Calvsta V Barclays ***WON***

[GuidoT]

Regarding your post 23, no the POC sets out the basis of claim in fact and law. It is no good saying surely the bank will know, that is not how it works, I reiterate (refer back to my post 22) that the burden is on you to demonstrate you claim, even if the bank does know, the court certainly do not. The bank will not make your case for you, in fact it is the obverse, where the bank will delay and be as difficult as possible to deny you your entitlement.

 

As I said in my post 22 send it now. If they ask for it again then deal with it then. If you do not particularise your claim the banks may apply to have it struck out for want of particularisation.You do not need to send your statements at the moment, just the schedule of charges.

 

Regarding Dickaggsy's post (25) the schedule does not give you a 'rough idea', it should be accurate and precise. He is quite right that the bundle needs to includes statements, but you are a few months away reaching this stage (if you ever do and it does not settle beforehand).

[dickeggsy]

oops sorry i should have left ''rough'' out.

what i was trying to say is that the banks need your statements to see that they match up with your spreadsheet .

sorry to cause any confusion.

[scalvey]

Thank you for your help so far.

 

I will send the SOC to the bank and court as advised by GuidoT.

 

Please put my mind at rest and clear a few things up if anyone can -

Have I made a big mistake by not sending my SOC again to the bank and to the court when claiming through MCOL until now?

The bank filed a defence on the 8/2/06. When can I expect my AQ?

At what point do the courts decide where and when the hearing will take place?

 

Cheers again

[GuidoT]

I presume you mean POC (not SOC). It is not a big mistake (I have seen much worse) Barclays should have picked the lack of POC in their defence, I presume they did not.

 

Usually the court send a copy of the defence with the AQ, so you should receive that in the next week or so. Once the AQs have been submitted the judge will then decide the directions, including usually the setting of a hearing date - you are around 6 weeks (but it does depending on how busy and efficient your court is) away from this date.

 

Do not be too concerned you are doing fine.

[scalvey]

10.2.07 - I received my AQ and a copy of the banks defence to my claim.

 

The banks defence in brief:-

1. They want strict proof of alleged charges. (They have had two copies of highlighted bank statements already. I'm guessing I will need to send again in court bundle).

2. They are entitled to charge as set out in T&C

3. It was clear that I knew of the charges.

4. I should have been more careful with my money.

MY FAVORITES 5. The law doesn't apply to them.

& 6. The charges are fair and lawful.

7. I should have been more careful with my money.

8. The charges are fair and lawful.

9. If the claimant wins they can't be awarded anything past 6 years! (I've only claimed 5).

THIS ONE MADE ME LAUGH THE MOST 10. If charges are found to be unlawful we will counter claim the damage actually suffered, which then could end up being more than the original charge.

 

Any additional advise on filling out my AQ would be appreciated or any other help, hints or tips would be great.

 

Cheers for now, keep ya posted!

[GuidoT]

That is not the standard 9 point defence I am familiar with. Points 9 and 10 are new to me, can you post the defence up, to save on typing you may find it easier to cut and past from here:

http://www.consumeractiongroup.co.uk/forum/post-466483.html

 

Anyway these should help you complete the AQ, New Strategy really a must now:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html

[scalvey]

Ok here's Barclay's defence. Please excuse some of the type corrections. I scanned using OCR.

 

1. To the extent it is alleged that the Claimant incurred bank charges on his I account for unauthorised borrowings (whether unpaid fees for returned cheques, "Paid I Referral fees" or any other such fees), the Defendant puts the Claimant to strict I 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 11. following terms and conditions (which are summarised):

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

b. The Defendant's right to charge an administrative fee if any cheque, standing i order or direct debit cannot be paid because of insufficient cleared funds in the ! account - £35 per item (previously £30) . i

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 and / or 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 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.15 of the Supply of Goods and Services Act 1982 (or indeed any other provision)

6. Therefore, it Is denied 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 / or his failure to make payments to bring the balance of the account 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.

9. The Defendant denies that it is liable to the Claimant for the sums claimed and interest, as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 5 January 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action.

10. In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damageas a consequence of such breach of contract in 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 against any llability owed hereunder to the Claimant:: Barclays Bank PLC

 

So there we have it! Please feel freee to advise or ask questions.

[GuidoT]

I am sorry Scalvey, I have just realised that I was comparing your defence to the Lloyds one.

 

Must stop taking those stupid pills.

 

Anyway my AQ links are still relevant. I am sure someone else will advise you regarding the defence who knows about Barclays.

[scalvey]

I am sorry Scalvey, I have just realised that I was comparing your defence to the Lloyds one.

 

Must stop taking those stupid pills.

 

Anyway my AQ links are still relevant. I am sure someone else will advise you regarding the defence who knows about Barclays.

 

Hi again

 

I thought you may have done. Not a problem, it will help others I'm sure!

