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

[MrZ]

I think I have found what you were referring to with regard to the mercantile court. This appears to come from a block of text that is sugggested to be put into your AQ under "Other Information".

 

Basically at AQ stage the court usually orders "standard directions". There is a template for "special directions", which is sometimes being suggested. The reason being, some lenders were stalling or filing a defence with the court with no intention of actually letting the claim go to trial.

 

The draft directions linked to that wiki page have been drafted in such a way that requires the other side to fully state their position regarding the charges, and whether or not they are penalties. It also requires them to file and serve documents within 14 days. This is done with a strategy to make them fully outline their position and eveidence, or hopefully withdraw and settle.

 

If you do not intend to propose the special directions, there is no need to reference the special directions being routinely used in the mercantile court.

 

FWIW, in my PPI claim, which is different than the charges claim you have, I asked for other special directions, but along the same lines as those on the wiki page. The court didnt order them in my case, so in my case its the standard directions. It cant hurt to ask, and based on the fact that yours is a charges claim and not a ppi claim, the court may decide differently in your case.

Edited August 27, 2011 by MrZ

[slick132]

Hi Shelley,

 

The AQ Guide sets out what to put on the form. The link is here - http://www.consumeractiongroup.co.uk/forum/content.php?565-Allocation-Questionnaires-A-guide-to-completion

 

In Section G, you need to put something like:-

 

I respectfully ask that the court use the Draft Directions enclosed, which it is hoped will bring the claim to a speedy conclusion. The Defendant has settled many similar cases promptly and without the need for further recourse to the courts .

 

Then print off the Draft Directions in the guide and attach them to your AQ.

 

[Shelley181146]

Draft order for directions P1.docHi Slick,

 

I have drafted the attached Draft Directions to attach to my AQ but would appreciate if you would give it the once over for your opinion please?

 

I have asked a few questions where I am stuck and if you are able to advise I would be grateful.

 

Thank you in advance.

Shelley

Draft order for directions P2.doc

[slick132]

Hi Shelley,

 

The Draft Directions look fine to go in with the AQ.

 

Re your Q's in red:-

 

1. If the court adopts your DD's, they will date the Directions as necessary.

 

2. All your other Q's relating to what YOU will provide to the court will be addressed by your court bundle, your SOC and your Witness Statement.

 

3. The items relating to what the bank should provide as THEIR part of the DD's should be left as shown. However, any items that are not relevant to your case can be omitted from the DD's - eg Default Notice or Letter of Assignment.

 

If the court DOES adopt your DD's, you will have to prepare and submit your court bundle, etc promptly. So you need to at least be getting the necessary documents together. You'll find more about the court bundles in the Barclays **WON** cases which I've referred to previously.

 

[Shelley181146]

Thanks Slick for your speedy response.

Oh, I understand what you mean - they can be omitted - the DJ wouldn't allow the case to be thrown out because of these being missing?

DN and LoA I appreciate are not part of the claim as such but I suspect this will assist my claim in proving that the claim is not SB. I didn't have to SAR Barclays because I had all the original statements and CCA and I had heard that Barclays were leaving loads of stuff out of their SAR packs so I thought I would have enough. However, on a different claim I have with another bank it has come to my attention how I can prove it's not SB but the LoA would help.

I am getting the bundle together at the moment and I know I will have to work hard to pull it together with page numbers etc but it can be done. I've printed off a tick sheet to ensure I will have everything in my bundle, folders at the ready.

 

Thank you again for your assistance.

Regards

Shelley

[slick132]

HI Shelley,

 

No, your case won't be thrown out because of a correct omission. The Site provides templates but it's always up to you to adapt them to reflect your own case.

 

I don't see how a DN or NoA will assist with the issue of Limitation (Statute-Barred) in connection with reclaiming charges.

 

[Shelley181146]

Hi Slick,

 

I have understood from Andy on my other claim that as I have the Letter of Assignment and have been paying regular payments to the Assignee the charges applied to account are not SB and I was trying to ensure the same with this claim as it is similar circumstances.

 

However, developments today!

I had received a letter from C legal team mid August just saying they felt that all charges were outside the Limitations Act and they were not liable to pay any of the charges. In a seperate envelope they sent their intended defence docs which I posted in an earlier post, but nothing suggested I had to respond.

