Martin3030 v Barclays business LIMITATION WON-now for the fun.

[MARTIN3030]

My claim began by issuing them with the Lba and I included the schedule of charges.

These comprise of unpaids entries various amounts of 27.50 and monthly commission charges.

Since there was no breakdown given in the statements of these charges I had I decided to claim commission charges.Barclays did object saying they were fees,but I argued that I had not agreed to these and could find no reference to me paying them in my original agreement.

I argued that Commision is normally seen as a reward for good results and that many of the charges taken by way of commision had created the account to become overdrawn thus incurring further charges.What sort of account management is this ?My business bank manager should have been more business minded.

Instead all he was interested in was trying to sell pensions insurance and protection schemes which were all aimed at earning him even more commision.

 

So progress to date;

 

Letter before action went unanswered (suprise suprise)

Court claim filed at local Court on22 March

deemed served 25th March

Barclays have until 10th April to respond which is first day back after Easter.

I dont doubt they will file a defence albeit a day or 2 late as they usually do.

Filing for judgement can be a waste of time since it can take a week to get the order issued (by which time Barclays may have filed)

Defendants can still file right up to judgement being issued.

 

This morning I got a letter from the local Branch saying sorry to hear about your complaint.....they cite limitations act and say they will be happy to discuss my complaint.

If we do not hear from you in 8 weeks we will consider the matter closed.

Talk about lack of communication.................

will keep the thread updated.

Edited January 8, 2009 by MARTIN3030
sensitive info

[MARTIN3030]

Last day for their defence tomorrow......10th.April.

Will be calling the court at 2pm.

[MARTIN3030]

Update;

 

Called the court on 10th and was told NO defence filed but they had up till 4 pm.

called the Court at 4.20pm and was told no they had not filed so I could file for judgement.

Was busy on the 11th so could not get down so instead I faxed the form over requesting judgement.

 

Called the Court office today (is that the time)...or yesterday Thursday to ask if they got my fax and they said yes.

They also said Barclays had also filed....

I said late again then I suppose I will have to withdraw my app.

She said no we will keep it on file in case they do not file a defence.They have until 22nd April for that.........which prob means 24th......

keep you posted.

[MARTIN3030]

Brief update.

Allocation followed their defence.

Both parties ordered to exchange docs to be relied on in support of claim /defence of.

Court date fixed for 06th September (Today) at 2.00pm

Listed as part of block litigations with an allocated time of 15 minutes !!!!

Mwantime Barclays have sent the leaflet telling me they are to apply for a stay.

 

I have submitted a bundle into Court including the draft opposing any stay.

I have two things in my favour.

 

1. Barclays have failed to file furtherinfo with either me or the Court.

 

2. They have not put in any application for a stay.

 

3. My Court have so far recently allowed all cases to proceed unless there is very good reasons.

 

It is my assumption that Barclays WILL send a representitive whathappens will depend on the Judge.

I have had 3 different ones in previous cases.

Two were very clued up the other not so.........................

 

I also intend to take a list of cases Barclays have settled in the last couple of weeks since the Test case has been going on.

Will post later hopefully with good news!!

[MARTIN3030]

martin, quickie,

are your accounts still active with B's?

 

I am thinking about doing this but as already claimed on 'live' accounts bit concerned they might get funny and start playing dirty.

 

 

Closed account since 2001.

They are more cautious now about closing accounts following warnings from the FOS.

Ok we know it only costs them a couple of hundred quid if they are fined for closing a current account.

If they did this with a business account however and it could be shown that this was as a result of you claiming unlawful charges ....then I think the potential to claim a larger amount would not be out of the question.

Business interruption being the obvious grounds.

[MARTIN3030]

Not the result I was expecting.

Turned up and from the notice board I see all the big banks today was here yet the waiting room empty.

As I gave my name in at desk a young woman who I would say no more than 25 called me..........This was the Barclays representitive.

I will be asking for a stay today she said.

Well I know you will but I will be opposing it said me.

