b8byd v Barclaycard **WON**

[pjdavies2000]

hi all - this thread http://www.consumeractiongroup.co.uk/forum/barclaycard/55044-mnrbig-barclaycard-2.html has an important element to it.

 

Basically, if we rely on the UTCCR argument as our main cause for raising the claim, it is likely a judge will stay it. I think, although the above POCs are good, that more needs to be made of the OFT 2006 report.

 

If we harp on too much about the points of law being challenged at the High Court, then our cases will be linked to that case, regardless of other arguments. The POC is the chance for us to distance ourselves slightly from the OFT case, whilst allowing the UTCCR to be aired as the law underpinning the OFTs report stating that the fees were unfair.

 

As the OFT have already said the fees are unfair, and the CCard company have both reduced their fees, and refunded the extra of this, our point of contention is not purely the UTCCR argument, but that their is a lack of clarity between you the consumer and BCard the supplier in what a fair fee is. The point of raising this case is therefore not to show that the UTCCR is unfairly held by the CCard, but that there is a lack of transparency in the charges, and that despite asking (in the early letters for this to be clarified) neither the CCard nor the OFT have been able to provide evidence of what the charges should be to align them with OFT report. Therefore the only way to clarify this, is through the courts.

 

Sorry if that got a bit muddled, I know what I mean, it's wording it!

 

Any thoughts

 

Peter

[b8byd]

Thanks for your comments PJ - i think I need to do a bit more research on this. When I get a moment i'll trawl though some of the other CC threads to get a better idea of what to emphasise in the particulars.

[Brad Smith]

yeah, i filed that before the test case was announced. I agree, less needs to be made of the UTCCR and more about the fact that the OFT have already ruled these as penalties

 

when I get 5 i'll try to redraft accordingly. Failing that (and this is more likely), I'll wait till someone else does it and plagiarise theirs. Just like being back at college....

[pjdavies2000]

How quickly are you needing this?

 

I should be able to get a rough draft together for the weekend, using bit from my stay letter. In theory they both argue the same, just at different times int he proceedings, so should gel quite easily.

 

I'll post when I have something!

 

Peter

[pjdavies2000]

Ok guys and gals, here is my first stab at a new set of POCs:

 

Enjoy, and comments please!

 

The Claimant has a Credit Card, Account number xxxxxxxxxxxxxxx ("the Account") with the Defendant which was opened on or around Date.

 

1 - During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant.

 

a - The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

b – These charges are not identified on Terms and Conditions accepted by the Claimant at the time of opening the account, a copy of these Terms and Conditions, as sent to the Claimant by the Defendant as part of a Consumer Credit Act 1974 request, are enclosed.

 

2 - A schedule of the charges applied is attached to these particulars of claim.

 

3 - The Claimant contends that:

 

a - The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b - The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (UTCCR) (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

 

i – The Defendant has already acknowledged charges prior to May 2006 as being disputable under the UTCCR by offering/refunding partial charges to the value of £xxxx

 

ii – The Office of Fair Trading (OFT) report Calculating fair charges in credit card contracts of 5 April 2006 acknowledged in Part 1.8 of the report that a threshold of £12 should be applied.

 

iii - The OFT report states that although a threshold has been set by the OFT, ‘Only a court can decide finally whether a term is unfair, or at what level default charges should be set to meet the requirements of the UTCCRs.’ (Part 1.14)

4 - The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

5 – The Defendant, after receiving the OFT report changed it’s charging structure to mirror the threshold limit of £12. However, the Claimant still considers this to be an unfair penalty. The Defendant did not return monies taken unfairly until after a letter before court action was sent, and has failed to justify the new limit set, despite the OFT report summarising that £12 was a threshold, not a reasonable cost.

 

a – This claim is asking the defendant to return charges that are deemed a penalty by the UTCCR and OFT, and prove, in a court, what the actual cost of processing a late payment or exceeded limit charge actually is.

