car2403 -v- Barclays Bank (Default removal)

[car2403]

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

 

That's a possibility, but the Bank is bound by what it has sent me previously ("no documentation exists", etc, etc) all of which is covered by my POC - this is just the final nail in the coffin, so to speak, so I'm hoping the Judge sees through this attempt to change their case late on.

 

Realistically, I think he WILL allow them to rely on this late submission - (it would be unjust not to, in some opinions) I'm just making my point clear, in writing before the hearing.

 

Either way, this bears no relation to the actual outcome, as I have them bang to rights over the unlawful Default issues - whatever documentation they produce, they can't prove the charges applied were lawful. (I've already reclaimed them in Court)

[car2403]

I've sent off the refusal of settlement and wasted costs letters - I'll reconsider the late submissions one, as humbleman's comments are weighing on my mind and I can't afford to let this rumble on any longer by the Judge rescheduling the hearing.

 

Lets see what comes back first... (I bet I get something from them about with their schedule of costs!)

[car2403]

I've just been re-thinking about this letter from the bank again, after posting on another thread, and there's a discrepancy I need to point out to the Judge.

 

The OFT Determination requires;

 

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

 

Now, I have statements going back to 2000-2001 showing the overdrawn balance and the letter the bank is relying on under the Determination is dated 10 March 2002.

 

IMHO, this means that the bank hasn't complied with the Determination as this letter was sent AFTER the overdraft agreement was made - to have complied they should have sent this at the time or before the agreement is concluded.

[car2403]

I'm fully prepared for this hearing now, but I'd like to ask for some late help, if poss?

 

I want to have some questions prepared in case the other side turn up - I have a list of those I want to ask, which I would post up, but I wanted to ask for input before I do that just to make sure I'm on the right page with everyone else on this one.

 

Some more background too - Barclays are clearly pulling the "more documentation we put before the Judge the better our chances of winning are" approach here... I've received further charge letters they've sent and more statements showing me using the account. Despite my defence, they obviously think is to their advantage - sadly, they STILL haven't provided a signed agreement for the personal loan (and almost seem to have forgotten that account!) and the overdraft Default will depend on the Judges view as to if he sees the charges making that Default amount unlawful or not.

 

The hearing is scheduled tomorrow morning, so all/any input at this point would be useful...

[gh2008]

Well, I've just read your skeleton through start to finish in one hit.

 

It's long and complicated, BUT it's well written, it makes sense, it leads the reader, by the hand, through all the facts of the case and your arguments make complete sense.

 

There are some very basic facts to the case. The Default is incorrect due to the charges applied, which you have already won in Court para. 45

 

But IMHO more basically than that there is no agreement for the account under the CCA 1974!! therefore how can a Default be entered under the Act. para 47

 

Same for the loan default - no CCA agreement, how can they enter a default under the Act

 

As for the damages - that's the Judge lottery

 

You do get the feeling from it all that the case treading new ground though (or that you are pulling several ideas together for the first time) - now you just need a Judge with some b&lls

 

Good luck Chris - let us know how it goes

[car2403]

I've received this by fax from the litigation team;

 

Re: car2403-v-Barclays Bank PLC

Claim No. ******

Arbitration Hearing; 15.2.08; ****** County Court

 

Further to my letter of 6th February and yours of the 11th, I enclose the Bank’s Schedule of Costs for the hearing.

 

As has been pointed out to you in the Defence and other documents, the reasoning that you have adopted for your Claim, is flawed and is not accepted. In particular you have misinterpreted s74 of the Consumer Credit Act and the opt out provision, granted to the Bank by the OFT. The Bank has complied with this, therefore s78 does not apply and you have no Claim in respect of the overdraft agreement.

 

As regards the Career Loan agreement, you are trying to argue that it was not properly executed but you have not given any reasons as to what you are basing this on nor have you produced any evidence as to how you intend to prove that it was improperly executed. The Bank has provided a copy of the agreement, which it is believed the Court will accept.

 

The other parts of your Claim refer to improper termination, however, again you fail to give any reasons or evidence as to how you believe the agreements were not properly executed and in the absence of this the Court will find in favour of the Bank. The Woodchester case does not stand for the principle you allege it stands for and your late reference to Bank charges, is as, pointed out to you before, incapable of being included in your Claim as such an issue has to be stayed. It has in any event, been litigated before therefore cannot be relitigated a second time.

 

In the circumstances, I suggest that you discontinue your Claim, in order to save Court time and costs, failing which the Sank will have to attend and reserves the right to request its costs to be paid by you, on the basis of your unreasonable conduct of the Claim.

 

With this;

 

Defendant’s Schedule of Costs

 

Costs of the Defendant, in connection with defending these proceedings and preparing for and attending the hearing on 15th February 2008;

 

Defending Claim and preparing for hearing: £350.00

Counsel’s Fee: £500.00

Total; £850.00

[slick132]

Hi Car,

 

Nothing constuctive to add here but my best wishes for you tomorrow.

