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Boba Fett VS Barclays Bank PLC ***WON!***


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OK. so got a letter from Dino offering £1,370 towards a claim of £2,200.

 

My response below:-

 

Dear Dino,

Thank you for your offer of settlement of £1,370 which I received on Saturday morning.

The first point you note in your letter, is “in your defence” you disagreed with the principle of my claim in that the charges constitute penalties. However, Barclays did not file a defence against my claim even though you had 8 weeks to do so. As such a Decree has been issued. This means that the legality of the claim is not being questioned, and the court date is to agree the amount of the claim.

You will note from my initial paperwork, that I am claiming for compounded contractual interest on the premise that the charges are in fact unlawful, and I believe that any repayment should be subject to the same unauthorised rate that you have charged me. The principle is based on the UTCCR which clearly states that contracts must have “Fairness and balance”.

I believe that court will see that Barclays have used stalling tactics to prolong this case and many others like it. Along with the fact that you did not send a single response to my initial response for refund nor my letter before action. I am also in the mind to file a complaint which the financial ombudsman for negligence and unsatisfactory response to a customer complaint.

In summary, I reject your offer of £1,370, but will accept it is as part payment towards the total claim, as filed on the 17th March, for £2206.67, and will forego any interest accrued since. Any settlement must be repaid into account no xxxxxx.

This counter offer is valid for 7 days from receipt, after which I intend to pursue the full claim, including compounded contractual interest until the date of payment.

You note that you retain the right to present your offer in court, which is misleading, as you have titled your letter “Without prejudice”. I would be minded to mention this misleading legal faux-par to the judge should the time arise. You will note that I have not added this disclaimer to my e-mails, and I fully intend to present all correspondence should the need arise.

I understand that the short falls of Barclays to date are not representative of the courtesy extended thus far by the litigation team, and I extend my thanks to you for being the first department of Barclays to enter into a sincere dialogue regarding my claim.

If you wish to discuss this further, you may do so by email or on 079xx xxxxxx

Your sincerely,

Boba Fett

Member of ConsumerActionGroup

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Nice :)

Any typos spelling mistakes are due to leprechauns in my keyboard they move the letters around sometimes (amended just for Bookie)

 

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OK, so e-mail back from Dino as below:-

 

Boba

Thanks for your email, I have been in meetings all day so I apologise for not responding sooner.

My stance on this issue hasn't changed - contractual interest has never been awarded in court and we have never lost on it at court. If you can find me one case where a bank charges litigant has been awarded contractual interest at court then I will happily re-consider my offer.

If you choose not to accept my offer to pay back all your charges, as well as any accrued statutory interest and court costs, then we will have a barrister from Fountain Court representing us at the hearing. I draw your attention to paragraphs 23 and 24 of the Cank v Halifax judgment and also the summary of the Haliday case. I do appreciate the time you take to respond to my emails so I am open to negotiation on this matter.

Kind Regards

Dino Papaevripides

 

He attached a case summary of Cank vs Halifax, where the contractual interest was not awarded, however this was a badly presented case, which was based on reciprocity, which has no legal founding.

 

As I have already been awarded the "Decree for Assessment" I have in effect won my full claim at 8% plus all me fees, so I would be interested to go to court anyway to see how the legal argument is received, however I have made one final counter-offer in the interests of settling outside court.

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My response to the last e-mail from Dino...

Dino,

I understand that you must be very busy, and hope to not take up too much more of your time.

Mr Cank's case as highlighted was poorly presented and was founded on no legal principle. I however refer directly to the UTCCR where it states that there must be Fairness & balance in a contract. If I took money unlawfully from Barclays (unauthorised borrowing) according to your terms and conditions the unauthorised amount is subject to your contractual rate of 27.5%.

The secondary part of my argument is based on the fact that the defendant made a profit from the monies unlawfully taken (unjust enrichment) to the equivalent of 27.5%; as the money taken from the claimant may well have been lent to other Barclays customers who are using unauthorised borrowing, and therefore earn Barclays a rate of 27.5% on that money.

I stand by my claim for contractual interest, and intend to be fully prepared at court. I also strongly believe that the court will agree with my stance on this claim, and I have several accounts of people (courtesy of Consumer Action Group) which I intend to present as evidence.

As you state you are willing to negotiate, I propose a reduced full and final payment of this claim of £2000 + court fee of £62. This is my final proposal in the hope settling out of court, ans is open for 7 days.

If you agree, then upon receipt of £2062 into account no xxxxxxxx, I close the claim as settled.

I hope this offer is satisfactory, as this is my final offer.

Kind regards

Boba Fett

Member of ConsumerActionGroup

Any comment at this stage...

