lioness v Barclaycard ~~SETTLED~~

[lioness]

6th November 2006

Just musing on their defence -

I think they are pushing their luck as regards saying that they suffered loss in excess of the charges, if they can't even stump up evidence of their costs! I wonder why they employ tactics like these - unless ofcourse they're hoping to scare people into withdrawing their claims.

[lioness]

21st November 2006

Have today emailed the court to find out what is happening. AQ returned by deadline on 5 Nov, so would have expected to have a court date by now. Also heard nothing from Barclaycard's solicitiors.

[lioness]

23rd November 2006 NOTICE OF ALLOCATION!!

Today received Notice of allocation to small claims track. The hearing is to take place at my local court on 17 January 2007 with a time estimate of 2 hours.

And it is ordered, by District Judge xxxxx, that:

1. the parties deliver to court, and each other, copies of all docs no later than 2 weeks before hearing.

2. signed statements of witnesses' evidence to be included with 1. (It also states that this includes the evidence of the parties themselves.)

3. No less than 14 days before the hearing the parties must send to the court and each other their written skeleton argument, extracts from statute and reports of any cases relied on.


Oh well better start stocking up on paper and printing ink!

[lioness]

24th November 2006

more thoughts..

it is a shame that there doesn't seem to be a system of penalising banks for offering to settle in the final minutes. I wonder if a letter saying more or less that I am anticipating them playing this game and for this reason I require any offers on the table before 24 Dec, (as by 3rd Jan I will have done all the prep) and I will not respond to any telephone calls or urgent faxes the night before the hearing?

Anyway I've just been looking at the Small Claims notes that came with the notice of hearing and it says

"It is important that before going to court, court rules require you to think about whether alternative dispute resolution is a better way to reach an agreement. If you refuse to consider this, you may not get your costs back, or you may have to pay the other side's costs, even if you win the case."

Nothing new here, except I'm wondering if a further letter to Barclays along the lines above might stand me in good stead from this point of view.

[lioness]

27th November 2006

lioness gets stroppy! letter sent to Barclaycard's solicitors

I refer to the above proceedings and the case hearing scheduled for 10:00 on 17th January 2007. I am disappointed to note that you have not even had the courtesy to acknowledge receipt of my itemised schedule of charges, sent to you on 23rd October.

I wish to make it known that I will not entertain any last minute offers to settle this. As a member of the xxxxx, sharing experiences with other Barclaycard customers reclaiming charges, I am only too aware of your usual tactics of abusing the court process; having no intention of attending court hearings, not filing document bundles and waiting until the eve of a hearing to make an urgent plea by telephone or fax for the case to be dropped. I reserve the right to show this letter to the Judge at the hearing.

You have already had ample time in which to settle this with me, and I do not think it unreasonable of me to say that I would not expect the preparation of my court bundle, evidence statement and skeleton argument to interfere with my plans for a Christmas and New Years holiday with my three children. I therefore intend to start my preparations for the hearing before my children finish their school term on 20th December.

For this reason I am writing to forewarn you of my non-negotiable terms for a settlement out of court:

• I require a cheque in full settlement, including court costs of £30, by 10th December 2006, not a credit to my Barclaycard account.
• I require interest to be paid on my claim at the daily rate specified in the claim, up to the date of payment.
• I will not accept any conditions of confidentiality.

After 10th December, I will not answer to any attempts by you, by letter or telephone call, to settle out of court, as I believe you still have more than sufficient time in which to arrange payment.

Should you not comply with my request, and fail to provide me with your documents by the required deadline set by the court, I will not agree to any later request by you to cancel the hearing, and I will be seeking a County Court Judgement against Barclays Bank Plc at the hearing.

I believe I have given you sufficient grounds for my claim, and a reasonable timescale in which to resolve this.

[lioness]

9th December 2006

No NEWS

yes I suppose its time this week to buckle down and prepare my bundle. still it will add to the learning curve, if I end up having to go that far with my big claim. Are they the most annoying of the banks or what?

[lioness]

31st December 2006

they still haven't contacted me.

I will be looking for a little bit of a sweetener shall we say if they contact me at this stage. All that printing and photocopying took a fair little while, and has quite put me in the mood for a morning in court. I wonder if they've got their bundle ready yet?!

[lioness]

2nd January 2007 MY SKELETON ARGUMENT

In the Edmonton County Court
Claim Number 6QZ63036

xxxxxxxxx Claimant
and

Barclays Bank Plc Trading As Barclaycard

Defendant





SKELETON ARGUMENT

1. The claimant was at all material times a customer of the defendant and is a consumer for the purposes of The Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”).

