SJC v The Woolwich ***SETTLED IN FULL***

[essjaysea]

Having watched this forum with interest over the last few weeks, I finally decided to take the plunge and start the process. I have kept all my statements going back at least until 1998, but realise that I cannot claim for items deducted more than 6 years ago.

 

So I worked out that they had taken £522.50 from my account since August 2000.

 

I sent the "preliminary request" letter on 5th June, together with a schedule of the charges and received an acknowledgement from the "Woolwich Telephony Customer Relations Team" dated 7th June, stating that my "complaint" had been passed to Barclays Head Office. The next day I received a letter from Mike Brophy (signed in his absence!) at Barclays acknowledging my letter and advising that "one of my team" will contact me shortly.

 

Heard nothing since then.

 

Sent Letter Before Action both to the Woolwich and Barclays on 19th June giving them 14 days to settle in full.

 

My one question is this. Although legally I realise that I cannot claim for charges over 6 years old, (there is at least £1000 of these going to 1999), (I did read in one of the Abbey threads that Abbey settled some old charges), would it be worth adding these in to a claim filed at Court, or would this be an opportunity for them to successfully defend my claim against them?

[Guest Mumofthreeboys]

If it were me, I would stick to this one for the time being and when it's all done and dusted start the next one going back to 1999.

[essjaysea]

Having had no further response either from Woolwich or Barclays, I issued prodeedings against the Woolwich on 4th July, claiming 522.50 + 222.25 interest + 80.00 Court costs.

 

This morning I received a standard letter from Laurence White "Customer Relations Manager" at Barclays

 

"I refer to our letter of 8th June (a standard ackowledgement of my letter of 5th June)

 

May I say how sorry I am to learn that you feel the bank charges you have incurred are unfair. In your correspondence you have referred to elements which you feel support your claim. Barclays is aware of the information you have drawn to our attention. I must inform you, however, that we disagree with your view.

 

When an account is opened with us, our customer is provided with a copy of the Terms and Conditions relating to the use of their account; including details of our charges. This information clearly explains our obligations to our customers, as well as their obligations to us. If we make changes to the Terms and Conditions, we provide details of these changes to our customers in line with the Banking Code. Details of our terms and conditions, along with our charging tariff, can be obtained at any of our branches, or via our internet site, www.woolwich.co.uk/barclays.com.

 

Despite my comments above in relation to your views, on this occasion, and without any admissions as to the basis of your complaint, I am willing to offer 210.00 towards the total amount you are seeking. This is with the cost and inconvenience inherent in a further dispute in mind and is intended as a gesture of goodwill. If you would like to accept my offer, please sign and return the enclosed form in the pre paid envelope provided. I will arrange for the payment to be credited direct to your account within 7 working days of receipt of your acceptance.

 

If you wish to dicuss this letter, or you feel that there are further issues that I need to consider, please contact me on my direct telephone number 0207 XXX XXXX. If you are dissatisfied with my proposal for resloving your complaint you may ultimately be eligible to refer to the Financial Ombudsman Service.

 

The leaflet sent with our letter of 8 June explains our complaints process and provides details regarding the Financial Ombudsman Service.

 

In accordance with our standard practice, if I do not hear from you to the contrary within 8 weeks from the date of this letter, I shall assume that your complaint is resolved and close my file.

 

Yours sincerely

 

 

Laurence White

Customer Relations Manager"

 

 

The form they want me to sign accepting their offer is as follows:-

 

 

"Customer Acknowledgement

 

Thank you for your letter detailing your response to my complaint

 

I accept the sum of 210.00 in full and final settlement of my complaint with Woolwich PLC

 

Date.......................

 

Signature................."

 

 

 

This, I feel is a standard opening offer, made on the basis that I will accept in order to prevent additional cost and inconvenience. HOW WRONG THEY ARE!!!

 

I have no intention of accepting their derisory offer. Proceedings have been issued, and I expect them to pay me back 100% + interest and costs. If they thought for one minute that they had a leg to stand on, do you think they would offer anything? I doubt it!!

