Help with starting a County Court claim for Charges on Argos card.

[SabreSheep]

Sounds similar to what the banks reply with

 

Looking good so far.

[Dot1]

Sorry, we cross posted. I have been going through and I will post it up for help by the week end.

 

Any suggestion of how I should address the Case laws quoted?

 

To be honest with you Andy, I am not sure of what to do and would very much appreciate if you could assist me with that. Looking at the defense,I had almost given up but with what

 

you posted earlier on I have gained some strength and courage again. But I need help please.

 

Below is the defense response:

 

1 Save insofar as it is denied that a contractual relationship exists between the Claimant and the Defendant and save insofar as this Defense is filed without prejudice to the Defendant’s position that the claim should be struck out and save insofar as the same consists of admission and save insofar as it is herein expressly admitted or expressed not to be admitted, the Defendant joints issue with the Claimant’s Particulars of Claim which fail to raise any grounds for bringing the Claim.

 

2 Home Retail Group Card Services Limited is a provider of financial services products. The Claimant entered into a store card agreement with Home retail Group Card Services who provided an Argos Store Card to the Claimant for use within Argos stores. Under the terms and condition of the Argos Store Card, the Claimant agreed to repay the credit. A copy of terms and conditions is attached to this Defense.

 

3 The store care agreement between the Claimant and the Defendant was sold by the Defendant to Lowell Portfollio1 Ltd. The Claimant was informed of the sale by letter dated - July 2014 address to Claimant’s address as shown in the Claim Form.

 

4 Paragraph numbers referred to are paragraph numbers of the Particulars of Claims unless otherwise stated.

 

5 Paragraphs 1-5, inclusive, admitted.

 

6 Paragraph 6 is admitted in so far as the Defendant admits that the default charges were applied to the Claimant’s account in accordance with the terms and conditions of the agreement. It is denied that the default charges were (a) a penalty and/ (b) breached UTCCR

 

6.1.1 The UTCCR were intended to regulate ‘core’ terms of a credit contract. The core terms of the Agreement related to the provision of a credit facility by the Defendant to the Claimant. The default terms of the contract are not ‘core’ terms but are incidental to the core terms of the contract. The UTCCR do not regulate the default terms.

 

6.1.2 The Defendant relies upon Director General of Fair Trading v First National Bank [2001] UKHL 52, Dunlop Pneumatic Tyres Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 and American Express Services Limited v Brandon [2010] CTLC 139, a copy of which is attached to this Defense, as authority that default charges levied for late payment and breaches of the credit were not penalties. They were a genuine ore-estimate of the loss which might be suffered by the Defendant.

 

7 Paragraph 7 is denied

 

8 Paragraph 7 (1) is denied. The time for bringing a Claim for recovery of monies is 6 years from the date of payment. The Defendant will rely upon s5 of Limitation Act 1980 which provides that “An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued”

 

9 The Claimant seeks to rely on s32 of the Act. The Claimant has failed to state any grounds for relying on s32. In any event it is denied that the Defense concealed or deliberately concealed the consequences of breach of the Agreement.

 

10 The credit limit set by the Defendant on the Claimants account was £720.00. The Claimant was notified of the credit limit when the Card was supplied to her. The Claimant exceeded the credit limit on – May 2009. Amendments to the interest rate and /or default fees were automatically generated and sent to the Claimant by post.

 

11 The Defendant relies upon clause 8.1, 8.2 and 8.3 of the terms and conditions of the Agreement, which provide that:

 

8.1 – “You must pay any amounts you have spent over the credit limit. If you fail to pay us any sum which has become due, or break this agreement in any other way…we will ask you … to pay the full amount you owe”

 

8.2 – “In addition to any interest and other amounts…. We may also require you to pay such reasonable administration fees as we set from time to time to compensate us if you fail to pay any sum when it is due or breach this agreement in any way”

 

8.3 – “We will supply details of our current administration fees upon request. This includes:

 

Late Payment Fee £14.00

 

Return Cheques Fee £14.00

 

Return Direct Debit Fee £14.00

 

Over Credit Limit Fee £14.00

 

 

12. Fees were amended and notified the Claimant by automatically generated letter.

 

13. Accordingly, paragraph 7(2) and 7(3) are denied

 

14. The Claimant failed make payment to the Defendant, incurring default charges under the terms and conditions of the Agreement. A default notice dated 29 May 2009, for a default of £51.23, was not satisfied and the default was registered with the credit reference agencies on 26 June 2009 in the total sum of £802.70.

