Barclaycard courtclaim re:Charges +6yrs -***WON*** Compound Int't and **NO SET-OFF**

[slick132]

Hi Shelley,

 

Ims is right - you should take all thime you need to prepare everything thoroughly.

 

POC for BC are in the Stickies at top of BC forum - you have to follow a few links to get to the BC example.

 

Guide for completion of Form N1 is in the Library - Bank Charges Templates (Consumer). Remember you are suing Barclays Bank PLC t/a Barclaycard at the London HQ.

 

As I said in post #43 above, use that link to see examples of BC **WON** cases.

 

Your spready should be updated for the day you file your N1. The examples should show how you can then seek simple Statutory Interest at the same contractual Rate that you use on the spready, 29.9%

 

The daily rate will be 29.9%/365 or 0.299/365 = 0.000819 x total claimed for chgs + int't

 

So, if your total claim for chgs and int't was £1,750, daily s.69 Stat'y Int't = £1.43 per day.

[Shelley181146]

Hi Shelley,

 

Ims is right - you should take all thime you need to prepare everything thoroughly. I have been researching this topic for some weeks now, I am probably guilty of information overload but will post my POC before submitting for comments.

POC for BC are in the Stickies at top of BC forum - you have to follow a few links to get to the BC example. I downloaded these awhile ago and have filled in some gaps just need to tweak.

 

Guide for completion of Form N1 is in the Library - Bank Charges Templates (Consumer). Remember you are suing Barclays Bank PLC t/a Barclaycard at the London HQ. Noted, thank you.

As I said in post #43 above, use that link to see examples of BC **WON** cases.

 

Your spready should be updated for the day you file your N1. The examples should show how you can then seek simple Statutory Interest at the same contractual Rate that you use on the spready, 29.9%

 

The daily rate will be 29.9%/365 or 0.299/365 = 0.000819 x total claimed for chgs + int't

 

So, if your total claim for chgs and int't was £1,750, daily s.69 Stat'y Int't = £1.43 per day.

Am I correct then if claim was £1397.94 = £1.14 per day?

 

Thanks Slick/ims, I would always follow advice given on here and will be so happy when I can donate when settlement received.

 

Shelley

[Shelley181146]

Just to clarify, will I need to enclose a copy of T&C's in my Poc or only in the bundle, I suspect the latter?

 

I have just been going over the original agreement T&C's with a magnifying glass and at no point does it mention the charges they will impose if late/over limit etc., has anyone else found this to be the case? I am going back 10 years.

 

Shelley

Edited July 20, 2011 by Shelley181146

[slick132]

Hi Shelley,

 

Daily Interest figure is correct.

 

T&C's only needed for court bundle. There is certain to be mention of default charges somewhere on the T&C's.

 

[Shelley181146]

Thanks Slick,

 

I am presuming there must have been further documents then because I have gone through the CCA with a fine tooth comb and there is no mention of the charges.

 

I am going back to 2001 though so would that make a difference?

 

I don't have anything else and I know I won't get anything from B/card if I did send CCA request so I won't have the T&C's to include in the bundle. How will I stand without them?

 

Shelley

[slick132]

That's something you can work on. But if you have T&C's from when the a/c was opened, that'll do just fine.

 

Get the N1 sorted for now.

 

[Shelley181146]

That's something you can work on. But if you have T&C's from when the a/c was opened, that'll do just fine.

 

Get the N1 sorted for now.

 

 

Almost done - hope to post tomorrow for your feedback. Thanks again.

[andydd]

Hi there. I successfully used S32 in a court claim, it was regarding ground rent payable on a leasehold property, I had been charged £75 per year but later investigation proved it should of been £30, when I asked the defendant about this, they sent a document alleging the amount was changed by a deed but this document proved to be false/fraudulant.The wording of S32 is "fraud, concealment or mistake", it my defendants defence they acknowledged a 'mistake' so I didnt have to argue the point but I was prepared that either a concealment of the facts had taken place or even fraud.The end result was I claimed back £45 for 14 years plus 8% interest which came to a nice sum :)Andy

[Shelley181146]

Surprise, No!!!

