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

[Bartok]

Update, the claim is filed using the particulars below - we are on holiday shortly so I'll reconvene when barclays defends the claim.

 

The claimant filed a claim against the defendant as claim number 7QZ21261 for unfair bank charges on 20/02/07. The defendant contractually agreed to pay the claim without judgment on 06/06/07 on condition I close the claim without judgment. The defendant reneged and I filed a fresh new claim 7QT08579 which incurred court fees of £120 on 21/06/2007 and £100 on 02/07/2007. The defendant then paid the original claim minus the court fees. The claimant claims a) £220 for breach of contract per se, or by Hadley v Baxendale (1854) 9 Exch 341 and in the alternative; the claimant has a claim against the defendant on the basis of estoppel by representation b) statutory interest under Section 69 of the Courts Act of £49.80 and 0.00022% per day until date of payment. c) court fees.

[Bartok]

Update, Barclays has filed an Application Notice asking for the claim to be struck out.

 

 

 

My initial thoughts

 

1. Their paragraph 6. They admit it was their "administrative error" for delaying payment by nearly three years until 2010., but in paragraph 3 the bank acknowledges I wrote to them asking for payment in June 2007 (and enclosed a copy of that letter in their defence) but does not acknowledge numerous telephone calls asking for payment as promised.

 

2. They make several references to OFT v Abbey. This is not relevant because this is about unfair bank charges. This claim is about reclaiming court fees as a consequence of breach of contract by the defendant. In any event, precedents cannot be used retrospectively.

 

3. Their paragraph 3, they say I gave 5 days to pay, they don’t mention the agreement at court before the judge was to be paid there and then by bank transfer while we were still at court. This couldn’t be done so the bank agreed before the judge to make the transfer before close of business that day. I was then fobbed off with excuses long before I file the 2nd claim.

 

4. Paragraphs 8 (iv), The defendant appears to say court fees cannot be reclaimed in the small claims track. I understood it is costs - as in solicitor’s fees - that cannot be reclaimed.

 

5. (I'm clutching at straws a bit) Paragraph 9, arithmetic error. Barclays has received substantially more than £905.32 in bank charges since 1996. They could not be claimed.

 

Any thoughts on what I do next?

[slick132]

Hi Bartok,

 

I assume you will be notified if there is a hearing which you can attend when their application to Strike out is to be heard.

 

You would then have an opportunity to argue against the Strike Out.

 

It's really then up to the judge to decide.

 

If the case is Struck Out, I think you should leave it there.

 

If your claim is allowed to continue, I think Barclays will probably agree to settle before the final hearing. If they don't, you will have to attend to fight on the day.

 

Or, to avoid the case going further, you could decide to Discontinue at any time.

 

[slick132]

Moving to Legal Issues forum for further input.

 

[Bartok]

The bank has selected 'without a hearing' - Can I object and ask the court to consider further argument? (see post above).

[slick132]

Hi Bartok,

 

I hoped someone else might respond as I'm not sure on this.

 

In the absence of other input, I'd contact the court and ask if you can attend, and whether this would incur a fee on your part.

 

Alternatively, ask if it's ok to submit a letter to the court outlining why you object to the Strike Out application, for the judges consideration.

 

[Bartok]

Hi Slick, the latter idea come to mind, - asking the court to consider a written objection to strike out the claim on the following facts: (I welcome your tweaks and comments on these, good or bad).

 

I write to object to my claim being struck out for the following reasons and I ask this letter to be placed before the court when it considers that decision.

1. Their paragraph 6. The defendant admits it was their "administrative error" for delaying payment by nearly three years until 2010, but in paragraph 3 they acknowledge I wrote to them asking for payment in June 2007 (and enclosed a copy of that letter in their defence) but does not acknowledge numerous telephone calls asking for payment as promised.

2. The defendant made several references to OFT v Abbey. This is not relevant because this is about unfair bank charges. This claim is about reclaiming court fees as a consequence of breach of contract by the defendant. In any event, I understand precedents cannot be used retrospectively.

