,

would you like to post this comment

 

 

on here:

http://www.consumeractiongroup.co.uk/forum/barclays-bank/115124-have-you-been-offered.html

 

would be appreciated.

 

Daz

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Daz, done

Max

[monkeymax]

will do slick

thanks all for the help

[jack d]

Did it ever occur to anybody that if they get their stay lifted they won't get their case heard until weeks .. if not months .... after the test case ?

 

The blanket stays are only until the end of the hearing listed for two weeks in January. The stays will all be reviewed after this hearing at first instance. They are not indefinite and you should not be panicked into thinking they are. If a stay was listed on a case today, there wouldnt be a hearing until at least march. If all stays were lifted, some people wouldn't be heard for over a year. As opposed to waiting about 14 weeks for a decisive test case.

 

The court service is a system with a fixed number of people and judges. It follows that it makes sense to freeze a class of cases where the particular jurisdiction is excessively busy, as in most London courts for example.

 

And for that matter, do litigants in person really expect they will achieve better results than the OFT ? The OFT will be using the best barristers money can buy, and no doubt the banks some more expensive ones. The hearing at first instance we have no reason to expect will be anything other than broadly descisive.

[jack d]

- the other thing to point out is that if you make an application to lift a stay and lose, you could be ordered to pay costs. So you lose not just the £65 but an additional £100 + in legal fees.

 

the court, incidentally, is obliged under the overriding objective to use the court's time to best advantage. Hearing hundreds of identical cases is a breach of the overriding objective, as simple as that, unless the claimant can show he is unique and has special circumstances to his or her claim.

 

i recommend you read Carlisle v Clydesdale Bank, a case binding on County Courts. At para 5 Behrens HH states that a stay should be granted in all but the most unusual cases : the next paragraph states that banks are entitled to continue to claim charges until it is shown in the test cases that it is not lawful to do so. It also states that Banks themselves should not pursue enforcement action for these charges pending the hearing, and that no stay should exceed that of the hearing at first instance in January.

[slick132]

Hi Jack and welcome to Barclays forum,

 

Not everyone would agree that the OFT case will be decisive, nor even that THE CASE itself will proceed to trial.

 

However, your views will be very welcome in the Stay Forum (we are hijacking someone's thread here) so have a look at this link - http://www.consumeractiongroup.co.uk/forum/barclays-bank/111127-new-forum-stays.html

 

and post comments freely.

 

Slick

[monkeymax]

i don't mind,

he makes sense

i have already decided not to apply for a stay on this basis anyway (time scale)

but thanks for your input

roll on January!!

 

Monkey

[tezl]

hi,

dont want to be gloomy.

slick is right ,and on that basis people with stays may not get back 100% of claimed charges.

where as a continuing case will most prob result in 100% back.

 

and as for a private person not getting a better result than oft,

i think thousands of claimants have already proved that point by getting

100% back.

dont think oft twot will better that.should have kept noses out .

tez

[slick132]

hi,

slick is right ,and on that basis people with stays may not get back 100% of claimed charges.

where as a continuing case will most prob result in 100% back.

 

What Slick thinks is peeps on Stays WILL get all their charges back after OFT kerfuffle is over.

 

I didn't want to debate Jack's views on this thread, but I will now add that:-

 

1. I have read the Carlisle v Clydesdale case summary.

2. I wouldn't trust a barrister to work on my behalf unless I was paying HIM to represent ME. Representing the OFT is quite different.

3. Thousands of Litigants in Person have successfully reclaimed chgs from banks who have paid up rather than disclose their fee structure in Court.

 

Slick

[slick132]

Monkey,

 

Sorry for the hijack and I'm pleased your ok waiting till stay is over. You'd have been banging your head against the proverbial brick wall otherwise.

 

Lets hope cases will be unstayed soon.

 

Slick

[jack d]

the other thing to point out is this - all claimants are entitled to statutory interest at 8% (if they pleaded it) - but they can always try pleading afterwards. So people with stays may get more money than those who settled, not less.

[monkeymax]

hello again all,

i have a question...

my court case was stayed in Aug 07. On the court letter it stated that it is to be stayed until the outcome of the test case. As the test case is going ahead next week will this mean straight after my case will be re opened? my case did not state after the test case and any appeals, so really two weeks and i should re open my case right?

plus do i re open it or will the court do it automatically?

[slick132]

Hi MM,

 

You'll have to wait and see how the Test Case goes and whether any appeals follow.

 

Your Court may have given specific or general Directions for how your case will restart but we need to get the OFT case sorted first.

[peterlucas]

After reading the main thread on stays I have been searching everywhere for the Carlisle v Cyldesdale Bank judgement but havn't been able to find it. This thread came up on a google search. So if Carlisle says no stay should exceed the hearing in first instance of the OFT case that started early this year, then it is no longer a basis for stays and can longer be relied upon, right?

[slick132]

HI PL,

 

AFAIK, the above judgement said cases should remain Stayed pending outcome of the OFT case, including appeals.

 

The only way round a Stay is to argue on the basis that the delay in having your case heard is causing Financial Hardship.