 

Slick

[Hopeful1]

Hi Chris

 

I was looking up default info for a new poster and noticed you had a court date tomorrow.

 

I just wanted to wish you good luck. I think you make a hugely valuable contribution to many on this site - i don't know how you've managed to prepare your own case so well too!

 

I'm full of admiration - best of luck

[steven4064]

Hi Chris

 

Are you taking a schedule of your costs?

 

I think you can claim something like £9.20 an hour and 30 hours is considered reasonable, plus photocopying, binders, postage, phone calls - about £300 - Sorry, just found post #99

 

I have quickly read the whole skeleton argument and it is as gh2008 says. There is a bit of luck required in that a sympathetic judge will make all the difference.

 

I think you should take you PArt 18 request rewritten as a draft directions for the court to order (just in case - you may not need it)

 

You probably could have asked for (may still be able to ask for) compensation under s13 of the DPA.

 

Good luck, keep us posted, go get 'em.

[tomterm8]

I do think gh2008 line in the trial. Try to simplify it down to the bare bones.

 

Also, if they sent you a termination notice and not a default notice, THEN that was incorrect. A termination notice is operated when the debtor is not in breach of contract. A default notice is issued when a debtor is in breach of contract.

[car2403]

Thanks all for the words of support, which is invaluable in these hours running up to the hearing - no matter how well organised and prepared you are, I think it's naturally and good to be a little nervous at this point.

 

As I posted earlier in the thread, it all depends which Judge I get now... If I get the same one that heard my last Barclays case, (who banks with them and has had extremely negative experiences with them himself!) it will be a quick hearing! If not, I might have some work to do, but I think I can handle it - I think I had a dream about bank statements last night, so my subconscious knows what is going on even if I get stuck!

 

I'll let you know what happened as soon as I can.

[gh2008]

Any news?

[car2403]

Here goes...

 

The Judge opened by saying that he had read some of the submissions, but hadn't read them all and certainly hadn't looked through the authorities. (which were provided as part of my Court bundle, BTW!) He did say that he knew I was a litigant in person, so got Barclays solicitor to "outline, as an officer of the Court, the issues highlighted in the claim, as he sees it" - I just sat there and listened, intently, making notes, as did the Judge.

 

When he finished, the Judge asked me if I would like to add anything and I just said "I agree completely, but the content and detail on the basis of the claim given is missing". This went around in circles for a while, as the solicitor added to what was said previously and kept using the phrase "to be fair to the claimant". (To be fair to him, he was very fair in putting my case forward for me - but I think that was more to do with the fact the Judge told him to. It was obvious he was a little uncomfortable when putting my arguments against his own defence forward, which was funny to see/hear)

 

The Judge suddenly realised something - he thought I was trying to avoid payment of the debt by arguing it was unenforceable. He couldn't get his head around the fact that the enforceability of a debt has nothing to do with the existance of that debt - the solicitor did nothing to help him understand it neither.

 

One of the phrases the Judge used, (which I've heard before referring to equity) is that "he that comes to the Court for help, must come with clean hands" - what he was referring to is that "other less open minded Judges" (his words, not mine!) might just throw my case out as it was obvious I HAD the funds, so there WAS an agreement which should be enforced against me. I had to work hard convince him that I wasn't avoiding the debt, just wanting the debt declared unenforceable - then it struck him. He realised that s.142 CCA 1974 is usually used in DEFENCE of a claim, not as the basis for a claim itself. This is where it went a little pear shaped, as he and the solicitor discussed how a s.142 declaration could be made NOT in defence of enforcement action.

 

The upshot of all this is that the Judge does think I have a claim against Barclays, but he disagrees with the claim for damages. (More on this in a bit) He did say that a proper application for a s.142 declaration should come through the formal application process - claims shouldn't be started on that basis, but he did take it easy on me as I was a LIP and not legally trained.

 

This went around the houses again and (cutting a 3 hour hearing short, editorial style) the gist of the hearing is that;

• The claim itself stands as it is, but the Court has given me leave to make an application for a s.142 declaration outside of it;
  
• The Court accepts my claim documentation and evidence and acknowledges it as that application;
  
• Barclays has been given 28 days to respond to the application. They've already given away that that response will be a counterclaim for the value of the outstanding balances on both accounts and that they will seek enforcement if the agreements aren't properly executed as suggested. They can also amend their defence if they wish at this point;
  
• I will then have 14 days to respond to their response, where the Court has given me leave to amend my POC without further notice if I want to, based on the Banks response;
  
• At this point, the case will be relisted;
  
• Both parties must agree what the issues are and what decisions need to be taken by the Court and we have to file a statement of these issues 7 days before the case is heard.

I do have to travel to a less local Court, so this same Judge can hear the case again - but now I've convinced him I have a case, I'm happy to do that so I don't get the "Judge lottery" effect next time round.