2. The defendant is a financial institution and credit card provider.

3. The claimant claims the recovery of charges and interest applied on those charges (breakdown provided at pages 37 to 38 of the court bundle) debited to the claimant’s account by the defendant between August 2004 and September 2006, on the basis that they are unlawful:

a. The charges constitute a disproportionate penalty within the meaning of Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co Ltd [1915] AC 79 (pages 73 to 74 of the court bundle), in not being a genuine pre-estimate of the defendant’s losses in relation to contract breaches by the claimant, and are therefore unenforceable.

b. If not a penalty, the charges are unreasonable within the meaning of s.15 of the Supply of Goods and Services Act 1982 (page 105 of the court bundle).

c. The contract term which purports to entitle the defendant to make such charges is invalid under the UTCCR;

i. Schedule 2.1.e of the UTCCR (page 82 of the court bundle) defines any term, which has the effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation, as a term which may be regarded as unfair.

ii. Paragraph 8 of the UTCCR (page 77 of the court bundle) states that an unfair term in a contract shall not be binding on the consumer.

d. The contract term which purports to entitle the defendant to make such charges is also invalid under s.4 of the Unfair Contract Terms Act 1977 (page 87 of the court bundle)

4. The defendant’s charges were £20 for exceeding the credit limit and £20 for late payments (the account breaches). Upon complaint the defendant refunded the claimant £8 in respect of each charge levied (£80 in total), on 6 September 2006, the effect being to reduce each charge levied to £12. No adjustment of interest already applied on the original charges was made with the refund.

5. The claimant’s account has been debited with interest calculated on a daily basis by the defendant on the debit balance outstanding. This interest is sufficient to compensate the defendant for the claimant’s indebtedness to the defendant, whether that debit balance was in excess of the agreed limit or was not reduced by the correct date by the monthly repayment requested.

6. The claimant contends that the defendant has not incurred any costs, loss or damage (in excess of the daily interest charged) in relation to the claimant’s account breaches. No letters were sent or telephone calls made to the claimant, and no transactions were refused, as a consequence of the breaches. The charges constitute a penalty at common law.

7. The claimant would be willing to pay the actual costs incurred by the defendant in respect of the said account breaches but the defendant has refused to provide details of the costs to which it has been put.

8. By reason of the above, the claimant claims the return of the said charges and interest levied on the original charges, interest pursuant to s.69 of the County Courts Act 1984 at 8% a year from 11/8/2004 until the date of judgement or earlier settlement and court costs.

STATEMENT OF TRUTH



The claimant believes that the facts contained in this skeleton argument are true
SIGNED……………………………………� �………… ..
xxxxxxxxxx - Claimant
DATED THIS 2nd day of January 2007

[lioness]

2nd January 2007 MY WITNESS STATEMENT

In the EDMONTON County Court
Claim Number 6QZ63036

xxxxxxxxxxxxxxxxxx

Claimant


and

Barclays Bank Plc Trading As Barclaycard
Defendant




WITNESS STATEMENT


Of xxxxxxxxxxxxx - Claimant



I, xxxxxxxxxxxxxx, of xx xxxxx Road, xxxxxx, xxxxxxx xxx xxx, will say as follows: -

1. I am the claimant in this case.
2. I make this witness statement in accordance with the directions given by the court dated 20 November 2006.
3. I make this witness statement from information and facts within my own knowledge and which I believe to be true.
4. My claim is in respect of charges debited to my credit card account by the defendant, the account provider, between August 2004 and September 2006, in respect of late payments and exceeding the account credit limit (breaches of the account terms) and also interest debited to the account in respect of the charges applied.
5. A list of the said charges and interest applied to the account is attached to this witness statement.
6. On 29 August 2006 I wrote to the defendant requesting a refund of the said charges (£212) and interest charged thereon (£143.53), as I understood the charges to be unlawful. The total refund requested was £355.53. A schedule of the individual charges and interest applied thereon was enclosed with the letter.
7. On 1 September 2006 the defendant replied stating that they would aim to deal with my letter by 27 September 2006.
8. On 6 September 2006 the defendant wrote again offering to refund £80 to my account, in respect of the charges, as a gesture of goodwill and without any admission of liability.
9. On 6 September 2006 the defendant credited £80 to my account.
10. On 7 September 2006 I wrote to the defendant declining their offer of settlement and requesting for a second time that they refund all charges, and interest on the charges, totalling £355.53. I also stated that I would accept the £80 offered in part settlement and on the understanding that I would pursue recovery of the remainder with a county court claim if necessary.
11. On 9 September 2006 the defendant replied stating that they would not consider my request for any further refund.
12. On 12 September 2006 I filed a claim in the Northampton County Court (Money Claim Online – “MCOL”) against the defendant for the return of excessive penalty charges and interest thereon, as outlined in my particulars of claim.
13. On 13 September 2006 my claim was issued by MCOL and deemed served on 18 September 2006.
14. On 2 October 2006 the defendant filed an acknowledgement of service of the claim, giving the defendant until 16 October 2006 to file a defence.
15. On the evening of 16 October 2006 the defendant had not entered a defence and I requested judgement by default via MCOL.
16. On 17 October 2006 MCOL accepted the late filing of a defence to the claim by the defendant, rejected my request for judgement and transferred the claim to Edmonton County Court.
17. On 23 October 2006 I sent another itemised schedule in support of my claim to the defendant’s solicitors.
18. On 1 November 2006 I filed my allocation questionnaire with Edmonton County Court.
19. On 20 November 2006 the court allocated the case to the Small Claims Track and gave directions to the parties for the filing of documents prior to the hearing on 17 January 2007.
20. On 27 November 2006 I wrote to the defendant’s solicitors asking if they had any intention of settling the claim out of court, and giving them one last opportunity to do so before 10 December 2006, after which date I would be preparing my court bundle of documents, in order to have it ready before a Christmas holiday with my children commencing on 20 December. They have not replied to this letter.
21. The claimant understands from the defendant’s statement of case that the defendant contends that the charges were debited in accordance with the terms of the contract between itself and the claimant.
22. The claimant contends that: -

