Barclays - WON - but reneged on agreement to pay. Suggestions Please?

[Bartok]

I made a claim against Barclays for unfair bank charges which concluded amicably back in 2007 where Barclays agreed to pay £2000 without judgment on the day. (Below).

 

 

After making the agreement, Barclays has reneged on it and I filed a fresh new claim. That had been stayed until recently, but I think the grounds are now void due to a House of Lords ruling.

 

How does this leave me?

 

Bearing in mind Barclays agreed to settle before the House of Lords ruling.

 

Do I change my particulars? or just file copies of my letters on the claim at court and have the Judge make up his own mind?

 

Suggestions how I should proceed?

[dad]

Bartok,

 

You probably need to speak to a solicitor. But you entered a contract with Barclays to pay a sum to you in consideration of you ceasing your action.

 

They have now breached that contract so you can bring a fresh action for breach of contract. So the supreme Court judgment has no effect on your 'new' claim.

 

HTH

 

Dad

[Bartok]

I think you could well be right, its my line of thought.

 

So I think I should just attend the new hearing and say to the Judge this is now a claim for breach of contract and present the original N24 (document above).

 

The fees of a solicitor could negate the financial return I would get from Barclays. Atrtending as litigant in person - that is, I go in without legal representation, the Judge should advocate.

 

Anyone disagree?

[dad]

Bartok,

 

You cannot just spring this on the Court and the other side on the day. That is pretty much guaranteed to get you shown the door with nothing and possibly a costs order against you for being unreasonable. There are two ways to proceed:

 

1. Apply to amend the particulars of claim in your current proceedings on an N244; or

 

2. Discontinue the current bank charges claim and reissue a new claim for breach of contract.

 

Either way you will need new particulars of claim and a witness statement setting out how the contract came into existence and how Barclays failed to pay up.

 

What does the order granting the stay actually say?

 

Dad

[noomill060]

If you withdrew your claim on the strength if an offer to settle and they subsequently didnt, this is called "estopple", you just go back to court and have the same claim reinstated and claim damages due to estopple.

 

You already had judgement, WTF did you start a new claim for the same charges?

[noomill060]

Have you contacted Barclays to let them know you are still waiting?

[Bartok]

Im not sure how a costs order would work because this is in the small claims track. When I asked for one, the Judge said something civil procedure rules.

 

The order granting the stay (which has since been lifted) says:

 

"These proceeddings remain stayed until 21 days after judgement is handed down in a test case."

 

From what you say, it looks like an N244 is the way to go. yes?

[Bartok]

If you withdrew your claim on the strength if an offer to settle and they subsequently didnt, this is called "estopple", you just go back to court and have the same claim reinstated and claim damages due to estopple.

 

You already had judgement, WTF did you start a new claim for the same charges?

 

Estopple, interesting....

 

I ddint get a judgement, the claim was discontinued because the parties reached agreement.

[Bartok]

Have you contacted Barclays to let them know you are still waiting?

 

Yes, since June 2007, several times now, had no reply heard nothing. They seems to be defending the new claim as if its a separate claim and ignoring they agreed to settle on a previous claim.

 

It might be down to their policy of defending multiple claims en-masse using a standard set of facts.

[noomill060]

They were probably waiting for you to make application based on estopple. When you just started a claim for the same charges they realised you didnt know what you were doing and decided it was safe to ignore you and let you make a muppet of yourself.

[Bartok]

Hmm, thanks for that.

 

I think changing the particulars on an N244 to one of estoppel would be the way to go, yes?

 

Am I right in thinking the Judge advocates for litigants in person in a small claims, and would say there is a case of estoppel?

[noomill060]

Probably best to apply for the erroneous second claim to be struck out, then go for a claim based on damages due to estopple.

 

But dont do anything until we get some input from other caggers.

 

Maybe even see a solicitor.

[noomill060]

Hmm, thanks for that.

 

I think changing the particulars on an N244 to one of estoppel would be the way to go, yes?

