Candels v Barclays

[slick132]

Was gonna say take your AQ and Draft Directions and be ready to pay AQ fee but think this is not nec'y just now. Perhaps jumping the gun.

 

No, just be clear about how and what went wrong, and what you've done to put it right.

 

As said above, it should just be a formality. Which is why I wonder if you're needed at the hearing anyway.

 

Did you ask the court if your attendance is expected or required.

 

Slick

[candels]

hi therei have to attend as its to see if judge will re-instate my case. i have already paid for the AQ and also another £35 for the N244 form. Apparently i have to convince the court to let the cliam go a head. i just dont know what to expect and also what to say to the judge to convince him or her. Im not very good at putting my point a cross and how to word things properly. this is what i need help with. Im going to make sure i have everything ready just in case and take it with me. im just getting really scared now.

[slick132]

Hi Candels,

 

I've nothing to add to my post #26 above. You know what was needed by Court and you have supplied the new POC to them - I don't think you have a need to convince the judge of anything.

 

When did you file AQ and did you use CAG Draft Directions - I didn't see about AQ when reading through yesterday.

 

Slick

[candels]

hi there i filed the AQ end of august, and it got struck out, So that is when i sent the N244 form with new pocs and te fee i never sent the draft directions (should i have sent this) as i was just advised to send the pocs and soc's with fee. Im trying to get eveything printed out now all ready for the 14 th nov. what shall i take?

[slick132]

Sorry Candels,

 

You referred to AQ in your 1st post and I missed it!

 

Looks like judge rejected your claim when he considered AQ's.

 

It doesn't matter that you didn't include Draft Directions with your AQ - just means judge will issue his own.

 

Take the Draft Directions with you to Court and ask judge to consider making such Directions.

 

If case is put on stay (which is the most likely outcome of the hearing), these directions will put you in a good position when stay is lifted. Read here and take 3 copies of doc'ts to court to try and avoid Stay - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html#post1046820

 

Slick

[candels]

hi there, im trying to get as organised as possible, even printing the cort bundle even though i havnt got to te hearing stage yet, but as you have read i have a date on the 14th nov 07 to see if my claim will go a head, and im trying to find a link for the

Early Day motion from the House of Parliament

 

and

OFT Summary

 

can any body help me with this?

Im also printing all the info from the last post and will take this to court with me, but do you think i should send any info to the court before hand and ask them to keep it in my file? ie directions, application to lift order of stay (if this does happen) ect.

any advise would be great

[candels]

 

district judge Duerden sitting at tenters street bury lancs considerd the papers in the case and orderd that

1) the claim be struck out as disclosing no resonable grounds for bringing the claim

2) beacuse this order has been made by the court without considering representaions from the parties, the parties have the right to apply to have the order set aside , varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive within seven days of service of this court

 

Also going back to this, can you think of anything i should take with me on the 14 nov to court to cover this

 

many thanks

[slick132]

Hi Candels,

 

Open this file and you'll find the CAG zipped Bundle - http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=296&d=1174895919

 

There are links to both the OFT summary and the Early Day Motion. Use Control button and Left Click to access each one.

 

Slick

[saintly_1]

http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf theres the oft report the link i have to the early day motion isnt working now

[candels]

thanks guys for that, the link isnt working in the cag court bundle, so i still need the Early Day motion from the House of Parliament docs, any idea where i can get that from?and do you think i should send some docs to court before the 14th, as per thread Quote:Originally Posted by candels district judge Duerden sitting at tenters street bury lancs considerd the papers in the case and orderd that1) the claim be struck out as disclosing no resonable grounds for bringing the claim2) beacuse this order has been made by the court without considering representaions from the parties, the parties have the right to apply to have the order set aside , varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive within seven days of service of this court Also going back to this, can you think of anything i should take with me on the 14 nov to court to cover thismany thanks

[slick132]

Hi Candels,

 

You don't need your bundle yet so don't worry about the EDM. You can print that when the link is fixed.

