Papalazarou vs Barclays Business Claim

[papalazarou1999]

Was given your details by Varangian on penaltycharges.co.uk. I have a friend due in court on monday against Barclays regarding a business charges claim. They have been quite threatening since they "won" the Salford case, and my friend has had emails and letters stating drop the case or lose and pay Barclays costs. The latest update is that they want an adjournment to review the case. Any help greatly appreciated!!!!

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Hi Papa - I have replied ot your pm and will move your thread up to the business forum.

Welcome to the site.

Ame
xx

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Have Barclays given any other reasons for the adjournment and for how long are they asking ?

I would be inclined to agree - you'll find the same salfrd case letters on this forum...but need to know a bit more about your friends case.

[papalazarou1999]

Re: Papalazarou vs Barclays Business Claim

Basically, all paperwork including POC was lifted from penaltycharges.co.uk. The claimant handed the 3 court bundles in, and we thought there wouldn't be a problem. However, the court stayed the claim and thats when it all kicked off. Finally got the stay lifted, but by then Barclays were celebrating their "victory" in Salford and we are now looking at an adjournment, as agreed with Barclays.

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Are the details on a thread on PC? If so can you link me to it.

Still don't know what the adjournment is based on.... you have agreed to an adjournment with Barclays (and the court?) but adjourned pending what?

[papalazarou1999]

Re: Papalazarou vs Barclays Business Claim

Barclays Business Claim stayed by Court - Penalty Charges Forum


Case adjourned to allow at least one hour for the hearing.

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Thank you :kiss: back in a tic


Okay

This was the letter

In light of my most recent letter and documents attached dated 8 May 2009, would you be willing to consent to the hearing being postponed so that you have more time to digest the content and ultimately enable the hearing to be listed for a more adequate time frame of at least 1 hour?

Should you be in agreement then I will email/post you a consent order that both parties can sign and file at Court.

Have you replied agreeing? and have they sent you the consent order (if so can you post it) - hmmmm strange they want to put it off and tactically you'd think they're panicing, or trying to scare you.

Whats the case listed for currently ? s'ok

Spoke to Barclays today, they stated that they would be looking to adjourn the case as 30 minutes would not be long enough for the Judge to make a decision, and would be looking at a 2 hour hearing. No mention was made of settling the case prior to entering court.

You used the standard business claim POC etc from PC....

so this ?

On or around the (date you opened account) the claimant opened an account (account number (insert number) sort code (insert number) with the Defendants, the claimant believes this was on the defendant’s standard term and conditions. (If you were never shown these say so) There was no negotiation on these terms it was either a take it or leave it policy. In fact if the claimant had no option but to agree to the terms as he would have met the same reply at any other Bank.

After reading about these types of charges in the Media, the Claimant decided to send the defendant a Data Protection Request letter dated (insert date) attachment A) asking the defendant supplied him with a copy of his bank statements dating from (date) to(date) .(attachments B 1 to whatever )

After going through these statements the Claimant discovered that the Defendant had applied charges to his account since the (date of first charge you are claiming ) to ( date of last) totaling £xxxx (insert amount)

On the (date you sent LBA) the Claimant sent the Defendants a letter (recorded delivery) informing them that he believed the charges where a penalty charge (attachment C1 to 2 ) the Claimant then asked the defendant to confirm/prove that the said charges where a true reflection of the defendants administrate cost, or refunded the said charges regrettably the defendants refused to do either.

In addition the claimant also requested that the defendants highlight which clauses in the defendants Terms and Conditions they were relying to make these charges moreover to point out each term that the said charges had been applied against. Again the Defendants refused.
Because the defendant has continually refused to prove that they have any legal right or contractual right to apply the said charges furthermore they have refused to offer any evidence that the said charges are a true estimate of the administrative cost involved. The claimant has been left with no option but to issue a claim.

It’s the claimants contention that the defendants charges are a disproportionate penalty and therefore are unenforceable, the claimant relies of the following Common law Principles (Penalty charges are irrecoverable at common law)
. The precedent for this was:

Dunlop Pneumatic v New Garage [1915] AC 79.

Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges.

They are;
1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach.

2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum.
It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

Murray v. Leisure play [2005] EWCA Civ 963

“English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

“'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”




The claimant further claims interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% per annum, being the sum of £xxxx(insert amount).
The claimant further claims the court fee of £xxxx (insert amount).”
The claimant respectfully requests that the court makes an order for standard discloser, when issuing this claim. as the defendants have continually refused to supply any requested information.

Anything else sent to court - amendments/allocation questionnaires/witness statements etc??

I presume the STAY LIFT was on this basis

To request removal of stay for business account.
I respectfully request to have the stay removed and the fee for this request added to the claim. The claimant and the defendant are well aware that the claim is on a Business Account and is therefore not within the scope of the current OFT case regarding bank penalty charges. This test case applies only to complaints about unauthorised overdraft charges on Personal Current Accounts only and the law which applies to them.
OR

What is the business? is it sole trader ? is the account solely used for business or personal transactions too ?