[CrikeyMick]

My one question is this. Although legally I realise that I cannot claim for charges over 6 years old, (there is at least £1000 of these going to 1999), (I did read in one of the Abbey threads that Abbey settled some old charges), would it be worth adding these in to a claim filed at Court, or would this be an opportunity for them to successfully defend my claim against them?

 

Many people have claimed back for more than 6 years for full details of the legal position this FAQ page describes how this might be done http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/3805-can-i-claim-back.html#post23357

[essjaysea]

Thank you for that. I think that I will pursue my existing claim to a conclusion, then go back to see if I can claim the rest

[CrikeyMick]

Thats what I would have recommended as from what I read you've already sent the prelim asking for the recent charges.

[essjaysea]

This is a letter I propose to send to Barclays in response to their derisory offer of 4th July

 

 

 

 

 

 

Laurence White

Customer Relations

Barclays Bank PLC

Freepost RLTA-CSUE-TCHC

Head Office Customer Relations

London

E14 5HP

 

 

6th July 2006

Your Ref: XXXXXXXX

 

Dear Mr White

 

Re: Account No: XXXXXXXX

 

I am in receipt of your letter of 4th July 2006, and note the contents.

 

I refer in particular to your offer of 210.00 in full and final settlement of my claim of 522.50. I do not consider this to be a fair and reasonable offer, in the light of your inability to prove the actual loss suffered by The Woolwich, as a result of unpaid direct debits and standing orders on the above numbered account.

 

If you are prepared to provide documentary evidence of the actual loss that has been incurred then I will be in a position to assess your offer properly.

 

In the meantime, I do not accept your offer of 210.00 unless this is classed as an interim payment, in which case I reserve the right to pursue the balance of the claim by whatever means I see fit.

 

As you chose not to respond to my letter of 19th June 2006, within the time frame set out in that letter and my previous letter of 5th June 2006, I was obliged to issue court proceedings against The Woolwich on 4th July 2006. My claim, therefore, has now increased to 824.75, including statutory interest pursuant to section 69 of the County Courts Act, and Court costs.

 

Clearly it is not in the interests of either of us to pursue the matter through the court system, as this will waste both time and money for each party involved. Having closely followed numerous similar cases against financial institutions for unlawful removal of funds from customer accounts since early 2006, I note with interest that, without exception, either judgment has been awarded against the defendants, or the defendants have settled in full prior to judgment.

 

Please be aware that I am determined to proceed with the litigation that I have instigated unless you are prepared unconditionally to settle this claim for 824.75 in full.

 

Yours sincerely,

[Guest Mumofthreeboys]

Very good letter, well done.

[essjaysea]

Letter received from Barclays today in response to my letter of 6th July

 

11 July 2006

 

Thank you for your letter of 6th July.

 

I am sorry you have decided not to accept our offer which was made as a gesture of goodwill.

 

I am unable to agree to refund you the full amount and it is with regret that you will now be proceeding to the County Court. I appreciate this is not the response you were hoping for, but I hope I have clarified the Bank's position

 

Yours sincerely

 

Rose Frimet

Senior Customer Relations Manager

 

 

A fairly standard fob off I would say...almost as if to say "Go ahead and sue us, see if we care!!"

[sharksterson]

hi ess.....watchin closely to your thread as im at the same stage as you,,bank needs to responde to my letter by friday(14 dayssince letter) looks like you wil be seeing them in court my friend!!good luck

[essjaysea]

Hi Sharks

 

Thank you for your good wishes...good luck to you too. My thoughts are that they will probably not make an appearance in court...am expecting a letter from Keith Jeremiah at some point prior to the hearing offering to settle...well maybe I am just an eternal optimist!!!

[sharksterson]

yea, i hope so ess for both our sakes!! lol my beef is with the halifax so it wil be nice to see how different the 2 banks handle it.?just want to get my fingers on my money!so me and the family can have a holiday(which is well over due)spk to you soon m8 keep me up dated please m8. cheers

[sharksterson]

yea, i hope so ess for both our sakes!! lol my beef is with the halifax so it wil be nice to see how different the 2 banks handle it.?just want to get my fingers on my money!so me and the family can have a holiday(which is well over due)spk to you soon m8 keep me up dated please m8. cheers

[essjaysea]

Received acknowlegement (Notice of Issue) from Croydon County Court. Claim sent to Woolwich on 11th July, deemed to have been served on 13th July. They have until 27th July to respond

 

I expect that they will file an ackowledgement of service, so they can give themselves a further 28 days to come up with a defence which they must know by now is a pointless exercise.