3. Their paragraph 3, the defendant says I gave 5 days to pay, they don’t mention the agreement at court before the judge was to be paid by transfer there and then while all parties waited at court. The defendant responded they could not make that transaction, but it promised the court that it would complete it before close of business that day. I was then fobbed off with excuses and broken promises to pay long before I filed a new claim and it took the bank nearly three years to pay.

4. Paragraphs 8 (iv), The defendant appears to say court fees cannot be reclaimed in the small claims track. I understood it is costs - as in solicitor’s fees - that cannot be reclaimed.

5. Paragraph 9, the defendant says it has paid £905.32 in excess of the amount already claimed. It is not known where this figure comes from, but it should be considered the defendant has obtained over £4000 excluding interest from my account since 1998 which still leaves them a net gain of over £1200 plus interest.

6. The defendant sent me by post, a mockup court order designed to resemble an official document saying my claim has been struck out by the court.

Edited June 6, 2010 by Bartok

[slick132]

HI Bartok,

 

I'd respond to their points in the same order as the claimant has done starting with:-

 

I address some of the points raised by the Defendant, in their Application to Strike Out, as follows:-

 

I would leave out your points 5 and 6 as I don't feel they add to your objection to the Strike Out appl'n.

 

I'd then finish wish something like:-

 

I respectfully submit that my claim has merit and should be allowed to proceed so that the parties can negotiate a settlement, or have the case decided by the court in due course.

 

Edited June 6, 2010 by slick132
changed my "claimant" to "defendant"

[Bartok]

Great stuff Slick, Letter amended and sent to court and CC Barclays solicitors.

 

Will keep you posted at the next event.

[slick132]

Oops, if not too late, your letter should address the other side as the Defendant.

 

So, where you say, "Their para 6" I'd say, "Para 6 of the Defendant's Application."

 

If already done, don't worry as I'm sure the judge will get your drift.

 

Edited June 6, 2010 by slick132
changed Claimant to Defendant - DOH !!

[Bartok]

I did spot it, and changed it to Defendant. Didnt want to make an issue of it on the thread.

 

For completeness this is the actual wording used:

 

Dear Sir,

 

Please place this letter on the above-mentioned claim for consideration by the court when deciding the Defendants application to strike out the claim.

 

I address some of the points raised by the defendant, in their Application to Strike Out, as follows:-

 

i) The defendant made several references to OFT v Abbey et-al. This case is not relevant because this is about unfair bank charges. This claim is about reclaiming losses as a consequence of breach of contract by the defendant. In any event, I understand precedents cannot be used retrospectively.

 

ii) Paragraph 3 the defendant says I gave 5 days to pay, but the defendant does not mention the judge offered a Tomlin order, but the defendant’s representative said it would not be necessary because payment would be made immediately and this was entered into court records (Claim no. 7QZXXXX). Afterwards I was then fobbed off with excuses and broken promises to pay long before I filed a new claim and it still took the defendant nearly three years to pay.

 

iii) Paragraph 6. The defendant admits it was their "administrative error" for delaying payment by nearly three years, but in paragraph 3 they acknowledge I wrote to them asking for payment in June 2007 (and enclosed a copy of that letter with their application) but does not acknowledge numerous telephone calls asking for payment as promised.

 

iv) Paragraphs 8 (iv), The defendant appears to say court fees cannot be reclaimed in the small claims track. I understood it is costs - as in solicitor’s fees - that cannot be reclaimed.

 

I respectfully submit that my claim has merit and should be allowed to proceed so that the parties can negotiate a settlement, or have the case decided by the court in due course.

[slick132]

Noted, and I've now edited my posts so they read correctly.

 

Lets hope the judge finds in your favour.

[Bartok]

Update.

 

The Northampton Court District Judge did not strike out the claim as originally requested by Barclay's solicitors. The Order reads:

 

"The application to strike out the claim must be heard on notice to the claimant. Transfer the action to the defendant's home court"

 

The claim has is transferred to the DEFENDANTS local county court. I think (and I may be wrong) where a claimant is an individual and the defendant is a corporate entity, claims are transferred to the CLAIMANTS local county court.

