Kafka v Citi

[Amethyst]

Re: Kafka v Citi

Kaf - UTCCR Burden of Proof - Legal Beagles

[Kafka]

Re: Kafka v Citi

This is very interesting ta.

With hindsight I would have done various things differently, but when I submitted the bundle I was unaware that they would declare a figure and notional justification. I then changed my entire approach around this and it was very bad luck to have the DJ I did and for him not to have seen their bundle in advance and seemed clueless on the issues. This was put down to an admin problem but it was very convenient for Citi.

In terms of burden of proof, I was faced with a DJ and a barrister both arguing that as Claimant it fell on me to prove that their costs were not £13.47
I pointed out the following.

• Their witness statement also said that by the same calculation it had used to cost over £27 when they charged 25 before 2006, with no explanation why their 'actual costs' dropped so dramatically after the OFT report set the £12 level.
• That their defence documents never mentioned that it was supposed to cost them more than £12 and that they expressly stated that the £12 was 'an OFT recommended rate', which was plainly not what the OFT 2006 report said (which they were relying on).
• That no bank will reveal its true costs in any verifiable way.
• That the OFT has refused to supply consumers with any evidence on the model used to set the £12 threshold (kindly provided to me by EXC).

It was clear that I was not going to win the argument and so I did not move it onto Tom's European examples, which I had not fully researched and had not supplied in my bundle (as I would recommend now).

I was probably right not to push that but to save the big hit for the UTCCR Reg 8 argument that unfair charges were void in their entirety and that was the one point where the DJ really listened to me and the barrister had no answer. It was disappointing that after 40 minutes reading the detail and drafting the judgment he still allowed them to keep the £12 for every charge.

There has clearly been a case at CAG with the £13.47 figure disclosed and I was in touch with Martin who knew this figure, but he did not get back to me with any more detail, as I had hoped.

The result of all of this was that I simply didn't have enough prior info to get this right on a day that everything seemed stacked against me. That's why I have made all my documents available for future claimants to use. I have yet to receive the judgment and could try to appeal on the grounds of error of law, but that will cost and incur risks regarding costs, and in the present situation I just can't risk that so its unlikely.

[EXC]

Re: Kafka v Citi

How much was the claim for Kafka?

[Amethyst]

Re: Kafka v Citi

I think we definately need to include it in all future POCs from the beginning.

I struggle with that with Martin too - the business claim stuff particularly.

Thanks Kaf, I'm sorry you didnt get the whole lot back but good on you for sticking with it to avoid the gagging clause. The documents will come in very useful in future cases.

[EXC]

Re: Kafka v Citi

Be interested to hear Tom's view of the judgment when you get it.

[Kafka]

Re: Kafka v Citi

How much was the claim for Kafka?

TOTAL CLAIM

Charges 1065.00
Interest @ 20% 1421.48
TOTAL 2486.48

Court fees
85.00 Issue fee
35.00 AQ
150.00 Hearing fee
TOTAL 270.00


GRAND TOTAL 2756.48

This included CI at 20% based on Sempra, but on that point too the DJ was not interested in the arguments, then announced in the summary that it was 'not before the court'. So he had studied it but didn't focus on it.

SI would have been 576 so 1641 total claim + costs
To get the full difference I would have to win the CI argument as well, so the settlement is about half the amount of 1900 with SI.

The settlement agreed (I did slap a CCJ on them!) was a little under 1000.
Ironically they had upped their offer to 1500 and I had dropped my claim to 1900, but they refused to budge further and we didn't settle.

[Kafka]

Re: Kafka v Citi

Its also woth stressing that they conceded the amounts over £12 and the SI, to focus on the argument that they had disclosed and the burden of proof was on me to show that their figure was not correct.

The reasoning for this - I think - was so that they could concede the CCJ and the payment, then try to stick an unreasonable behaviour clause in at the end. I guessed something was coming as the guy had the big CPR book with him, but he only sprang this at the last moment, arguing that the settlement was less than the rejected offer.

Given the DJ I though this was going to work and I did not have copies of the correspondence about settlement ready. I pointed out that my figure had dropped by more than they had increased their offer and that it was them who refused to continue negotiating when we were only £400 apart and I would have split the difference. I could not prove all of this there, so I was relieved that he took my argument without demanding to see the correspondence. Otherwise, I could have walked away with a CCJ and a Pyrrhic Victory, but owing Citi over £500.

I would strongly suggest building burden-of-proof data into all POCs and also making sure that people have details of correspondence regarding settlement negotiations, as their trick nearly worked.

I just wish I could have another pop at it fully prepared, but that honour must now fall to others

[Kafka]

Re: Kafka v Citi

Be interested to hear Tom's view of the judgment when you get it.

Here is the Judgment, but it has almost no detail unfortunately.

They posted it on 8th although 4th was their deadline to pay.