Reclaiming Barclaycard charges in Court

[Dot1]

Hi everyone ,

 

Eventually I got the information I was looking for from Barclays and lodged a claim against B/card for penalty charges.

 

Please find below is the defense from their rep TLT LLP Solicitors.

 

Your comments is welcome.

 

Dot,

 

 

1. Except where expressly admitted or not admitted below, each and every allegation made by the Claimant in her Particulars of Claim is denied for the reasons set out in, this Defence.

 

2. Unless otherwise stated, references to paragraph numbers are to the paragraph numbers assigned by the Defendant to the Particulars of Claim (an annotated copy of which is attached at Exhibit BB1), which included repetitive numbered paragraphs.

 

3. This Defence is filed without prejudice to the Defendant's primary position that:

 

3.1 (i) the claim ought to be struck out pursuant to CPR 3.4(2) as disclosing no reasonable grounds for bringing the claim; or (ii) summary judgment be entered against the Claimant pursuant to CPR 24 on the basis that the Claimant has no reasonable prospect of succeeding in the claim and there is no other compelling reason why the case should be disposed of at trial;

 

3.2 elements of the claim are statue barred by virtue of sections 2 and 5 of the Limitation Act 1980, the cause of action having accrued more than six years before the date of issue of this claim (being xx June 2015); and

 

3.3 the Defendant has already refunded many of the charges that the Claimant seeks the repayment of in her claim. The doctrine of res judicata and issue estoppel therefore applies and the Claimant is not entitled to seek further repayment of those specific charges again through the courts. Elements of her claim are therefore an abuse of process.

 

Parties

 

4 The Defendant carries on business as a bank. References in this Defence to "the Bank" are to the Defendant.

 

5 The Claimant was at all material times a customer of the Bank.

 

Background

 

6 On or around 6 August 2002 the Claimant completed an application for a credit card with the Bank. The Bank accepted the Claimant's application and opened an account with account number xxxxxxxxxxxx (the Account). The Account incorporates the terms and conditions (the Terms). Exhibited at BB2 to this Defence is a copy of the Claimant's application and the Terms.

 

7 Clause 14.1 of the Terms entitle the Bank to apply charges to the Account upon the

occurrence of certain events as set out in the section headed "Barclaycard - tariff of

charges". These charges include, but are not limited to, exceeding credit limits and/or

failing to make a minimum payment by the payment date.

 

8 The Terms also provide a fair and transparent view of the Claimant's obligations and entitlements relating to the Account, including the basis on which the Bank is entifled to apply charges. Without prejudice to this, to ensure customers are aware of the charges and the circumstances under which charges might be applied to their account, full details of these are stated on the reverse of the customer's monthly statements.

 

9 It is the responsibility of the account holder to properly monitor their account so as to ensure compliance with the Terms and avoid the events which trigger the application of charges.

 

10 On or around 20 January 2015 the Claimant raised a complaint in relation to charges applied to the Account (the Charges). The complaint was partly upheld which resulted in a refund of the charges applied to the Account on xx April 2003, xx August 2004 and xx December 2005 (totalling £72), plus £35.18 for interest charged and £150 as a gesture of goodwill. The Bank therefore made a total payment of £257.18 to the Claimant following her complaint.

 

Basis of this claim

 

11 The Claimant has now issued a claim based on the same facts and seeking the same redress in respect of the Charges as her complaint. The Bank has already repaid many of the Charges which formed the basis of the Claimant's complaint and now this claim.

 

Response to the Particulars of Claim

 

12 Paragraph 1 is admitted, save that the Account was opened on or around xx xxxx 2002. The Bank agreed to provide credit to the Claimant upon the Terms applicable to the Account.

 

13 As to paragraph 2, it is admitted that the Bank supplied the Claimant with credit in respect of the Account and that the Terms applied to the Account. lt is admitted that the Bank was entitled to charge interest in accordance with the Terms.

 

14 As to paragraph 3, it is admitted that the Account was regulated by the Consumer Credit Act 1974. lt is denied, if it is alleged, that the Bank acted in breach of any statutory obligation or duty contained within the Consumer Credit Act 1974, or that otherwise might have applied.

