foxxy27 v Barclays

[tezl]

The copy for the bank goes to

 

Barclays Legal & Compliance

Litigation & Disputes

Level 29

One Churchill Place

London

E14 5HP

some have took it to local branch got it signed for and been sent internally saves on postage gives them the privelidge.

[foxxy27]

hello,

 

right after reading the statement of evidence saintly1 gave me the link to i understand things a lot better, but not totally !

can I just check that this is everything I need in my court bundle -

 

1. my schedule of charges

2. my statements showing charges

3. my statement of evidence

4. copies of the cases on which my case relies (which going by my statement of evidence are - dunlop tyres, nicole rich, and peter mcnamara?)

5. all paperwork between me and my bank

6. my banks terms and conditions ( is this essential?)

7. copies of the ucctr, ucta and soga. ( do i need to print all of those out?? there so long!)

 

Im getting there slowly cant believe how much is involved in this bundle any help or advice will be gratefully received.

 

thanks

tara:)

[foxxy27]

hi

im looking for a copy of the early day motion from the house of parliament and the oft summary to print out for my court bundle.

any help or advice on where i can find it will be appreciated.

 

thanks

tara

[smutley]

This Agreement is made on 25 July 2007

BETWEEN

(1) The Office of Fair Trading of Fleetbank House, 2-6 Salisbury Square,

London EC4Y 8JX (the OFT);

AND

(2) Abbey National plc of Abbey National House, 2 Triton Square, Regent’s

Place, London NW1 3AN;

(3) Barclays Bank plc of 1 Churchill Place, London E14 5HP;

(4) Clydesdale Bank plc of 30 St Vincent Place, Glasgow G1 2HL;

(5) HBOS plc of the Mound, Edinburgh EH1 1YZ;

(6) HSBC Bank plc of 8 Canada Square, London E14 5HQ;

(7) Lloyds TSB Bank plc of 25 Gresham Street, London EC2V 7HN;

(8) Nationwide Building Society of Nationwide House, Pipers Way, Swindon

SN38 1NW

(together, the Banks)

(each a Party and together, the Parties)

AND

(9) The Financial Services Authority of 25 The North Colonnade, Canary

Wharf, London E14 5HS, (the FSA).

WHEREAS

A. The OFT has initiated an investigation under s.224 of the Enterprise Act 2002

(the Investigation) into the fairness or otherwise for the purposes of the Unfair

Terms in Consumer Contracts Regulations 1999 (the 1999 Regulations) of

certain terms contained in each Bank’s personal current account arrangements

providing for charges to be imposed upon customers who seek to make

payments for which they do not have available funds (the Relevant Terms and

the Relevant Charges).

B. Whilst the Investigation continues, large numbers of individual customers are

pursuing claims against the Banks (and other banks) alleging, inter alia, that

the Relevant Terms applicable to them are and/or have been unfair within the

meaning of the 1999 Regulations and/or the Relevant Charges constitute

and/or have constituted unenforceable penalties at common law.

C. The Banks and the OFT believe that, consistently with CPR Part 1 (the

overriding objective), the relevant legal issues need to be determined

expeditiously and, in light of the complexity and importance of the issues, in a

fair and orderly way. The scale of the customer litigation causes increased

expense for all litigants as well as the Courts and presents significant

administrative problems for the Courts in handling such cases. Further, the

risk exists that the issues currently being investigated by the OFT will be

brought before the High Court (and/or the Court of Appeal) before the OFT is

in a position to adopt a considered position on the fairness of such terms, and

in circumstances where the Court will not have all the relevant materials

available to it to determine all relevant issues.

D. In the Investigation, the Banks have contended, as a preliminary point, that (1)

the Relevant Terms and Relevant Charges fall within Regulation 6(2) of the

1999 Regulations and do not fall to be assessed for fairness, (2) if the Relevant

Terms or Relevant Charges do fall to be assessed for fairness, then the Banks

must as a precondition be shown to have contravened the requirement of good

faith, and (3) the Relevant Charges are for services, rather than for breach of

contract, and are not capable of amounting to a penalty at common law.

