That Salford Business Claim - Sweeney v Barclays

[Amethyst]

Re: That Salford Business Claim - Barclays

We know penaltycharges are out. That is assuming the terms are very similar (judging by HSBC and Barclays ones which i have looked at) and it is likely to be judged in the same way.


What regulations are business contracts judged under - there must be some equivalent to UTCCR for business to business contracts.

UTCA 1977 doesnt cover it as far as I can tell as they have been judged not to be a fee for a breach of contract so reg 4 is out.


But then there is the reasonableness test on UTCA. Which we used to use.
The Unfair Contract Terms Act | Business Link

Is there a unfair terms directive in EC ?

the lawcommission and scots law comm wanted to include microbusiness's (under 9 employees) in the unfair trading terms bill but this never got off the ground

[Amethyst]

Re: That Salford Business Claim - Barclays

nomad's case is currently stayed....the bank are going to ask for a strike out that the claim has no merit or chance of success based on this salford case.

The letters dated 22nd April - so reply needs to go off first class tomorrow.

He needs to ask barclays to continue the stay. Which I think can only be done under the UTCCR and the fact that the account is a trading account.

This is his thread over on MSE which has a bit more detail of the case Threatening letter Charge reclaim - MoneySavingExpert.com Forums

Any thoughts please.

[Paule]

Re: That Salford Business Claim - Barclays

Just a few notes

PRACTICE DIRECTION – STRIKING OUT A STATEMENT OF CASE This Practice Direction supplements CPR Rule 3.4

PRACTICE DIRECTION STRIKING OUT A STATEMENT OF CASE - Ministry of Justice

1.2

The rules give the court two distinct powers which may be used to achieve this. Rule 3.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)) Rule 24.2 enables the court to give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence. Both those powers may be exercised on an application by a party or on the court’s own initiative.

1.4

The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,

(2) those which are incoherent and make no sense,

(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

Setting aside judgment entered after striking out

3.6

(1) A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside.

(2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.

(3) If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside(GL) the judgment.

(4) If the application to set aside(GL) is made for any other reason, rule 3.9 (relief from sanctions) shall apply.

[martin3030]

Re: That Salford Business Claim - Barclays

There will be different scenarios here.
Firstly there are those Barclays Business claimants who had cases stayed BEFORE the October ruling.
and there will be some who have had cases stayed SINCE the October ruling.
That would be applicable to those who were minded to apply to amend POCS of claim,since Barclays contention that claimants have no cause of action is their reliance that the common law elements have been rendered as a lost cause.
Is it therefore the case that there needs to be an alternative to Common law in the POCs...and /or that Common law could still be argued in some cases depending on the terms and conditions that Smith looked at and those of the claimant.
I have looked at the terms and conditions that Smith looked at in Barclays case,both from the April judgements,and also October.
The earliest was 2002,yet I have seen terms from 2000.
They are correct to contend that the terms and conditions for ALL its accounts were basically the same for all accounts they state "materially" the same.
This is part of their arguement put forward in Court with me when I told the Judge that Smith did not rule on Business terms and conditions.
Barclays said there was no difference.
The distinction actually does exist-its within their charges and tariff sheets that went with business accounts-it is within these that there ARE questions because they differ from those of consumer current account tariffs-that is to say what happens after a breach and how it is dealt with etc etc.

I believe then that there is still scope under common law to look at that.
But it will not suffice in my opinion on its own in all cases,therefore there needs to be more and an "in the alternative"

Its been mentioned that to address the immediate issues of Barclays threats there should be something similar to that used for Citi financials dirty tricks.
If Barclays are relyng on no cause of action then the claimant needs to have something to counter this-the right to have a fair trial and CPR protocols should give scope for both sides.

This is new ground and so there is going to have to be some trial and errors.but it is in the claimants favour that Barclays have openly cited that there remains little if no difference to personal and business accounts.On the balance of probabilities,its not an unreasonable assumption to contend that equally many of the issues raised in the investigation into current accounts can be seen to mirror business accounts.It is Barclays themselves after all -who are happy to say theres no distinctions.

[EXC]

Re: That Salford Business Claim - Barclays

This is the view of our solicitor on the case:


I have read the General Form of Order regarding Sweeney v Barclays Bank Plc. but I note that it does not appear to have been sealed (approved) by the Court. I have also read Barclays' letter dated 22 April 2009 to
Mr xxx of xxx. I note that I have received a copy of District Judge Relph's Judgment in relation to Sweeney -v- Barclays Bank. Do you have a copy of this Judgment or do you still want me to try and obtain this from Salford County Court?