 

15. The Defendant is embarrassed by paragraph 7(4). The Defendant is unable to plead a response in the absence of any particulars of the allegation.

[Andyorch]

What are the relevance of the case law quoted? Am I suppose to respond or not?

 

Not sure as I dont know the cases in detail...you will have to refer to them.With regards to responding you don't have to respond...but you need to for yourself to decide if you can proceed.

 

You have 33 days otherwise the claim will be stayed...and you will have to then make application to lift the stay....(n244 fee is increasing to £255.00)

[Dot1]

Thanks Andy,

 

It is my intention to proceed but it would be helpful to know if any one has had experience of the Cases quoted by defendant in court.

 

That is where my fear is because I looked in the forum but have not come across any.

 

Thanks

[Andyorch]

Well I have just Googled the first....

 

Director General of Fair Trading v First National Bank [2001] UKHL 52

 

http://www.bailii.org/uk/cases/UKHL/2001/52.html

[Dot1]

Sorry Andy,

 

I meant to say if anyone has been to court where these cases were used by defendant.

 

I found the case on the Web but I was just trying to find out if it has been used before and if so what was/were the outcome.

 

Thanks

 

Dot

[Andyorch]

Makes no odds really Dot...the cases are the precedent to their response and defence as the cases you have relied on in your particulars are your bases of claim...

 

Only a Court can decide who,s beats who,s.

[Dot1]

Thanks Andy,

 

That is fine then.

[Andyorch]

I would start with noting down a response to each of their points of defence...and research how , why its factually legally incorrect...then you can draft a response and decide if you have enough evidence to overcome their responses.

 

Only then will you be in a position to decide if its worth continuing and if you feel your claim can be successful.

 

The defendants defence has been drafted by a Solicitor...not normally connected to this forum so they have a little knowledge on how to frighten you and dissuade you from proceeding...Im not saying that its legally correct or whether a Judge would accept it...only your researched prepared response will pursued you of that.

 

Regards

 

Andy

[SabreSheep]

Below is the defense response:

 

1 Save insofar as it is denied that a contractual relationship exists between the Claimant and the Defendant and save insofar as this Defense is filed without prejudice to the Defendant’s position that the claim should be struck out and save insofar as the same consists of admission and save insofar as it is herein expressly admitted or expressed not to be admitted, the Defendant joints issue with the Claimant’s Particulars of Claim which fail to raise any grounds for bringing the Claim. They are claiming here I think that the Claim is issued to the wrong company.

 

2 Home Retail Group Card Services Limited is a provider of financial services products. The Claimant entered into a store card agreement with Home retail Group Card Services who provided an Argos Store Card to the Claimant for use within Argos stores. Under the terms and condition of the Argos Store Card, the Claimant agreed to repay the credit. A copy of terms and conditions is attached to this Defense.

 

3 The store care agreement between the Claimant and the Defendant was sold by the Defendant to Lowell Portfollio1 Ltd. The Claimant was informed of the sale by letter dated - July 2014 address to Claimant’s address as shown in the Claim Form.

 

4 Paragraph numbers referred to are paragraph numbers of the Particulars of Claims unless otherwise stated.

 

5 Paragraphs 1-5, inclusive, admitted.

 

6 Paragraph 6 is admitted in so far as the Defendant admits that the default charges were applied to the Claimant’s account in accordance with the terms and conditions of the agreement. It is denied that the default charges were (a) a penalty and/ (b) breached UTCCR They would say this. You will need to read the legislation and use it to back your argument as to why they are a breach

 

6.1.1 The UTCCR were intended to regulate ‘core’ terms of a credit contract. The core terms of the Agreement related to the provision of a credit facility by the Defendant to the Claimant. The default terms of the contract are not ‘core’ terms but are incidental to the core terms of the contract. The UTCCR do not regulate the default terms. Under regulation 6(2), a court may only assess the fairness of terms which do not involve the definition of the main subject matter of the contract", or terms which relate to "price or remuneration" of the thing sold. Outside such "core" terms, a term may be unfair, under regulation 5 if it is not one that is individually negotiated, and if contrary to good faith it causes a significant imbalance in the rights and obligations of the parties

 

6.1.2 The Defendant relies upon Director General of Fair Trading v First National Bank [2001] UKHL 52, Dunlop Pneumatic Tyres Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 and American Express Services Limited v Brandon [2010] CTLC 139, a copy of which is attached to this Defense, as authority that default charges levied for late payment and breaches of the credit were not penalties. They were a genuine ore-estimate of the loss which might be suffered by the Defendant. You need to see if the cases they list are relevant or have been superseded by later judgements.

