johnsworld v Barclays Bank

[maxine989]

Hi John

 

I assume that you can use current terms and conditions (that's what I have included in my bundle for barclays) as you are stll being made to pay penalty charges. You can download a copy of the terms and conditions from the Llyods website... just use the ask a question or search function to find it.

 

Hope this helps

[Bookworm]

Considering they refer to "unauthorised" borrowing, and not to the servce argument, not really, no, as the LTSB case is irrelevant. It would be in any case, as it is small claims, and doesn't set a precedent, but since Barclays hasn't used the servce argument, it is even more so.

[Johnsworld]

Thanks Maxine,

 

I guess any terms and conditions are better than none.

 

Did you mean The LLOYD'S BANK website??

 

Thanks again,

 

John.

[Bookworm]

And 4 more threads merged. Please don't do that. If you haven't had an answer, then write BUMP on a new post in your thread and it will bring it back up to the top of the list.

 

Also, your last post was at 11 last night, no answer by 9 am next day is hardly surprising.

[Johnsworld]

Hi Bookworm,

 

My post was a bit rambling so just to check - is that a no to including Terms and Conditions?

 

Thanks,

John.

[Johnsworld]

Sorry Bookworm. I knew it was naughty but I didn't know about BUMP. I'm just panicking and running out of time.

 

I do apologise.

John.

[Johnsworld]

I've written a new more in depth Witness Statement this evening. I didn't have an AQ and thought the simple version of the Witness Statement wasn't strong enough. Some of it is derived from the Lloyds Bank forum but I'm sending it to Barclays so have cut or amended it. If anyone has time to read it and tell me if I've made any fatal errors, I'll be much obliged. Especially Paras 13, 14 and 16.

 

1st Witness Statement of [you]

Exhibit [initials then 1]

[date]

In the ****** County Court

Claim Number: *******

 

Between:

 

[you]

(Claimant)

 

 

And

 

 

 

(WHATEVER) BANK PLC

(Defendant)

 

 

_________________________

 

 

 

1st WITNESS STATEMENT OF

 

 

 

[YOU]

 

 

 

_________________________

I, (Your Name) of (Your Address) will say as follows:-

 

1. I, the Claimant, am a litigant in person in this case.

2. I make this Witness Statement in support of my claim against the Defendant for the refund of penalty charges levied to my bank account by the Defendant bank.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. On [date] I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them.

 

5. Upon unsatisfactory response from the Defendant, on [date] I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.

 

6. On [date] I wrote again to the Defendant requesting a refund of charges and advising I would file a claim should I not receive a satisfactory response.

7. On [date] I filed a claim at Luton County Court for the return of excessive penalty charges levied by the Defendant, as detailed in my Particulars of Claim.

8. a)The Defendant acknowledged service of the claim on [date]

 

b)The Defendant filed its defence on [date]

9. I submit that the charges levied to my bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges arising directly from my breaches of the contract, both explicit and implied, between myself and the Defendant. As a contractual penalty, it is submitted that the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"), the Unfair Contracts (Terms) Act 1977 ("UCTA"), and the common law.

10. It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to, or intended to represent, any actual loss arising from a breach of contract, but instead unduly enrich the Defendant, which by virtue of the legislation cited in paragraph 9 above, exercises the contractual term in respect of such charges with a view to profit.

11. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that;

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part”

 

i.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied were not representative of any service provided by the Defendant, but instead are punitive and applied "in-terrorem".

12. I refer to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999.With regard to the 'cloaking' or disguising of penalties, the OFT said this;

"4.21. The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing' or 'allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR's are concerned with the intentions and effects of terms, not just their mechanism".

13. As submitted above, I believe the charges levied to my account to be disproportionate contractual penalties, arising from clear and demonstrable express and/or implied breaches of terms of the account contract between myself and the Defendant. I vehemently refute any contention that they are legitimate contractual service charges.

14. However, and without prejudice to paragraph 13 above, in the event that the charges were accepted by this honourable court as being a fee for a contractual service, I will contend that that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982

15. Further, under the UTCCR:

“5(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

“(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.

 

The cost of Barclay’s charges have increased during the period in which my account has been held, with no opportunity to negotiate, or notification of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

16. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the banks right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

17. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

18. Further, under the UTCCR, schedule 2 (1) includes to define an example of an unfair clause as -

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation"

19. I have requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches but each time those requests were rebutted or ignored.

20. The Defendant, or indeed any of the UK banks, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

21. For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer's breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

22. It is submitted that the Defendants charges are applied by an automated and computer driven process. This process consists of a computer system 'bouncing' the direct debit, and sending out a computer generated letter. The letter received notifying the customer of a charge is identical in every instance. It is therefore impossible to envisage how the Defendant can incur costs of £30 - £35 by carrying out this completely automated process.

23. Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

25. I will also cite a BBC radio interview in 2004 with Lloyds TSB's former head of personal banking, Peter McNamara, in which he states that bank charges are used to fund free banking for all personal customers as a whole.

26. Accordingly, I will seek judgement in respect of;

 

a) Charges in the sum of £1130.00 (as particularised in the Particulars of claim),

b) Interest at the rate of 8% per annum under County Courts Act 1984 s.69 in the sum of £271.54 as at 16/05/2007, and further at the daily rate of £0.25

thereafter (as particularised in the Particulars of Claim);

27. I would respectfully ask that the Court, in this case, notwithstanding allocation to the small claims track, order standard disclosure.

 

i. The Defendant to file at the Court office and serve me with a list setting out how charges have been calculated.

 

ii. I understand that it is in the Courts discretion to do so.

 

 

Statement of Truth

 

I believe the facts stated within this Witness Statement to be true, and submit it as Exhibit [initials then 1] comprising of ** pages.

 

Signed:

 

 

 

 

 

[your name]

Dated: [date]

 

That's it,

 

Thanks,

John.

[Johnsworld]

Bundle sumitted to Court and Barclays 18 May.

28 May and nothing back from Barclays or Court.

 

What's next?

 

I figure I could write to Barclays and encourage them to settle or I could ask them for their Court Bundle.

 

I guess I could wait to hear from Court or could I go for non-compliance.

 

Is anyone else in a similar position or had a similar experience?

 

I've read about claiming for waste of time but as the Judge decided to dispense with AQs the bank didn't have a choice in making me prepare my bundle, or am I being too charitable.

 

Regards,

John.

[dar£n]

If you write you will not get a reply, simply because they dont have the time.

 

I suggest you bit the bullet and contact the Litigation Team, Go through Krysta, asking to speak to the person who is handling your claim, make out that you are interested to fing out why they havent submitted their court documents as the deadline has expired.

 

They are a very helpful and polite team.

 

I know this is going to be very daunting, but have a read through some recent posts.

http://www.consumeractiongroup.co.uk/forum/barclays-bank/77430-caz-barclays-woolwich.html

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/65128-woodentop-barclays.html

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/78604-what-do-i-do.html

Everyone that has followed this advice is very pleased they did.

 

One thing to remember b4 contacting them is to have your updated figures in front of you and settle only with what you are happy with,

If they do arguing the toss which isnt very often simply say thank you for your time I think I'll let the judge decide goodbye, hang up and they will contact you back.

[Johnsworld]

Well, it'll have been a year by the time I go to court in August.

 

I lodged my court bundle in May, Barclays didn't.

 

I wrote to Barclays end of May reminding them of the court directions and asking for copy of their bundle without response.

 

Telephoned court last week and was advised that they didn't get any bundle from Barclays. They said I could write to the court and the judge might make another direction.

 

Have telephoned Barclays Litigation (Krysta's number) but it's on answerphone. Have emailed Barclays about the case and who was dealing, but without response.

 

Trouble is I'm going to be away from home for a month and won't be back until a few days before court, so no time to negotiate after this week.

 

A nudge letter seems pointless except to show the judge I'm trying to settle.

 

:? Any ideas would be welcome.

 

Thanks,

John.

[saintly_1]

email Dino to find out who is dealing with your case as you will be out of the country from xx/x/xxx to xx/xx/xxxx which is x days from the court date see what responce you get from Dino http://www.consumeractiongroup.co.uk/forum/barclays-bank/94602-barclays-litigation-team-good.html dino's email is on there

[SOMEFRIENDLYUK]

hi all, sorry to hijack this thread but i'm doing my cousins Barclays Bank charges at the mo and there are some things i do not understand as i'm with halifax.

On the statements there seems to be many 'unpaid outs' -these seem to be mainly after a referal fee. i'm assuming a referal fee is just a name for a charge but can anyone tell me what an unpaid out is?

Thanks and sorry for the hijack

[saintly_1]

unpaids out are bounced DD'd cheques ect and are a charge

[SOMEFRIENDLYUK]

thanks for that -so can you claim a referal fee and a unpaid out ? so whats a referal fee -i thought that was for an unpaid dd?

[saintly_1]

used to be unauth o/d

[SOMEFRIENDLYUK]

so -sorry if i'm being dim -do i claim for both -just want to be sure-Thanks

[saintly_1]

yes you claim for both perhaps you should start your own thread

[SOMEFRIENDLYUK]

i will -thanks for the help

[Johnsworld]

Thanks Saintly 1

 

Already emailed Krysta but no reply.

 

Thanks for the contact - will do as you suggest.

