Fingers Vs Barclaycard

[Fingers60]

Ok, this may or may not help you.. hope it does but remember this HASNT been tested in court and you need to put your take on the argument.

 

Hope this helps..

 

S.

 

you are a legend ty !

 

F

[the_shadow]

you are a legend ty !

 

F

 

Not a problem happy to help...

 

S.

[Fingers60]

hey shadow

 

yes barclays have apointed same firm as you

 

they have requested more time to put a defence together and will be trying block the disclosure , they have requested a 2 hr hearing

 

guess they will use the same defence as in your case

 

Fingers

[the_shadow]

hey shadow

 

yes barclays have apointed same firm as you

 

they have requested more time to put a defence together and will be trying block the disclosure , they have requested a 2 hr hearing

 

guess they will use the same defence as in your case

 

Fingers

 

Hmm, had an idea but its not applicable in this case... just a case of wait and see a) What the barclays witness statement will say and b) the skeleton argument from the solicitors.

 

Witness statement came around 10-12 days prior to the hearing and the skeleton argument was sent the day before it had to. Are you in email contact with the solicitors?

 

S.

[Fingers60]

Hmm, had an idea but its not applicable in this case... just a case of wait and see a) What the barclays witness statement will say and b) the skeleton argument from the solicitors.

 

Witness statement came around 10-12 days prior to the hearing and the skeleton argument was sent the day before it had to. Are you in email contact with the solicitors?

 

S.

 

Hi

 

Yes Barclays sent me 2 lots of T & Cs ..but no copy of a CCA or application.

 

I guess they will try and say they have fulfilled their obigations by sending the T & Cs.

 

I have Barclays email address, shoudl I be contacting them and discussing any aspect of this ?

 

F

[the_shadow]

Hi

 

Yes Barclays sent me 2 lots of T & Cs ..but no copy of a CCA or application.

 

I guess they will try and say they have fulfilled their obigations by sending the T & Cs.

 

I have Barclays email address, shoudl I be contacting them and discussing any aspect of this ?

 

F

 

Nah, if Barclays has your email address then the solicitors will use it to serve all documents followed up by postal special delivery letters

 

In my case the account was from 1999, the witness statement claimed it was unreasonable for them to search for stuff that old and that they wouldnt supply anything... shame 2 months prior to that statement they sent me the 10 yr old terms and conditions

 

S.

[RoadToRecovery]

Sorry for butting in guys, I am following this thread with interest as I will end up at this stage sometime in the future.

 

How can a judge possibly accept that as a defense for non compliance with a CCA request? If a judge were to accept the BC defense surely it would make a total mockery of the whole consumer credit act?

 

Good look with the ongoing case, it certainly reads like you are getting the run around at the moment.

[the_shadow]

Sorry for butting in guys, I am following this thread with interest as I will end up at this stage sometime in the future.

 

How can a judge possibly accept that as a defense for non compliance with a CCA request? If a judge were to accept the BC defense surely it would make a total mockery of the whole consumer credit act?

 

Good look with the ongoing case, it certainly reads like you are getting the run around at the moment.

 

This is not a compliance with s78 issue, its a CPR 31.16 issue, disclosure of documents prior to court action (pre-action-protocol)

 

S.

[RoadToRecovery]

Apols.

 

 

It still seems crazy that a judge could even consider accepting the bc argument as a defence for not disclosing documents:eek:

[Fingers60]

This is not a compliance with s78 issue, its a CPR 31.16 issue, disclosure of documents prior to court action (pre-action-protocol)

 

S.

 

Hi S

 

Mines 2001. So could the judge agree and say sry paperwork is too old and unreasonable to ask for it ? What do you do then?

 

F

[the_shadow]

Hi S

 

Mines 2001. So could the judge agree and say sry paperwork is too old and unreasonable to ask for it ? What do you do then?