Without knowing the history or background to either case, I can only at this stage give you general advice about Barclays' offer letter in light of the current position with the OFT Test Case.

As you will also be aware, in February 2009 the Court of Appeal said that bank charges are governed by fairness rules and in April 2009 the House of Lords allowed the banks' appeal, the hearing of which starts on 22 June 2009. We are also waiting for a decision from the OFT as to whether it thinks that bank charges are actually unfair.

It would appear that Barclays is asking Mr xxx to withdraw his claim and from the information provided I am assuming that his claim is stayed (as are many other claims) pending determination of the test case and not for any other reason. No doubt you will have considered xxx's case in light of Mr Justice Andrew Smith's second Judgment in the Test Case (Commercial Court 2007 Folio 1186) which is referred to in Barclays' letter to see if the judgment has practical application in this case. Without knowing the details of xxx's case, I cannot say whether his claim is spurious or indeed has merit. However, you have asked me to consider whether they are entitled to offer to ask him to withdraw his claim within the next 14 days and whether there are entitled to seek a Costs Order against Mr xxx.

Whether Barclays is entitled to apply to strike out xxx's claim will depend on whether xxxxxxxx County Court decides to lift the stay and deal with this case, notwithstanding that the Court of Appeal Judges have said that all County Court cases should be left on hold until we have heard from both the OFT on whether it thinks charges are unfair and pending the decision from the House of Lords. This is not to say, however, that County Courts will, in particular circumstances, refuse to deal with a case.xxxxxxxxx County Court may decide to deal with any application Barclays may make to lift the stay and strike out xxx's claim.

In general terms it is open for a defendant to apply to Court to have a stay lifted and to strike out a spurious claim on the basis that it discloses no proper cause of action and that a party is entitled to seek costs against a Claimant who makes such a claim. Equally, a party who is unsuccessful in applying to strike out a case risks an adverse costs order.

However, as I have said, I do not know the background to this matter but it may be worth contacting xxxxxxxx County Court to ascertain what that Court's position is in relation to staying bank charges cases and more particularly, whether it will consider lifting a stay of proceedings. This may give you a clearer idea of whether the Court is likely to entertain such an application from Barclays Bank Plc.

14 days is a standard period in which to offer a Claimant a chance to discontinue its claim but xxx would be advised to obtain legal advice before doing so.

If you would like me to provide advice in relation to xxx's particular situation and indeed the strength/merits of its claim, then I am happy to do so and I can provide a costs estimate in that regard.

I hope this is of assistance.

[Amethyst]

Re: That Salford Business Claim - Barclays

but it is in the claimants favour that Barclays have openly cited that there remains little if no difference to personal and business accounts.

In what way do you mean? in arguing UTCCR / UCTA may apply so to keep the cases stayed ?

The rest I think we are pretty much at the same conclusion...


Thanks for posting that up EXC.

Interesting to have it confirmed the stay will have to be lifted before they can strike the claim out. Possibly why they picked on Sweeneys to strike out as Sweeney by getting the stay lifted had already done half the job.

[EXC]

Re: That Salford Business Claim - Barclays

Interesting to have it confirmed the stay will have to be lifted before they can strike the claim out. Possibly why they picked on Sweeneys to strike out as Sweeney by getting the stay lifted had already done half the job.

Indeed that's kind of what I thought - that the case had to be unstayed to deal with the strike out.

I'm not sure if Gina is aware of the distinction and issue with it being a business claim. If you think the same perhaps you should clarify it with her.

[Amethyst]

Re: That Salford Business Claim - Barclays

Hmmmm I am rather mindful of the cost, would feel better if you ask her, then you are likely to get all the information needed in one hit. Now we will have the full case details from Salford later this evening, the original POCs and intervening letters etc. So I would wait until we have disseminated that a bit before asking further opinion.

[Paule]

Re: That Salford Business Claim - Barclays

I have got the Full court bundle as supplied by Barclays to the Sweeneys in relation to the case.

This contains the POC, stay Lift Application, Copies of initial letters & correspondance from Barclays and other ancillary documents.
As well as full T&Cs for business accounts and not to mention full transcripts of ALL the OFT Case Judgements, so not a small document..lol

As I have just got home, I will scan and post up some of the details later.

PKea

[EXC]

Re: That Salford Business Claim - Barclays

Excellent well done PK.

