Bong v Barclaycard **WON**

[Guest bong]

I have just issued my first claim today at MCOL and it feels pretty good!!!

 

Bit of history in case anyone else can learn anything from it.....

 

29/8/06 1st letter (LBA) and spreadsheet of penalty charges & interest on penalties sent to P O Box 5592, Northampton, NN4 1ZY asking for refund of £355.53 by 12/9/06. Made up of penalty charges of £212 and interest on penalty charges of £143.53.

 

1/9/06 letter back from Katrina Downs, P O Box 599, Manchester M60 3NF

saying they aim to deal with matter by 27/9/06.

 

6/9/06 letter from Debbie Woodcock, Customer Relationship Manager at Manchester address saying they believe the charges are fair and transparent etc., they disagree with my legal analysis, but putting that to one side, as a goodwill gesture and without any admission of liability they will credit my account with £80, being the difference between the £20 charges I incurred and the "£12 fee recommended by the OFT" x 10. I checked my statement online and the money was indeed credited to my account that day.

 

7/9/06 I wrote back declining their offer of settlement and again requesting the full amount. I said that I would accept the £80 only as part settlement and would pursue recovery of remainder through court. No extension to timescale etc.

 

9/9/06 Letter from Carol Jones at Manchester address saying their position remains the same and she is "not prepared to consider my request for any further refund". Also saying that I suggested in my letter that the charges are penalty clauses and thus unenforceable and that I outlined case law etc. etc. (none of which came from my letter - wonder where she got it from?;-)!!! couldn't be mixing herself up could she?) and that they do not believe the charges levied under the contract equate to penalty clauses, or that the contract is unenforceable or that terms are unfair.

 

12/9/06 Spreadsheet updated to reflect the £80 refund applied on 6/9/06, plus updated payments since LBA. MCOL issued against Barclays Bank PLC trading as Barclaycard, 1 Churchill Place, London E14 5HP.

 

Claim

 

Penalty charges £132

Interest on penalty charges £110.33

8% on penalties £22.35

8% on interest on penalties £6.47

Court fee £30

Total £301.15

8% interest accruing at 5p per day.

[Guest bong]

Notice of Issue received from court today.

Claim issued 13/9/06,

deemed to be served on Monday 18/9/06,

defendant has until 2nd October to reply.

[Guest bong]

not heard a dicky bird. wonder what they're playing at - they haven't even acknowledged the claim online! Monday's their 14th day. Hope I haven't spoken too soon!

[Guest bong]

Yeah, spoke too soon. Claim acknowledged online at the 11th hour. No doubt I will be hearing from them soon!

[clarkey1]

Bong,

They are just playing for time,

Good Luck

[Guest bong]

Well the 28 days for lodging a defence are up today. MCOL still states acknowledged. Does anyone know what time they have to do it by? I suppose as it's online they don't operate under the normal court hours.

[Guest bong]

Judgement requested online as they have not filed a defence.

[Guest bong]

Well I'm not too pleased with the MCOL system. I stayed up till midnight yesterday to enter my request for judgement by default, as it was still showing as acknowledged but not defended. This morning I had an email from MCOL to say they have entered a defence and case is being transferred to my local county court. I'm wondering if MCOL are not getting the case claim details updated in time for it to show, but as an online service I would expect it to show up to the minute information. I have replied to their email asking them what time they accepted the defence.

[Guest bong]

Just had an email back from MCOL - would you believe this? -

"The defence was processed today, although the deadline was yesterday, as no further action had been taken we would process the defence".!!!

 

But further action had been taken, just after midnight I went online and requested judgement by default. Although my application would not have been viewed by court staff until they opened for business this morning it was there for them to see on their computers when they processed the defence! Does anyone know if I have a right to complain? Or is this standard procedure?

[Guest bong]

Can anyone help with this please?

[skbuncks]

Hi Bong

 

It would have made no difference even if they had filed a week late. All they would need to do is come up with some pathetic little excuse, like the dog ate it, and have the judgement set aside. By all means complain but you'll be wasting your breathe

[Guest bong]

Suppose you're right about that. But atleast I would have put them to further work for getting it in late and abusing the court process. Looking on the bright side I guess that would have delayed me getting this sorted out even further.

[skbuncks]

God knows it takes long enough as it is. Hopefully you'll get a court date pretty smartish...

[Guest bong]

Stuff through from court today. Barclaycard's defence & notice of transfer from MCOL to my local court. Allocation Questionnaire to be returned by 5 November.

 

Defence looks like this:

 

They are disputing the full amount.

 

Defence

1. Barclaycard is a trading division of Barclays Bank PLC and not a legal entity in its own right.

 

(My claim stated defendant as Barclays Bank PLC trading as Barlcaycard - so have I made an error which they are disputing?)

 

2. The POC are summary and do not provide details of the precise charges alleged to have been unlawful, or the date thereof. Accordingly this defence is summary in nature and [barclays] reserves the right to amend this Statement of Case in due course.

 

3. To the extent it is alleged that [bong] incurred charges on his/her account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the "charges"), [barclays] puts [bong]to strict proof of each charge and the date thereof.

 

4. [barclays'] standard terms and conditions ("terms"), which [bong] accepted upon opening the account, entitle [barclays] to debit the charges from customer accounts upon certain events (including blah blah blah)

 

5. It is the responsibility of the account holder to properly monitor his account so as to ensure compliance, for example, with the obligation to make payments by the required date.

