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

[Shelley181146]

Hi Slick,

 

Well, that's all done and printed ready for the courts tomorrow.

Now onto the research for AQ and gather documents to prepare for my bundle. I have sorted a fair amount of that today but will have to look closer into what's required etc, but I need to get on with it now while its fresh in my mind.

 

This is my first of 7 so this is the one to get the experience from.

 

Huge thanks for your continued assistance with my claim. Hopefully, I will have some good news to report back with.

 

Shelley

[Shelley181146]

Here's an update.

I have received notification that 'Acknowledgement of Service' has been received by the courts and I have received directly a copy of their intended defence. I have deleted personal info but cannot scan docs in yet because previously when I have tried the docs are only thumb prints.

Basically, BC are saying that the charges are 'Statute Barred' which surprises me a little because I have already introduced the Kleinwort Benson case.

Appreciate any comments please.

Shelley

[ims21]

Just carry on

 

Make sure you are fully familiar with S32(1)© Limitations Act 1980, the case of Kleinwort and the judge's reasoning behind it just in case you need to argue this in a courtroom.

 

Regards

 

ims

[Shelley181146]

Just carry on

 

Make sure you are fully familiar with S32(1)© Limitations Act 1980, the case of Kleinwort and the judge's reasoning behind it just in case you need to argue this in a courtroom.

 

Regards

 

ims

 

I have printed of the Limitations Act 1980 and it doesn't provide much information to quote - see below:

 

Fraud, concealment and mistakeE+W

32 Postponement of limitation period in case of fraud, concealment or mistake.E+W

 

(1) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)the action is based upon the fraud of the defendant; or

(b)any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

©the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.

 

I have also printed off the Kleinwort case and I am going through it with a high lighter pen to the areas' I think will be relying on.

 

I am also getting on with AQ's and court bundle's in preparation - gosh, I am not having much time for anything else at the moment but once I have got it all together I will be ready for the other claims I have in court as well.

 

When I have converted docs I will post here.

 

Thanks ims.

 

Regards

Shelley

[dx100uk]

scan the required letters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

dx

[slick132]

Hi Shelley,

 

Keep Dx's useful guide above for future reference for posting up documents.

 

However, we don't really need to see BC's defence at this stage. It's standard stuff.

 

Read up on dealing with the AQ and Draft Directions using the Library. Also, see other **WON** BC cases here for good guidance - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?97-Barclays-BCard-and-Woolwich-successes

 

[Shelley181146]

Thank you dx.

I had saved your helpful instructions sometime ago for when I needed them but I am having trouble with the 'many free pdf converting websites'. Working on it and will post shortly.

 

Thanks again.

[Shelley181146]

Defence Page 2.pdf

Defence Page 1.pdf

 

Just to say I have managed to do it, I have attached BC's defence docs. I appreciate they may be standard in content and not necessarily in the right order but it is my first attempt.

Defence Page 3.pdf

Defence Page 4.pdf

[slick132]

Thanks for those Shelley - nothing out of the ordinary.

 

Follow my advice in post #81 above.

 

[Shelley181146]

Thanks Slick. will do.

 

I have now also received a letter from their litigation & Special Investigations team still saying that they fall out of the Limitation period specified by Limitations Act 1980 (6 yrs from the date of accrual). As a result of this legislation no damages are recoverable for any charges incurred more than 6 years before the date of issue of our claim in any event.

 

Should we have any questions they do invite us to telephone the writer but then recommend we seek independant legal advice.

 

Should we call them or leave the court action to take its course? Personally, I prefer the latter.

 

Shelley

[slick132]

Hi Shelley,

 

Yup, I agree. Your pursuit of the court claim will say all you need for now.

 

You'll see they've tried this on many other BC claims, before settling in full.

 

They may agree to refund but use their own figures for interest which may leave you short bu hundreds of pounds. Stick to your own SOC figures and don't be intimidated by the bank.

