car2403 -v- Barclays Bank (Default removal)

[speedtrip]

Blimey, all good stuff and i will need to get my head around all of this.

 

Obviously, you got your bank charges back before the OFT ruling so you were in a good position to use this as leverage. As my bank are hiding behind the OFT ruling im not in that position.

 

I note you comments re o/d so it seems that I go to court requesting 1) evidence of agreement etc, 2) default removal 3)return of bank charges then there defence could be essentially "a copy of their procedure manual" relevant at time of relevant letters issd, "computer service history", and testimony under oath from member of staff.

 

Given that I have banked with my bank since 1980 and would have overdrafts offered to me during the course of the last 20 plus years which would may have included automated letter perhaps, notes on statements none of which I can remember formally agreeing to. If anywhere these would have been included in the original t&c and other accounts I took out in 2004. The later accounts may have their records in better shape but the amount is very small.

 

What I do know is that i had a small o/d in 2004 and the o/d limits on my statements were reviewed at regular intervals and increased considerbly. I will to see what letters I may have offering o/ds and see how these came about.

 

As regarding processes it really depends on how well organised they were when the relevant letters were issued and having been a business analyst for insurance compliance who is used to this line of work i know how difficult it can be.

 

Talk soon and thanks

[car2403]

I've had a CC letter from Barclays to the Court;

 

 

 

Here's my response to this;

 

Dear Sir/Madam,

 

I, the Claimant in the case above, refer to the Allocation Questionnaire and Draft Order for Directions recently submitted to the Court. I also refer to a letter to the Court from the Defendant, dated 31 December 2007, in which the Defendant objects to the Draft Order for Directions.

 

I would be grateful if the Court could consider the content of this letter, a response to the Defendants letter, in addition to that already submitted in the Allocation Questionnaire and relevant attachments already, when issuing further case management directions.

I would like to draw the Courts attention to a CPR Part 18 request for information that was sent to the Defendant on 1 December 2007 - the Defendant failed to reply to this request, so I wrote again in a letter dated 17 December. The Defendant has replied stating that they will not comply with this request until ordered to do so by the Court. (Copies of documents I refer to are attached) It is at this point in the proceedings that I have requested Special Directions be ordered by the Court in the form of the Allocation Questionnaire submitted.

 

It appears that the Defendant wishes to avoid producing the documentation requested in both the CPR Part 18 request sent by the Claimant and also wishes to avoid producing that documentation under Directions ordered by the Court. I would refer the Court back to my argument at Section G of the submitted Allocation Questionnaire that, should the Defendant wish to rely on its own defence, production of that documentation should be disclosed as soon as possible – to delay further would also alter the balance of power between the parties at any forthcoming hearing.

 

I am aware that the Defendant is not in possession of such documentation, as it has failed to disclose such in pre-litigation protocols and admitted this in its pre-litigation correspondence with me, in full support of its defence to my claim and I would argue that this is the reason why the Defendant wishes to avoid full disclosure prior to a full hearing of the claim;

 

“With regard to your Loan Account, I am afraid that the Bank is unable to locate a copy of the original loan agreement at this moment in time

Please accept my personal apologies on behalf of Barclays Bank PLC for this. Unfortunately due to the size of our organisation, this scenario does occur from time to time.”

Gordon Jennings, Barclays Consumer Finance Customer Relations,

 

in a letter dated 21 September 2007 (a copy of which is attached to this letter)

 

 

 

This, I believe, is an abuse of the Courts process (bringing a defence to a claim based on documentation that the Defendant is not in possession of, and continuing to act in those proceedings under such a defence) and would request that the Court strike out the Defendants defence as such under its powers pursuant to CPR Part 3 Practice Direction 3.4(2)(b). I would also argue that failure to provide that documentation should lead to the Court striking out the Defendants defence under its powers pursuant to CPR Part 3 Practice Direction 3.4(2)(a), as the defence discloses no reasonable grounds for defending the claim.

In the alternative, where it is held that the Draft Order for Directions is not considered appropriate, I would respectfully ask the Court to order the Defendant to comply with my CPR Part 18 request under CPR Part 27 Practice Direction 27.2(3) - I believe that the documentation the Defendant is relying on in its Defence should be disclosed at this time, as this will assist with the equitable and speedy resolution of the issues raised in the Claim. However, it is the Court that holds the ultimate responsibility for case management and it is free, under CPR Part 27 Practice Direction 27.2(3), to order the Defendants compliance if it deems it appropriate in the present case, despite allocation to a small claims track. Nothing in the Defendants objection indicates a legitimate reason for not disclosing the documentation required, other than those implied intentions that I have described above.

In its letter dated 31 December 2007, the Defendant implies that my claim should be stayed pending the outcome of the OFT Test Case in the High Court. I would like to draw the Courts attention to paragraph 18 of my particulars of claim, which confirms that the value of the charges have already been recovered under claim number 7QZ48960. At this hearing, (a solicitor being in attendance representing the Defendant) the Defendant failed to rely on its previously entered Defence statement. In that Case, District Judge Large awarded judgment against the Defendant in that these charges were recoverable under the legal basis they were questioned – this is confirmed by CPR Part 16 Practice Direction 16.5(3), under which a failure to submit (and therefore rely on at trial) a Defence to a claim (or part of a claim) means that the claim (or part of that claim) is accepted as being correct in its entirety. In its pre-litigation correspondence, the Defendant relies on this judgment being made “in default”, as follows;

“With regard to charges, I confirm that whilst judgment was awarded by the court in your favour, this was not a reasoned decision on the merits of your claim, but a decision taken in light of the conduct of the case. Therefore, the money that we have been ordered to pay to you in no way reflects the legality and validity of the charges or your claim. Indeed, the Bank submitted a full and valid defence to your c!aim. It follows that the Court’s decision has no relevance to the default you say was registered against your name, as you did not include any reference to this default (nor any reference to the Data Protection Act 1 998) in your Claim. It is also worth noting that as the charges refunded total an amount which is lower than the current outstanding debt owed to the Bank, the default may have been registered irrespective of the charges.”

Gordon Jennings, Barclays Consumer Finance Customer Relations,

 

in a letter dated 23 October 2007 (a copy of which is attached to this letter)

 

 

 

I would argue that this judgment is indeed relevant to these proceedings as the argument regarding application of CPR Part 16 Practice Direction 16.5(3), above, applies. As the issue of charges in the present case has already been decided, this means that the OFT Test Case is not relevant in the current proceedings. I would therefore request that you turn the Defendants request to stay the case aside for this reason.

In the alternative, where it is held that the claim should be stayed pending the outcome of the OFT Test Case, I would respectfully request that the claimant is ordered to remove any adverse information recorded against me in relation to the Current Account Overdraft and held with the Credit Reference Agencies, until such time that this part of the claim can be heard in full. The basis of this request is that such adverse information is causing my credit reputation harm and I have suffered damage. (As outlined in the claim itself) I would also request that the Court allows the claim regarding the Personal Loan agreement, (paragraphs 1-5, 22-29 and the remainder of the particulars of claim from paragraph 30-50, (insomuch as those paragraphs refer to both the current account overdraft and the personal loan)) to continue, as the OFT Test Case has no bearing on Personal Loan agreements.

 

Yours sincerely,

[car2403]

Full hearing date set (allocation to small claims track - Judge recommends Court Mediation Service, which I might try beforehand) for 15 February.