 

I have today received a loetter from B/C.

 

"I write further to my letter of xx/xx/2011.

 

I am sorry that so far we have been unable to resolve your complaint to your satisfaction.

 

Thank you for your patience whilst our investigations continue. As we investigate your concerns you will be kept fully advised of developments and we will contact you again by xx/xx/2011."

 

Am I obliged to let them drag this out as long as they choose or can I continue with my timetable following my lba which expired today?

 

They could go on delaying this til Christmas or beyond.............argh!!!

 

What do you advise I do guys?

 

Shelley

[Shelley181146]

Bump - Pretty please

[slick132]

Hi Shelley,

 

Follow your own timescale.

 

The LBA deadline has expired so you should now file your Form N1 at your local County Court.

[Shelley181146]

This is my intended POC but would someone please explain/clarify the paragraphs in red before I submit it to the courts? I would prefer to fully understand what I am claiming, naturally. I would appreciate your views.

 

New POC Barclaycard (N1)

Claim No [ ]

 

IN THE [ENTER YOUR LOCAL] county court

 

 

 

BETWEEN

 

[YOUR FULL NAME]

Claimant

 

and

 

 

-Barclays Bank PLC t/a Barclaycard

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6.The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were not advised.

Penalty

 

9. The Charges were payable on breach of contract by the Claimant.

 

10.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

12.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15.Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17.The Defendant wrongly applied Charges to the Account totaling some £[xxxx] between [ xx/xx/xxxx] and [xx/xx/xxxx ]. Particulars appear from Schedule 2.

 

18. On [ date of your preliminary letter ] the Claimant demanded repayment of the sums wrongly applied.

 

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.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[xxx.xx ], and at the daily rate of [ xx ] until judgment or sooner payment.

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

Dated

 

 

 

Signed

 

 

 

 

 

 

Schedule 1

 

 

 

From the Terms and conditions currently enforce (as of Sept 2007).

 

2.5 You must keep within your credit limit. When working out whether you have gone over your credit limit, we can include the amount of any authorised transaction not yet put on the account.

 

3.1 You must make all payments by the payment due date. To help you to do this, your monthly statement will tell you how to make payments to reach us on time. Where we become aware that your monthly payment was received before the payment due date but credited to your account after this date because of an error by us we will either refund or not charge a late payment fee.

 

 

From Key Financial Information (Sept 2007)

 

Amount of credit

 

We will tell you your credit limit when you first receive your Barclaycard. We may

change your credit limit depending on our assessment of your account and will tell you

about these changes by writing to you.

 

Monthly Payments

You must make the minimum payment every month of 2.25% of the amount you owe

us on your monthly statement or £5, whichever is more or the entire amount if less

than £5. You must pay the minimum payment by the due date shown on your

statement. This will normally be 25 days after your statement date.

 

Default Charges

 

We will charge you for any reasonable costs or losses we incur if you break this

agreement, including the following charges:

£12 if you do not make at least your minimum payment by the payment due date;

£12 if you exceed your credit limit at any time;

£12 if a direct debit , cheque or other item is not paid when first presented.

 

 

My agreement was in 2001 and the wording will be greatly different to this.

 

Schedule 2

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

[slick132]

Hi Shelley,

 

At 8 (d), you should confirm what the default charge amounts were

 

At 19.2, it should read differently because you're claiming interest in restitution and not repayment of the interest applied by the Defendant on the charges.

 

Also, 19.3 should show you are claiming s.69 interest at 29.9% on the total claimed until judgement or sooner payment.

 

19 (2) Payment of the said sum of £[xxxx.xx ] and interest in restitution of [£xx.xx].

 

19 (3) Interest under Section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed [daily rate of £1.14] until judgment or sooner payment.