 

I'm running the case for my daughter and don't want them to put the sqeeze on her while I'm away.

 

Regarding litigation details, what do you need and where should they be posted? I'm concerned about revealing too much.

 

Thanks again for the advice. It's much appreciated.

 

Regards,

John.

[maxine989]

Well, it'll have been a year by the time I go to court in August.

 

I lodged my court bundle in May, Barclays didn't.

 

I wrote to Barclays end of May reminding them of the court directions and asking for copy of their bundle without response.

 

Telephoned court last week and was advised that they didn't get any bundle from Barclays. They said I could write to the court and the judge might make another direction.

 

Have telephoned Barclays Litigation (Krysta's number) but it's on answerphone. Have emailed Barclays about the case and who was dealing, but without response.

 

Trouble is I'm going to be away from home for a month and won't be back until a few days before court, so no time to negotiate after this week.

 

A nudge letter seems pointless except to show the judge I'm trying to settle.

 

:? Any ideas would be welcome.

 

Thanks,

John.

 

 

Hi John

 

Most of the banks do not submit a 'court bundle' or a 'trial file' unless they have anything to add to their orginal defence which was probably sent to you when you first filed at court. If they haven't submiitted a bundle, it usually means that they have nothing else to say to the court in relation to the claim and are just going to use their defence. If they turned up at court with additional documents to use in the case, then the judge would not be best pleased about this and would probably not allow them to use it.

 

My guess is that you will probably get a letter with an offer a week or even a few days before the court date. If there was something in your bundle that they were intending to argue against then they would have entered a bundle... as they have not, this suggests that they do not intend to argue the case in court and will settle before the date.

 

Sit tight and you will soon get an offer... usually for the full amount of charges plus the 8%.

 

Are you claiming contractual? If you are then you can always turn down their offer of charges plus the 8%, but then there is no guarantee that they will come back with the higher rate. So then, you might have to go to court and argue on just the interest alone. If you are brave anough to go for this... then good luck to you... either way it will be the decision of the judge so you wont loose out in the end. One way or another you will deffo get the charges plus the 8%. And you never know.. the judge just might grant you the contractual interest instead. If you haven't claimed contractual... then ignore this last paragraph and wait for you settlement to arrive through the letter box over the coming weeks.

 

 

Hope this helps with your bundle query...?

 

Maxine

[saintly_1]

Send me a pm with your litigation details

claim number

bank

amount

court date

[maxine989]

P.S.

 

The only thing you could do to spur them on a bit is to send barclays a letter suggesting that if you are forced to appear in court etc... then you will apply for a wasted costs order... something like this:

 

As directed by District Judge ****** of *******l County Court confirm that you have recieved the court bundle of documents (sent to you on the ** of **** 2007) which I shall be using as the claimant in the case referenced above.

 

The total claim now stands at £*,***.**p with interest increasing daily. Please see attached Schedule of charges. This total amount is for penalty fees levied, plus **% interest, plus court fee, plus allocation fee. Unless this amount is paid in full before the **nd August 2007, court proceedings will continue and a hearing will take place.

 

If this matter is not resolved before this date and I, the claimant, am forced to appear in court, then I shall begin proceedings for a ‘Wasted Costs Order’, where a Schedule of costs incurred and time spent will be supplied to the courts including a list of settled cases for Barclays Bank.

 

The pressure put on legitimate claimants and the court system is enormous and I shall be seeking costs in view of your abuse of the court process unless this matter is settled before the court date.

 

I trust this clarifies my position,

 

Yours faithfully

[Johnsworld]

Thanks Maxine for the explanation, but it seems a bit one sided to me.

 

If I had failed to submit my bundle as directed wouldn't the court have chucked out my claim? How come the bank can ignore the Judges directions and nothing happens?

 

I hope you're right about an offer coming, but if they want to go to court that's OK as well.

 

Thanks again,

John.

[maxine989]

Hi John

 

That is becuse the banks have already filed a defence.

 

The defence is usually sent in early in the hope that you will give up your claim. You, as the claimant, have to send in the documents you will be relying on in court. The bank are given a chance to do that also, but as they have already sent in their defence, many banks don't bother with any additional information.

 

If you hadn't submitted a budle the court would not have struck out your claim, but you would have no documents to use during the hearing and so would not have a case.

 

Hopefully you will get an offer soon... did you claim contractual interest or just the 8%??

[Johnsworld]

Hi Maxine,

 

Tnanks for the evn more detailed explanation. I didn't realise that. I thought we both had to respond.

 

Only claiming basic interest. Received email with name of person dealing so might give them a buzz. It's only 5 weeks to trial!

 

Thanks again for taking the time and trouble. It was good of you not to question my intelligence.

 

Kind regards,

 

John.