Barclays Misery!

[Breezy Girl]

Hi anyone who can help!

I have completed my statement of evidence etc. Can anyone tell me whether I have made a boo boo here please? In my original POC I did not refer to the fact that my partner paid off the bank. I did it as a straight claim firstly because I didn't really know what I was doing at the time and secondly because I intended to claim the refund from the Liquidator on his behalf and to treat him as a creditor. I have proof that he paid the guarantee to the bank. Now I am not sure if I should change this and I am not so sure I'd be able to anyway.

Can anyone advise me please as mine is not a straight forward claim?

Thank you

Breezy:?:

[slick132]

I've asked for advice here - we'll come back asap.

[Breezy Girl]

Thank you slick!

Breezy

[elsinore]

I did it as a straight claim firstly because I didn't really know what I was doing at the time and secondly because I intended to claim the refund from the Liquidator on his behalf and to treat him as a creditor. I have proof that he paid the guarantee to the bank. Now I am not sure if I should change this and I am not so sure I'd be able to anyway.

 

Hi Breezy.

 

Who is the claimant, you, your partner or the old company?

 

It would help if we could have sight of your POC. Can you post them up? (If you do, please ensure that all identifiable details are removed!).

 

Els

[Breezy Girl]

Hello elsinore

Thank you for the reply.

I have pm'd you the POC and I will also post it on here as it may help others.

I am claiming in the liquidated Business name so that I could request for payment from the IP. I felt it would be less complicated that way.

I have copies of the original Guarantee from Barclays and various other doc's to show my partner paid them personally.

Here is the POC:

 

Particulars of Claim

 

XXXXXXX was a Director of XXXXXXXXXXXXX Ltd. In approximately August 1991, the Claimant, XXXXXXXXXX, opened a Business account number XXXXXXXX, sort code XXXXXX, with the Defendants. The Claimant believes this was on the defendant’s standard term and conditions. There was no negotiation on these terms it was a take it or leave it policy. In fact the claimant had no option but to agree to the terms, as he would have met the same reply at any other Bank.

 

After going through the bank statements the Claimant discovered that the Defendant had applied charges to the current account from 21st May 2001 until 24th June 2004 totalling £4,965.00. An itemised breakdown of these charges are entered as attachments (attachment B1)

 

On the 22nd February 2007, the Claimant sent the Defendants a letter by Royal Mail Special Delivery, informing them that he believed the charges were a penalty charge (attachment C1). The Claimant then asked the defendant to confirm/prove that the said charges were a true reflection of the defendants administrates cost, or refund the said charges.

Regrettably the defendants refused to do either.

 

In addition the claimant also requested that the defendants highlight which clauses in the defendants Terms and Conditions they were relying on to make these charges, moreover to point out each term that the said charges had been applied against. Again the Defendants refused.

 

Because the defendant has continually refused to prove that they have any legal right or contractual right to apply the said charges furthermore they have refused to offer any evidence that the said charges are a true estimate of the administrative cost involved. The claimant has been left with no option but to issue a claim.

 

It is the claimant’s contention that the defendant’s charges are a disproportionate penalty and therefore are unenforceable, the claimant relies on the following Common law Principles (Penalty charges are irrecoverable at common law)

The precedent for this was:

 

Dunlop Pneumatic v New Garage [1915] AC 79.

 

Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges.

 

They are;

1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach.

 

2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum.

It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

Murray v. Leisure play [2005] EWCA Civ 963

 

“English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

 

“'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

 

 

The claimant claims from the defendant a sum equivalent to the total amount unlawfully debited from the claimant’s account being £4,965.00.

The claimant further claims interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% per annum, being the sum of £2,352.85.

 

The claimant further claims the court fee of £225.00.

The claimant respectfully requests that the court makes an order for standard discloser, when issuing this claim, as the defendants have continually refused to supply any requested information.

Statement of Truth

I believe that the facts stated in these Particulars of Claim are true.

Full name:

 

Name of claimant’s solicitor’s firm

 

Signed:

Claimant

[Breezy Girl]

Uh oh! I have just read the thread by zootscoot re: 'not advisable to make a business claim yet'!(Due to OFT result today)

Too late for me as I am already almost there. I haven't taken my court bundle in to court. It is due in tomorrow latest. But obviously already have a court date etc. If I give up now I won't get my money back in fast track court fees which is over £550 as it stands!!?

What shall I do?

Breezy:sad:

[slick132]

Breezy, Els is offline at the mo.

 

I think the answer is to still submit Bundle to court as planned so you don't miss the deadline.

 

Then, if it's thought your case is too compromised by todays ruling, you can discontinue and avoid possible exposure to banks costs.

 

Maybe other advise will come in to guide you on this.

[elsinore]

I was reading Breezy's POC when you posted Slick.

 

Breezy, as your case has been allocated to Small Claims Track there is little risk of costs (unless you lose and Barclays seek and are awarded costs).

 

I agree with Slick, in that you should submit your bundle anyway and let the case proceed as normal.

 

Are you comfortable with Barclays’ defence? Is there anything in it which alarms or concerns you? Have they attacked or criticised your POC in any way?

 

Els

[Breezy Girl]

Hi elsinore and slick

Thanks for your help.

I don't think there is anything.

What I'll do is take the papers to court today as they need to be in then scan in their defence onto the forum so that you can see it.

Then if you believe it looks dodgy I will withdraw. What a nuisance after coming all this way!

Thanks Breezy

[elsinore]

No need to think about withdrawing at this stage, Breezy. Nothing is set in stone. There will be opportunities to adjust things, if necessary, in the coming days.

 

Posting Barclays' defence will help us to get a complete picture of the claim.

 

Els

[Breezy Girl]

Hello Els

I cannot cut and paste the scan doc as it is a pdf and when I paste it onto the CAG web site it scrambles!

Shall I e mail it to you then you can see if you can post it on the CAG forum?

Breezy

[elsinore]

Yes, please. I have the technology (at least, my daughter has!).

 

Els