Sazafraz v Barclays

[Welshman]

Hi Sarah.

You need to photocopy them all. There's a very helpful little dedicated photocopying shop in my home town and I photocopied everything I needed for under £7.

I was rather fortunate that Barclays sent me two lots of statements so that cut my costs down.

 

Take all letters they sent you and copy them. I actually have four bundles. One for the Judge, one for the Bank, one for me to refer to at the hearing and a master one which hold all the original correspondence from the Bank, should the judge need to see them. You could, of course, use the original as your court copy but I'm playing safe.

 

You also need to print out three/four copies of letters you sent to the bank during the claim process and file them chronologically in the bundle.

 

If this posting has helped you please click on my scales at top right of this posting.

 

Any problems/clarification, please post again.

 

Good Luck.

[sazafraz]

thanks welsh, I shall get on to it .

[sazafraz]

According to my calculations, Barclays have until 24th oct to file a defence. That would be tomorrow then. Do I wait until 25th to contact moneyclaim and tell them ? Please let me know. Then again, I'm fully anticipating a last minute defense from Barclays anyway-that seems to be their style, but we'll see.

[Welshman]

Yes, you will probably find that they'll defend in the next 24 hours. They did, in my case, with a day to spare. Keep checking MCOL for any changes. If they don't, apply for judgment before 9am on the 25th for it to be dealt with that day.

 

Good Luck

[sazafraz]

25th oct 06.

I have just received Barclays Defence through the post. It says:

"1. The Particulars of Claim do not provide details or particulars of 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 his/her account for unauthorised borrowings (whether unpaid fees or 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.

2. The Defendant's 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 his/her authorised overdraft limit).

3. If and to the extent it is the Claimant's case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits failure to arrange an authorised overdraft constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant's 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 his/her 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.

4. 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 charges constitute unlawful penalty charges or are in breach of th 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).

5. Therefore, it is denied that the charges were unlawfully debited from the account.

6. If and to the extent the Claimant incurred charges on his/her 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 his/her failure to make payments to bring the balance of the account back into credit.

7. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same. Accordingly, the Claimant is not entitled to a declaration by the Court as to the enforceability of the said charges.

8. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by the Claimant to have been applied to the account prior to the 22nd September 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

9. In the alternative , and without prejudice to paragraph 6 above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, the Defendant has nontheless suffered loss and damage as a consequence of the Claimant's breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraphs 2 to 3 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."

Is there any chance that you good people could translate this into English cos I'm not sure what it all means. Is it a standard defense?

I am going to fill in the A.Q. in the next few days, when I can get hold of £100, and just to let you know, they have transferred the claim to my local court in Kendal.

I hope someone can help me out with the above request- would be most grateful,

thanks

Sarah.

[pauldean]

Hi, looks like i'm just two days ahead of you, my defence is the same, as is welshmans....

 

If i were you i would look at welshmans thread (WELSHMAN V BARCLAYS) and mine (NO MONEY V BARCLAYS)... i asked the same questions as you and got some answers.

 

Good luck.

[sazafraz]

Thanks for your post Paul, I looked at your defence and it is word for word the same as mine. Mine was also signed by Adrian Ruffhead! I'm getting my court bundle together, and have gone by jonni2bad's list so I hope that's ok. Will keep updating as and when...

[sazafraz]

Ok I've been sorting out my court bundle and have gathered together 3 copies of the following:

all correspondence between me an Barclays

Latest schedule of charges

bank statements

relevant case law summary

early day motion from house of parliament

dunlop v new garage

UTCCR1999

UCTA 1977

SOGA 1982

OFT statement summary

The banking code

Is it a penaly?

Kendall Freeman article.

Is this enough?

If more is needed please let me know

Thanks

Sarah.

[pauldean]

Sounds good to me! What is and where can i find "is it a penalty?" i haven't got that.

 

if you could post a link...

 

Deano.

[sazafraz]

If you go to "Jonni2bad v Halifax - off to court we go" thread it is listed under index of documents as:

(MM)--Case Law Reference: Alfred McAlpine Capital Projects Ltd v Tilebox Ltd (2005) EWHC 281 (TCC) - 2

Hope this helps!

Sarah.

[sazafraz]

When I send my AQ to the court and my £100, do I need to send anything else?

When do I send my 'bundle' to barclays, the court etc?

Sorry to sound dense , but slightly panicking as I want to get everything right.

Thankyou.

[Welshman]

I think that most people have these minor panic attacks but that's another reason why this site exists - to pour oil over troubled waters.

 

When I submitted my AQ and £100 fee, I also included another copy of my schedule including 8% Interest.

 

The Court will tell you what they need and when.

[sazafraz]

Thanks again Welsh. I do appreciate all the feedback that you (and others) have given.

Will post an update as and when

[sazafraz]

I have filled in a fee exemption form from the court, as I can't afford the £100. I am taking it to the court personally tomorrow. So I guess the next step is wait to hear from the court as to what they want me to send to them eg court bundle etc. and maybe a date for the hearing. We shall see.....

[sazafraz]

Today I posted my AQ and fee exemption form through the front door of the court. I will ring them on monday to make sure they've got it. It's getting exciting now !

[sazafraz]

Today I received a court date: 7th February 2007 at 10 am in Kendal County Court. It will be heard by District Judge Forrester. I have to give copies of my documents to the other parties no later than 14 days before the hearing. I have heard absolutely nothing from Barclays for ages, so I don't know what they're playing at. Is everything going according to plan do you think? Do I need to panic yet? Any advice would be good,

Thanks

Sarah.

[Michael Browne]

Perfectly normal. Although it seems a long way off, now would be a good time to research your court bundle, so at least you know what you might need. see here:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

[sazafraz]

Thanks Michael , yes I think I've got what I need. Do you think I'll hear from Barclays before the court date? Or will they just turn up on the day ?

[Michael Browne]

Do you think I'll hear from Barclays before the court date? Yes

 

Or will they just turn up on the day ? No

[sazafraz]

I have a slight concern. My court date is set for 7th feb 07, but i'm a student teacher and am expected to be on a school placement on that date. Should I let the school know that I can't make it, or should I leave it on the presumption that Barclays won't show or will contact me before that date?

Any thoughts or advice would be great

thanks

Sarah.

[Michael Browne]

Phone the court and ask their advice. It'll probably just mean a letter to the court explaining which dates you can be available. When's half term?

[gel1]

sarah been reading your case really interesting am at the point of aq not filled in yet will follow your progress hope it works out for you

[sazafraz]

Half term :Kids break up Fri 16th feb 07 and go back on Mon 26th feb.

Thanks again for your help Michael, and gel for your support - it all helps

Sarah.

[sazafraz]

I phoned the court and they gave me a date in March. They told me to phone Adrian Ruffhead(Barclays), to ask if he would mind me adjourning till then, and then let the court know if it was ok. So I thought no I'm not ringing Barclays to ask for any favours, I'll stick to my original date 7th Feb. Don't really want to give them any more time to prepare.

Do you think I should be contacting Barclays to ask them to make me an offer or should I leave it because I've not heard anything from them, and I have only communicated with them through the letters on this site? If I should be phoning them etc what should I say? any ideas?

[Spotted Dog]

Now you have a court date, it would seem that Barclays may settle before the last minute. I sent my court bundle to the Court and Barclays. Barclays have now contacted me.

 

Spotty