 

6. The terms gave [bong] a fair and transparent view of the obligations and entitlements set out in para 4 above, including the basis on which [barclays] would be entitled to debit the charges from [bong's] account.

 

7. If, and to the extent it is [bong's] case that the failure to make monthly payments and/or his/her failure to remain within the agreed credit limit, constituted a breach of the terms, and that the contractual entitlement to debit the charges from [bong's] account constitutes a liquidated damages clause, the same is denied. The charges applied to [bong's] account were payments that [bong] agreed to make upon the events described at para 4 above by reason of the terms. Accordingly, it is denied that the charges or any such charges constitute unfair and/or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the charges, as alleged by [bong] or at all, and/or that the charges are otherwise unenforceable.

 

8. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the UTCCR 1999, (particularly but without limitation to para 1e sch 2) or are in breach of s.4 UCTA 1977 (or any other provision) or are unreasonable within the meaning of s.15 of the SGSA 1982 or indeed any other provision.

 

9. Further or alternatively, without prejudice to the matters pleaded at para 4 above, if [bong's] failure to make sufficient account payments by the required date and/or to remain within pre-agreed credit limits constituted a breach of the terms, [barclays] avers that the charges were nonetheless valid and enforceable.

 

10. It is further denied that the charges were unlawfully debited from [bong's] account.

 

11. Accordingly, it is averred that the charges are legally enforceable and [barclays] was entitled to debit the charge from [bong's] account.

 

12. [barclays] denies that it is liable to [bong] for the sum claimed and interest as pleaded, or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by [bong] to have been applied to the account prior to 13/9/2000 would not be recoverable (my account was opened in June 2004) for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

 

13. In the alternative, and without prejudice to para 10 above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by [bong] or at all, [barclays] has nonetheless suffered loss and damage as a consequence of [bong's] breach of contract in allowing the account to exceed its agreed credit limit. Accordingly, in the event that [barclays] is unable to rely on its express entitlement to enforce the charges as set out at paras 4 and 11 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and [barclays] seeks to set off such sums against any liability owed hereunder to [bong].

 

I realise I now have to get my schedule off to them sharpish- had been waiting for a request but it looks like they are not going to bother.

[Guest bong]

Letter typed up ready to go on Monday (23/10) with schedule of charges.

 

Litigation and Disputes

Level 29

One Churchill Place

London E14 5HP

 

Dear Mr [solicitor]

 

I refer to the defence entered on 16/10/06.

Please find attached an itemised schedule of the charges and interest debited to my account, together with a spreadsheet calculation of the county court interest on those amounts, in support of my claim.

I should be grateful if you would let me know if this does not satisfy the requirement of 'strict proof' requested at clause 3 of the defence.

Please note that this schedule was provided to Barclaycard prior to my claim being filed with the court.

Y/S

[bong]

[clarkey1]

Bong,

BC issued the same defence to me I replied advising them

The defendant is fully familiar with the details of the claim as I

supplied the enclosed schedule of charges to them in my initial

correspondence and I am proceeding to supply further copy now.

This just shows the courts how obstructive BC are.

[Guest bong]

what stage are you at now then?

[clarkey1]

I am now awaiting a Court Date, hopefully not to long now?

[Guest bong]

you mean they haven't made you an offer to settle?

[clarkey1]

They credited £91 to my account, but I have told them I want the lot +fees, totalling £310.

[Guest bong]

I'll be interested to see how you get on. good luck!

[clarkey1]

Good luck to you too,

[Guest bong]

Sent off my Allocation Questionnaire recorded delivery today. Here's what I wrote at G (other information) -

 

"I believe the case will last no longer than one hour.

 

The claim is an issue of fact and not of law. The issue is only whether the charges levied by the defendant in respect of contractual breaches exceed the defendant's actual costs incurred. However the defendants refuse to reveal the details of their costs. Accordingly I respectfully request that the court, notwithstanding allocation to the small claims track, Orders standard disclosure. I understand that it is in the court's discretion to do so. This would bring a rapid end to this litigation."

 

 

No contact from Barclaycard since their defence.

[Guest bong]

Barclaycard's Defence

 

 

blah blah blah......

 

7. If, and to the extent it is [bong's] case that the failure to make monthly payments and/or his/her failure to remain within the agreed credit limit, constituted a breach of the terms, and that the contractual entitlement to debit the charges from [bong's] account constitutes a liquidated damages clause, the same is denied......

 

13. In the alternative, and without prejudice to para 10 above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by [bong] or at all, [barclays] has nonetheless suffered loss and damage as a consequence of [bong's] breach of contract in allowing the account to exceed its agreed credit limit. Accordingly, in the event that [barclays] is unable to rely on its express entitlement to enforce the charges as set out at paras 4 and 11 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and [barclays] seeks to set off such sums against any liability owed hereunder to [bong].

 

just picking holes in Barclaycard's defence. Since I've stated in my AQ "charges...in respect of contractual breaches" I wanted to check whether they have denied that these were breaches of contract. It seems that at 7. they have denied it but at 13. they are..mm..well...agreeing it was a breach?

 

Or is 13. an alternative case scenario just in case I win on that argument?

[gizmo111]

just picking holes in Barclaycard's defence. Since I've stated in my AQ "charges...in respect of contractual breaches" I wanted to check whether they have denied that these were breaches of contract. It seems that at 7. they have denied it but at 13. they are..mm..well...agreeing it was a breach?

 

Or is 13. an alternative case scenario just in case I win on that argument?

 

Looks to me like an alternative - bit underhandedly threatening as well implying that their costs may be nmmore than they have already charged you.