We went in and the Judge invited me to say a few words.

I said that I was opposing any application for a stay based on the points I had made in my bundle.

I made reference to Article 6 1 of the human rights act / The overiding objective and Barclays continual abuse of the court process.

The Judge listened intently reading through my bundle.

He then turned to the Barclays rep A miss Sandbach.

She had her law books out and had each point bookmarked with post it notes.

One by one she picked off the points in my witness statement.

A stay will save costs she said as they would likely appeal if it were not granted Its likely that the test case would conclude before any of my own litigation she said.

Reminding her that the banks would drag things out in the test case rulings by appealing she said.....well there will be appeals all round.

The claimant is not losing out materially or financially she said as interst on any refunds due would continue to accrue.

The Judge heard her out and then himself made a 15 minute statement.

Half way through this I knew that she had won.....for the moment.

The Judge said I had gathered an impressive coourt bundle and said there was much legal arguement there but he could not possibly proceed to trial in the 15 minutes allocated.

My court date was given months ago and back then 15 minutes was considered even too long since no banks turned up !!

He went on to ask her what the position was with the test case.

Its January or February she said.

The Judge then told me he would be allowing the stay but that he would allow me to apply for it to be lifted after the hearing he gave the date as March 31st.

Would you believe.....Miss Sanbach then said,I think Sir this should be open to both parties !!!

 

He told me under Article 61 that I could apply to have the stay lifted now but that I would need to show exceptional grounds and that a single DJ at the court here was looking at all apps for stay removal.

So I am going to submit an N244 and ask for it to be lifted.

Back to square 1 down but not out.

 

The Irony is that 2 months previous I was in the same room for my divorce.

Today I came away from there feeling worse than I did then !!!

[MARTIN3030]

Update;

 

Following submission of a second witness statement in which I pointed out that Business claims do not fall within the action betwwen the OFT v Abbey and others,

I have recieved notification from the Court of my application and a hearing to have the stay lifted.This will take place in Liverpool in April.Meantime I had a call from Barclays to apologise after I told them I intended to file a copmplaint with the FOS and OFT because they clearly knew when they applied for the stay that they were acting outside their remit.

I have now recieved a letter which Barclays have signed and are requesting me to sign to send to the Court agreeing that the stay be lifted.I want to attend the hearing because I want to ask that it be listed as soon as possible for full hearing.

[MARTIN3030]

Update.

 

Following my application to have the stay lifted...my local court transferred the application to Liverpool family Courts.

I suspect that this is because they have designated certain Judges to hear applications for stay removals.

In the meantime I have had a consent order from Barclays agreeing to the lifting and asking me to sign it.The hearing is scheduled for Tuesday April 2nd.I have offered Barclays the chance to settle.

My claim is for £3500 including interest to date.

Barclays are insisting that I am not entitled to claim the commission charges.My arguement here is that they had a duty of care and commission should only be due where it has been earned.Most of the commission charges that were taken took my account overdrawn and accrued more charges after that...

Anyway I estimate that with additional interest and a wasted cost order the total figure would be around 4K.

I have offered to agree to a settlement which represents a saving to them of 25% but they are saying that they are going to challenge the limitation and also the comission fees (which were not itemised so I presume this is for the manager )....

[MARTIN3030]

Update August.

 

Stay lifted-case management hearing Liverpool Aug 27th.

[MARTIN3030]

Ok here is the lowdown of todays proceedings.

Arrived at Liverpool Family Court-Its quite a big place.

Accompanied by Janet M and Lancasterchelsea we listened as the Barclays Barrister gave a run down of how he wanted things to go.He told he would be asking for a stay pending the ruling of the common law issues.I pointed out that I had agreed to 3 previous adjournments in good faith.I was unlucky that the Judge in the test case had decided to rule on the common law aspects since if this had been known back in November-I dont think I would have had the original stay lifted.

Ok we are called in at 11.45.The court room here is different to my County Court-here was the layout of a Magistrates court-but without the wings.

