lioness v Barclaycard ~~SETTLED~~

[lioness]

A claim that's already been settled (with £300 costs on top because of their unreasonable conduct) but here is a timeline from start to finish.

Will date each post as it happened.

This thread includes copies of their defence and my skeleton argument and witness statement submitted with my court bundle.

They settled the day before court.

[lioness]

29 August 2006

Had all my statements already, so sent letter before action to Barclaycard, with spreadsheet, claiming all charges £212 and interest on the charges £110.28 and giving them until 12/9/06.

(It was only after I had started court action that I became aware that it is good practice to give 28 days notice of your claim before starting court action. I only gave them 14 days but they did reply within that timeframe so it didn't really matter.)

[lioness]

1 September 2006

letter from them saying they aimed to respond by 27/9/06.

[lioness]

6 September 2006

2nd letter from them saying they believe the charges are fair and transparent etc., they disagree with my legal analysis, but putting that to one side, as a goodwill gesture and without any admission of liability they will credit my account with £80, being the difference between the £20 charges I incurred and the "£12 fee recommended by the OFT" x 10.

The £80 was credited to my account that day.

[lioness]

7 September 2006

I wrote back declining their offer of settlement and again requesting the full amount. I said that I would accept the £80 only as part settlement and would pursue recovery of remainder through court. No extension to timescale etc.

[lioness]

9 September 2006

Letter from them saying their position remains the same and she is "not prepared to consider my request for any further refund".

[lioness]

12 September 2006

Spreadsheet updated to reflect the £80 refund applied on 6/9/06.

MCOL issued against Barclays Bank PLC trading as Barclaycard, 1 Churchill Place, London E14 5HP.

Claim

Penalty charges £132
Interest on penalty charges £110.33
8% on penalties £22.35
8% on interest on penalties £6.47
Court fee £30
Total £301.15
8% interest accruing at 5p per day.

[lioness]

14 September 2006

Notice of Issue received from court today.
Claim issued 13/9/06,
deemed to be served on Monday 18/9/06,
defendant has until 2nd October to reply.

[lioness]

2nd October 2006

Claim acknowledged online at the 11th hour.

[lioness]

16 October 2006

Well the 28 days for lodging a defence are up today. MCOL still states acknowledged. Does anyone know what time they have to do it by? I suppose as it's online they don't operate under the normal court hours.

[lioness]

17th October 2006

Default Judgement requested online just after midnight, as they have not filed a defence.

[lioness]

17th October 2006

This morning I had an email from MCOL to say they have entered a defence and case is being transferred to my local county court.

I replied to their email asking them what time they accepted the defence.

Just had an email back from MCOL - would you believe this? -
"The defence was processed today, although the deadline was yesterday, as no further action had been taken we would process the defence".!!!


[Although it was annoying at the time - it made sense for MCOL to process the defence even though it was lodged out of time - they would only have been granted permission to have my judgement set-aside which would have caused further delays in the process.]

[lioness]

19th October 2006 - THE DEFENCE!!

Stuff through from court today. Barclaycard's defence & notice of transfer from MCOL to my local court. Allocation Questionnaire to be returned by 5 November.

Defence looks like this:

They are disputing the full amount.

Defence
1. Barclaycard is a trading division of Barclays Bank PLC and not a legal entity in its own right.

2. The POC are summary and do not provide details of the precise charges alleged to have been unlawful, or the date thereof. Accordingly this defence is summary in nature and [Barclays] reserves the right to amend this Statement of Case in due course.

3. To the extent it is alleged that [lioness] incurred charges on his/her account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the "charges"), [Barclays] puts [lioness]to strict proof of each charge and the date thereof.

4. [Barclays'] standard terms and conditions ("terms"), which [lioness] accepted upon opening the account, entitle [Barclays] to debit the charges from customer accounts upon certain events (including blah blah blah)

5. It is the responsibility of the account holder to properly monitor his account so as to ensure compliance, for example, with the obligation to make payments by the required date.

6. The terms gave [lioness] a fair and transparent view of the obligations and entitlements set out in para 4 above, including the basis on which [Barclays] would be entitled to debit the charges from [lioness's] account.

7. If, and to the extent it is [lioness's] case that the failure to make monthly payments and/or his/her failure to remain within the agreed credit limit, constituted a breach of the terms, and that the contractual entitlement to debit the charges from [lioness's] account constitutes a liquidated damages clause, the same is denied. The charges applied to [lioness's] account were payments that [lioness] agreed to make upon the events described at para 4 above by reason of the terms. Accordingly, it is denied that the charges or any such charges constitute unfair and/or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the charges, as alleged by [lioness] or at all, and/or that the charges are otherwise unenforceable.

8. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the UTCCR 1999, (particularly but without limitation to para 1e sch 2) or are in breach of s.4 UCTA 1977 (or any other provision) or are unreasonable within the meaning of s.15 of the SGSA 1982 or indeed any other provision.

9. Further or alternatively, without prejudice to the matters pleaded at para 4 above, if [lioness's] failure to make sufficient account payments by the required date and/or to remain within pre-agreed credit limits constituted a breach of the terms, [Barclays] avers that the charges were nonetheless valid and enforceable.

10. It is further denied that the charges were unlawfully debited from [lioness's] account.

11. Accordingly, it is averred that the charges are legally enforceable and [Barclays] was entitled to debit the charge from [lioness's] account.

12. [Barclays] denies that it is liable to [lioness] for the sum claimed and interest as pleaded, or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by [lioness] to have been applied to the account prior to 13/9/2000 would not be recoverable (my account was opened in June 2004) for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

13. In the alternative, and without prejudice to para 10 above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by [lioness] or at all, [Barclays] has nonetheless suffered loss and damage as a consequence of [lioness's] breach of contract in allowing the account to exceed its agreed credit limit. Accordingly, in the event that [Barclays] is unable to rely on its express entitlement to enforce the charges as set out at paras 4 and 11 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and [Barclays] seeks to set off such sums against any liability owed hereunder to [lioness].

I realise I now have to get my schedule off to them sharpish- had been waiting for a request but it looks like they are not going to bother.

[lioness]

23rd October 2006

Litigation and Disputes
Level 29
One Churchill Place
London E14 5HP

Dear Mr [solicitor]

I refer to the defence entered on 16/10/06.
Please find attached an itemised schedule of the charges and interest debited to my account, together with a spreadsheet calculation of the county court interest on those amounts, in support of my claim.
I should be grateful if you would let me know if this does not satisfy the requirement of 'strict proof' requested at clause 3 of the defence.
Please note that this schedule was provided to Barclaycard prior to my claim being filed with the court.
Y/S
[lioness]

[lioness]

2nd November 2006

Sent off my Allocation Questionnaire recorded delivery today. Here's what I wrote at G (other information) -

"I believe the case will last no longer than one hour.

The claim is an issue of fact and not of law. The issue is only whether the charges levied by the defendant in respect of contractual breaches exceed the defendant's actual costs incurred. However the defendants refuse to reveal the details of their costs. Accordingly I respectfully request that the court, notwithstanding allocation to the small claims track, Orders standard disclosure. I understand that it is in the court's discretion to do so. This would bring a rapid end to this litigation."


No contact from Barclaycard since their defence.