daniej1 Vs Barclays Bank

[daniej1]

Ok, just to let you know whats going on with my claim.

 

I have gone through all the SAR, Prelim and LBA as directed by the website and have now, as they have not issued me with an appropriate response, I have filled a claim with MCOL dated 28/11. They have 14 days now in which to defend.

 

Before my SAR was accepted, they offered me £1000 to settle early (claim is £2900 all inc) to which I declined. During LBA they offered to settle for £650 which I haven't responded to but since it was close to the deadline, decided to issue to the claim online to confirm I am still pressing ahead.

 

I will keep you informed of how I get on. I have prepared all the court bundles ready for when asked for.

 

Without the sites help, it wouldn't of been possible, I will donate some of the proceeds to help maintain this site.

 

Jon.

[Welshman]

Remember that legally they allow 5 days for the claim to be served and that's when the first 14 days period starts.

[daniej1]

Yeah I recieved the initial court document this morning outlining that, I wasn't aware of that. I also note that they get a great chance of dragging this out even more if they acknoledge this within the 14 days they then get a further 28! Or is it 14 and then 14?

[Welshman]

It's a total of 33 days after filing. It soon goes.

[daniej1]

Yeah I expect it will go fairly quickly.

[daniej1]

They have until the 17th to file a defence which is today. Now I presume that its tomorrow I can file for judgement by default?

[Welshman]

If that's the case, and they havn't defended, click on the judgement button before 9am to set the ball rolling today. If you do it after 9am, then it will be processed the next day.

[daniej1]

This is strange. I went onto MCOL this morning and it still will not allow me file a judgement, saying its too early to do this. Now, it was issued on the 28/11 and the letter I had says it was deemed recieved on the 3rd so they had until the 17th to acknoledge but they haven't. Surely, I should be able to file for default?

[daniej1]

Ok, true to form for Barclays, they have acknoledged this today, so I wait a further 14 days. How pointless is all this! I mean, this is no more than another bloody delay tactic. Surely, if I have filled a claim they they must have some idea that I will go through with all of this?! So I wait, the waiting is what is annoying me!

[daniej1]

Update to this, Barclays have now decided to defend this so I await the AQ from the courts. I have my court bundle ready to go and have my AQ details ready to fill in and send straight back. Will keep you all posted to how I get on.

[daniej1]

I have recieved their defence today along with the AQ. Please can somebody read through the following defence and tell me if this is a standard reply as their is a few things within it I don't like the sound of:

 

Defence.

 

1. The particulars of claim do not provide details or particulars of the account in question and / or the previse charges alleged to have been unlawful. 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 defendent 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 summerised);

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 debit cannot 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 transparant 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, failure to arrange an authorised overdraft 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 the claimant incurrent 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 a breach of the Unfair Terms in Consumer Contracts Regulations 1999 (particularly but without limitation to, paragraph 1 (e) of Schedule provision), or are unreasonable within the meaning 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 defendant an authorised overdraft facility or to increase the overdraft facility and defendant an authorised overdraft facility or to increase the overdraft facility and / or his failure to make payments to bring the balance of his account back into credit.

 

8. It is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same. Accordingly, the claimant is not entitled to a declaration by the court as to the enforceability of the said charges.

 

9. The defendant denies that it is liable to the claimant for the sums claimed and interest as pleaded by the claimant or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by the claimant to have been applied to the account prior to 28th November 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accural, pursuant to the Limitation Act 1980.

 

10. In the alternative, and without prejudice to paragraph 6 above, if (which is denied) the said charges and interest or any part thereof unlawful or unenforceable as alleged by the claimant or at all, the defendant has nonetheless suffered loss and damage as a consequence of the claimant's breach of contract on allowing the account to go into unauthorised overdraft. Accordingly, in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraphs 2 to 3 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 said charges, and the defendant seeks to set off such sums againstany liability owed hereunder to the claimant.

 

BLIMEY, hands are aching after typing that lot. Ok, my concerns are paragraph 1 & 10. Paragraph 1 simply as I don't quite understand what their saying here. Are they saying that my correspondance wasn't detailed enough? I know for a fact it was exactly as its supposed to be, word for word from templates. Paragraph 10 as I believe they are saying that if I persist and am awarded the claim, they will pursue for the real costs incurred which could account for more.

 

Can somebody please advise me whether this is a standard defence and to give me some real advice on Paragraph 10 as it worrying to think they may seek more money than I am claiming.

 

Thanks in advance.

 

Jon.

[daniej1]

I am due to send off the AQ today. Can anyone tell me at what stage to send the Particulars of Claim?

[pjdavies2000]

Hi Jon

Relating to your para 10 issue, when I get to this stage and I get the letter I will be looking for them to say that the issue is settled for both parties (basically in the same terms as they say in their initial offer letter) which should stop them trying to recover any costs after the case is closed.

 

If they do not accept, then to court we go!

 

Peter

[lorwiggins]

Hi - having read a couple of other peoples threads, they have all received this 10 point letter, I think it is a standard letter sent out to everyone.

 

As for point 10 - it goes completely over my head - however I think they are saying that it has cost them money when you haven't been in credit (hence the charges) and that they intend to get that money back ... well they are unlikely to do this, as that would mean that they would have to tell us how much it actually costs them when we go overdrawn ... and that is not going to be very much and they aren't likely to put out how much it actually costs in to the public domain.

[daniej1]

Thanks for easing my concerns with Para 10. I never thought that once a settlement is discussed, that I can then pursue it to be settled for both parties, great idea.

 

However, does anyone know the answer to my previous question about the AQ and Particulars of Claim? I can't find anything on the FAQ's.

 

Thanks.

[daniej1]

Anyone know?

[daniej1]

Ok, unless anyone tells me otherwise, I will just send the AQ, Particulars of Claim and schedule of charges to the court together.

[daniej1]

Please help:

 

I recieved note from the courts that I am due an allocation hearing at the end of the month. What exactly is this about? I presume its not to do with what track it should be as they clearly sent me a small claims form to fill in. Can this hearing be deamed an actual court date that the bank should settle before? Your help is greatly appreciated.

[Welshman]

Allocation hearing IS to do with deciding which actual track it follows.

 

The Bank MAY settle but probably won't until the actual hearing date comes through.

 

In my case, I had a Directions Hearing and they settled before that one. The difference between those types of hearing? I don't know.

[daniej1]

Is it only me that has to attend this or will their be a representative from Barclays there too? What should I prepare for this meeting? Cheers for the help.

[Welshman]

Depends what it says in the letter. The Directions Hearing letter I received said that I could attend OR send in written representations.

[daniej1]

Thanks for your help, I will call the courts Monday to confirm this.

[daniej1]

Ok, hearing is tomorrow but they settled today. Took much negotiating with Anthony Lombardi but got the full settlement of £3200. Thanks for all the help here, I will be donating some money when I recieve the cash myself.