 

I then received the AQ from the courts and I am in the process of completing it and it will be submitted to court in the next few days.

 

However, today, their legal clerk refers to her previous letter and asks why they have not received a reply and if I agree with their defence docs to comfirm if I will be withdrawing my claim?

 

Their legal team doesn't seem to understand the need for attention to detail because on all correspondence they have addressed it incorrectly.

 

I will this evening be drafting a suitable response because having checked with the courts today, they have only filed an Acknowledgment. No defence documents have been filed todate!

 

They seem to be of the opinion they can grind folk down with their tactics but I am quite enjoying the challenge.

 

Regards

Shelley

[Shelley181146]

Hi Shelley,

 

 

 

2. All your other Q's relating to what YOU will provide to the court will be addressed by your court bundle, your SOC and your Witness Statement.

 

 

 

What should be included in the Witness statement?

 

Regards

Shelley

[slick132]

Hi Shelley,

 

You have no need to write to their legal team pointing out any errors. Your continuing court claim will tell them all they need to know.

 

Concentrate on your own side of the court claim and let them mess up their own stuff if they want.

 

There are examples of Witness Statements on the example threads I've referred to before, but don't worry about this just now. Wait and see what the court requires from you after the judge considers the AQ's.

 

[Shelley181146]

Hi Slick,

If I don't reply will this not be seen as be awkward or obstructive if it ever gets to court?

 

Shelley

[slick132]

By all means, reply to them if you want.

 

I'm just saying that they are trying to persuade you to withdraw from your court action.

 

And your continuing that action is a clear enough indicator for them to understand that you are not intimidated and will not discontinue your claim.

 

[Shelley181146]

I understand.

I have drafted a brief letter this evening which drops it out nicely that I am preparing my bundle - hopefully that will tell them I mean business.

"

Further to your letter dated xx August to which you refer, the contents duly noted. However, I also received copies of your defence documents under separate cover which as of today’s date, are still to be filed at xxxxx County Court. As I am in receipt of the Allocation Questionnaire and preparing the relevant bundle, I did not feel a response was obligatory at that time.

Only thing is - I am not bluffing.

Let's see of that has the desired effect?

[Shelley181146]

AQ submitted, now getting on with Bundle

[Shelley181146]

I would really appreciate your help here please.

 

I received a letter from BC legal team again and albeit, I had already replied via R/D which they confirmed they have received, I am a little frustrated by their incompetence!

 

Out of sheer frustration I telephoned them and advised I was recording the call, the recipient has said that they would rather settle out of court and if I could 'justify' my claim they are prepared to settle the amount asked for. They gave me the schpiel that BC doesn't charge compound interest on the charges when they are applied and wanted to know why I was claiming 'Interest in Restitution'? Alternatively, they will pay 'simple interest'.

 

Would someone kindly give me a sentence or two on what I could say or do you suggest I should continue with the court claim? I am preparing my bundle anyway and they are aware of this, so they do know I am serious about my claim.

 

Their representative who I spoke with today didn't sound like they knew what they were doing and very inexperienced.

 

Shelley

[slick132]

Hi Shelley, I'll word this in the form of your reply to BC.

 

I am claiming compound Interest in Restitution as per the case of Sempra Metals, on the basis that BC have made charges to the a/c which are not fair or justifiable.

 

It is wrong to say BC did not charge compound interest - effectively, they do, although this is not entirely relevant.

 

Interest in Restitution is claimed to remedy the benefit that BC have derived from having my money and lending it out at commercial rates in the course of their business. By paying me Int't in Rest'n, BC is giving up this benefit and restoring an equitable balance between us.

 

If BC do not refund the charges and interest as set out in my SOC, I will continue with court action and, in this connection, am preparing my court bundle ready to File and Serve to the court and to Barclays respectively.

 

Charges older than 6 years are being claimed on the basis of the case of Kleinwort Benson v Lincoln City Council. Again, this will be addressed fully in my court bundle.

 

It is hoped that the defendant bank will now settle my claim and avoid the need for further use of the court's time and resources.