 

Do you still think it is essential I send my scedule of charges to the court and to the bank litigation and disputes dept at barclays to support my POC?

 

I just don't want to confuse things with the claim.

it seems things are proceeding as normal!

 

Sorry to keep hassling you on this one!

Cheers

[GuidoT]

Yes, yes, yes, send it as my post 26.

[scalvey]

*News Update*

 

I have received a court date for my case against Barclays 24 May, and it seems the new strategy has worked. Giving me (the claimant) until the 23rd March to submit my court bundle and Barclays a further 2 weeks to submit theirs (as described in the Draft Order for Directions). Hopefully this should speed things up with a settlement!

 

Obviously now finalising my court bundle and I am hoping for some advise.

 

I have printed out the following to use as legal material.

Relevant case law to penalty charges (available on this site).

Should I present all of these cases or just one or two?

Unfair Terms in Consumer Contracts Regulations 1999/01

Unfair Contract Terms Act 1977

Supply of Goods and Services Act 1982

Should I send the whole law document or just the sections that are relevant to my case?

 

Is there any other articles or information I can present to help my case?

 

Is it worth printing out recent related newspaper articles and web pages?

 

Any other help advise is welcome no matter how small or irrelevant you great people think it is!

 

Thanks for now

[GuidoT]

That is good news. This is a good link for preparing new strategy documents, should answer your questions:

http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

[scalvey]

Thank you Guido for once again pointing me in the right direction!

 

Some more info and clear up questions

 

I have a Small Claims Track Hearing in WATFORD on the 24th May.

The case is a block listed at 10am. Anyone else at this hearing?

I used the new strategy for for AQ and therefore now have Special Directions. These would be:

 

a) A schedule of charges - Not a problem

b) Statements or account info provided under your subject access request - Not a problem

c) A statement of evidence. Using GaryH template (Barclays bank standard 10 point defence), I notice on Peter Rabbit V Barclays thread a mention on about adding a paragraph or two to cover the service charge arguement, as strongly hinted at in paragraph 5. Any help or advise on this available.

 

d) Cases and statutes, as found in the Basic Court Bundle - Little confused on this as these are not asked for to be attached in support of the statement! Do I need to include the following, Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, the common law and Supply of Goods and Services Act 1982.

Or will the quotes in the statement suffice.

 

regarding other documents needed to support statement!

 

Does anyone have the Australian Default charges report, Nicole Rich.pdf - Link is not working!

 

Where can I find the OFT report? The hyperlink no longer works on the Bundle download!

 

I don't have any Automated charge notification letter/s. The last one I received was torn and trashed with rage over a year ago. Is this a problem?

 

The notice of hearing also asks for a Witness statement. I am using Karnevils as a guide, any advise?

 

Many thanks

[GuidoT]

I see you are in my land, I work on Clarendon Road. I have claim at Watford CC, my judge did not order the new strategy for me, who is your judge?

 

For starters link broken in bundle for OFT report, but this works:

http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

 

I will see what I can do regarding the remainder of the questions.

[GuidoT]

This site is driving me mad with 'Database errors', I will try and answer later.

[scalvey]

Just to make things clearer as to what help I need.

 

1. Where can I find the case law for Robinson Vs Harman 1848 ?

 

2. I can't seem to find the following quotes in the court bundle/relevant case law - pneumatic tyre v new garage motor co 1915 -

“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach” and;

“The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

 

3. The link for Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks

is not working, do you have a new link?

 

4. Do you have/will I need the American study - Consumer Federation of America “Bounced Cheques: Billion Dollar profits II ?

 

5. I don't have any Automated charge notification letters. Is this a big problem or do you have any advise?

 

6. Regarding your telephone conversation paragraph - I have had conversations/arguments with Barclays in the past about charges but haven't requested proof/recordings etc. any advise - shall I just delete or pretend I have requested justified proof of charges on the phone?

 

7. I need to add a couple more paragraphs regarding Barclays standard defence, paragraph 5! Do you have any suggestions or know of anyone who may have a draft I could use?

 

Cheers

[LEECHTHEBREACH]

1, 2, 3, 4 you should find here

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=70&d=1159005513

5, forget that

6, ditto

7, show me para 5

Leech

[scalvey]

Hi Leechthebreach

 

Thanks

 

1,2,3,4 not in court bundle!!

 

Para 5 od Barclays defence -

 

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.15 of the Supply of Goods and Services Act 1982 (or indeed any other provision)

[LEECHTHEBREACH]

I will find what you want shortly.

The Claimant submits to this honourable Court that a charge of £25, £30, £35 etc (whatever is applicable) for the administration resulting from the Claimant going over his authorised limit by £1 is,nt reasonable by any stretch of the imagination. The same can be said for a charge of £30 for an item returned unpaid.