 

F

 

Doubtful he'll state that, Barclays might try but.... ;-)

 

Until you see there witness statement its hard to know where to pick holes. Point 4 the courts discretion is where you'll need to concentrate on and ensure you can show the judge its right to give you disclosure.

 

This little snip out from my clip library might help on the age thing if they mention it in their witness statement:-

…….the need to preserve statutory documents :

 

 

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a Credit Card agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally and most importantly in my view, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

S.

[Fingers60]

An update

 

I have sent a 4 page complaint to the county court over their months of maladministration. Will let you know the outcome.

 

Ok so barclays were granted an ajournment on the basis that the court did not give them enough notice and on the basis that "20 mins was not a long enough hearing to discuss the arguements & priciples involved in me seeking disclosure via n244".

 

This of course is a delaying tactic and they have won as the new court date is in mid march as they pushed for a 2 hour hearing.

 

However, another cagger has provided me with Barclays lawyers skeleton arguments to fight my disclosure. Now we are talking about the same law firm.

 

So...is there an argument that i can go back to the court and say they dont need time to prepare as they are fully aware of the arguments etc as they have fought the exact same disclosure agaisnt another barclays customer on their credit card ?? any thoughts ?

 

Also should i be pushing for a shorter hearing time than 2 hours ?

 

Thoughts guys ? Another 5 months is a long time to wait..started tis process for discsloure in march !

 

Best

 

Fingers

[foolishgirl]

 

However, another cagger has provided me with Barclays lawyers skeleton arguments to fight my disclosure. Now we are talking about the same law firm.

 

So...is there an argument that i can go back to the court and say they dont need time to prepare as they are fully aware of the arguments etc as they have fought the exact same disclosure agaisnt another barclays customer on their credit card ?? any thoughts ?

 

 

Don't think you'd win that one Fingers - the court (& Barclays) would just maintain that every case has to be assessed on its own merits & how do you or Barclays know at this point that the arguments would be the same?

 

Hand on heart, you can't definitely say they would be until you have heard them & they may change or add to their previous case presentation.

 

So unfortunately I think you have a long wait. Patience is the first requisite of seeking justice.

[the_shadow]

Don't think you'd win that one Fingers - the court (& Barclays) would just maintain that every case has to be assessed on its own merits & how do you or Barclays know at this point that the arguments would be the same?

 

Hand on heart, you can't definitely say they would be until you have heard them & they may change or add to their previous case presentation.

 

So unfortunately I think you have a long wait. Patience is the first requisite of seeking justice.

 

Agree 100% with this, whilst its annoying that you know they are playing for time perhaps even waiting for the test cases to be heard? my info will not help push things along.

 

Each case has to be taken on its own merits.

 

S.

[RoadToRecovery]

Agree 100% with this, whilst its annoying that you know they are playing for time perhaps even waiting for the test cases to be heard?

S.

 

When you refer to test cases, is this the collection of unenforceable agreement cases they are testing?

[the_shadow]

When you refer to test cases, is this the collection of unenforceable agreement cases they are testing?

 

Yes

 

S.

[Fingers60]

Thanks for your input guys appreciated as always!

 

F

[Gallahad]

subbing

[Fingers60]

No news on my Barclaycard case yet.

 

Just wondered if you could drop by my Lloyds thread and let me have a view on my last post?

 

Cheers

 

F

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/192730-lloyds-cca.html#post2573519

[Fingers60]

Hi Guys

 

Just a wee update, so I complained about my local county court to their area directors office. In the end I got an apology for their maladminsitration and a small financial settlement (i Guess they didnt want me taking the court to court !)

 

anyways...

 

so as you know i initially went down the s77 requests and then cpr 31.16, to date barclays have only provided t & cs etc

 

my 2 hr slot with barclays comes up in feb under PTs cpr route (n244 application etc), I have now engaged with a firm of solicitors to act on my behalf expec in view of the recent test cases etc

 

my question really for slick and shadow (being very well informed)...how do the recent test cases effect my application to the court as a claimant?

i a still paying barclayscard min payents and have not defaulted...i saw a comment from slick on another thread saying that the manchester test cases would have a negative effect on claimants etc

 

any ideas / comments?

