Failure to exchange by Barclaycard help needed any one else not had their bundle?

[Bicester1]

Hi

 

Barclay's have failed to send me, or the court, as directed, their bundle. I spoke to the court this morning and they have confirmed I can make an application for judgment, for a fee of £65, on the grounds of their non-compliance with the judges directions. Alternatively I can wait for the hearing date, which is on 30th July, another two months interest!

 

My plan was to wait a few days and then make an application to the court for either summary judgment, or to strike out their defense on the grounds of their non-compliance. I shall argue that their failure constitutes a recognisable and persistent pattern of behavior tantamount to abuse of process, if not contempt of court. I will respectfully ask the judge to issue further directions along the lines of the modified aq in that:

 

"I believe that the defendants have no real intention of defending this case and that their defense amounts to little more than a bare denial. Claimant believes they are wasting the courts time and in accordance with the overwhelming objective the court directs, if the defendants aver otherwise, that they then do list:

 

(i.) all cases that they have defended in court

 

(ii.) all cases where they have failed to attend a trial and

 

(iii.) all cases where they have settled within 7 days of a trial date.

 

If defendants fail to comply with these directions within 14 days then the defense will be struck out and judgment will be entered against them."

 

I will argue that they have no real intention to defend and are wasting the courts time. To support this argument it would be helpful if I could provide the court with evidence of cases which fall into categories ii. and iii. above. We all know there aren't any in i lol! Therefore if anyone else has failed to receive their bundles, if Barclay's have settled within 7 days, or not turned up then I would be very grateful if they would pm me with details including court date and claim no.

 

I hope this will put Barclaycard between a rock and a hard place. If they comply, they will provide me with the the evidence I need to hang them, if they don't they fail. Not a win - win situation as the management consultants don't say!

 

What do peeps think? Will the Judge feel I am being presumptuous? I thought it's only about the same as the modified aq.

 

Any suggestions?

[greengrocer]

This is an interesting idea, Bicester1. I'm not up to this stage yet (still waiting for my statements) but it sounds good. Good luck with it.

GG

[Bicester1]

Bump

[TUTTSI]

Bicester it seems good to me but I am not a legal beaver, Garyh is your best bet if you cannot find him I will send you a link, you could go to the bottom on the forum main page where it show shows you who is on, when you see his name double click and you can then find all threads started by him. Or PM him and ask him to have a look for you.

Regards

DS

[Bicester1]

Thanks DS- as always very helpful! Will do as you suggest.

 

Bicester1

[TUTTSI]

Bicester,

Did you locate Garyh! let me know how you got on.

Thanks

DS

[TUTTSI]

Well, what happened.... did they pay you!!!!

DS

ps just made 1000 posts!!!

[WarHorse]

Bump

Are you any further forward with this?

 

Am in similar position as you. Hearing date is 6 Aug @ Reading. Have not yet rec'd my bundle from B.card. Am in process of compiling my bundle now! Have u submitted ur bundle to B.card & the court? Dont know whether to apply to the court for B.card's defence to be struck out as an abuse of process following the decision of one of the Reading judges to do just that recently! WOW!!!!! What a result!! Should I submit bundle & draft Order for Directions & wait & see what happens.

[TUTTSI]

Are you any further forward with this?

 

Am in similar position as you. Hearing date is 6 Aug @ Reading. Have not yet rec'd my bundle from B.card. Am in process of compiling my bundle now! Have u submitted ur bundle to B.card & the court? Dont know whether to apply to the court for B.card's defence to be struck out as an abuse of process following the decision of one of the Reading judges to do just that recently! WOW!!!!! What a result!! Should I submit bundle & draft Order for Directions & wait & see what happens.

 

Hi Warhorse

Barclays to my knowledge have never ever submitted their bundle. What was the directions that you received from the court in relation to the bundles.

 

In any event, I telephoned their litigation department and spoke to the secretary for Adrian St John who was the person who signed their defence, the young lady I spoke to wa very helpfull and put me on to the person who did settle my claim within 7-10 days.

