Orge Vs Barclays/Woolwich Mortgage

[AndyOrch]

I doubt it, very rare for them to actually disclose any offers of settlement...they are just for your benefit.....also it would weaken their defence...but all parties are expected to mediate in the background and therefore you should respond either accepting or upping or refusing.

[orge]

Just received the following skeleton argument that was likely filed with the court around 5pm today.

[ATTACH=CONFIG]60274[/ATTACH]

I've just spoken to a legal friend of mine and his interpretation of the documentation I have received is that Barclays are not sending their key witnesses (the solicitor handling the case and their own representative),

but they will be sending a barrister to argue the above skeleton on their behalf (he is named at the end of the skeleton).

 

J

[AndyOrch]

Appears to be a last min supplemental witness statement ?

 

A skeleton argument is not intended to be a recitation of the entire case. It is not intended to argue the case on paper or be overly detailed. It is not intended as a replacement for oral argument and submissions to be handed to the judge in the hearing.

 

It is intended to allow the Court to prepare for the hearing, so that:

 

Time in court is used effectively;

The parties’ time in court is minimised, thereby saving costs.

[orge]

I agree, this is late breaking and especially prejudicial given that I am representing myself. In reality, there's not that much in here that goes beyond the arguments presented in the original solicitors witness statement. However, it does flesh out things in a little more and submission the day before gives me very little time to prepare or refer this.

 

I have prepped som responses to the arguments he's put in, but i guess the first thing to do in the hearing is to ask whether this will be allowed? If so, is it fair, wise for me to continue with the hearing tomorrow or ask for more time?

 

J

[AndyOrch]

Skeletons can be submitted/served up to 10 am of the day of the hearing orge...I agree there is nothing really new added or to be addressed...but it should focus what their main contentions and arguments are and what appears to be their backbone of defence.

[orge]

So what would you suggest are my options and how would you recommend I deal with this?

 

I guess I am also a bit unsure about how to deal with the hearsay evidence - should I simply ask for that this be struck out as no witness is available? I assume it is only point 10 of their original witness statement that should be removed not everything.

 

I am feeling a little intimidated by this now, although not totally out of my depth!

 

My legal friend said that I should expect the barrister may engage in negotiation beforehand, so I guess it would be good to understand the likelihood of my success on the further points of limitation and interest based on 19.5% or some other compounded rate.

 

J

[AndyOrch]

They should have made Application to Adduce Hearsay Evidence pursuant to 2(1)(a) of the Civil Evidence Act 1995 if there is no council/witness attending..as stated this is covered by CPR 33.2

 

Just raise it at the first opportunity and see how the DJ responds.

 

" My legal friend said that I should expect the barrister may engage in negotiation beforehand, "

 

I thought you stated there was none in attendance...or was that just their witness?

[orge]

It's just witnesses that aren't coming ( the solicitor and bank representative). My belief is that the barrister who drew up this skeleton argument will be their to represent them.

 

J

[AndyOrch]

Well if he approaches you ...listen to what he has to offer...I'm sure you have a figure that you would readily accept...should he make an offer

 

Although we would much prefer a judgment in your favor but whichever way it falls ...best of luck for tomorrow and I'm sure all the Forum will be rooting for you.

 

Update you thread on the outcome at your earliest convenience.

 

Regards

 

Andy

[orge]

Thanks Andy.

Will keep you posted with the outcome.

Fingers crossed!

An update to my case.

Defendant proposed that the judge should rule on the limitation and interest part of the claim before considering fairness or penalty clauses.

Whilst I could see that this was an opportunity for them to avoid a full determination by the judge, it felt like understanding the judges view on these points would inform my position better.

Ultimately, the judge determined that my arguments failed on both points.

I will provide a little more detail in respect of her reasons for this later, although I am unable to add anything more in relation to the dispute.

[SabreSheep]

Sorry to hear that you got a sucky result on the judge lottery.

 

Would be handy to know what the reasoning was

[orge]

The main thrust of Barclays defence in relation to the limitation and compound interest arguments is contained in their skeleton argument:

[ATTACH=CONFIG]60274[/ATTACH]

On top of this,

I would add that my pleading of the limitation aspect was probably fairly poor, since the fine detail of the mistake of law has always been a bit hazy to me (specifically what exactly it was, who committed it and when it was committed).

