Barclaycard reclaiming penalties and Compound Int't **WON** (probably)

[AndyOrch]

http://hsfnotes.com/litigation/2007/09/13/house-lords-ruling-expands-availability-compound-interest/

 

You dont have to explain section 69 interest..its part of the process and is covered by the County Courts Act 1984

 

http://www.legislation.gov.uk/ukpga/1984/28/section/69

[HP Mum]

Thank you for that Sempra - perfect as an exhibit.

 

 

I have a sheet for KB. Can I just add a simple sentence like -

I claim that the Defendant bank concealed the unlawful nature of their charges; that I made payments under the belief that I was bound by law to pay the penalty charges. I have subsequently found that I made payments under a mistake in law and am entitled to recover them. There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law. I intend to refer to the case of KB....

[AndyOrch]

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a grey area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

 

There is an additional argument over the Limitations Act 1980:

 

Section 32(1)(b) of the Limitation Act 1980 postpones the commencement of the limitation period where

 

''any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”

 

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

 

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that

 

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

 

The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

 

There is also support for this position from the ECJ. In Cofidis SA v Jean-Louis Fredout the ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

 

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

 

The question put to the ECJ was

 

''Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?'

 

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.

The court concluded:

 

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts.

A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”

 

This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases. After all, a right without a remedy is no right at all.

[HP Mum]

Thank YOU

 

 

Done and posted... Phew

 

 

Is this normal procedure? That both sides file their witness statements and then wait 6 months for a hearing?

Or are we expected to communicate and try to settle?

[AndyOrch]

Well done HP...no its not normal..its normally 14 days before the hearing date.

 

Regards

 

Andy

[martin2006]

Well done mum, as a final posirive from what im sure was an exhausting experience, you now know exactly what your argument is all about and this will stand you in good stead for your other case as well.

Great work!!

 

Oh and yes, you are always expected to communicate and try to settle, again, all part of the process

[HP Mum]

Thanks guys.

 

 

I was so shattered from this experience that I had to switch off the last couple days.

Despite what I have read most people do, it seems that I had to pretty much compile my bundle 6 months before a hearing. The letter from the court arrived slowly after the Order was given (Bank hols delay I guess) and I didn't read it properly either - so that when I realised how much info the court required I actually only had 2.5 days.

The first time is always the worst!!

Can I now adapt to fit my other case?

I need to prepare my bundle by end next week....

[martin2006]

If its the same argument as in fees reclaim then yes the bundle will be very similar, thats what i meant with my previous post about standing you in goid stead fir your other case

[HP Mum]

HI

Yes it is the same argument. Just a store card not a credit card.

 

Plus - if anyone can have a look at my Creation thread it would be appreciated. I don't think many people check that area of the forum out!!

 

I have an issue that probably needs to be dealt with today.

 

I cant find my file full of statements.

I need to present my bundle by end next week.

I assume I need to include statements or can I just allude to them?

Is this a big problem?

 

 

Should I write today/tomorrow and ask them to provide copies of the statements that I am claiming against.

 

If I don't have the statements is it an issue of how can I prove they added the penalty charges?

Advice here or on my Creation thread would be most useful

 

Then - following on from presenting the witness statements

- what happens now with Barc and me?

 

Do I write to Barc? Or should I wait to hear from them?

 

Hearing is not until end of the year....

[AndyOrch]

Just disclose your spreadsheet...that should contain and constitute the validity of the claim ...without the need of every single statement.

 

Once witness statements have been submitted and exchanged.....the option is open for either party to try to attempt mediation or settlement up until the actual trial.

[HP Mum]

2 weeks later since submitting witness statement and evidence - and 5.5 months before the hearing!

I am moving soon.

Should I give them my temp address or wait a month until I get a new semi-permanent address sorted?

Or just leave the mail on divert to temp address?

 

 

Trying to decide if I should write to them and suggest settlement?

[martin2006]

I would always encourage negotiations for settlement.

Have you had any offer from BC yet?

 

I would certainly keep both the court and the sols upto date with address via recorded delivery to sols

[slick132]

Hi Mum,

 

Despite the hearing date being so far off, I'd write to the sol'rs asking them if they're willing to discuss negotiating a settlement.

 

Post a draft here first if you want. Examples can be found on *WON* BC threads.

 

[HP Mum]

Can I please ask - is there a section in the library for old T&Cs??

I thought here was but I cant find them.

I need 2003 Creation T&Cs.

[slick132]

Hi Mum,

 

This has been d/w on the Creation thread.

 

[HP Mum]

Morning

 

 

I have just received an offer from bc - w/o P SATC.

It is a lot more than their 1st offer.

But still a lot less than my claim. (at 29.9%)

If they argued the validity of that % and requested the Judge look at 24.9%, their offer is a few hundred less than what the claim would = at that %.

Btut they are also not offering to cover my costs - of almost 300.

 

 

Not sure what to do next...

[AndyOrch]

I personally would give it serious consideration...arguing restitution interest in court is not for the faint hearted.

[HP Mum]

I just did some calculations.

The court costs and the original penalty charges = almost 1k

 

They have offered almost double these amounts.

But still quite a lot lower than my claim

 

Thanks Andy

I am about to go add bits to my creation thread - as cfs want to meet me in court where I have to argue restitution.... So good to know that I need bundles of courage !!!

 

Do you think I can partially accept?? Like accept but ask them to add on my costs?

[AndyOrch]

Do you think I can partially accept?? Like accept but ask them to add on my costs?

 

Ask...if you dont ask you will never know

[HP Mum]

Does anyone have info on:

ParkingEye Ltd-v-Beavis 2015???

[martin2006]

Have a look at the judgement in PE V Beavis, this also includes the judgement in Cavendish v makedesi

 

https://www.supremecourt.uk/watch/uksc-2015-0116/judgment.html

[AndyOrch]

Posts made in connection to your Creation Thread moved to that thread...please do no mix threads.

 

Andy

[slick132]

Hi Mum,

 

I'm always happy to defer to Andyorch's advice .............

 

............ however, BC have been seen to settle close enough to the Claimants SoC figure to make them happy in recent cases. They have just had to hang on in there as they got closer to the Hearing.

 

Our Claimants may have agreed to Confidentiality but it seems to be a bit like a game of Chicken as you head toward the Hearing date and negotiate.

 

When is your final hearing date ?

 

[HP Mum]

hearing not for many months.

Have sent you a message...

 

Martin - post 145

How are we supposed to use that case in our favour?

[martin2006]

My understanding mum is that in Beavis, the "penalty" charge of £85 is put there as a deterent, to stop people overstaying and thus taking up a parking space for a whole day instaed of the maximum 2 hours.

 

Perfectly understandable where parking spaces are limited in a shopping center for example, however, that does not resonate with a bank or card charge so imo is irrelevant.

 

i mean it makes no difference about how long you breach for with a bank/card charge, 1 minute and its £12. 14 days and its still £12.

 

When the OFT produced the 2006 guidelines, "Calculating fair default charges in credit card contracts" the following is stated:

 

5.3 As a practical measure, to help discourage a swift change in market practice, we are setting a simple monetary threshold for intervention by us on default charges. The threshold is £12

 

5.5 We regard the setting of the threshold as a provisional practice measure to move the market toward compliance. We should make it quite clear that we are not inviting banks to align their charges at such a threshold figure. We are not proposing that default fees should be equivalent to the threshold and a court will certainly not consider that a default fee is fair just because it is below the threshold

 

It isnt about how we use beavis in our favour, its about how we argue that its irrelevant to your case.