Defence sat on right-me on left and Judge sat up on balcony in front.Janet and LC sat in pews behind me.

Judge invited Defence to start off.He said basically the situation was that he was asking for a set aside because of the July decisions which were awaiting hand down.Is this a bank charges claim ? asked the DJ....yes ...

So what is the position with things at the moment ? asked the Judge.

Defence had glint in his eye thinking he was now in the driving seat....could this be a Judge who did not know what was going on ?......He continued to talk about the test case rulings.

And this case is one of those ? asked the Judge

Erm....not exactly -in that this is a business claim which differs slightly....he then went on to talk of the commom law element.Judge said ...ok

Right he said.....what do you want to say in reply to this ? he asked me.

I said - Sir,I am aware of the determination of the rulings on common law,however my case also concerns issues within limitation,which I would like to have dealt with separately.It is my understanding that this is also an issue with the defence.

Judge turns to defence.....tell me-are all these charges within the claim outside limitation-or just a part of them ?

All of them replied the defence.

So is there any reasons why a separate hearing cannot take place to consider these aspects ?

Defence replied....yes but it would save Court time to relist a case because the issues of the charges would later have to be dealt with.

Judge continued to add weoght to the case for...but this is an important and valid issue-and one that he is reasonably entitled to have considered do you not agree ?

Defence continued to beatr around the bush-Judge could clearly see he was not in agreement ...So would you have any objections to a hearing for limitation to be heard-surely this makes sense because if you win-then it dismisses the case.

Defence mumbled about how he could apply for a strike out bla bla bla-which I think irrated the Judge,I could see that the scales were tipping.....

He asked if the case had been allocated ?

Yes-was allocated in May 2007 to Small claims.

Judge then asked me-If I was happy for the case to remain in small claims ?

I said yes...then he said both issues ?

I said yes....Judge then said.....I cannot order BOTH at this time since the determination of the charges cannot be decided in this court.

I said Ok.

Right..he said..I will make an order that both sides deliver up to each party and the court a skeleton order.

Do you understand what this is ,,he asked...

Yes of course Sir-Thank you.

I did not ereally want to say that in the last 2 years I have done a dozen of these already.

 

So with that-we get the result that was wanted.

I am sure that Barclays did not want this order-I am not aware of any limitation cases that have been fought in small claims and lost-only the ones where the banks have caved before the hearing.It has implications for them if they were to fight it and lose-even though its small claims because it would provide a tried and tested arguement.

I still believe that these cases are reliant on the Judge of the day....I was very fortunate that today I had a good one----though I bet the Barclays brief wont agree with me on that.

Thanks to Lancasterchelsea and Janet-great support and a good learning curve.

 

 

Note to any of the Barclays litigation team reading-Ok you had your day and its 1-0

If you think I have trawled since 2006 to give up now - then you are in for a shock.I intend to see this through to the end-and have some pretty good cards up my sleeve-I hope your Defence can be a bit more convincing next time around......I look forward to Round 3

Edited August 27, 2008 by MARTIN3030

[MARTIN3030]

Yes a perfect start to a double celebration hopefully with a win for the Saints at Wembley on Saturday.

Go get em............

[MARTIN3030]

Good day and I think the barrister wasn't expecting it

 

Look forward to the next stage

as you know I will be there

 

Really nice to meet you Lancasterchelsea

 

As you know Jan -If you cant make it I will ask for an adjournment......I think I am entitled after their 3 ;)lol

 

pity we forgot to mention Cag ..as we have done with RBS and Citi Sols...its funny how when you mention those 3 letters they always ask the usher where the toilets are.....

[MARTIN3030]

Aww thank you-I get inspiration from others too-your courage is more than I could ever find.....its great to see you around.I have lots of time for good people-and I know you are one of those.

[MARTIN3030]

Hi Martin,

 

A good result for you.

 

Onwards and upwards................

 

 

TA mate-I hope the operative word for Barclays will be....DOWNWARDS

[MARTIN3030]

Hope will not get a result,If we could rely on hope alone then we could all sit back and wait.

