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ddelo v. Barclays


ddelo
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Good evening,

 

My modest claim against Barclays is rolling along.

 

Barclays filed their Acknowledgement of Service on 09/01/2007 and the form says they have 28 days in which to file their defence. I make this 06/02/2007 - does anyone disagree?

 

Is it too soon to expect them to settle if I call them? Or do I need to wait until 06/02/2007 when they file their defence and a court date is issued?

 

All advice gratefully received.

 

Dave

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Good evening,

 

My modest claim against Barclays is rolling along.

 

Barclays filed their Acknowledgement of Service on 09/01/2007 and the form says they have 28 days in which to file their defence. I make this 06/02/2007 - does anyone disagree?

 

Is it too soon to expect them to settle if I call them? Or do I need to wait until 06/02/2007 when they file their defence and a court date is issued?

 

All advice gratefully received.

 

Dave

 

I disagree! :D

 

Its 14 days from when the claim is deemed served usually 5 days after you file the claim, they get 14 days to acknowledge the claim if they do acknowledge they then get a further 14 days to file a defence. So its 28 days from when the claim is deemed served.

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I disagree! :D

 

Its 14 days from when the claim is deemed served usually 5 days after you file the claim, they get 14 days to acknowledge the claim if they do acknowledge they then get a further 14 days to file a defence. So its 28 days from when the claim is deemed served.

 

I re-read the small print and agree with you - Barclays have until Feb 5th 2007 to file their defence.

 

Thanks for that.

 

Dave

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  • 2 weeks later...

Well, true to form, Barclays filed their defence at the final hour. I received a copy of it in today's post. Here it is in full:

 

1. The Particulars of Claim do not provide details of the precise charges alleged to have been unlawful, or the date thereof. 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 whenthe 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 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 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 overdraft limit).

4. If and to the extent that 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 conditionsof her 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, or are in breach of the Unfair (Contracts) Terms Act 1977 (or anyother 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 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 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.

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 3 January 2001 are not recoverable because they are time-barred under the terms os 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 the matters set out 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 in paragraphs 2 to 3 above, it will seek to recover to the extent nevessary such loss and damage as it actually suffered, which will not necessariyl 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.

Barclays Bank PLC

 

Should I be worried or is this a standard defence?

 

Paragraph 1 is rubbish because I sent them, and the Court, a copy of the schedule of charges by recorded delivery. I have the Royal Mail electronic POD for the Court's delivery, but unfortunately there's nothing for Barclays'. Does this mean they didn't get it? Does that now matter? Should I send it again to Barclays?

 

It does look like they're threatening me in the last paragraph - is that proper conduct?

 

Any advice on my next steps would be greatly appreciated. Should I be struggling to complete the Allocation Questionnaire or should I be phoning Barclays to see if they're going to settle?

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Would anyone care to critique my "Other information" for Form N149?

 

 

Despite his Defence Statement, the Defendant was sent, by Recorded Delivery (as was the Court), a detailed Schedule of Charges itemising the date and type of each charge. A further copy has now been sent, again by Recorded Delivery.

I would respectfully suggest to the Court that this issue is not a complicated one; it is an issue of fact and not of law. The issue is only whether the money levied by the Defendant in respect of its customers' contractual breaches exceed their actual costs incurred. The Defendant appears to be threatening to counter-claim for their actual costs. If these had been originally charged, I would have paid them without argument.

 

However, the continuing problem is (in common with the 100s of other cases currently being brought by other bank customers) that the banks refuse to reveal the details of their penalty-charging regimes. As the banks have a fiduciary duty towards their customers, they have a duty to deal straightforwardly and in utmost good faith.

 

Accordingly, I would respectfully ask that the Court order standard disclosure. I understand that it is in the Court's discretion to do so. I believe this would bring a rapid end to this litigation.

Should anything else be included here?

Thanks for any help,

Dave

 

 

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This is ok, but if you are going to include the Draft Directions Order (see previous post), use this instead:

The Claimant proposes the attached draft order for directions, for the courts due consideration. If ordered, the Claimant believes these directions will allow the overriding objective's to be furthered in that they will fully identify the most fundemental issues in dispute (as detailed below), and allow them to be assessed so that this claim may proceed justly and expediously.

- The crux upon which this claim rests is the true cost incurred by the Defendent as a result of the contractual breach from which its charges arise. If the Defendent cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the UTCCR 1999 and common law principles establised since the early 1900's.

- In the event that the Defendents charges were accepted as being a fee for a service (which is denied), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that the claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

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Thanks Michael. I should have kept on reading after the first link to the AQ completion. I'll start putting my bundle together as soon as I've sent off my AQ. No point in leaving it until last moment.

 

Dave

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  • 2 months later...

Advice from anyone please!

 

I've had a letter from the Stockport County Court "General Form of Judgment or Order" as follows:

 

It is ordered that the claim be listed for directions on 22nd June 2007 @ 3:40pm, with an ELH of 10 minutes to be heard by the District Judge sitting at Stockport County Court, 6th Floor, Heron House, Wellington St, Stockport.

My questions are:

  • With only a 10 minute "hearing" should I be preparing to present anything or even attend?
  • Is this just a formality?
  • Should I be approaching Barclays to prompt for a settlement?

All advice gratefully received.

 

Thanks,

Dave

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  • 2 weeks later...
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