E. Although the OFT would have preferred to issue any proceedings in relation to

all relevant issues at the same time, including the Preliminary Issues (as

defined in paragraph 1.4 below) and any Substantive Issues (as defined in

paragraph 3.1 below), following the conclusion of the Investigation, the Banks

and the OFT believe that it is desirable to begin now the process of

determining the legal issues. The Banks and the OFT believe that the

Preliminary Issues are capable of determination as preliminary issues and that

to do so would materially assist with the expeditious and orderly resolution of

the issues concerning the Relevant Terms. Both the OFT and Banks seek an

outcome to all relevant issues as soon as reasonably practicable.

F. Accordingly, to ensure that matters relating to current and historic and

intended Relevant Terms and Relevant Charges are brought before the Courts

in accordance with CPR Part 1, in an efficient, expeditious, and orderly way,

the OFT and the Banks have agreed that the OFT should commence

proceedings against the Banks in the High Court as soon as possible, and

notwithstanding the fact that the Investigation is not yet complete, in relation

to the Preliminary Issues.

G. The Parties intend that, depending on the outcome of the Investigation and the

Court’s determination of the Preliminary Issues, the substantive issues of

fairness and penalty will be determined subsequently in these proceedings.

The Parties also envisage that other issues flowing from those issues (such as

customer restitution and limitation) would come to be determined concurrently

with the said substantive issues.

In consideration of the mutual promises contained herein, the Banks, the OFT and the

FSA hereby agree as follows:

1. COMMENCEMENT OF PROCEEDINGS

1.1 The OFT will, by 27 July 2007, file and serve a Claim Form under CPR Part 7

in the Commercial Court (the Proceedings) for a declaration that the Relevant Terms

and/or Relevant Charges are not excluded from an assessment for fairness under the

1999 Regulations by reason of Regulation 6(2)(a) and/or (b) thereof.

1.2 The Banks will be cited in the OFT’s Claim Form as Defendants to the

Proceedings.

1.3 The Banks and the OFT agree that the Proceedings will encompass:

(a) a representative selection of the historic Relevant Terms and Relevant Charges

of each Bank of a kind which are in dispute in the county court claims referred

to in paragraph B of the recital;

(b) the Relevant Terms applicable to each Bank’s personal current account

arrangements currently in force with its customers and/or each Bank’s current

Relevant Charges; and

© in cases where any such Relevant Terms or Relevant Charges are due to be

replaced, the replacement Relevant Terms and/or Relevant Charges.

1.4 The Banks will counterclaim against the OFT for declarations that:

(a) the Relevant Terms and/or Relevant Charges are in plain intelligible language,

and

(i) relate to the definition of the main subject matter of the contract, and/or

(ii) provide for payment of remuneration for services supplied by the

Banks in exchange, rather than payment of a sum by the customer for

breach of a contractual duty owed to the Banks

and accordingly, are excluded from assessment for fairness under the 1999

Regulations by reason of regulations 6(2)(a) and/or (b) thereof, and, by reason

of (ii) above, are not capable of amounting to a penalty at common law.

(b) Alternatively, if the Relevant Terms and/or Relevant Charges fall to be

assessed for fairness under the 1999 Regulations, a declaration that it is a

necessary (but not sufficient) precondition to such terms and/or charges being

shown to be unfair within the meaning of regulation 5(1) of the 1999

Regulations that they be shown to be contrary to the requirement of good faith,

and a declaration as to the true meaning of "good faith" for the purposes of the

1999 Regulations.

The issues set out in sub-paragraphs 1.4(a) and (b) and paragraph 1.1 above

are referred to herein as “the Preliminary Issues”.

1.5 The OFT and the Banks hereby agree on the following proposed timetable,

which all Parties will invite the Court to endorse:

(a) Each Bank to file and serve an Acknowledgement of Service within 7 days of

service of the OFT’s Claim Form;

(b) Each Bank to provide the OFT, by 1 August 2007, with a copy of its personal

current account agreements and price lists in relation to the Relevant Terms

and Relevant Charges encompassed within the Proceedings pursuant to clause

1.3 above, together with:

(i) in relation to any historic Relevant Terms or Relevant Charges, a

statement of the dates on which such Relevant Terms or Charges

applied; and

(ii) in relation to any replacement Relevant Terms or Relevant Charges, a

statement of the date of such change;

