Won FOS Complaint but Barclays not complying

[Dazza75]

This is the only page where you can enter any details for the defendant. The next page is particulars of the claim.

[BankFodder]

Okay, here is a suggested draft of a letter which you might like to get off to the solicitors – no guarantee that they will bother to read it. These people are only trained in conflict – and never in problem solving.

 

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Dear Claire,

 

Thank you for your letter of 6 May making various threats against me and which I received at 2:13 PM and which gave me until 3:30 PM to respond and at the same time suggested that I might want to take independent legal advice.  I notice that you have already made your set-aside application – a mere one hour and 15 minutes after your unilaterally imposed deadline.

 

I hope you will take time to read through this letter because it contains some proposals for bringing an end to the conflict between myself and your clients – if there is sufficient goodwill.

 

I have pointed out in previous correspondence to your colleagues that I am a frontline worker in the current virus crisis and so that apart from anything else, I’m extremely preoccupied with greater priorities then dealing with your chaotic clients and yourselves.
 

I am prepared to discuss agreeing to your set-aside proposal – but it will have to be part of a general package of discussion to solve the problems which have been caused to me by the mishandling of my personal business by Barclays bank. Also, for the avoidance of doubt, I'm not prepared to consent to bear any costs of this matter which has been brought about by your own clients.

 

If you prefer to be conflict-oriented rather than look at the larger picture then you had probably better continue with your set-aside application on the grounds that you have indicated.

However I will point out now that although I am a litigant in person and I have had to make my own way, I am aware that CPR 6 requires service of proceedings on a company solicitor if that solicitor has notified the claimant in writing that they are “instructed” to accept service.
 

You have not complied with requirements of CPR6 in that you did not give me notice that you were “instructed to accept service”. In fact the only suggestion as to an address for service was made by Harriet Loucks on 25 March in which she invited me to address the claim form to your firm – but it was clearly left to my discretion.
 

Furthermore, you don't seem to be aware that the County Court's Moneyclaim service is intended to discourage the use of legal representatives and therefore there is no  space on the money claim online form to put any service details other than the name and address of the defendant. Even if you had told me that you had been instructed to accept service, it would not have been possible.  CPR6 is at odds with the Moneyclaim system.

If you insist on continuing with your application for a set-aside without agreeing it with me, then this will be brought to the attention of the court. However, if we can agree then it will save a lot of time and money for yourselves, your clients and of course it will reduce the trouble and inconvenience to the court, not to mention the embarrassment to your clients when your set-aside application is dismissed and the inevitable judgement for their breach of their statutory duty is confirmed.
 

Additionally, it is clear that there are two conditions which must be satisfied in order for a set-aside to be granted. The first is that the defendant did not receive the claim. The second is that the defendant has a viable defence.

 

1. The papers were issued and served directly by the court. It is clear that your clients must have received the papers – it is simply that they have mislaid them. I have already pointed out that it was not possible to address the papers to yourselves as the Moneyclaim system does not permit it.
2. The claim is for a breach of statutory duty in respect of failure to comply with the disclosure rules under the Data Protection Act. The statutory disclosure is still outstanding. The breach of the data protection rules has been committed at the expiry of the statutory period and frankly there is no defence. 

 

I hope you are familiar with the most recently published wording of the statement of truth which must accompany all applications to the court:

“…I understand that proceedings for contempt of court may be brought against anyone who makes or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.

 

You have asked me whether the enforcement process has begun – and the answer is yes it has.
 

You have asked me for sight of the court papers. Presumably this means that the papers which were properly and directly served upon your client by the court and which they have lost.
 

I will provide you with copies of these early next week – but as I have already said to you I’m a frontline worker. This matter is not presently a priority. If you can’t wait then you can explain this to the court if you wish.

 

I’m not too sure where you want to start with this. I’ve been dealing with your office in respect of this for some time now – and I would say that the communication from your site has been patchy. Most recently I’ve been sending emails and receiving no reply at all – not even out of office replies.
 

I suppose that you may want to blame this on the virus crisis – most people do – but I would remind you that I am a frontline worker and I have found time for this and I’m not being paid by my client.

