car2403 -v- Barclays Bank "won"

[car2403]

Hi everyone,

 

I'm at the stage where Barclays have just entered their Defence, which is;

 

1. The Particulars of Claim do not provide details or particulars of the precise charges alleged to have been unlawful, or the date thereof. 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.

 

2. The Particulars of Claim are summary in nature. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

 

3. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The Claimant accepted the same when the account was opened, including tin particular but without limitation) the following terms and conditions (which are summarised

a. The Defendant’s right to charge a “Paid Referral Fee” where the Defendant pays an amount either by compulsion or election} which causes the account to become overdrawn - £30 per item (previously £25).

b. The Defendant’s right to charge an administrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).

c. The Defendant’s entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

 

4. The Defendant’s standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds the authorised overdraft limit.

 

5. If and to the extent it is the Claimant’s case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits and / or failure to arrange an authorised overdraft constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant’s account constitutes a liquidated dames clause, the same is denied. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of the account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft.

 

6. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. 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.

 

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

 

8. If and to the extent the Claimant incurred charges on the account, this was caused by the Claimant having gone into overdraft without having agreed with the Defendant an authorised overdraft facility or to increase the overdraft facility and / or the failure to make payments to bring the balance of the account back into credit.

 

9. 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.

 

10. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded or at all.

 

11. In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest 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 in allowing the account to go into unauthorised overdraft. Accordingly, 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 seeks to set off such sums against any liability owed hereunder to the Claimant.

 

Barclays Bank PLC

 

 

I've already sent the letter here;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/84462-no-allocation-questionnaire.html?highlight=dispensed+allocation#post766755

 

Is it now just a case of waiting to hear back from the Court as to the Order for Directions, or should I be doing something more at this time?

 

Thanks in advance for the help!

[dar£n]

Have you sent your SOC's to both parties?

[car2403]

I'm preparing 3x Court Bundles this weekend - (4, if I get LTSB's defence in the post... more work!) so I'll include it in there...

[dar£n]

Your court bundle will be submitted at a later date, the defendant is claiming that you have not produced the information to support your claim [sOC's]

 

Yeh they are included in the bundle but you still need to send a copy NOW to both parties.

[car2403]

I see - I'll post that off on Tuesday then, in that case.

[dar£n]

................by recorded delivery

[car2403]

Got my hearing date - 17th August.

 

Court bundle on it's way and I'll be ringing Krysta to see if they'll settle before we even get there tomorrow morning!

[car2403]

Can I find the T&C's relating to the account when it was opened? Can't seem to find them on here from 1998/1999, or should I be using the most up to date one's from the Barclays website?

[car2403]

No Defence Bundle received, so I'm getting the first Directions non-compliance letter off in anticipation anyway;

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/58011-directions-non-compliance-letters.html#post485266

[car2403]

2nd Directions non-compliance letter sent off to the Court/BB

 

Is there any other advice, as the hearing date is only 8 days away now?!

[bbch60]

Hi car2403

You seem to have everything organised for now.

Which court are you at next week?

Have you received a letter from Barclays to inform you that they will be asking for a stay of the case?

[car2403]

Morpeth County Court - haven't received the request for a stay, but I am going to send this letter, along with the non-compliance one, anyway just in case? (Damn postal strikes also mean I'm sending everthing by fax as well!)

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html

[bbch60]

That is the one that I am also taking with me. I haven't received confirmation of a stay, just the standard letter that Barclays are sending out saying that they will be asking for a stay. Have also previously taken in the non-compliance letters but the court said that I have o also take them along on the day. Good luck next week - will watch your post for the result.

[car2403]

Off to (Morpeth and Berwick) Court in a tick, for what it's worth!

 

I'm ready to tell my story, if they bother to listen and fight my corner over a stay.

 

I'll post back as soon as I get a chance either way.

[car2403]

Well, that's it - I've had my day in Court with both Barclays and NatWest! Sorry in advance for the lengthy post, but this will be critical information for those that have hearings in the next few days...

 

On arriving at the Court, NatWest's solicitor asked for a "word in private" - "here we go...", I thought! He was a really nice chap (but they all are, aren't they!) who said that they had already applied for a stay last week, so the Judge would probably just approve his application "on the nod". You should have seen his face when I spoke up and said, "ah, but are you aware that I will be arguing against the application" - priceless! I showed him the application rejection letter I sent off last week and he admitted that this was the best argument against the stay application that he'd seen! (1-0 to us CAG'ers, then!)

 

On coming out of a side room, I could see the Barclays solicitor "working the room" with the other Barclays claimants - saying pretty much the same thing as the NatWest bod did. Again another priceless look on her face when I pulled out the stay objection letter that she hadn't seen. (2-0 to the CAG!)