 

Once the defendants local court acknowledges receipt, I would like to ask the claim be transferred to the claimants local court. Does anyone know under which Civil Procedure Rule that a claim is transfrred to the claimants local county court under these circumstances?

[slick132]

If you think you can contact the Northants court BEFORE the case is transferred, write and say that the case should be transferred to XXXX County Court being the county court local to you as the Litigant in Person.

 

If the transfer is already under way, deal with this matter in your Allocation Questionnaire.

 

[Bartok]

Hi, I might have been running before learning to walk.

 

I have written to ther defendants home court and ask they transfer to the claimants home court because the claimant is a person and the defendant is a corporate entity.

 

The defendants home court is to consider an application to have the claim struck out, and there might not be an AQ if the application succeeds.

[slick132]

Aha, now I see.......... the Strike Out Appl'n has NOT been heard yet.

 

What a kerfuffle !!

 

Do you know what court the case has been transferred to.

 

[Bartok]

Yes its BOW county court, but want it transferred to home court. I've written to Bow and asked for the claim to be transferred.

[Bartok]

The case has been heard (I didnt get a notice of hearing from the court) and made Jedgement. Any suggestions where we go from here?

 

I didnt think the small claims track provided for awarding costs against either party.

 

[slick132]

Hi Bartok,

 

Did you get to keep the £2,432.32 which they paid to you as per post #46.

 

If they had counsel attend the Strike Out hearing, why were you not given that opportunity, to represent your own case.

 

Why did the case end up at Horsham County Court - is that local to you ?

 

Costs can be awarded on small Claims Cases but they tend to be limited.

 

Given the disastrous catalogue of errors that have occurred in your case(s), I wonder if you are better to now let the matter rest.

 

[DonkeyB]

Perhaps get a transcript of the hearing first, to see what happened.

[Bartok]

Yes, I got the £2400 ish but that was already ours because the bank had drawn the money from the account.

 

The claim was for costs, namely court fees to apply to the court and ask the bank comply with its agreement (signed contract) to pay, when it failed to do so.

 

Should a N244 be filed? and ask for the judgement/order be set aside? the court did not send the claimant a notice of the hearing.

 

I dont understand why the defendant is allowed to claim legal fees when the claimant is not.

[Bartok]

and given the catalogue of errors in the courts handling of the case (and the defendant in breach of contract), should this be a case for complaint to the parliamentary ombudsman?

 

This has left us seriously out of pocket through no fault of our own.

[slick132]

Yes, I got the £2400 ish but that was already ours because the bank had drawn the money from the account.

Sorry but can you explain that better ??

 

Yes, I remember the 2nd claim was for the court fees incurred.

 

You didn't answer my Q above - Why did the case end up at Horsham county court - is that local to you ?

 

I would write to the Court Mgr and ask why you were not informed of the Strike Out Application, or given the opportunity to attend and represent your interests.

 

Either side is allowed to seek costs if they win but, in the SC court, costs are normally limited.

 

I think you need more info before you decide how to act or who to complain to.

[Bartok]

Yes, horsham is my local court. Let me check what was paid in the previous case and I'll revert back in a moment

[Bartok]

The bank agreed to pay £2000 in June 2007 as part settlement of £4466 on condition the claim is dropped.

 

The bank did not keep its promise to pay.

 

A new claim was filed on 06 May 2010 using the following particulars:

 

The claimant filed a claim against the defendant as claim number 7QZ21261 for unfair bank charges on 20/02/07 and the defendant contractually agreed to pay the claim without judgment on 06/06/07 on condition I close the claim without judgment. The defendant reneged on this and I filed a new claim 7QT08579 which incurred court fees of £120 on 21/06/2007 and £100 on 02/07/2007. The defendant then paid the original claim minus the court fees. The claimant claims a) £220 for breach of contract per se, or by Hadley v Baxendale (1854) 9 Exch 341 and in the alternative; the claimant has a claim against the defendant on the basis of estoppel by representation b) statutory interest under Section 69 of the Courts Act of £49.80 and 0.00022% per day until date of payment. c) court fees.