Fellowes Vs Barclays

[welshcakes]

Hi Fellowes

 

You can do either. If you scan it and attach (using the little picture symbol in the message bar above, make sure you have blanked out personal detail such as your name and the case number.

 

Most people just type it in

[Fellowes]

Thanks Welshcakes.

Just realised I’d not listed Barclay defense either, is there anything contained in this which is different from anyone else’s?

Just want to make sure before completing my statement of evidence.

They have put in the standard clause stating I’ve not provided a SOC, which is incorrect they must have had 3 or 4 by now.

 

BARCLAYS DEFENCE:

 

1. The Particulars of Claim do not provide details or particulars 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 the Claimant's 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 Particulars of Claim are summary in nature. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

 

3. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The Claimant accepted the same when the 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.

 

4. 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 the authorised overdraft limit).

 

5. If and to the extent 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 conditions of the 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.

 

6. 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 s.4 of the Unfair (Contracts) Terms Act 1977 (or any other provision), or are unreasonable within the meaning of s.15 of the Supply of Goods and Services Act 1982 (or indeed any other provision).

 

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

 

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

9. It is averred that the said charges and interest are and remain lawful and enforceable and that the De

 

10. 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 4 April 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action.

 

11. In the alternative, and without prejudice to matters stated 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, and the charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a consequence of such 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 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.

 

Barclays Bank PLC

 

[Fellowes]

I sent the proposed draft order to the court, and on the conference call this was accepted.

 

I've now received the order, I've listed it below.

 

Before DISTRICT JUDGE HICKINBOTTOM sitting at Keighley County Court, Yorkshire Bank Chambers, North Street, Keighley, West Yorkshire, BD21 3SH.

 

Upon hearing the Claimant in person and the Solicitor for the Defendant

 

IT IS ORDERED THAT

 

The matter be allocated to the Fast Track with a trial window of 21 January 2008 to 8 February 2008. Time estimate 4 hours.

 

Each party shall file a completed Listing Questionnaire by 4.00 pm on 17 December 2007

 

1 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 material relied upon

 

2 The Defendant shall within 42 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed

 

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon

 

b) Whether such charge is accepted to be a penalty, and if not why not

 

c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true costs of dealing with the matter was

 

d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant" s actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable

 

e) Any witness statements

 

f) Copies of decided cases and other legal materials to be relied upon

 

Costs in the case

 

Dated 18 July 2007

[Fellowes]

Can anyone provide assistance on the court bundle? I've seen all the links for "Court Bundles For Dummies" & the offer from Guido of the pdf containing all the legal bits.

Do all 198 pages of this pdf, and the Court Bundle need combining, plus printing the 2 web links contained on page 5?

Any assistance is greatly appreciated; I need the bundle in by 4th August 07.

[Fellowes]

Is anyone able to help with my previous posts?

 

Looking for some assistance with the court bundle and statement of evidence.

[dar£n]

Hi F, before we go any further......have you sent in your SOC's sinc ereceiving this defence?

 

if not you need to do it asap, yes we know you have done it, but theyre using it, send it recorded delivery..

 

the court bundle here will do:

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

just add your documents to it

 

statement is:

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires-3.html

 

sorry cant remember if its post #54 or 55, its been a while.

[Fellowes]

Hi Dar£n,

 

Yes SOC sent recorded and special a few times.

 

I'm confused with the bundle, so i just need the link you sent plus my docs to add. What is the pdf pack of docs all about?

 

Can i just copy and paste the statement of evidence, some make reference to making changes.

[Fellowes]

Can one help with my last few posts, a few questions I'm trying to obtain clarification on with regard aspects of the court bundle.

 

Any assistance would be appreciated. Thanks

[dar£n]

the 2 web links contained on page 5?

 

 

If I remember these links are to the OFT Report and the EDM??

 

access the link and print off the web page. each link doesnt look like much, only a handful of lines on each.

 

You should also be adding the NEW OFT news also

[saintly_1]

EDMDetails

 

http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

[dar£n]

yeh that was the two i was thinking of, thanks jill.

[saintly_1]

Your welcome

[Fellowes]

Thanks Saintly & Dar£n.

 

Is there anthing else which should be included, based on Barclays Defence?

[Fellowes]

Does anyone have a working link for the "Australian Default charges report, Nicole Rich", which is in the statement of evidence document.

The link works, but it does nto take me to the correct site, or so it would appear.

[saintly_1]

http://www.consumeraction.org.au/downloads/DL29.pdf

[Fellowes]

Thanks again Saintly.

[dar£n]

Also have a read here:

7.30 Report - 23/12/2004: Bank penalty fees too high and may be unlawful: study

 

PM - Banks respond to unfair fee accusations

 

Bank fees: are they against the law? - David Koch - Columns - Money - Business

 

Call to action - Banking - Money - Business - Home - smh.com.au

 

Nicole does make interesting reading...

[Fellowes]

Thanks Dar£n.

 

I've now hand delivered the Court Bundle to Keighley, and sent recorded to Barclays.

 

From the court order Barclays have 42 days to submit their court bundle, thereafter. Does this mean from the date I delivered to court, or from when my 14 days expired.

 

What is my best course of action now? Do I approach Barclays litigation team and establish if they have received my bundle, and would they like to settle.

 

Or should I wait the full 42 days to see if Barclays comply with the order.

[dar£n]

you may as well sit tight buddy, Barclays aint gonna issue any new settlement offers now..

 

soz

[Fellowes]

Dar£n,

 

My understanding was with the proposed order, and the case being assigned to fast track, they had to comply with disclosure and provide all the information within the 42 days ordered by the judge.

 

Are Barclays going to comply with this, and so proceed to court in Jan - Feb 2008?

[dar£n]

They will prob keep quiet in the hope the charges are deemed acceptable and therefore will not have to prove them.

if it is rules they are unfair, you can bet your bottom dollar they will be busting at the seams with offers to settle...

 

At the moment your hope is to wait and go for non compliance of directions and hope the judge has the strength to rule in your favour..

 

I hope so ,

[Fellowes]

What are the dates when we will here is the charges are unfair?

 

Has anyone else used the order, and had Barclays submit their bundle? Or have the cases settled prior to this?

[dar£n]

ahhh such the optimist...I like it..

 

There hasnt been a date set yet [i dont think anyhoo - saintly will prob know and correct me in less than a minute..lol]

but you can bet if they do rule them as unfair [within 12 months]

the banks will appeal [one judge stated this could be dragged out for up to 3 yrs].. Lets hope the OFT doesnt allow that

[saintly_1]

Well .................

 

daren is correct at the moment

[Fellowes]

I was Peter Rabbit Vs Barclays used the same order, and Barclays did not comply in the time allowed.

 

The judge did grant an extension but this was not met either, and a full settlement followed.

 

If Barclays do not declare the true costs of administering such fees, as requested in the order will the judge not through the case out as not all points of the order have been complied with.