That said, I ultimately don't believe that the judge would have ruled in my favour on this if I had done a better job in the hearing. Their main argument was that the law has not changed and hence there is no cause for there to have been a mistake as per the Kleinwort Benson Case.

The judge did not accept my argument that the mistake was the misunderstanding/misapplication of the overruling regulations. The defence also raised a concern that this would "open the floodgates" for the overruling of any contractual term, although I did point out that the case was more specific than this, in that it related to the legality of a term in a contract.

In relation to the interest in restitution, I think my pleading was better on this but the judge felt that I failed on 2 points:

1. Quantifying and demonstrating the actual loss

2. Quantifying the opportunity that I would have been afforded had I not been out of pocket for this loss

Point 1 is a little trickier in the context of a mortgage as the deduction of charges is not instantaneous, as per a bank account.

I did highlight that the charges (and the interest levied on them) had resulted in higher mortgage payments to date and that they would continue to do so over the lifetime of the mortgage but this was accepted as sufficient.

I suspect that had I attempted to quantify this directly based on interest levied and the actual increase in my mortgage payments, it may still have been difficult to produce the kind of figures needed to substantiate the level of restitution claimed. Especially given the currently low interest rates and a limited window of 6 years.

Furthermore, the judge asked for further demonstration of the opportunity I may have had to invest the monies lost. I was asked if I did have investments and when I answered yes, she inquired if I did at the time of these charges, to which I had to answer no. I don't think this was overly material to her decision though, as she had probably decided on point 1 in advance of this.

Thanks,

J

[SabreSheep]

urgh - restitution is not about your loss per say but the money that they have enriched themselves by taking the charges from you unlawfully.

Seems like the issue of restitution got muddled.

 

Wonder what the others think.

[orge]

I did mention unjust enrichment, although I guess again it has never been entirely clear how this squares away with the Sempra Metals case, which does concern restitution based on the loss of the claimant.

 

J

[slick132]

I agree with Sabre, this is more about the bank having to repay enough so they have ultimately NOT benefited/profited by having your money which they lent out to others.

 

No doubt Andyorch will have some input but I'm really sorry it ended like this.

[orge]

It is a blow but I hope that there are some things that can be learned from this.

 

I still believe my judge would have been unwilling to award the interest without further demonstration of the actual loss I had suffered - she didn't seem to feel that a line on a balance sheet was evidence enough and said the onus was on myself me to quantify how much I was actually out of pocket over the period restitution would be claimed. Maybe there is a better way that I could have answered this though?

 

J

[orge]

Hi,

 

I have been having a think about my judges decisions regarding limitation and interest based on Sempra Metals. I would like to understand this more and see what others think:

 

Limitation

In the Kleinwort Benson case, there was a change in the law as a result of another case that meant the contract terms were void. Barclays argument was that there was no change in the law that the terms relating to their charges were unlawful. Additionally, the outcome of my case would not change the law as it was only a small claims decision. Furthermore, if this point was upheld, then it would "open the floodgates" for any contractual term to be challenged.

 

For me, this last point seemed tenuous, as we are specifically considering terms that have been deemed unlawful. However, I did not have enough understanding of the law to comment on whether the change aspect of Kleinwort Benson is crucial in determining whether it can be used in this context. Furthermore, I was not sure whether the charges being determined as unlawful as a result of my claim was equivalent. Clearly, on the day, this judge felt my case failed on these points so it would be good to understand whether the case could have been pleaded better.

 

Compound Interest in Restitution

In Sempra Metals, HMRC received money that it was not entitled to and Sempra subsequently argued that they should receive interest calculated according to their own lost opportunity of investment. This was calculated at prevailing interest rates of the time at around 5% compounded.

 

Barclays main argument was that I had not demonstrated an actual "loss" - i.e. How much extra had I actually paid to Barclays in interest and increased payments. Furthermore, I had not quantified my opportunity to profit from this loss.

 

On this second point, I was actually trying to argue that Barclays had profited from the charges and had the opportunity to lend said monies at very high interest rates (19.5%). Although, it is possibly still relevant to consider how much they had been given to invest.