 

Standard directions ordered;

 

1. The parties must file at the Court and serve on the other party not later than 14 days before the hearing the following: (a) copies of all documents upon which they wish to rely

(b) statements of all witnesses, including the parties, upon whose evidence they wish to rely.

The statements shall be typed, dated and signed by the witness and stating that he/she believes that the facts stated in the witness statement are true.

2. All original documents must be brought to the hearing.

3. Parties should note that if they do not file and serve documents and statements as set out above then the Court may decide not to admit the evidence of the party in default.

 

Hearing fee of £75 is due before 22 January. (One of those new fees introduced since October last year)

 

I'll be amending my HFC POC, which is here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1305973 (post #140 if the direct link doesn't worK)

[car2403]

Right, nothing from Barclays ( ) so I have to part with a £75 hearing fee!

 

Here's my skeleton argument; (I won't be making changes to this myself, but if you see anything missing/needing alternation, can you let me know? Read it TOO many times to see the errors now!)

 

 

 

Claim Number:7*******

 

 

 

In the **** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

Barclays Bank PLC

 

 

(Defendant)

 

 

 

 

 

_______________________

 

STATEMENT OF EVIDENCE &

SKELETON ARGUMENTS

SUBMITTED BY THE CLAIMANT

_______________________

 

 

 

REASON FOR SUBMISSION OF THIS STATEMENT AND ITS INTENDED USE;

 

1. I, car2403, the Claimant in this case, make this statement of evidence and outline my skeleton arguments from my own knowledge or experience, excepting for where reference is made to specific documentation contained within the exhibits attached where this statement is made in support of said documentation.

 

 

2. This statement is submitted by the Claimant (a litigant in person) and outlines its case in claim against the Defendant.

 

 

3. It is intended this statement will expedite the upcoming hearing and elucidate and clarify the issues that appear to the Claimant to be hampering the speedy and equitable resolution of this case.

 

BACKGROUND TO THE CASE;

 

 

4. The Claimant admits that it has held an Overdraft on a Current Account with the Defendant since before 1996, with a sort code of ****** and account number of ********. The Claimant also admits that it has held a Personal Loan agreement with the Defendant since before or around 2000, with a sort code of ******and account number of ********.

 

 

5. Each agreement is alleged by the Defendant, inter alia, to be enforceable against the Claimant under the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) as amended, and the subsequent regulations made under that Act.

 

 

6. The Defendant denies that the agreements can be argued to be a Consumer Credit Agreement, pursuant to s.8 and s.13 CCA 1974, or said to be regulated by that Act, for the reasons stated in this document. The Claimant will outline its contention that the agreements are unenforceable under the Act and, therefore, the Defendant cannot seek enforcement via the Court. The Claimant will then outline the reasons he believes that the Defendant has unlawfully Defaulted and Terminated the accounts as a result of the application of charges applied by the Defendant and the Defendant’s failure to comply with the prescribed Default/Termination procedure contained within Act.

 

 

7. The Claimant will further argue that the Defendant is in breach of the data protection principles laid down by the Data Protection Act 1998, (herein referred to as “Data Protection Act 1998”) as amended, and, in doing so, the Defendant has breached its obligations under that Act, in that it is processing and sharing incorrect and inaccurate data relating to the Claimant, thereby causing him damage.

 

 

 

PART 1:

CONSUMER CREDIT ACT 1974

 

 

 

PRE-LITIGATION CORRESPONDANCE;

 

 

8. During August 2007, after performing an audit of his Credit Reference Files, held by major Credit Reference Agencies, the Claimant discovered that the Defendant had recorded a Default entry against the Claimant in relation to the alleged Overdraft agreement on 21 March 2005, with the original Default amount being recorded as £1,447 and an outstanding balance of £1,228. (The entry last being updated on 1 September 2007. Reference is made to highlighted parts of an extract of the Claimants Credit Reference File, attached, “Exhibit 1”)

 

 

9. The Claimant wrote to the Defendant on 11 August 2007, (“Exhibit 2”, as attached) making a request as per the obligations outlined under s.78 CCA 1974. This request was sent by Royal Mail First Class Post with Recorded Delivery - Royal Mail confirms receipt of this request on the 16 August 2007, which gave the Defendant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was, therefore, 3 September 2007.

 

 

10. The Claimant outlined his reasoning for the Overdraft agreement being regulated by the CCA 1974, in that the agreement is “running account credit” within the terms of s.10 CCA 1974.

 

 

11. In a response from the Defendant, in a letter dated 6 September 2007, (“Exhibit 3” attached) an alleged copy of the original Overdraft agreement Termination Notice was supplied. The Defendant stated that “due to the nature of this account, [there] is no form of agreement that [the Defendant] can send [to the Claimant]” in reply to his request. An alleged copy of the original Personal Loan agreement and an alleged copy of the original Personal Loan Default Notice were also supplied in that response.

 

12. The matters outlined in paragraph 11, appearing as statements from a Creditor, are binding on the Defendant under s.172 CCA 1974.

 

13. The Defendant, having failed to fully comply with the Defendants s.77/s.78 CCA 1974 request, (as outlined in paragraph 9, above, in that; no statement or statements of account having been supplied at that time and in that the full requirements of s.78(1)(a), s.78(1)(b) and s.78(1)© having not been met at that time also) are in default of that request. The Defendant, therefore, is unable to enforce the alleged agreement against the Claimant (s.78(6)(a) CCA 1974) and has since committed a criminal offence due to its continued default in providing said information. (s.78(6)(b) CCA 1974)

 

 

14. The Claimant replied to the Defendant, in a letter dated 17 September 2007, (“Exhibit 4” attached) highlighting several issues with the documentation sent and outlining his reasoning for believing that each of the alleged agreements are unenforceable under the CCA 1974. The Claimant further requested that the Default information recorded against him by the Defendant be removed as such Default, without a properly executed regulated agreement, would be unwarranted and unlawful, as only a correctly executed regulated agreement can be Defaulted and Terminated under s.87 and s.98 CCA 1974. The Claimant further relied on provisions of the Data Protection Act 1998 within that letter to support his argument – these arguments are outlined in paragraphs 90-101, below.

 

 

15. The Defendants response, in a letter dated 21 September 2007, (“Exhibit 5” attached) outlined the Defendants reasoning for not complying with the Claimants s.10 DPA 1998 Statutory Notice, relying on the fact that the Claimant had consented to the continued processing of his data. The Defendant further stated that “with regard to the Loan Account … the Bank is unable to locate a copy of the original loan agreement at this moment in time”. The Defendant further stated that this was due to the size of the organisation and admitted that this scenario does occur from time to time. The Defendant also claimed to have a “legal responsibility” to continue to process the Claimants data in this way.

 

 

16. The matters outlined in paragraph 15, appearing as statements from a Creditor, are binding on the Defendant under s.172 CCA 1974.

 

 

17. The Claimant further wrote in response to the Defendant, in a letter dated 15 October 2007, (“Exhibit 6” attached) further outlining his reasoning for issuing a Statutory Notice under s.10 DPA 1998 and seeking further clarification on the evidence that the Defendant relies upon to say that the Claimant had consented to such processing of his data, as no such agreement had been properly executed that contains such express written consent.

 

 

18. The Defendant replied to the Claimant, in a letter dated 23 October 2007, (“Exhibit 7” attached) providing, what it relies up on as being, details of the legislation under which it claims to have a legal responsibility to continue to process and share the Claimants data. The Defendant further stated that it would not respond to any further correspondence from the Claimant on this subject matter unless directed do so by the Bank’s Head Office in London.