 

15 Paragraph 4 is admitted. lt is averred that the Account was subject to the Terms.

 

16 As to paragraph 5, it is admitted that the Bank applied the Charges to the Account and that the Schedule attached to the Particulars of Claim accurately records the charges that were debited. lt is averred that the Charges were lawfully debited in accordance with the Terms. lt is denied that the Claimant is entitled to the compound interest set out in the Schedule.

 

17 As to paragraph 6:

 

17.1 lt is admitted that the Charges were applied to the Account in accordance with the Terms. However it is denied that the Charges were unlawful;

 

17.2 Any action relating to charges debited from the Account more than six years before the date that the Claimants Claim Form was lodged with the Court is statute barred by virtue of sections 2 and 5 of the Limitation Act 1980, the cause of action having accrued more than six years before the date of issue of this claim;

 

17.3 The Charges are a part of the overall service provided by the Bank to the Claimant and are payments that the Claimant agreed to, make upon the occurrence of a specific event (namely failure to make sufficient payments by the required date and/or to remain within the pre-agreed credit limit). lt is denied the Charges constitute unlawful penalty

charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations) (particularly, but without limitation to, paragraph 1(e) of Schedule 2),or indeed any other provision;

 

17.4 Arguments under regulation 5 of the Regulations relating to the unfairness of charges which form part of the overall services provided by the Bank have already been rejected by the Supreme Court in Office of Fair Tradinq v Abbev National PLC and others (2009) UKSR 6 and by the High Court in Office of Fair Trading v Abbev National PLC and others (200d EWHC 875 (Comm) and (200il EWHC 2325 (Comm):

 

17.5 Without prejudice to the matters pleaded above, if the Claimant's failure to make sufficient payments by the required date and/or to remain within the pre-agreed credit limits relating to the Account constituted a breach of the Terms, the Bank avers that the Charges were nonetheless valid and enforceable; and

 

17.6 ln the alternative, and without prejudice to the matters stated in this Defence, if (which is denied) the Charges, or any part of the Charges, are unlawful or unenforceable, the Bank has nonetheless suffered loss and damage as a consequence of the Claimant's breach of contract. ln the event that the Bank is unable to rely on its express entitlement to enforce the Charges as set out 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 Charges, and the Bank seeks to set off such sums against any liability owed to the Claimant.

 

18 As to paragraph 7, it is denied that the Charges were wrongly debited form the Account for the reasons set out in this Defence. lt is therefore denied that the Claimant is entitled to repayment of the Charges. Without prejudice to this, and as a gesture of goodwill, the Bank has already made a payment in the sum of £257.18 in respect of the matters raised in her complaint and subsequently pleaded in her Particulars of Claim.

 

19 As to paragraphs 8 to 10:

 

19.1 it is denied that the Claimant is entitled to the relief claimed for the reasons set out in this Defence. For the reasons set out in this Defence it cannot be said that the Charges were debited as the result of a mistake. Accordingly, the claimant is not assisted by section 32 of the Limitation Act 1980 or the principles outlined in Kleinwort Benson v Lincoln City Council [1999] 2 A.C.349;

 

19.2 in any event, the Bank has already refunded to the Claimant the charges applied to the Account on xx June 2003,xx July 2004 and xx November 2005 and the Bank repeats paragraph 3.3 above;

 

19.3 lf (which is denied) the Claimant is entitled to damages, there is no basis in contract or at common law for the interest rate claimed. The Claimant's reference to Sempra Metals v Inland Revenue Commissioners [2007] UKHL 34 is noted. That case simply confirms a Claimant's entitlement to interest. lt is no basis for the Claimant’s claim to interest at the rate pleaded

.

20 At to paragraph 11:

 

20.1 it is denied that the claimant is entifled to the declaration claimed;

 

20.2 for the reasons set out in this Defence it is denied that the Charges were unlawfully apptied to the Account;

 

20.3 it is denied, if it is alleged, that the Bank has inaccurately reported information about the Account to Credit Reference Agencies;

 

20.4 the claimant's reference to "mis-selling of payment protection" is not understood and is accordingly denied. The Claimant did not hold Payment Protection lnsurance in respect of the Account. The Bank reserves the right to plead further to this statement if and when the Claimant clarifies her cause of action in relation to the same.

