Claiming old charges with contractual interest

[slick132]

Thanks Tnook,

 

Bear with us while we discuss this behind the scenes - we want you to win just as much as you do but we want to find the right balance between maximising your claim without risking too much in court fees, and in possible court costs awarded to the defendant bank.

[tnook]

i understand. Just be aware I am

prepared to take some risks

[tnook]

Hi all,

 

Hope everyone survived Christmas and the New Year. I've been digging around the site and found this for a POC. Just investigating the POC at this stage. Are they still good to be used or has anything changed since they were last used?

 

I haven't kicked off the process of sending request letters yet. I am to break up the claims into smaller 'small claims track' chunks. Is there a way of avoiding them saying "full and final settlement of ALL charges" and get them to just be a "full and final settlement of the LISTED charges?

 

Thanks for all your help.

 

Here is the POC I found:

 

New POC Barclays (N1)

Claim No [ ]

 

IN THE [xxxxx] county court

  

 BETWEEN

 

 [Mr xxxx xxxx]

 Claimant

 

 and

 

 

 -Barclays

  

 Defendant

 

 

 PARTICULARS OF CLAIM

 

 

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

 

The Charges

  

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

11.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

 

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims; 

 

(1) These charges are older than the normal 6 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 £xxx.xx and interest in restitution of £xxxx.xx as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed (daily rate of £x.xx) until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

 

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

 

Dated

  

Signed

 

 

 

 

Schedule 1

 

From Cahoot Conditions in force (as of Dec xxxx).

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a)3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b)If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance. 

The minimum payment must be received by us and paid into your account on or before the payment date.

 

 

 

 

Schedule 2

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

[slick132]

Hi TN,

 

It gets quiet over the w/end but I hope Site Team @Andyorch  will drop by soon to look over the POC. I suspect he may advise some changes to  update  the document.

[AndyOrch]

Quote

Is there a way of avoiding them saying " full and final settlement of ALL charges" and get them to just be a " full and final settlement of the LISTED charges?

 

 

I think I understand why you are asking this......and the possible defence you may encounter.

Given that you intend to issue separate claims against the same agreement...they may argue that you are litigating more than once on the same issue.

 

 

A defendant to a claim may use res judicata as defense subject to how the particulars are worded. The general rule is that a claimant who instigates an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:

• the claim is based on the same transaction that was at issue in the first action;
• the claimant seeks a different remedy, or further remedy, than was obtained in the first action;
• the claim is of such nature as could have been joined in the first action

 

So you may hit a stalemate in getting round " All " and " Listed "...but of course you dont have to accept in full and final...unless its drafted as this claim only.

 

Andy

[tnook]

Hi all,

 

Haven't started the claim process yet. Been a bit sidetracked with pandemics recently.

 

Thanks for the insights @Andyorch abiout multiple claims. Could I break down a claim into two if I went after different types of charges per claim sequentially. So one account and went after:

 

Claim 1: Late Payment Fees

Claim 2: Over limit fees

 

Thanks for your help.

 

 

[tnook]

I was going over the statements I got from my SAR court action. Interesting to note Barclays use Iron Mountain for their storage. Not sure it's relevant but may help others in future. See attachment.

 

 

[tnook]

Ok, progressing with my first POC, I am adapting the previous version used by Shelly etc.. aiming to submit it today. I've already sent the request for payment and LBA letters as per usual.

 

Couple questions:

 

1. I had added references to the Consumer Rights Act 2015 as well as the UTCCR 1999 since the claim spans both. Have I done this correctly?

2. The charges and restitution come to just under £10k, when the court fee is added it takes the claim just over £10k, will this push it out of the small claims track? I can reduce the claim a bit to compensate if I need to.

3. I've started filling in the MCOL forms, it asks for the items claimed. Do I separate  the Charges and Restitution or combine them?

 

Thanks for you help.

 

 

[AndyOrch]

59 minutes ago, tnook said:

Ok, progressing with my first POC, I am adapting the previous version used by Shelly etc.. aiming to submit it today. I've already sent the request for payment and LBA letters as per usual.

 

Couple questions:

 

1. I had added references to the Consumer Rights Act 2015 as well as the UTCCR 1999 since the claim spans both. Have I done this correctly?

Yes

59 minutes ago, tnook said:

2. The charges and restitution come to just under £10k, when the court fee is added it takes the claim just over £10k, will this push it out of the small claims track? I can reduce the claim a bit to compensate if I need to. £10K + costs is SCT

 

3. I've started filling in the MCOL forms, it asks for the items claimed. Do I separate  the Charges and Restitution or combine them?

Are you issuing separate particulars ?

59 minutes ago, tnook said:

 

Thanks for you help.

 

 

 

 

Andy

[tnook]

Thanks for the pointers. I have amended Shelly's POC to include CRA and UTCCR. I've attached my draft as a PDF for anyone to comment on. 

 

I hadn't planned on issuing separate particulars since you can now attach longer documents to MCOL. If it looks ok. I'll submit it. Looking forward to getting this on the way.

 

 

CAG CC POC 2020.pdf

[AndyOrch]

looks good.....the only I would possibly suggest is throwing in that the £12 limit was never set by the courts as an acceptable amount.....its was decided in the OFT case in Manchester that £12 was an acceptable charge re current accounts and overdrafts....not credit cards...they simply latched on and reduced all their fees to this level. 

