Ds V Barclaycard Litigation In Progress*won*

[Bicester1]

Hi DS

 

a: yes but send them an up to date copy

 

b: yes

 

c and d: have a look at these

 

http://www.consumeractiongroup.co.uk/forum/rbs-bos-successes/49470-contractual-interest-details-case.html?highlight=justwon

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

3: Think you are right phone court manager and ask for clarification.

 

3a: Which bit of their contract allows them to charge you these penalties.

 

4: no

 

5: No I dont think this is from reading other threads. IMHO I suggest a letter to Barclays giving them a further chance to settle before court would look good.

 

Hope this all helps.

 

Bicester1

[TUTTSI]

Thanks Bicester for that, I have ticked your scales as this is very helpfull & usefull to me. I will take time to read through this and hopefully I will have a better understanding of the next phase of these proceedings. I will then phone the court clerk and ask them about point (3)!

I read up on so much for the earlier stages but have not yet fully prepared myself for this stage of the claim or indeed the Courts Order of their own initiative received yesterday just scared the hell out of me.

DS

[Bicester1]

Hi

 

If you get stuck just post. This is a mutual aid society!!!

[TUTTSI]

Ok, does anyone know if there is a letter which I could use to send to Barclaycard to move along them settling my claim in accordance with the order by Judge Steel. Please refer to my thread 17, point 5.

Thanks

DS

[Bicester1]

Hi DS

 

Here is a letter I sent to the Nat West as part of negotiations.

 

You are well come to cut it about or whatever. Nat West are offering to refund charges pretty much by return nowadays so the negotiations are about interest rates, I think s69 is reasonable, the courts I think, don't like contractual. You want to be able to demonstrate your reasonableness and their unreasonableness so I think offering to settle for s69 if you have previously claimed contractual will put them in a difficult spot.

 

I suggest you take out the "without prejudice" as you might want to be able to show this to the judge.

 

Hope this helps Bicester1

 

Monday, February 05, 2007

 

WITHOUT PREDJUDICE

 

 

Dear Sir,

 

 

ACCOUNT NUMBER: ************

 

I refer to your letter of the 24th Jan. received today in reply to ours of the 18th December. This has clearly crossed with our letter before action. I write on behalf of both of us and I will deal with the issues raised by you seriatim.

 

I have never disputed that you make your terms and conditions clear. The dispute is as to their legality. Illegal contracts are unenforceable. I did think that the banks might have moved on from the “it’s in the terms and conditions” argument by now.

 

The fact that Nat West provides other banking services free is irrelevant to this case. I note that the former Head of Personal Banking at Lloyds did make an admission that the charge regime raised income, to cross subsidize these “free” services, this was a tacit admission the charges are by definition penalty charges, not liquidated damages and constitute unlawful enrichment.

 

I note that you do not accept the [legal] basis of our complaint; however I am aware that you have settled a considerable number of similar claims to ours, in full and as yet have not defended any. Furthermore you will be aware that the judiciary are increasingly striking out the banks defence as an abuse of process, or alternatively attempting to use standard disclosure as a means of forcing you to disclose your actual costs. I am aware that you are keen to avoid this and will eventually settle.

 

We are not going to go away, or be fobbed off. I am only a litigant in person but I look forward to taking this to trial. I assure you that we will not be deterred by delaying tactics, CPR part 18 requests from your solicitors or any of the other intimidatory and obfuscatory behavior which, is well documented on the Banking Action Group website. I will bring any such behavior to the attention of the court as an example of “unreasonable” behavior which may make you liable for costs.

 

Turning to your offer, I am glad that you have at least entered into negotiations, rather than simply continuing to insist that your charges are reasonable. I note your offer of £1878 in settlement of our claim for £3089.47. I am willing to accept this in partial settlement of our claim but it is not acceptable as a full and final settlement and we will continue the action to claim the full amount.

 

In view of the fact, however, that you have at least made an offer, as a gesture of goodwill on our part, we are willing to accept, in full and final settlement of our claim, the return of the illegal charges of £1878 plus s69 interest at 8% rather than contractual interest at your rate of 29.5%. This is £1878 plus £312.70 a total of £2190.70. I enclose a further schedule of charges detailing this, which is the absolute minimum we are prepared to accept in settlement. I am not prepared to enter into any further negotiation. In view of the relatively small sum involved I hope you will agree that this is a mutually acceptable compromise and will avoid further costs for you and time wasting on our behalf.