 

cheers

 

Fingers

[the_shadow]

Hi Fingers, glad to see you got something from the complaint.

 

As to the case in hand...

 

It is true that s77/78 has now been watered down in parts due to the recent rulings, they can provide reconstructions and dont have to tell you that this is a reconstruction it would just be a nicety.

 

BUT the judge also stated that where terms have been varied then the original plus all variations must be shown to the debtor, so during its lifetime its not only changed from MSDW to Goldfish to Barclaycard but its also had the APR/possibly credit limit changed etc and these changes must be shown as part of the s78 response. I think that'll be key to your case, they have responded with terms and conditions BUT in the "assumed facts" of the Barclays case in Manchester the judge said this wasnt enough to cover a s78 request and spelt out what was required.

 

I think you need to dig through it and pick out the specific comments from the judge about barclays s78 responses and possibly add them to a witness statement and file with both parties asap if they strengthen your case. Or at least query with your solicitors

 

Also the OFT's draft guidance on what a proper response to a s77/8 request constitutes is due out end of the month I think, realise timescales are tight.

 

Slicks comment I'm sure was in relation to asking a court to grant unenforceablity on the back of a failed s78 response... thats not your case, you are asking for disclosure due to Barclays sending terms and conditions only. If you can show as per the original thread that there is a valid reason you need to see the original and not a truecopy original then thats whats going to win the day (mis-sold PPI etc)

 

If you want to discontinue then your solicitors will need to negotiate an exit with Barclays so you dont get hit with wasted costs and only have to cover your solicitors fee's. The judges comments re: Barclays responses in the ruling may help you do that if thats your wish

 

as ever only my opinions, Slick will be along shortly I'm sure ;-)

 

Manchester ruling thread here... its a biggy

and OFT letter to judge for case attached

 

S.

OFT_Draft_Guidance.pdf

Edited January 16, 2010 by the_shadow

[slick132]

Just to confirm what The Shadow has already suggested, my comments on other threads about the Manchester rulings by Judge Waksman were that claimants seeking to have their debts declared unenforceable by taking the bank to court were going to have a harder job succeeding in court. Generally, you should avoid taking the bank to court re enforceability.

 

Little has changed where the bank is the claimant taking the debtor to court - the bank should need a properly executed credit agreement to win and should fail to win a claim without it.

 

In your case here you are, of course, the Claimant but your case is for a ruling under CPR31.16 seeking documents which is very different to the cases tried in Manchester.

[davefirewalker]

Just to confirm what The Shadow has already suggested, my comments on other threads about the Manchester rulings by Judge Waksman were that claimants seeking to have their debts declared unenforceable by taking the bank to court were going to have a harder job succeeding in court. Generally, you should avoid taking the bank to court re enforceability.

 

 

What would happen as in my case where I have already had a photocopy of "the agreement" which I remember signing, and it sucks badly NO prescribed terms and no reference to terms overleaf, only a reference to terms and conditions supplied

 

I would so love to stick it to them ...in a big way

 

but as always could not afford to fund a BIG battle....I could afford a county court case, but if it progressed higher I would have to bale out.

 

that is something I wouldnt want to do as it weakens everybody else case

 

rgds

 

dave

[slick132]

Hi DaveFW,

 

I think the answer must be that you wait for the bank to initiate court action which you should successfully defend, in the absence of a properly executed credit agreement.

 

This is, of course, subject to your case being heard by a judge who is au-fait with the CCA 1974. Humbleman's case shows what CAN happen if the judge is not sufficiently aware of the legislation.

 

After the Manchester rulings, you would be unwise to go to court as the Claimant against the Defendant bank. You would lose in the County Court and most likely get costs against you.

[sarnie2109]

Good luck fingers, i will look forward to reading your updates.