That Salford Business Claim - Sweeney v Barclays

[Amethyst]

Still havent got the claim ref number


''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.''





Full letter

On 8 October 2008, Mr Justice Andrew Smith handed down the second judgement in the case of the Office of Fair Trading v Abbey National PLC and Others, Commercial court 2007 Folio 1186 ( the "Test Case"). The Judgement concluded that Barclays historical personal current account terms and conditions did not contain terms giving rise to unauthorised overdraft charges that were capable of amounting to penalties at common law. On 21 January 2009, the OFT confirmed that they would not be appealing the 8 October 2008 Judgement. In the same case, the Judge had already held that the Barclays terms and conditions in force last year likewise did not contain penalty terms and the OFT has similarly decided not to appeal this decision.

We are clear that the impact of these decisions on your claim demonstrates that it discloses no viable cause of action:
-in so far as the claim is based on penalty charges, the relevant terms and conditions relied on are very similar terms to those Barclays terms considered by the Judge in the test case and held not to be capable of amounting to penalties.
-in so far as you rely upon the Unfair Terms in Consumer Contracts Regulations 1999, this is misconceived since the Regulations do not apply to a business account as business customers are not "consumers" for the purposes of these Regulations.

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 charges after 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.

The purpose of this letter is to ensure that you are fully aware of our position and to ask that you consider the following open offer, namely that we invite you to voluntarily withdraw your claim. If you agree to do so within the next 7 days, then we will not seek a costs order against you. If you do not, then our position at the hearing will be that you have no cause of action and we will seek a costs order against you hence this open offer for you to withdraw.

Please let us know your decision as soon as possible.

Yours faithfully

[Amethyst]

Re: That Salford Business Claim - Barclays

also WHY do we say about sole traders being covered under UTCCR ? I can't see that they are tbh. To be covered under UTCCR the charges would have to be shown to be consumer/personal expenses not business ones. And i cant see that you could prove that.

[Amethyst]

Chasing the rest of the info on this.

Barclays are sending this letter out to pretty much everyone with a T/AS / Sole trader account business claim in against Barclays based on the penalty argument.

It is a county court so not precedent setting.

Its based on the judgment of Justice Smith on Penalties and the 'read across to business terms'

Does this affect Business Claims ?

The read across to accounts other than Personal Current Accounts has not been decided upon by the court. In the initial judgement the Judge stated a read across to Basic and Business accounts, however this was only on current terms. You should continue entering you complaint with the Bank and with the Financial Ombusdman Service. We do not recommend entering new court claims at this time.

also

The effect of this decision is to render any claims by businesses, large or small, against the imposition of these charges, bound to fail on that basis. It may be that this consequence is an unintended consequence of the judge’s ruling; there was certainly no reference to business accounts that I could find in the judgment. It may be that the OFT will appeal this specific point, and it is hoped for the sake of many small businesses that they do appeal that point.

and why is no one using the UTCA 1977 anymore for business claims?

Unfair Contract Terms Act 1977 (c.50) - Statute Law Database


We used to use sec 4 ?

4. Unreasonable indemnity clauses.
— (1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.
(2) This section applies whether the liability in question— (a)
is directly that of the person to be indemnified or is incurred by him vicariously;

(b)
is to the person dealing as consumer or to someone else.

articles - The Unfair Contracts Terms: an evaluation - Legal Beagles

[EXC]

Re: That Salford Business Claim - Barclays

also WHY do we say about sole traders being covered under UTCCR ? I can't see that they are tbh. To be covered under UTCCR the charges would have to be shown to be consumer/personal expenses not business ones. And i cant see that you could prove that.

I don't know but I would imagine that if a sole trader used a personal current account for his personal and business banking it should come under UTCCR by virtue of it being a personal current account.

I know that when I was a lad I ran a sole trader business on my PCA with the blessing of Barclays.