[essjaysea]

Telephoned the court this morning. Woolwich filed an acknowledgment of service with the court on 26th July. They now have an additional 14 days to come up with their familiar defence. That gives them until August 10th. Justice moves inexorably to its inevitable conclusion.

[essjaysea]

Have now received written confirmation from the court that The Woolwich had filed an acknowledgment of service on 26th July.

 

I have also decided to send a DPA letter to The Woolwich, with a cheque for £10, as I intend to file another claim for charges prior to May 2000, once the current claim has reached a conclusion.

 

Despite not yet seeing any successful claims iro the Limitations Act, the way the exceptions are worded gives me confidence that I have a reasonable chance of success

 

It will also serve the purpose of enabling me to double check against my own records to see if I have missed anything in the current claim. If I have, then I will simply add it to the new claim

[essjaysea]

Received an acknowlegement from Woolwich re my DPA request, returning my £10 cheque. They aim to provide me with an answer by 29th August. By my reckoning they have until 5th September to comply

[essjaysea]

Received a copy of the defence from Keith Jeremiah at Barclays as follows:-

 

 

IN THE CROYDON COUNTY COURT

Case Number XXXXXXXX

 

XXXXXX XXXXX XXXXXXX Claimant

 

-V-

 

Barclays Bank PLC (t/a The Woolwich) Defendant

 

_______________________

 

DEFENCE

_______________________

 

 

1. Save where indicated to the contrary, references to paragraph numbers below are to the Particulars of the Claim.

 

2. Paragraph 1 is admitted.

 

3. Paragraph 2 is admitted, save that it is denied that the charges debited to the Claimant's account were in respect of purported breaches of contract on the part of the Claimant. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of his 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. The Claimant accepted the same when the account was opened.

 

4. The standard terms and conditions included (in particular but without limitation) the following terms and conditions (which are summarised):

(i) The Defendant’s right to charge administration costs if any cheque, standing order or direct debit cannot be paid because of lack of cleared funds in the account - £30 per item (previously £27.50).

(ii) The Defendant’s right to charge administrative costs if the defendant was compelled to pay any items which caused the account to be overdrawn - £30 per item (previously £27.50).

(iii) The Defendant’s right to charge unauthorised overdraft fees - £3 per day.

(iv) The Defendant’s entitlement to refuse any debit transaction or debit card transaction where there were insufficient cleared funds in the account and to debit from the Claimants account any charges, interest or other money which became payable by the Claimant to the Defendant in relation to the account.

(v) The Defendant’s entitlement, if the Claimant went overdrawn without an overdraft limit or exceeded his overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

(vi) The Defendant’s entitlement, if a cheque or other item paid to the account was returned unpaid, to debit the account with the amount of that item together with any interest paid by the Defendant on it.

 

5. 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 his authorised overdraft limit).

 

6. 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 damages clause, the same is denied. Paragraph 3 above is repeated.

 

7. Paragraph 3 is not admitted and the Claimant is required to prove the charges referred to in the attached schedule.

 

8. For the reasons set out above and in the premises, Paragraph 4 is denied in its entirety. 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 that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations, or are in breach of the Unfair Contract Terms Act 1977. It is further denied that any such charges unduly enrich the Defendant.

 

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

 

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

 

11. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant is entitled to debit the same.

 

12. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant in Paragraph 5 or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that any charges asserted by the Claimant to have been applied to the account prior to 5 July 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from that date of the accrual, pursuant to the Limitation Act 1980.

 

Barclays Bank PLC

 

STATEMENT OF TRUTH

 

I believe that the facts stated above are true. I am duly authorised by Barclays Bank PLC to sign this statement on its behalf

 

 

 

 

Keith Jeremiah

Legal Executive

Barclays Bank PLC

4th August 2006

 

 

I don't think there is anything in there to worry about - the same seive like defence that has been wheeled out on many previous Barclays cases. It is such a pity that I will probably not have the opportunity to argue my case against them in Court, as I am convinced that they will not allow the case to get to that stage

[moonie]

Hi essjaysea

 

Popped in to have a look at your claim and now I can see that we have received almost identical defences, probably drafted on the same day.