 

 

19. The matters outlined in paragraph 18, appearing as statements from the Creditor, are binding on the Defendant under s.172 CCA 1974.

 

 

20. The Defendant has further supplied a copy of the alleged terms and conditions of the Claimants Current Account as varied, in a letter dated 5 December 2007. (“Exhibit 8”, attached)

 

 

21. The Claimant avers that such terms and conditions have no bearing on the alleged Overdraft agreement between the parties, as these alleged terms and conditions are in relation to the Current Account, not the Overdraft agreement between the parties.

 

 

22. In the alternative, where it is held that these terms and conditions do relate to the overdraft agreement, which is denied, the Claimant puts the Defendant to strict proof of the Claimants agreement to such terms by submitting original signed and certified evidence of such agreement taking place.

 

 

REQUEST TO THE CREDIT REFERENCE AGENCIES UNDER S.159 CCA 1974

 

23. The Claimant has also challenged the 2 Credit Reference Agencies that continue to allow the Defendant to process incorrect or inaccurate data – Experian PLC and CallCredit PLC. This challenge was mounted under s.159 CCA 1974, in the form of a letter to both Credit Reference Agencies, including correspondence between the Claimant and the Defendant, dated 30 September 2007. (“Exhibit 9”, attached)

 

24. Experian PLC has replied to the Claimant in several pieces of correspondence through their website, outlining that the Defendant has investigated the accuracy of the information held, verifying its accuracy as a result of the Claimants queries; therefore Experians files relating to the Claimant remain unchanged. (“Exhibit 10”, attached)

 

25. CallCredit PLC has not responded to the Claimants correspondence.

 

THE CLAIMANTS CPR PART 18 REQUEST FOR MORE INFORMATION;

 

 

26. The Claimant sent a request for more information under CPR Part 18 to the Defendant, dated 25 September 2007. (“Exhibit 11”, attached)

 

 

27. The Defendant has failed to supply any information specifically referred to in the Claimants request. Namely, the following documentation is missing;

a. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened; and

b. All records the Defendant holds on the Claimant relevant to this case, including but not limited to:

i. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by [the Defendant], or by any previous creditor; and

ii. Where there has been any event in [the Claimants] account history over this period which has required manual intervention by any person, [the Claimant] required disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to [the Claimants] account held with [the Defendant].

iii. True copies of any notice of assignment and/or default notice or enforcement notice that [the Defendant] or the original creditor sent [the Claimant], with a copy of any proof of postage that [the Defendant] holds; and

iv. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable); and

v. Details of any collection charge added to the account; specifically, the date itwas levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers; and

vi. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied; and

vii. A genuine copy of any notice of fair use of [the Claimants] data as required by the Data Protection Act 1998; and

viii. A list of third party agencies to which [the Defendant] has disclosed [the Claimants] personal data and a summary of the nature of the information disclosed; and

ix. Copies of statements for the entire duration of the credit agreement; and

c. Any other documents [the Defendant] seeks to rely on in Court.

 

 

28. The Claimant wrote to the Defendant, in a letter dated 17 December 2007, outlining this failure and requesting that the Defendant do comply with the Claimants request for more information. (“Exhibit 12”, attached)

 

 

29. The Defendant responded, in a letter dated 19 December 2007, stating that it would not reply to the Claimants request for more information until ordered to do so by the Court. (“Exhibit 13”, attached)

 

 

30. The Defendant has failed to respond to the request for more information.

 

 

31. The Claimant avers that this failure on the part of the Defendant results in the Claimant being unable to submit complete particulars of claim to the Court and alters the balance of the parties in these proceedings in favour of the Defendant, in that the Claimant is not aware of the full Defence – and supporting documentation – that the Defendant intends to rely on at the forthcoming hearing. Without this information, the Claimant is unable to respond to the Defendants Defence in full. The Claimant would ask the Court to take this failure in to consideration when giving weight to the Defendants submitted Defence statement and supporting evidence, should such statement and evidence be submitted.

 

FAILURE TO PROVIDE EVIDENCE OF OVERDRAFT AGREEMENT;

 

32. The Defendant, in it’s responses to the Claimants requests for information, (outlined in paragraphs 11, 15 and 18, above) has failed to provide any evidence of the Claimants agreement surrounding the provision of the alleged Current Account Overdraft, as required by the CCA 1974.

 

 

33. The agreement was allegedly made before s.15 Consumer Credit Act 2006 came into force - therefore, by way of s.11 Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

 

34. To help clarify these matters, this is an extract from a Court case (Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.) and is part of the summing up by the Judge in relation to the effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

 

 

The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit Act 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

The Claimant avers that the OFT Determination applies in the current proceedings and that the Defendant has failed to satisfy the conditions laid down to benefit from such Determination, the effect of which is that the Defendant must be able to show that the agreement complies with the form and content requirement of Part V of the CCA 1974, specifically s.60 and s.61 of the Act.

 

35. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the OFT Determination. Accordingly, the Defendant is “in default” under s.78(6) CCA 1974 and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(a) CCA 1974.

 

36. The Claimant, therefore, puts the Defendant to strict proof of;

a. The contractual agreement between the parties in relation to the Overdraft, which allows the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement; or

b. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application of said overdraft; or

c. Where no such agreement can be provided, copies of original signed and certified documentation sent to the Claimant that complies with the OFT’s Determination, issued in relation to overdrafts on Current Accounts, as outlined in paragraph 34, above; or

d. Where no such documentation exists, the Claimant puts the Defendant to strict proof of the existence of an agreement that is in all ways compliant with the form and content requirements of Part V of the CCA 1974, as amended.

 

 

37. In its reply to the Claimants request at paragraph 11, above, dated 6 September 2007, (“Exhibit 3” attached) the Defendant enclosed an alleged Termination Notice said to be issued on 21 March 2005 and to be issued in accordance with s.76(1) and s.98(1) CCA 1974.

 

38. The Claimant is prepared to swear on oath at trial that such Termination Notice was not issued at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that Notice by the Claimant.

 

39. The Claimant therefore argues that the agreement has not been Defaulted and Terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

40. In addition to this, between 19/07/2001 and 29/12/2004 the Defendant debited numerous charges from the Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account are detailed in the attached schedule and statements (“Exhibit 14” attached) and total £842.10.

 

41. The Claimant commenced legal proceedings against the Defendant for the recovery of these charges, totaling £842.10, on 11 April 2007 - the Defendant failed to present any Defence during the Case hearing. (Numbered ******** and heard in the ******* County Court on 17 August 2007) The Defendant’s Solicitor attended the hearing and stated that she had received no instruction from the Defendant to enter any Defence to the Claim, whatsoever. This was despite the Defendant entering a Defence in response to the issue of the Claim – a Defence which the Defendant choose not to rely on at trial. District Judge ******, therefore, awarded Judgment for the Claimant for the whole amount of the claim - £842.10 plus 8% Statutory interest and costs.

 

42. The Claimant argues that this failure to supply a Defence at trial should be dealt with as an admission of the claim as outlined in CPR Part 16.5(5).

 

43. In the alternative, which is denied, where it is held that the Defendant’s failure to submit a Defence to the claim of recovery of these charges is not an admission of the claim, or that Judgment is not binding on the current proceedings, the Claimant will seek to plead against the application of these charges as follows;

 

44. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to levy these charges. If the Defendant is able to establish that the contract did contain such terms, the Claimant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999 and the Unfair Contracts (Terms) Act 1977because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, as the charges are an unlawful, extravagant penalty.