 

As I have said, I think that this is an opportunity for both sides to discuss the issues which have led to this unfortunate confrontation.

I think it would be a good idea if you obtained the entire file from Barclays and looked through all correspondence to see how badly the matter has been handled.
 

You will see that the whole issue started when I quite legitimately made a chargeback application to Barclays in March 2019.

Barclays lost certain documents which I had provided them with and as a result took money out of my account which I could ill afford and then eventually close my account. It eventually transpired that they had applied a CIFAS marker to my account on the basis that there had been multiple fraudulent transactions.

 

I have yet to see any evidence of this and to my knowledge the police have never been informed – and certainly I have not been questioned in respect of any crime.

Complaints were made and eventually the matter went to the Financial Ombudsman Service and a decision was made in my favour.

Despite having a decision in my favour from the FOS, Barclays bungled that as well and most importantly the CIFAS marker against my good name has been maintained by Barclays – and without any explanation.

 

It seems fairly clear to me that Barclays were embarrassed in respect of their mishandling of the chargeback and their loss of documents and decided to cover their tracks by applying the CIFAS marker, which you may know is a procedure which is steeped in secrecy.

Barclays eventually handed me back my money – but not the compensation which had been recommended at the time by the FOS. The CIFAS marker remains in place and I am unable to open a bank account. Barclays closure of my bank account was unfair and not supported by any evidence.
What is striking is that not only has the FOS made a decision against Barclays, Barclays themselves have admitted the error but have stop short of undoing the damage that they have caused by their own admission.

 

The story which I have recounted above this gives you a very brief summary of the events which have happened and which have destroyed my financial reputation and caused distress to me and my family and which during this virus crisis has become increasingly difficult to deal with.
 

I am prepared to agree to the set-aside and the withdrawal of the judgement – but only on condition that we have a full and frank discussion about this problem with a view to working together to address the problems caused by your client.
 

I want to make it quite clear at this point, that this would include addressing ourselves to removing the CIFAS marker and reopening my bank account and erasing all traces of this unjust action against me.

 

On the other hand, if you find that I have been involved in multiple fraudulent transactions then of course the CIFAS marker should remain in place but I then want an undertaking from you that you will inform the police so that I can be subject to a proper and open investigation.

 

As I have already pointed out, the court forms were properly served on your client. Your client is in breach of their statutory duty under the DPA – and there is no defence. We can try and remedy the situation if you can show goodwill.You should probably start out by providing me with the full subject access request disclosure which I asked for some time ago.
 

You should be aware that if you are not prepared to help me solve this problem, then when eventually I do get the subject access request, I expect fairly quickly after that to start a further action against your clients for breach of FCA regulations – their duty to treat customers fairly and to communicate with them fairly under the Banking: Conduct of Business Regulations 2009.
This is another breach of statutory duty – altogether far more serious and there breach of the DPA – and I have no doubt that I will obtain judgement in respect of this matter as well.
 

Please note that if you do not agree to enter into constructive discussion about this problem then all of this correspondence will eventually be put before a court. 
 

This is an opportunity to save everyone time and expense – and inconvenience to the court – by entering into a productive discussion to bring this unfortunate matter finally to an end.

I hope you will read this letter carefully and respond to me in the same spirit in which it was written.

 

Yours sincerely

 

 

 

 

 

 

Have a look through it and see if there is anything wrong or anything you disagree with.

[fkofilee]

I like BFs letter and brings the point home. 

You've come a long way... Let's see what happens

[Dazza75]

I would be more than happy to send the letter, it would be nice if it all came to an end where the issues were dealt with.

 

One concern is that she has already applied for the set aside, so does that make any difference? I assume fees etc have already been paid by them which they want to push onto me?

 

Also, as you say, it is not possible to serve the papers to the banks representative so how could they have the judgement set aside when the governments own portal would not let me issue the papers to the solicitors directly? Surely a judge couldn't hold that against me, as it is entirely not possible to do as they 'suggested'? It isn't a case of I decided to be awkward by serving them to Barclays head office instead of the solicitors, I did it as it is the only thing you can do and there is no alternative.