 

In my case I got an award of £50 for the time involved in preparing my bundle, I took out the confidentiality clause and I included the £100 fee for the allocation questionaire. If you also sent off the the SAR £10 this I believe is also recoverable.

 

They were quite keen to settle my claim and one always wonders if I could have got more out of them for my bundle work.

 

Good luck with your claim and let us know how you got on.

DS

[WarHorse]

Hi

 

These are the directions I received

 

[Each party shall deliver to the other party and to the court office copies of all documents (including any expert’s report) on which he intends to rely at the hearing no later than 14 days before the hearing.

 

The original documents shall be brought to the hearing]

 

Were yours similar?

 

Can you also pls tell me which statement of evidence you used? Am a bit confused as to which 1 to use.

 

[TUTTSI]

No this was not the directions that I had, mine told Barclays that they had to give evidence of their charges etc. They had to get there bundle into court and a copy to me by a certain date which they failed to do and were in breach, so the courts struck out their defence, The only problem the order striking out their defence came after they agreed to pay 100%.

 

The statement of evidence I used the one from this site, Garyh(he is a moderator) gave me the link for it. You then have to incorporate some info about your claim within this statement for instance the reason why you incurred charges was because...........it is quite a long statement of evidence and it took quite some time to get together. Plus doing all the photocopying x 3 and printing off the various cases and the Lords motion....etc etc. Then you have to number them up and make a front sheet index it was all very time consuming and letter to the court and a letter to Barclays enclosing everything.

 

Just shout if you need any further help.

DS

[TUTTSI]

Here is my Barclays thread if you want to take a look.

Ds V Barclaycard Litigation In Progress*won

also give me a link to your thread as we should not be hijacking this thread. It will be easier to keep in touch with your progress on your own thread.

DS

[Bicester1]

WON WON WON!!!!!

 

Barclay's defense struck out for failure to exchange and failure to serve and file legal arguments as directed by the court! Judgment by default and i think it will be difficult for them to apply for it to be set aside as they had every opportunity to comply.

 

Wasted costs application here I come!

 

Bicester1

[TUTTSI]

WON WON WON!!!!!

 

Barclay's defense struck out for failure to exchange and failure to serve and file legal arguments as directed by the court! Judgment by default and i think it will be difficult for them to apply for it to be set aside as they had every opportunity to comply.

 

Wasted costs application here I come!

 

Bicester1

 

great result....

congratulations....

This has taken long enough but the good thing is that you have won!! of yes the wasted costs order - go for it.

Regards

ds

[WarHorse]

Bicester 1 - GREAT NEWS!!!!!!

 

CONGRATULATIONS!!!!!!

 

now back to the Court bundle. Incidentally, I telephoned court 2day - no bundle submitted from B.card.

[WarHorse]

Here is my Barclays thread if you want to take a look.

Ds V Barclaycard Litigation In Progress*won

also give me a link to your thread as we should not be hijacking this thread. It will be easier to keep in touch with your progress on your own thread.

DS

 

Thanks, DS. this is my link to my B.card thread

http://www.consumeractiongroup.co.uk/forum/barclaycard/94442-warhorse-barclaycard.html?highlight=WarHorse

 

May take you up on your offer to assist on the statement of evidence later - am stuck!

[WarHorse]

DS this is the defence I rec'd from B.card in the square brackets

 

[1. The Particulars of Claim do not provide details or particulars of the account in question and the precise charges alleged to have been unlawful, or the date thereof. Furthermore, they give no recognisable cause of action, nor is there sufficient material to enable Barclays to serve more than a bare denial of liability as a Defence. The Statement of Case would appear to be an abuse of process and/or will obstruct the just disposal of the proceedings and it does not appear to comply with CPR r16.2.

2. The Defendant respectfully requests an order that the claim be struck out pursuant to CPR r3.4 as it does not disclose reasonable grounds for bringing a claim and is an abuse of the Court’s process.