 

Am I right in thinking the Judge advocates for litigants in person in a small claims, and would say there is a case of estoppel?

 

 

 

No No NO!! Judges do NOT act as advocates for anyone EVER.

 

That is not their role.

 

Its up to you to make your own case.

[maroondevo52]

Thread moved to Barclays Forum.

[Bartok]

No No NO!! Judges do NOT act as advocates for anyone EVER.

 

That is not their role.

 

Its up to you to make your own case.

 

Ok ok,

 

You seem more informed than me, an N244 it is then, what would be your way forward?

 

Can you suggest me the text of the revised particulars or a template from somewhere.

[noomill060]

Sorry, I just want you to get it right.

 

You'll get all the help you need here

Edited February 1, 2010 by noomill060

[Bartok]

Your help is really appreciated.

 

Do you know a template or have a suggested comment to put on an N244?

[slick132]

Hi Bartok,

 

Do you have a letter or email from Barclays back in June 2007 confirming their wish to settle your claim as a GOGW in the sum of £xxx. This is key to your success.

 

I assume you haven't approached Barclays about this recently due to the case being Stayed.

 

I agree that you should discontinue the current proceedings by writing to the court and copy to Barclays quoting the Claim No.

 

Given your failure to pursue Barclays properly at the time, I think you should write to them (their Litigation Team who presumably promised to settle) giving them 14 days to settle in full, including s.69 Statutory Interest and all court fees to date. Include an updated SOC showing interest to date and a revised settlement figure of £xxx with the court fees added on.

 

Confirm that, if they fail to settle within 14 days, you will start fresh proceedings on the basis of Estoppel without further notice.

 

I would claim the court fees incurred on the 2nd claim even though it was conducted wrongly. If Barclays had settled when they agreed to, you would not have been put to this trouble and expense.

 

Reade up here on Estoppel - Estoppel in English law - Wikipedia, the free encyclopedia

[noomill060]

Estoppel is basically getting you to withdraw your action on the basis of a promise, then failing to honour that promise.

 

It is evidence of bad faith on their part.

 

Judges dont like promises made in bad faith.

 

But hey, they will have to pay you an extra 8% per annum on that £2000 they owe you!

 

(Myself, I'd claim the s.69 interest since June 2007 at the contractual rate and really p on their bonfire!)

[dad]

Bartok,

 

Quite a lot of advice for you to consider. I thought I might summarise everything for you as it is your claim and you have to make the decision.

 

Essentially two causes of action have been identified - Estoppel and Contract. They are alternantives and nothing would stop you pleading them both in the alternative.

 

Remember you are the Claimant and it is up to you to prove your case against the bank. Looking at each cause of action:

 

1. Contract. To make good your claim you have to establish that a contract was made and the bank broke it and you have done what you can to mitigate any losses.

 

i. To establish that a contract was made you have to prove the three elements of a contract: offer, acceptance and consideration.

 

a. Offer. This is the offer by the bank that they will pay you for you to discontinue your action. (A letter/email from barclays setting out the terms would suffice);

 

b. Acceptance. You have to show that you accepted the offer. A letter/stoke email back saying you accept. (If you do not have such an email I would cite the N24 in post 1 as evidence of acceptance ie 'Agreed terms';

 

c. Consideration. This is the £2,000. If in the letter in a above this set out that is enough.

 

ii. Next you have to show that you performed your part of the contract ie discontinued you action. Again the N24 evidences that.

 

iii. Finally you have to show that they did not pay the consideration. The various letteres would be evidence of this.

 

iv. Mitigation of loss only applies where you are seeking damages for consequential losses. As all you are seeking is the payment of the consideration this does not apply.

 

2. Estoppel: (Please read the link provided above in post 18 ). My view is you would have a claim for an estoppel by representation. You have to prove: A representation was made, you acted on it to your detriment and it would be it would be "unconscionable" for the bank not to pay.

