13 point defence

[plato888]

Hi

 

I have received a copy of Barclays defence from the court today regarding my claim, it includes 13 points of defence which concerns me a little as throughout the forum people seem to be referring to 6 or 9 point defences. Is there anything to be worried about ?

 

many thanks

[welshcakes]

plato - laborious as it would be, is there anyway you could post their defence - it'll ensure that experienced members can assess accurately and with provide meaningful advice.

[plato888]

ok as suggested welshcakes here goes...

 

1. Th particulars of claim give no recognisable cause of action, nor is there sufficient material to enable Barclays to serve more than a bare denial of liability as a Defence. The statement of case would appear to be an abuse of process and / or will obstruct the disposal of the proceedings and it does not appear to comply with CPR r16.2.

 

2. The defendant respectfully requests an order that the claim be struck out pursuant to CPR r3.4 as it does not disclose reasonable grounds for bringing a claim and is an abuse of the court's process.

 

3. If an order to strike out is not considered to be appropriate, to the extent it is alleged that the claimant incurred bank charges on the claimant's account for unauthorised borrowings (whether unpaid fees for returned cheques, "paid referral fees" or any other such fees) the defendant puts the claimant to strict proof of each charge and the date thereof.

4. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard T & C's. The charges constitute payments the Claimant agreed to make by reason of the terms and comditions of the Claimants 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. The claimant accepted the same when the account was opened.

 

5. The standard t&c's included (in particular but without limitation) the following t & c's (summarised:)

 

a) The Defendant's right to charge administrative costs if any cheque, standing order or direct debit cannot be paid because of lack of cleared funds in the account £30 per item (prev. £27.50)

b) The Defendant's right to charge administrative costs if the Defendant was complelled to pay any items which caused the account to be overdrawn - £30 prev £27.50

c) The defeants right to charge an unauthorised overdraft fee of £3 per day

d) The defendants entitlement to refuse any debit transaction or debit card transaction where there were insufficient cleared funds in the account and to debit from the Claimants account any charges, interest or other money which became payable by the Claimant to the Defendant in relation to the account.

e) The Defendants entitlement, if the claimant went overdrawn without an overdraft limit or exceeded her overdraft limit, to charge interest on the unauthorised borrowing rate on the excess balance.

f) The Defendant's entitlement, if a cheque or other item paid to the account was returned unpaid, to debit the account with the amount of that item together with any interest paid by the defendant on it.

 

6. The defendants standard T&C's give the claimant a fair and transparent viewe of those terms and the charges applicable for unauthorised borrowings (including where the claimant exceeds her authorised overdraft limit).

7. 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 constituted a breach of the terms applying to the account and that contractual entitlement to debit charges from the Claimant's account constitutes a liquidated damages clause, the same is denied. Paragraph 3 above is repeated.

 

8. For the reasons set out above and in the premises 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 1999.

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

 

10. If and to the extent the Claimant incurred charges on the account, this was caused by the Claimant going into overdraft without having agreed with the Defendant to increase overdraft facility and / or failure to make payments to bring the balance of the account back into credit or back within the authorised overdraft limit.

11. 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.

 

12. In the 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, the defendant nonetheless suffered loss and damage as a consequence of the claimants 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.

 

13. The defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the claimant or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges aserted by the claimant to have been applied to the account prior to 17th May 2001 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, persuant to the limitation act 1980.

 

On behalf of Barclays Rosemary Treves Brown Solicitor.

 

 

there.....what a mouthful !!

[welshcakes]

BUMP for advice from a Mod or any1 else with Litigation experience with Barclays/Woolwich.

[welshcakes]

platto

 

There isn't much posting activity on Woolies forum of late as every1 seems to be going over to Barclays forum and since your defence is from B's, it'll probably get an instant reply if you cut and past it onto that forum