3. If an order to strike out is not consider to be appropriate, to the extent it is alleged that the Claimant incurred bank charges on the Claimant’s 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.

4. Barclaycard is a trading division of Barclays Bank PLC and not a legal entity in its own right.

5. To the extent that it is alleged that the Claimant incurred charges on the Claimant’s account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the "Charges"), the Defendant puts the Claimant to strict proof of each charge and the date thereof.

6. The Defendant’s standard terms and conditions(the "Terms") which the claimant accepted when opening the account, entitle the Defendant to debit the charges from customer accounts upon certain events (including, but not limited to, exceeding account limits and/or unauthorised borrowing and/or failing to make sufficient monthly payments to reduce the account balance by the required date).

7. It is the responsibility of the account holder to properly monitor the account so as to ensure compliance, for example, with the obligation to make payments by the required date.

8. The terms gave the Claimant a fair and transparent view of the obligations and entitlements set out in paragraph 6 above, including the basis on which the Defendant would be entitled to debit the Charges from the Claimant’s account.

9. If, and to the extent it is the Claimant’s case that the failure to make monthly payments and/or failure to remain within the agreed credit limit, constituted a breach of the Terms, and that the contractual entitlement to debit the Charges from the Claimant’s account constitutes a liquidated damages clause, the same is denied. The Charges applied to the Claimant’s account were payments that the Claimant agreed to make upon the events described at paragraph 4 above by reason of the Terms. Accordingly, it is denied that the Charges or any such charges constitute unfair and/or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the Charges, as alleged by the Claimant, or at all, and/or that the charges are otherwise unenforceable.

10. 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 Regulations 1999, or are in breach of the Unfair (Contracts) Terms Act 1977 (or any other provision).

11. Further or alternatively, without prejudice to the matters pleaded above, and if the Claimant’s failure to make sufficient account payments by a required date and/or to remain within pre-agreed credit limits constituted a breach of the Terms, the Defendant avers that the Charges were nonetheless valid and enforceable.

12. It is further denied that the Charges were unlawfully debited from the Claimant’s account. 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.

13. Accordingly, it is averred that the Charges are legally enforceable and the Defendant was entitled to debit the Charge from the Claimant’s account

14. The Defendant denies that it is liable to the Claimant for the sums claimed and interest, as pleaded or at all. In the alternative if (which is denied) the said charges are enforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 26 March 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.

15. In the alternative, and without prejudice to matters stated above, if (which is denied) the said Charges 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 by failing to make monthly payments and/or failing to remain within the agreed credit limit. According, 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 the Defendant seek to set off such sums against any liability owed hereunder to the Claimant.]

 

Looking at it, it is just the bog std 1 they serve on every1 (I believe). Para 14 does not relate at all to my claim - only had B.card credit card from approx Jun 2004 to Jan 2006 yet they are talking about a/cs being out of time on the 6 year rule! If you would care to take a look & make ne suggestions as to stat of evidence, would be obliged much.

 

I cannot find T&C's for B.card for 2004/2006. Can ne1 assist on this pls?

 

 

[WarHorse]

Help, pls if there r ne other insomniacs out there like me! Got T&C's for B.card for Aug 1997 but my a/c is more recent i.e 2004/Jan 2006. The old T&C's are illegible. Can ne1 supply anything in the line of B.card T&C's that are legible. Need ASAP as am late with my bundle & trying hard to get it all done now!

[WarHorse]

Just heard on radio that OFT is taking banks on a trial case to the High Court for a TEST CASE! Does ne1 have anything further on this. What's goin' to happen to all the current litigation?

[moneyhelp]

http://www.consumeractiongroup.co.uk/forum/announcement.php?f=9&a=107

[WarHorse]

Thanks for that, MoneyHelp. Could you now pls tell me where I can find Bookworm's excellent Court bundle (yes, I am still at it!) B.card have a lot to answer for - there's at least three rainforests destroyed because of 'em!!! GRRRRHHHHH