Charlick VS Barclaycard CPR31.16

[Charlick]

Hi Everyone, Just back from court, TOOK bc FOR DISCLOSUR UNDER THE cpr31.16 sorry but I lost the disclosure case. The judge informed me that as I already knew that BC had no intensions in supplying me with a true signed copy of my agreement and that I also knew that the reason was because, as he agreed, that they probably did'nt have one, he could not order disclosure unless I can prove to the courts that there have been some irregularities within the agreement. He then asked me what I would do if BC could not produce a signed agreement, I said I would claim back all the monies I had paid on the card plus interrest and charges. He then told me that I should go down that route. He awarded BC's solicitors cost of £1219 but told me to add this amount to the claim when writing to BC. The judge was very fair and sympathetic towards me but advised me that I had gone down the wrong route. I should after all this time just of written to BC explaining that I believe this agreement to be none existant and I wanted all my money back including interrest and charges. I feel sick at the moment but then again I do believe that BC do not hold a copy of my signature. Their solicitor contested the disclosure order under the following rules. That I had not given them a good enough reason as to why I wanted them to disclose. That my CPR31.16 paperwork was taken from the internet with all the same reasons on it and not mine. That I had never informed BC that I believe there to be a problem with the agreement, and that I had never asked BC to refund any charges or interrest on this account. I would like everone to know what I went through today and to be very careful when using the cpr31.16 rule as the judge has very limited power when ordering one.

[Charlick]

Oh I forgot. The Judge explained to me that if I am asking for a copy of my agreement because I lost or misplaced the original then I must know that it excisted and therefore agreed to the terms and conditions of obtaining the card. However if I am asking for the copy knowing that I had never recieved one in the first place then BC had levied charges and interrest on a none existant agreement. I could therefore reclaim Interest and charges but not (payments made on goods) for the last six years. I will try and update this message as I go on reading my notes from court.

[e_inspired]

Sorry to hear about this Charlick but chin up, chest out and continue the good fight you will win in the end, also thanks for sharing.

 

I am about to deal with BC and your insights will prove extremely useful.

[Charlick]

Hi, I have been reading through my notes and come across an interesting conversation the judge had with the barrister. The judge asked the barrister why they did'nt send all their court papers to me 24 hours before the hearing, the barrister replied that they are so busy dealing with all the CPR31.16 requests that it was sent out with many others. I think BC are making a stand knowing that the courts have limited power as the judge informed myself. I think the best way to handle getting your agreement or at least finding out if your cc company has a copy, is to send them an sar and £10. Remember to also go for all your charges and interest back first for the last six years, this will also give you a clue as to whether they have your agreement or not. Be very careful when using the CPR31.16 as I found out today.

[the_shadow]

Sorry it went this way Charlick, however if I had known sooner that you were facing them in the court today I could possibly have provided you with valuable info on their defence to your application.

 

S.

[Charlick]

Thanks Shadow, The CPR31.16 leaves you in a funny situation and I will try and explain. If you believe that the company has acted in an unlawful manner then the judge says take them to court for that reason. If you believe that the company has levied excessive interest and unlawful charges on your account he says take them to court for that reason. If you believe that the credit agreement may have been inproperly executed he says in what way, that moves you back to the first two reasons. I hope you can understand that no matter what reason you give the judge it all boils down to us the public trying to get our credit agreements unenforceble which he says he does not have the power to do. I hope you can understand what I am trying to get across, but it is hard when writing it. All I can advise people at this time is be very careful and think about which is the best route to go down before you go to court using the CPR31.16. Plus the judge told me that BC had fulfilled all their obligations to me under section 77/78 of the consumer credit act 1974. When I asked the judge am I not entitled to see my credit agreement he replied, do you have a good reason for me to order BC to disclose. Which leads you back to the first two reasons.

[rebel11]

Lots of Cagger's are finding that BC aren't responding to SAR, so Cagger's are having to contact the FOS.

[caro]

Sorry to hear this Charlick, but I agree it demonstrates how important it is to be very clear about any court case you take on, not just one regarding CPR31.16.

