Barclays' File Defence

[don.quixote]

I have filed my claim and Barclays has filed a defence (see below) beforte I found your forum.

 

I made my claim online and sent separately to Barclays a complete schedule of the dates and amounts together with a calculation of interest for every individual charge. I have all the original statements.

 

I have now received the Allocation Questionnaire and I am considering requesting a postponement so that I can refer the matter to the Financial Ombudsman as this may achieve a swifter and more certain resolution. This needs to be completed no later than Monday 9 July. So, should I do this?

 

Barclays defence reads as follows:

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 that 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 (in particular but without limitation) the following terms and conditions (which are summarised):


1. 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)
   
2. 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)
   
3. 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.

[*]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 overdraft limit).

[*]If and to the extent it is the Claimant's case that the failure to make necessary payments 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 damages 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.

[*]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 (particularly but without limitation to, paragraph 1(e) of Schedule 2)

[*]Therefore it is denied that the charges were unlawfully debited from the account.

[*]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.

[*]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.

[*]The Defendant denies that it is liable to the Claimant for the sum claimed and interest as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 4 May 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980.

[*]In the alternative, and without prejudice to the 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.

I look forward to any guidance and advice!

[Firefly100]

Hi don.quixote - I filed my AQ on 18th May and got a court date of 25th July - so about 2 months... Not sure if it is quicker through Financial Ombudsman and the timescale may vary for different courts to allocate hearing dates...

[sheyatwork]

Hi, I am at the same stage and have just recieved 'word for word' the defence from Barclays -standard one, from what I'm reading. Just spent many long hours reading up and have just filed my AQ with Draft Order for Directions as found on this site -it was due in for 12th Jul -submitted it today. I am hoping this will bring a quicker response and end to many months and endless stress! I have forwarded three sets of charges, dates etc to B. -they can't even correspond on a personal basis.

You will find some excellent advice from our friends here -I'm keeping it going too

[saintly_1]

OK ive just answered this on another thread !! please stick to 1 thread only

[don.quixote]

Thank you both. I've only been registered 5 minutes!

 

My reason for considering the FO route is that from what I have read here and elsewhere the banks have not yet contested a referral to the Ombudsman whilke, as we know, they are getting braver in the courts!

[don.quixote]

Thank you Saint.

Sorry about the double posting everyone. Pressed Submit and then preview and then submit again thinking that if it had already submitted it would tell me! I did spend a few moments trying to find a way of retracting one but couldn't find it.