 

If you have an email address for the bank employee, you can send this by em. If you don't have this, call to get it and then send.

 

[Shelley181146]

Hi Slick,

 

Thank you so much for your post.

 

I have been reading the Sempra case and highlighting some areas as well as the BC 'WON' cases earlier today.

 

Part of me would prefer this to be settled as soon as possible but part of me was concerned I might be giving too much away as my evidence for the claim if I ended up in court. However, the way you have worded that does instill confidence and with my bundle progressing nicely as my backup I 'hope' I have it covered.

 

I do appear to have their email address and I think I would like to give this a try.

 

I have just been looking over the letter rec'd today and it is identical to one rec'd last week (same date) sent by 'Special Delivery', yet today's was 1st class post. 'Dizzy legal clerks or what'? I just wonder what would turn up at court if it went that far?

 

Slick, you have come to my rescue again and I thank you immensely.

 

Regards

Shelley

[slick132]

When dealing with BC, experience to date shows that they will usually put up arguments and refuse to refund. They may give in when you have a court date and, if you're lucky, you may avoid having to print and submit the court bundles.

 

However, you must always work on the basis that the case will go into court and you'll have to represent yourself.

 

If they do allow the case to go into a court hearing, Barclays will instruct a local barrister to represent their case so you won't be dealing with a Dizzy Legal Clerk. However, it's unlikely to come to this and, if it does, your sound preparation now will pave the way for success on the day.

 

So get that email off to Barclays Litigation.

 

[Shelley181146]

Have you heard of Dizzy Barrister's? Who am I trying to kid, I know

 

Should I put a contact telephone number on the email or leave it to 'written' communications only? I only telephoned today out of sheer frustration and I know the advice on here is always to keep things in writing so as to have proof of who said what.

 

Shelley

[slick132]

Just leave it as email contact only.

 

Far better to have everything in writing at this stage. Emails can be used as evidence if necessary but notes of phone calls count for nothing as they can be denied.

 

[Shelley181146]

That's what I thought. Thanks again Slick. Will keep you posted.

 

Email on its way

[Shelley181146]

Hi Slick,

I haven't received a response to my email but I have received 2 offers in the post this morning. I would appreciate your opinion and feedback please.

 

Regards

Shelley

[Shelley181146]

Hi Slick,

I haven't received a response to my email but I have received 2 offers in the post this morning. I would appreciate your opinion and feedback please. Hope I have removed sufficient personal info?

 

Regards

Shelley

 

I will upload them again as I have realised that thye need to be transferred to pdf, sorry.

[Shelley181146]

Hi Slick,

 

I haven't been able to scan these documents in so I have typed it in 'verbatum'. These arrived today, albeit, I had sent the email they have chosen not to reply to that today.

 

I would appreciate your opinion on the following two letters please. Any additional feedback would be really appreciated.

 

Letter 1.

Further to our conversation on the xx September 2011. We have reviewed your bank statements and the BC c/c t&c's in order to fully investigate your claim and reach a fair settlement figure. Plese find attached our offer letter setting out the amount and terms of our offer, in full and final settlement of your claim. The settlement figure detailed in our offer letter has been calculated to reflect the following:

• A refund of all the default charges applied to your account
  
• A refund of the monthly contractual interest on any charges applied to your account
  
• Statutory interest at 8% per annum pa pursuant to s.69 County Courts Act 19964 on the above.
  

Default Charges

We offer to refund the sum of £xxx in charges applied to your account.

Statutory Interest

Statutory Interest of 8% per annum persuant to s.69 County Court Act 1964 has been calculated on each charge incurred on the account, from the date of the charge.

Restitution Interest

You mention in your letter that you have used the figure of 29.9% to calculate interest in your schedule 2. As you will know, this interest rate varies from month to month and on your account (the figure appears at the top of each monthly statement). However, as you will see from your statements Interest on Default charges is charged at the lower Standard Rate. The number of days that interest was charged can be calculated by finding the next payment into the account that covers the charge and subtracting 28days. I have set out below how interest is charged.

An example:

Charge of £24.00 incurred on xx/xx/xxxx and paid off on xx/xx/xxxx

· The monthly rate of interest for the months of October and November xxxx is 1.941% per month. That is, 1.941% of £24.00 would have been charged to your account every month.