Incidently it looks like the banks are going to town with the Salford judgment:

Today, 11:37 AM #1 grey nomad 27
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Threatening letter Charge reclaim
Am very new to all this - need help urgently over threatening letter from Barclays re my claim case.
brief history - used MSE template Feb 07 to reclaim charges - messed about by Barcalys replying from London then Leicester then London etc. Started Court action online May 07 - transfered to local CC June 07 - Court order issued Aug07 giving Barclays until 17 Oct 07 to respond - reply received in Court from Barclays 23 Oct07. Court rejected my order of judgement and awarded Barclays a stay.
Dec 08 wrote to barclays asking to settle under hardship waiver - denied citing 8 Oct08 ruling that I am claiming charges on a business account.
The account was me t/a .... and was my only account and used for personal use ie giving cheques to family members for birthdays,dd to sky, gas elect. Wrote again to Barclays asking them to settle half claim. No reply
Have now had a letter 22 Apr09 threatening that if I do not withdraw my claim within 14 days they will ask court to strike claim out and ask for costs. They are citing a case 20 March 09 Salford CC - DJ Relph where they were successful in getting a claim struck out and were awarded £1000 costs.

HELP do I withdraw ?

[Amethyst]

Re: That Salford Business Claim - Barclays

Okay - the issue with UTCCR and business accounts is to come under the UTCCR it has to be proven to be a consumer business relationship.

Nice extract on a google book search I found I think explains it quite well - The politics of judicial co ... - Google Book Search - there was one explained it even more clearly but I can';t locate it right now.

[rosymaria]

Re: That Salford Business Claim - Barclays

Yeah we have 2 cases on penalty charges that have received this letter!

[Amethyst]

Re: That Salford Business Claim - Barclays

Has anyone managed to get a copy of the case/transcript etc yet? I think Martin3030 on CAG was looking into it? Its Sweeney v Barclays, March 20th Salford CC. District Judge Relph.

Its reminicent of the CIticard £8 and the Lloyds Berwick case jobbies.

It could be the claimant had dodgy parts of claim, might have used UTCCR in error, we NEED the full information before we go about telling everyone to pull out over it.

Nowhere in the judgment does it specifically say that the penalties judgment on historics / or even current applies to business charges. However it is strongly inferred in places and is likely that it does apply to business claims where the T&Cs are extremely similar to personal accounts. Hence at the time warning people not to go into court on business claims until further along in the test case.

[EXC]

Re: That Salford Business Claim - Barclays

Has anyone managed to get a copy of the case/transcript etc yet? I think Martin3030 on CAG was looking into it?

Its reminicent of the CIticard £8 and the Lloyds Berwick case jobbies.

If you mean the Salford judgment I can get FSI on the case. I'm not sure if transcripts are taken for County Court hearings but if they are...

[Amethyst]

Re: That Salford Business Claim - Barclays

Its Sweeney v Barclays, March 20th Salford CC. District Judge Relph. Am not sure about transcripts, I know Nats has asked the court about it.

[EXC]

Re: That Salford Business Claim - Barclays

Its Sweeney v Barclays, March 20th Salford CC. District Judge Relph. Am not sure about transcripts, I know Nats has asked the court about it.

No probs. Just to confirm, was March 20 the hearing date or the date judgment was handed down?

[Tools]

Re: That Salford Business Claim - Barclays

In UTCA 1977 Section 9 states

9. Effect of breach.
(1) Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so and be given effect accordingly notwithstanding that the contract has been terminated either by breach or by a party electing to treat it as repudiated.
(2) Where on a breach the contract is nevertheless affirmed by a party entitled to treat it as repudiated, this does not of itself exclude the requirement of reasonableness in relation to any contract term.

Section 11 states

11. The "reasonableness" test.
(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
(2) In determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.
(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.
(4) Whereby reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to-
(a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and
(b) how far it was open to him to cover himself by insurance.
(5) It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.

and also

SCHEDULE 2

"GUIDELINES" FOR APPLICATION OF REASONABLENESS TEST

The matters to which regard is to be had in particular for the purposes of sections 6(3), 7(3) and (4), 20 and 21 are any of the following which appear to be relevant-
(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met;
(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed or adapted to the special order of the customer.

[Amethyst]

Re: That Salford Business Claim - Barclays

Being county court they could both be the same date, other than that I don't know. the date of the order i believe is the 20th.

I do think it would be important to have this judgment as in the order there is a bit of doubt over why the case went against Sweeney.....vexatious etc?

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.

[Amethyst]

Re: That Salford Business Claim - Barclays

We THINK this may have been a time barred claim that was struck out under limitations. Seeking further information.

[EXC]

Re: That Salford Business Claim - Barclays

If that is the case Barclays are being economic with the truth when writing to other claimants, representing it as significant victory.

[Amethyst]

Re: That Salford Business Claim - Barclays

well hopefully FSI will come up with something, and waiting to hear back from someone else on it too. Could be entirely wrong of course, it does happen, occassionally