Thanks

Boba

BANKFODDER - YOUR COMMENTS WELCOME AT THIS POINT

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So Barclays are sending a legal bod from Fountain Court Fountain Court - Practice Areas - Banking & Finance to defend my claim for charges + Unauthorised Int + Court Fees.

 

I imagine the cost to Barclays for this service far exceeds the refund I had requested, which seems a very odd finacial decision to make.

 

Also, Barclays have to write to me & the court that they intend to attend the hearing - so that should be interesting to see if they do so.

 

Also, as a decreee has already been awarded pending assessment, I will walk away with a minimum of my claim + 8% + Court Costs...

 

Just means I have to wait a while...

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Guest baznew1

Boba

This is Soo F***ing Funny.

I've got my statements from Barclays and barclaycard, but have delayed making a claim.

I'm living in the States and am going to use your letters as templates ( If you dont mind).

You've certainly given me the kick up the rear to get this going just by reading your posts.

Congrats on the "normal" claim and good luck with the Compound route, it should be very interesting. My gut tells me they wont want it to get to court, because it may leak out to the papers.

Brilliant

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Boba,

 

Unfortunately he is right. You will simply not get contractual interest in court.

 

Even before the Halliday judgement - which is a High Court precedent against exactly what your trying to claim - the chances of a CI claim succeeding in court based on contractual reciprocity or fairness and balance (exactly the same thing, btw!) or whatever were virtually nil anyway.

 

For a start, its long established that the courts have no juristiction to award compound interest under common law or statute.

 

Secondly, contracts do not have to be mutual, not in this sence anyway. If you followed the mutuality and reciprocity (or F&B, same thing) principle to its logical conclusion then freedom of contract would not exist. UTCCR 5.1 does not mean that every term in every consumer contract must carry an implied reciprical term.

 

Further, the court will not, and cannot, imply a term on the basis of fairness - this was upheld and reinforced in Halliday. The intentions of the UTCCR is to even the bargining positions of the parties to the contract which involve a consumer and an organisation. Mutuality simply means that where one party fails to perform to a specific obligation the other party need not perform the correlative obligation either.

 

CI claims on this basis rely solely on the bank paying before court, and I would be extreamely surprised if Barclays did in the wake of Halliday.

 

I think by far your best bet would be to try to negotiate a half-way compromise with him. If he does does not play ball then I really would strongly advise you to accept the offer of charges + 8%. You will not get more than that in court, and furthermore there is the possibility of costs being awarded against you.

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Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Hi Gary,

 

Thank you for your informed reply. Certainly something to think about!

 

One question for you though, as a decree for assessment has already been awarded, there is no "case" to speak of.

 

I am purely requested to appear in front of the judge to explain how much I am claiming and why.

 

Barclays are not expected to defend this, but should they wish to attend, they have to notify myself & the court in writing.

 

As such, surely any costs that they incur are at their own liability and not mine. The hearing would have happened even without their appearance.

 

If what you say is true regarding the precident that has been set, then I would only be awarded stat int @ 8%. Which would put me no more worse off than the current offer.

 

For this hearing would I still be expected to explain WHY I am reclaiming the charges (standard bundle) or should I be more specific to how I came to the totals that I have?

 

If the general census amongst all the admin is to drop the cause for Contractual Interest, then I will do so.

 

Thanks again,

 

boba

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I didn't realise actually that you'd already obtained judgement, but I don't think that changes much to be honest. The CI will still be an issue at the hearing. The charges will not though.

As such, surely any costs that they incur are at their own liability and not mine. The hearing would have happened even without their appearance.

Fair point. I accept that - plus the fact that its small claims means that any costs liability is unlikely. However, they have still offered you a settlement of everything you'd be legally entitled to and have drawn your attention to settled law which confirms their position. There is a small risk that they may seek to pursuade the court you have acted unreasonably. Rich coming from them, I know, but its still a risk - albeit a small one.

 

Regarding the recent CI precedent, here's the summary of the judgement;

 

Halliday v HBoS #1

Halliday v HBoS #2

 

Previously to that there's Westdeutsche v Islington where the House of Lords held that compound interest was not available at common law, or for that matter, in statute. The full judgement is extreamely long and tedious, but there is a decent summary here;

 

Westdeutsche v Islington BC

 

Then there's the 5 essential "ingrediants" which must be present for the court to imply a term into a contract, as set down in Davy Offshore v Emerald Field Contracting, which is the "settled law" as referred to in Halliday;

 

(1) it must be reasonable and equitable;

(2) it must be necessary to give business efficacy to the contract, so no term will be implied if the contract is effective without it;

(3) it must be so obvious that `it goes without saying';

(4) it must be capable of clear expression;

(5) it must not contradict any express term of the contract.