 

b – The OFT report notes that the pre-2006 charges were significantly higher than is fair for the purposes of the UTCCRs and may that they may only recover the relevant limited administrative costs arising out of those defaults (Part 1.6).

 

c – this dispute deems to clarify with the Defendant what those costs are, how they are derived, and how they should be implemented

 

6 - Interest claimed

 

a - The Claimant claims compound interest on the charges to the Account at the annual rate of APR%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.

 

b - The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

7 - The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

8 - For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

9 - Regulation 5 (1) of the UTCCR states as follows:

 

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.”

 

a - Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

b - In the alternative to 6a , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

10 – OFT High Court Test Case

 

a – The Claimant draws attention to the current court case between the OFT and seven banks and one building society. Although much of this case refers to similar areas of law and regulations, there are several differences

 

i – The current test case, by the OFTs own admission is focused solely on the UTCCR in relation to banking overdrafts

 

ii – Overdrafts and Credit Cards differ due to contractual agreements and Consumer Credit Act (CCA) 1974 law, which bind Credit Card companies, but not banking overdraft obligations. Much of the test case will focus on how this affects the UTCCR.

 

iii – No Credit Card company is represented in the test case

 

b – By not allowing this case to be heard, the court is subjecting the Claimant to an infringement of Section 6 of the Human Rights Act 1998, which states that “1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.” As no timescale can be allocated to that of Credit Card companies, including the Defendants company, being given a test case and that case being heard, the Claimant is unfairly limited in their actions

 

c – The OFT, in setting out it’s aims in light of the test case, stated that: - ‘The second step is then to consider whether the amount of the charges is unfair.’ The OFT, in it’s 2006 report, has already made it’s views clear on Credit Card charges, as stated above in 3bi-iii.

 

11 – Abuse of the system

 

The Defendant is well known to use the Court System to both delay and intimidate, and therefore the Claimant asks the court to acknowledge this in any directions it makes.

12 - Accordingly the Claimant claims:

 

The return of the amounts debited in respect of penalty charges in the sum of £AMOUNT;

 

13 - Court costs;

 

a - Contractual interest at a rate of APR% per annum, compounded daily from the date of each transaction to FILING DATE of £INTEREST, as set out in the attached schedule of charges.

 

b - In the alternative to 13a, interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to FILINGDATE of £8%AMOUNT and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £RATE.

 

12 - Statement of Truth

I believe that the facts stated in these particulars of claim are true.

 

 

SIGN

 

NAME

 

DATE

Peter

[b8byd]

Nice one! Cleverly avoids relying on the OFT case and I particularly like the part about Article 6.

 

Eagerly awaiting comments before I submit my claim (with kind permission to use your draft PJ ).

 

b8byd

[pjdavies2000]

Def use - glad you like it. although the bulk is others' work.

 

Would welcome any comments (good and bad) and if anyone wants to redraft it, then please do!!!

 

Although obviously anyone who wants to use it, then they can, although I have to point out I am not a banana, and have formed this of my own opinion, and it is untried both as a POC and at court.

 

However, saying that, it is what I will be relying on when i submit my court claim in a few days time.

 

Peter

[Brad Smith]

looks good to me peter and was pretty much exactly what i was about to put up *whistles innocently*

 

the only thing that would possibly concern me is the line about the charges are not on the terms & conditions accepted by the client. I was under the impression that they were in the terms & conditions?

[pjdavies2000]

Sorry - that is something I should have mentioned, and thanks for bringing it up.

 

On the T&Cs sent to me by BCard (see my thread BCard v Davies (at present) http://www.consumeractiongroup.co.uk/forum/barclaycard/102290-bcard-davies-present-2.html#post1067573) The T&Cs BCard sent me have no mention of any Charges that could be applied to my account, other than the antiquated yearly 'service' charge of £10 that was actually scrapped before I took out my card.

 

I find this strage, and added that line to the letter (I meant to highlight it in red) as I think it could be significant to my case.

