bearing v Barclays Partner Finance ***CASE WON*** probably !!

[bearing]

Slick,

 

I'm just starting on another battle, this time with Tesco on a CC and could do with some advice regarding Interest in restitution.

 

I've linked to the thread below...

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/223972-bearing-tesco-credit-card.html

[bearing]

Keep getting texts from BPF, this latest one tells me that they may begin legal proceedings to recover the outstanding balance.

 

I'm guessing that the irony is lost on them.

[slick132]

Hi Bearing,

 

I sincerely trust you have sent them a similar text !!

 

[bearing]

My Draft order for directions, could you give your opinion please slick.

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

 

b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

 

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

 

d) Copy of default notice served upon the Claimant;

 

e) Copies of decided cases and other legal materials to be relied upon;

 

If the claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

 

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

 

b) Whether such charge is accepted to be a penalty, and if not why not;

 

c) If such a charge is alleged to not be a penalty, all facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was not a penalty and thus reasonable;

 

d) A copy of the default notice served upon the Claimant, that is in the prescribed format laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237);

 

e) Any witness statements;

 

f) Copies of decided cases and other legal materials to be relied upon;

 

g) If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

i) A copy of the procedure(s) used for copying, storing and retrieving documents.

 

ii) A copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

iii) Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

iv) Copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[slick132]

Hi Bearing

 

The Draft Directions look fine up to The Defendant's requirement, part F.

 

After that, you refer to evidence about documents, etc. Can you confirm on what basis you seek the removal of adverse credit data. Is it because of a faulty DN.

[bearing]

Hi Bearing

 

The Draft Directions look fine up to The Defendant's requirement, part F.

 

After that, you refer to evidence about documents, etc. Can you confirm on what basis you seek the removal of adverse credit data. Is it because of a faulty DN.

 

Yes that is my reasoning behind it, I don't believe the DN they served me with is pursuant with the prescribed layout, will part g be okay with regards to the default?

 

What do I need to enter into section G, obviously I need to refer to the draft directions, but what else? do I need to enter the required length of the hearing in there?

Edited November 29, 2009 by bearing

[bearing]

Hi there, just preparing to print off my Draft Directions for my AQ and just need a bit of reassurance before I drop it into the court today.

 

The AQ is in reference to a case against Barclays Partner Finance, which can be found here: http://www.consumeractiongroup.co.uk/forum/barclays-bank/209039-bearing-barclays-partner-finance.html

 

 

This is my Draft Order

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

 

b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

 

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

 

d) Copy of default notice served upon the Claimant;

 

e) Copies of decided cases and other legal materials to be relied upon;

 

If the claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

 

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

 

b) Whether such charge is accepted to be a penalty, and if not why not;

 

c) If such a charge is alleged to not be a penalty, all facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was not a penalty and thus reasonable;

 

d) A copy of the default notice served upon the Claimant, that is in the prescribed format laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237);

 

e) Any witness statements;

 

f) Copies of decided cases and other legal materials to be relied upon;

 

g) If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

i) A copy of the procedure(s) used for copying, storing and retrieving documents.

 

ii) A copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

iii) Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

iv) Copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

And this is what I have done for Section G - Other information

 

 

N149 - Allocation Questionnaire

 

 

 

Section G - Other information

 

 

If the court is in agreement, it is respectfully suggested that special directions may be given as per the attached draft order.

 

The Claimant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend that it is incumbent upon it to disclose such information.

 

As the law relating to contractual penalties is long established, I believe the outstanding issues to be of fact. According, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

In the box for section G on the AQ itself I've put

 

Please find attached the following

 

a) Section G - Other information

b) Draft order for directions

 

 

 

Does this look okay?

Edited November 30, 2009 by bearing

[supasnooper]

Sorry it's a bit late but the directions look okay.

[bearing]

Sorry it's a bit late but the directions look okay.

 

 

Thanks supasnooper, I'm running late anyway...

 

Still probably beat Barclays to the deadline. :grin:

[bearing]

Barclays miss a second deadline.

 

Just contacted the local court, they haven't received the AQ from them, Notice sent out tomorrow giving them a further seven days.

 

Why are they unable to stick to strict deadlines?

[slick132]

Hi Bearing,

 

I assume you mean the court is writing to them giving a final 7 days to file the AQ.

 

Just want to check that YOU are not reminding Barclays.

[bearing]

Hi Bearing,

 

I assume you mean the court is writing to them giving a final 7 days to file the AQ.

 

Just want to check that YOU are not reminding Barclays.

 

If only... :grin:

[bearing]

Just had the Notice of Allocation.

 

Seems the district judge is happy with my AQ

 

The defendant shall etc.

 

1) Identify under which contractual provision such charge was made;

2) Whether such charge is accepted to be a penalty, and if not why not;

3) If such a charge is alleged to not be a penalty, all facts and matters intended to be relied upon following the basis upon which the charge was calculated;

4) A list of all cases to be relied upon;

5) Any witness statements;

6) A copy of the default notice served upon the claimant;

[bearing]

Slick, am I okay to send my bundles early?

 

Deadline is the end of January, but my thoughts are that if I send them next week, the sooner they'll capitulate.

[slick132]

I see what you are getting at but I think you are better to File and Serve the Bundle just before the deadline.

 

This leaves Barclays in the dark about what your next move is, until you make it. The less time they have to prepare, the better.

 

Do they have the same deadline to File and Serve their Bundle, or is it later than yours.

[bearing]

My mistake Slick, mine has to be in on the 11th. There's is due end of Jan, guess that makes the decision for me.

[slick132]

So your Bundle needs to go in next week. You have to watch these deadlines v carefully - your case could be thrown out for missing one.

 

Save on postage by hand-delivering to the court.

 

And take the Barclays copy to a branch with the package addressed to HQ in London. Get them to sign and date stamp a receipt for it.

 

[bearing]

So your Bundle needs to go in next week. You have to watch these deadlines v carefully - your case could be thrown out for missing one.

 

Save on postage by hand-delivering to the court.

 

And take the Barclays copy to a branch with the package addressed to HQ in London. Get them to sign and date stamp a receipt for it.

 

 

Everything is hand delivered to the court, hadn't thought about the Barclays Branch idea though, cheers for that.

 

I may post up a list of everything in my bundle, if I do could you just give it the once over?

[bearing]

Could you move this to the 'Won' section please slick, finally got it all sorted and I'm happy with the outcome.

 

Afraid I can't say any more apart from thanks to all those who have helped me through this.

 

Expect a donation once the money has cleared.

[slick132]

Hi Bearing and CONGRATULATIONS on what must be your WIN !!

 

Although I assume you will not comment further due to reasons of confidentiality. Well done for seeing it through to the end.

 

Your donation will be greatly appreciated and will assist others behind you.

 

Thread title changed accordingly.

[suzieblooz]

Congratulations - your perseverence paid off, so happy for you!

[noomill060]

"When you have them by the b@lls, their hearts and minds will follow"

 

Well done for sticking with this.