 

[Shelley181146]

Hi Slick,

 

That is my thought pattern also. I have read through quite a few BC ***WON*** cases so far, over the weeks and including upto 4am this morning. It can only help to get familiar with how BC are treating cases differently so that we can prepare for what they choose to throw at us along the way.

 

I'm certainly not intimidated by them, quite the opposite. It's empowering me to continue

 

Would recommend to everyone to spend the time researching in order to gain the rewards.

 

Appreciate your support, thank you.

 

Shelley

[Shelley181146]

I have been squatting up on AQ's and the two cases that I will be relying upon if this goes to court - Kleinwort case and Sempra Metals. Whilst reading the Kleinwort case I note from the concluding paragraphs it says " In my opinion Kleinwort Benson will be entitled to the benefit of section 32(1)© of the Act of 1980 if they can show that payments which they seek to recover were made under a mistake of law".

 

I might be asking the obvious here but I have been reading this case all day and may have information overload but how does one show that payments were made under a mistake?

 

Has anyone had to go this far and if so how did you handle this?

 

I am obviously, hoping it doesn't go that far but I'm just trying to get prepared.

Shelley

[MrZ]

I have been squatting up on AQ's and the two cases that I will be relying upon if this goes to court - Kleinwort case and Sempra Metals. Whilst reading the Kleinwort case I note from the concluding paragraphs it says " In my opinion Kleinwort Benson will be entitled to the benefit of section 32(1)© of the Act of 1980 if they can show that payments which they seek to recover were made under a mistake of law".

 

I might be asking the obvious here but I have been reading this case all day and may have information overload but how does one show that payments were made under a mistake?

 

Has anyone had to go this far and if so how did you handle this?

 

I am obviously, hoping it doesn't go that far but I'm just trying to get prepared.

Shelley

 

I think you have discovered what most people overlook and what is, in my opinion, a very flawed position on what Kleinwort means.

 

The mistake of law is when a mistake occurs with the ruling or application of a law. For example, a law is interpreted or applied in a certain way to a case. Later a higher court rules or clarifies the law in such a way that means the person who suffered by the mistake of the law being inccorectly applied, can now come back and make the claim.

 

This is quite different froma mistake of fact, where a person says that they meant to pay 10.00 not 100.00 and the extra zero was a mistake.

 

This case has been suggested as the "get out of jail free" card with regard to the 6 year limit imposed by the Limitations Act. It is not that. Another argument should be relied upon in my opinion. I am still researching for the best argument.

 

I may be wrong in my opinion but "mistake of law" is quite clear and very different from a "mistake of fact".

Edited August 24, 2011 by MrZ

[slick132]

Whilst I am sure there is reason for doubt about relying solely on s.32(1)©, experience shows that BC have, to date, settled on cases before they get to a final court hearing.

 

Other banks such as CapitalOne have argued the case in court and have won, as user Still-surviving found to his cost.

 

So for BC cases at least, the advice continues to be - use Sempra Metals for interest in restitution and use Kleinwort Benson for charges over 6 years.

 

[Shelley181146]

Whilst I am sure there is reason for doubt about relying solely on s.32(1)©, experience shows that BC have, to date, settled on cases before they get to a final court hearing. I am hoping this continues so that I have funds to continue my other claims.

 

Other banks such as CapitalOne have argued the case in court and have won, as user Still-surviving found to his cost. I had heard about his case and this does concern me because I have submitted my N1 claim to the local courts for them also but time will tell.

 

So for BC cases at least, the advice continues to be - use Sempra Metals for interest in restitution and use Kleinwort Benson for charges over 6 years. It's strange because although I have used both these cases in my lba's both BC & Cap1 have said 'Go away'!!!

 

Thank you Click, I will continue preparing my bundle/AQ responses. I just hope that the legal Begals from Cap1 are not recruited by 'other' financial institutions otherwise we all may have problems.

 

MrZ, I guess it's back to the drawing board and more squatting required? Just as well I have time on my hands at the moment. Good luck with your research.

