That Salford Business Claim - Sweeney v Barclays

[Amethyst]

Re: That Salford Business Claim - Barclays

Just to note we are going to ask for our solicitors input on the letter but as it is bank holiday weekend this may take some time.

It is simply intended as a holding letter. It does not remove the risk of costs altogether although it should show the court you have tried, as a LIP to collect all the information together in order to consider the 'new evidence' submitted by Barclays.

We only found the full details of the case this afternoon and there is a heck of a lot to go through.

The claim appears to have been standard although the main issues for the strike out seem to be a lack of clarity on which terms were being argued as penalties and why, and the read across from the test case on penalty arguments was taken as read.

For now I, personally, would have to recommend that business claimants who cannot afford to risk costs against them, withdraw their claims from the county courts. That is not something I would say lightly, but it is simply MY opinion.

Business accounts have NOT been tested in court, although the penalty argument being out of the mix with regards personal accounts, as the same or very similar terms are involved in the business accounts. any judgment on those terms using the common law principles is likely to be the same, that they are not capable of being penalties.

Until / if we (meaning everyone) can come up with a replacement arguement which covers unfairness of terms on business to business contracts (because the terms are unfair after all there is just not the protection there for businesses) then I wouldnt be happy to send anyone into court to argue the case.

Now I don't think Barclays would go for wasted costs or anything so I dont believe tomlin order agreements are needed to prevent costs but may be worth thinking about.

Ame
xxxxx

[EXC]

Re: That Salford Business Claim - Barclays

Just to note we are going to ask for our solicitors input on the letter

You bet we are - she looks well fit. Can I be the first to volunteer for any face-to-face meetings?

Incidently her CV includes the work she did for us on the potential challenge to the waiver. http://www.fsilaw.com/Profiles/Gina%20Serre.aspx

[Amethyst]

Re: That Salford Business Claim - Barclays

awww thats nice she's included that on her resume

Advising an interested party in relation to a waiver granted by the FSA in 2007 allowing banks not to take any steps to process overdraft charge complaints beyond recording that they had been made pending the outcome of the OFT's Test Case;

[Amethyst]

Re: That Salford Business Claim - Sweeney v Barclays

Documents in the bundle (these are held in VIP area simply for privacy but if a claimant wishes to see any please just drop me a pm) theres other stuff but its standard test case transcipts/judgment etc which you can find OFT v Banks Test Case Official Docs - Transcripts, Defences, POCs - Legal Beagles
The letters and stay lift appl etc seem to be standard CAG ones.

Letter before action
Claim Form
Barclays Defence
Application for stay lift
Order re Stay lift
Witness Statement of ET
Letters from Barclays to Claimant re 'drop hands'
Judgment/Order

[ed.]

Re: That Salford Business Claim - Sweeney v Barclays

Ame re the letter, is it worth quoting the OFT/FSA who have categorically said in the past that the TC and Stays shouldn't inherantly read across to business accounts/credit cards etc etc.

I know lately in the Q&A's from the OFT there have been intimations it 'may' read across to other types of accounts, but that hasn't been set in stone yet.

On the one hand that does further distinguish business claims from Smithy's words and the penalty ruling BUT on the other I suppose it could lead to the risk of the bank using the very letter as an excuse to get the claim unstayed??

[EXC]

Re: That Salford Business Claim - Sweeney v Barclays

Ame re the letter, is it worth quoting the OFT/FSA who have categorically said in the past that the TC and Stays shouldn't inherantly read across to business accounts/credit cards etc etc.

Where is that stated Ed?

I'm not sure that the OFT have jurisdiction over business accounts as it's business-to-business and not a consumer area. And even if they did it's really for the court to decide on any eventual readover re stays.

But I can certainly ask them.

[Amethyst]

Re: That Salford Business Claim - Sweeney v Barclays

Aye I agree that it hasnt been stated that it reads over to business accounts, possible can use that against the strike out because it hasnt been tested in court has it....but thats the type of account as a difference than the term.

Although a Judge looking at identical terms to those judged on in the test case and the high court deeming them not capable of being penalties is going to come to the same conclusion.

I'm really not sure but yes think it might be worth adding into the letter.

[martin3030]

Re: That Salford Business Claim - Sweeney v Barclays

Sorry I only saw YBs post just now.
I emailed Emma at the FOS to ask specifically about the position she replied that they have been asked to look at some business cases but that they have not arrived at any decisions in any of them.
Barclays are contending that their terms and conditions across all accounts are materially the same.....Smith looked at a few different ones which are appendixed in the test case transcripts-I think in total there was probably more than a dozen in the April Judgement which spanned the mid 2000.
In the historical ones for common law the earliest was 2002.
There he observed the penalty and fairness aspects in particular studying clauses made under the heading "Borrowing from us"

Since my claim relates to much earlier charges - 1999-2000 I have not studied in detail the tariff cards or charges for business for beyond 2002.

My arguements in Court were that Smith did not look into these tariffs which give details of other charges that are related to business.
And so I argued that although he had ruled that under common law there could be no grounds to assume there could be cause for terms and conditions to be seen as penalties,he had not specifically looked at any accompanying business tariffs and charges that were a suppliment to their main terms and conditions.
Therefore I stated that breach under common law was not conclusive,in the absence of him looking at those tarriffs which detailed further fees and charges,and also differed by nature in how a breach would be treated for going overdrawn.
Interestingly the business tariffs also state that an unauthorised overdraft would attract a higher rate of interest than an agreed overdraft-which in itself demonstrates a point.

