Kiff v Barclays

[kiff]

Quick update.

 

I phoned the court. They explained that they are currently 5 days behind with the paperwork, but said that normally if an Ack has been received it is logged on the system straightaway and the paperwork is dealt with when they get to it. I was advised to complete the Request for judgement and send that back to them asap. They said that at least it is recorded. Obviously we all know that Barclays will submit something by Monday! I couldn't be that lucky!

 

Cheers

Kiff

[saintly_1]

You never know ....

[kiff]

Had letter today saying that Barclays have acknowledged the claim. They now need to submit their defence by 20th June, give or take the 5 days the court is behind with the paperwork. I'll give the court a ring on Friday 22nd, just in case. I'm off then to France to see my mum for 10 days - I'll let the courts know this, though I doubt much will have happened in that time!

 

Cheers

Kiff

[kiff]

Hi everyone. Have returned from a very hot and sunny south of France to find lots of rain, Barclays defence and an AQ waiting for me! I now have until the 13 July to submit the AQ. Please can someone look over the defence for me - I've read it several times and have looked at other peoples submissions on here, but just would like someone else to check there is nothing new in there.

 

"Kiff v Barclays Bank PLc

 

1. To the extent it is alleged that the claimant incurred bank charges on the claimants 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 POC 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 particuar 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 claimants case that the failure to make necessary payments and / or failure to remain within authorised overdrafts 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 priniciples 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 Regs 1999, or are in breach of the Unfair (Contracts) Terms Act 1977 (or any other provision), or are unreasonable within the meaning of s15 of the Supply of Goods and Services Act 1982 (or indeed any other provision).

 

7. It is further denied that any such charges unduly enrich the defendant.

 

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 defendant was entitled to debit the same.

 

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 (which is denied) the said charges are unenforceable and consituted a breach of contract by the defendant, those charges which were applied to the account prior to 14 May 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 defendant seeks to set off such sums against any liability owed hereunder to the claimant.

 

Rosemary Treves Brown

Solicitor

Barclays Bank Plc"

 

Phew that took some typing! Off to make a cuppa - any advice gratefully rec'd.

 

Cheers Kiff

[saintly_1]

looks like standard defence

1. To the extent it is alleged that the claimant incurred bank charges on the claimants 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.

 

Send SOC (schedule of Charges) to b's litigation team and to the court with covering letter to include them in your file

 

Have a read of this http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionnaires.html for filling in your AQ

 

Hope this helps

 

saint

[moggieb]

Almost word for word same as mine received today-except for point 7. Mine reads "Therefore it is denied that the charges were unlawfully debited from the account"

[moggieb]

Oh & point 1 starts off- "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 etc etc etc"

[saintly_1]

That means they must have 2 versions that they send out ;-)

[kiff]

Thanks Saint and Moggieb for all the support and advice. I'll send off my SOC and will have a read of the AQ link you gave me.

 

It's lovely knowing that there is support out there and that people are still up at this hour!!

 

Thanks again for taking the time to read through all that,

Kiff

[kiff]

So I've completed the AQ with the new draft directions and have attached an up-to-date SOC, have my £100, and am going to hand deliver it my local court this afternoon. I have also sent another SOC to Barclays Litigation team along with the copy of the AQ and draft directions. So we shall wait and see.......

 

I am now getting a little bit nervous. I've printed off the basic court bundle - what else will I need other than my statements and SOC?

 

:? Kiff

[saintly_1]

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/97447-court-bundles-dummies.html?highlight=court+bundle+for+dummies gives a walkthrough of whats needed

 

Statement of evidence use the one from post#34 of this thread

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/36692-peter-rabbit-barclays-success-2.html

[kiff]

Thanks Saintly, you're a star

 

Kiff

[kiff]

It's now 10 days since I hand delivered my AQ. Should I give the court a ring on Monday and see what is happening, or should I just be patient and wait for a court date to come through.

 

My account was opened end 1997. What T&Cs do I need - everything since then, or just the 1997 ones? Can anyone help/has anyone got the ones I need?