© The OFT to serve one composite set of Particulars of Claim relating to the

Relevant Terms or Relevant Charges of each Bank by 31 August 2007;

(d) Each Bank (or, if considered appropriate, the Banks together) to serve a

Defence and Counterclaim by 28 September 2007;

(e) The OFT to serve a Reply and Defence to Counterclaim by 26 October 2007;

(f) The first Case Management Conference (CMC) to be held on the first

available date after service of the Defence and Counterclaim of the Banks; if

the Court permits, the date of the CMC will be arranged through the normal

channels as soon as the Claim Form has been issued;

(g) Directions to be sought at the first CMC to deal with the following matters

(unless dealt with earlier, if the Court should so decide):

(i) extent and/or timing of evidence by way of witness statements or

otherwise;

(ii) extent and/or timing of any disclosure;

(iii) listing of trial, including time estimate, with the Parties aiming for a

trial as soon as reasonably practicable;

(iv) if appropriate, intervention by any other banks desiring to join the

Proceedings;

(v) if unresolved, the stay of other proceedings in the Courts which raise

the Preliminary Issues and related issues.

1.6 The OFT recognises the desirability of achieving a fair and orderly resolution

of the relevant issues and will not object to any request or application for a stay of

other court proceedings between the Banks and their customers concerning the

Relevant Terms and/or Relevant Charges.

2. THE OFT INVESTIGATION

2.1 The Investigation will continue unaffected by the commencement of the

Proceedings.

2.2 The OFT and the Banks agree to cooperate to ensure that the Investigation is

carried out and completed expeditiously.

2.3 The Banks undertake:

(a) not to contend during the course of the Investigation that the Investigation

should be suspended and/or not to contest any step therein by reason of the

Proceedings being afoot and/or judgment on the Preliminary Issues being

awaited; and

(b) to co-operate with the OFT in its conduct of the Investigation and in particular

expeditiously to provide documents and information sought by the OFT in so

far as practicable and not to contend that such documents or information are

only liable to production if the Preliminary Issues are decided in favour of the

OFT.

3. AMENDMENTS

3.1 If, at any time, the OFT (i) concludes the Investigation, and (ii) forms a view

which is or includes an assessment that the Relevant Terms or Relevant Charges of

any Bank are unfair within the meaning of the 1999 Regulations, and (iii) as a result

requires the Banks (or any of them) to do anything which they are not prepared to

undertake to do in connection with the Relevant Terms and/or Relevant Charges, then:

(a) the OFT may amend its Statements of Case in the action so as to include a

claim against the Banks (or any of them) for a declaration and/or an

undertaking to the Court (and/or such other relief as the OFT may consider

appropriate, including a final injunction or enforcement order) (and the issues

raised by those amendments (and any consequential amendments made by the

Banks) are hereafter referred to as the Substantive Issues);

(b) the Banks will not oppose such amendment being made whether or not they

could have argued that such amendment is late in the day, or seeks to

introduce a claim that was not in existence at the time the original claim form

was issued, or that one or more of them have an appeal pending in relation to

the Preliminary Issues, or is in any other way inconvenient or undesirable;

© if the OFT applies to amend its Statements of Case prior to the trial of the

Preliminary Issues the Parties will seek the consent of the Court to the

adjournment of the trial so as to permit the proposed amendment to be

effected, provided that if the OFT applies to amend its Statements of Case as

aforesaid less than 60 days before the date fixed for such trial the Banks may

decline to agree to adjourn the trial;

(d) the Parties will seek new directions from the Court for further pleading and as

necessary for the preparation for and/or holding of a trial or trials of the

Preliminary Issues and/or the Substantive Issues.

4. APPEALS BY THE BANKS

4.1 If (i) the Preliminary Issues are determined prior to the Substantive Issues, and

(ii) any Bank appeals any part of the Court’s determination, then:

(a) Subject to (b) below, the Bank/s in question will seek to have any such appeal,

whether to the Court of Appeal or beyond (including a reference to the

European Court of Justice, if any), heard on an expedited basis, and undertake

to take all reasonable steps to ensure that the said appeal is conducted and

determined on an expedited basis as soon as is reasonably practicable;

(b) but the OFT reserves the right to apply at any stage for the trial of the

Substantive Issues to be held before any appeal (at any level) is heard, or for

any appeal to be stayed pending the trial of the Substantive Issues.