Are you happy to risk costs ? (In Salford Barclays asked for 10k and got awarded 1k)

[papalazarou1999]

Re: Papalazarou vs Barclays Business Claim

All presumptions that you make are correct.


He was "trading as" .


He also did do personal transactions as well as business transactions thrrough the account.


Let me know if you need any more info, and thanks!!!

[Amethyst]

Well as you know the penalty argument is going to be nigh on impossible to prove. The read across from personal accounts is a pretty sound argument.

So you are left proving the UTCCR applies to a business sole trader account.

the claim you have in as it stands relies SOLELY on the Penalty argument so it needs amending.

Also the stay was lifted, on the basis that the account was Business not Personal and thus exempt from the waiver.

So its a complete turn about needed basically.

I have to make this crystal clear if you went into court based on a penalty charges argument with it unstayed as a business account, I have no doubt in my mind whatsoever you would lose and you would incur costs. So please bear this in mind.

Does that all make sense?


Now we need to think about how to change this. We have choices, either apply to amend the claim fully and ask for it to be stayed on the basis its a sole trader account and thus covered by the waiver - the letter Nattie posted today from the FSA may help with that. However i'm not sure how the court would react to such a complete opposite claim on the same claim.

The other option, I think, and needs to be discussed, is a tomlin order dropping the claim completely without any costs being agreed with Barclays and you be allowed to enter an entirely new claim on a different basis for the same charges - this I feel is the most sensible option.


Did you receive the consent order to adjourn the hearing? Can you post it please. and how long has it been adjourned for? need to know EXACTLY where the claim is at currently.

[jax007]

Re: Papalazarou vs Barclays Business Claim

Not wishing to hijack this post but I am very confused on these biz accounts?

If I am correct, you are saying here that because it's at T/A account you can pursue the claim, but on what basis? Not penalty charges and again I thought UTCCR did not apply.

In the Salford case - again if I am correct - the general consensus of opinion is NOT to pursue biz account claims???

Please can someone clarify and put me straight on this??

ta
jaxx

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Nope. they are some avenues which need a lot of careful exploration but may up in the future. in light of salford especially, but much before that when the april judgment was handed down, it hasnt been recommended for any business accounts to go into court. there is a possibility you MIGHT be able to get UTCCRs to cover transactions made on business accounts that were personal and not in the course of business, and the is also a possibility that you MIGHT be able to get sole traders in as consumers and use UTCCR but then you come up against the in the course of trade/business etc parts. So no, dont take business claims into court unless you are happy to risk costs. The people affected by the Salford case are barclays claimants, mainly who had had the stays lifted on the basis that they werent covered by test case, which got all knackered when the penalty argument left the building...but also people with barclays claims still held who barclays are now threatening to apply to lift the stays so they can get the claims struck out.

So the need is to pull out without incurring costs and allowing the same cause of action to be used again in the future if something comes up to be used legally to reclaim charges on business accounts.

[papalazarou1999]

Re: Papalazarou vs Barclays Business Claim

Have just spoken to my mate, the consent order is stuck at the post office waiting to be collected. the case has been adjourned until 9 september 2009, and a fee of 150 pounds is required by the 18th June to keep the claim from being removed from the list. Having spoken to my mate, he is willing to look at the second option you have proposed, but we are unsure how to continue, so any help/advice would be gratefully appreciated!!

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

Hi papa

Tomlin to withdraw without costs and leave open to restart should new things come to light in the future?

Will have a draft but we cant submit anything yet. Really need to see this consent order thats at the PO as it will show what CAN be done. That is VERY important.

Now whats the £150 for ?

[papalazarou1999]

Re: Papalazarou vs Barclays Business Claim

150 pounds is for hearing fee by the claimant.

Letter from the post office is as follows:

Hearing listed for 18th May 2009 for an application to lift the stay.

We understand that the hearing of the Claimants application for the stay to be lifted is due to take place on 18th May 2009.
Barclays Bank plc does not oppose the stay being lifted on this Business claim.
Therefore to save costs and court time the Bank will not be attending the hearing, no discourtesy is intended to the court. We have notified the Claimant that we will not be attending.


No consent form!!!!!

[Amethyst]

Re: Papalazarou vs Barclays Business Claim

The original hearing was to be a stay lift application hearing ?

Okay your friend needs to come on here or you need to be quite firm and find out exactly what this consent order entailed if there was one. Remind him that Barclays ASKED the court for £10,000 of costs in the Salford hearing.

Did the hearing on 18th May go ahead or has it actually (I mean confirmed with the court) been adjourned to September ?

If its a stay lift application and his case IS still stayed he wants to withdraw that and keep the claim on hold pending the outcome of the test case.