I intend to think a bit more positive-so I can win my bet with J2B for half a Stella.

[MARTIN3030]

I understand what Andrew is saying-Of course each side has time to speak-I have been in Court when the Defence have had their copy of Blackstones and reading it ....

It does depend on the Judge-in my case I remember the Barclays Barrister saying he was going to ask who the Judge was-he went to counter asking-I then saw him on his mobile phone as we went for coffee.It seems clear that he was taking or asking instructions-I think we should remember-these ppl spend their working life in front of Judges so know how the clock ticks-or the cogs.

 

CCA issues are probably something that many judges have not seen before them-and although the defence can explain things-the Judge will always come back to the LIP for a reaction.So its a case of having knowledge to dismiss their arguements.

I cant understand why the skeleton arguements were not read-only for the reason as suggested-that the Judge in the case didnt understand them and allowed the other side to manipulate the proceedings.

[MARTIN3030]

Dont you mean Defendants arguements ?

[MARTIN3030]

Sorry tumble my pc crashed at home so am very limited.I an writing this from public library.I will pm you as requested.

 

Ok update on my case;

 

The 14 day exchange and filing of skeleton arguements was up on 10th.September.I sent mine to both Barclays and Court by registered post and have proof of delivery in both instances.Barclays have again failed to comply and I have given them 2 extra days.This is the third time they have failed to comply with submissions by the date ordered.There for I have today applied for Judgement and a strike out of their defence for abuse of process.If they DO file in the meantime they will have to pay the costs of my N244 for the application.I am tired of them being allowed to systematically think they can do as they wish with no response.

To be honest I am looking forward to seeing their skeleton because since I have made it clear that I am going for Section 32 1 c under "Mistake" I fail to see how they can challenge it since its a valid arguement in this matter.

Will keep you posted.

The letter that confirmed the order from Court also gave a hearing date for 7th.January 2009 to consider the limitation.I know Barclays will be hoping and expecting that by that time a decision on historical charges will have been handed down.My feeling is that the Judge may have known Barclays would struggle to answer my skeleton-and its clear that they wasnt going to send theirs until they had seen mine-Of course I knew that-which was why I timed it to land on their desks on the last day.

[MARTIN3030]

still no sign of reply from Barcs

Have filed N244 for judgement and strike out.

[MARTIN3030]

Update;I supplied both Barclays and Court with my skeleton arguement,within 14 days of getting the order.

Order was for 14 day exchange.

Court hearing listed for 7.Jan 2009.

After I contacted Court to inform them that Barclays had not filed with me,Court then issued another hearing for 4th.December.

Barclays then wrote to Court objecting saying the 7th Jan should stand,and that I was mistaken in my belief that the 14 day exchange was due now-but only 14 days BEFORE hearing.

I wrote to say the 4th.Dec hearing should stand,and that Barclays were just trying to stall as they had all along.

Court has left the 4th.Dec hearing in place-and ALSO the Jan one.

 

My concerns are that the Judge agreed to hear limitation in the absence of a determination from the test case being handed down.

However since the last appearance the Test Case Judge has determined that the common law elements do not stand...and this is within POCS for business claims.

I am expecting Barclays to apply to strike out any limitation hearing now, based on their assumptions that there will be no case to answer to,given the decisions of the OFT test case.

Edited January 8, 2009 by MARTIN3030
oops wasnt 9th it was 7th !

[MARTIN3030]

Kashfat-have a read through the business bank forums !!

[MARTIN3030]

Ok time almost here folks.

Lets roll....11.15 Wedneday 7th.

Do or die

Edited January 8, 2009 by MARTIN3030

[MARTIN3030]

Nope I got right day ok its Wednesday 7th.