 

I particularly like sections 6 & 10 which kindly point out it's our own failure for going overdrawn for not arranging suitable overdraft facilities with them, and absolutely nothing to do with their charges whatsoever.

[essjaysea]

Received the Allocation Questionnaire on Friday. Completed it and returned to the court same day, recorded delivery. I will post the details tomorrow from my office computer

[essjaysea]

Sent the Allocation Questionnaire back to the Court on 11th August, (Recorded Delivery). Most of the form is a "Yes/No" tick box format

 

A: Settlement

Do you wish any further action in this claim to be postponed for one month so that you and the other party can attempt to settle the claim either by informal discussion or by alternative dispute resolution?

Answer: NO

 

B: Location of Hearing

The claim will be heard in the court to which this form must be returned. Is there any reason why it should be transferred to another court to be heard?

Answer: NO

 

C: Track

Do you agree that the small claims track is the most suitable track for this claim?

Answer: YES

 

D: Witnesses

So far as you know at this, how many witnesses (other than yourself) do you intend to call to give evidence at the hearing?

Answer: 0

 

E: Experts

Do you want permission to use an expert's report at the hearing?

Answer: No

 

F: Hearing

 

Are there any days within the next four months when you, an expert or a witness will not be able to attend court for the hearing?

Answer: Yes (I have a prior holiday commitment, and noted the dates on the form)

 

G: Other Information:

 

The fundamental issue in this case is simply whether the charges imposed and deducted by the Defendant in respect of the Claimant’s contractual breaches, exceed their actual costs incurred. In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915]the court held that charges for contractual breaches must be a genuine pre-estimate of actual or liquidated loss incurred as a result of a breach of contract.

 

Additionally, the charges represent an unfair term of the contract, which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999(SI.1999/2083). As a consumer, the Claimant’s account falls within the ambit of Regulation 5 under the regulations and the charges constitute an unfair penalty Para 1 (e) of Schedule 2:

Under the heading of “Indicative and non exhaustive list of terms which may be regarded as unfair” - 1. Terms which have the object or the effect of – (e) Requiring any consumer who fails to fulfil his obligation to pay a disproportionate high sum in compensation

 

However, the continuing problem is, (in common with the 100s of similar cases currently being brought by other bank customers), that the Defendant refuses to disclose the details of the actual costs incurred by them as a result of the contractual breaches.

 

Accordingly, I request that the court, notwithstanding allocation to the small claims track, order standard disclosure. I understand that the court has the discretion to order standard disclosure. I believe this would bring a rapid end to this litigation

 

H: Fee

Have you attached the fee for filing this allocation questionnaire?

Answer: No (Claim is less than £1500)

 

Obviously my answers are applicable to my own circumstances, but generally I think that most of the claims would fall into the same category as my own in terms of completing the form

[Guest Mumofthreeboys]

Are you sure about H???

[essjaysea]

I hope so !!!

 

County Court Fees

 

I did check this out prior to submission of the AQ, and I am sure I have read similar stuff re the fees payable on other threads

[Guest Mumofthreeboys]

I hope so !!!

 

County Court Fees

 

I did check this out prior to submission of the AQ, and I am sure I have read similar stuff re the fees payable on other threads

 

Is that not just for counter claims???

 

I thought you would have paid £80 at least!!

[essjaysea]

I think that the section headed "counterclaims", refers to the section above iro fees payable when a counterclaim is filed. The next section "Preparing for Trial" refers to the fees payable when the AQ is filed.

 

I have also checked in the "Small Claims Procedure: A Practical Guide", which states that "an allocation fee of £80 is levied on claims of over £1000 in value and is payable when the allocation questionnaire is returned". I note that this edition was printed in 2001, and that the fees have now increased to £100, but the threshold has increased to £1500, wef 10/01/06.

 

If anyone else has a definitive view, please advise. Many thanks