Mattyfez Vs Barclays

[MATTYFEZ]

Also, if the defence is a standard bank charges defence and does not site anything regarding additions fees and the spurious interest, could I file for the defence to be thrown out due to it not properly re-buffing my prosecution argument>?

 

 

help!!!

 

 

pleeeese:eek:

[dar£n]

does their defence say your particulars are summary in nature and therefore their defence is a summary also...this allows them to amend when necessary.

 

dirty trick for using std defence in the first instance - means they dont REALLY have to look into your claim until absolutely necessary

[MATTYFEZ]

thanks so much for the reply dar£n

 

Ive not got the defence details yet, just Mcol = defended

 

in light of your comment, it looks like i may have to make another

"respectful" addition to my POC, or is it to late for that now?

 

surely they should have to answer my "summary" points of complaint in thier "summary" inital defence, as they are stated in my "summary" POC as......

 

 

b) Applied additional service fees to the claimants account without consent.

©Debited unexplained "interest" charges for large amounts.

Thanks for any advice, its well apreciated

[MATTYFEZ]

Hi again all,

 

Ive recived barclays defence and noctice of transfer to a local court.

 

It looks like a standard defence, with a few amendments relating to my above post, and im unsure of what to do. No stay has been applied for yet ( they have 14 days according to the letter from court )

 

should i try to get the defence thrown out, or let things run thier course?

 

the amendments (which I obviously contest)are:

 

7. It is denied that the claiment incurred service charges without his consent.

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

 

10.It is averred that the said charges are and remain lawfull and enforceable and that the defendant was entitled to debit the same.

 

thanks for any replies

[Micky the Hippo]

that looks absolutely standard

 

and yeah, do the strike out and the draft directions thing, nothing to lose, although I think you wait for the AQ or at least to be told there is no AQ, I might be wrong on that

[MATTYFEZ]

Thanks for that, as for the AQ, it says on the notice of transfer that there will be no AQ unless ordered, so do I just wait for a prelimenary date now?

 

what do you mean by the draft directions thing?

 

Thanks

[saintly_1]

It depends on your court ... altho mcol say its been dispensed with your actual court may still want you to submit one

[MATTYFEZ]

Ok, Thanks for that its much appreciated! I will wait for word from the local court then.

 

Ive just been doing some reading and thinking and decided that I will apply for the defence to be struck out as an abuse of process, and if that fails and the case is stayed I will try to have that overturned,

 

my next question is, do I apply for the case to be stuck out now, directly the local court, or wait for some kind of letter from them (local court) as to how they want to proceed?

 

Thanks so much!

[MATTYFEZ]

Also Is this a sensible course of action do you think?

 

Thanksn again

[MATTYFEZ]

Hello again, I have drawn up a letter that I will send to the county court in the morning.

 

It is based on the templates here, and will include the accompanying attchments, 1B,1C,1D,2A, I have also added a large section in tjhe middle which re-buffs barclays defence point by point.

 

apologies for the legnth but if someone could give it a look over / comment it would be much appreciated.

 

 

The Claimant respectfully requests that an order may be made as follows;

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

On the basis that the Defendant has filed a template defence which does not address or fully represent the points put forward in the particulars of claim I have submitted to the court. As such, the defence is mostly irrelevant to my case. The defendant has then subsequently settled each and every other claim of this nature.

Since May 2006, I am aware of over 300 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1B).

Contrary to the defence submitted by the defendant;

• The particulars of claim DO indeed provide details of the precise charges said to have been unlawful, all charges include a description, the date incurred, amount, and 8% statutory interest calculation. These details have been supplied to the defendant on at least two occasions via recorded post. Copies of the details and receipts of sending are available as evidence.

• The particulars of claim have been amended to include complete details of all charges, and copies have been supplied to both the defendant and the court. Again copies of postal receipts and the details supplied are available as evidence.

• Therefore the particulars of claim are comprehensive, and not summary, contrary to the defendant’s statements.

• The defendant is not entitled to enrichment by way of a penalty charge; the claimant contends amounts debited from the claimants account must be representative of the actual cost to the defendant. The defendant has not provided details of actual cost. The claimant contends that the actual cost of the contractual breaches is not equal to, and is indeed significantly less than, the amounts debited from the claimants account.
  • The claimant contends that the “Paid Referral Fee” is not representative of the actual cost to the defendant
    
  • The claimant contends that the administration fee for a refused payment is not representative of the actual cost to the defendant.
    
