Barclays Reclaim (OFT v Abbey National ?)

grouse46

Following putting in my claim to the court against Barclays they have written saying that following the judgement in Oct 2008 in the case of OFT v Abbey National the judgement concluded that barclays historical personal current account terms and conditions did not contain terms giving rise to unautherised overdraft charges that were capable of amounting to penalties at common law
I am not claiming unautherised overdraft charges but referral fees etc
They say they will apply to have the claim struck out and claim costs
Can anyone help with advise

esmerellda

grouse46 wrote: »

Following putting in my claim to the court against Barclays they have written saying that following the judgement in Oct 2008 in the case of OFT v Abbey National the judgement concluded that barclays historical personal current account terms and conditions did not contain terms giving rise to unautherised overdraft charges that were capable of amounting to penalties at common law
I am not claiming unautherised overdraft charges but referral fees etc
They say they will apply to have the claim struck out and claim costs
Can anyone help with advise

Can you please type up your particulars of claim.

Yes the bank are correct that the judgment confirms the terms in barclays agreements are no capable of being penalties.

You must have used UTCCR in your claim as opposed to Penaltys in order to proceed.

Please give your POC asap and we can sort out an application to amend the claim if necessary and avoid the strike out and costs.

Ta.

grouse46

Thanks for your reply , below are the particulars of claim on the court form

The claimant has an account Noxxxxx with the defendant since 1993.
Between 2004 and 2008 the defendant has debited numerous charges from the claimants account for unpaid cheques and cheque refferals. The defendant also charged interest once applied. The claimant understands that the defendant contends that the charges were debited in accordance with the terms of contract between itself and the claimant.
Tha charges applied by the defendant are punitive in nature;are not a genuine pre estimate of cost incurred by the defendant;exceed any alleged actual loss to the defendant in respect of any breaches on the part of the claimant and act in terrorem to ensure contractual compliance and to deter a breach on the part of the claimant.
A list of these charges is attached to these particulars of claim and the defendant has been issued with the same.
These charges are an unfair penalty under the Unfair Terms in Consumer Contracts because they are a disproportionatly high sum in compensation compared to the purported breach. Under the law of penalties the charges are an unlawful extravagent penalty.
The High Court on the 24th April held that the defendants charges were subject to tests of unfairness under the Unfair Terms in Consumer Contract Regulations 1999 and subsequently dismissed an appeal by the defendant on the 26th April 2009
Accordingly the claimant claims the return of the amounts debited in respect of charges in the sum of £3201.00 plus interest under S69 of the county court act 1984 at the rate of 8% a year of £670.22 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 0.21%. Additionally court costs of £108.00

I really appreciate yor help in this
Regards
Richard

grouse46

Barclays advise me that as my account is a business account I cannot claim back charges despite the account being in my name as a sole trader and quote a case in salford court which was dismissed with costs
Any help

natweststaffmember

grouse46 wrote: »

Barclays advise me that as my account is a business account I cannot claim back charges despite the account being in my name as a sole trader and quote a case in salford court which was dismissed with costs
Any help

In writing or verbally?

esmerellda

Thanks Richard - where did you get the POC from (just if its off a site we should be able to get it changed stop this happening to someone else)


Okay what we need to do now is enter an application for permission to amend the POC.

This is the form N244 which you can download from http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

Its mostly self explanatory but will help you fill in any bits you get stuck on, you will need to pay a fee with it, the court will tell you how much (think its about £35 but they keep changing it grr).

Right you want to ask for

application to allow the claimant to amend the particulars of claim


then you want it without a hearing and attach the new POC which will read


________________________________________________________________________

1. The Claimant operated the account number(s) xxxxxxx ("the Account(s)") with the Defendant which was operated between approximately xx/xx/xxxx and xx/xx/xxxx(present day if still open)

2. During the period in which the Account (s)operated the Defendant levied disproportionate charges to the Account(s) The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms and conditions of the contract between itself and the Claimant. There was no negotiation on these terms.

3. A detailed schedule of charges levied is enclosed with this claim.

4: It is the claimants contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfill his obligation to pay a dis-proportionately high sum in compensation .

5: Insofar as they purport to be services provided by the Defendant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Defendant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999. The Court of Appeal upheld this view on 26th February 2009.

6: The terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.

7. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ xxx.xxx(charges total) and any interest charged thereon;

b) Any Court costs incurred by the claimant;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of charges to (the date you are issuing the claim) of £xxx.xx and also interest at the same rate up to the date of judgment or settlement at a daily rate of £xx.xx per day

________________________________________________________________________

Send a copy of these forms to the defendant (barclays - the address on the defence form) and the court - the claim will then be stayed pending the outcome of the test case.

grouse46

In writing from there legal department
I had thought that as a sole trader I could claim but am i wrong

grouse46

Thanks for the info
The claim details mostly came from CAG with some from Moneysaving
I have one final question and that is I am a sole trader operating this account which barclays claim is a business account and therefore I cannot claim
They quote a case in salford court which was dismissed with costs

esmerellda

Have you got the case number for the claim in Salford, or any further info in their letter?

As far as i know so far this case was dismissed on the penalty charge readover from the April Judgment in the High Court.

your letter probably says

''It may be of interest to you to know that on the 20 March 2009 we successfully defended an action for the recovery of local business chargesafter we had written to the claimant in the exact terms as set out above. In the wake of that letter, District Judge Relph at Salford County Court held that the claimant had been unreasonable to pursue the claim to trial after we had sent a letter in very similar terms to this one and we were awarded costs. I enclose a copy of the order for you. The reason we mention this is because we are clear your case suffers from the same lack of merit as that in Salford.''

and the order attached thus

''It is ordered that-

1. The claim is dismissed.

2. The Court finding that in the light of the Defendants communications dated 11th Feb, 5th March and 6th March the Claimanthas been unreasonable in pursuing the claim before the court having specifically sought to have the original stay lifted.

3. The Court summarily assessed the Defendants Costs at £1000 inclusive being the notional costs of the Defendant on a proportionate basis ( no allowance or claim for counsels costs or travel having been made) payable within 28 days.''

If you are a XXXX trading as XXXX account then you should come under consumer regulations.

natweststaffmember

grouse46 wrote: »

Thanks for the info
The claim details mostly came from CAG with some from Moneysaving
I have one final question and that is I am a sole trader operating this account which barclays claim is a business account and therefore I cannot claim
They quote a case in salford court which was dismissed with costs

Have you got a citation for the case at Salford Court, ie Smith vs. Xbank?

grouse46

You are absolutely right the wording is exact !!
They have given me 14 days to withdraw or they will apply to strike out the claim on the above basis
I really want to fight these bxxxxxs but I need to be realistic