Claiming old charges with contractual interest

[tnook]

I think they broke the system by filling in "see our email from Sept 4th" in all the cells. The MCOL website probably thought that was their defence.

 

If they don't submit a defence by 4pm, I think I should email the courts and ask for clarification around the process.

Edited September 28, 2020 by tnook

[AndyOrch]

And request Judgment 

[dx100uk]

they've sent an N244?

[tnook]

Yes they submitted a N244, attached as PDF, on Sept 4th asking for an additional 21 days.

 

 

N244 redacted.pdf

[AndyOrch]

On 25/09/2020 at 20:20, Andyorch said:

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

 

See their point 5.....you didnt agree.....they must have the claimants consent.

[tnook]

Yeah they submitted it late on Friday the 4th of Sept, Monday 7th was the deadline. They never asked first, they asked after.

 

They are doing the same thing again. Deadline today and 17:30 on Friday the asked for a further 7 days. I didn't respond.

[AndyOrch]

Then clarify it with the court...inform them you did not agree pursuant to CPR 15.5 as confirmed  per their point 4 of their application notice.

[tnook]

Just had an email from the mediation service. Interesting, they say if I can't agree to be flexible on the amount of the claim then I should decline mediation. Will this count against me in the 'being reasonable' sense?

 

I'm still going to do the things we mentioned above, ask for judgement if there is no defence today.

 

 

Quote

Small Claims Telephone Mediation ServiceAppointment Time & Date

A confidential telephone mediation appointment has been booked for 09/10/2020, You will be called between 13:00 and 16:30. The appointment will last for a maximum of one hour. When the initial call is made that's when your one hour slot starts.

Important Mediation Requirements

Please read the following 3 statements

1. For mediation to be successful, you would need to be willing to negotiate on the amount of the claim and have a degree of flexibility

2. You confirm that you have enough information about the claim to allow you to enter into negotiations and that you do not require any further evidence from the other party before you can mediate

3. You confirm that you are available for the entire timeslot on the date stated above.

Mediation is only available to you if you can answer YES to all statements above. If you cannot answer YESto all statements, mediation is NOT suitable for your case. Please contact us if you cannot agree to all 3 statements on [email protected].

 

 

 

[AndyOrch]

Im still trying to work out you can get to mediation and Directions Questionnaire without submitting a defence...as your considerations in mediation would be based on their defence

[tnook]

Well with less than 15 minutes to go I got an email from the solicitors. It's another N244 form and a witness statement plus some draft orders. Basically requesting a judgement to strike out. I will remove my personal info from their document and upload it shortly. Here is the summary from their new N244:

 

Quote

The Defendant respectfully asks the Court to make the following Order (a draft of which is attached):

1. The Claim (or alternatively parts thereof) is summarily dismissed pursuant to CPR r24.2 on the basis that it has no real prospect of success and/or struck out pursuant to CPR r3.4(2)(a) there being no reasonable grounds to bring it; and

2. The Claimant shall within 28 days of the Order pay the Defendant’s costs of the Defendant’s Application due to unreasonably persisting with this claim in accordance with CPR r27.14(g).

The Claimant’s attention is drawn to CPR24.5(1) which states that if a Responded to an application for Summary Judgment wishes to rely on written evidence at the hearing, the Respondent must file the witness statement and serve it on every other party to the Application at least seven days before the Summary Judgment hearing.

 

[tnook]

Attached is their N244 to request a strike out and costs. They had also included the T&C's from several other banks to show that £12 fees are the norm in banking, I extracted them to reduce the file size.

 

Because one of the newer cards was defaulted, they argue they never got enriched and so no  restitution is due. Possibly for some of the latter charges, however there are many I paid. Even so the old card is where the bulk of the restitution lies, it was never defaulted.

 

They are dismissive of Benson Kleinworth and cite Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015]  to dismiss the fees as not being penalties.

 

 

redacted n244 strike out.pdf

[AndyOrch]

Summary disposal /Judgment now without even submitting a defence....... they never intended submitting a defence with or without an agreed extension.

 

Evidence: applicants must identify the point of law or document to be relied on and state the grounds for making the application in accordance with CPR 24.2.

 

An application for summary judgment is usually only made once the defence or acknowledgement of service has been filed.