 

Don't send your bundle in early - there may be items you need to include and rely on after OFT case is sorted. If you do bundle now, you may limit the evidence you can rely on.

 

Otherwise, just focus on getting your case back on track with the new POC's , SOC's and Draft Directions

[candels]

thankyou so much slick132 i will just wait till 14 nov then when im in court hopefuly they will let the claim carry on. i have the new barclays poc's my soc's and draft directions all ready and printed.Should i just take all these with me to court and nothing else then, or could i send them an updated soc's and directions and also a witness statement submitted for allocation hearing.i was going to take al these docs with me any way, but i thought if i send them these docs to hold in my file before hand it would look better and show im prepared.after my last problem i just want to be as organised as poss and have all relevant docs for the court ect, i think im just flapping a bitthanks again

[slick132]

If they've not asked for any doc'ts to be submitted before hearing, take them in with you. I think the SOC's Draft Directions and new POC's should suffice.

 

Take 3 copies of everything so you can give to judge and to bank rep if they attend.

 

Stop flapping - there's another 3 weeks to go yet - knitting, model aeroplane, maybe.

 

Seriously though, time spent reading round here will serve you well.

[candels]

lol ok ill stop flapping, thanks again i dont know what i would do without you if i get my moey back ill be defenetly be making a donation. thankyou thankyou thankyou

[candels]

hi there, ive got a really thick question and really need help, im trying to do my statements of evidence and wanted to use this for below, but im really confused which parts i can use and what to just delete, its the part about when it says In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff actually told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.- Additionally, I asked the Defendant to provide me 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. - The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.any help would be great, ive copied the full statement of evidence just now....Quote:STATEMENT OF EVIDENCE- The claimant submits that the charges levied to his bank account, as set out in the enclosed schedule, are, notwithstanding the defence of the defendant, default penalty charges imposed because of 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.- It is admitted that the Defendants charges were levied in accordance with the terms and conditions of the account in question. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly and extravagantly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.- The breaches of contract in this case relate to exceeding overdraft limits, and having insufficient funds available to pay a direct debit or a standing order. Add an example of a charge incurred due to going over by a small amount, for example -On one occasion in June 2006, a direct debit payment was returned due to insufficient funds in my account. The shortfall was only one pound and nineteen pence.I was then penalised for this breach by way of a charge of £**. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.- The law states that a contractual party cannot profit from a breach and 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. This means that Liquidated damages should be charged. This is backed up by case law – Robinson Vs Harman 1848.- It is settled law that the charge for loss or damage arising from a breach of contract must be proportionate to the loss incurred.- Lord Dunedin stated in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co 1915 -“the sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach” and;“The essence of a penalty is a payment of money stipulated as in terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”- 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;- It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. - In order to ascertain whether the Defendant’s charges are an unenforceable penalty or are liquidated damages, the true costs incurred by the Defendant need to be thoroughly examined to establish whether or not the banks charge represents a genuine pre-estimate of its likely loss incurred by my contractual breaches.- 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. - 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 banks’ 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 return charges were likely to be penalties at law.- Further, in an American study (Consumer Federation of America “Bounced Cheques: Billion Dollar profits II”) it was estimated that the American banks’ cost to process a returned direct debit payment was between US$0.48 and US$0.65. - The Defendant, or indeed any of the UK banks, 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.- 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.- It is submitted that the Defendants charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur costs of £** by carrying out a completely automated and computer driven process. This process consists of a computer system ‘bouncing’ the direct debit, and sending out a computer generated letter. Note that the letter received notifying of a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance. - In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff actually told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.- Additionally, I asked the Defendant to provide me 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. - The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.- The claimant cites 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 UTCCR’s.- 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 discribed such default charges as "exorbitant" and "excessive".- 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.- The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract. - The cost of Lloyds charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage. - As pleaded above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties. The Claimant will vehemently refute any contention that they are legitimate contractual service charges which are as such not required to be a pre-estimate of loss incurred on the part of the Defendent. The Claiment believes any such contention to be an attempt by the Defendent to 'cloak' its penalties, in order that it circumvent the statutory and common law provisions which prohibit contractual penalty charges with view to profit.- The Claimant refers to the statement from the Office of Fair Trading (April 2006). 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”.- However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.- As set out above, the Defendant’s charges cannot be considered to be liquidated damages, nor contractual service charges. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive, and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.I, the Claimant, believe all facts stated to be true.Signed, dated.Documents attached in support of this statementOffice of Fair Trading report, April 2006House of commons early day motion, May 2006Automated charge notification letter/s. Include a couple of examples. Preferably use ones where charges have been incurred over ridiculously small shortfalls and if possible, include 2 letters notifying of charges incurred on the same dayBBC commission conclusion - BBC NEWS | Business | The Money Programme bank commissionAustralian Default charges report, Nicole Rich - Domain Names, Web Hosting, Web Design, Search Engine Optimisation, and Search Engine Marketing at Melbourne IT .pdfTranscript of telephone communication with Lloyds TSB 'personal banking' department.Data Protection Act Subject Access Request for evidence of manual interventionTranscript of radio interview with Peter McNamara, former head of personal banking, Lloyds TSB.All pre-litigation correspondance between the parties

