Gertrude vs Barclays

[Gertrude]

Hi all

Not good news as you can imagine. Barclays sent a solicitor down from London. The case has been stayed again and the condition has been taken off. I received a letter in the post this morning from Barclays which was a witness statement of Rosemary Siobhan Treves Brown (legal counsel) and I was given by the Barclays solicitors a skeleton argument on behalf of the themselves.

Judge Rutherford took the condition off as he put it, in case I go to the papers next week and say that the Barclays did not do what they should have. He also said that as the outcome should be known within 5 - 6 weeks he was not going to lift the stay.

The Barclays rep said I should have contacted Barclays and asked for an increase in my overdraft facilities, I told him I had done that and I was turned down.

If any of the mods want to give me a fax number I will fax them the papers, makes interesting reading (its too much to type). My email at home is not working yet (I'm typing this at work).

I said I was extremely annoyed why Barclays seems to think they are above the law and can get away with this. It seems they can.

Me fed up? No cos we will win in the end!!

I am at work until 4:10 otherwise I will have to fax papers tomorrow

Gerty

[slick132]

Come on Gerty - purleeese.

 

We're sat at the foot of your thread lined up like starlings on a telegraph wire waiting to hear from you and you've been back on site for over 25 mins !!

[Lula]

So basically, the DJ in his infinite wisdom gave Barclays Carte Blanche to defy a court order and get away with it !!!!

 

I think, go to Watchdog, Money Mail etc etc and make them look like the absolute numpties that they are

[Gertrude]

Your are quite right Lula. If I got time I will try and write some of the info I was given tonight. One thing I will type now is the following:

The Defendant is fully aware that the sanction for breaching a Court order is contempt of Court, meaning such a breach could result in criminal proceedings. In light of this serious obligation, it is important to note that in these circumstances, the breach of the condition is merely as a result of error and the impracticality of compliance, as outlined above as opposed to a positive disregard for the terms of the order lain down by the honourable court.

Yeh right

Gerty

Got to go home now,

[slick132]

Sounds like the bank's told the judge, "We tried to stop our system adding on charges.......Computer says NO !!"

 

I'll wait till we hear the full verdict, otherwise I'll start RANTING !

 

Hope you're OK, Gerty, despite this stupidity.

[Lula]

Slick, you are slacking (lol SlackSlick) cos I have been ranting for ages now, seems that you can do what you like if you are a bank

[GuidoT]

No change there then.

[Lula]

No change there then.

 

Cheeky !

[MARTIN3030]

What makes him so certain that it will be over in 5 or 6 weeks ?

The overrun on the existing allocation is another week.....he obviously knows more than us.....what about the appeal ?

[Gertrude]

Hi Martin3030

The judge asked Barclays solicitor and that was what he said.

Anyway I am going to type the bits I think is relevant from the paperwork I received today. it is better than going to Asda.

Here goes

Witness Statement from their legal counsel which was sent registered this morning, it start off with introduction and relevant backgoung of the test case then goes on to Practical points to consider in respect of the condition sought by the Claimant.

1. By imposing such a condition on the Bank, the Court would be presupposing the outcome of the test case. Further, the Proceedings are already underway so it will not be long until the matters in dispute are resolved (or at least made clearer).

 

2. The condition imposed in the order dated 7 September 2007 places a very heavy burden on the Bank in amending its procedures to not levy charges against only this Claimant. The charges are applied both by the Bank's systems and by a detailed manual process involving several employees and in order to comply with an order not to impose further charges, the Bnak would have to deactivate part of those systems and treat the Claimant's account differently from all other current account customers. Also, were the Bnals to win the Proceedings case, the Bank would then have to manually reapply all the charges that would have been levied during the course of the stay which would cause the Bnak to expend a considerable amount of time and money which would be disproportianate to any inconvenience that might be suffered by the Claimant.

2a The Claimant is not forced to incur any charges and there are alternatives. It is entirely wihtin the Claimant's and not the Dedendant's control whether she attempts to make an unauthroised payment. The Claimant has incurred six paid referral fees and one unpaid referral fee since September 2007. Therefore six of the seven times the Claimant has made an informal request for an unauthorised overdraft (by making a payment request without the funds to meet it) the Bank alloed the payment and extended the Claimant's overdraft. Indeed, in the case of guaranteed cheques the Bnak is obliged to honour any instruction the Claimant issues, despite funds not being available.

 

2b The Claimant is protected financially in respect of any further charges incurred. If the OFT is successful in the Proceedings in January, the Claimant will be able to claim interest on any charges levied at a higher rate of interest than it is likely she would otherwise have benefited from. Also, the Bank would be able to satisfy any eventual claim for damages, while it may not be the case that the Claimant would be as well placed to later compensate the Bank.

 

3. Both the FSA and the Financial Ombudsman Service have both considered their positions in light of the imminent test case and in the case of the FSA, provided detailed guidance for the banks. Neither of these regulatory bodies have expressed the view that the banks should be prevented from continuing to impose charges for the duration of the stay. The OFT has similarly not made this a condition of the agreement between the banks (including the Defendant) dated 25th July 2007.