 

There were loads of other claimants there for their claim hearings as well - 3 x Barclays, (1 being mine) 1 x Natwest (my claim) and 3 x Abbey.

The first one in was an Abbey one - set up for a full 60 min trial for some reason, but the woman that was claiming hadn't sent in her supporting evidence/bundle in time, as directed by the Court. As there was no formal application from Abbey to stay and the Judge wouldn't hear the case without the supporting statements/evidence, the case was adjourned until the next available hearing date. He did say that this would probably be next week, as so many claims were being stayed anyway and hearing dates vacated as a result - the problem being is that this gives Abbey enough time to make the formal application for a stay, so this one is effectively knocked on the head until the outcome of the OFT TC is known.

 

The rest were all dealt with by the Judge together - (I think he was planning on going home early!) which was really good, because the other claimants didn't really seem that keen on being in court anyway! He got us all in the courtroom, with the relevant solicitors in tow, and asked if everyone was up to date with what was happening - he explained it all anyway, as some of them weren't aware of the Test Case that has been agreed.

 

He went on to say that each of the solicitors in attendance were "probably going to apply" for a stay today - to which they all nodded. (A bit like those Churchill insurance adverts, where the Dog nods - "oh, yes!" they all said!) He also said that, apart from my NatWest claim, the Court hadn't received confirmation of any applications for a stay, so he was going to deal with the applications as new evidence/requests as we (the claimants) hadn't had any notice. He then went on to say what the stay was, the effect it had, etc - he then adjourned the hearing for 20 mins for us to decide what to do. The question he asked was, "will you agree to the application of the stay?".

 

After the 20 minutes were up, he pulled us all back in and, one by one, he asked us for our responses - "no", "no", "no", "no", "no"... we all said. "Very well, I'll have to turn the application for a stay to one side as no formal application has been made where the claimant has been given notice - and a "no notice" application requires the consent of each claimant", he said! EXCELLENT NEWS! He also refused to allow the Banks leave to apply to appeal his decision!

 

Then came the biggy - he looked at the 3 solicitors and said, "do you have instructions from your Clients to defend these claims, as I fully intend to hear these claims this afternoon as listed?". They all asked for an adjourment to take orders, which he turned down as they "should have came prepared for a full hearing". They all said that they had instructions to apply for an appeal, but had been instructed to NOT defend the claims if the stays were turned down and the hearings went ahead.

 

So, out we all trot again and are called in one at a time for the hearings - (this is also what I later found out that happened in the others);

 

Second hearing was mine with NatWest - the Judge said that, as I had notice of the formal application being made, he had no choice but to approve the stay. I said that I wanted to object to this, handing him a copy of the objection letter. He read this and said "you offer some good objections, but I'm afraid I've already read this letter before - which website have you got this from?". Of course I replied CAG, to which he gave a smile. (Obviously aware of this site! 3-0 to CAG!) He went on to apply the stay anyway - (3-1 to CAG!) NW's solicitor had some arguments with him as he wanted to know what the terms of the stay order would be - "the terms will be any that I wish to apply, Mr Hall" he said, "I'm sure you've seen these orders before - if you haven't call me on Monday and I will fax you a copy, if you want a copy?". He did say that it would be applied until end of 10/2008, or Judgement being entered in the Test Case, or the expiration date of any leave to appeal that may have been granted. Shame that the formal application wasn't a few days later, as the Judge hadn't been passed my objection letter before the hearing, or I would have won! (They had a sign on the wall saying they were 5 days behind with their paperwork - and I sent it 5 working ways ago!) Oh well, just have to wait for the outcome of the TC for the NW claim...

 

Third hearing was adjourned as the claimant hadn't sent in her bundle as ordered, just turned up to Court with it on the day.

 

Fourth hearing adjourned because this claimant had sent his bundle in, but the Court couldn't find it! Turns out that he sent it to Northampton County Court as he issued via MCOL and hadn't realised that the Bundle had to go to Morpeth! (Despite the Courts directions!) Interestingly, the hearing was adjourned for 30 minutes while the Usher dashed madly to the phone to call Northampton to see if they had received it - they hadn't, so the hearing was adjourned to the next hearing date. (Again giving the bank more time to make their formal application)

 