 

Statement of Truth

 

I believe that the facts stated in this Defence are true.

this statement on its behalf.

xxx,

xx July 2015

for TLT LLP, Solicitors for the Bank

I am duly authorised by the Bank to sign

[Dot1]

As for what they are claiming as settlement for the complaint, it was clearly accepted on the basis that it was part payment of the claim. The LBA stated that clearly and asked them to pay the balance of the claim which they refused therefore the claim was filed.

 

Insurance was an error on the claim. The account did not have insurance.

 

Dot

[slick132]

Hi Dot,

 

I'm moving your posts above into a new thread in the Legal Issues forum.

 

Can you confirm this claim is about a bank loan a/c.

 

I assume you have deducted, from your spreadsheet claim total, the amount previously repaid by the bank and which you accepted as partial settlement.

 

It's interesting that TLT LLP are acting for Barclays. We normally see their in-house people, Barclays Litigation, acting.

 

Can we see the PoC that you used.

Edited July 12, 2015 by slick132

[Dot1]

Hi Dot,

 

I'm moving your posts above into a new thread in the Legal Issues forum.

 

Can you confirm this claim is about a bank loan a/c.

 

I assume you have deducted, from your spreadsheet claim total, the amount previously repaid by the bank and which you accepted as partial settlement.

 

It's interesting that TLT LLP are acting for Barclays. We normally see their in-house people, Barclays Litigation, acting.

 

Can we see the PoC that you used.

 

Hi Slick,

 

Thanks you for dropping in and moving the thread. It is Barclaycard but not a loan.

I am surprise too about the TLT LLP acting for Barclays. I searched the forum but there were only a couple of threads about them in relations to Mortgage but not connected to Barclays.

 

When you look at my other claim too, a similar thing happened where an external rep is being used.

 

Anyway will post the POC shortly.

 

Thanks

Dot

[Dot1]

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/2000, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxxx. (“The Account”).

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases in advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the consumer credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

And the Claimant claims;

 

1) A declaration that the sums totalling to £288.00 have wrongly been applied to the Account. Some of these charges are older than the normal years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £288.00 and interest in restitution at the rate of 29.90 % per annum as per the case of Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum on the amount claimed daily rate of £0.48 per day until judgment or sooner payment

 

(4) Section 19 (1) (2) is as below:

 

I declaration that adverse data reported about the account by Credit Reference Agencies be removed as the amounts so reported are inaccurate due to the inclusion of unlawful penalty charges and mis-selling of payment protection. (mistake)

 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

 

 

 

Slick,

 

The insurance bit was a mistake and as for the part payment made, I did not deduct it so that is another mistake I made too. But in LBA I clearly stated that the payment would be accepted as part payment to which they replied that that was their final offer.

 

Thanks

Dot

[Dot1]

Any thoughts on this please.

 

 

Thanks

[slick132]

Hi Dot,

 

The thread will remain here in the Barclays forum - the Financial Legal Issues forum is for claims made by creditors against CAGgers.

 

[Dot1]

Hi Dot,

 

The thread will remain here in the Barclays forum - the Financial Legal Issues forum is for claims made by creditors against CAGgers.

 

 

Thanks Slick,

 

No problem, that's fine.

[Dot1]

Hi Slick,

 

Have you had time to look at the POC? Is it the correct one?

 

Thanks

[Dot1]

Any thoughts on two issues raised?

 

Insurance and payment made.

 

Insurance was an error as it should not have been in the claim while the money paid was clearly stated to Barclay that it was accepted as part payment.

 

Dot

[slick132]

Hi Dot,

 

The PoC and their defence are done for now.

 

See how it develops .........

 

[Dot1]

Hi Dot,

 

The PoC and their defence are done for now.

 

See how it develops .........

 

 

Thanks Slick.