cryer vs barclays

[shadrack]

been going through the process with barclays - as ever they have been as awkward as ever, did my mcol, and they had until the 12th to defend and on the 12th they submitted a defence - the usual defence

 

1. The Particulars of Claim do not provide details or particulars of the account in question and/or 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/her account for unauthorised borrowings (whether unpaid fees for returned cheques, "Paid Re~erral fees" or any other such fees), the Defendant puts the Claimant to strict proof of each charge and the date thereof.

2. 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/her authorised overdraft limit).

 

3. If and to the extent it is the Claimant's case that the failure to make necessary payments and I or failure to remain within 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 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 a.."1d conditions or hisiher account and Were consideration for the Defendant advancing creditto 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.

 

4. 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 (particularly but without limitation to, paragraph l(e) of Schedule 2), or are in breach of the Unfair (Contracts) Terms Act 1977 (or any other provision), or are unreasonable within the meaning 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

 

5. Therefore, it is denied that the charges were unlawfully debited from the account.

 

6. If and to the extent the Claimant incurred charges on hislher 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 I or hislher failure to make payments to bring the balance of the account back into credit.

 

7. 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.

 

8. 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 O8th September 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

 

9. 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.

 

thats pretty much what it says

i was also sent a N149 allocation qustionaire (filling this in now)

what do i need to do then - ive read so much about going to court and im getting worried now

how do i prepare for court - court bundle (cant find this anywhere)

what do i send and who two

really struggling please help:-x :o

[Falcom]

Hi

 

Dont worry I'm sure it wont reach a court room.

 

Check out the new strategy for AQ's

 

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html#post482191

 

You dont have to submit court bundle yet. Just complete the AQ (along with draft directions if you follow the new strategy) and wait for directions and court date from the Judge. You submit the bundle once you are requested to do so.

 

Just keep reading the threads - if you need any help there is loads on here and if your are struggling PM. This site is amazing it offers practical advice and some amazing support. I keep reading some of the credit card threads and I am amazed how supportive people can be and how nasty the banks can behave.

 

The defence looks pretty standard btw - if you want to compare it mine id detailed on my thread.

 

Peter

[shadrack]

thanks falcom - sound great - im just preparing the AQ, i may have a serious problem though, - very stupidly i have missplaced my statements - i hace everything else including schedule of charges (dates of charges and how much and what for). REALLY WORRIED CAN I REQUEST THEM AGAIN IN TIME

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

CAN I JUST SEND THE INFO I HAVE WHEN REQUIRED, OR DO I NEED THEM

 

cAN I STILL SEND THE Draft Order for Directions

PLEASE HELP:(

[shadrack]

I Still Have All Corespondance With Barclays - Part Settlemnt Offers , Lba Etc.

[shadrack]

any advise welcome please

[shadrack]

thanks for that - should i send without the drat order, Will i have to supply them at a later date for my court bundle