 

45. The level of default which the Defendant claimed existed in its alleged overdraft Termination Notice was £1,364.82 – some £522.72 more than the amount of charges which had applied to the Claimants account. The Claimant asserts that had the Defendant been acting lawfully in the application of charges, there would have been no default, and indeed would not even have been an overdraft - especially as the Defendant charged a contractual rate of interest on those charges.

 

 

46. The Default and Termination of the overdraft agreement has, therefore, been completed unlawfully and not within the prescribed form required by the CCA 1974, as outlined in paragraphs 62-89, below.

 

 

47. In addition to this, as no agreement has been provided that complies with the requirements of the CCA 1974, or any documentation that allows the Defendant to rely on the OFT’s Determination under s.74 CCA 1974, the Defendant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

 

48. The Claimant further also makes reference to a case heard in the House of Lords which outlines the Courts powers in such circumstances, Wilson v First County Trust Ltd [2003] UKHL 40, which is binding authority in this case. In particular, the Claimant makes specific reference to Paragraphs 49, 121, 123 and 173 of that Judgment.

 

ISSUES WITH THE SUPPLIED PERSONAL LOAN CREDIT AGREEMENT;

 

 

49. The Defendant has admitted in a reply to the Claimants request at paragraph 8, above, dated 21 September 2007, (“Exhibit 5” attached) that “with regard to the Loan Account … the Bank is unable to locate a copy of the original loan agreement at this moment in time”.

 

 

50. The matters outlined in paragraph 49, appearing as statements from the Creditor, are binding on the Defendant under s.172 CCA 1974.

 

 

51. The agreement was allegedly made before s.15 Consumer Credit Act 2006 came into force - therefore, by way of s.11 Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

 

 

52. The Claimant avers that this agreement is improperly executed under s.60(1) and s.61(1) CCA 1974.

 

53. The agreement is therefore enforceable only by Court Order under s.65(1)CCA 1974.

 

54. The Claimant seeks to rely on s.127(3) CCA 1974 against enforcement by such a Court Order.

 

55. The Defendant has supplied an alleged Default Notice (outlined in paragraph 11, above) said to be issued on 28 May 2002 and to be issued in accordance with s.87(1) CCA 1974.

 

56. The Claimant is prepared to swear on oath at trial that such Default Notice was not issued at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that Notice.

 

57. The Claimant therefore argues that the agreement has not been Defaulted and Terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

58. The Default and Termination of the overdraft agreement has, therefore, been completed unlawfully and not within the prescribed form required by the CCA 1974.

 

59. In addition to this, as no agreement has been provided that complies with the CCA 1974, the Defendant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE EITHER AGREEMENT CORRECTLY;

 

60. Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

 

PART 2:

PENALTY CHARGES

 

 

 

61. During the period in which each of the overdraft account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest at the contractual rate on these charges once applied – such interest being unenforceable without a properly executed agreement. (“Exhibit 14”, attached)

 

62. The Claimant contends that no such contractual provision exists within the overdraft agreement to allow the Defendant to levy such charges.

 

 

63. In the alternative, which is denied, where it is held that there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the Common Law of penalties because the charges represent a disproportionately high sum in compensation compared to the cost of the purported breach; are not in any way a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or be related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to create a profit for itself.

 

 

64. The Claimant submits that the charges levied to his accounts held with the Defendant are, notwithstanding the defence of the Defendant, default penalty charges arising from and relating directly to breaches of contract, both explicit and implied, on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the common law.

 

 

65. It is admitted that the Defendant is entitled to include a liquidated damages clause. However, it is submitted that the Defendants charges are not related to or intended to represent any actual loss arising from a breach of contract, or a reasonable charge for a service provided, but instead unduly and extravagantly enrich the Defendant which, by virtue of the legislation cited in paragraph 63-64 above, exercises application of such penalty charges with a view to profit. Therefore, the Claimant contends that the charges applied by the Defendant are disproportionate, excessive, exorbitant and extravagant, and believes it to be unconscionable that they represent, are a pre-estimate of, or are in any way related to; its actual loss suffered as a result of the Claimants breaches of contract.

 

 

66. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

 

67. The Claimant will further rely on numerous recorded authorities dating throughout the 20th century up to the most recent case of Murray v Leisureplay [2005] EWCA Civ 963, all of which have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof.

 

 

68. Further, under the Unfair Terms in Consumer Contracts Regulations 1999, schedule 2 (1) includes to define an example of an unfair clause as -

 

 

"(e) requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation;"

 

69. The breaches of contract in this case relate to failing to make regular payments under the alleged agreement. For this, the Claimant was then penalised for the breach by way of a charge being applied to his account. The Claimant holds that these charges and indeed every other charge in question, to be punitive in nature, and wholly disproportionate to the actual loss of the Defendant in dealing with the breach.

70. The Defendant, or indeed any of the UK financial institutions, has never published any information to support how their charges are calculated, or what their actual costs associated with such breaches are, or what revenue they derive from such charges.

71. For their recent BBC2 documentary “The Money Programme”, the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing a customer’s breach of contract. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes.

72. In a recent study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges against the above figure, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that in its opinion the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law.

73. The Claimant also cites a radio interview in 2004 with Lloyds TSB’s former head of personal banking, Peter McNamara, in which he states charges are used to fund free banking for all personal customers as a whole.

74. Reference is made to the statement from the Office of Fair Trading, (April 2006) who conducted a thorough investigation into default charges levied by the British financial industry. While the report primarily focused on Credit card issuers, the OFT stated that the principle of their findings would also apply to other financial institutions charges. They ruled that default charges at the current level were unfair within their interpretation of the Unfair Terms in Consumer Contracts Regulations 1999. With regard to the ‘cloaking’ or disguising of penalties, the OFT said;

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.

75. On 22nd May 2006, the House of Commons passed an early day motion which welcomed the OFT's statement that default charges should be proportionate to the actual loss incurred. The house described such default charges as "exorbitant" and "excessive".

76. As submitted above, the Claimant believes the charges levied to his account to be disproportionate contractual penalties, arising from clear and demonstrable breaches of express or implied terms of the account contract between the Claimant and the Defendant. The Defendant vehemently refutes the Claimants contention that they are legitimate contractual service charges.

77. However, and without prejudice to the above, in the event the charges are held as being a fee for a contractual service, the Claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

78. Further, under the Unfair Terms in Consumer Contract Regulations 1999:

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

Schedule 2 also includes such clauses, to define examples of unfair clauses, as:

"(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;"

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

 

“(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract”;

 

“(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

79. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and the Claimant had no opportunity to negotiate the clause, or indeed any of the contracts provisions.

80. It is submitted that the Defendants charges are applied, based on the Claimants experience of the system, by a largely automated and computer driven process, requiring little or no manual intervention. This process seems to consist of a computer system recognising that a payment has not been received and sending out a computer generated letter. It is therefore impossible to envisage how the Claimant can incur costs of £15+ by carrying out this automated process. Note that the letter received notifying of a charge is identical in every instance.