· The number of days between when the charge was incurred and when it was paid off is 31. As interest only accrues at least 28 days after the charge has been left unpaid, 28 is subtracted from this figure to get the number of days when interest was actually charged to your account.

· £24.00 x 1.941% = £0.47. That is interest would have accrued at a monthly rate of 47 pence, and a daily rate of (47 pence/31 days) = 1.52 pence. Over 3 days, this totals 4.56 pence, rounded up to £0.05.

We do not understand your calculation on interest and no admissions are made as to the accuracy or the appropriateness of the rate on which you rely on in schedule 2. Therefore, we believe you are not entitled to ‘interest in restitution’.

We do not believe that we are liable to pay you any further sums.

Should you have any questions, you are welcome to contact the writer on the number cited at the top of this letter. In any event, we recommend that you seek independent legal advice in respect to this matter.

Letter 2.

We refer to the above proceedings.

As you will see from our defence, we disagree with your legal analysis that the charges levied to your account with Barclays amount to penalty clauses and are unfair. We do, however, recognise that it is not cost effective for either party to take this matter all the way to trial. Therefore, in order to avoid the inevitable time and cost associated for both parties in pursuing this claim further, we are prepared to settle your claim by returning to you the charges applied, together with interest which comes to £xxx.xx subject to the terms set out in this letter.

This offer to pay £xxxx.xx in the above fashion is in full and final settlement of the whole of your claim and is strictly without any admission of liability on our part. By accepting this offer, you also agree that the existence and the terms of this offer remain confidential between us.

Please sign and return a copy of this letter to us (by fax, email or post) at the above address within the next seven days. You will also need to notify the County Court, in writing, that you have discontinued your claim. Please forward to us a copy of your letter to the Court.

Should you decide to reject the Bank’s offer, we reserve the right to disclose this letter to the Court on the subject of costs.

We look forward to hearing from you.

Blah, blah, blah.

Regards

Shelley

[slick132]

Hi Shelley,

 

Sorry you had to type up the letters in full.

 

I believe their letter refusing compound interest is superceded by the response that you have sent by email that you based on my suggestion from the previous page. You have clearly set out, in your email to them, why they should be paying Restitutionary Interest.

 

So I suggest you send a further brief email :-

 

Dear sir or madam,

 

Court Claim No 3BC45678

 

I refer to your letters of xx date offering to settle my claim at a reduced figure of £xxx.xx.

 

You should already have received my email to you of xxdate, in which I explained the rationale for claiming Interest In Restitution.

 

My email explained why the actual interest that you charged on the account is not relevant.

 

I would therefore be obliged if you now reconsider my Schedule of Charges as the basis on which my claim against Barclays Bank PLC should be settled.

 

Failing this, my court claim will continue and I will also seek a Wasted Costs Order if I am forced to File and Serve my court bundles as evidence because you fail to settle my claim beforehand.

 

I look forward to hearing from you.

 

Yours faithfully,

 

See what comes back.

 

Also, look at a Wasted Costs Order here. You can seek this in respect of all the paper and ink that you'll use, as well as time spent researching - http://www.consumeractiongroup.co.uk/forum/content.php?581-Wasted-Costs-order

 

Oh, and make sure you have 2 full packs of paper and a few spare ink cartridges in reserve. If you have to do 2 copies of the court bundle, it'll run to several hundred pages, plus a final copy for you to take to court, if it comes to that. You need only do the 2 copies initially to File and Serve.

 

[Shelley181146]

It's bazaar you mention ink cartridges and paper because today I have infact just stocked up and have been to local stationers to get a quote for bulk copying, expecting 3 bundles to be approx 600 pages so at least we are on the same hymn sheet there.

 

I didn't understand the letters at first because I thought they had sent two offers out but it's one, with an explanation of calculation. Cheeky blighters.

 

I will get that new email off to them this evening and will be closely monitoring my emails tomorrow.

 

You certainly know how to put a good letter together, thank you.

 

I will then get on with researching the 'Wasted costs order'. It just gets better

 

Sincere appreciation for your expertise and speedy response, again.

 

Shelley