4.2 If:

(a) the Court holds, in relation to the Preliminary Issues, that the Relevant Terms

and/or Relevant Charges are not susceptible to an assessment of fairness under

the 1999 Regulations; and

(b) at that time the OFT has not yet concluded the Investigation; and

© the OFT appeals that decision, and continues to conduct its Investigation,

then the Banks agree to continue to cooperate with the Investigation to enable

it to be completed expeditiously notwithstanding the finding of the court of

first instance.

5. COSTS

Each Party is to pay its own costs of and associated with the Proceedings and of any

appeals by any Party, and accordingly no Party will seek an order for costs against

any other.

6. FSA

6.1 If, at any time after the completion of the trial at first instance of the

Preliminary Issues, the FSA wishes to join in the Proceedings, then the Parties agree

not to oppose such joinder and clauses 3.1(b) to (d), 4.1 and 5 above shall apply to the

FSA mutatis mutandis.

6.2 In the meantime, the OFT and the Banks will keep the FSA informed of the

progress of the Proceedings and, in particular, will serve on the FSA copies of any

Statements of Case, evidence and other documents that they serve on each other as if

the FSA was a party to the Proceedings.

6.3 The Banks agree that the OFT may share with the FSA any information that

the OFT receives from the Banks during the course of the Investigation and the FSA

agrees to hold such information subject to section 348, Financial Services and

Markets Act 2000.

7. GENERAL

7.1 Subject to paragraph 7.4, this Agreement comes into effect at 7.00am on 27

July 2007 and not before.

7.2 Nothing in this Agreement shall affect the market study of personal current

accounts which the OFT is presently conducting.

7.3 It is intended that this Agreement shall be a public document.

7.4 This Agreement may be executed in any number of counterparts and by the

Parties and the FSA on separate counterparts, but is not effective until each of the

Parties and the FSA has executed at least one counterpart.

7.5 A copy of the signature page to this Agreement that is sent by facsimile shall

constitute adequate proof of the execution of this Agreement by the relevant party.

Signed for and on behalf of the Office of Fair Trading

By:

Signed for and on behalf of Abbey National plc

By:

Signed for and on behalf of Barclays Bank plc

By:

Signed for and on behalf of Clydesdale Bank plc

By:

Signed for and on behalf of HBOS plc

By:

Signed for and on behalf of HSBC Bank plc

By:

Signed for and on behalf of Lloyds Bank plc

By:

Signed for and on behalf of Nationwide Building Society

By:

Signed for and on behalf of the Financial Services Authority

By:

[saintly_1]

Early day motion --->> EDMDetails

[foxxy27]

hi smutley and saintly1

 

thanks for that just to check tho, do i need to print out what smutley sent me? if so what about that bit at the bottom with the signed by bits??

[saintly_1]

No ..... just the link i posted

[foxxy27]

hi saintly1

 

sorry to be a pain but i followed the link you gave me for the court bundle and statement of evidence, its all printed out but ive noticed that in the statement of evidence there are references to some case files - nicole rich, bounced cheques billion dollar profits, the money programme and peter mcnamara but in the court bundle that ive printed out these case files arent mentioned. there are other case files tho, do I need to find the ones ive mentioned and print those out too?

Tara:rolleyes:

[saintly_1]

http://www.consumeraction.org.au/downloads/DL29.pdf nicole rich will hunt down the peter macnamara for you

[saintly_1]

http://www.consumeractiongroup.co.uk/forum/cuttings-soundfiles-library/118-peter-mcnamara-bbc-radio.html

 

BBC NEWS | Business | The Money Programme bank commission

[foxxy27]

hello saintly1

 

dont know if you seen the reply i sent above, would also like to check you said to print out just the link you gave me, i gather thats the early day motion? ive printed that out. thankyou for that but what is the oft summary??

[saintly_1]

this -->> http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

[foxxy27]

thankyou so much saintly1 your a total star will go and print those out now

 

tara

[foxxy27]

hi all,

 

ive finally completed my bundle and its ready to send. just wondering if I need to include a letter with the one im sending to my bank? and if so what does it need to say?

