Bookworm v Barclays - **SUCCESS**

[Bookworm]

This is the total defence now:

 

3. Defence

1. The Particulars of Claim do not provide details or particulars of the account in question and / or the precise charges alleged to have been unlawful, or the date thereof. Notwithstanding the Claimant?s failure to correctly identify and particularise an account held with the Defendant, it is admitted that the Claimant has an account, number xxxxx, sort code xxxxx. However, to the extent it is alleged that the Claimant incurred bank charges on his account for unauthorised borrowings (whether unpaid fees for returned cheques, ?Paid Referral fees? or any other such fees), the Defendant puts the Claimant to strict proof of each charge and the date thereof.

2. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The Claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised):

a. The Defendant?s right to charge a ?Paid Referral Fee? where the Defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25).

b. The Defendant?s right to charge an administrative fee if any cheque, standing order or direct debitcannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).

c. The Defendant?s entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

3. The defendant?s standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds his authorised overdraft limit).

4. If and to the extent it is the Claimant?s case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant?s account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of his account and were consideration for the defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when theClaimant incurred the overdraft.

5. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999 (particularly but without limitation to, paragraph l(e) of Schedule 2), or are in breach of s.4 of the Unfair (Contracts) Terms Act 1977 (or any other provision), or are unreasonable within the meaning of s.l5 of the Supply of Goods and Services Act 1982 (or indeed any other provision).

6. Therefore, it is denied that the charges were unlawfully debited from the account.

7. If and to the extent the Claimant incurred charges on his account, this was caused by the Claimant having gone into overdraft without having agreed with the

[maisielou]

Thats the same as mine even cut short at the same place must be running them off on the copier lol:D

[blueskies]

word for word the same as mine too. It took 25 days to come up with that?

 

I am within a day of you Bookworm. See who finishes first.

 

Poor little trainee Adrian!

[Bookworm]

Hey, Blueskies, both Barclays, within 1 day of each other, you're in Folkestone, I'm near Croydon, you don't think they're sending ASJ on a Tour of Duty in the South-East, do you?

[blueskies]

It'll do him good to get out of the office, things must be tense in there!

 

I hope he's got his battle clothes out and ironed!

[Bookworm]

AQ handed out at Croydon Court on Wednesday 26/7, with this added in section G:

 

"I would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. I understand that it is in the courts discretion to do so. I believe such an order would bring a rapid end to this litigation."

 

And added copy of schedule of charges to AQ, and sent copy of both to Barclays solicitors.

[blueskies]

Good luck Bookworm. I settled and am wondering what would have happened had I not.

[Bookworm]

Well, I did e-mail KJ, but since I said in my e-mail that I would only settle for 100% and no confidentiality, I didn't exactly give much wriggle room, lol.

 

Meanwhile, the interest will keep on adding up... Their choice, I am in no hurry... You never know, they might decide to defend for real. Tell you what, you can always come up and give me moral support!!!

[Bookworm]

Happy, happy, HAPPY!!!

 

I have a court date! 2nd November, 14.00.

 

AND the lovely judge has said, as well as the usual "copies of all documents...etc", that:

 

The defendant is to file at the court office and serve the claimant with a list setting out how charges have been calculated. The original documents shall be brought to the hearing

 

In other words, DISCLOSURE, as respectfully requested by me on the AQ.

[maisielou]

my court date is 8th September and i still havent been asked to send copies of any documents...????

[Bookworm]

Phone the court, and ask them. Tell them you're getting concerned, and just checking that the letter didn't get lost in the post.

 

Meanwhile, if you haven't done so, I suggest you start getting together:

- copy of UTTCR 99

- copy of Unfair Contract Terms 77 (I assume these 2 are the ones you referred to in your claim form?)

- copy of the OFT statement of April 5th.

- your banks statements and all relevant correspondence to and from the bank.

- relevant case law summaries, Wilson, Dunlop...

[blueskies]

Even though I have taken the offer from Barclays I am watching this case with interest. It looks as though you have a judge that will challenge the defendant (whether it will be ASJ or KJ (mine was passed back to KJ)).

 

I would like to come to the court and offer support (if working hours allow it) if that's ok with you Bookworm.

 

Good luck.

 

Steve.

 

P.S. I will be against the same people again with Barclaycard

[Spotted Dog]

Glad you have got a date now.