i. The charges debited to the account are punitive in nature; are not a genuine pre-estimate of costs incurred by the defendant; exceed any alleged loss to the defendant in respect of the breaches of contract on the part of the claimant and are not intended to represent or related to any alleged actual loss but instead unduly enrich the defendant which exercises the contractual term in respect of such charges with a view to profit.

ii. The contractual provision that permits the defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations 1999 Paragraph 8 and Schedule 2.1.e., the Unfair Contract Terms Act 1977 s.4, and the common law (Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co Ltd [1915] AC 79.)

iii. Alternatively, the charges are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

23. Accordingly the claimant claims:

i. The return of the amounts debited in respect of charges in the sum of £242.33, which includes interest applied on the charges.

ii. Court costs of £30

iii. Interest of £34.77 (from 11/8/2004 to 2/1/2007) under section 69 of the County Courts Act 1984 at the rate of 8% a year, as set out on the attached list of charges, and interest at the same rate up to the date of judgement or settlement at the daily rate of 5p.


STATEMENT OF TRUTH

I believe the facts stated within this Witness Statement to be true and it comprises two pages and an additional two pages (schedule of charges and schedule of charges showing county court interest calculations).
SIGNED……………………………………� �………… ……………….……….
xxxxxxxxxxxxxx - Claimant
DATED THIS 2nd day of January 2007

[lioness]

2nd January 2007

court bundle hand delivered to court and sent to Barclaycard's solicitors special delivery.

[lioness]

3rd January 2007 THEY MAKE CONTACT!!

Well surprise surprise phone call this morning from B'card sols.

Him: Good morning am I speaking to Miss xxx?
Me: No you're speaking to Mrs xxx.
Him: This is xxxxxxx xxxxxxxx from Barclays Bank...I've just taken over your case from Alex Martin who has left the company. I would like to make you an offer to settle this out of court. Obviously I realise you wrote to us on 27 Nov giving us a chance to settle and we didn't respond for which I am sorry but there's not much I can do about that now.
Me: I'm sure you would like to settle now but its a bit late considering what I wrote in my letter.
Him:if you go to the court there is a chance you wouldn't win anyway
Me: Well yes of course but I don't think that would happen - do you?
Him: I would like to settle for £301.15
Me: well as you can imagine I have been put to a lot of inconvenience now and have already had to cancel a hospital appointment at 11am on the morning of the hearing. Perhaps you could offer to pay my disbursements for the printing etc.
Him: well..the thing is you didn't ask for costs in your claim..
Me: that doesn't stop me asking the court to consider them does it
Him: hold on while I check the CPR....mm yes here we are CPR 27.14.. says you would be entitled to fixed costs and your court fee and don't forget we would have incurred the same costs as you in getting everything ready (me thinks - mmm really Mr xxxxxxxx, have you printed and submitted your bundle yet?)
Me: well can you tell me why you have waited until now to offer to settle, why you submitted a defence and an Allocation Questionnaire if you knew you would be settling this? I think you have had loads of time and you've left this a bit late.
Him: well I can't speak for Alex Martin who was handling the case before me and all I can say is we don't always agree to settle cases (really Mr xxxxxxxx, are you telling me porky pies?)
Me: As I said I'll have to think about this
Him: we would really like to settle this today and if you agree we could put the money in your..um ah..send you the money by the end of the week, and if you go to court and lose you would lose your court fee and we have contacted you two weeks before the hearing
Me: yes I know but as I said you've already had long enough and I have been put to additional expense a lot of inconvenience. I'll think about it and let you know.
Him: OK. I'll put this offer in writing to you and I have made a note of this phone call and if you don't phone me back I'll try and phone you again before the hearing. I'm not in the office between 12th and 15th Jan.