 

We look forward to hearing from you within 7 days with your acceptance of my proposal. If we have not heard from you by then we will start proceedings in the County Court for the full sum and contractual interest.

 

Yours faithfully,

 

Use this as you will DS!

[ladybird17]

I would have thought that letter was a good example of how reasonable you are prepared to be, so why did you make it "Without Prejudice"?

[Bicester1]

Hi ladybird,

 

It's a question of controlling the process.

 

This letter went in after my LBA and as it says in it our posts have been crossing. Not yet issued a claim. If they reject what is in effect my counter offer I will file an N1 with a claim for full contractual at 29.5% and you never know they might offer it, but I don't want them to be able to use my letter in any defence attempting to suggest I have put my claim up and am therefore myself being unreasonable! Small point I know but give no chances to the opposition in this game!

 

I can still refer to "my attempts to negociate" in any AQ but can't include the letter in my bundle. If the judge were to ask me to prove my attempts then I would simply inform the court that there is a without prejudice letter. The judge may direct me to produce it. The bank however can't!

 

If the judge were to direct us to negotiate, then I would write to them again with the s69 offer this time without the "without prejudice" heading and copy it to the court.

 

Bicester1

[ladybird17]

ah yes....got your tactics now! probably a bit early on a sunday for me to think out of the box!

[Bicester1]

Hi

 

I think it makes sense. Mind you somewhat hung over after too much wine watching the rugby yesterday!

 

I seem to remember reading somewhere on this site, that in general negotiations at the pre-trial stage are best conducted "without prejudice." The situation in DS's case is slightly different as it is the Judge who has directed him to negociate hence no "without prejudice."

 

The Nat West have undergone a major policy change towards claimants, which if followed by the other banks has serious implications for people claiming interest. See this:

http://www.consumeractiongroup.co.uk/forum/natwest-bank/64780-nat-west-new-tactics.html

 

Hence my negociations at a rather earlier stage than DS!

[TUTTSI]

Thanks Bicester, for that, I will as you say chop it about somewhat but this gives me an outline of what to write. Also, I am female and not male

just for the record.

Whilst going through some Abbey threads yesterday I cam accross another one of Judge Steels's where he gives his 'ORDERS' whilst it was pretty similar mine had changed slightly and was less cumbersome. That case with Abbey of course been settled in full well before the Court date and I suspect because of what the Judge had asked them to produce.

They obviously will not want to breakdown their regime of charges so they have to cave in. So I am thinking if the same Judge at each court is dealing with these type of cases and if the Judges took the same stance you would think the banks would cave in earlier rather than show themselves up.

Thanks again for your help,

DS

[Bicester1]

DS Hi very sorry about the sex! Mea culpa much grovelling!

 

I agree about the giving in, their behavior is perverse and it does seem the Judges are getting fed up with it. Have you seen the thread about the Lincoln Judge striking out their defence as an abuse of process?

 

Let us know what happens!

 

Biceater1

 

Bicester1

[TUTTSI]

Yes I have seen the the Lloyds one at Lincoln Court, very interesting, lets hope all the other Judges catch on to the Banks scams.

I will of course let you know what is happening.

What is happening with your GM Card!!

DS

[Bicester1]

Hi.

 

Think they are which is, I am assuming, why Nat West have started settling!

 

Both my GM cards offered to refund charges and s69 interest in response to my request for charges and contractual.

 

Difference was not great so accepted. Have received one cheque waiting for other!

 

Seems to me that they are now offering charges back but haggling over interest.

 

Bicester1

[TUTTSI]

Hi

Yes I agree, GM are hagling over the interest, but I am holding out on that one. I came accross an interesting thread to day where someone has drawn out an argument to use in court if the need be on fairness and balance, Mutuality and Reciprocracy argument, Unfair Contract Terms as to why the contractual interest should be claimed instead of S69. It was from Millymo, in a thread 'Why is no one claiming Contracual rate of interest' I found this thread through a link from someone else's thread and god knows where to find it again. The thread itself is very long and lots of discussions regarding this point. The actual argument itself is 2 pages long and everyone on that thread thought it was a good piece to use as an argument.

Well, you have decided what's best for you and why not better in your pocket than theirs. With me apart from the S69 rubbish, they are haggling over some of the earlier charges which were within the 6 years when I started writing to GM but obviously now they are not and they using the statute of limitations act, but I have told them it was withing the 6 year period when I first bought it to their clients attention. When they get that sorted I expect they will pay!!.