Furthermore the charges regardless of their de facto nature are unfair by virtue of Reg 5(1) of the UTCCR. Particular ref is made to the fact that any term of contract which purports to allow the Defendant to levy the charges to the account, contrary to the requirement of good faith causes a significant imbalance in the parties " rights and obligations", arising under the contract to the detriment of the Claimant , who in this case is a consumer.

Voila!

Leech

[scalvey]

Thank you Leech

 

Where would you add the above paragraph on GaryH's 'GENUINE PRE-ESTIMATE' STATEMENT'.

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires-3.html#post482194

 

Cheers

[LEECHTHEBREACH]

Measure of Damages

Loss of Bargain

The are three possible measures of loss. The first is loss of bargain. The second is wasted expenditure or reliance loss and the third is a claim in restitution. The normal measure for breach of contract is loss of bargain. This measure of damages is intended to place the injured party in the same situation, as far as money can do it, as if the contract had been performed Robinson -v- Harman(1848).

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd.

[1915] A.C. 79

 

Lord Dunedin : ... I shall content myself with stating succinctly the various propositions which I think are deducible from the decisions which rank as authoritative :

1. Though the parties to a contract who use the words "penalty" or "liquidated damages" may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages. This doctrine may be said to be found passim in nearly every case.

2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage (Clydebank Engineering and Shipbuilding Co. v. Don Jose Ramos Yzquierdo y Castaneda (1905) A.C. 6).

3. The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach (Public Works Commissioner v. Hills (1906) A.C. 368 and Webster v. Bosanquet (1912) A.C. 394).

4. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive. Such are :

(a) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach. (Illustration given by Lord Halsbury in Clydebank case.)

(b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid (Kemble v. Farren, 6 Bing. 141). This, though one of the most ancient instances, is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A promised to pay B a sum of money on a certain day and did not do so, B could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable - a subject which much exercised Jessel M.R. in Wallis v. Smith, 21 Ch.D. 243 - is probably more interesting than material.

© There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage" (Lord Watson in Lord Elphinstone v. Monkland Iron and Coal Co., 11 App.Cas. 332).

On the other hand :

(d) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties (Clydebank case, Lord Halsbury; Webster v. Bosanquet, Lord Mersey).

Turning now to the facts of the case, it is evident that the damage apprehended by the appellants owing to the breaking of the agreement was an indirect and not a direct damage. So long as they got their price from the respondents for each article sold, it could not matter to them directly what the respondents did with it. Indirectly it did. Accordingly, the agreement is headed "Price Maintenance Agreement," and the way in which the appellants would be damaged if prices were cut is clearly explained in evidence by Mr. Baisley, and no successful attempt is made to controvert that evidence. But though damage as a whole from such a practice would be certain, yet damage from any one sale would be impossible to forecast. It is just, therefore, one of those cases where it seems quite reasonable for parties to contract that they should estimate that damage at a certain figure, and provided that figure is not extravagant there would seem no reason to suspect that it is not truly a bargain to assess damages, but rather a penalty to be held in terrorem.

3 & 4 I personally would not bother with.

Leech

[scalvey]

Also... Am I a pain or what!

 

I believe the facts stated within this Witness Statement to be true and exhibit Exhibits [your initials 1] comprising of xx pages.

 

What does the highlighted bold writing mean at the bottom of Witness satement?

 

Ta

[LEECHTHEBREACH]

Auzzie parts here

http://www.consumeraction.org.au/downloads/DL29.pdf

GaryH has covered most of what I have shown you, you may be able to dress it up a bit with the quote etc

I should not worry too much, it will not get to Court and if it does even though you live about 80 miles from me I will come with you!!

The highlighted part means the bundle that you are sending comprises of xxx pages mine usually are about 250!!!!!

[scalvey]

Thank you very much Leech you have been top help so far.

 

I must seem a bit nervous! JUST IN CASE! keeps running around my head.

 

I am almost there now. Just have to make copies but I'm not going to waste my time with that until Mon/Tues, post Wed. I'll have the weekend to check through and organise my folder. Copies are required next Friday 23rd.

 

One more piece of advise - The OFT has printed out 30 odd pages. Do I need to send/bring the whole report or just the pages I refer to in my statements etc? does this also apply to the UTCCR etc.

 

I'll be out of your hair soon!

 

Much appreciated

[LEECHTHEBREACH]

Print out the lot, mark out what you are relying on.

Do this last as they may well capitulate, but (and this is no joke)

make sure you have enough paper and ink!!

Barclays do not usually take it to the last minute so now is the time to phone them, or there solicitors and prompt them for a settlement, have not read all your thread so am not sure what interest you have gone for, if it is compounded contractual do not back down one inch, compounded unauthorised you can give a bit.

This is the time when people lose there bottle do not lose yours!!

Leech