Orge vs BC **WON**

[slick132]

Talking of POC's, what have you drafted at item 19, about the interest you're claiming.

 

[orge]

Hi Slick,

 

Sorry, I didn't spot your last post but my claim hasn't been filed yet. I have now filled out the majority of the POC's but I have a couple of questions:

 

1. Court Costs - am I right that this claim will cost £455 to file? It's around 9.5k, so fits into the 5k-15k bracket. I do understand that I will get this back if I win.

https://www.gov.uk/make-court-claim-for-money/court-fees

 

2. As you note above, they repaid some of the fees previously. I was going to reword point 19 as:

The Defendant repaid £xxx as a gesture of goodwill on xx/xx/xxxx.

 

3. I would leave the "demanded" dateas the date of the most recent prelim.

 

4. What do I need to add in order to ask for the default to be removed? I couldn't actually find an example of this despite looking all over... I was going to add this in the summary section, but I am not sure about the rest:

 

The Defendant registered a default on the Claimant's Credit profile for £xxx.xx on xx/xx/xxxx.

 

5. What date do I use for T&C's? I guess the account was closed around 09/2009?

 

6. Is it right to head it up with, or is the bolded section redundant for this purpose:

IN THE County Court Money Claims Centre (CCMCC) county court

 

Thanks again for your help.

 

James

[slick132]

Hi Orge,

 

1. Court fees will be as per current HMCTS guidance.

 

2. Please post the whole of s.19 so I can see what you've said about interest, etc.

 

3. I don't understand what you mean by the "demanded dates".

 

4. If it's appropriate, you could say as an additional requirement at 19(5), "Removal of all adverse credit data for the account, as the remaining account balance is made up wholly or significantly of unlawful penalty charges and associated interest."

 

5. Get T&C's as close as you can to when the a/c was opened.

 

6. The CAG site add auto-links to key words or phrases like donation or interest. In your POC's, you do not want anything to be bold apart from maybe your headings.

 

Please just remind me of the approx totals for the a/c balance and your claim amount (excluding court fees).

 

[orge]

Hi Slick,

 

Here's my current POC. I think the only thing I am currently unsure of is how to encompass the good will payment they previously made and the current claim?

 

Current balance on this account is £500 and £2.5k on the old one. The claim is for £1000 in charges + 8.5k interest, less £250 they previously paid.

 

Additionally, the court fees do look like they will be quite high for this. How much risk is there that I could lose? I wasn't so bothered about risking a couple of hundred, but £450 is quite a bit more than this...

 

Thanks,

 

J

 

New POC Barclaycard (N1)

Claim No [ ]

 

IN THE County Court Money Claims Centre (CCMCC) county court

 

 

 

BETWEEN

 

Mr xxxx

Claimant

 

and

 

 

Barclays Bank PLC t/a Barclaycard

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/1995, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The Defendant registered a default on the Claimant's Credit profile for £500 xx/xx/2010.

7. The default charges were applied in accordance with the standard terms of The Agreement which were:

a) A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

8. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

9. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charge was £15 in July 2002 , was £20 from Aug 2002 – July 2006 & £12 from Sep 2006 onwards.

 

Penalty

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

12. At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not be individually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15. without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £1000 between xx/xx/2002 and xx/xx/2009. Particulars appear from Schedule 2.

 

18. On 17/09/2014 the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant repaid £250 on xx/xx/2008 as a gesture of good will.

 

And the Claimant claims;

 

 

(1) A declaration that the sums totalling £1000 have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £1000 and interest in restitution of £8500 as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date, in the sum of £800 and at the daily rate of 25p until judgment or sooner payment.

 

(4) Court costs of £455.

(5) Removal of all adverse credit data for the account, as the remaining account balance is made up wholly or significantly of unlawful penalty charges and associated interest.

 

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

Dated

 

 

 

Signed

 

 

 

 

Schedule 1

 

From Barclaycard Conditions in force (as of Dec xxxx).

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a)3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b)If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance.

The minimum payment must be received by us and paid into your account on or before the payment date.

[slick132]

Hi Orge,

 

I agree £450 in fees is a lot to risk but I cannot say if you'll win or lose.

 

What I can say is that BC have continued to settle cases over the past 5 years paying restitutionary compound interest on charges whether they are younger or older than 6 years.

 

And, of course, the risk in your case could yield a very high reward.

 

I have already said, the refund of £250 made previously can be simply dealt with by making a manual adjustment to the bottom of your SoC.

 

As you're claiming restitutionary interest, you do NOT claim s.69 interest as well, except from the date of the court claim up to settlement. Your PoC should show the penalty charge and compound interest thereon for the relevant number of days. There should be no s.69 interest from the date of the charge to the date of claim.

 

I would alter the PoC as follows :-

 

18. The Defendant repaid £250 on xx/xx/2008 as a gesture of good will.

 

19. On 17/09/2014 the Claimant demanded repayment of the sums wrongly applied.

 

20. And the Claimant claims;

 

 

(1) A declaration that the sums totalling £1000 have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £1000 and interest in restitution of £8500 as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum [daily rate of 25p per day] from the date of claim until judgment or sooner payment.

 

(4) Court costs of £455.

 

(5) Removal of all adverse credit data for the account, as the remaining account balance is made up wholly or significantly of unlawful penalty charges and associated interest.

 

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

[orge]

Ok. Thanks again for your feedback.

 

My main concern was with the previous payment and it makes me feel more confident that you don't perceive this to be an issue. As you say, there is a lot to gain from the claim, so I appreciate there is a trade-off against the fees.