 

 

7 Paragraph 7 is denied

 

8 Paragraph 7 (1) is denied. The time for bringing a Claim for recovery of monies is 6 years from the date of payment. The Defendant will rely upon s5 of Limitation Act 1980 which provides that “An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued” You have already made the reason clear for this p[art of your claim. Your claim deals with the fact that teh time doesnt start ticking untill a mistake in fact or in law has been discovered or reasonably expected to have been discovered.

 

9 The Claimant seeks to rely on s32 of the Act. The Claimant has failed to state any grounds for relying on s32. In any event it is denied that the Defense concealed or deliberately concealed the consequences of breach of the Agreement.

See above

 

10 The credit limit set by the Defendant on the Claimants account was £720.00. The Claimant was notified of the credit limit when the Card was supplied to her. The Claimant exceeded the credit limit on – May 2009. Amendments to the interest rate and /or default fees were automatically generated and sent to the Claimant by post. IN which case, how could the default reflect a genuine pre estimate of loss if it is an automated process, therfore disproprotionate and therefore an unenforceable penalty

 

11 The Defendant relies upon clause 8.1, 8.2 and 8.3 of the terms and conditions of the Agreement, which provide that:

 

8.1 – “You must pay any amounts you have spent over the credit limit. If you fail to pay us any sum which has become due, or break this agreement in any other way…we will ask you … to pay the full amount you owe”

 

8.2 – “In addition to any interest and other amounts…. We may also require you to pay such reasonable administration fees as we set from time to time to compensate us if you fail to pay any sum when it is due or breach this agreement in any way” They must still be a genuine pre estimate of loss to be an enforceable term

 

8.3 – “We will supply details of our current administration fees upon request. This includes:

 

Late Payment Fee £14.00

 

Return Cheques Fee £14.00

 

Return Direct Debit Fee £14.00

 

Over Credit Limit Fee £14.00

12. Fees were amended and notified the Claimant by automatically generated letter.

13. Accordingly, paragraph 7(2) and 7(3) are denied

14. The Claimant failed make payment to the Defendant, incurring default charges under the terms and conditions of the Agreement. A default notice dated 29 May 2009, for a default of £51.23, was not satisfied and the default was registered with the credit reference agencies on 26 June 2009 in the total sum of £802.70.

15. The Defendant is embarrassed by paragraph 7(4). The Defendant is unable to plead a response in the absence of any particulars of the allegation.

 

My reply is in red.

 

Most of this is just bluster designed to throw you off.

Only thing that requires investigation is the cases they use in their defense. In one of my cases the bank referred to to court cases to back their claim. WHEN i read them they were irreverent and only one of them had a relivent part that SUPPORTED my claim.

 

This is where reading the unfair terms legislation and understanding it will empower you.

 

You are not obliged to reply to their defense, you could just continue the claim. By responding you do tip your hand a bit.

 

As they have mentioned their fees, you might want to try a part 18 request for information in order to potentially resolve the situation without further use of court time and resources. Basically a part 18 request asking for them how much it costs them for every beach of your agreement. This they will likely refuse or they might send a load of rubbish but it looks good on you trying to force them to declare their actual costs. IF they refuse this it puts them on a back foot a little bit. Await Andys input though.

[SabreSheep]

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=0CC0QFjAAOAo&url=http%3A%2F%2Flegalbeagles.info%2Fwp-content%2Fuploads%2F11b-Brandon-v-American-Express-Services-Europe-Ltd-2011-EWCA-Civ-1187-25-October-2011.pdf&ei=6oQcVZznKI_jaPfqgfAJ&usg=AFQjCNHP-q5uhYwLXoGcEcFolSdg7Yjh2g&sig2=dg2MP_TgZktIV6GbN28n1Q&bvm=bv.89744112,d.ZGU

 

This gives you the transcript for the third case

The second case is 1915, i feel recent rulings supercede it.