[BankFodder]

You will find that the solicitors didn't know about it. In fact they probably have no idea of CPR6. They exist on a kind of hand-me-down folklore and they don't really know why they take the decisions they do. They demonstrate limited thinking most of the time

[Dazza75]

Would it be worth fighting them on this? I am really up for it. Their main point of contention is that I served it to Barclays head office instead of the solicitors, and that I addressed it to 'Barclays Bank' which according to them is an entity that doesn't exist. They are saying it should have been served to 'Barclays Bank UK PLC' however it was sent to the correct address which is the head office in London.

 

As we now know, it is not possible to serve a moneyclaimonline claim to a representative. You have to serve it direct to the defendant so that point has to be mute. Secondly, if a claim is made against Barclays Bank at the head office address, how much can that differ to Barclays Bank Uk Plc at the head office address? Bearing in mind I am a layman and not a law professional and that moneyclaimonline is there to be used by people like me, a layman who isn't a law professional?

 

I have a few thousand pounds saved up so if its worth a shot then I'm willing to take a risk.

[BankFodder]

Well it would be nice to get your CIFAS problem sorted out and your financial reputation cleared up.

I think that there is scarcely a snowball's chance in hell that they will want to engage with you and to solve the problem so I think that you will find yourself fighting against the set-aside application anyway. If you are lucky enough that somebody in the office is sufficiently enlightened and interested in doing a good job – then this could be a good opportunity to get around the table and to develop some trust.

[Dazza75]

Also, that email she sent to me at 2.13pm - what if I didn't even see that email until tonight or tomorrow? She would have taken all this action without me having any awareness of it whatsoever. That hardly seems fair does it. They should have to do things like that as a hard copy letter sent in the post.

 

Had I read that email at 5.30pm this evening, I would have already been 2 hours too late to do anything she had requested.

Edited May 6, 2020 by Dazza75

[BankFodder]

Don't worry about it. Have you send the letter yet? If not then I'm going to make a slight amendment

[Dazza75]

7 minutes ago, BankFodder said:

Don't worry about it. Have you send the letter yet? If not then I'm going to make a slight amendment

 

Not yet, I have copied and pasted it onto an email for me, I thought I would wait a little while in case you needed to make changes  

[BankFodder]

Actually, don't worry. Just send it off if you're happy with it. However we will send them an additional note tomorrow

[BankFodder]

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Dear Claire

I refer to your letter of yesterday dated X X X - and that you have asked me to provide you with a copy of the claim form and other documents which your clients have apparently lost.
As I have said, I shall be providing you with these next week

In the meantime I notice that you have made a set-aside application in the County Court at Cardiff.

We please let me have a copy of your application and any other accompanying documents – and if not would you please explain why not.

Yours

 

I suggest that you get this off today – ASAP. Also, contact Cardiff County Court and asked them for copies of the application and any accompanying documents – just in case Barclays solicitors feel that they would prefer to hide this stuff from you

[Dazza75]

I sent the email to her last night that you wrote for me. Added a few little bits more to give some meat to the things you brought up and they haven’t bothered to acknowledge or reply. 
 

She has sent an email yesterday with all of those documents you mention. She actually had a copy of my claim as it’s in part of her claim documents so I don’t understand why she is asking me for it. 
 

Will the county court now send me a copy of the claim and and give me an opportunity to dispute the set aside?

 

I have been googling how to go about it and to be honest I’m not finding much info at all so I’m not sure how it progresses from here. 
 

If it looks like they will win the set aside and I’d be looking to pay their fees I’d rather instruct a solicitor and pay them to fight it then give them a penny. 
 

Do you want me to upload the documents she sent? It’ll take me a little while but I can do it. There are a few. 

[BankFodder]

20 minutes ago, Dazza75 said:

 

She has sent an email yesterday with all of those documents you mention. She actually had a copy of my claim as it’s in part of her claim documents so I don’t understand why she is asking me for it. 
 