 

I assume the ideal is that I proceed straight away but would it actually weaken my case if I postponed the claim until beginning of February? I can probably just about squeeze these fees out of my current finances but it would mean compromises elsewhere.

 

Cheers,

 

J

[SabreSheep]

do you qualify for fee remission, check here https://www.justice.gov.uk/courts/fees

[orge]

Thanks for the link, Sabresheep.

 

Unfortunately, I've just checked and it doesn't look like I would qualify for any remission. I would pass the capital test (as I don't have a pot to pi$$ in!) but my monthly income is above the threshold for this fee.

 

Tbh, this is a fair assessment as I can "afford it". It's just the timing, as I start a new job in January will move from weekly to a monthly salary... Plus I will likely be covering some hefty accommodation expenses until I can claim them back from my employer and there's obviously xmas/new year in between! I don't think any of these arguments will sway a court/judge though!

 

I've put it in my budget planner and will have a think about it over the next few days. I suspect I will suck it up and get it filed anyway, as I would like to get this moving again.

 

Ta!

 

J

[slick132]

Hi Orge,

 

I really think you should proceed as soon as you can reasonably afford.

 

I wouldn't want your claim to be jeopardised with regard to The Limitation Act because you failed to proceed as soon as you could.

 

[orge]

Ok, I will try to file in the next week.

Where do I make the adjustment to the total for the refund?

I assume this should be reflected on the N1 form and somewhere in the POC?

 

Thanks,

 

J

[orge]

Hi,

 

I think my POC is all sorted now but I am unclear whether the total amount claimed on the N1 form should be before or after the refund they have paid already.

Thanks,

 

J

[SabreSheep]

Remove the £250 already refunded form the n1 claim total.

 

Do you think it might be wise to put in your POC after the bit you mention the £250 goodwill gesture" something like "The goodwill gesture was not acknowledged by me in any way and was not a full and final settlement agreed by myself" ?

[orge]

Ok. Will do!

 

Wouldn't it be down to them to try and argue this in their defence, if that's the way they wanted to present it?

I would then include any extra info necessary in my court bundle.

 

J

[slick132]

Hi Orge,

 

I would not mention the £250 in any detail at this stage. Let Barclays Litigation raise the points they want in their Defence.

 

Your SoC should show the typed list of charges and interest. You can either type onto it, or write onto it as follows :-

 

Total of charges and interest. 925.00

Less refunded on xxdate........250.00

Balance claimed on Form N1 £675.00

 

[orge]

Just an update to let you know that I submitted the claim at the end of last month and Barclays have sent me an acknowledgement of service today.Is there anything to do between now and receipt of their defense?Thanks,J

[slick132]

Hi Orge,

 

Nothing, apart from reading up on other cases so you have your court bundle ready if required.

 

[SabreSheep]

Normally a letter will arive rubbishing your claim. They normally offer to settle on a commercial basis without liability. Normally charges within six years and 8% simple interest.

 

This is to try and avoid their need to submit their degence

[orge]

Nothing more than an acknowledgement of service received so far. Have put a reminder into my calendar for the 28 days deadline, although I am sure I will hear from them before then!

 

I have also been through Sabresheep's thread and made some notes about the steps/timeline - sounds like it took about 2-2.5 months to run its course from this point, although I guess it depends somewhat on the mediation dates etc.

 

J

[orge]

Had this from Barclays today:

"Further to our telephone conversation, we are currently investigating your Claim. We would be grateful if you would consent to a 28 day extension for the Defendant to file the defence in order to allow more time for the Defendant to consider its position and explore settlement."

 

Am I obliged/advised to agree to this?

 

Thanks,

 

James

[SabreSheep]

Had this from Barclays today:

"Further to our telephone conversation, we are currently investigating your Claim. We would be grateful if you would consent to a 28 day extension for the Defendant to file the defence in order to allow more time for the Defendant to consider its position and explore settlement."

 

Am I obliged/advised to agree to this?

 

Thanks,

 

James

 

time wasting. Id be inclined to decline stating they have already had x months to investigate from when you issued claim upto this point.

 

State you are willing to discuss settlement via email or post at anytime during the proceedings and also that you would like to invite them to use the courts mediation service with you.

 

regrettably your claim will continue untill settled or judged.

 

That would be my reply. See what others think. But no more phone calls to bc

[orge]

This is my inclination too... It's not exactly like I have rushed them into court over the last few months! If they didn't take it seriously until now, that's not exactly my problem.

 

j

[slick132]

Hi Orge,

 

When is their Defence due in.

 

This is not Barclays Litigation's normal tactics.

 

Considering the very limited Defence that they file in response to such claims, I can see no need for them to seek an extension.

[orge]

Feb 12th.

Are they buying time to repurchase the other debt or to properly defend?

 

J

[orge]

Just as an update, I need to visit my solicitors about a will in the next couple of days. I am now wondering whether it might be worth running this case past them on the off chance that Barclays are planning to mount a defense?

 

I think it is conspicuous that they haven't made any effort to settle so far.

 

J

[orge]

1st draft of response:

 

"Dear Ms xxx,

 

I've given your request careful consideration and I find no grounds for an extension. This matter was first raised with Barclays over 4 months ago, in my letter dated 17/9/14, and there has been ample time to investigate. Regrettably, this means that the deadline stands and my claim will continue until settled or judged. That said, I am willing to discuss settlement via email or post at anytime during the proceedings. Additionally, if required, I am happy for you to engage the courts Mediation service.

 

I would appreciate if future communication could be via email or post."

 

It's also worth noting that she seemed flustered on the phone when I said that I would respond to her written request by the end of the week. It seems like that that wasn't as quick as she wanted. They are definitely up to something... :-/

 

J