My pocs also refd the unfair goods and services act-I found it interesting that Barclays Skeleton dismissed it but yet did not go to any lengths to say why.

There are a number of things I have been looking at and some of those things are not so obvious-but for me this is not new I have been working on my own case since October last year-when I found myself in the same position as the recent claimers do now.

The biggest problem as I have seen already,is convincing Judges to hear them out since Barclays are saying that the issues have been ruled already.
Sadly it is true to say that the average Judge is not up to speed with dealing with alternative submissions to those they have read about or are familiar with.
Therefore its very important that any submissions are going to have to be such that a Judge can have some understanding and grasp in order to rule on.
If it were a total reliance on case law itself,this would be relatively simple.
I took 6 weeks studying limitation and used half a ream of paper in submissions to apply for it-in court it was decided on just 2 paragraphs and the Judge understood it very well- it was over in 15 minutes !! I was of the opinion that it was going to be a tall order-when it was in fact a breeze.
The circumstances now facing Business claims on account of the rulings means a lot of considerations not just a reliance of terms in one single category.

My point therefore is that there should equally be focus on reconciling in some way unfair consumer terms and common law and the expectations and duty of care by the bank in the contractual sense-it is difficult because it borders on torte which is a different cause of action.So the other areas to consider are contractual law and other things that the OFT and Smith did not look into.
Lets be clear-the only statute looked into were unfair terms in consumer contracts and common law.There was no requirement to look any further since these were the only 2 cited in 99.9% of POCS !!

I dont want to say too much more here suffice to say that the implications not only for Barclays-but all business claims in general are pretty huge.


Having said this,I do believe that those who do have cases struck out could seek permission later to file a claim if the OFT does eventually get round to making a decision on business accounts.
There would be very good arguements to go for that.
But it could be more difficult for those who Barclays frighten into voluntarily withdraw their claim-I could see that as being a problem .
Just my own thoughts-as most will know by now these are unchartered waters.

[Tools]

Re: That Salford Business Claim - Sweeney v Barclays

Thanks Martin, some good points raised there. Can I just ask for some additional info. If you would prefer to keep it off the main forum for now then please reply by PM.

Since my claim relates to much earlier charges - 1999-2000 I have not studied in detail the tariff cards or charges for business for beyond 2002.

Do you, or indeed anyone else reading this, have a copy of these to study?

Interestingly the business tariffs also state that an unauthorised overdraft would attract a higher rate of interest than an agreed overdraft-which in itself demonstrates a point.

Are you arguing that this itself is penal or subject to fairness?

My pocs also refd the unfair goods and services act-I found it interesting that Barclays Skeleton dismissed it but yet did not go to any lengths to say why.

What argument/Sections are you using from here?

There are a number of things I have been looking at and some of those things are not so obvious

Such as?

I took 6 weeks studying limitation and used half a ream of paper in submissions to apply for it-in court it was decided on just 2 paragraphs and the Judge understood it very well- it was over in 15 minutes !!

Well done, again do you have any further information you could share, specifically the two paragraphs that were agreed on.

I dont want to say too much more here suffice to say that the implications not only for Barclays-but all business claims in general are pretty huge.

I understand your need to keep this from open forum but some more detail by PM would be most appreciated.

Having said this,I do believe that those who do have cases struck out could seek permission later to file a claim if the OFT does eventually get round to making a decision on business accounts.
There would be very good arguements to go for that.
But it could be more difficult for those who Barclays frighten into voluntarily withdraw their claim-I could see that as being a problem .

A good point and I would suggest that if anyone does decide to withdraw their claim following receiving the letter from Barclays that they include somewhere in their withdrawal a paragraph reserving the right to continue seeking repayment should any new information become apparent, this way they could avoid being considered vexatious in any future claim.

Your input is much appreciated Martin and I hope that we too may be able to help with your own case and that of other claimants here, on CAG and the other forums.

[natweststaffmember]

Re: That Salford Business Claim - Sweeney v Barclays

Martin, you are gonna have to speak with Tools and amethyst re barclays as you may well be aware of issues I have posting on CAG forum now.

[ed.]

Re: That Salford Business Claim - Sweeney v Barclays

Exc - I remember it was one of the very early press releases but post first waiver from memory but I'm buggered if I can find it on my harddrive at the moment. I think I have a papercopy so I'll dig through first chance I get.

I just remember stumbling over it during the time that all claims were stayed and people were trying to get bus/CC etc unstayed in the Courts.

[Amethyst]

Re: That Salford Business Claim - Sweeney v Barclays

Barclays Natwest Cases - Legal Beagles Bob Edgerton - might be of interest to Martin.

[EXC]

Re: That Salford Business Claim - Sweeney v Barclays

I was thinking that Bob's view on the Salford case might be worth listening to. He's fairly clued up on business claims.

[Amethyst]

Re: That Salford Business Claim - Sweeney v Barclays

Bumping as a reminder that you DO RISK COSTS even in SMALL CLAIMS COURT.