Thecolourofmoney v barclays ###won###

[thecolourofmoney]

Hi,

 

Just looking for a little advice.

 

I am currently awaiting Barclays defence they acknowledged on 11th May.

 

Am I right in thinking that when my case is allocated to my local court I should then receive direction from the court. (Prob wont receive an AQ judging by recent cases)

 

At this stage I issue the draft order letter to the courts (using the templates provided) allowing Barclays 14 days to provide what is stated in the order? Also sending the standard letter to Barclays solicitors whilst making sure I have my documents and court bundle which I already have incase the judge accepts this.

 

During the 14 period I should ring Barclays and query why I haven't received their court bundle and enquire if they wish to settle out of court?

 

If I have gone wrong at any stage please provide any advice and guidance as all would be appreciated.

 

Kind regards

TCOM

[thecolourofmoney]

*** Bump *** Still looking for help on prevs response.

 

Have also just finished speaking to Barclays Customer Relations who are actively looking for a copy of the T&Cs that I agreed to in 1992, not holding much hope.

 

TCOM

[thecolourofmoney]

** update **

 

Standard defence has been filed. I assume now that my court date will follow.

 

My question is, one recepit of this should I send my draft order for direction letter (the one dispensing with the AQ) immediately?

 

Thanks

[dar£n]

COM

Do me a favour, could you just post their defence clause #1, just to be safe.

 

ta

[thecolourofmoney]

Hi Dar£n,

 

Its at home at the moment, will update thread tonight for you.

 

Thanks for your help.

 

TCOM

[saintly_1]

TCOM .... the items requested are at this moment in time flying through cyberspace at warpspeed on their way to you

Hope they help

Saint

[thecolourofmoney]

Hi,

 

I am after a bit of advice please. I have almost completed my court bundle for when I need to send them to the relevant people and I am including a copy of the T&C's (1996) kindly supplied by saintly.

 

Do I need to put anything else in my court bundle in relation to the t&c's....Ive read something abt clause 4.21 of OFT summary etc?

 

On recepit of my court date, Im going to go down the route of issuing a draft order for directions, hopefully the judge will grant the order.

 

If the judge does not grant the order and Im left to send off my bundle do I include my statement of evidence in the bundle.

 

Thanks very much.

 

Colin

 

aka TCOM

[dar£n]

The basic court bundle does the job nicely so if youve got any further docs that you feel would help your defence [like the T's n C's] then slap em in.

I put in mine, recent news reports, letter to MP etc,

but in the end it was all pointless cos the judge never got to open it as they settled as they do just before the hearing.

 

What I would do i wait until just before your deadline for submitting the court bundle, then contact the Litigation Team to find out if they want to settle.

[thecolourofmoney]

Hi Dar£n,

 

I thought as much my friend.

 

As you say its all a pointless exercise but best be prepared incase. I will finalise my bundle and send them of when required and contact Krysta etc nearer the time.

 

Thanks for your help as usual.

 

[thecolourofmoney]

**** UPDATE ****

 

 

Case now been transferred to Liverpool County Court, currently awaiting a date. Scroll down for Barclays defence.

 

I would be grateful if anyone could advise me on point 10. My account opended in 1992 and closed in 2005. I have claimed charges for the last 6 years that I banked with Barclays Oct 1999-Oct 2005.

 

Looking at point 10 of their defence it appears I am barred under the Limitation Act from claming pre-April 2001? I would be grateful if someone could scan over the defence and answer my question about point 10.

 

Thanks TCOM.

 

 

1. The particulars of claim do not provide details of the precise charges alleged to have been unlawful, or the date thereof. To the extent it is alleged that the claimant incurred bank charges on his account for unauthorised borrowings (whether unpaid fees for returned cheques, "paid referral fees" or any other such fees), the defendant puts to the claimant to strict proof of each charge and the date thereof.

 

 

2. The particulars of claim are summary in nature. Accordingly, this defence is summary in nature and the defendant reserves the right to amend this statement of case in due course.

 

3. The defendant is entitled to charge the claimant for unauthorised borrowings by reason of its standard terms and conditions. The claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summerised):

a) the defendants right to charge a "paid referral fee" where the defendant pays an amount (either by compulsion or election) which allows the account to become overdrawn - £30 per item (previously £25).

b) The defendant’s right to charge an administrative fee is any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).

c) The defendant’s entitlement, if the claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

 

 

4. The defendant’s standard terms and conditions give the claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the claimant exceeds the overdraft limit)

 

 

5. If and to the extent it is the claimants case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits and / or failure to arrange an authorised overdraft limit constituted a breach or the terms applying to the account and that the contractual entitlement to debit charges from the claimants account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the claimant agreed to make by reason of the terms and conditions of her account and were consideration for the defendant advancing credit to the claimant, which the defendant was under no obligation to advance. The defendant was entitled to impose such charges and interest when the claimant incurred the overdraft.

 

 

6. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the unfair terms in consumer contracts regulations, or are in breach of s.4 of the unfair (contracts) terms act 1977, (or any other provision) or are unreasonable within the meaning of s.15 of the supply of goods and services act 1982 (or any provision).