81. As set out previously, the Claimant argues that the Defendants charges can not be considered to be a service charge. In arguing that they are, the Defendant also effectively admits that their charges make the Defendant a profit. The Defendant seemingly contends that their charges are not subject to any assessment of fairness whatsoever. This implies they can set these fees at whatever level they like without limit or regulation. It is not disputed that the Defendant is entitled to recover its damages following a breach of contract, and that it is entitled to include a liquidated damages clause. The Claimant accepts without reservation the Defendants right to recover its actual loss or losses, or a genuine, justified pre-estimate thereof. A penalty however, is unenforceable and these charges do not reflect a pre-estimate of, or are in any way related to, the Defendants loss incurred as a result of the individual breaches of contract in question. The charges are punitive, held "in-terrorem", and unduly, substantially and extravagantly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

82. The Defendant has declined to answer the Claimants written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite these repeated requests to do so.

83. The Defendant, in their defence to the Claimants counterclaim, averred that the charges levied are legitimate fixed price contractual services, unrelated to breaches of contract, which are therefore not required to be a pre-estimate of loss incurred on the part of the Claimant. The Claimant further submits that this contention is merely an attempt to ‘cloak’, or disguise, their penalties in order to circumvent the common law and statutory prohibition of default penalty charges with view to a profit.

84. The Claimant believes the definition of a 'service' to be a provision of knowledge, skill or other transferable facility that benefits the consumer, and one that the consumer agrees is at a reasonable market rate commensurable with the service provided. The Claimant believes it to be inconceivable that the charges levied to his account by the Claimant could be any form of ‘service’, rather than a penalty.

85. The Claimant understands the definition of a 'breach of contract' to be the failure of a party, without legal excuse, to perform a contractually agreed obligation pursuant to any or all of the terms agreed within that contract. The Claimant agreed to make regular payments to the account under the agreement, which is an express term of the agreement contract between the Claimant and the Defendant. When the Claimant failed to make such payments, therefore breaching an express term of the contract between the two parties, the Claimant was consequentially penalised for each such breach by way of a charge applied to his account.

86. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include;

"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach"

 

"The sum is a penalty if it is greater than the greatest loss which could have been suffered from the breach"

 

"The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage”

 

It is submitted that the charges applied are not representative of any 'service' provided by the Defendant, but instead are punitive, and held "in-terrorem".

87. Accordingly the Claimant puts the Defendant to strict proof that every charge made to the accounts in question, was valid and lawful.

 

 

88. Where the Defendant is unable to provide proof that each charge levied was valid and lawful, the Claimant will further aver that the Default Notice sent, if any, would have included these charges in the Default and Termination figures of said Notice, thereby invalidating that Notice due to this unlawful application of charges.

 

 

 

PART 3:

DATA PROTECTION ACT 1998

 

 

DATA PROTECTION ISSUES;

 

 

89. The Claimant believes that the Defendant has unlawfully processed his data for the reasons outlined, in so far as it is processing, sharing and updating inaccurate and incorrect data held by third party Credit Reference Agencies,and also for the reasons given in this section.

 

 

90. The Defendant, by continuing to report the accounts as being in Default, for the reasons stated in this document, is failing in its duty to process data accurately, as required under the DPA 1998.

 

 

91. Having entered no lawful contract with the Claimant, (the alleged agreements having always been invalid from inception) the Defendant is now, and has always been, processing the Claimants personal data unlawfully, without having a legitimate interest in such processing, which is in contravention of the DPA 1998.

 

 

92. The Claimant considers that the amount of the agreement is unenforceable under consumer law and that, knowing this to be the case (that is that there was no basis in law to attempt to recover any money under the agreement), it is against both the spirit and letter of the law that a creditor should be able to continue to process data, and distribute that data, including allegations of bad faith, (that is, a Default, arrears, or other adverse information) regarding a credit agreement rendered unenforceable by law. (Wilson v First County Trust Ltd [2003] UKHL 40)

 

 

93. It is further averred that by updating the information with the Credit Reference Agencies, the Defendant is continuing to process this data knowing that it is incorrect and inaccurate.

 

 

94. The information at the Credit Reference Agencies expressly states that the Defendant is the Creditor, and is the data controller for the purposes of the Data Protection Act 1998. (“Exhibit 1”, attached)

 

 

95. It is respectfully submitted that a debt rendered unenforceable by the express will of Parliament should not be enforced by any means whatsoever, and that the protections under the CCA 1974 should protect the Claimant against unfounded allegations of Default or arrears made by the Defendant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

 

“What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…”

 

 

96. The Claimant contends that the Wilson v First County Trust Ltd [2003] UKHL 40 ruling is intended to have theeffect that Creditors, such as the Defendant in the present case, who does not have enforceable Consumer Credit Agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the Credit Record (and therefore, reputation) of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid, including both the principle debt outstanding and any interest due on it. The law lords further considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

97. It is the contention of the Claimant that at all relevant times each credit agreement has been improperly executed, and that there is not, nor has ever been, any lawful obligation to repay monies to the Defendant, and that as a consequence any allegations that such an obligation exists are unfounded, inaccurate and unlawful under DPA 1998 as a result.

 

s.10 & s.12 STATUTORY NOTICES;

 

98. The Claimant wrote to the Defendant, in a letter dated 17 September 2007 previously outlined at paragraph 14 above, informing the Defendant of these issues. The Claimant also included a Statutory Notice pursuant to s.10 and s.12 DPA 1998. (“Exhibit 4”, attached)

 

 

99. The Claimant has failed to unconditionally comply with such Notices.

 

IN THE ALTERNATIVE;

 

100. In the alternative to that already stated above, which is denied, where it is held that the Defendant is processing the Claimants data correctly and accurately within the terms of the DPA 1998, the Claimant will further plead as follows;

a. At no time did the Claimant grant permission, either expressly or implied, for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract; and

b. It is the Claimants contention that the Defendants perceived right to arbitrarily choose to extend the length of that contract without the Claimants knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999) the Unfair Contracts (Terms) Act 1977 and;

c. The Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimants contention that the Defendant is in breach of both the contract itself (if any exists) and the DPA 1998 by the its continued disclosure of personal data to third parties after the termination of such agreement or consent – namely, the 3 major Credit Reference Agencies, amongst others; and

d. The Claimant, therefore, puts the Defendant to strict proof of the contractual agreement between both parties in relation to the agreement, inter alia, allowing the Defendant to store, process or disclose any personal data of the Claimant beyond the contractual termination period and to which terms and conditions were included as part of that agreement, both originally and as modified during the life of the agreement, if applicable; and

e. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to store, process or disclose any such personal data.

 

PART 4:

THE CLAIMANTS REQUEST FOR A COURT ORDER

 

 

 

101. In view of the arguments in this document, the Claimant respectfully seeks that the Court;

a. Determines the rights of the parties to each of the alleged Consumer Credit Agreements and seeks a declaration from the Court under s.142 CCA 1974 that the debts are unenforceable and that any application for an Enforcement Order under s.65 CCA 1974 will not be entertained, either now, or at any future time; and

b. Awards damages to the Claimant in the sum of £1,000, due to the Defendants failure to Default and Terminate the Claimants overdraft account in the lawfully prescribed manner; and

c. Orders the enforcement of the Defendants compliance with the Claimants Statutory Notices under s.10 and s.12 DPA 1998; and

d. Issues an Order, pursuant to the Courts powers contained within s.14(1) and s.14(3) DPA 1998, that the Defendant immediately blocks, erases or destroys those data and any other personal data in respect of which he is the data controller and which contains an expression of opinion which appears to the Court to be based on the inaccurate data and order the data controller to notify third parties to whom the data have been disclosed of the blocking, erasure or destruction.

 

I, car2403, the Claimant in this case, believe that the facts stated in this document are true.

