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    • I guess I can write a letter along the lines of: Application to strike out case: It was ordered by District Judge X on 7 April 2021, that the parties in the case file a trial bundle by 13 May 2021 at 4pm. It was further ordered that if this was not complied with the case may be struck out.  While it is provided under CPR 3.8(4) that steps in the Order may be extended up to 28 days with prior written agreement, the claimant has failed to send any kind of correspondence whatsoever, either requesting extension of the time for the steps, or by directly complying with the Order to file a trial bundle. The defendants have both filed trial bundles as ordered, and therefore the 1st defendant asks that the case is struck out in accordance with CPR 3.4(2(c)), on the basis of the claimant's failure to comply with the Order of 7 April 2021. Should I just send this to the court? No need to send to the defendant?
    • I'll let one of the small claims court experts answer that.  I'd have thought that if you know the name and address of the gardener who was on the roof and actually caused the damage issue proceedings against them. They can always ask the court to add or substitute other defendants. Wait and see what others advise.   Bear in mind that you are going to have to demonstrate that the gardener is legally liable to you for the damage caused, most likely that the gardener was negligent. Did you see it happen? Do you have witnesses or evidence about how the gardener came to fall through the roof?
    • Thanks for this, my Manager still saying contract being drawn up, I'm not sure if they are trying it on and I am so taken aback, they are trying to say I agreed to work 6 days (seriously don't remember that being clear so I suspect very much now this is the absolute danger when things aren't in writing and I wish I had picked up sooner that my Manager is a newly appointed Director) if 6 days had ever been made clear as part of the interview, I would have realised sooner that 20k was going to dwindle to less then or not much more then minimum wage.   Seriously disappointed, whether this is now a tact to get me to leave, I've tried to indicate by working 6 days I'm using more petrol to get to work, that's as best as I could muster, hopefully the look on my face gave it away. It really isn't my problem the Director seems a workaholic as he has told me, well I work 7 days.    Sorry to be dim, but I always thought there was a difference between hourly pay rate and salaried?    
    • Ok thanks for clearing that up Ethel. The damage caused was around £4800. The only reason I mentioned new for old is because an insurance specialist said it's always best to pursue it through his insurers rather than the small claims as I'd get new for old.  Anyway it looks like I'll need to take him to court. It may be a tricky one as he has his own gardening company as well as his dad. On the day he fell through the roof I was told it was his dads vans that were parked up not the sons. So I'm not sure if he was working for his own company or as an employee of his dads. I wrote to both by recorded post a few months ago but neither responded. Can I make a claim a claim against both in a single action?
    • Have submitted bundles   Would now like to apply to have the case struck out because we have not received a trial bundle from the claimant.   What's the best way to do this? It seems that email is not really responded to quickly, but maybe that is the best way?
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    • Ebay Packlink and Hermes - destroyed item as it was "damaged". https://www.consumeractiongroup.co.uk/topic/430396-ebay-packlink-and-hermes-destroyed-item-as-it-was-damaged/&do=findComment&comment=5087347
      • 33 replies
    • I sent in the bailiffs to the BBC. They collected £350. It made me smile.
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
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Court Next week! **ANOTHER BARCLAYS WON**


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Cheers. Does anybody know how long it usally takes for the court to reply?

 

I have entrusted my questionnaire into the hands of the Royal Mail a week ago! Hmmmm, the less said about them the better!

 

:confused:

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  • 2 weeks later...

MatMurray

Shouldn't you be starting your own thread !

 

 

Addresses for Barclays:

General address:-

Barclays Bank PLC

Leicester

LE87 2BB

 

Legal Address and Registered Office:-

FAO Keith Jeremiah

Litigation and Disputes dept

Level 29

One Churchill Place

London

E14 5HP

 

 

Spotty

[sIGPIC][/sIGPIC]Statement request 4th May

Prelim Letter sent 24th May

LBA 7th June

Thanks but no thanks letter sent 22 June

MCOL 22nd June

Claim acknowledged 26 June

AQ sent 2nd August

17 Nov Court Date Set for 29 Jan 2007

Settled in full 12/12/06

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  • 2 weeks later...
  • 2 weeks later...

damn you merged them, I only started a new one as no body answered it when I updated my thread last time :p

 

Am i ready..... hmmm i think so.. I have all the docs and highlighted bits.... only time will tell I guess.

 

Do I need to dress really smart for this sort of court appearance?

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Ok, first, if you don't get an answer, go to your thread, and write a new post saying "bump", or "anyone", it will bring your thread back when we check on new posts. Starting a new thread really does not help anyone, least of all you. Trust me on this.

 

Second, smart casual will do.

 

Thirs, do you have an argument prepared? This is from one of our users, whose name escapes me right now (apologies to her if she reads this!), it is so good that I have copied it for tweaking and using for my own hearings:

 

The Facts

 

I have a contract with [bank] that is governed by UK Contract Law. I have held two accounts with [bank] since xxxx and they have charged me £xxxx in penalty charges in that time.

 

The Case under UK Contract Law

 

These charges are NOT for a service as the Defence claim, but are penalties.

Under UK contract law, [bank] is indeed entitled to make a charge for losses incurred from a breach of contract. This is not in dispute. Examples of breach of contract in this case are going over a set agreed overdraft limit, not having sufficient funds to pay a direct debit etc. The are explicit or implied breaches.

 

The law clearly states that a company 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 are charged.

 

This is backed up by case law – Robinson Vs Harman 1848.

 

The law says that the charge for loss or damage must be proportionate to the loss incurred.

