mnrbig Vs Barclaycard

[mnrbig]

I just received the statements prior to 2004 from Barclaycard. I have come to the conclusion that I have underestimated the amount of they owe me. I have already started proceedings in my local court, do I now amend the claim or start a new one. Any ideas?

[Glenn UK]

I would suggest you amend the claim.

 

In theory even though you have underestimated you could end up not being able to claim the rest since you have claimed for the charges by way of an estimate.

 

You cannot claim again for the same thing.

 

It does depend i guess on how you estimated your claim.

 

GLenn

[mnrbig]

Right, apparently I need to fill in a N244. Do I need to resubmit my N1 with it an included the changes on it in red ink?

[Glenn UK]

Since you need to amend the particulars of claim because of the value change and the schedule i would resubmit both, i wouldn't bother highlighting the changes, if you re submit then N1 and schedule that supersedes the previous one.

 

JMHO

 

Glenn

[mnrbig]

Now I am confused. Does anyone have guidance notes as to filling in the N244.

[mnrbig]

Guess what Barclaycard are defending.

 

Here's the defence. Looks like a standard one bearing in mind i am claiming contractual and also still have to amend the claim. Any thoughts?

 

DEFENCE

1. Barclaycard is a trading division of Barclays Bank PLC and not a legal entity in its own right.

2. The Particulars of Claim are summary and do not provide details of the precise charges alleged to have been unlawful, or the date thereof. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

3. To the extent it is alleged that the Claimant incurred charges on his account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the "Charges"), the Defendant puts the Claimant to strict proof of each charge and the date thereof.

4. The Defendant's standard terms and conditions ("Terms"), which the Claimant accepted upon opening the account, entitle the Defendant to debit the Charges from customer accounts upon certain events (including, but not limited to, exceeding account credit limits and / or unauthorised borrowing and / or failing to make sufficient monthly payments to reduce the account balance by the required date).

5. It is the responsibility of the account holder to properly monitor his account so as to ensure compliance, for example, with the obligation to make payments by the required date.

6. The Terms gave the Claimant a fair and transparent view of the obligations and entitlements set out in paragraph 4 above, including the basis on which the Defendant would be entitled to debit the Charges from the Claimant's account.

7. If, and to the extent it is the Claimant's case that the failure to make monthly payments and / or his failure to remain within the agreed credit limit, constituted a breach of the Terms, and that the contractual entitlement to debit the Charges from the Claimant's account constitutes a liquidated damages clause, the same is denied. The Charges applied to the Claimant's account were payments that the Claimant agreed to make upon the events described at paragraph 4 above by reason of the Terms. Accordingly, it is denied that the Charges or any such charges constitute unfair and / or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the Charges, as alleged by the Claimant, or at all, and / or that the charges are otherwise unenforceable.

8. 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, or are in breach of the Unfair (Contracts) Terms Act 1977 (or any other provision) or are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act (1982) or indeed any other provision. It is further denied that any such charges unduly enrich the Defendant.

9. The claim for interest is denied. In particular it is denied that the Claimant is entitled to interest on a principle of "mutuality and reciprocity" as pleaded or at all. The Terms and Conditions set out the basis on which the account was to operate and evidenced the contract between Claimant and Defendant. The Terms and Conditions provided for a rate of interest rate of 27,90% to be applied to the Claimants' account but contained no such entitlement for the Claimant to recover the same from the Defendant. Further or alternatively if, which is denied, the Claimant is entitled to damages and interest thereon, there is no basis in contract or common law for the application of this rate of interest to sums owed to the Claimant and that "mutuality and reciprocity" are not a known or acceptable basis for the calculation of interest. The Defendant avers that whilst the Court has discretion as to the level of any interest award, there are no grounds for me Court to depart from the principle that interest on any judgment, if awarded, should be at the current judgment rate.

10. It is further denied that the default notice entered against the Claimant's credit record was merely in respect of the charges. The Defendant was entitled to place a default notice on the Claimant's credit record for a failure to remain within his authorised credit limit.

11. Further or alternatively, without prejudice to the matters pleaded at paragraph 5 above, if the Claimant's failure to make sufficient account payments by the required date and / or to remain within pre-agreed credit limits constituted a breach of the Terms, the Defendant avers that the Charges were nonetheless valid and enforceable.

12. It is further denied that the Charges were unlawfully debited from the Claimant's account.

13. Accordingly, it is averred that the Charges are legally enforceable and the Defendant was entitled to debit the Charge from the Claimant's account.