 

If you want more than the offer on the table at the moment then your best bet by far is to attempt to try to reach a compromise. You may find he meets you half-way rather than going to the expense of instructing a barrister.

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Thanks again for your comprehensive reply. Particuarly your reference to "Compound interest" at common law.

 

As such, I have re-opened negotiation with Dino by removing the compound element of my claim.

 

My e-mail below:-

 

Dino,

 

I have spent the weekend reviewing my files and the evidence that I have accrued, and it has been brought to my attention that common law has no power to award "compound interest" unless a fidicuary relationship is established. I have no intention of following that route, and hence withdraw the compound element of my claim. As such, I have ammended my claim to represent simple interest.

 

I am still keen to come to an agreement outside court, as it seems an unecessary waste of resources to attend. Therefore, I have attached the ammended schedule for you to review, and propose that you consider the revised figure of £1,898.06.

 

I look forward to your response,

 

Kind regards

 

Boba Fett

Member of ConsumerActionGroup

 

I think that this little snippet of information regarding compound interest should be made more clear to new claimants.

 

It seems to me, the best thing the banks can do, is not enter a defence, then when a hearing is held PURELY to determine the costs to be awarded the compound element will be thrown out.

 

This means that the issue of charges will not be brought before a judge, but the claimant has to justify his/her claims. And if you are correct, then this will only ever amount to Claim + 8% + Court Costs.

 

And I know for sure that the banks are happy to go along with this as they have made a lot more than 8% on my money while they had it!!! The banks are simply not being brought to bear in the injustice which they are commiting... and I await the day that a proper trial is heard!

 

>> RANT OVER

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And so Dino's reply...

 

Boba

The schedule provided in your email still looks like contractual interest. If you go on the :o Consumer Action Group Website :eek: , I understand there’s a template showing how to calculate interest at the statutory interest of 8%. It shouldn’t total more than £250 in your case.

Kind Regards

Dino

 

Firstly, I'm a little insulted that he thinks I couldn't calculate the rate at 8%!!!

 

Secondly, he confirms that he's a regular reader - wonder what username he uses?!?

 

Thirdly, HI DINO!!!

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And so my last ditch attemp at reaching an agreement...

 

Dino,

You believe that 8% is fair, however the rate that you would charge me for Unauthorised borrowing is 27.5%, which is the rate on my last spreadsheet.

My account was typically in the overdraft throughout the duration it was open, and I can show statements to this effect. This means that had the charges not been taken from my account, you would not have been earning interest at your Authorised Overdraft rate of 15.6% EAR / 1.22% per month for a standard current account.

As such, a fair compromise for a settlement figure, at 1.22% comes to £1,597.08. (Including court fees - revised schedule attached)

Please advise if you agree and we can end this discussion. (This offer is based on settlement received within 7 days.)

Kind regards,

 

Boba

 

Funny how I seem to be doing all the negotiating!!! I thought it was a 2-way thing!

 

:lol: Hi Dino ;-)

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You need to have patience when dealing with B's you should know that by now ;-)

Any typos spelling mistakes are due to leprechauns in my keyboard they move the letters around sometimes (amended just for Bookie)

 

"How do I...?" A Dummies' Guide to this Forum

FAQ

Forum rules

Cag toolbar

 

 

Please Donate if you can - help CAG help others

 

I offer help and advice in good faith, based on my knowledge and experience. I am NOT a legal or financial expert. There are many CAG members and site team who are better qualified. Please do not make major decisions based on my advice alone.I do not give advice via P.M's. If anyone can correct my mistakes or improve on my advice, please do.

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Horay for Dino!!! He accepted my final offer based on the "Authorised Overdraft" rate of 15.6%!!!

 

Will fax the offer back, with the "HUSH" terms crossed out!

 

So more encouragement to the speed & professionalism of the Barclays Lit Team aka Dino!

 

Mod / SH ---> Please change title to ***WON***

 

THANKS

 

:D :D :D :D

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Excellent! Well done, you got a pretty good result out of that. :D

 

Title changed.

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Excellent! Well done, you got a pretty good result out of that. :D

 

Title changed.

 

Thanks again for your advice which enabled me to negotiate with more understanding of what I would have been likely to acheive in court.

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read it, interesting, some nice letters and emails Boba, congrats, I'm nicking those for later :)

 

having the decree helped things for sure I suppose,as for the CI, I don;t think anyone suggest that a court will award it, it's a matter of presenting the case bullishly and haggling for the CI or some element of the CI against the bank's reluctance or ability to appear in court, there's nothing to lost realy seems to e other then perhaps more time wrangling with the bank

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