[slick132]

You should also mention at 19 (2) that you claim interest in restitution as per the case of Sempra Metals v Inland Revenue Commissioners.

 

Also, the POC should mention that you are claiming repayment of charges older than the normal 6 years by virtue of s32 (1)c Limitation Act 1980 as per the case of Kleinwort Benson v Lincoln City Council.

 

[Shelley181146]

That's brilliant Slick, thank you loads for that. I will make the amendments now.

Where it mentions that charges are currently £12 etc and were £xx in 2001, I only have the original CCA and there is NO mention of such charges so should I remove that paragraph altogether?

 

Shelley

[Shelley181146]

Hi Shelley,

 

At 8 (d), you should confirm what the default charge amounts were (Do you mean the amounts from the statements? because there was nothing in the original agreement, honest)

 

At 19.2, it should read differently because you're claiming interest in restitution and not repayment of the interest applied by the Defendant on the charges.

 

Also, 19.3 should show you are claiming s.69 interest at 29.9% on the total claimed until judgement or sooner payment.

 

19 (2) Payment of the said sum of £[xxxx.xx ] and interest in restitution of [£xx.xx].

 

19 (3) Interest under Section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed [daily rate of £1.14] until judgment or sooner payment.

 

I am not sure how to complete part 6 (a&b)

14 (4&5)

15 (3)

16

and finally, Schedule 1.

 

I would appreciate advice on how to word these bits. I don't fully understand the wording and what it refers to.

 

Not having done legal stuff before, I would prefer to understand something I intend to submit to court as I'm sure they'll expect me to explain it if questioned.

 

Would appreciate guidance on these areas please.

 

Shelley

 

Cheers, Shelley

Edited July 22, 2011 by Shelley181146

[slick132]

Hi Shelley,

 

The charge amounts you are reclaiming as per your SoC should be mentioned at 8(d) whether or not you have T&C's showing those amounts.

 

As regards the items you've put in red in post #62, the POC's have been worded so you can pretty much copy most of it. You've got the figures sorted for charges and, hopefully, for interest as well.

 

Include mention of the Sempra and the Kleinwort Benson cases as I've suggested.

 

Beyond that, you'll have to research and read around to clarify any points that you're still unclear about.

 

What you should also do, at this stage, is read up about the AQ and Draft Directions - these are in the Bank Templates Library (Consumer).

 

Then get together the stuff you need for your court bundle. There's no saying if BC will settle before your bundles need to be filed and served so you need to work on the assumption that they will be needed.

 

[Shelley181146]

Hi Slick,

 

Thanks for getting back to me.

 

I understand what your advising and I have mentioned the cases suggested together with the interest rates etc. However, I respect that I can copy/paste the POC but I need to understand what it is I am relying on if I go to court. I will be doing more research over the w/end but in principle, I am ready to submit N1 docs on Monday.

 

I didn't get to bed until 6am today so I am falling asleep but will be back on again later in the wee small hours to do my homework.

 

If we are exempt from the court fees due to circumstances will that mean we are also exempt from the AQ fee of £35?

 

Am I allowed to claim for 'other' costs at this stage? ie postage, correspondence, stationary etc

 

Thanks again for your assistance.

 

Shelley

[slick132]

Hi Shelley,

 

Yes, I understand exactly what you're saying and you're absolutely right about understanding what you're doing and not just copying everything. I hope you can get a better understanding of it all when you are preparing your court bundle.

 

If you qualify for remission of court fees, you'll also be exempt from the AQ fee.

 

As regards claiming for stationery costs, etc, read here about a Wasted Costs Order - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/85726-wasted-costs-order.html

 

[Shelley181146]

Here is my suggested Poc.