 

I assume that no-one else has found this? The only thing I can think of is that my card was initially a Student Card, so maybe fees weren't applied back then on Student Cards. Since they haven't provided me with any other T&Cs I am assuming that these T&Cs still hold true, unless they can prove otherwise, which I'm sure they will try and do!

 

So in short, if that line doesn't apply to you, I'd remove it!

 

Thanks for the comments Brad.

 

Peter

[Brad Smith]

no worries Peter. Just a quick question, how did you get your terms of contract sent to you? I'm at the stage where I can file, but haven't got those and really want to present a watertight case.

 

just so the judge can ignore it and issue a stay anyway

[pjdavies2000]

I sent a CCA request to BCard, they sent me through the original application forma nd the T&Cs - it costs £1, I think the details of what I sent are on my thread.

 

I was going to try and have the debt removed by that method, but the amount is so little it is hardly worth me pursuing, and apprently can be a difficult thing to argue - BUT - I did get that little gem from them, so not all that bad!

 

Peter

[pjdavies2000]

Bumpty bump!

[Brad Smith]

Cheers Peter...I'll send the CCA off...didn't realise you got a terms & conditions with it

 

Bet I don't...born winner I am!

[pjdavies2000]

If they don't then you may find you enter a whole new kettle of fish!

 

Basically, an unenforceable CCA could mean whatever you ahve outstounding would be wiped, and any defaults removed - in fact the whole file removed!

 

It does, however, mean you can't claim charges back.

 

But to answer your Q/statement, they WILL send you the T&Cs!

 

Good Luck!

 

Peter

 

(could anyone else have a look at the POCs I posted on the previous page pls)

 

Peter

[Brad Smith]

cheers Peter...my outstanding balance is only about £50 though (it was -£300 until they took back the "goodwill payment" they gave me)

 

born pessimist...best way to be....never disappointed then!

[slick132]

Hi B8byd,

 

Saw your post on Maxine's thread and just wanted to make sure you've seen the new BC POC's which you'll find in the Stickies at top of BC forum.

[b8byd]

Nice one, thanks so much for that, I hadn't seen those precedents before.

[b8byd]

Hi to anyone who's reading this...

 

I hadn't really made much progress on this claim for a while, and having checked my account I noticed that Barclaycard had charged me even more charges since my letter before action. So I wrote a further letter before action including the new charges, giving them until Monday (11th Feb) to respond. They have responded already, offering nothing further, and have said that is there 'final response'. Would it be ok to submit my claim form this week or should I really wait until Monday?

 

Thanks in advance

[slick132]

If they've responded to your LBA with a final response, File your Claim at court without waiting.

[slick132]

I'll get your 2 BC threads merged for you to avoid confusion.

[b8byd]

Thanks Slick.

 

The POC template doesn't mention contractual interest. Can that not be claimed now? Sorry if i've missed anything major, I haven't been keeping up with the news on here for a while.

[slick132]

Have a look here :-

 

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims

 

(1) A declaration that the sums totaling £[ xxxx.xx] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[xxxx.xx ] and interest of [£xx.xx] applied by the Defendant thereon.

 

The last box is the one for CI, which IS still being claimed on credit card claims.

 

Be warned, however, that BC will not voluntarily settle a claim which includes CI - they'll take it right up to the courtroom door. Some have won and others have accepted just the 8% Stat'y Int't.

 

Do a comparison - put the chgs amounts and dates on a simple spreadsheet to see what the differance is. Some have dropped CI if the diff is not too great and settled more quickly and easily.

[b8byd]

Oh I see. Thanks for making it clear for me.

 

I will work out the difference and have a think about it...

[b8byd]

Its about £1,000 difference. I think I will stay with the contractual. Didn't take me long to think about it did it?

 

Wish me luck!

[ukaviator]

Threads merged

 

I have'nt read your whole thread, but if you are going for contractual, then keep your claim as a package. Don't let them split up your claim and pay what they think you should get.

 

Good luck