Summary judgment applications are suitable in cases where the party making the application considers that the case is a clear cut matter of fact or law, in which oral evidence is not required. It is also used when the applicant considers that the other party has insufficient evidence to prove its case. There are considerable potential savings in terms of time and costs.

 

An application notice must be completed, then filed and served along with the supporting evidence - usually a witness statement together with copies of any supporting documents. The supporting evidence will set out the reasons why the applicant considers summary judgment to be appropriate.

 

The respondent also has an opportunity to rely on written evidence, which must be served in good time for the hearing.

 

[tnook]

When I go into MCOL the only document is the Defendant's Response from Sept 4th, there they state that they dispute the claim and then every space on the form states "see the email we send to the courts and N244 etc". (uploaded PDFs above).

 

So does the latest N244 and witness statement count as their defence? Feels like a complete abuse of process.

[AndyOrch]

Not really its evidence in support of their application...I would be very surprised if a Judge would entertain this application but if they get a hearing you must respond with your own statement in response with objection as to why the application should be dismissed.

[tnook]

and in the mean time the mediation process has started 

 

Actually I'll write to the mediation team and highlight the lack of a defence and it will cause a disadvantage.

Edited September 28, 2020 by tnook

[tnook]

So the only thing to report is that my mediation call has been scheduled for next week.

Seems very odd considering the lack of defence and the N224 order BC filed.

 

I think the MCOL process is broken because BC filed an incorrect response and ticked the mediation flag.

I'll attend the session but I expect BC won't attend theirs. 

[tnook]

Sorry mediation is today, got the date muddled with Santander.

 

Mediator just called and asked for my position.

Told the lady what the summary position is and that I would be happy to listen to any proposals from BC.

Waiting for her to call back.

 

BC are relying on their defence that the costs are statute barred and that a recent supreme court case overrides the test for a penalty fee, so they were justified fees. Their compromise is that if I drop the case they won't pursue their costs.

 

The mediator asked for my counter proposal, I said if they write off the current card I have (80% of the claim amount) I would drop the claim. I expect they will say no.

 

Got the impression the mediator was over-egging the risk of costs to me.

 

the mediator called back the BC solicitor says they have no instructions on being able to write off the credit card. They are now offering a refund of my £410 court fee as a final offer. I've said I can't accept that and that I feel I have a strong case. Will see what they say now.

 

 the BC solicitor said they will take my proposal back to BC and come back with a response in a couple weeks.

In the mean time their application to strike out will be processed.

[tnook]

Update:

 

Received mail from the courts. The hearing is set for..... MARCH next year.

[AndyOrch]

[tnook]

Ok so its been a while and the hearing to go over Barclays request to stike out is proceeding on March 3rd via teleconference. Thinking I should respond to Barclays claims that the supreme court declared that the charges are not penalties and that I am relying on out dated laws. Will have a look this weekend.

[dx100uk]

Urm..the fca said nothing of the sort, they affirmed all sums no matter what their level were still, in their view unlawful penalties, just they would not take any direct action were they below £12. hEnce why they all changed to £12.

 

DX

[tnook]

Their solicitors are saying there is another Supreme Court case which states the charges are not penalties or should not be considered as such. This is from their witness statement:

 

Quote

The main claim advanced is that the charges applied to both accounts were penalties. This is entirely misconceived. The Claimant relies on outdated case law and the wrong test. He refers to the pre-estimate of damage test, which was explicitly held not to be a good guide by the Supreme Court which restated the position regarding punitive contract clauses in Cavendish Square Holding BV v El Makes; ParkingEye Ltd v Beavis [2015] UKSC 67 ('Cavendish Square') - specifically also in relation to consumers.

The real question, according to Cavendish Square, when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. The supreme Court has made clear that the relevant questions are "whether the means by which the contracting party's conduct is to be influenced re "unconscionable" or (which will usually amount to the same thing) "extravagant" by reference to some norm".

 

Are they just trying to deflect the court or is this a potential issue?

 

[craigten]

Hi, just a quick one to say that I am so very impressed with your determination. Keep it up!!!

[AndyOrch]

Hardly comparable ...Speculative Parking Charges to a Consumer Credit Agreement regulated by the Consumer Credit Act 1974. ?

[tnook]

Thanks Andy, just finishing my response / witness statement requesting the application to strike out with costs is rejected. Will post the draft in the thread later, if you could check for any glaring errors that would be appreciated.