@/*&#~' barclays bank

[nookiebear69]

i have just received the response pack from the courts informing me that barclays will defend the case. is this the norm, when will i receive the allocation forms and has anyone had any success with claims against barclays.

[msawouldlikejustice]

Yes Barclays always file a defence, and the real question is has anyone not had any success against Barclays.

[nookiebear69]

does it usually make it to court or are they bluffing

[msawouldlikejustice]

I dont think they have ever shown up in court, once you have prepared the court bundle and done some reading you kinda want to go to court, the bottom line is the charges are unlawfull and they dont have a leg to stand on.

 

Good luck

 

To follow my claim against barclays Msa V Barclays Bank 5 days till court

[nookiebear69]

i have just received a letter from the courts informing me that barclays will defend the case i have started is this the norm and will it make it to court does anyone know of any cases against barclays and what are my chances:-x

[sandbag]

Hi Nookie - i also have a claim against Barclays - they also defended which is the norm for Barclays.From looking at other threads they usually settle a day or two prior to the court date.

Regards Sandbag.

[nookiebear69]

lets hope that its the same for us then sandbag good luck with ya claim will keep ya posted

[nookiebear69]

barclays now have less than a week to enter a defence, as i would like to be prepared could anyone tell me what i would need to put in my court bundle. any advice appreciated. by the way sandbag congrats noticed barclays settled

[livelylad]

barclays now have less than a week to enter a defence, as i would like to be prepared could anyone tell me what i would need to put in my court bundle. any advice appreciated. by the way sandbag congrats noticed barclays settled

 

Here is the basic court bundle.

 

Please stick to one thread for this claim.

 

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

[nookiebear69]

thanks for link. apologies was under impression i had stuck to the thread i originally posted

[nookiebear69]

i have just been checking my statement of charges ready for my court bundle and it would appear i have guffed slightly and entered 1 charge twice by mistake. i have revised this using the calculator on the martin lewis website which has obviously recalculated the interest as well.having removed the extra charge and with the additional interest there is a difference of about £5 in barclays favour should i inform the courts of this and include it in bundle or should i leave it as is.

[Michael Browne]

Personally I would leave it. If it's picked up they'll just adjust the settlement.

[nookiebear69]

well here we are again.unfortunately i may have been to honest and tryed to have the amount amended and have received a letter this morning saying that the original amount stands as "the statement of case discloses inadequate particulars of claim". the letter also says "unless by 4pm on 26 march 07 the claimant files a further statement of case that sets out full particulars of the claim, the claim will be struck out.

 

what do i do? do i send a copy of the list of charges to the court or do i need to do more? please help

[Michael Browne]

The obvious question is what did you put in your POC's?.

[nookiebear69]

having trouble accessing hmcs website so cant give exact wording but was something along the lines of "over the last six years barclays have made numerous charges to my current account i believe these charges to be unlawful and seek to claim them back" should i have been more specific

[Michael Browne]

MCOL POC's should be as here (this is the absolute minimum)

5. Money Claim On-Line (MCOL) Particulars of Claim

Better are the POC's for N1 here:

4. Particulars of claim - N1 - hard copy version

 

Or you have the chance to submit a much fuller version as below. Read through very carefully and amend and edit to your particular claim:

 

 

X

CLAIMANT

- and -

 

XXX Bank PLC

DEFENDANT

________________________

Particulars of Claim

________________________

 

The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world.

 

The Claimant has an account (hereinafter referred to as ‘the Account”) with the Defendant which was opened during or around XXXX.

 

During the period between XX/XX/XX and XX/XX/XX, or thereabouts, the Defendant debited numerous charges to the Account, in respect of “unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. The Defendant has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto).

 

The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant.