I am waiting for mine - AQ sent 10 days ago (which included the disclosure paragraph)

 

 

Spotty

[octron32]

Phone the court, and ask them. Tell them you're getting concerned, and just checking that the letter didn't get lost in the post.

 

Meanwhile, if you haven't done so, I suggest you start getting together:

- copy of UTTCR 99

- copy of Unfair Contract Terms 77 (I assume these 2 are the ones you referred to in your claim form?)

- copy of the OFT statement of April 5th.

- your banks statements and all relevant correspondence to and from the bank.

- relevant case law summaries, Wilson, Dunlop...

 

just to make it easy heres links to all you have mentioned to get together.

 

UTTCR 99 http://www.opsi.gov.uk/si/si1999/19992083.htm

 

copy of Unfair Contract Terms 77 http://www.johnantell.co.uk/UCTA1977.htm

 

copy of the OFT statement of April 5th in full

http://64.233.183.104/search?q=cache:7XOgeQdp-GsJ:www.oft.gov.uk/NR/rdonlyres/2EBC491E-303E-4FAA-A24D-32EF8396255E/0/oft842.pdf+OFT+statement+of+April&hl=en&gl=uk&ct=clnk&cd=1

 

copy of the OFT statement of April 5th summary

http://www.consumeractiongroup.co.uk/forum/general/23736-summary-exactly-what-oft.html

 

relevant case law summaries, Wilson, Dunlop

 

dunlop overview

http://en.wikipedia.org/wiki/Dunlop_Pneumatic_Tyre_v._Selfridge_and_Co._Ltd.

 

The established jurisprudence

http://www.bankchargeshell.co.uk/legal.html

[maisielou]

Thank you i will phone the court later today...................i only got my court date through the post on saturday and since sending in my AQ(2 weeks ago) they have already changed the Judge and the court? and on the bottom of the letter it states

 

please note this case may be released to another Judge, possibly at a different court:o

[Bookworm]

I would like to come to the court and offer support (if working hours allow it) if that's ok with you Bookworm.

 

Well, I would love you to, but l wouldn't book the time off yet, if I were you, lol.

 

Let's face it, does anyone here believe that faced with an order to disclose their costs, Barclays are going to even think about actually appearing in court?

 

TBH, I never really had any doubt that they would settle before court anyway, but I KNOW that ordering them to disclose their costs will ensure that it happens.

 

Banks have settled much bigger claims than mine (under the 500) and have refused to disclose this info to a Commons Select committee, remember, so they're sure as hell not going to reveal to little ol' me!

[blueskies]

I know it won't reach court but I would love it to happen. If ASJ saw your great performance on Tonight with Trevor McDonald he would probably be too scared to face you in court anyway. My support will be there if it gets that far though.

[maisielou]

I phoned the court and was told.........if we need anything from you we will let you know?

[squishy]

oooh, I wish I'd put the disclosure bit on mine when I sent it back yesterday, but this is the first I'd seen about it! oops

 

That seems like a late court date considering how long your claim has been in process, more time for them to stall, or do you think it's standard? .....blimey, by then I will have given birth - eek!

 

[Bookworm]

Depends on how busy the local courts are, I guess, I have another claim and I got a really far away date from claim to hearing date... Well, this is Croydon, we do get busy with criminals around here, lol.

[Guest Niklowe]

I suspect the courts are snowed under with claims now. I know of at least three other forums doing the same as this forum. This forum is by far the most professional I would say.

 

(Crawling to Dave and Bankfodder)

[caro]

Well at least you will have something towards the Christmas presents Bookworm. However personally I would far rather stand up and say no to a Commons Select Committee than you in full flight any day of the week. lol. I think Barclays must be afraid. Very afraid!!:o

 

Now where can I hide.

[rogerebaker]

Ive just had a court date for my Barclays Claim 23/10/06

 

Although the judge didnt order disclosure he said all documents to be used at the trial (Including expert witnesses) to be served on all parties by 11th Sept.

 

Looks like the long road with Barclays for us all is slowly coming to an end.

 

Keep it up.

[Bookworm]

Heyyyy, that's not fair, you got yours after me, and the date is earlier!!! *sulks*

[rogerebaker]

My money's on a settlement before the 11th September !!!