[lioness]

4th January 2007 HIS LETTER ARRIVES

Dear Mrs x

I refer to the above proceedings.

As you will have seen from our defence, we consider that your claim lacks merit and that it will fail. In particular, we disagree with your legal analysis that the charges levied to your account with Barclays amount to penalty clauses and are unfair. We do, however, recognise that the sum at issue between us is relatively modest and as such, it is not cost effective for either party to take this matter to trial. Therefore, in order to avoid the inevitable time and cost associated with pursuing the claim to trial, we are prepared to settle your claim upon payment of the charges applied to your account, together with statutory interest and costs totalling £301.15, subject to the terms set out in this letter.

This offer to pay £301.15 is in full and final settlement of your claim and is strictly without any admission of liability on our part. By accepting this offer, you also agree that the existence and the terms of this offer are confidential between us.

If you agree to the terms of this letter, please sign and return a copy of this letter to me at the above address within the next 7 days. You will also need to notify the County Court in writing, that you have discontinued your claim against us. Please forward a copy of your letter to the court when you return a signed copy of this letter to us.

Payment to be made to your Barclaycard account.

Should you decide to reject this offer, then we reserve the right to disclose this letter to the court.

I'm not finished with him yet!

[lioness]

8th January 2007 MY REPLY

I decided to claim my costs because of their mucking around - my letter

Dear Mr xxxxxxxx


Edmonton County Court

Claim Number 6QZ63036

I refer to your telephone call of 3 January 2007, expressing your wish to settle my claim with a payment of £301.15. I also refer to your letter of the same date setting out the terms of your offer - with no admission of liability.

In the absence of your bundle of documents, it would appear that you have not prepared for a court hearing. It would also appear that as you did not undertake these preparations, it was always your intention to delay contact until this stage in the proceedings to make an offer of settlement, and always your assumption that I would discontinue my claim and cancel the hearing.

I do not find your terms of settlement acceptable, for reasons that I will give below. Further, I am of the opinion that you have conducted yourselves in an unreasonable manner throughout these proceedings, which has not been through any genuine intent to resist my claim on legal grounds but can be seen to have been an attempt at intimidating me into withdrawing from the proceedings. Consequently it is my intention, unless you are also willing to settle my costs, to apply at the hearing for an order for costs on the grounds of your unreasonable conduct. I will also expand on this assertion below, but first I wish to say that I am dismayed indeed at your nonchalant attitude on the telephone towards my complaint about the way in which you have conducted yourselves, sweeping it aside with the comment “sorry, there’s not much that can be done about it now”, and stating that responsibility rests with a colleague who has now left the company. It is very easy to lay the blame with someone else but ultimately Barclays must take responsibility for the actions of all of its officers, past or present, and I know for a fact, from my membership of the Bank Action Group, that Barclays handles all of its claims in this aggressive and vexatious manner, making empty threats and abusing the court process outright, so the excuse given has no validity. When I also mentioned to you that your unreasonable actions had caused me to incur substantial costs, and had caused a significant amount of wasted time spent working on my case during what ought to have been a seasonal family holiday, you quoted from the CPR that I had no entitlement to recover costs over and above the court fee, because I did not ask for them in my claim. My letter before action warned Barclays that I would be seeking my costs if I was forced to take legal action to recover the sums due to me, and I am fairly certain that it would have been within your discretion to agree to reimburse them, knowing that Barclays had acted unreasonably. I really do not expect that I should have to suffer financial loss to pursue a claim against you to recover monies that have been unlawfully deducted from my account.


Barclays’ Unreasonable Conduct



1.Forcing litigation

It was your decision not to refund the money when I first requested it and it now suits you to settle my claim (in the same way that you settle all claims) after putting me to the utmost inconvenience in the process and wasting valuable court resources and time.

2.Not complying with the Court’s directions

It is no coincidence of course that you delayed contact until the day both parties were to deliver their documents to each other and the court. It appears that you were waiting to see if I faltered in which case I would not have been able to proceed to the trial, however the absence of your own documents indicates that it was already in your contemplation not to comply with the court’s order and to make me an offer only if I complied.