14. The Defendant denies that it is liable to the Claimant for the sum claimed and interest as pleaded, or at all.

15. In the alternative, and without prejudice 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.

[mnrbig]

Took in the N244 to court. Charged me £65 and I still need to send of the AQ, that's another £100. Does anyone know how these costs can be recovered. I have not added them to the N1 form so as it stands, these "extras" don't form part of the claim.

[Glenn UK]

Costs are usually recoverable i believe with the exception of N244 fees.

 

Although we put it on the claim forming normally i am not certain whether it would prevent you from recovering them if you omitted costs.

 

It would have been better to ask this before submitting the N244 because you could have amended that too.

 

Be interested to see if anyone else has any views/experience.

 

Glenn

 

Glenn

[mnrbig]

It would have been better to ask this before submitting the N244 because you could have amended that too.

 

Glenn

 

Hindsight is a wonderful thing. Maybe I should put in another N244 and add the cost.

[Glenn UK]

LOL I know, I'm sorry i didn't mean it to come across as being critical.

 

I'm pretty certain you cannot claim back fees for amending your claim unless its caused in some way be the defendant.

[mnrbig]

Yep, it is all barclaycards fault. You know the microfiche argument. I estimated cost and when I finally got all the statements, the owed even more than the estimate.

[Glenn UK]

Ahhh, im not sure that is actually b/cards fault though.

 

You submitted an estiamted claim and therefore you put yourself in that positon arguably.

 

If they had supplied data but had altered it for example then it would definitely be their fault.

 

However, if when it gets time to settle tell them you want all your costs and argue about it then.

 

It will be interesting to see who has a different view and what that is re this issue.

 

Glenn

[mnrbig]

Well ,the judge wants to see me about changing my claim. So it's off to court I go.

[mnrbig]

AQ handed in today with the added Bankfodder recommendation. Let's see what transpires as I don't know how the fact that I have a hearing about my N244 scheduled.

[mnrbig]

..

[mnrbig]

I have sent my court bundle to Barclays the have 28 days to reply as per the judges directions. I have a court date on 13 August.

[mnrbig]

Court tomorrow and no court bundle from Barclaycard as ordered by the judge. I think the defence should be struck out for non compliance. Will I need to request this?

[mnrbig]

I won!:grin::grin::grin: But it is sort of a hollow victory for me as I was not awarded the interest the bank charged me on the charges as I didn't ask for it on my original claim. The judge predictably dismissed the interest part of the claim because it was based on M&R which we know is no longer a feasible argument. Barclaycard tried to get the case stayed citing the OFT case. I did ask the judge whether the OFT case was relevant to Credit Cards. He replied that as the arguments are similar for credit cards, the OFT case was relevant to Credit cards.

 

Having said that, the judge wasn't having it and stated that to stay the case would be an injustice to me the claimant. He was also extremely miffed at the bank ignoring his directions order and refused the bank leave to appeal his judgement.

 

Does anyone think I could go after Barclaycard for the interest?

[Michael Browne]

Does anyone think I could go after Barclaycard for the interest?

Sadly, no. The judge has dismissed that part of your claim and you'd be on a hiding to nothing

[pjdavies2000]

Congrats!

 

Anotrher one bites the dust!

 

Good to see the Judges are slowly recovering their nerve and kicking back at the banks and Cards!

 

Well done - enjoy!

 

Peter

[Brad Smith]

well done

 

i do find it a bit worrying that the judge thinks that credit card claims are relevant to the OFT test case

[mnrbig]

Sadly, no. The judge has dismissed that part of your claim and you'd be on a hiding to nothing

 

The judge dismissed CI based on reciprocity and mutuality. He did not deny that I was entitled to claim back the interest they charged me. He basically said as I did not ask for it on the claim form, I can't have it.

[mnrbig]

well done

 

i do find it a bit worrying that the judge thinks that credit card claims are relevant to the OFT test case

 

He basically stated that it will depend on how you are conducting your case. So I think it boils down to, that if you were using the same arguments as those that the test case deals with, then it is relevant.

[pjdavies2000]

which is exactly why we shouldn't be using the same argument, and headlining our case with the OFT 2006 report, which clearly states that 'only a court can decide what a reasonable limit is' and also clearly states that CCards aredifferent to Overdrafts.

 

We really need to be getting some POCs definateively agreed for use in CCard cases - has anyone done a trawl of the other CCard forums for any useful starter points?

 

Peter

[mnrbig]

Well BC had until Monday to send me my money. So far, I have heard nothing. I suppose this will drag on for another few months.