WarHorse v Barclaycard

[WarHorse]

Hiya All

 

My claim with B/card has reached Court stage. They filed a BIG Defence at the last minute - just as I was about to request judgment in default having rec'd nothing. Have rec'd Notice of Allocation to Small Claims Track. Hearing is scheduled for 6 AUGUST 2007 at Reading County Court before DJ Darbyshire. Didn't rec Allocation Questionnaire even tho it was transferred from Northampton County Court. I know that I could still be asked to pay this fee, but have been looking at other threads on the new status of Allocation Questionnaires and I will revisit this. I just finished reading CAZ's thread - way to go! However, I would like to let every1 know that the amount I am reclaiming from Barclaycard (plus interest) was for the princely sum of £292.00 I will have great delight in pointing out to the DJ at Court that I am not the one (as alleged by B/card) who is abusing the Court process - they put this in their Defence - but in fact for such a small amount claimed, they are trying to use intimidation and bully boy tactics. Better get on with the Court bundle now!

[glpark01]

Im starting to hate barclaycard, we went to the court this morning as we hadn't received their defence but it looks like the filed it at the weekend and the bank holiday has held it up a bit, now waiting for the AQ and sorting out my court bundle, we're only claiming £880 so its a pain to have to go this far for it (started the inital claim last october) and could do with the money as baby is due in 9 weeks. Hope we get a court date soonish.

[WarHorse]

I agree with your comments. B/card used all the stalling tactics they could. They filed an Acknowledgment just b4 the 14 day deadline for submitting their defence to give 'em a further 14 days & just the day b4 filed their BIG defence. However, on the plus side, I no longer have an a/c with them & therefore am lucky enough not to be still incurring charges, etc. Also, they did not put any adverse credit marks on my credit record as they have done with some other folks! Keep smiling!

[elisedriver]

I'm the same as above... Barclaycard used the bank holiday weekend to file their defence late. I had also filed for judgement by default - but they managed to sneak it in before my request was processed. They haven't sent me a copy of the defence though yet.

 

Mines even less mind - sub £600 including fees and interest.

 

Just waiting for AQ / Notice of Allocation now.

[WarHorse]

This is what I received from Reading CC

 

Notice of Allocation to the Small Claim Track (Hearing)

District Judge Darbyshire has considered the statements of case filed and allocated the claim to the small claims track.

The hearing of the claim will take place at 10.00 on the 6 August 2007 at Reading County (address) and should take no longer than 10 minutes.

THE COURT MUST BE INFORMED IMMEDIATELY IF THE CASE IS SETTLED BY AGREEMENT BEFORE THE HEARING DATE.

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

The original documents shall be brought to court.

 

 

[WarHorse]

Guido T - Have tried to post you to thank you for Court bundle, etc. Totally p*****d off with computers & banks now! If I have posted in the wrong place, apologies, but I dont know how to do these things! I have posted the details of the Court hearing on my thread. B.card are not doing anything re my claim as far as I am aware. If I get chance will try to ring Reading CC to see if they have submitted their bundle. To add to my misery 2day, O/H kindly 'broke' my printer while replacing ink cartridge - now do I go & buy a new printer, bearing in mind I am already late for work & paid by the hour & losing money, or do I try and print them out at work (secretly?). BAAAAAHHHHHH!!!!! HUMBUG!!!!!!!!!!!!!!!!!!

[WarHorse]

This is my Trial Bundle Index & Stat of Evidence. If ne1 would like to read through same & offer any advice/suggestions; I would be grateful. I am very unsure what docs go where; e.g. do they all go in the Trial Bundle or do some of 'em (& which are the appropriate 1s!) go with the stat of evidence. Is stat of evidence 2b submitted now - Hrg is a Directions Hrg or do I wait til Directions Hrg takes place & then submit stat of evidence for Final Hrg with 'special directions'? Many thanks to you all.

In the Reading County Court

B E T W E E N :

XXXXXXX

Claimant

• and -
  

BARCLAYCARD

Defendant

INDEX TO TRIAL BUNDLE

SECTION A Page Numbers

Correspondence

SECTION B

Statements

SECTION C

Court Documents

SECTION D

Dunlop v New Garage

SECTION E

Peter McNamara Interview Transcript – Sept 2004

SECTION F

The Competition Commission Report

SECTION G

Australian Default Fee’s Report

SECTION H

BBC Commission Conclusion

SECTION I

UTCCR 1999

SECTION J

UCTA 1977

SECTION K

SOGA1982

SECTION L

OFT Statement Summary

SECTION M

OFT Report - Analysis of Unfair Terms in Schedule 2

SECTION N

List of settled cases

 

 

'SERVICE CHARGE' STATEMENT -

Claim Number:*******

In the ******* County Court

 

 

 

Between:

Your name

(Claimant)

and

 

Bank Plc

(Defendant)

 

____________________ ______

STATEMENT OF EVIDENCE

________________________

 

1. The Claimant submits that the charges levied to her credit card account, as set out in the enclosed schedule, are, notwithstanding the defence of the Defendant, penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977, and the common law.
    