Fifth hearing was mine with Barclays - I went in, sat down and the Judge immediately said that I was one of the "most prepared litigants" he has ever came across in his career. (4-1 to CAG!) He then checked the bundle for the Statement of Charges and stuck out the first charge as it was more than 6 years old when the claim was issued. (I hadn't noticed this, despite this amount of preparation!) He was satisfied with my arguments and statement of charges, so turned to the bank's solicitor and asked where their Defence Bundle was - the solicitor cheekily turned around and said that no bundle had been sent in but a Defence had been entered and that the case was similar to the TC, so shouldn't be heard. The Judge was having none of this and said he had already refused the application for a stay, refused the application for leave to appeal that decision and was now hearing the case - he said "why has an organisation as big as Barclays not fully prepared for THIS case and submitted legal argument in defence?". The Solictor, after struggling to find a suitable response, admitted that this was the first he had heard of the claim and couldn't dispute it at all. This really p'd the Judge off, so he put up his hand and said "Enough! I don't know how many times I've case managed claims against these banks only to have them settled before coming to trial, or, even worse, go to trial without someone appearing and having Judgement entered in default after the defence is stuck out - the first time the bank chooses to appear before me, in any court, they haven't submitted a defence and admit to doing it in plain faced cheek?". He immediately stuck out their defence and awarded Judgement by Default to me! Wahey, I've WON! £880 all-in-all.

 

Sixth hearing was won with Judgement in Default for the same reasons as my NatWest claim.

 

Seventh hearing was adjouned as the claimant hadn't sent in a Statement of Charges - and the Judge said that the Court wouldn't perform the admin task of listing all the charges on one page by looking through the statements that he had submitted. (Bank will apply for a stay in the meantime, of course)

 

So, I won the Barclays one immediately and the NatWest claim has been stayed.

 

Some REALLY important advice that I can give to anyone claiming or about to start to, though, is; (all this appears elsewhere on the site, but I've put it here for clarity anyway)

- Make sure you comply with ALL directions sent to you by the Court. Not doing so will result in your claim being delayed, or worse, stuck out, and gives the other side the competitive edge.

- When sending in your Bundles, make sure you either use recorded delivery and check it's being received, or pop the bundle in to the Court yourself. (And get a receipt from the counter!)

- Make sure you know where to send your claim information! (Don't send it to the wrong Court!)

- Make sure your bundle includes a statement of charges. (It MUST show interest on each charge as well, if you're claiming it!)

 

The Judge was clearly on one here, though - even referring to months and months of cases that he's had where the Bank hasn't cooperated fully. He even quoted this as a reason for refusing applications and entering judgements, because of the "contempt shown by the Banks". I think he even enjoyed the experience, as he was smiling throughout the whole thing!

 

I'm really pleasantly suprised at the Barclays outcome!

[moggieb]

Well done on your win!!!!!!!! Just goes to show that the Banks aren't having it all their own way and some judges are still being reasonable and listening to our claims.

[saintly_1]

Which court is this please ?

[car2403]

Morpeth and Berwick County Court

[bsia666]

Well done on your victory, your court note taking (did you use shorthand!?!?), your excellent post and your determination to see the process through to your hearing.

 

William

[welshcakes]

Hi car and big congratulations!

 

I have to admit, this is the first time I have heard of a judge (quite correctly) refusing a Stay Application made on the day because "and a "no notice" application requires the consent of each claimant". Thank goodness some judges are still abiding by the judicial process.

[livelylad]

Congratulations!!

[car2403]

Nothing from Barclays, but that isn't a surprise.

 

They are either going to make me wait until the last minute, (14th September is the end of the 28 days for payment) or they just aren't going to pay at all!

 

I've drafted this to send to them this Friday;

 

7 September 2007

car2403 –v- Barclays Bank PLC

Claim No: XXX

Dear Sir/Madam,

I, the Claimant in the case referenced above, refer to the County Court Judgment entered against you by Order of District Judge X at the hearing held at Morpeth and Berwick County Court, on 17 August 2007,

As you are aware, the Court allowed 28 days for payment to be made to satisfy the Judgment – to date I have received no such payment from you.

Please be aware that I will seek to enforce this Judgment against you by issuing a Warrant of Execution with the Court if payment has not been received before 14 September 2007, which will include additional costs to you in enforcing Judgment.

I look forward to hearing from you in reply, or to receiving payment in full in the form of cheque made payable to me and sent to the my current address shown above.

Yours faithfully,

I know this is pushing it a little, but I feel so sorry for all those litigants that are having their case stayed (which includes some of my other claims, BTW!) that I really won't give them an inch here!

 

The moral victory will be ours!

[slick132]

Car,

 

They deserve anything that comes their way, the arrogant Bankers!

 

Slick

[livelylad]

Thread moved to success forum.

[car2403]

Still nothing from the Bank/Court - just waiting for the warrant to be issued now. (and the £55 cheque for the fee to clear)