 

Signed:

 

 

 

 

 

 

car2403

 

(Claimant)

 

Dated this, the 23rd day of January, in the year two thousand and eight.

 

 

 

 

Documents attached in support of this statement

 

• All exhibits referred to by number.
  
• Consumer Credit Act 1974
  
• Data Protection Act 1998
  
• Consumer Credit Act 2006
  
• Relevant Case Law summaries.
  
• Early Day Motion in the House of Commons, (Julia Goldsworthy, MP) 22 May 2006.
  
• Office of Fair Trading report, 5 April 2006.
  
• Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. [1915] A.C. 79
  
• Unfair Terms in Consumer Contracts Regulations 1999
  
• Unfair Contract Terms Act 1977
  
• Supply of Goods and Services Act, 1982
  
• BBC “The Money Programme” Bank commission conclusion
  
• Australian Default charges report, Nicole Rich
  
• Transcript of a Radio interview with Peter McNamara, former head of Lloyds TSB’s Personal Banking area.

[car2403]

The skeleton argument is going off to Barclays and the Court tomorrow, by Special Delivery - last chance for any comments?

 

Hearing is set for 15/02, so I need to make sure they get this by 01/02 at the latest...

[car2403]

Bizarrely, I've received a bundle from Barclays! (Imagine my surprise! )

 

First letter;

 

Without Prejudice Save as to Costs

 

Dear car2403,

 

Re: car2403-v-Barclays Bank PLC

 

Claim No. ********

 

With reference to your Claim against the Bank and your letter of 26th January, proposing that the action be settled by payment of £500.00 and the amount owed by you, be written off.

 

The Bank is not prepared to agree your suggested offer of settlement and you will in any event have seen from the Defence filed that the Bank considers that your Claim does not have any legal merit and that it will not succeed.

 

It is however, recognised that the sums in issue between the parties are relatively modest and as such it is not cost effective by either party to take this matter to the final hearing. The Bank is therefore prepared to settle the Claim with you on the terms set out in this letter.

 

In full and final settlement of your Claim, the Bank is prepared, on this occasion and subject to you signing and returning to me the enclosed duplicate of this letter, by way of agreement to its terms, to pay you the sum of £350.00.

 

This would be in respect of the whole Claim, including your request for a declaration to remove of credit entries, which will remain, as the Bank considers that they were properly entered and it is obliged to continue them. It would not include the writing off of the sums already owed to the Bank but the amount offered above, would be deducted from the debt owed by you, to the Bank, which would therefore be reduced accordingly.

 

This offer is made in full and final settlement of your Claim and is strictly without admission of liability on the part of the Bank. By accepting this offer, you would also agree that its existence and terms are confidential between the parties.

 

If you agree to the terms of this offer, please sign and return a copy of this letter to me within the next 7 days. You will also need to notify the Court in writing, that the action has been disposed of. Please forward a copy of your letter to the Court discontinuing your Claim.

 

I reserve the right to draw this letter to the attention of the Court should you decide not to accept the offer made.

 

Yours sincerely –

 

Adrian Ruffhead

Legal Executive

 

This is clever, (I may have underestimated them!) as it's without prejudice save as to costs. What does this mean? Basically, this letter can't be relied on in Court until Barclays win the case against me - they can then produce this to "claim" they've attempted to settle it out of Court and can apply to have costs (regardless of allocation to the small claims track) awarded AGAINST me. This doesn't bother me, as the Judge is only likely to award costs against me if I'm a "vexatious litigant" - I don't think this will happen...

 

Next letter; (note - NOT without prejudice!)

 

Before I post that, it's referring to my CPR request for more info at post #54, here; http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110184-car2403-barclays-bank-default-3.html#post1265504

 

My comments/thoughts are in red italics...

 

Dear car2403,

 

Re: car2403-v-Barclays Bank PLC

 

Claim No. ******

 

With reference to the above, I enclose the documents for use at the forthcoming Small Claims hearing.

 

As regards your letter of 3rd January, the reasons for not supplying the copy documentation, which you did not refer to as being requested under CPRr 18, were explained to you in the letter of 19th December.

 

The letter is clearly headed "CPR REQUEST FOR INFORMATION" - which clearly states what it is. True they've explained why they wouldn't comply. (I'll cover this in just a tick with the attachments)

 

1. You have not given any details of the copy executed credit agreement’ that you have requested and until you do this, the Bank cannot give disclosure. In any event, a copy of the terms of the account has already been sent to you, in my letter of 5th December 2007.

 

Er, that would be the "copy executed credit agreement" that I've referred to in the claim?

The reason you can't disclose, is that you've already said you don't have such a document and now don't want to compound that error further by saying it again.

The copy terms and conditions are irrelevant without my consent in the form of an executed agreement, IMHO.

 

2. All records: please see the bundle of documents enclosed, which I stated previously would be disclosed once the Court had allocated the case to the Small Claims Track.

 

I'll cover the attachments below

a. Transcriptions of all telephone conversations: You have not given any reasons why, if such recordings exist at all, this is relevant to your Claim. The Bank is only obliged to give disclosure under CPR 31 or 27, of items that are relevant.

 

They were only relevant insofar as you may have wanted to rely on them in your defence to argue the charges were fair - as you haven't and I've already reclaimed them anyway, you are probably right in that they are irrelevant. You understand that I had to ask though, right...

b. Manual intervention in account history: As explained to you previously, you have not clarified what is meant by this phrase and until you do, the Bank is unable to give disclosure.

 

Seems clear to me; (dictionary definitions)

Manual = "involving or using human effort, skill, power, energy, etc.; physical: manual labor"

Intervention = "the act or fact of intervening"

Same as above, in that you aren't relying on it, so it is now irrelevant

c. Copies of notice of assignment and/or default Notice: A copy of the Notice of assignment does not appear to be relevant to your Claim, which is for damages under 2 specific cases and a declaration from the Court. Default Notice will have been received by you previously and it is included in your Bundle of documents, therefore I assume that you are satisfied with this.

 

NOA is irrelevant, but I had to ask. Default Notice has already been covered in this thread.

 

d. Documents related to any insurance: This does not appear to be relevant to your Claim which is for damages under 2 specific cases and a declaration from the Court. Please explain how this request is relevant to you Claim.

 

Same as above, in that you aren't relying on it, so it is now irrelevant

e. Details of any collection charge added to your account: This does not appear to be relevant to your Claim.

 

Might not appear to be relevant to you, but you've failed to meet the standard of proof I asked you to meet, so I disagree

f. Specific details of fees/charges: This does not appear to be relevant to your Claim.

 

Ditto

g. A genuine copy of notice of use of data: This is not required by the DPA as the Bank has the right to process personal data under the various provisions of that Act.

 

See my comments in reply to 1, above

h. A list of third party agencies: This does not appear to be relevant to your Claim.

 

Might not appear to be relevant to you, but you've failed to meet the standard of proof I asked you to meet, so I disagree

i. Copies of statements for the duration of the credit agreement: Please state what credit agreement you are referring to, my instructions are that copy statements of your accounts have already been sent to you. I note from Exhibit 14 of your bundle, that it includes copies of statements for account no. ********, therefore if this is the copy you requested you have received copies. Please let me know if you are referring to different account copies

 

The credit agreement(s) referred to in the claim! Current account statements and personal loan statements have been "received" in another way anyway, so don't worry about this one.

