Court Case Today - **WON IN COURT POST OFT**

[barney.bradshaw]

Hi,

I would appreciate some advice please as I'm not sure what to do.

Our court date has been set for 17th August and our claim is for £3821.00. When we started court proceedings, in the particulars of the claim I put we were claiming charges for the period 6th March 2001 - 25th April 2007.

Now, I've just realised that the 6 years would actually be from 25th April 2001 as 25th April 2007 is the date I filed the claim, so the amount I should be claiming is £3642.81. The defendant has also mentioned this in their defence.

I have to send a schedule of charges etc and a statement of evidence to the court and the defendant, so should I revise the original schedule with the new amounts and dates or is there something else I should be doing?

Any advice would be much appreciated.

Thanks.

[Steward]

You can use Google to search the web using these links below:-

[welshcakes]

Hi barney

When did you make you initial Preliminary Request for the charges to be refunded as this is determines when the 6 years kicks in (though you will find there is a growing argument that the statute of limitations may not actually apply).

Can you post a bullet point diary of steps to date eg 1) Sent SAR Jan 4th 2007 2) Received List of transactions Jan 20th 2007 etc etc

Also, which Court are you going to 17th August and what if any instructions have you received from the court?

In addition (!), it's useful if you could post the 1st 3 points of Defence from Barclays - a lot of typing I know but it will help people assess whether or not yours is a standard Defence. If it's not one of the 1st 3, also post the Defence point that refers to the claim period covered.

[Trucker]

Hi barney

When did you make you initial Preliminary Request for the charges to be refunded as this is determines when the 6 years kicks in (though you will find there is a growing argument that the statute of limitations may not actually apply).

Can you post a bullet point diary of steps to date eg 1) Sent S.A.R - (Subject access request) Jan 4th 2007 2) Received List of transactions Jan 20th 2007 etc etc

The 6 year limit is from the date file at court.

[barney.bradshaw]

Hi

Thanks for your reply. Sorry for the delay, I'm not the fastest typer.

Ok,

11.01.07 - Letter requesting statements sent
15.01.07 - Reply from Barclays, cheque returned
05.02.07 - Statements received
12.02.07 - 1st request for charges letter sent
24.02.07 - Reply from barclays saying looking into it etc
05.03.07 - 2nd request for charges
11.03.07 - Reply from Barclays and offer of £1000
10.04.07 - Letter declining offer sent
25.04.07 - Filed claim online
09.05.07 - Barclays acknowledged claim
06.06.07 - Received 'Notice of Transfer of Proceedings'
26.06.07 - Received 'General Form of Judgement or Order'

The hearing is at Derby county court. The directions I have are:

1) The claimant shall within 21 days of service of this order send to the defendant and to the court:

a) A schedule setting out each charge repayment of which is sought, showing the account number, date, amount, and reason (if any) for that charge being made;

b) A statement of evidence, if such is to be relied upon, in support of the claim together with copy statements or other relevant documents.

2) The defendant shall within 21 days thereafter file and serve a witness statement in response to the claimants schedule, stating in respect of each item claimed:

a) Pursuant to what contractual provision such charge was made , producing a copy of the contractual document relied upon;

b) Wheter such charge is accepted to be a penalty and if not why not;

c) If such charge is alleged to be a pre-estimate of the defendants loss incurred by the claimants actions (whether or not such action is to be treated as a breach of the contract between the parties), all facts and matters intended to be relied upon as showing that such is a proper estimate of such loss and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

My original particulars of claim were:

The Claimant has an account with the Defendant. Since 06/03/01 the Defendant debited charges and interest in respect of purported breaches of contract. The Defendant is aware of all details as a list of charges has already been supplied. The Claimant contends: The charges exceed the Defendant's losses caused by the breaches; The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. The Claimant claims return of the amounts debited of £2960.00. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 06/03/01 to 24/04/07 of £741.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.021%. Costs allowed by the Court.

Barclays defence:

1. The particulars of claim do not provide details or particulars of the account in question and/or the precise charges alleged to have been unlawful, or the date thereof. To the extent it is alleged that the claimant incurred bank charges on the claimants account for unauthorised borrowing (wheter unpaid fees for returned cheques, paid referral fees or any other such fees), the defendant puts the claimant to strict proof of each charge anf 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 ammend 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):

a) The defendants right to charge a paid referral fee where the defendant pays a amount (either by compulsion or election) which causes an account to become overdrawn - £30 per item (previously £25).

b) The defendants right to charge an administrative fee if any cheque , standing order or direct debit cannot be paid - £35 per item (previously £30).

c) The defendants entitlement, if the claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

4. The defendants standard terms and conditions give the claimant a fair and transparent view of those terms and the charges applicable for unautorised borrowing .