DS

[Bicester1]

Hi

 

Yes I think you are right on the Limitations Act. With regards to the s69 vs contractual as the sums in the difference were quite small in my case I made a judgment that the game was not worth the candle! I appreciate that this will not be so for all claimants and it will have to be a personal call!

 

My real task is going after Lloyds for mis-sold PPI which is worth almost 5k so i felt that was a bigger fish to fry!

 

Bicester1

[TUTTSI]

Hi all

Just an update - I have now served the bundles of documents in accordance with Judge Steels directions, (Willesden County Court) now it is up to Barclaycard to deal with their side of the directions within the time limits of 23rd March 2007. The Court date has been set at 30th April 2007 at 14:30pm, LOL I am there on the same day with GM Card at 12 Mid day, so I will be taking a packed lunch.

 

Well as the Judge has requested evidence of their charges etc...+ he wants copies of decided cases!!!!

 

I am sure they will back down well before, well I live in hope.

DS

[Bailiffchaser]

What it is it gets sexier everyday with these big chips trying to wriggle out. Good on you !!!!!

[Bicester1]

Hi DS

 

Sounds like you are on a roll!

 

Seems like the judges are getting wise to the banks! What's the betting they settle as you say before court.

 

I've settled both my GM cards but was only asking for s69 as sums were small. Same for MBNA and Nat West cc but Barclaycard and Nat West Bank are playing hardball so have issued against them via MCOL for contractual.

 

Keep up the good work.

 

Regards

 

Bicester1

[TUTTSI]

Thanks Bicester, you are up nice and early as well!!

Have you noticed I have been made a Gold Account Customer!!

Probbably because I use the site a lot....LOL

MBNA my hubby claimed from them and settled very quickly and at the contractual rate. Have you see my latest letter to GM's Solicitors D & G, which I posted on my GM thread yesrday. I will not settle unless it is the full amount. G

Did you receive the newsletter yesreday, so many of the banks are now starting to cave in at Pre-lim stage that is excellent news.

Good Luck with all your claims, which I take it are all still ongoing.

DS

[Bicester1]

DS

 

Hi! Up early but with hangover after watching rugby yesterday!

 

Congrats on the elevation! Will you still talk to us proles!?

 

I think you are right in that the Banks are giving in much earlier. Its hit the mainstream broadsheets now with articles in the "Telegraph" and "Independent" yesterday.

 

I think they might try and hang on till the FSA / FSO report on Bank Charges and try the "£12 is legal trick" I've seen from Barclaycard.

 

Nat West offered me charges and 8% by return but wanted an agreement to accept further charges! So have told them no and now I want contractual! Tee Hee!

 

Hope all goes well for you.

 

Keep us informed

 

Bicester1

[Bailiffchaser]

I currently have 3 cases in court 2 with barkalot and one with barcalot credit card they owe a total of £3700 but will not settle out instead have dragged it through to the aq and now are waiting for a hearing.

[Bicester1]

I think Barclay's haven't yet realised that they are on a looser! Either too stupid or too arrogant! They seem to have little insight!

 

Barclaycard offered me the difference between £12 per charge and my claim and would not budge so I have hit them with MCOL for charges and contractual.

 

I am thinking about an application for either summary disposal under CPR 24 pre allocation and asking for costs, or to strike out defence under rule 3.

 

Any thoughts?

 

Bicester1

[Bailiffchaser]

Good idea. I am thinking of this as well.

[TUTTSI]

I think Barclay's haven't yet realised that they are on a looser! Either too stupid or too arrogant! They seem to have little insight!

 

Barclaycard offered me the difference between £12 per charge and my claim and would not budge so I have hit them with MCOL for charges and contractual.

 

I am thinking about an application for either summary disposal under CPR 24 pre allocation and asking for costs, or to strike out defence under rule 3.

 

Any thoughts?

 

Bicester1

 

Not sure how that works but it seems that Bailiffchasser agrees with you, let me know how it goes!

DS

[TUTTSI]

Well time is running out on Barclaycard, they only have to Friday at 4pm to file their bundle and deal with District Judge Steel's directions. Me thinks that they wont and then I will get an automatic judgement. No sign of them phoning me or writing with a settlement.

Has anyone else been to this stage! and what normally happens next?

DS