 

4. The Bank is obliged under the Banking Code to treat all cases of financial difficulty "sympathetically and positively" and the Bank it has every intention of honouring this duty to the Claimant. This point is further reinforced by the FSA Direction following the OFT agreement with the banks'. It would be more appropraite for the Claimant to engage in discussions with the Bank as to how it might be able to assist her.

 

5. If the Claimant ultimatley loses, but this specific condition remains, the Claimant may owe a significant sum of money all at once which she may find hard to pay and the Defendant difficult to recover.

 

6. The Defendant is fully aware that the sanction for breaching a Court order is contempt of Court, meaning such a breach could result in criminal proceedings. In light of this serious obligation, it is important to note that in these circumstances, the breach of the condition is merely as a result of error and the impracticality of complaince, as outlined above, as opposed to a positive disregard for the terms of the order lain down by the honourable court.

 

Phew now on to the Skeleton Argument on Behalf of the Defendant

The Claimant's Application

1. The Defendant accepts that it has not complied with the condition of the stay imposed by Deputy District Judge Webber's order of 7th September 2007. The Defendant has applied unauthorised overdraft charges totalling £215.00 to the Claimant's account since the date of the stay. The Defendant apologises to the Court and the Claimant for its failure to comply with this condition. The explanation for the Defendant's con-compliance with the condition is that the application of unauthorised overdraft charges to the Claimant's account is a partly automated process which cannot be disabled in respect of just one account.

 

2. Despite the Defendant's non-compliance wth the condition of the original stay of this claim, it is submitted that the Claimant's application to lift the stay should be dismissed for the reasons set out above. Further, the Defendant argues that today the Court should unconditionally stay the present claim pending the final determination of the Proceedings for the following reasons:

 

2a The condition of the stay imposed by the order of 7 September 07 (or indeed any other condition) pre-supposes that the Proceedings will be concluded in favour of the Claimant. It is submitted that the Court should seek to maintain the staus quo by refusing to impose any conditions, particularly since the OFT and the Banks have agreed to pursue the Proceedings (including any appeals) expeditiously.

 

2b While it is very difficult for the Defendant to comply with a condition that it should not impose further unauthorised overdraft charges, it is relatively easy for the Claimant to avoid the imposition of further charges. If necessary, the Claimant should approach the Defendant with a view to agreeing an increased authorised overdraft limit which would accommodate her financial needs. (I did this and Barclays refused).

 

2c The Claimant would be adequately compensated by the contunuing accrual of interest and/or damages for any consequential losses (subject to ordinary remoteness and mitigation rules) if she is ultimately successful. The Defendant clearly has financial resources to meet any obligations in that regard.

 

2d By contrast, if the charges are subsequently found to be lawful, the Defendant would suffer unjustified prejudice as a result of the condition without any prospect of receiving compensation from the Claimant. Further and in any event, if the Proceedings were to be determined in favour of the Banks, the Claimant might be placed in a worse position by the simultaneous application of a large number of overdraft charges which would otherwise have accrued over the period when the claim was stayed.

 

2e Insofar as the Claimant seeks to rely on financial hardship to support her argument that the stay should be lifted or the condition of the order of 7 September 07 be maintained, the Defendant submits that the Claimant has not yet produced any documentary evidence of the existence or cause of any financial hardship. Furtherm the Defendant continues to have regard to its obligations under section 14 of the Bnaking Code to deal sympathetically and positvely with cases of financial hardship.

 

2f It is more appropraite to deal with cases of financial hardship by way of constructive dialogue between the bank and its customer than through lifting the stay or imposing conditions on any stay of proceedings. The Defendant offers its customers a wide range of products which would help a customer facing financial hardship. In particular, there are more cost effective finance options than unauthorised overdraft borrowing. Further and in any event, the Claimant might wish to downgrade her current account to basic account without an overdraft facility. This would prevent her from incurring any further charges but she would also have no access to a debit card or to cheques drawn on the basic account.

 

2g None of the regulators which has been involved with bank charges (namely, the OFT, the FSA and the Financial Ombudsman) has suggested that stays of bank charges claims ought to be conditional.

 

Conclusion For all reasons set out above, it is respectfully submitted that the present claim should be stayed pending the final determination of the proceedings. The Proceedings provide a just, efficient and binding mechanism to resolve issues of principle that underlie the present case in a manner that could not occur if this case (and others like it) proceeded.

RUPERT ALLEN

Fountain Court Chambers

Temple EC4Y 9DH

28th Jan 08

 

thats it, I am off for a cup of tea now.

Gerty

[slick132]

Hi Gerty,

 

Thanks for taking the trouble to post this. Clearly the judge today thinks differently from the judge who banned the chgs in September.

 

I'm sorry it didn't go in your favour today - looks like you'll have to wait a bit longer for your slice of justice.

[Gertrude]

Hi slick132

No trouble at all. Thank you to all on the site and your kind, encouraging and sometines very funny comments. You make us feel that we are not alone.

Gerty

[saintly_1]

thats it, I am off for a cup of tea now.

 

You deserve more than a cup of tea