 

As for the damages, Barclays had a right old go at that saying that a claim for defamation can't be heard in the small claims track - I put forward that damages are being claimed for unlawful default and effect on credit rating, not reputation, and under the Data Protection Act. The Judge wasn't convinced, saying he was unlikely to award damages as I would receive the benefit of having the debts declared unenforceable at the most, if the claim is successful, but did say that I could include those arguments at the next hearing if I still wanted.

 

So, all in all, I didn't win - but I also didn't lose neither! The Judge was very helpful, as I am a LIP, but praised me for the content of the POC and was impressed that I knew the legal process for making an application to the Court. (Even if he wasn't too happy I hadn't used it!) The Solicitor was also very helpful, even though he didn't introduce himself or speak to me prior to the hearing, in that he understood my arguments and put my version well - again, I think that was because the Judge wanted him to do his work for him, to an extent, and made him do the legwork!

 

I have to think that things would have ended very differently if I had got another Judge... Just goes to show it's a roll of the dice to see what will happen - looks like mine came up snake eyes, if today was anything to go by!

[gh2008]

3 hours

 

Well, reading between the lines I think this looks very positive, bearing in mind , as the Judge pointed out, you are approaching this @r$e about face so to speak (by you starting the claim rather than defending)

 

BUT, it does show that this approach can work - he could see what you were 'after' and basically seems to agree that it is possible but just from a different angle.

 

All the above may be complete cr@p if I've misunderstood

 

bet the Judge islooking forward to you again - he even tried moving away!!!

[car2403]

He did say that I should be defending, not claiming, against Barclays.

 

I pointed out that Barclays may never take enforcement action, which could mean there's nothing I can do to resolve the issue.

 

I also pointed out that Barclays have said they won't correspond with me on the issue any further, so I had no choice but to take some formal action. (Made their solicitor sit up and take notice!)

 

I think this could be what has made the Judge reconsider his position, after seeing Barclays flouting their position to my detriment.

[Hopeful1]

Well done, Chris. It does sound as if the judge understood the main part of your argument and appears to have treated you fairly. I'm guessing he has given you plenty of food for thought for the next date.

 

I bet you're exhausted after 3 hours Rest well.

 

Best wishes

[slick132]

Hi Chris - that's some Hearing you went through !

 

I think you came out quite well. See what Bank comes back with now......

[tomterm8]

It might be usefult to start your application with the relevant section:

 

142.

Power to declare rights of parties.

— (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.

 

 

 

It may also be useful to quote the Wilson comments House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant) para28 -33 AND especially:

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

[tomterm8]

Basically, my opinion is that the judge did a good job. You really shouldn't be going for more than nominal damages. really, the problem is the case is far too complicated... it should be possible to describe the main points of a SCT in a single page, or at the most two pages.

[car2403]

Thanks tom - strange that the Judge agreed, then complimented me on my preparation.

 

I'm now revisiting my other claims, based loosely on the same POC, to see what I can do there as a result of this.

 

I hope this thread is useful to you all, in that preparation is the key and we now know more about how the Court is likely to manage future claims as a result of this.

[Hopeful1]

Hi Chris

 

Seens as how a county court claim has just landed on my doorstep threads such as this will certainly be helpful!

 

Yesterday i was only reading out of interest...what a difference a day makes

[tomterm8]

Thanks tom - strange that the Judge agreed, then complimented me on my preparation.

 

I'm now revisiting my other claims, based loosely on the same POC, to see what I can do there as a result of this.

 

I hope this thread is useful to you all, in that preparation is the key and we now know more about how the Court is likely to manage future claims as a result of this.

 

There's no doubt that you case was thoroughly prepared, and that you have a good handle on it. Inevitably, at this stage, new arguments come out of the woodwork, and need to be countered.

 

It's more a question of trying to keep it in the SCT, since the risk is much lower.

[car2403]

There's no doubt that you case was thoroughly prepared, and that you have a good handle on it. Inevitably, at this stage, new arguments come out of the woodwork, and need to be countered.

 

It's more a question of trying to keep it in the SCT, since the risk is much lower.

 

He didn't mention reallocation and it's already on the SCT - even if Barclays (which they will!) apply for a counterclaim for the balances, (£1.2k and £1.8k) I can't see this going anywhere other than the SCT?

 

The Judge seemed intent on protecting my interests as well as theirs, so this wasn't discussed, but I'd be surprised if the Judge reallocates it now.

[car2403]

Hi Chris

 

Seens as how a county court claim has just landed on my doorstep threads such as this will certainly be helpful!

 

Yesterday i was only reading out of interest...what a difference a day makes

 

Just hope you get a decent Judge, as that makes all the difference, whatever the outcome.

[tomterm8]

hi chris, it was just the talk from barclays soliciters about the defamation angle that worried me. barclays will want it to go fast track, and I have seen several cases based on the Data Protection Act go fast track.

 

The judge can allocate it to another track if he thinks it is appropriate - given the length of the hearing, if barclays suggests the reallocation he might reallocate it.