Jump to content


MrPromiscous V Barclays Bank


mrpromiscous
style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 6253 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

  • Replies 74
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Yes, thats the usual Barclays defence. The only difference to the standard is the paragraph regarding the Limitation Act.

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

Link to post
Share on other sites

Sorry, crossed posts!

 

No probs;)

  • Confused 1

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

Link to post
Share on other sites

Mr P

 

THe defendant provided the statement i wanted and it arrived this AM for me and yesterday for the court, so i went, the judge was cool and although it was kind of abbortive it was useful experiecne talking baout the law, something which is new to me.

 

GLenn

Kick the shAbbey Habit

 

Where were you? Next time please

 

 

Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless

Abbey 2nd claim, two Accs - claim issued 30-03-07

Barclaycard - Settled cheque received

Egg 2 accounts ID sent 29/07

Co-op Claim issued 30-03-07

GE Capital (Store Cards) ICO says theyve been naughty

MBNA - Settled in Full

GE Capital (1st National) Settled

Lombard Bank - SAR sent 16.02.07

MBNA are not your friends, they will settle but you need to make sure its on your terms -read here

Glenn Vs MBNA

Link to post
Share on other sites

Gary sorry to bother you again but do you think I should add this stuff listed at the bottom of your modified Barclays statement of truth at this stage or hold fire on this stuff until I submit my court bundle in June :

 

Documents attached in support of this statement

  • Office of Fair Trading report, April 2006
  • House of commons early day motion, May 2006
  • Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day.
  • BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission
  • Australian Default charges report, Nicole Rich - http://www.clcv.net.au/downloads/Med...20Report .pdf
  • Transcript of telephone communication with Lloyds TSB 'personal banking' department.
  • Data Protection Act Subject Access Request for evidence of manual intervention
  • Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.
  • All pre-litigation correspondance between the parties

Link to post
Share on other sites

  • 3 weeks later...

Was just wondering what anyone elses opinion was on whether the fact that Barclays must subit a counter claim in a 2 weeks time which is 4 months before our court date means that they will settle by this date or submit the counter claim and wait till nearer the June court date. Is this statement of truth and defendant counter claim the usual progress in these cases ??? this is the first time I have been taken this far so im just curious to know......

 

MrP

Link to post
Share on other sites

i was wondering the same thing.i got my court date today for the 16th april but have to present my bundle within the next 14 days as per the draft order then barclays have to present theirs within 14 days after that.

have they ever done this?

mine's going in first thing monday morning.see what happens after that i suppose.

good luck with yours.

Link to post
Share on other sites

Bong I sent an up to date schedule and the statement of truth below :

 

23rd January 2007

RE : Claim Number 6QZ71041

MrPromiscous -V- Barclays Bank Plc

STATEMENT OF EVIDENCE

- The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges imposed because of and relating directly to breaches of contract, both explicit and implied, on the part of the claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.

 

- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. The claimant holds every charge in question, to be punitive in nature, and wholly disproportionate.

 

- The law states that a contractual party cannot profit from a breach and the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848.

 

- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.

 

- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 - “the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach” and; “The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

 

- Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as;

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

- It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause.

 

- In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.

 

- On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

- In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the banks’ charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit return charges were likely to be penalties at law.

 

- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65.

 

- The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

- For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

- It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £30 by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance.

 

- The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.

 

- The claimant cites the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the UTCCR’s.

 

- On 22nd May 2006, the house of commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

- Further, under the UTCCR:

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

 

- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

- The cost of Barclays paid referral charges have increased during the period in which my account has been held, I was given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

- As pleaded above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties. The Claimant will vehemently refute any contention that they are legitimate contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant believes any such contention to be an attempt by the Defendant to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.

 

- The Claimant refers to the statement from the Office of Fair Trading (April 2006). With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

 

- However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

- As set out above, the Defendant’s charges cannot be considered to be liquidated damages, nor contractual service charges. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

 

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

 

Signed,

I didnt send the list stated below because I decided this would be included with the bundle as and when required :

Documents attached in support of this statement

Office of Fair Trading report, April 2006

House of commons early day motion, May 2006

Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same day

BBC commission conclusion - BBC NEWS | Business | The Money Programme bank commission

Australian Default charges report, Nicole Rich -

http://www.clcv.net.au/downloads/Med...20Report .pdf

Transcript of telephone communication with Lloyds TSB 'personal banking' department.