   2. It is admitted that the Defendant’s charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendant’s charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant which, by virtue of the legislation cited in paragraph 10, exercises the contractual term in respect of such charges with a view to profit.
    
   3. The Defendant avers that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the Defendant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.
    
   4. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to her account by the Defendant could be any form of ‘service’, rather than a penalty.
    
   5. I understand the definition of 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. I had a credit card facility with the Defendant. This had a contractually agreed limit, which is an express term of the credit card account contract between myself and the Defendant. When the Claimant breached an express term of the contract between herself and the Defendant, she was consequentially penalised for each such breach by way of a charge of £20.00.
    
   6. In the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79, Lord Dunedin stated that a clause is a penalty if it provides for;
    
   "The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part;"

i.e. if it is designed to scare or coerce or is used as a threat. It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem".

 

7. The breaches of contract in this case relate to exceeding the contractually agreed limits of a credit facility, and having insufficient funds available to pay a direct debit or a standing order. On 13 April 2005, a charge was levied on my account by the Defendant for exceeding the set credit limit. The shortfall was £22.58. I was then penalised for this breach by way of a charge of £20.00. The Claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

[8. Additionally, the [Claimant believes terms and conditions of [his / the claimants] account contract explicitly describe the charges as to be levied in instances of breaching those terms. This is true of the contracts of other customers of the defendant that the Claimantis aware. However, the bank has failed to provide me with a copy of the account contract, despite repeated requests to do so, so unfortunately this cannot be proved. A right of subject access request for this document was submitted to the defendant under the Data Protection Act 1998, on 8th September 2006. The defendant has failed to comply. Here, if your account contract states the charges as ‘breaches’ use the text in black. The blue bit was true in my case and I’ve left it there as an example. If it applies to you, keep it in, if not, just take it out.]

The Defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and the Claimant had no opportunity to negotiate such clauses. Further, in September 2004 the Defendant increased the charges; at no time was the Claimant given the opportunity to negotiate such an increase. The Defendant has unilaterally altered the terms of the Claimant’s account to their advantage and the to Claimant’s detriment.

 

9. The Claimant refers to the statement from the Office of Fair Trading (April 2006), who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to Bank account charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

 

"4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism".

 

10. As submitted above, the Claimant believes the charges levied to her account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express terms of the account contract between itself and the Defendant. The Claimant vehemently refutes the Defences contention that they are legitimate contractual service charges.

 

11. However, and without prejudice to the above, in the event the charges were accepted by this honourable court as being a fee for a contractual service, the Claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

 

12. Further, under the UTCCR:

 

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

13. Following on from the above, the Claimant does not accept the Defendant’s contention that the charges are enforceable as a service charge. It is not disputed that the Defendant is entitled to recover its damages following my breaches of contract, and it is entitled to include a liquidated damages clause. I accept without reservation the Defendant’s right to recover its actual losses or a genuine pre-estimate thereof. A penalty however, is unenforceable.

 

14. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850 which states that a contractual party cannot profit from a breach and that the charge for a loss suffered from a breach of contract should be the amount necessary to put both parties in the same position before the breach occurred.

 

15. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. One of these principles being -

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

16. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

17. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

18. On numerous occasions, the Claimant has requested that the Defendant justify its charges by providing details of the costs incurred as a result of my contractual breaches. Each time those requests were rebutted or ignored.

 

19. In a recent study undertaken in Australia, (Nicole Rich, "Unfair fees: a report into penalty fees charged by Australian Banks") it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

 

20. The Defendant, or indeed any of the UK credit card companies, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

 

21. For their recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

 

22. It is submitted that the Defendant’s charges are applied by an automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. It is therefore impossible to envisage how the Defendant can incur costs of £20.00 per item by carrying out this completely automated process. If multiple breaches occurred on the same day, an additional charge would have been levied on the Claimant in each instance.

23. Additionally, I asked the Defendant to provide evidence of any manual intervention that may have occurred in relation to my account, under a Data Protection Act 1998 right of subject access request. No such information was forthcoming.

 

24. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

 

25. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states bank charges are used to fund free banking for all personal customers as a whole.