 

I'm very surprised the judge told you to claim back all you'd paid to BC and even the costs he himself awarded to them.

[slick132]

Hi Charlick and sorry to hear that this went against you.

 

How on earth can you show that the agreement may not comply with the regs, or contain irregularities, if the document is not ordered to be produced.

 

The judge was at least lenient about costs, which could have been higher.

 

The answer, in your case, is to stop paying and to let THEM take YOU to court.

 

Reclaim all charges, plus interest at their contractual rate.

 

I agree with Caro - you can't reclaim everything you have paid them.

[the_shadow]

Thanks Shadow, The CPR31.16 leaves you in a funny situation and I will try and explain. If you believe that the company has acted in an unlawful manner then the judge says take them to court for that reason. If you believe that the company has levied excessive interest and unlawful charges on your account he says take them to court for that reason. If you believe that the credit agreement may have been inproperly executed he says in what way, that moves you back to the first two reasons. I hope you can understand that no matter what reason you give the judge it all boils down to us the public trying to get our credit agreements unenforceble which he says he does not have the power to do. I hope you can understand what I am trying to get across, but it is hard when writing it. All I can advise people at this time is be very careful and think about which is the best route to go down before you go to court using the CPR31.16. Plus the judge told me that BC had fulfilled all their obligations to me under section 77/78 of the consumer credit act 1974. When I asked the judge am I not entitled to see my credit agreement he replied, do you have a good reason for me to order BC to disclose. Which leads you back to the first two reasons.

 

Hi Charlick, I understand what your saying but its up to you to show that without the document you have no means of litigation.

 

Imho the way to approach it is to specifically mention the 4 pre-action protocol hurdles that are required to be met as per the key case law in [Black and others v Sumitomo] and how they are met, this is done with the aid of quoting paragraphs from [Black and others v Sumitomo and others(2001) EWCA], [ Hands v Morrison Construction Services Ltd] and [ SES Contracting Ltd and others v UK Coal Plc and others(2007)] specifically paragraphs that mention costs due to non-conformity to CPR, inability to litigate without information before hand, level playing field between claimants, all things that the judge seems to have pointed out you failed to meet.

 

Its also obviously a help to have more than one "issue" with the agreement, i.e. PPI mis-selling as well as unfair/unexecuted/unenforceable agreement.

 

and finally that being said... the judge lottery exists for applications just like it does for trials

 

Like I said, sorry you lost but if we had had more warning I think I could have at least pointed you in the right direction to putting a stronger case.

 

S.

[angel_1]

hiya Charlick

 

like others thanks for sharing your knowledge and experience

 

take care and laters and have subbed to learn even more and good luck for the future

 

angel x

[jason_mnm]

what about the new case law 'RBS Vs Phillip Mcgurmick' does that mean whether a bank can provide CCA or not, we have to pay them.. and we cannot claim charges and interest? I got around £72000 on different cards, most of them I took before 2007.. I was going to ask for CCA, now it seems all going down to drain... what u guys think...

[slick132]

Hi Jason, See my reply about the McGuffick case on your own thread.

 

The CCA request remains useful and important.

 

Reclaiming penalty charges plus interest on CCard a/c's is still a valid path.

[middenmess]

what about the new case law 'RBS Vs Phillip Mcgurmick' does that mean whether a bank can provide CCA or not, we have to pay them.. and we cannot claim charges and interest? I got around £72000 on different cards, most of them I took before 2007.. I was going to ask for CCA, now it seems all going down to drain... what u guys think...

 

McGuffick will be appealed I believe.

 

I'd carry on with CCA and/or SAR and disregard the McGuffick fiasco.

 

Come back for advice when you have the CAA etc.

[jason_mnm]

I read at Cartel Review that they are not going to appeal the Mcguffick case.. by the bay thank u Slick u been great to advice me always...

[jason_mnm]

by the by Slick u been great to advise me always.. sorry again for my typing mistake earlier...