 

i. Prove a representation was made. The letter required in 1.i.a above would be sufficient.

 

ii. You need to show you acted to your detriment. The N24 would be evidence of this, in that you gave up your claim.

 

iii. Finally you have to show that it would be unconscionable for the bank to be allowed not to pay you. This would be based on the Court's policy of encouraging parties to settle litigation. But, where I have a concern is that that good barrister and an unsympathetic judge could argue that in view of the Supreme Court judgment you do not actually have an underlying claim. Therefore it would be conscionable to allow the bank not to pay.

 

In the end it is up to you how you proceed.

 

HTH

 

Dad

Edited February 2, 2010 by slick132
edited to remove smiley from item 2.

[Bartok]

Hi Bartok,

 

Do you have a letter or email from Barclays back in June 2007 confirming their wish to settle your claim as a GOGW in the sum of £xxx. This is key to your success.

 

 

Whats a GOGW?

 

This is the agreement signed outside court to get me to drop the claim on the day of the hearing.

 

 

 

The counsel for barclays agreed to pay the sum into account by today (6 June 2007). I heard nothing since and all my calls went an unanswered.

 

I assume you haven't approached Barclays about this recently due to the case being Stayed.

 

I did but my calls went unanswered and no payment. I wrote to them:

 

 

NAME

Litigation & Disputes

Level 29

1 CHURCHHILL PLACE

 

London

E14 5HP

 

June 11, 2007

 

Dear Sir/Madam

 

Re: Claim number NUM

 

 

As per the settlement prior to the hearing at Horsham County Court we agreed that you do pay me the sum of £2000 to settle the claim and I confirm I have not received the money.

 

I have written to the court by even post to re-list the hearing for trial reinstating the claim for £3335.82 plus Statutory Interest on a daily rate of 0.00022% from 10/4/07.

 

If you wish to settle the claim, please pay £3335.82 within 14 days and as a gesture of goodwill I will forgo my entitlement to ask for costs of June 6th and statutory Interest under Section 69 from 10/4/07 onwards.

 

Yours

 

Claim was filed and I have only received automaton replies.

 

 

I agree that you should discontinue the current proceedings by writing to the court and copy to Barclays quoting the Claim No.

 

Given your failure to pursue Barclays properly at the time, I think you should write to them (their Litigation Team who presumably promised to settle) giving them 14 days to settle in full, including s.69 Statutory Interest and all court fees to date. Include an updated SOC showing interest to date and a revised settlement figure of £xxx with the court fees added on.

 

Confirm that, if they fail to settle within 14 days, you will start fresh proceedings on the basis of Estoppel without further notice.

 

I would claim the court fees incurred on the 2nd claim even though it was conducted wrongly. If Barclays had settled when they agreed to, you would not have been put to this trouble and expense.

 

Reade up here on Estoppel - Estoppel in English law - Wikipedia, the free encyclopedia

 

I just have written to barclays again asking to settle the claim, but I havnt mentioned anything about estoppel. Given your advice it seems estoppel is the way to go.

[noomill060]

I take it that you sent a signed copy of this agreement to Barclays?

[slick132]

GOGW = gesture of good will. When they agree to pay without admitting any liability or wrong-doing.

 

The documents you have should be adequate to pursue this successfully.

 

When writng to B's, did you enclose an updated SOC which includes interest to date and all court fees.

[Rhinoagainstcharges]

I note on the copy agreement that the amount has been changed from £1,525 to £2,000 by hand. If this was done by you then you did not accept Barclays offer as made and they have not renaged as they only agreed to pay you the lower amount and you did not agree to that but in effect put in a counter claim for a higher amount. I may be reading this wrong as obviously do not have all details but that is my reading of the situation and therefore Barclays on this occasion have done nothing wrong.

[noomill060]

That'll be it.

 

If bartok altered the figure to £2000 and sent it back, he effectively rejected Barclay's goodwill gesture of £1525 and then got caught by the testcase blackhole.