 

Thanks

Kiff

[saintly_1]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/101412-document-library-work-progress.html

have a look whats in there

[kiff]

Thanks Saintly - good to know I'm not the only night owl out there! I have the T&Cs for 2000 & 2007, do I need anymore? Is it a case of having as many as poss? Or just a few examples.

 

Kiff

[kiff]

Spoke to the court today. Barclays had to submit their AQ by 13 July - which they haven't done yet. The courts normally give them a warning letter at this point and an extra 7 days.

 

I've sent them a nudge letter to give them an opportunity to settle now - I can hope can't I!!!

 

Dear Sir/Madam

It has come to my attention that as of 23/07/07, you have not filed the Allocation Questionnaire in this case which was due on 13/07/07. Please find enclosed a copy of my Allocation Questionnaire and also another copy of my schedule of charges relating to this claim.

 

I would remind you that with the filing of the Allocation Questionnaire, I will now require the addition of that fee to my claim.

 

I am mindful of the vast number of claims with which you are currently dealing. In order to more speedily resolve this matter, I am willing to accept the sum of £3,328.00. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

 

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the courts would approve of our settling this matter in a timely manner and without their intervention.

I look forward to hearing from you.

 

Yours faithfully

 

Kiff

 

 

 

 

[kiff]

No reply to my 'nudge letter' sent on the 23 July. Will ring the court again in the morning to see what the state of play is now.

[kiff]

Have not been able to get in touch with court so far - it just rings and rings! Will try in ernest on Monday am. As Barclays have failed to submit their AQ (which they had to do by 13 July) I feel it must be worth writing to the court asking for the claim to be struck out for non-compliance. Barclays have had heaps of time. Has anyone had any luck doing this in the past?

 

 

thanks

Kiff

[welshcakes]

Hi Kiff

 

Did you receive a court notice (directions) actually stating that the Defendant had to file and serve an AQ?

[kiff]

No, I just had directions that I had to submit the AQ, but when I rang the court to see what happens next I was told that the Defendant was sent the same documentation as I was, and that until the judge had both AQ's there wouldn't be any court date issued. The court also said that the judge would normally give the banks an extra 7 days to submit the AQ and then he would look at Judgement in my favour because of the banks non-compliance. Though nothing happened and I think the extra 7 days they had finished around the announcement time.

 

So is this the norm, do the banks have to submit an AQ if I have? In my RBoS claim, the bank were very quick off the mark to send me copy of their AQ (asking for the case to be stayed!!)

 

Over the weekend I recieved the the General Form of Judgement, from the court saying the my Barclays claim will be stayed pending the ultimate determination of the Commercial Court litigation. Grrrr

 

Is it worth completing the N244 and paying the £35? How much success have people had with this?

 

Thanks

Kiff

[kiff]

Doesn't time fly, it doesn't feel that it has been three months since I last posted! Though I have been on the site at least twice a month since my case was stayed. Roll on the test case.

 

I'm after advice, which I know I can always rely on from this brilliant site and CAG users. I'm thinking of claiming for my other half's Barclays account and already have his statements. It doesn't come to much, but I feel it's definitely worth the effort. I'm assuming I can just use the templates on here and the relevant POC as before (I'm aware that they have been updated since my claim started early last year). Is this the case?

 

I feel a bit silly asking, but when you go from looking at this site almost daily to not often you forget whats what!!

 

Cheers

Kiff:)

[slick132]

Hi Kiff,

 

Sorry your last post wasn't answered. The good news is you saved yourself £35 as the stay WOULD have remained pending OFT case.

 

To start OH's claim please start a new thread for this so the 2 claims are kept and don't get confused.

 

Here's the basic guide - http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31460-example-step-step-instructions.html

 

Fill out spreadsheet and print without int't (no int't claimed until you fill in Form N1). Send off Prelim letter, followed by LBA 14 days after.

 

There are new POC's in the Stickies at the top of Barclays forum ready to use when you fill in claim form N1.

 

Slick