Data Protection Act Subject Access Request for evidence of manual intervention

Transcript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.

All pre-litigation correspondence between the parties

 

MrP

Link to post
Share on other sites

mr p check your statement quick.

where you mention barclays paid referral increasing , you have stated you were given a chance to negotiate.this means you agreed to their increase which could potentially harm your case.

is this what is in your statement or is it just a mistake on this website.

please have a look.

Link to post
Share on other sites

yes, the bit is here - it needs to have a "not" inserted

 

 

- The cost of Barclays paid referral charges have increased during the period in which my account has been held, I was not given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

maybe retype it, let the court know there was a typing error and submit an amended copy aswell as send a new copy to the bank with a covering letter asking them to disregard the first.

Link to post
Share on other sites

The cost of Barclays paid referral charges have increased during the period in which my account has been held, I was not given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

The emphasis on the concluding part of the sentece highlighted above I think puts the first into context. If Barclays were to pick up on this in their counter claim then they really would be clutching at straws because it is such a glaring typo. If need be I will address it should it be part of their counter claim but as for now i'll let it run because my deadline has already passed and Barclays only have 10 days to enter theirs so I dont want to confuse the situation or give them an excuse to stall over getting it entered to be honest.

MrP

 

 

Link to post
Share on other sites

i don't blame you mr p. they are probably so snowed under they won't even notice . i just thought i'd point it out because i wasn't sure if you'd sent it in yet.

i should have been a proof reader lol.

good luck anyway , hope you get paid out soon.

Link to post
Share on other sites

OK guys im working nights at the moment so i've just got up and theres a message on my phone from a David Starling from Barclays Investigations requesting me to contact him urgently. Barclays had to submit their counter defence by the 16th Feb so im assuming its related to this and possibly an offer to settle would this sound right ??? Before I call him back I wanted to ask a couple of questions relating to settlements...

1. Are Barclays required to pay the interest on my claim up untill today or only up until the claim was submitted to the courts.

2. Since the claim was initially started in October more charges were applied to my account and I have added these to my Barclays spreadsheet each time they have occurred so are they oblliged to pay these or will they only pay the original amount minus the subsequent charges.

3. If they want to settle and they must do so by the 16th then what method of payments are there avaliable to me so that the money is in my account before the 16th so I can inform the court full settlement has been made.

 

Any thoughts and suggestions are welcome people because ideally I want to phone him this afternoon !

 

MrP

Link to post
Share on other sites

1.They are required to pay the interest on my claim up untill today

2. Thhey are only required to pay charges up to the date of filing, ie the total amount of your claim, any after that will be subject to 1 2nd claim.

3. If they want to they can tranfer money into your a/c before I've finshed typing this.

Link to post
Share on other sites

Excellent, well done Mr P!:D Don't consider it settled untill the moneys in your account though - after which please make sure that you inform the court. Here's a letter you can use if you like - Claim settled letter

 

So what did he say on the phone by the way?

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

Link to post
Share on other sites

Mr P

 

I would make it a condition of the settlement that you have a cheque in 7 days.

 

Saves worrying about when its going to turn up, actually since its the 12th today ask them for it before the 16th and then you can inform the courts the claim is settled.

 

In case you think im being daft, i told barclays they had seven days otherwise all bets were off, i had the cheque in two.

 

Edit : just read michales notes, if you have an open account with them and want it paid in there, hes right, they can transfer it at will.

 

JMHO

 

Glenn

Kick the shAbbey Habit

 

Where were you? Next time please

 

 

Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless

Abbey 2nd claim, two Accs - claim issued 30-03-07

Barclaycard - Settled cheque received

Egg 2 accounts ID sent 29/07

Co-op Claim issued 30-03-07

GE Capital (Store Cards) ICO says theyve been naughty

MBNA - Settled in Full

GE Capital (1st National) Settled

Lombard Bank - SAR sent 16.02.07

MBNA are not your friends, they will settle but you need to make sure its on your terms -read here

Glenn Vs MBNA

Link to post
Share on other sites

Agreed give them 7 days and tell them that you will be using your right of appropriation and require settlement by cheque.

Inform the court of discontinuence only once funds have cleared.

You are not obliged to accept any conditions and by rejecting these will not have an effect on the claim nor settlement.

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...