 

https://www.manchestereveningnews.co.uk/news/greater-manchester-news/regulators-no-to-action-over-bank-937645.amp

 

https://www.manchestereveningnews.co.uk/news/greater-manchester-news/overdrafts-victory-for-customers-951469

 

https://www.gov.uk/cma-cases/personal-current-account-contract-terms-unarranged-overdraft-charges

[tnook]

Missile launched

 

 

Quote

What happens next

Barclays Bank UK PLC has until 4pm on 17 August 2020 to respond to your claim. They can request an extra 14 days if they need it.

You can request a County Court Judgment against them if they don’t respond by the deadline.

 

 

[AndyOrch]

[tnook]

Doing exactly the same with Cahoot/Santander credit card. They have another week before their LBA expires.

[tnook]

Progress. I have received an email letter from Barclays solicitors. Same company who handled my claim to get the statements. They seem to think I am rushing things by going to court and should wait for a response from the bank. Bit odd, since they wrote to me with their final position in July stating that they would not refund the charges.

 

Dear Sir

 

Our client: Barclays Bank UK PLC t/a Barclaycard
 

We are instructed on behalf of Barclays Bank UK PLC t/a Barclaycard (the Bank) and refer to

your letters dated 16 July 2020 and 22 June 2020.

 

We are currently taking instructions from the Bank in relation to your correspondence and will endeavour to provide you with the Bank’s response on or before 28 August 2020 (i.e. within 21 days).

In the meantime and until you receive the Bank’s response, we believe that it would be entirely premature for you to take the legal action that you speak of and so we would ask you to refrain from doing so.

 

Should you choose to commence legal proceedings immediately, we reserve the right to refer this letter to the Court on any question of costs that may arise.

 

Moving forwards, we should be grateful if you could refer any future correspondence in relation to this matter to our Mohammed Algrieri via the above email address.

 

Yours faithfully

The solicitors

 

My reply to them:

 

Quote

Dear Sir,

 

Thank-you for your correspondence. I draw your attention to the letter Barclays sent on the 6th of July stating their final position was not to support my complaint. If Barclays have changed their mind and wish to settle I would be happy withdraw the claim and we could save the courts time and costs.

 

Yours faithfully,

tnook

 

 

[tnook]

Update: Unsurprisingly the bank have requested the extra 14 days to file their defence.

 

Quote

The defendant has requested more time to respond

Barclays Bank UK PLC has requested an extra 14 days to respond. They now have until 4pm on 7 September 2020 to respond.

 

[tnook]

Latest developments are that BC are looking at mediation. No real defence filed. Stalling.

[tnook]

New development today. BC solicitor is asking me for another 7 days to submit their defence on top of the additional 2 weeks they have taken.

 

Meanwhile on my Santander thread, their defence makes it look like they are ready to go to court to fight it.

[AndyOrch]

They only get 14 days...that the law......unless its agreed by you.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#15.5

[tnook]

Would I look unreasonable if I didn't agree to the extension?

[AndyOrch]

No......they have already had 33 days in total....no need for 40.

[tnook]

So today at 4pm is the deadline for BC to file a defence . They have asked for an additional 7 days. As you say AndyOrch, they have had enough time. They have actually had 41 days so far. BC got the claim on August 18th, they asked for 2 more weeks the deadline then for submission was Sept 7th. BC then got an additional 21 days. The attached PDF is the original response BC sent to the court. Every part of the form is filled in with the same phrase:

 

Quote

Please see the email sent to the Court

[[email protected] ] on 4 September 2020 at 15:12PM. The email attached the Defendant's N244 Application Notice and Draft Order. We confirm that a copy of these documents have been served on the Claimant.

 

 

This is the core of the email they sent to the court on the 4th of Sept, basically asking for a 21 day extension.

 

Quote

1.    The Claimant is an individual and the Defendant (the Bank) is a financial institution. This claim concerns
account fees applied to the Claimant's credit card accounts.

2.    The claim was issued in the County Court Business Centre via Online Civil Money Claims on 5 August 2020.

3.    The Bank's legal representatives (xxxx) received the Claim Form from the Bank on 13 August 2020 and acknowledged the claim on 18 August 2020. The deadline for filing the response is currently 7 September 2020.

4.    The claim raises various points of law and so the Bank is engaging counsel in respect of the allegations raised by the Claimant. Whilst the Bank will finalise and file its defence to the claim as soon as possible, the Bank is not yet in a position to finalise, file and serve its defence. Therefore, by granting the Bank an extension to the deadline, it is likely to save time and costs of having to amend or alter the defence at a later stage in these proceedings.

5.    By an email dated 4 September 2020, BC requested the Claimant's consent to a 21 day extension of time to file and serve its response, to 28 September 2020. At the time of this application, the Claimant has not yet provided a response to this request.

6.    The Bank therefore respectfully requests that an order be made, under the Court's case management powers in CPR 3.1(2)(a), extending the deadline for the Bank to file and serve its defence to 4.00pm on 28 September 2020. The Bank considers an extension to be reasonable in the circumstances - an extension would not prejudice the Claimant's position and would simply allow the Defendant adequate time to consider and respond to the Claimant's allegations.

 

However, they did tick the box agreeing to mediation. So now the mediation cycle is kicking off, which will commence within the next 2 weeks. I guess they managed to get their extension through the back door.

redact-response.pdf

Edited September 28, 2020 by tnook

[AndyOrch]

What mediation tick box ?  They have yet to submit a defence and mediation only applies at allocation.

[tnook]

Part 3 on their Defendant's Response form (attached in last post)

[AndyOrch]

Im not up to date on this new system.....so they complete a directions questionnaire now before submitting a defence ?