First looks to me at a skim to be regarding interest rates - may nto be relevent.

 

Interestingly the third one was an appeal

 

Section 41. In the circumstances, I would allow the appeal.

 

"Section 42" Brief mention should be made of the two remaining matters.

 

i) I express no view as to whether it is realistically arguable that the £25 monthly charge was a penalty. Although any disclosure would be a matter for the Judge dealing- with any further hearings (If such these are)

 

SO when you read that, the judge abstained from calling them penalties OR NOT in the appeal.

 

 

Its a little tricky but as long as you can find a way to interpret the ruling or disprove their interpretation of it, their argument becomes irrelevant.

[Dot1]

I would start with noting down a response to each of their points of defence...and research how , why its factually legally incorrect...then you can draft a response and decide if you have enough evidence to overcome their responses.

 

Only then will you be in a position to decide if its worth continuing and if you feel your claim can be successful.

 

The defendants defence has been drafted by a Solicitor...not normally connected to this forum so they have a little knowledge on how to frighten you and dissuade you from proceeding...Im not saying that its legally correct or whether a Judge would accept it...only your researched prepared response will pursued you of that.

 

Regards

 

Andy

 

Thanks Andy,

 

I will do that then post back.

 

Dot

 

My reply is in red.

 

Most of this is just bluster designed to throw you off.

Only thing that requires investigation is the cases they use in their defense. In one of my cases the bank referred to to court cases to back their claim. WHEN i read them they were irreverent and only one of them had a relivent part that SUPPORTED my claim.

 

This is where reading the unfair terms legislation and understanding it will empower you.

 

You are not obliged to reply to their defense, you could just continue the claim. By responding you do tip your hand a bit.

 

As they have mentioned their fees, you might want to try a part 18 request for information in order to potentially resolve the situation without further use of court time and resources. Basically a part 18 request asking for them how much it costs them for every beach of your agreement. This they will likely refuse or they might send a load of rubbish but it looks good on you trying to force them to declare their actual costs. IF they refuse this it puts them on a back foot a little bit. Await Andys input though.

 

Hi SS,

 

Thanks for your input.

 

I will do more reading in the areas suggested then report back.

 

At what stage do I send the part 18 request. Is there a template for it that you might be aware off?

 

Thanks

 

Dot

 

My reply is in red.

 

Most of this is just bluster designed to throw you off.

Only thing that requires investigation is the cases they use in their defense. In one of my cases the bank referred to to court cases to back their claim. WHEN i read them they were irreverent and only one of them had a relivent part that SUPPORTED my claim.

 

This is where reading the unfair terms legislation and understanding it will empower you.

 

You are not obliged to reply to their defense, you could just continue the claim. By responding you do tip your hand a bit.

 

As they have mentioned their fees, you might want to try a part 18 request for information in order to potentially resolve the situation without further use of court time and resources. Basically a part 18 request asking for them how much it costs them for every beach of your agreement. This they will likely refuse or they might send a load of rubbish but it looks good on you trying to force them to declare their actual costs. IF they refuse this it puts them on a back foot a little bit. Await Andys input though.

 

Thanks for your help I will carry out more investigation then come back.

 

Thanks

 

Hi everyone,

 

I am still struggling to address the issues raised in the defense and not been able to find any recent case in support of the consumers regarding the UTCC. I wonder if anyone has come across one.

 

Another issue that is bothering me is the Notice of the Proposed Allocation to the Fast Track.

 

The defense I posted above was direct from the Defendant's Solicitors.

 

The Court Directions arrived afterwards and the details are as follows:

 

 

Notice of Proposed Allocation of the Fast Track.

 

 

Important Notice

 

If you do not comply with this notice the court will make such order as appears to be appropriate. This could include striking out the claim or entering judgement.

 

 

TAKE NOTICE THAT

 

 

1. This is now a defended claim.

The defendant has file a defense, copy of which is enclosed.

 

2. It appears that this case is suitable for allocation to the fast track

If you believe that this track is not the appropriate track for the claim, you must complete box D2 on the Directions Questionnaire (Form N181) and explain why.

 

3. You must by 1 May 2015.

a) complete the DQ (form N181), file it with the court office -------- Salford

 

and serve copies on all others parties

 

and b) attempt to agree directions with all other parties

 

and c) file proposed directions (whether or not agreed) with the DQ.