3.Claiming spuriously that the reason you wish to settle is the “modest” sum at issue, which does not merit the costs of proceeding to trial

The sum you have offered is now more than the sum that was at issue before action commenced, and is exactly the same sum that was at issue at the beginning of November when you submitted your allocation questionnaire requesting a trial date.

4.Abusing the Court Process and acting in a vexatious manner

You filed the following papers at court in the knowledge that you had no intention of proceeding to a trial – which amounts to an abuse of process: -
a.An acknowledgement of service stating intent to defend the claim in full.
b.A defence to the entire claim (which had no prospect of succeeding).
c.An allocation questionnaire requesting a hearing when there was an option of requesting a postponement so that settlement could be reached.

5.Not responding to my letters

I wrote to you twice, on 23 October 2006 and 27 November 2006, and you did not respond to either letter.

6.Causing me to incur expenses and to spend unnecessary time and undertake substantial work researching and preparing my case for trial

When I wrote to you on 27 November I asked if you had any intention of settling my claim before it became necessary for me to research, prepare and set out my legal arguments and documentary evidence for the trial. You were of course aware that I am a litigant in person without the advantage of any legal training or experience and that as Christmas was approaching and I had to also look after my children between 20 December and 4 January I would be hard pressed to put in the hours necessary to comply with the court order. My letter gave you time in which to arrange settlement before this work became necessary and you knew that the work would inevitably take me longer than a legally trained person. In addition to this there were no material developments between November and January that could have been responsible for your decision on 3 January 2007 to offer to settle. Therefore when I wrote to you in November you already knew that you would be offering to settle and I could have reasonably expected you to do so without further delay.



7.Bullying tactics

To sum up, Barclays is employing bullying tactics to evade liability to its customers who would not wish to go to court to get their money back and so drop out of the claim process.

(continued in next post)

[lioness]

continuation of letter

Your offer of settlement


I advise that I do not agree to the terms of your offer for the following reasons: -

1.It is my intention to ask for costs (at the hearing) under CPR 27.14(2)(g). My costs are as follows;

£
a.Printing ink 42.98
b.Paper 2.24
c.Train fare to deliver bundle
to court 2/1/2007 2.80
d.Postage (5 recorded letters at £1,
1 court bundle to Barclays @ £5.70,
2 letters at 32p) 11.34
TOTAL DISBURSEMENTS £59.36
e.Time spent managing my case (as per the
records attached) at the Litigant in
person’s hourly rate of £9.25, under CPR 48.6(4)(b) and the PD relating to part
48 costs, at section 52.4 471.75

TOTAL COSTS £531.11

2.There is no offer to pay county court interest on the principal amount of the claim since the date of issue of the claim. As at today’s date this amounts to £6.26 and is continuing to accrue at £0.053p a day until settlement or judgement.

3.You are imposing a confidentiality clause on the settlement, which I see no justification for.

4.You are proposing to pay the settlement amount into my Barclaycard account, whereas I require a cheque to reimburse me for some elements of the claim, including my court fee, which were not deductions from my account. Alternatively, I would accept a cheque for the full amount of £838.52 to settle this matter and discontinue my claim before the hearing.

Please do not make any further telephone calls to discuss this with me. I would ask that all further communications (if any) be put in writing. If this is inconvenient in view of the small amount of time that you have left yourselves before the hearing then perhaps you ought to consider a review of your policy of contacting claimants at this late stage. Alternatively you may email me at xxxxxxxx.

A copy of this letter is today being forwarded to the court for inclusion in my file.



Yours sincerely


xxxxxxxxxxxxxxxxx

so there!!!

[lioness]

11th January 2007 Their Email

Thank you for your letter dated 8th January 2007.

Having considered your letter we are prepared to offer you £301.15, plus an ex gratia payment of £100 totalling £401.15. We will not pay the costs you claim and I reiterate that costs are fixed in the small claims track under CPR rule 27.14 and CPR 27.14 (2) (g) does not apply.

We hope that you will accept this payment in recognition of the fact that it is in the best interests of both parties to settle this matter amicably. I am sure you appreciate that once a claim is issued against Barclays we are entitled to defend it so that our position is made clear.

We are now attempting to negotiate a settlement with you and we hope that you will accept the offer made to reimburse your charges, court costs together with a further goodwill goodwill gesture of £100.
I look forward to hearing from you. As I am out of the office on Friday 12th and Monday 15th January, I would be grateful if you would contact my colleague Temilope Fatogun at xxxxxxxxxxxxx or on 0207 116 5634 .
Yours sincerely

xxxxxxx xxxxxxxx

sorry - it's not enough!!