 

Please also note that you cannot Claim refund of Bank charges in your present Claim, as any such Claim would have to be automatically stayed by the Court, due to the OFT case presently being heard in the High Court. Please confirm that the documents that you have sent in your 2 bundles that relate to this issue, can be disregarded, specifically, Exhibit 14 and the items in your ‘Supporting Evidence’ bundle that refers to these charges, as they do not form part of your Claim and are therefore, irrelevant.

 

As you will also be aware, you previously made a Claim for repayment of Bank charges, under Claim No. ********, which was dealt with by the Court and you cannot re-litigate the same issue again.

 

Ah - they acknowledge I've reclaimed them already, at last. I'm NOT reclaiming them again - I'm using the same argument to PROVE they are STILL unlawful. Oh, and the Court has already dismissed your attempt to use the OFT TC proceedings to halt my claim, so lets put this behind us?

Yours sincerely

 

Adrian Ruffhead

 

Say "hello" to Adrian if you have future correspondance with him...

 

I'll post details of the attachments in a tick. (RSI from typing!)

[car2403]

Ok, on to the attachments; (nothing new here - you've seen it already if you've read the rest of the thread!)

1. Overdraft Termination Notice
   
2. Personal Loan Default Notice
   
3. Copies of all correspondance between me and Barclays
   
4. They've slipped in (probably hoping I won't notice, but I did!) a copy of the Information Commissioners Office's advice on Data Sharing under a Credit Agreement; http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf
   
5. A copy of the claim form for my charges reclaim (not sure why, as the Court has clearly already seen this!)

Now, this is slightly confusing, as they've "chosen" NOT to rely on the copy agreement that was produced during my correspondance with them (that copy agreement being a true copy, but it's minus my signature!) and haven't even attempted to provide anything that covers the s.74 CCA 1974 OFT Determination. (Which they've also stated they can't do!)

 

Not sure what they hope to achieve with the ICO's advice, as they don't have anything that amounts to a credit agreement, so this is totally irrelevant.

 

Given the offer of settlement in the first letter - see my post above - this is a "one-finger salute" to my claim! The fact they have chosen to ignore what they've stated clearly before and no agreements that can be enforced should mean this is a forgone conclusion in the Courts eyes...

 

What a waste of time - this could have been easily resolved in August when my Surleybonds letter went off! I shall have to remember to prepare that Wasted Costs Application prior to going to Court on the 15th!

 

I just hope they send a decent solicitor who knows as much about this claim as I do, or I'll feel deflated that I didn't have a decent bout to get this sorted.

[chris1977]

Hi Car, what a riveting read this thread is! I am also trying to get an overdraft default removed (HSBC in my case) on similar grounds, namely the fact that no default notice was ever received and the default amount included penalty charges (albeit a paltry amount which I have not yet tried to reclaim due to the test case).

 

I'm still in the very early stages - requested a copy of the default notice and credit agreement 2 weeks ago - and although reading your thread has pretty much confirmed to me that this is not going to be a walk in the park or an overnight success, at the same time it's very encouraging to see that I'm not on my own here and that with dogged determination, commitment, and perhaps a big pair of b*lls(!), the "little people" can take on these organisations who seem to believe they're above the law.... and may even get a result.

 

I wish you all the best mate and hope you get the result you deserve.

 

Cheers

 

Chris

[car2403]

Thanks Chris.

 

As I said, should be a open-closed case as they aren't relying on their own agreement to support their defence.

 

All depends on which Judge I get and which party his own bias supports now.

[car2403]

I'm now VERY certain that the Barclays litigation team are viewing this thread.

 

Thank you very much for making further submissions to the Court, Adrian and hello to you.

 

Unfortunately the agreement you've submitted is still NOT the originally signed and certified edition allegedly sent to the Bank when the loan was executed, so my continued argument against your enforcement of it still stands.

 

For anyone else that is a spectator, rather than a participant, in this claim. I've received a letter from Barclays enclosing another conjuctured copy of the original agreement without my signature, which clearly isn't the originally executed version. Barclays CANNOT rely on this in their claim!

[davefirewalker]

Hi Car....

 

subbing , and reading with interest

 

I too have a "disagreement" with barclays, and have spoken before with Adrian Ruffhead and Thomas Hickey, I got all the charges and the PPI returned . I have also spoken via email with Rosemary Treves - Brown on a few occasions.

 

Best of luck with your case

bet they try to settle before you go in.

 

rgds

 

dave

[car2403]

Hi Dave and welcome to the saga!

 

Don't get me wrong, I'm open to settlement, but on my terms - not theirs.

 

I too have spoken to Thomas Hickey before - he "dealt" (I say that loosely!) with the Warrant of Enforcement I had to issue against Barclays last time, as they (again) failed to comply with the Court order to pay me my charges back.

 

It infuriates me that they spend time reviewing threads relating to their claims rather than dealing with the issues behind them!

 

Grrrrrrrrrr.........

[revolting peasant]

This is a fascinating thread

 

Not wanting to distract you from your own trials and tribulutions car but if you have a minute or two could you please give me a brief opinion on my own case.

 

Thanks in advance - Peasant

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/125975-peasant-natwest-no-cca.html

[gaz2006]

Car your thread fascinating see why you know about cca agreemnets

and defaults etc regards Gaz

[car2403]

Here's an interesting twist on the claim...

 

I've just got home to find another letter - "Further to my letter of 31st January, I enclose further documentation, being copy correspondance, for use at the arbitration hearing". There are then several attachments: a termination notice I've already seen; 9 (yes 9!) "warning" letters telling me I'm over my overdraft limit, do I know the consequences, etc, etc; and - this is the most important part - a "confirmation of Personal Overdraft on your Barclays Account" letter.

 

That last letter, on the face of it, "appears" to satisfy the OFT Determination under s.74. Now, you may think "hang on, this scuppers his claim" - but there are now 2 issues;

• This information has been received today and was sent yesterday, 6 February. The Court ordered documents should be exchanged at least 14 days before the hearing date, which was 1 February.
  
• This information was originally requested on 11 August 2007. It's taken them 26 weeks to provide this response! Why didn't they just send this when I asked for it? I'll be arguing that they are bound by their previous statements on this documentation (remember - "the bank is unable to locate a copy of the agreement at this time, we're sorry but this does happen sometimes due to the size of our organistation", etc, etc) under s.172 CCA 1974.

Will the Judge allow them to rely on this evidence, given I now have less than a week to prepare my claim on the overdraft and CANNOT NOW submit new arguments without breaching the Courts own order? Watch this space to find out.

 

BTW - even if they CAN rely on this, (which I don't think WILL happen) I STILL have the issue of the Termination Notice containing those all important penalty charges (which I've already recovered from them!) making the Notice inaccurate and unlawful as a result.

 

Also, will the Solicitor that turns up (yeah, right!) understand all this claim inside and out? Will they have read every piece of correspondance that the Court is being asked to adjudicate on? We'll have to wait to see... 1 week and counting to the Court date!

 

[christian.miles]

Hi Car,

 

Just to make you aware that there are still people on here reading intently to all of your posts (so please keep them coming).

 

I too am in a very similar situation to you and have received the No copy agreement as it doesn't relate scenario thrown at me by Barclays. To be honest i think i am going to wait for the outcome of your case before continuing this. At which case i will try to quote your case as a "precedent". Maybe it will work, and if not then i will take them to court also.

 

Keep up the good work,

 

Chris

[car2403]

Happy to share the claim number with you if it does go my way, but sadly there is no precedant in the small claims track so it isn't "binding".

 

I reckon one Judge will take in to account how another has decided a case, even if it's only persuasive rather than binding on other claims.