 

26. As set out previously, it is submitted that the Defendant’s charges cannot be considered to be a service charge. In arguing that they are, they also effectively admit that their charges make profits. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. Similarly, as set out above, the charges cannot be considered to be liquidated damages. They, by the Defendant's own admission, are not a pre-estimate of loss incurred as a result of the breach of contract. The charges are punitive, held "in-terrorem", and unduly and extravagantly enrich the Defendant. As such, they are a contractual penalties and unenforceable at law.

 

I, the Claimant, believe all facts stated to be true.

 

Signed, dated.

 

 

 

Documents attached in support of this statement

• Office of Fair Trading report, April 2006
  
• House of commons early day motion, May 2006
  
• BBC NEWS | Business | The Money Programme bank commission
  
• Australian Default charges report, Nicole Rich - Domain Names, Web Hosting, Web Design, Search Engine Optimisation, and Search Engine Marketing at Melbourne IT
  
• Data Protection Act Subject Access Request for evidence of manual intervention

This next statement is suitable for claims in which the defence contends that the charges are proportionate to or a pre-estimate of their actual loss.

 

 

 

 

[WarHorse]

I'm the same as above... Barclaycard used the bank holiday weekend to file their defence late. I had also filed for judgement by default - but they managed to sneak it in before my request was processed. They haven't sent me a copy of the defence though yet.

 

Mines even less mind - sub £600 including fees and interest.

 

Just waiting for AQ / Notice of Allocation now.

 

Hi elisedriver

 

Ne further news on your claim?

[pjdavies2000]

Hi Warhorse

 

Good luck with the court - start ringing the Lit team at Barclaycard as soon as you send it in!

 

Also - you shouldn't reproduce the bundle bits in open forum - you don't want Barclays knowing your business (and they do read these pages!)

 

Peter

[moneyhelp]

Hi Warhorse

 

Good luck with the court - start ringing the Lit team at Barclaycard as soon as you send it in!

 

Also - you shouldn't reproduce the bundle bits in open forum - you don't want Barclays knowing your business (and they do read these pages!)

 

Peter

 

Good advice - maybe send it to a mod/site helper to look through - and delete from the forum!

[WarHorse]

Hi Warhorse

 

Good luck with the court - start ringing the Lit team at Barclaycard as soon as you send it in!

 

Also - you shouldn't reproduce the bundle bits in open forum - you don't want Barclays knowing your business (and they do read these pages!)

 

Peter

Thank you for your good advice. I will heed this for the future! Have personally 'filed' my documents at Court 2day. Checked to see if B.card have filed theirs, they have not. I posted their set 2 'em 2day First Class post! You should have seen my bundle - it was a work of art! I also have it on very good authority (but cannot disclose my source) that it is likely due to the impending test case (the OFT have 21 days in which to action) quite likely Defendants will be requesting stays more than ever. The advice I have rec'd is to ask to have the stay removed. I will ring the Litigation Team 2morrow & see if they want to settle.

[WarHorse]

Good advice - maybe send it to a mod/site helper to look through - and delete from the forum!

Thank you MoneyHelp. Dont know how to send it to a mod/helper tho' can you advise pls? Also, due to time constraints I had to file my bundle of docs 2day; to my eternal shame they were already late; can u.stand why claimants dont bother to file - it is a long & very tedious job, but GaryH's comments are valid - it is an order of the Court - ignore it at your peril! Also, my source 2day was very, very, surprised that B.card didnt 'collapse' once the Hearing date was given, and have made no attempt whatsoever to settle!

[moneyhelp]

Yes I will pass your message on

[WarHorse]

Tel B.card - Krysta Campbell whose name i got from another CAG'ers post (for which my thx). Got her VM - left her a msg re negotiating settlement. Also, got her email address - ne point in emailing her, do you think?

[WarHorse]

:) :) - ANOTHER 1 BITES THE DUST!!!!