5. If and to the extent it is the claimants case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits and/or failure to arrange an overdraft constitutesd a breach of the terms applying to the account and that the contractual entitlement to debit charges from the claimants 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.

6. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevent or applicable to facts set out above. Further ot 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, or are in breach of the unfair (contarcts) terms act 1977.

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

8. 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 and/or the failure to make payments to bring the account back into credit.

9. It is averred that the said charhes and interst are and remain lawful and enforceable and that the defedant was entitled to debit the same.

10. The defendant denies that it is liable to the claimant for the sums 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 applied to the account prior to 25th April 2001 are not recoverable because they were time-barred under the trems of the Limitation Act 1980 in that more than 6 years have elapsed since the accrual of the cause of action.

11. In the alternative, and without prejudice to 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 contarct 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 overfdraft. 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.


So any help and advice you could give me on what I should be doing now to prepare for the hearing would be very greatfully received.

Thanks in advance.

[saintly_1]

Ok you need to send them a schedule of charges
statement of evidence post #34 here http://www.consumeractiongroup.co.uk...success-2.html amend to suit

[barney.bradshaw]

Thanks, I shall have a read of that now.

[barney.bradshaw]

Ok, I am now putting together my court bundle but am still unsure about the schedule of charges. My first 5 charges I have claimed for are more than 6 years old (which Barclays picked up on), so do I leave those off the SOC that I am now going to send to the court and to Barclays?

Something else I'm not clear on, I understand I can claim interest on each charge up to the date of judgement or settlement. So should I be working out the interest for each day that goes by? So this means that come the court day the actual amount I will be claiming for will be different to the amount on the claim form - is that right?

Again your help would be much appreciated.

[saintly_1]

Dont worry about the fact that a few are outside the 6 yrs if its needed then the statutes of limitations part 32 (b) can be used to argue for the inclusion of them these can be found in the statutes library http://www.consumeractiongroup.co.uk...tutes-library/

[saintly_1]

Yes the amount will be different than the original amount ...... however it was stated on your claim that interest would increase daily

[barney.bradshaw]

Current stage:

Court Date: 17th August (Derby). Bundle sent to court and to Barclays a couple of weeks ago.

This morning I received a letter from the court which said I had to pay an allocation fee of £100 within 7days.

I've heard of an allocation questionnaire but I've not had one just this notice to pay £100.

Is that right?

[welshcakes]

Hi Barney

This isn't uncommon, even where the court dispenses with the aq, the fee apparently pays for the adminsitrative cost of considering the claim and allocating it, even though the parties have not been consulted in the decision process.

If you don't pay it, your claim will get Struck Out. This fee, as all court fees, will be added to your claim amount and is therefore recoverable in the event you win.

Court Fees - do you have to pay them?

[barney.bradshaw]

Thanks for that welshcakes, I shall get it paid.

[barney.bradshaw]

Our court case was this afternoon at Derby county court and we won.

The judge found in our favour after Barclays failed to submit their defence.

The solicitor representing Barclays assured us before we went in that she would get a stay and the fact they hadn't submitted a bundle didn't matter.

Her face was a picture when the Judge asked her where her application for a stay was, she said "I'm asking for it now" and the Judge said "well you're not having it".

She then went on to say that we hadn't complied with the directions either by submitting our bundle past the deadline. Of course I was able to provide the judge with evidence that I had submitted our bundle to them way before the deadline. Nice try Barclays!

So she then had no choice but to admit defeat.

The judge awarded us our full claim amount (£4000) plus extras for travel expenses and a day's wages to be paid within 21 days.

So at the end of the day I think it all depends on the Judge you get. Whilst some are issuing the stays others like mine are not allowing them to get away with abusing the system.

Thank you to everyone who has contributed to this site because without the wealth of information and advice I couldn't have done it.

Now I just need to get Barclays to pay up.

[tonycee]

[doefar]

well done michael. makes us feel alot better. we are there on tuesday hope its the same judge

[barney.bradshaw]

Thanks for that tonycee.

I still can't quite believe it and I feel so much for those that haven't had the outcome they'd expected.

doefar - which Judge have you got?

[saintly_1]

Congratulations

[slick132]

BarneyB,

What a great result and well done to you - expenses on top. RESULT!

Congratulations, Slick

[rory32]

Fantastic news...well done

[barney.bradshaw]

Many thanks for the congratulations guys