 

 

 

Why is it being considered for Fast Track yet the amount claimed is less than £10000?

 

Could this be a mistake or its normal?

 

Your help is appreciated.

 

Thanks

 

Dot

[slick132]

Hi Dot,

 

Mistake or not, you will state on the DQ that the case should be allocated to Small Claims track as the total value is less than £10,000 and is therefore suitable for the SCT.

 

[Dot1]

Thanks Slick.

 

Are you aware of any recent rulings which could assist me with dealing with the cases the the defendant is relying on?

 

I have looked around but unable to find any.

 

Your help is very much appreciated otherwise, I am stack.

 

Dot

[Mike_hawk]

Dot

 

You have a while yet to file the dq, I'd be inclined to email the court and nudge it in the direction of issuing the correct notice. It does get it wrong [fairly often], remind it that it is a straightforward case with limited value and well below the ft threshold.

 

Hearing fee for the fast track starts at £545.00 so I think it would be sensible to resolve sooner rather than later,

 

I don't suppose the other sides reps initials are S.L ?

[Dot1]

Hi Mike,

 

Thanks for your advise and I will send an email to the court and hopefully things will get sorted soon.

 

As for the rep initial, yes it is S.L (Senior Partner).

 

Anything I need to know?

 

Thanks

 

Dot.

[Mike_hawk]

 

As for the rep initial, yes it is S.L (Senior Partner).

 

Anything I need to know?

 

Thanks

 

Dot.

 

Only that I didn't get on with it, but then I'm not exactly the friendly type in court

[Dot1]

Hi Mike,

 

Have you had experience with them before?

[Mike_hawk]

Yep, but not able to discuss the outcome :-/

[Dot1]

Any suggestions about the cases they are relying on?

 

Any recent ruling in favor of consumers that supersede theres?

 

I am not having any luck and basically stuck.

 

No one seems to have come across any case law to help.

 

Dot

[Mike_hawk]

[ATTACH=CONFIG]56997[/ATTACH]

 

I don't think any of the cases it referenced are going to be helpful to the court, have you looked at Orfosters first instance case v Lloyds from last year? Admittedly he ended up represented by counsel as the arguments were a little complex but his case may assist you

[Dot1]

Thanks Mike,

 

I will have a read at it and see the bits that can assist me with my case. I will then come back there after.

 

Dot

[Mike_hawk]

Not sure how much help I can be, there's a link below to the original Brandon appeal in the lower court which I believe is the citation it refers to [although it may be that it refers to the case in the first instance which I don't have the transcript of]. I know of several financial institutions who rely on the original judgment which bears little or no resemblance to the findings in appeal.

 

DDJ Gisby and latterly HHJ Denyer didn't dismiss the premise that the charges could be tested for fairness but unfortunately Gisby decided to utterly ignore the greylist within Schedule 2 of the UTCCR and assumed [in his mind at least] that £25.00 was reasonable/fair. The appeal at 2011 opened the door to retest the original argument, it did not agree or disagree with the original findings, I suppose you could read para 42 as a hint toward the parties compromising the matter without wasting the courts time

 

 

http://www.mishcon.com/news/articles/judgment_american_express_services_europe_pe_limited_vs_ian_karl_robert_brandon_10_2010

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

HRG's defence at 6.1.2 states

 

6.1.2 The Defendant relies upon Director General of Fair Trading v First National Bank [2001] UKHL 52, Dunlop Pneumatic Tyres Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 and American Expressicon Services Limited v Brandon [2010] CTLC 139, a copy of which is attached to this Defense, as authority that default charges levied for late payment and breaches of the credit were not penalties. They were a genuine ore-estimate of the loss which might be suffered by the Defendant.

 

You would think it would disclose its 'genuine' calculations to dispose of the case.........but it may suggest that its self appointed Alixpartners report is privileged due to its sensitive commercial content

[Mike_hawk]

Replied to your PM Dot, sorry I can't be more helpful with specifics

 

I'd definitely push the issue of track allocation with the court though and get that part 18 request in the post pronto.

[Dot1]

Thanks Mike,

 

That is fine. I have sent email already to the court for the track and waiting for their reply. As for part 18, is there any template please?

 

Thanks

 

Dot