 

 

7. Therefore, it is denied that the charges were unlawfully debited from the account.

 

 

8. If and to the extent the claimant incurred charges on his account, this was caused by the claimant having gone into overdraft without having agreed with the defendant an unauthorised overdraft facility or to increase the overdraft facility and / or her failure to make payments to bring the balance of the account back into credit.

9. It is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same.

 

 

10. The defendant denies that is liable to the claimant for the sums claimed and interest as or at all. In the alternative if, (which is denied) the said charges are enforceable and constituted a breach of contract by the defendant, those charges which were applied to the account prior to 24th April 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than 6 years have elapsed since the accrual of the cause of action.

 

11. In alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the claimant or at all, and the charges were a consequence of the breach of contract by the claimant, the defendant has nonetheless suffered loss and damage as a consequence of such a breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the defendant seeks to set off such sums against any liability owed hereunder to the claimant.

 

**** END****

[thecolourofmoney]

**** Can anyone help or provide advice following my previous note ****

 

Thanks TCOM

[saintly_1]

Been trawling through some threads cos i know ive read the exact wording of the section but cant find it at the moment but its along the lines of the claimant has only just found out that the charges are unlawful

 

http://www.consumeractiongroup.co.uk/forum/general/80486-claiming-beyond-6-yrs.html?highlight=limitations

 

i know that is about claiming beyond the 6 years but the this paragraph could be argued

 

I do not believe that the Limitation Act offers any long-stop mechanism so that if you concealed the facts one year ago then you do not merely accrue an additional year of liability. I think that a single instance of concealment invokes s.32 and the limitation barrier falls away completely.

[dar£n]

10. The defendant denies that is liable to the claimant for the sums claimed and interest as or at all. In the alternative if, (which is denied) the said charges are enforceable and constituted a breach of contract by the defendant, those charges which were applied to the account prior to 24th April 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than 6 years have elapsed since the accrual of the cause of action.

They are claiming SOL S5

Section 5 of the Limitation Act states that the action must be brought within 6 years of the cause of action, ie. when the charge was made. The act also defines 'action' as meaning court proceedings. Practice Direction 5.1 (CPR Part 7) also defines the bringing of the action as the date the claim form is issued.

 

Then you defend with S32 b

Section 32. Postponement of limitation period in case of fraud, concealment or mistake

 

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant;

or

© the action is for relief from the consequences of a

mistake;

 

the period of limitation shall not begin to run until the plaintiff has

discovered the fraud, concealment or mistake (as the case may be)

or could with reasonable diligence have discovered it.

Your defence:

The concealment in clause (b) does NOT refer to the charges at all. It refers to the concealment of the UNLAWFULNESS of the charges (the Cause). The banks knew (know) the charges were unlawful, and concealed (in fact, continue to conceal) that fact. Clause (b) is, in my opinion, fully in force. You were advised by a third party that the charges were unlawful and are proceeding with your action on that basis; therefore your six years begins when you were informed.

 

 

 

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31575-important-things-you-really.html?garpg=6

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56083-rbs-claiming-six-years.html?highlight=limitations+act

 

Limitation Act 1980 (-), acts@swarb.co.uk, David Swarbrick, Solicitor, Wrigley Claydon

[saintly_1]

i knew i had seen it somewhere thnx daren

[thecolourofmoney]

Daren & Saintly you are both very knowledgable and helpful, thank you so much.

 

At what stage do I counter their argument with my defence under Section 32 (b)....I assume it would be when I/We are attempting to settle over the telephone later down the line (still awaiting court date you see.

 

Draft order with directions letter sent to court today with letter to Barclays Sols advising the AQ has been dispensed with and asking them to settle thus avoiding court.

 

Kind regards

 

TCOM

[saintly_1]

I doubt when it comes to settlement discussions the charges outside the 6 years will be mentioned by them

[thecolourofmoney]

Hi Saintly,

 

What should I do in the meantime, is it a case of sitting and waiting?

 

TCOM

[saintly_1]

Yes its just playing the waiting game till you get your court date through as you have your court bundle ready

[thecolourofmoney]

Thanks saintly. Oh yes, my court bundle is 99% complete and ready to be winged off when requested or required.

 

So just to be straight, I don't have to do anything just yet in respect of their argument to the limitation act until they mention it, then I counter with my defence.

 

Thanks TCOM.

[saintly_1]

you could add the relevant statute of limitations act to your bundle ... as you would be using this as evidence should it get to court read the links that daren posted earlier

[thecolourofmoney]

Already printed that off, thanks for the advice, will now incorporate it in my bundle.

 

Thanks again

TCOM

[thecolourofmoney]

I have found this to add to my bundle. Perhaps something on the lines of:

 

In so far as any charges relating to the period before 24th April 2001, the claimant wishes to invoke s.32 (b) of the Limitation Act 1980.

 

The Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus an essential fact relevant to the Claimant's right of action was concealed.

 

Alternatively the Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches.