 

Regards

Shelley

[dx100uk]

the implied interpretation of the mistake rule refered to above is flawed - its not a 'law'

 

its a 'mistake' by both parties in the agreement...

 

the debtor - that they were made by believe the PPI was required.

the creditor - by not following the correct guidance when selling the PPI

 

dx

[MrZ]

Thank you Click, I will continue preparing my bundle/AQ responses. I just hope that the legal Begals from Cap1 are not recruited by 'other' financial institutions otherwise we all may have problems.

 

MrZ, I guess it's back to the drawing board and more squatting required? Just as well I have time on my hands at the moment. Good luck with your research.

 

Regards

Shelley

 

I know that feeling. Its always good to have other arguments and not rely on on single point. If I find anything I'll post it in your thread.

[MrZ]

the implied interpretation of the mistake rule refered to above is flawed - its not a 'law'

 

its a 'mistake' by both parties in the agreement...

 

the debtor - that they were made by believe the PPI was required.

the creditor - by not following the correct guidance when selling the PPI

 

dx

 

Yes, this is the argument being suggested here in the forums. That the payments were made by mistake. A mistake of fact.

 

The Kleinwort case clearly deals with "mistakes of law" not mistakes of fact.

 

I'm not sure which you are saying is flawed. Is it Lord Wilkinson who made the statement, or is the common belief on the forum that the case applies to a mistake of fact?

[Shelley181146]

the implied interpretation of the mistake rule refered to above is flawed - its not a 'law'

 

its a 'mistake' by both parties in the agreement...

 

the debtor - that they were made by believe the PPI was required.

the creditor - by not following the correct guidance when selling the PPI

 

dx

There is No PPI on this claim. My claim relates to unfair charges older than 6 years.

 

BC's defence is Statute Barred by Limitations Act 1980 but so is mine along with Kleinwort Benson.

 

I have received the AQ in the post and felt quietly confident. However, I will have to phone the courts next week to clarify a couple of technicalities before completing the original.

 

I am currently busy preparing my bundle electronically and if it's required, then I will print it off but I am trying to save the tree's at the moment.

 

Shelley

[slick132]

Hi Shelley,

 

Feel free to ask any Q's you may have about the AQ.

 

Glad you're getting Bundle sorted and saved so it's ready if needed.

 

[Shelley181146]

I am a little confused with Section G.

I have printed a copy of 'Allocation Questionnaire - An Introduction' which I have found extremely useful. However, in Section G of this booklet it mentions something regarding 'devised by the Mercantile Courts for a similar case'. What does this mean?

Also, the Draft Order for Directions © A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

(d) Copies of all decided cases and other legal materials to be relied upon. Where do I research this?

 

Appreciate any guidance.

 

Shelley

[Shelley181146]

Can anyone help with the above please?

 

This bundle thing is no little task but its amazing what I have hoarded all these years. I have found the original T&C's going back to 2001/2002/2003. Will it help my case if I copy all of these into the bundle's or just the original one sent with the card when it was opened?

 

Also, if I am a statement missing (didn't send SAR because it goes back 2001, have originals) and the balance proves they added charges on the missing statement, Should I still be claiming for them or not?

 

I am on my second ream of paper for my claims and I suspect I shall need more, poor trees

 

Appreciate any feedback and willing to share docs if anyone requires.

Shelley

[MrZ]

I'm not sure where you got your AQ bundle info. I do know there is a link to a thread that has everythig you need for the AQ including the supporting documents, cases etc.

 

Give me a few minutes to look for it and I will post a link to it for you.

[MrZ]

Here are a few links. I'm not sure what you have or dont have so far but these might give you what you are missing. Take note that there are links within the threads that have further info, you just have to go through each one and use what's appropriate.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?78216

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?53570-New-strategy-for-Allocation-Questionnaires

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?57708

 

BTW, did you get a definitive answer on the Kleinwort case? I saw slicks comment that he thinks its ok for Barclays. Hopefully it wont get that far and you wont need to use it or have find out.

Edited August 27, 2011 by MrZ