 

Charges are Penalties – “In-Terrorem”

 

These charges levied on my account by [bank] are penalties. The law states that a clause is a penalty if it provides for “a payment of money stipulated as in-terrorem of the offending party”. i.e. it designed to scare or coerce or it is used as a threat.

 

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”

 

It is also worth noting that [bank] is a multi-national corporation. This term regarding charges was inserted unilaterally in contract. i.e. I had no opportunity to negotiate the clause.

 

The Costs Incurred by the Bank

 

[bank] do not publish costs associated with going overdrawn, although they have been requested for this information. Neither do they outline how the cost of these charges is set.

 

The banks operate a highly computerised, automated process when dealing with charges. There is no evidence of any personal involvement by a member of [bank] staff. An account is flagged as being over the limit/non payment of a direct debit etc and the computers sends a mail-merged (by computer) letter which is fulfilled by an automated mailing house and posted.

 

Having been in marketing for 15 years I would estimate this cost to be £0.50-£1.00. There is no evidence of personal intervention. I received 9 individual letters from [bank] in 9 envelopes, detailing 9 separate charges on ONE day in March 2003. If a person was involved, there would be one letter detailing the charges in one envelope and one stamp. In this example, I was charged £270 (£30 per item) in March 2003.

 

This is no data for UK banks but studies in the USA and Australia on this subject have estimated the real cost of sending a letter following no payment of a direct debit to be AUS $0.54 and US$0.50-$1.50.

 

It is worth noting that [bank] charged unauthorised overdraft interest on an account in breach of its limit which is almost 0.30%. Perhaps a good pre-estimate of the loss they incur (i.e. liquidated damages).

 

External View and Comments

 

Pressed by the House of Commons Select Committee 2005, banks revealed these charges are designed to offset their debt recovery losses. (It’s therefore not about my account but a charge to contribute to all customers debt).

 

Peter McNamara, who was Head of Personal Banking at Lloyds, said in a BBC Radio 4 interview in 2004 that charges are used to fund free banking for all personal customers.

 

Finally the Office of Fair Trading on April5, 2006 suggested that these penalty charges are unfair.

 

Service – The Defence’s Argument

 

It is inconceivable how these charges are for a service. However in argument:

 

Their claim that under Section 7 of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR99) states that their prices do not have to be fair, that they are NOT subject to the scrutiny of a court.

 

This then implies they can set them at whatever level they like - £100 for going over your overdraft limit? £150.00 for not paying a direct debt. [bank] imply that their charges can be uncapped and unregulated.

 

However the Sale of Goods and Services Act 1982, sec 15.2 clearly states that the sum must be fair and reasonable. Is a 3000% mark up fair when the average mark up on the High Street is 100%?

 

This is an unfair term within the contract because it allows Lloyds TSB to charge any price they wish for a service - which is far in excess of the cost or value of the service.

 

Further under the UTCCR99, Sec 2 Par 1 states that

 

“A terms that allows a party to unilaterally raise of price or for a price to be determined on delivery is unfair”

 

Summary

 

The charge made by [bank] is not for a service but is a penalty charge, used in-terroum to frighten and coerce individuals not to breach their contract.

 

The charge made is not liquidated damages as it does not reflect the true cost of the breach incurred by [bank]. They have not offered any evidence of how these costs are constructed or proof that for example, bouncing a direct debit costs them £30.00.

 

I estimate that the cost is less than £1.00.

 

UK contract Law states that the charge must be the amount needed to put both parties in the position they were before the breach happened.

 

Contrary to [bank] argument, there is both an explicit and implied breach of contract by myself by going over an agreed overdraft limit or not having sufficient funds in the bank to pay a direct debit. These charges are directly related to actual breaches in contract. They are not levied in any other situations that I am aware of.

 

 

Obviously, it needs a fair bit of tweaking to your own circumstances, but the general arguments are totally usable.

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thanks for posting this bookworm. Sorry to hijack your thread Merv, but question to bookworm, would this be used as part of your court bundle or should it be held back for any potential hearings?

 

And Merv, my fingers are crossed for you and I feel sure your phone will be ringing soon. And in any case, you sound like you are prepared for court even though it is highly unlikely.

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would this be used as part of your court bundle or should it be held back for any potential hearings?

 

For the hearing. If for whatever reason, you were to end up inside the courtroom, you need to have something to say to the judge.

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Quote:

The Facts

 

I have a contract with [bank] that is governed by UK Contract Law. I have held two accounts with [bank] since xxxx and they have charged me £xxxx in penalty charges in that time.

 

The Case under UK Contract Law

...............As above ..........etc...............

 

Thanks Bookworm- very helpful. I have copied it (and will tweak) onto a word doc and will use it closer to the time!

Heidik

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Good LUck Mervalous and thank you Bookworm for the argument ( Would that be the full half hour ?)

 

Spotty

[sIGPIC][/sIGPIC]Statement request 4th May

Prelim Letter sent 24th May

LBA 7th June

Thanks but no thanks letter sent 22 June

MCOL 22nd June

Claim acknowledged 26 June

AQ sent 2nd August

17 Nov Court Date Set for 29 Jan 2007

Settled in full 12/12/06

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Ah! Found where it came from! So credit due to Wolfcub, a lady after my own heart, and if you want to read how to kick a*** well and truly, her thread is an inspiration. (Wolfcub v Lloyds)

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WOW, that's a great piece Wolfcub abd Bookworm. Anyone know if anyone has used it against Barclays and if it's on this site at all? (Am not too confident with going through the whole of Barclays T&C's to insert the relevant bits... but then I haven't got a court date yet either).

 

Good luck!

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