Barclaycard Charges Reclaim and, now, Default Removal

[johnhn]

ok, thanks. I'm fairly confident they won't be awarded costs, having witnessed the judge's utter disdain for them (especially against the value of my claim). I have a feeling the decision will be quite pragmatic (i.e. I don't get any money back but the default is removed, they get no costs, something like that...)

[johnhn]

Well. Different judge. I lost on the sole basis of OFT v Abbey. Costs awarded against me capped at £1800 inc VAT.

 

What next?

[Ford]

typical, reserved but then a different judge.

i was concerned you might get stung for costs. at least they were capped.

did the J say anything about appealing (though again, costs)

[Andyorch]

Well. Different judge. I lost on the sole basis of OFT v Abbey. Costs awarded against me capped at £1800 inc VAT.

 

What next?

 

Oh dear John....so on what basis of OFT v Abbey Current Account Overdraft Court Claim did you lose and how did they convince you ...and themselves... it was connected to credit card agreements ?

 

Perhaps in hindsight it may have been prudent to accept their offer rather than pushing for the default removal ?

 

Andy

[johnhn]

yes, well, hindsight is a wonderful thing...

 

The judge wanted to find in my favour but said he was "caught by authority", i.e. OFT v Abbey.

 

I understand the logic, but I disagree with the application of the authority.

 

The judge argued that a credit card agreement is in effect an overdraft, and default fees are core terms and a price payable for the full package of services (like an unauthorised overdraft fee) thus exempt from assessment under UTCCR 6(2).

 

I argued that an unauthorised overdraft is not a breach of contract, the fee for it is not a default fee, and a service is received in exchange (transactions honoured, temporary limit increase), whereas a credit card default fee is not a core term and - clearly! - is a default fee, payable on breach of contract rather than the provision of a service (nothing is received in exchange, the credit limit does not increase, indeed every breach of my credit limit was triggered by a late payment charge, in turn triggering an over limit charge, so what exactly did I get in return?).

 

I still don't think a credit card agreement is an overdraft...

[johnhn]

typical, reserved but then a different judge.

i was concerned you might get stung for costs. at least they were capped.

did the J say anything about appealing (though again, costs)

 

yes, he reminded me of my right to talk to a brick wall, as is his duty

[Ford]

yes, he reminded me of my right to talk to a brick wall, as is his duty

did he give permission to appeal

[johnhn]

yes

[johnhn]

It's just dawned on me that the judgement only addressed whether or not the relevant terms of the contract could be assessed for unfairness under the UTCCR's.

 

It didn't address the issue of the default being registered after arrears periods of 3, 6 and 13 consecutive months (i.e. contrary to ICO guidelines).

 

As far as I am aware, that has not been included in the judgement at all.

 

Hmmmm.........

[Ford]

did he give permission without you asking?

sometimes permission can be seen that the J thinks there is/maybe something in issue that needs a higher court to decide on? ie they think they may not have got it quite right.

but again, costs risk!

[johnhn]

did he give permission without you asking?

 

He did, and also mentioned "higher courts than this"...

[Ford]

He did, and also mentioned "higher courts than this"...

seems then he acknowledged himself that the issue was perhaps beyond his scope, and that he may not of got it quite right?

shame you didn't get the reserved J.

are you thinking of appealing. keep in mind the timelines etc, and the poss costs risks, if thats what you decide to do

[johnhn]

He said at various points that he found it to be a difficult case. It was a shame about the reserved judge - my heart sank...

 

I'm not thinking of appealing. However, as the subject of the default does not seem to be within the judgement (which just seems to answer the question of assessment of fairness under the UTCCR's) I was thinking of tackling just the default (rather than the charges themselves) from a different angle.....

[Ford]

.....I was thinking of tackling just the default (rather than the charges themselves) from a different angle.....

have you tried the ICO (though they don't compensate an individual)

if that works (ie they agree the default was in error), then maybe a separate action on that for the loss as a result?

or a separate action on it anyway

just a thought

[johnhn]

more or less exactly my thoughts.

[Ford]

if as you say the default issue wasn't adjudged on, then it should still be open.

[johnhn]

I'll check my copy of the judgement when it arrives. Meanwhile, my weekend starts right about.... now. So, until then, b@lls to Barclays.

[Ford]

[Andyorch]

They didn't make a counter claim therefore there is no judgment for the defendant ...your claim i assume was dismissed ?

[Ford]

good point re judgment v dismissal

[johnhn]

if by dismissed you mean struck out, then no. BC made an application for strike out or summary judgement. The judge didn't strike out, he made summary judgement, in their favour.

[johnhn]

I've got a real problem with the reasoning in this judgement. I understand a judge is bound by authorities, but I still don't think this authority applies!

 

I shall attempt to explain.

 

The OFT v Abbey Supreme Court Appeal found that the current account bank charges are part of the package of remuneration, and thus core or standard terms exempt from assessment of fairness under UTCCR 1999 6(2), in part because they are distinct from default charges which are payable on breach of contract (and thus a penalty under common law).

 

"the Relevant Charges are not concealed default charges designed to discourage customers from overdrawing on their accounts without prior arrangement"

 

Whereas in my case, the judgement found that credit card default charges ARE part of the package of remuneration, and thus core or standard terms exempt from assessment of fairness under UTCCR 1999 6(2), (and thus not a penalty under common law), because they are "similar" to current account charges.

 

To me this is too much like havinng your cake and eating it.

 

Or is it just me?

[Andyorch]

if by dismissed you mean struck out, then no. BC made an application for strike out or summary judgement. The judge didn't strike out, he made summary judgement, in their favour.

 

Ah yes...apologies

 

Andy

[johnhn]

I've got a real problem with the reasoning in this judgement. I understand a judge is bound by authorities, but I still don't think this authority applies!

 

I shall attempt to explain.

 

The OFT v Abbey Supreme Court Appeal found that the current account bank charges are part of the package of remuneration, and thus core or standard terms exempt from assessment of fairness under UTCCR 1999 6(2), in part because they are distinct from default charges which are payable on breach of contract (and thus a penalty under common law).

 

"the Relevant Charges are not concealed default charges designed to discourage customers from overdrawing on their accounts without prior arrangement"

 

Whereas in my case, the judgement found that credit card default charges ARE part of the package of remuneration, and thus core or standard terms exempt from assessment of fairness under UTCCR 1999 6(2), (and thus not a penalty under common law), because they are "similar" to current account charges.

 

To me this is too much like having your cake and eating it.

 

Or is it just me?

 

anyone?

[Andyorch]

Credit cards and Current Account charges/defaults have no connection.....different legislation and sections of the CCA1974