Barclays new scary defense - advice needed

[icefall]

Hello, I was sucessful with my Barclays claim, back in July, I have been helping out various friends with their letters and claims.

 

I am currently helping a friend (who is guiding a relative of theirs through a Barclays claim). It has now got to the stage of Allocation Q and defense.

 

But the defense is really long, (much longer than when I did mine) and I wondered if anyone fancied reassuring me that the below is a standard defense.

 

1. 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 Defendant 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 summarised):

a. The Defendant's right to charge a "paid Referral Fee" where the Defendant pays an amount (either by compusion 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 with an overdraft limit, to charge interest at the unauthorised borrwing 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 borrwins (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds his authorised overdraft limit).

[deadsquirrel]

Hello, I was sucessful with my Barclays claim, back in July, I have been helping out various friends with their letters and claims.

 

I am currently helping a friend (who is guiding a relative of theirs through a Barclays claim). It has now got to the stage of Allocation Q and defense.

 

But the defense is really long, (much longer than when I did mine) and I wondered if anyone fancied reassuring me that the below is a standard defense.

 

1. 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 Defendant puts the Claimant to strict proof of each charge and the date thereof.

absolutely standard

[icefall]

MORE

 

4. If and to the extent it is the Claimant's case that the failure to make necessary payments and/or fialure to remain within the 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 form the Claimant's account constitutes a lifquidated 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 either the Unfair Terms in Consumer Contracts Regulations 1999 (particualarly but without limitation to, paragraph 1 (e) of Schedule 2), or the Unfiar (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 that the charges were unlawfully debited from the account.

7 If and to the extent the Claiment incurred charges on his account, this was caused bye 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 back into credit.

[icefall]

OK THATS THE REST

 

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 2 nov 2000 would not be recoverable for reason of exhausion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

10 In the alternative, and without prejuice to paragraph 6 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, the Defendant has nonetheless suffered loss and damage as a consequence of the Claimant's 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 liability owed hereunder to the Claimant.

 

Thanks dead squirrel, what do you think about the rest of it?

[deadsquirrel]

OK THATS THE REST

 

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 2 nov 2000 would not be recoverable for reason of exhausion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

10 In the alternative, and without prejuice to paragraph 6 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, the Defendant has nonetheless suffered loss and damage as a consequence of the Claimant's 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 liability owed hereunder to the Claimant.

 

Thanks dead squirrel, what do you think about the rest of it?

If you check out my thread Deadsquirrel vs Barclays, I think our defences are the same! I think the purpose of this defence is to scare us rather than be a defence for the judges use.

 

I'm waiting now for a court date - having returned my AQ last week. Reading some other threads, looks like I could be waiting till Feb or March next year!!

[icefall]

Blooming heck! Just had a look at your thread deadsquirrel and it is definitely the same as mine apart from one date, it must be their standard defence then as you say. I cannot believe how much it reads as though they are repeating the same things over and over again!

 

Thanks for your reasuring reply, though I have been through it once already, the defense was so different even from just over 6 months ago, it did surprise me.

 

When I sent my allocation form I believe it took approx 2-3 months to get the hearing date, once you have that though you are almost home and dry...

 

Barclays do like to leave it till the very very last minute almost...

[Donel261]

Mine was exactly the same too ice, sent my allocation questionnaire off last week just waiting now. Was it also written by "Ruffhead"? , seems they have some eejit doing the basic admin on all of these cases by copying and pasting the same defence irrespective of its relevance.

[JackieJ]

Icefall, this is the same as I got too!!

[stan5131]

What they (Barclays) are forgetting is that it is not the charges themself that are unlawful, its the amount that makes them unlawful! Because they do not reflect the bank's TRUE cost ie their actual administration costs for dealing with these matters, they are deemed to be fines/penalty charges.

[biffinplate]

My first claim has the same defence as yours, they have just entered a defence for my second claim. I am guessing it will be the same.

[icefall]

check us all out with the same defense!

 

Good luck, I will keep you posted with the results, going to help my friend sort out the bundle for the court tomorrow.

 

It may be a while before I post again, as this is the time for the long wait for the hearing date...

[phoenix11]

I'll add ours too - did give me a bit of a problem with incontinence at first - but then realised everyone's getting more or less the same.

 

Quoting from the frog song - we'll all sing together!

 

[Bookworm]

Heyyyy, look who's back! Good on you to pass on the good word! ;-)

[icefall]

oooh hey Bookworm, thanks, I still remember panicking that day and you and everyone else helping me with the bundle for the court!

 

I have since July helped 1 friend with halifax (she took first offer of £80).

 

Another couple got back £3,450 back from HSBC, (they settled a week after online claim was lodged). Its their relatives they are helping with (and little bits of advice here and there from me to do so) the Barclays claim mentioned above.

 

Helped another friend with Barclays, but they do not want to lodge a claim so theirs has stopped at the 2nd letter stage with no offer.

 

Also currently helping another friend with £700 claim from Natwest.

 

I did all of my friends letters, printed them out, and posted for them, paid the first £100 for the couples HSBC mscol, (which they returned once they got their money back), and filled in all the allocation forms etc. Telling them not to worry when they got worried etc... Hey I know I am bigging myself up here but I want you to know that all your good work and knowledge I have done the best I could with!

 

The 2 people who did get money back so far I have entered into the bank charges refund results, I figured it would be ok, though its not my money, I know they are not online to do it themselves.

 

The knowledge is being passed on!