Its a tough call but I am not going there to lose.....Today is Russian Christmas day (hence the Atvar still there )...I will be celebrating either way-of course after getting back from Liverpool at around 3pm;)

[MARTIN3030]

BINGO

 

Yes big style intimidation-but it didnt pay off for them.(This morning with 2 hours before Court I was hit with a £1200 costs schedule in advance of the hearing by special delivery before 9.00am-they obviously thought I would be scared-thing is I had no option but to go because If I hadnt then I would definitly have ended up with their costs)

 

I had no time to do any costs schedule in response to their shocker-my train was due 20 minutes after I saw the letter-and only just got to station in time and left car there.

 

Arrived in Liverpool at 11.00 am-Janet m picked me up from station and we dashed the half mile to the Court.Its a big place-12 chambers !!

 

Was promptly called in after going through my script.Same Barrister as had appeared on 2 previous occasions.

Judge started by asking what this was all about.

Barclays-gave the bumf about there being no case to allow the thing to proceed.

Next I was asked what grounds I was looking to rely on.

There then followed a few minutes of arguement over mistake of fact-and mistake of law.

Barrister reckoned I had not proven that I was mistaken....Mistaken on what ? he kep saying.

Judge butted in....well clearly he is maintaining that he was mistaken by paying the charges is that right Mr *** ?

Yes Sir......

Barr then started saying that section 321c should not apply....

Judge then asked me on what sections I was relying.I said "Can I referre you to the attatchments within my skeleton-specifically page 4.Here you will see the summary of the case between Kleinwort Benson and Lincoln City Council ....

Judge read this for a few moments-turned to Barrister and said-well it looks clear enough to me-would you agree ?

Barrister then starts making comparisons with a person buying 1000 gallons of oil in 1999 and deciding in 2009 that he did not agree with the terms and conditions...

Judge asked me to respond-I said that I was maintaining that the limitation should only begin from when it was made clear to me.

I said I saw the Whistleblower in March 2007...and then became aware and asked the defendant for a refund.

Next up the barrister said-but Barclays charges have been ruled out as being penalties by Justice Smith in the OFT v Banks case.

Judge asked if Barrister had any material facts on this ?

Barrister fumbled and said that it was a very long winded document...."Let me see it Let me see it " I will decide if its long winded or not.

Judge then spent 5 mins reading it.

He then asked me to comment again.

I said "Sir,with due respect,the investigation and determination by Justice Smith is concerned with Current accounts The terms and conditions for my account are very different to those Justice Smith observed.Additionally my terms and conditions are historical ones-again Justice Smith only looked at recent ones.I said-in fact the defendants have recently changed their terms and conditions to try to cloak further the matter from the earlier ones.

 

 

Judge then said ok-I now have to decide on either allowing this case to continue or else upholding the defendants request to strike out the case.

He pondered for a couple of minutes.....I had made all the points I wanted and felt as though I could do no more.

 

Judge then said..

 

Having considered both sides,I am not prepared to dismiss the claimant arguement,because it is a valid one for which the documents and material facts he presents,support this.

He was very prompt and swift in his actions once he DID become aware that he could have recourse.

Therefore I will not be striking out this claim.

 

 

Phew...............

 

He then said he will give 28 days for a listing for arbitratory directions-telling Barrister if they wish to appeal they need to do so before then.

Barrister then started saying..."This on one of many thousands of cases that will likely stay in the system...pending an order being handed down by the high Court that will decide on the way all the cases will go"

 

Judge said-ok but this does not affect the order I am making now does it ?

 

So good day-and now we know that we CAN challenge on this.The Kleinwort Benson v Lincoln bits-appeared to have helped swing it but also I think I was determined they would not get their way after the time I had spent taking this up.

Sight of their costs schedule did not frighten me-instead I think it propelled me-because I was furious.

 

Special thanks to Janet M-been there all along with me on this,Photoman banker rhymes with,Castella,hsbcfiddled.

Bankfodder,and others- you know who you are.

 

Well pleased and looking forward to the next round.

Edited January 7, 2009 by MARTIN3030

[MARTIN3030]

Actually I told a fib....it wont be beers....I am celebrating Russian Christmas day with all the stuff including live internet from Red Square...so will be Vodka and sausage rolls......cheers