 

 

Sorry, which documents are you referring to

[Dazza75]

Her application to have it set aside. It looks like whatever she sent to the courts, she also sent to me. I mentioned it yesterday when I sent you a message. 

[BankFodder]

Sorry, that had passed me by.

In that case, obviously don't send the note above. I'll get back to you later.

Please will you scan the documents you have received in PDF format and upload them as a PDF format – not an image PDF

[Dazza75]

All documents attached. 

Doc_20200506_180421.pdf Doc_20200506_210503.pdf Draft order (1).PDF draft order 2.PDF EXHIBIT_CM01.PDF Letter to Claimant 06_03_2020 (1).PDF N244.PDF n434 form.PDF WS of CM01.PDF

[fkofilee]

On a side note - It might have been bought up already - But the claim form is sent by NCCBC and further paperwork like a default judgement is also sent from them. They would all have been sent to the address that you had listed as the claimants address...

So how can they have missed the first items and only recieved the Default Judgement Notification? Unless I am missing something.

[Dazza75]

Their only half valid claim is that I sent it to Barclays and not them. They state in their paperwork here that they are ‘Instructed’ to receive it. They have never used that word in the emails sent to me.
 

Also as stated you cannot send it directly to them. Money claim online doesn’t allow it so I have done nothing wrong. I did exactly what money claim online told me to do. What their solicitors wanted me to do was impossible so it wasn’t done. 

 

As for not receiving the claim, if they received judgement then they received the claim. Someone obviously didn’t action it or give it to a person that could deal with it. 

[AndyOrch]

 

 

c) Providing a valid address for each Defendant You need to provide a full address within England and Wales for each defendant, including the post code. This is known as their service address. MCOL does not have jurisdiction outside England and Wales, claims issued to addresses outside England and Wales will be invalid.  if the defendant is an individual the claim must be served to their usual or last known residential address  if the defendant is an individual using a trading alias then the claim may be served to their usual or last known residential address or their place of business  if the defendant is an organisation then the claim may be served to their registered office or to the address where you have been dealing with them Further information on choosing the address for service correctly can be found in the Civil Procedure Rules 6.9. An online version of the Civil Procedure Rules can be found at www.justice.gov.uk/courts/procedure-rules/civil/rules/

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.9

 

Andy

[BankFodder]

Thank you for all the documents. Rather more than we needed.

I'm not quite clear. Are you saying that these are documents which were provided to you by the defendants? In other words have the defendants now come into possession of your claim form et cetera

[Dazza75]

No they were not provided by Barclays Bank. They were provided by the solicitor yesterday. As soon as she made the set aside application she sent all of this to me. 
 

it looks like she has rang them and they have forwarded the claim form onto her. There is an email in those files from the court to the solicitors. 

[BankFodder]

So I gather that somebody did have the claim form after all. The bank must either have had in their possession and not dealt with it – or else they had it, provided it to the solicitors and the solicitors failed to deal with it.

Either way, it is wrong of them to say that they do not have the documents and of course it is unnecessary for them to ask for the court to order that you provide them.

Is this correct?

[Dazza75]

No. On the pdf documents. There is a copy of my claim form and it says ‘For reference only’ so I guess the court has sent a copy of it via email to the solicitor. 
 

They are saying that the bank never received my claim form. 

[BankFodder]

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Dear Claire

you have asked me to provide you with a copy of the claim form and the particulars of claim. I notice that in your set-aside application you have even asked the court to order that I file and serve these with you.
I have already indicated that I shall be doing this – and I'm particularly surprised that you have provided me with precisely these documents and the bundle of papers that you have supplied to me as part of your set-aside application. Clearly you are in possession of them already.

Despite this, and for the avoidance of doubt – I'm returning to you copies of the claim form and of the particulars which you have already supplied to me.

Perhaps you will be prepared to indicate to me whether this is satisfactory or whether you feel that there are some other documents that you wish to have sight of.

Yours sincerely

 

I suggest that you sent this note above together with copies of the claim form and the particulars that they have asked for – and which amazingly they have already supplied to you – and even more amazingly which they have now asked the court to order you to produce.

What clots these people are