[Tools]

Re: That Salford Business Claim - Barclays

Having played idea tennis with Ame since early this morning until now, speaking to Mr Sweeney on the telephone earlier and having read todays posts we are working on a response as I post, this should be posted shortly.

[Amethyst]

Re: That Salford Business Claim - Barclays

Okay...we have been thinking on this for the last few days and as time is of the essence for some we need to make a decision as to which direction to head in.

All we can do at the moment is try and stall the strike out applications whilst we look into the legalities surrounding business charges further.

Anythiing you do now does have the risk of some costs attached to it. The only way to definately avoid costs would be to withdraw at this stage.

However, if you feel you do have a case, and you are willing / can afford to take the risk then whilst information is obtained and people investigate further you need to try and keep your claim stayed in the court.

The onus is on the individual claimants to make their own decision and at this stage we are unable to say for any certainty whether there will be a bona fide legal case for reclaiming business account charges - whether T/as, sole trader/partnership or indeed Ltd.

Since the penalty charge judgment was handed down we have recommended business claimants to hold their fire, but we understand many will have already been entered and held up in the court system.

We must stress that any advice given on this issue is not legal advice it is simply our own opinion, and we cannot accept any responsibility for any costs awarded against you on taking our advice.

Sorry to sound so melodramatic but its quite important that people understand we are as lost as many of you guys.


Ame
xx



Okay.... in order to attempt to keep your claim stayed in court we have drafted the following letter for you to use/amend and to send to Barclays in response to their ''invitation'' to withdraw.

As time is of the essence you may want to email or fax them (copy it to them by registered post too)

This is just a draft .... and others may have further input/thoughts

---------------------------------------------------------------------------------------------------------------------
Dear XXXXXXX
Account xxxxxxxxxxxxxxxxx

I write in response to your letter dated xx/xxx/xxxx inviting me to consider my position regarding my claim number xxxxxxxx currently stayed in the xxxxxxxxxx county court pending the final decision of the test case.

You mention that on 8th October 2008 Mr Justice Andrew Smith handed down the second judgment in the case of the Office of Fair Trading v Abbey National Plc & Ors (the test case).

I would ask that you supply me with the relevant paragraph numbers to which you refer in your letter. You also state that this applies to Barclays historical Personal Current Account terms and conditions and that the decision impact the viability of my claim. [You have also stated that you have included a copy of the judgment and order in your communication, although this was not enclosed, and I would request that you supply me with a copy highlighting the relevant paragraphs] ***REMOVE IF THEY DID SEND IT*****

You also state that the UTCCR 1999 does not apply to a Business account as Business customers are not 'consumers' for the purpose of these regulations. I would ask you to indicate to me which regulations are applicable to the terms of contract governing my account.

I am in receipt of the copy of the order in the case Sweeney v Barclays, however it does not appear to be a sealed (approved) order by the court and I would ask you provide me with a true copy of the original sealed order. You indicate that my case 'suffers from the same lack of merit' as that in Salford. However as I am not party to those proceedings I am unable to assess whether the order given in the Salford County Court would be applicable to my own case. Therefore could you please also supply me with the complete and full documents submitted in that case, as this will form the basis of your application to strike out my claim.

You will be aware that the case you have quoted will not be capable of setting a precedent as it appears to have been a small claim in a county court.

In order for me to be fully aware ofmy position and your 'open offer' to voluntarily withdraw my claim I must insist that you furnish me with all the information requested above before you continue with any further action through the courts.

I would ask that Barclays allow me a further 30 days in order to seek legal advice and consider my position. I have filed a copy of this letter with the court.

Should you proceed before supplying this information I will seek permission from the court to extend the stay of proceedings and an order that you supply me with the relevant documents.

I await your response and additional documentation as requested.

Yours sincerely

------------------------------------------------------------------------------------------------------------------



As I said this is just a draft and all input/thoughts/ideas more than welcome.

[Tools]

Re: That Salford Business Claim - Barclays

PKea, the original POC (and any amendments) is the first document we would like to see. Please could you post this in VIP initially as we need to keep it away from the banks prying eyes.

We will keep everyone here informed of any developments additional to the letter Ame has just posted as soon as we can. I hope you understand the need to keep it off the main forum initially.

Many thanks for your patience.

ps, a massive thank you to PKea for taking the time to go and collect the documents from Mr Sweeney. I owe you a few pints in Birmingham

[EXC]

Re: That Salford Business Claim - Barclays

Great letter guys.

[Paule]

Re: That Salford Business Claim - Barclays

Documents have been posted and uploaded in VIP

Sweeney v Barclays

PKea