 

The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are likely to be much lower and have thus been concealed and continue to be concealed by the Defendant and that the belief held by Claimant was in fact mistaken.

 

It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until my reasonable discovery. This was the 21st March 2007 when the revelations were made public.

 

Any thoughts?

[dar£n]

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56083-rbs-claiming-six-years.html?highlight=limitations+act

[thecolourofmoney]

Hi Daren, sorry to be a pain could you advise me on the following.

 

I have have copied and pasted the rbs thread and amended the basis for my claim to suit my one. Should I include this in my court bundle or issue a counter argument now? If I have put too much in or lost the plot your help would be appreciated....becoming a little bit above my limited intelligance now !!

 

BASIS FOR MY CLAIM

 

I do not accept that the claim is time barred by virtue of Section 5 of the Limitation Act (1980) on the following grounds.

 

1. If the charges are time barred by virtue of section 5 of the Limitation Act (1980) then I contend that the defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the defendant truly believes that these charges are lawful, then I contend that the defendant is mistaken. As I only became aware during March 2007 that the charges debited were unlawful, then section 32(1)(b), or section 32(1)©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period.

 

2. The Claimant holds that if the Defendant did not take legal counsel on this issue, and are genuinely unaware that the said charges are unlawful, and that the court does not uphold the Claimant’s view that section 32(1) (b) of the Limitation Act 1980 should apply, then the Claimant holds that section 32(1) © of the said Act should apply.

 

 

3. In April 2006 the Office of Fair Trading published "Calculating Fair Default Charges in Credit Card Contracts" ( A statement of the OFT’s position, page 12). Paragraph 1.1 of the report states that whilst it deals with credit card contracts,

 

"The principles have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and store cards".

 

Paragraph 1.3 states:

 

"The statement sets out our view of the law which is in essence that default charge provisions are open to challenge on grounds of unfairness if they have the object of raising more in revenue than is reasonably expected to be necessary to recover certain limited administrative costs incurred by the credit card issuer".

 

4. Based on discussions with the banks and information provided by them, the OFT determined a simple monetary threshold for intervention by the OFT on default charges under credit card contracts of £12 (OFT sets threshold for intervention, page 12). This threshold is significantly lower than the default charges levied by almost all credit card companies and it is therefore reasonable to conclude that the credit card companies were aware that these charges were intended to generate a profit over and above the cost of remedying contractual breaches by customers. Given that the credit card companies have consistently refused to provide a breakdown of their costs to demonstrate that their default charges are not punitive in nature I believe that they deliberately concealed the nature of these charges from their customers.

 

5. As the OFT has stated that the principles underlying its report on credit card default charges are analogous to standard default charges in bank current accounts, I contend that it is likely that the Defendant and other banks have concealed the punitive nature of current account default charges from me and other bank customers. I therefore further contend that Section 32(1)(b) of the Limitation Act (1980) applies and that my claim is therefore not time barred. In order to determine whether this view is correct it may be necessary for the Court to consider ordering standard disclosure. I am therefore seeking disclosure of this information as set out in paragraph 10 below.

 

6. If the true nature of the default charges applied to the Account by the Defendant were not deliberately concealed from me, I contend that the Defendant mistakenly set these charges with the view of generating a profit and 32(1)© of the Limitation Act should apply. I base this assertion on the principles set out in the OFT report and the Defendant’s failure to defend claims for the refund of default charges applied to bank accounts where the issue of time barring has not arisen, if the defendant did not mistakenly set the charges with the view of generating a profit, then I paid the charges in the mistaken belief that they were lawful, and I further contend section 32(1)© of the limitation act should apply.

 

7. Based on a survey undertaken by the Consumer Action Group, the Defendant has refunded charges totaling approximately £736,353 to a growing number of customers since January 2006. Over the same period UK banks have, according to the survey, refunded £12508745 to 7982 people; all of these claims have been settled before a Court hearing has taken place. Since March 2007 I personally have received full settlement offers regarding charges, one after issuing a court claim and the second after threatening court action, I contend that this is because the Defendant and other banks are aware that their default charges are likely to be judged unlawful.

 

SUBMISSIONS TO THE COURT

 

8. I contend that this claim is not time barred by virtue of Section 5 of the Limitation Act (1980) for the reasons set out above.

 

9. If the Court does consider that the claim is time barred by virtue of Section 5 of the Limitation Act (1980), I ask the Court to consider the arguments set out above in respect of Sections 32(1) (b) and 32(1) © and allow this matter to proceed to the full hearing in which these arguments may be considered in detail.

 

10 Accordingly I would respectfully ask the court in this case, not withstanding allocation to the small claims track, order standard disclosure, I understand it is in the courts discretion to do so, this to specifically include a breakdown of the defendant’s losses due to contractual breaches compared to the costs incurred by the claimant as a result of the breaches.

 

[thecolourofmoney]

*** UPDATE ***

 

Still awaiting court date however, additional payment of £100 has been paid to the courts and case has been allocated to the small claims track.

 

p.s Does anyone know how you change the title of a thread?

 

TCOM