Well folks, as time was gettin' on & I wanted to wrap things up so I called the no on the defence - spoke to Dino. Asked if they had rec'd my bundle - his response, we receive sooooo many bundles he really couldnt tell whether they had rec'd it or not!!!! (GaryH is correct, keep sending in the bundles, CAG'ers!!! do not let 'em catch you out by you being in contempt of a court order). Dino said he was the person dealing with my claim & I explained re the Court date on 6/7. Said he would ring b.card & let me know whether or not they wanted to settle by Monday (explained & I was very polite, that really needed to move a lot faster than this as Monday was the Hrg date). Dino asked if my b.card was still current & said no, it was fully paid up (I took out a personal loan 2 repay 'em just to get some control back over my life) therefore no o.standing charges in dispute, etc. My claim is for £129 approx & it would be a waste of every1's time, effort & money to have to go to Court etc. Dino was sure b.card would want to settle without goin' to Court (I'll bet they did; I would have pursued it to a Court Hrg if they wanted to - gd practice for the larger claims I am making 2! & its good practice for my litigation skills but I hope every1 can imagine the look on the DJ's face when I tell 'em the amount in dispute!!!! Their costs alone at present must be in thousands of £££s!!!). If they wanted to settle, I needed to no soonest so that I could vacate the Hrg date. He promised he would let me know ASAP & promised Thursday. He said he would have to check the % interest rate claimed - I claimed CI. Rang me back almost immediately and b.card have agreed to settle in full, no offer as to costs for prep of bundle, but there is a lett in the post to me which I should rec 2moro; if not give Dino a call. TBH - am not bothered re cost for prep of Ct bundle - looking at it as learning curve & I got what I claimed so am happy. I got 2 go 2 proper work 2moro so I hope I am not leaving it 2 late to vacate the Hrg on 6/7. Dont want to upset the Court. Await with bated breath!!! Am not vacating Hrg date til I get their offer let tho'

YIPPEEEE As soon as I rec ££££ssss I will be donating! Thx much to all you great guys out there & roll on with the next claim!!!!

[pjdavies2000]

Congrats!

 

See a phone call always helps!!!!

 

Glad BCard are seeing sense (and Dino is as nice as ever!) and paying up as they shoukd do. This is really heartening news for all CCard claimants!

 

If you don't get costs, just add them to the letter they send you (scribble their total out add your new total, and put, plus costs) and fax it back asap (initial any chages you make as well) they won't argue, it's too close to the court date!

 

Good luck with signing!!! lol

 

Peter

[pjdavies2000]

Also, don't send a letter until the funds have CLEARED, send a letter to the coyurt, saying that BCard have offered to pay before the hearing, and can they allow another 7 days for the hearing to allow the funds to clear. In which time, when they have, you will send confirmation to the court.

 

They will do this!

 

Peter

 

Don't dismiss the court case til the money is in your pocket!!!!!

[WarHorse]

Peter

 

Thx much for your post & ur gd advices. What amount do you suggest I put 4 costs. I dont want 2b greedy, but I did spend a lot of time on the bundle, both in personal time photocopying, sectioning, paginating & hand delivering it to the Court & posting (£5.75 1st class post) to B.card. Have heard £50 is suggested in other posts - what do u think?

[WarHorse]

Also, don't send a letter until the funds have CLEARED, send a letter to the coyurt, saying that BCard have offered to pay before the hearing, and can they allow another 7 days for the hearing to allow the funds to clear. In which time, when they have, you will send confirmation to the court.

 

They will do this!

 

Peter

 

Don't dismiss the court case til the money is in your pocket!!!!!

 

Most excellent advice - I would simply have vacated the Hrg date! Live & learn every day. BIG, BIG THANK YOU!!!!!

[pjdavies2000]

If you have booked a day off work for the court hearing then you can charge them a maximum of £50 for the day if you look in my thread in the Barclasy forum, the court allowed cost is hsown there!

 

You can also add £9/hr for putting your bundle together. I would suggest adding this all onto an excel sheet and faxing it back with the changed amount. Don't forget as well, the 8% keeps acruing each day, so the figure would ahve changed anyway - the case is not over until that money is banked!

 

It's best to live and learn on here - than when BCard stuff you for the cash and you have to start again!

 

Best of luck!

 

Peter

[Paintball]

Well done Warhorse, well deserved!!

Painty xx

[kashfat]

hi im just wanting to see if you got my message?

[WarHorse]

Hi Peter I hadnt yet booked a day off work for the Hrg on 6/7 so probably cant claim for that! However I had taken 2 days off work to prepare my court bundle, spent money on stationery, bus fares to the court, postage, etc. But I claimed compound interest of £16.89 on £100 of charges from Dec 05 to Dec 06 (when I paid the a/c up in full & closed it) - nothing past that date despite the fact that I sent my inital ltr requesting repayment of the charges on 2 January 2007 - it now being 31 July 2007 should I re-calculate and add on the interest for those months? I dont want 2b greedy, just want the £££sss tinkling n2 my bank a/c!!!!! ASAP

[WarHorse]

hi im just wanting to see if you got my message?

 

Did u send me a message, dont wori if you didnt am revelling in my victory @ the mo so am probably not reading things right anyhow!!! But, no, havent rec'd msg from u. if i k help, let me no.

[WarHorse]

Well done Warhorse, well deserved!!

Painty xx

 

Painty, thx much for your gd wishes. I will keep the faith with all you CAG'ers out there & watch your threads 2 c how you're all gettin' along.