  • The claimant is not contesting that interest at the “unauthorised borrowing rate” can be charged on the excess balance. This part of the defence is irrelevant to the case.

• SEE (3,4)
  
• SEE (3,4)

• The claimant contends that the (above paid referral and administrative) charges do indeed constitute unlawful penalty charges as they do indeed breach the “Unfair terms in consumer contracts regulations 1999”.

• The claimant asserts that incurred service charges were taken without consent, the claimant contends there is no proof of any consent given thereof.

• The charges relating to service fees were therefore unlawfully debited.

• This point is irrelevant to the claimant’s case. The claimant is not contesting that purported breaches of contract did not occur. The claimant is contending that the charges resulting from any purported contractual breaches are un-representative of the cost incurred by the defendant and as such are unlawful under “Unfair terms in consumer contracts regulations 1999”.

• The defendant has failed to explain or address the issue of an ambiguous single interest charge of £55 in its defence, and has ample opportunity to do so. Therefore the claimant contends that there was no reason for this charge and as such it is unlawful.

• This point is irrelevant to the claimant’s case; the claimant is not currently seeking reimbursement for charges applied prior to 28th June 2001.

• The claimant is not contesting that purported breeches of contract did not occur, the claimant is contending that the changes applied due to said breaches are unrepresentative of the cost incurred by the defendant and as such are unlawful under “Unfair terms in consumer contracts regulations 1999”.

• The claimant contends that the loss and damage actually suffered by the defendant is significantly less than the amounts debited from the claimant.

• This matter would already have been partially resolved if the defendant was forthcoming with details of the actual costs incurred by the purported breaches of contract, thus far the defendant has shown no intent to do so.

• The defendant has failed to explain or address the issue of an ambiguous single interest charge of £55 in its defence, and has ample opportunity to do so. Therefore the claimant contends that there was no reason for this charge and as such it is unlawful.

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

Please find attached a copy of an order made by Lincoln County court (attachment 1C) in at least 10 cases similar to my own involving various high street banks, including the Defendant in the present case. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in Leicester, Derby, Chesterfield, and Mansfield County Courts.

As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact. Accordingly, I respectfully request that this claim is allocated to the small claims track, and would estimate that the hearing of the claim should last no longer than one hour.

Yours sincerely

[MATTYFEZ]

Well, sent the above letter + attachments to court, all I can do now is wait for allocation I guess, anyone know if Halifax CC are staying cases?

 

Also, im going on holliday at the end of the month, is it worth writing to the court to advise them.....I dont want to be struck out for missing directions in my abscence:o

[welshcakes]

Hi Matty

 

Court Orders are required to give at least 7 days notice for papers to be submitted so unless you're going for longer, you'll be okay.

 

Hopefully, you will have the next court advisement arrive before your hols even if it's just that the county court judge requires an AQ submitted (in which case, it will be enclosed).

 

If you get a Notice of hearing date, you may also have Directions to file and serve certain documents by xx date. Again this will give more than 7 days (normally 2 weeks plus) for you to submit.

[MATTYFEZ]

Thanks for that, hopefully wil hear somthing before, if not I will send a quick letter, cant do any harm i suppose?

[MATTYFEZ]

Hi again all been away for a few weeks, Halifax Court stayed my case

 

However, I sent the template asking for the stay to be lifted, with additional info like saying It would be unfair to stay my case as I am also claiming additions fees and an un-defined interest charge.

 

I recived this letter yesterday...

 

Further to your application to lift a stay in this matter

 

The application requres a fee of £65. upon reipt of this fee this matter will be forwarded to Bradford County court

( case is currently at halifax court) to be listed before the designated Judge.

 

I await your responce in this matter

 

yours......

 

 

Anyone have any experience of this! I assume the case will be transfered and the new judge will decide wether to lift the stay..

will this requre me to attend a hearing??

[MATTYFEZ]

Also am I right in assuming that he £65 fee is non re-claimable, or if I win can I add this fee to the other fees?

[slick132]

Matty,

 

I believe this fee is NON reclaimable but will see if other disagree.

 

Slick

[zootscoot]

Thats right. You can't claim back the application fee.