 

New POC Barclaycard (N1)

Claim No [ ]

 

IN THE [xxxxx] county court

 

 

 

BETWEEN

 

[Mr xxxx xxxx]

Claimant

 

and

 

 

-Barclays Bank PLC t/a Barclaycard

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxxx xxxx xxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

11.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

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

 

And the Claimant claims;

 

(1) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £xxxx.xx as per Sempra Metals v Inland Revenue Commissioners.

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed (daily rate of £x.xx) until judgment or sooner payment.

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

Dated

 

 

 

Signed

 

Schedule 1

From Barclaycard Conditions in force (as of Dec xxxx).

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a) 3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b) If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance.

The minimum payment must be received by us and paid into your account on or before the payment date.

 

 

Schedule 2

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

Have I covered everything?

Shelley

[Shelley181146]

Forgot to mention that I received another letter from them today. They said they were disappointed not to have received my reply and that I have eight weeks to respond. They were asking for address verification which had been sent to them, and signed for earlier in July.

 

I couldn't resist the temptation to call them - yes, I recorded the call and advised them as such!

 

I'm not going to say too much on here but I put my point across in a very authoritative way and explained that the N1 claim was being submitted into court today (ok, it will be Monday) and that I had proof they have received all my correspondence and felt they were deliberately delaying the process.

 

Time will tell if they now pick up the thread to deal with it but I won't hold my breath.

 

Shelley

[Shelley181146]

Here is my suggested Poc.

 

New POC Barclaycard (N1)

Claim No [ ]

 

IN THE [xxxxx] county court

 

 

 

BETWEEN

 

[Mr xxxx xxxx]

Claimant

 

and

 

 

-Barclays Bank PLC t/a Barclaycard

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxxx xxxx xxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

11.At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

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

 

And the Claimant claims;

 

 

(1) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £xxxx.xx as per Sempra Metals v Inland Revenue Commissioners.

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed (daily rate of £x.xx) until judgment or sooner payment.

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

Dated

 

 

 

Signed

 

 

 

Schedule 1

 

From Barclaycard Conditions in force (as of Dec xxxx).

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a)3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b)If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance.

The minimum payment must be received by us and paid into your account on or before the payment date.

 

 

 

 

Schedule 2

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

Have I covered everything?

Shelley

 

Would someone kindly take a look at my POC and advise if I have missed anything? I have researched this for many hours and think I now have 'information overload'.

 

Appreciate any feedback.

 

Shelley

[slick132]

Hi Shelley,

 

The POC's look ok to me although I've not been through it all with a fine-toothed comb. Just the bits that we've been discussing.

 

[Shelley181146]

Hi Slick,

 

Thank you for verifying that for me.

 

I have been reading threads on here for hours this morning to look for clarification on the interest claimable.

 

Am I correct in thinking that as I am claiming interest in restitution at £x.xx per day that I am not able to claim the stautory interest on top? Or am I?

 

I can only find contradictory threads. Some have claimed it and some haven't - Confused now!

 

In the brief details of claim (page 1 of N1 form) I have just said the following:

 

The Claimant claims payment of unfair charges from the Defendant applied to account between xx/xx/xxxx & xx/xx/xxxx in the sum of £xxxx.xx inclusive of interest in restitution at the rate of 29.9%

 

Account No: xxxx xxxx xxxx xxxx

 

Will this suffice?

 

Appreciate your input.

 

Shelley

[slick132]

Hi Shelley,

 

On Form N1, for "Brief details of claim", you can put :-

 

Money claim for return of credit card account default charges and interest in restitution on those charges.

 

Then the full POC's are entered on the back of the form. If there's insufficient space, attach the POC's on a separate sheet and in the POC's box say :-

 

Particulars of Claim attached.

 

Regarding interest, there is divided opinion about what to claim. My advice is to claim the charges and interest in restitution thereon. Claim daily interest as already discussed.

 

Others have claimed interest in restitution plus 8% or even 29.9% simple Statutory Interest ON TOP ! BC have paid out some such claims and, if you want to do this, that is your prerogative.