 

This all depends on my winning the "Judge lottery" and getting one (I have a particular name in mind, and will pee my pants if he presides over my claim!) that is willing to listen to little me AND take me seriously, however.

[gh2008]

Also subbed, on edge of my seat ;-)

 

may a a similar one myself http://www.consumeractiongroup.co.uk/forum/general-debt/128533-some-advice-re-first.html

 

But thinking about yours, have they produced any document with your signature that gave them permission to use your data or that you'd agreed to any t&cs (i.e. an account agreement/application/anything!)

[car2403]

The account was opened in a VERY small branch (1 counter staff only!) in 1998 and I don't remember signing anything.

 

They've produced nothing to prove I've consented to anything, although they are relying on account T&C's - but can't prove I agreed to them neither!

 

It's just silly, which is why I'm preparing a Wasted Costs Application this weekend in case they try to wiggle out of the hearing at the last minute.

[Paintball]

Go get 'em ...

 

[car2403]

Another letter from Barclays - I'm receiving them almost daily now! (Shame they aren't so proactive in replying to complaints, isn't it!)

 

They are offering a settlement payment to me of £500, ("despite the Banks policy of offsetting this amount, we will agree to make this payment to you") along with Default removal - but... and here's the sticker... they WON'T write off the balances. I'm not surprised by this, as they've said they won't all along, but considering I'm asking for a s.142 declaration from the Court that the debts are unenforceable, I'm going to throw Barclays a lifeline (the last one!) and ask them to confirm in writing that the Defaults will be removed, that the outstanding debts will be unenforceable under the CCA and that they will pay me £500 and I will discontinue the claim.

 

Lets see what the response is...

 

I love this bit; "as we'll have to instruct our barrister to attend the hearing on the 15th, please reply by return of post or fax as soon as possible"... Come on Barclays! As if sending a "barrister" to attend for you is going to put me off... "Don't you know who I am" comes to mind!

 

[gh2008]

"Don't you know who I am" comes to mind!

 

 

You're the No. 1 pain in their letterbox

[car2403]

car2403 –v– Barclays Bank PLC

Claim No: ******* , in the Morpeth and Berwick County Court

Dear Mr. Ruffhead,

I refer to your letter dated 7 February 2008 – the offer of settlement contained within that letter is declined, for the reasons outlined in previous correspondence and the claim itself, as you have failed to consider my application to the Court to declare the rights to the parties to each of the agreements;

142.—(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained

Yours sincerely,

 

[car2403]

Here is my next "more appropriate" response;

 

To the Court;

By fax to ******* and also first class post

 

Court Manager

****** County Court

 

car2403 –v– Barclays Bank PLC

Claim No: ******, in the ****** County Court

 

Dear Sir/Madam,

 

 

Defendants late submission of evidence

 

I refer to recent submissions made by the Defendant, as ordered by District Judge **** on 8 January 2008 – I refer specifically to a letter sent by the Defendant to myself dated 7 February 2008 and received by me on 8 February 2008. (A copy of this letter is attached for your reference)

 

As the Court ordered that documents relating to statements or evidence to be relied up on at the forthcoming hearing should be exchanged 14 days prior to the hearing date, I would ask that the Court consider this late submission of evidence by the Defendant a default in complying with such order. As a result, I would ask the Court to set aside the arrival of this late information and not consider this new evidence in its ruling for the following reasons;

 

§

The Defendants submission is in default of point 3 of the Courts own order dated 8 January 2008; and

 

§

This information was specifically requested from the Defendant in several pieces of correspondence (copies of which have already been served on all parties) dating back to August 2007 – only now, 8 days prior to the Court hearing, has the Defendant saw fit to produce that documentation requested; and

 

§

The late submission of this evidence prejudices me – a litigant in person – and alters the equal balance of the parties at the forthcoming hearing, as sufficient time

has not been allowed

for me to seek further legal advice on this newly submitted evidence; and

 

§

The Defendants behaviour is otherwise than in the interests of the overriding objectives of the Courts process.

Yours sincerely,

 

To the bank;

 

By fax to 01452 638 425 and also first class post

 

ADRIAN RUFFHEAD

BARCLAYS BANK PLC

LITIGATION AND DISPUTES

LEVEL 29

1 CHURCHILL PLACE

LONDON

E14 5HP

 

car2403 –v– Barclays Bank PLC

Claim No: ******* , in the Morpeth and Berwick County Court

 

Dear Mr. Ruffhead,

 

Please find enclosed a schedule of my costs to date in the above proceedings, by way of service, totaling £225.98.

 

Should I be successful in obtaining Judgment in my favour, the Court will be asked to award these costs to me as part of that Judgment, as I believe that I can demonstrate that the Bank has behaved unreasonably in the way it has conducted its litigation, as defined under CPR r27.14(2)(g), due to the following;

 

1.

The Bank does not have, and has never had, a realistic chance of successfully defending the claim due to a lack of documentation required by the Consumer Credit Act 1974. Despite this, the Bank has acknowledged the claim with an intention to defend in full, has submitted a defence denying the claim in its entirety and has conducted its litigation in that vain; and

 

2.

That this is an abuse of the Courts process under CPR r3.4(2)(b); and

 

3.

The Bank has been given several opportunities to settle this claim out of Court, both in informal correspondence between the parties and in two formal offers of settlement. (Dated 17 December 2007 and 26 January 2008, which I will submit as evidence to the Court) The Bank has not accepted such offers, but has instead continued with its litigation, despite the issues outlined above. This has resulted in further wasted costs to both parties; (including, but not limited to, additional Court fees for hearing the claim) and

 

4.

The Bank has sought to rely on evidence that has been submitted

after

the date in which the Court ordered the parties to provide such evidence. I intend to argue that this documentation

could

and

should

have been provided when originally requested in August 2007 and the failure to do so amounts to unreasonable behaviour.

As a last attempt to settle this claim out of Court, I am now willing to only accept the following terms of settlement, thereby freeing up the Courts resources from dealing with this case;

 

1.

Any outstanding indebtedness to Barclays Bank under both the alleged Personal Loan Agreement and alleged Overdraft Agreement is to be extinguished within 14 days your your acceptance; and

 

2.

Any default notifications made by the Bank and/or its subsidiaries to Experian, Equifax and/or CaliCredit, or any other credit reference agency, in respect of the above indebtedness, will be withdrawn within 14 days of your acceptance; and

 

3.

The Bank will make a payment to me of £500 within 14 days of your acceptance; and

 

4.

The parties will agree to keep the details of the above claim (including its settlement) confidential; and

 

5.

I will agree to vacation of the hearing date set and execute a Notice of Discontinuance of the claim in its entirety, providing you with a copy, and sending the same to the Court Manager at ***** County Court within 7 days of your acceptance.

This offer is only available for acceptance before 4.00pm on Wednesday 13 February 2008 at the latest – this is to give me time to contact the Court to vacate the hearing date set for Friday 15 February. Due to the constraints of time, I am willing to accept your written confirmation of acceptance by fax to *****, with a copy of the same by first class post.

 

Yours sincerely,

[humbleman]

Here is my next "more appropriate" response;

 

To the Court;

 

§

The late submission of this evidence prejudices me – a litigant in person – and alters the equal balance of the parties at the forthcoming hearing, as sufficient time

has not been allowed

for me to seek further legal advice on this newly submitted evidence; and

 

Do you risk the judge postponing the hearing to a later date thus delaying everything.