 

Tara

[saintly_1]

All you need to put is something with

 

foxxy27 v Barclays Bank

claim no xxxxxxxx

 

and address it to

 

Barclays Legal & Compliance

Litigation & Disputes

Level 29

One Churchill Place

London

E14 5HP

[foxxy27]

hello all,

 

ive received a reply from the bank after sending them my bundle, not sure what it really means, it says:

 

since you filed your claim in court, barclays along with a number of other banks has now become involved in legal proceedings with the oft in relation to bank charges which we believe will resolve the legal issues regarding the fairness and legality of your bank charges. you should be aware that the bank will immediately apply to the court for an order to stay your action until the resolution of the banks proceedings with the oft. As a result your case is likely to be put on hold until the outcome of these proceedings is known.

Given this court case we have asked the financial ombudsman service not to proceed with any other case they are hearing until the test case is resolved. The FOS has indicated that as a general proposition it will indeed not proceed with cases which rely on the legal issues being considered in the test case.

We have asked the financial services authority to suspend the normal timetable for dealing with bank charges complaints and the fsa has agreed to this request subject to conditions that protect your rights.

we will keep you updated appropriately about the proceedings with the oft.

we can assure you that we have registered and stored your complaint. please retain your bank records as it will make it easier for you to support your complaint on resolution of the test case.

Once the legal proceedings between the oft and the banks finish we will resolve your complaint as quickly as possible applying the test case principles.

As a general matter we will ensure that your claim will not be adversely affected by the stay of your court proceedings.

 

Its signed by thomas hickey, legal clerk for barclays.

 

what does this mean should i be worried?

[slick132]

Foxy, This is standard letter they've sent out to all who areinvolved with Bank Charges claims (even I got one and they settled with me last month).

 

The advice is to continue with your claim as normal. This letter IS NOT in response to your Court Bundle sent in to Barclays.

 

Slick

[foxxy27]

ok thanx for that slick, well just waiting to go to court now my date is for november.

[foxxy27]

hello all

 

Well obviously I am not now going to court in November, ive received a letter yesterday it says:-

 

Dear sir/madam

 

In this claim you are pursuing a bank on the basis that the terms and conditions under which charges have been imposed on you by the bank are unfair within the meaning of the unfair terms in consumer contracts regulations 1999 and/or constitute unenforceable penalties.

 

On 25 July, a number of the larger banks entered into an agreement with the office of fair trading and the financial services authority under which proceedings would be commenced by 27 july and pursued expeditiously in the commercial court to determine on a test case basis these very issues. David Steele J has been assigned to handle the commercial court litigation and, on 30 july, at a case management conference he issued directions with a tight timetable with a view to the issues being tried in january/february 2008.

 

The commercial court litigation has been designed to ensure that the issues are dealt with expeditiously, fairly and in an orderly manner. It is likely that the litigation will either determine or at least give considerable guidance to the outstanding individual cases, including your claim. In the circumstances, the designated civil judge for devon and cornwall is anxious that parties to individual claims in devon and cornwall are not put to unnecessary costs until the outcome of the commercial court litigation is known.

Therefore in relation to your claim he has made an order on the courts own motion that the case be stayed with immediate effect, pending the ultimate outcome of the commercial court litigation (including any appeals that may be made)

 

Of course, if either you (or the bank to whom this notice is being sent) consider that irrespective of the commercial court litigation, this individual claim should proceed now then you may apply to the designated civil judge for devon and cornwall for the stay to be lifted. Any application should set out why this individual action should be allowed to proceed now, given the commercial court litigation has been designed to determine the issues which apparantly lie between the parties in your case. In any event the judge will issue further directions in this case once the commercial court litigation has been determined.

 

A copy of this letter and the accomanying order are also being sent to the defendant bank.

 

Yours faithfully

Mr B Boulton

 

 

 

 

Just wondering whether I need to do anything now?? or do I just wait and see what happens?? Not feeling too confident anymore!

[slick132]

Hi Foxy,

 

No, that's it just now until the Test Case.

 

You are free to make an application for removal of the stay, but it appears you'd be wasting time, energy and money - stays, once applied are not being lifted by the courts.

 

First time I seen this letter though.

 

Slick

[foxxy27]

thanks slick;)