[saintly_1]

Hi candels the best statement of evidence for B's is this one

http://www.consumeractiongroup.co.uk/forum/barclays-bcard-woolwich-successes/36692-peter-rabbit-barclays-success-2.html#post492578

[candels]

hi saitly 1. thanks for the replythat is the one i was going to use, but a bit confused of what i could use in it, as the blue writting i know i need to put my own words but not sure how true it would be in my case. sorry i just dont want to mess this up.

[saintly_1]

If something dosent apply to your case then you omit that section ...... the statement must be adapted to suit each individual case

 

 

Hope that helps

[slick132]

Hi Candels,

 

The idea is that you should use the examples cited in various places for the Statement of Evidence and ADAPT it as best you can to reflect the circumstances of your own case.

[candels]

thank you very much i will try my best to adapt where possible.

[slick132]

Oops,

 

Didn't see this page of the thread - hence the late and unnecessary advice - still, marks are due for consistency !

 

Slick

[candels]

hi there sorry to be a hugh pain in the bum yet again, its just that im a bit stuck with the statement of evidece

Peter Rabbit V Barclays**success**

what kind of things should i be adding relevent to my case?

is it things like how much i was charged by going over £1 over my overdraft ect.....

 

i just have no idea what to keep and delete in the org template and what to add in of my own experiances. Evrything else im fine with its just this statement of evidence.

 

can someone give me a little hint, or even better do it for me lol

 

sorry again , i promise everything else im fine with,

[slick132]

Hi Candels,

 

The PR example is often quoted as a good one to use.

 

Just edit out items personal to that case and replace with any similar items which relate to your experiences with the bank.

 

If no such replacements come to mind, leave them out leaving a slightly smaller SoE to go with your bundle.

[candels]

ok tanks for the speedy reply, i think ive got it now, there is a section in about lloyds TSB see below, Should i delete all of this section as it doesnt apply to me.??????- In a telephone conversation with the personal banking department of Lloyds TSB on May 24th 2006, a member of staff actually told me directly that the charges were imposed automatically. A transcript of this conversation is provided. I made a Data Protection Act 1998 right of subject access request to the Defendant for a recording of this conversation. Unfortunately it “could not be located”.- Additionally, I asked the Defendant to provide me 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. - The claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states the charges are used to fund free banking for all personal customers as a whole.thanks again i really dont know what i would do without you

[saintly_1]

That is an example that gary put to show what can be put and to be replaced with claimants own .... if you havent got them then leave them out