 

Clearly, the above charges are a liability and they will be paid (with interest) by the time my mortgage is completed. Indeed, at an average rate of 3%, Barclays will profit approx £3000 in interest on ~£1500 worth of charges.

 

On the first point, without a specific calculation of the current loss in my POC, I was left arguing that a liability is equivalent to payment for the terms of calculating interest in restitution as per Sempra. This does seem a bit dodgy, although it is difficult to divorce the cause and effect like this. For example, consider the clearer example that interest has been added to the account in relation to these charges but it won't have been paid yet. I would imagine this kind of thing comes up quite regularly in disputes so is their a precedent?

 

Perhaps in hindsight, a claim for the the charges + interest added + Statutory interest is easier to argue. In my example, this would still have been a claim ~£4k vs £10k.

 

To me, it does now appear that in combination the arguments against limitation and interest in restitution are a little contradictory. They have argued that charges happened in the past and cannot be challenged, yet they should only provide restitution based on the affect this has had to date and the future is immaterial... This seems a little unfair and surely they can't have it both ways?

 

Thanks and I look forward to your thoughts.

 

J

[orge]

Hi,

I’ve just spotted an Arrangement to Pay marker (TransUnion) on my Barclays Mortgage account for 1 month in March 2022. I’ve spoken to Barclays Customer Service and Complaints about this and they’ve given me some background but have closed my complaint:

Direct Debit for mortgage bounced in February and I didn’t notice this at the time.

Realised there were arrears in March and called customer service straight away.

Offered to pay half the arrears on the call with the other half of the arrears the following month. I prob suggested or accepted this as had done that many years previously when I was a poor student with no adverse consequences.

Paid in accordance with this.

Barclays call notes report they informed me credit reference agencies would be notified and I indicated I understood. However, complaints team couldn’t access the call because it was too old. They advised I could request a transcript through GDPR and complain via ombudsman if still unhappy - I’ll process the GDPR request this week.

Whilst it may be factual that I entered into some kind of arrangement regarding the arrears, it wasn’t clear to me that they would be treating it and reporting it as a formal payment plan along with the potential consequences of this. At no point did I agree to or request to “reducing my contractual payments” - I paid my contractual amount for March and April with 50% more on top.

I guess it’s likely they did say something vague about credit reference agencies and it’s also possible that I may have agreed without fully understanding it would be different to a late payment marker.

I’m not 100% sure of the impact of the AP but I believe it did tighten up balance transfer and new card offers (Lloyds group in particular) even though the rest of my report is spotless and I have many years managing multiple high balance cards.

Although it may have been less comfortable, I also believe I had the means to pay the balance in full if I’d realised the impact at the time.

Finally, it feels like Ive been penalised for speaking to customer services directly rather than just upping my payments to cover the arrears. Historically, I was under the impression that Barclays mortgages weren’t even reporting arrears of less than 2-3 months as late payments - although this may have changed since the last time I was in arrears.

I’ve had a browse through threads about AP markers and it seems like removal is unlikely if it’s deemed factual but it may be worthwhile escalating to FOS or ICO?

Will update with transcript details once I’ve raised and received a response to my request.

I suppose the upside of this is that I’ll be even more cautious about negative markers in the future.

Thanks,

J

Edited May 12 by orge

[dx100uk]

for the sake of history, i've merged your old sadly failed charges reclaim court claim.

have they ever sent you a default notice regarding this mortgage?

dx

 

[orge]

Thanks Dx,

Tbh, I’d forgotten that this account was the subject of a charges claim - nearly 10 years ago now!

I don’t know for sure that a default notice was issued by Barclays when the account was in arrears but I would guess there may have been one somewhere in 2010.

A suspended repossession order was awarded around May 2010 so I’d assume that a default notice would have been a pre-requisite.

Based on the info in the thread those arrears were cleared around 2014-2015 but I don’t have any more info to hand atm since it’s such a long time ago. I believe the files I prepped for court in 2015 have since been shredded.

How would the presence or absence of an old default notice help with this current issue?

Thanks for the merge/support.

J

 

[dx100uk]

if the debt was issued a DN at anytime, then it should not be showing after the DN's 6th b'day, it gets removed from credit files.

SAR time?

dx