 

The Claimant was only able to obtain complete details of the Charges by virtue of a Subject Access Request, served upon the Defendant, pursuant to s7 Data Protection let 1998. The cost for said request was £10.00 and the date whereof was xx/xx/xx

 

On or about xx/xx/xx the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said letter the Claimant made various assertions and arguments to substantiate her request, quoting relevant sources of law and evidence. Claimant concluded therein that the Charges were unlawfully levied to the Account by the Defendant.

 

The Claimant subsequently received a letter from the Defendant, dated xx/xx/xx. Therein the Defendant, informed the Claimant that the Charges would not be refunded. Further, the Defendant averred that the Charges were “fair, reasonable and transparent” and were provided for by the Defendant’s “published tariff’ which, it claimed, complied “with all applicable laws and regulations”. Unfortunately, the Defendant, was unable to provide any legal and/or factual basis for its assertions.

 

A letter before action was sent on xx/xx/xx or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated xx/xx/xx, giving its “final response” to the claim, denying a refund of inter alia the Charges, to the Claimant.

 

Claimant notes that the Defendant, to date, has made no attempt whatsoever to present a competent defence to the Claimant’s claim.

 

Brief Outline of Claim

Claimant as part of her basis of claim, advances that:

a. the Charges have been unlawfully applied to the Account;

b. no contract ever existed between the parties hereto that purports to allow the Defendant to levy the Charges to the Account.

c. should such a contract exist it could only exist in the form of the Terms & Conditions.

d. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter.

e. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defendant for services provided then they are irrecoverable due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable.

 

In support of part of his basis of claim the Claimant contends, and intends to prove that:

 

a. the Charges are:

i. punitive in nature;

ii. unreasonable;

iii. generally disproportionate;

iv. excessive;

v. unfair;

vi. unlawful;

vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit;

x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and would not have incurred but for any alleged breaches of contract on behalf of the Claimant; and

xi. are held in in terrorem to discourage the Claimant from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item.

 

b. all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of:

i. the UTCCR;

ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’)

iii. the Supply of Goods and Services Act 1982; and

iv. the common law; and

 

c. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated.

Unfair Terms in Consumer Contract Regulations (S 2083/1999)

Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto.

 

Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Paragraph 1 to Schedule 2 of the UTCCR includes all “terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR).

 

Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as unfair”. The Terms & Conditions allow the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”.

Regulation 8(l) of the UTCCR provides that: “. 1n unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.”

 

Accordingly, the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR.

Unfair Contract Terms Act 1977

 

Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 64 of these particulars.

 

Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable.

Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

Common law

The authorities mentioned in paragraph 18 and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the case of Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co are powerful authorities in favour of the Claimant. Accordingly, the Claimant is entitled to judgement as sought in these particulars.

It was noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses:

a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive.

b. The essence of a penalty is a payment of money as “in terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests, which would prove, helpful, or even conclusive:

i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach;

ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid.

 

 

Details of Judgement Sought by Claimant

Accordingly the Claimant seeks:

a. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £XXXX

b. the return of the Subject Access Request Fee, in the amount off £10.00, that the Claimant was required to pay in the perusal of this case

c. court costs; and

d. interest pursuant to s69 County Courts Act. Interest, in that case, up until xx/xx/xx amounts to £XXXX, as detailed in Schedule, attached hereto. Interest per day thereafter, or part thereof, is £00.xxp

Statement of Truth

The Claimant believes that the contents of these particulars of claim are true

SIGNED

 

[nookiebear69]

thanks micheal much appreciated,between yourself and the lady at the court i spoke to hopefully i should have some success now.wont count my chickens just yet though will keep you posted. thanks again

[nookiebear69]

much appreciated micheal used your longer version of the poc's and included the amended amount of claim. received a letter from the courts informing me that barclays had been ordered to submit a new defence to the amended claim by 10th of april.

tried to contact their legal department by phone and speak to the lady whom i had recieved a letter from however nobody at barclays seemed to have the correct phone number and i was passed from pillar to postfor 30 mins b4 being given the number for an automated service that said " there is noone available to take your call". does anyone have the number for barclays legal department at their head office in london