novacav v the woolwich / barclays

[novacav]

with the help of this site i started my claim for bank charges a while back all going well then barclays said they were putting all cliams on hold till after the OFT case. so i left it

then i saw someone else ask for advice on the same matter and was told to get it to court asap so i filled in the n1 and sorted out all the other charges and sent them off to the court

get a letter yesterday from the court

notice that acknowledgement of service has been filed

they intend to defend all the claim

what do i have to do now or do i wait for them to send me something

many thanks novacav

[Mr lex]

Hi Novacav,

You have done the right thing, your in the system now !!

You will most likely get a letter saying the case is 'Stayed' until the outcome of the OFT test case, if you think you qualify for hardship see here :-

http://www.consumeractiongroup.co.uk...ed-claims.html

It is just possible that you may receive a A.Q. from the court, there is a guide to this here :-

http://www.consumeractiongroup.co.uk...ompletion.html

If you have a read of my thread at the bottom, you will have an idea of whats going to happen in the last stages.

Hope this helps,

Lex

[novacav]

hi there i have not heard or received anything at all is this normal

thanks novacav

[novacav]

its been almost 28 days now do i have to do anything or just wait for the court to let me know whats going on


thanks novacav

[novacav]

hi there i got my defence from barclays today

1 the defendant is entitled to charge the claimant for unauthorised borrowings by reson of its standard terms and condtions. The claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised)

A the defendants right to charge a "paid referral fee" where the defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25).

B the defendants right to charge an administrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).

C the defendants entitlement, if the claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

2 the defendants standard terms and condtions give the claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the claimant exceeds the authorised overdraft limit).

3 if and to the extent it is the claimants case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits and / or failure to arrange an authorised overdraft consituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the claimants account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the claimant agreed to make by reason of the terms and condtions of the account and were consideration for the defendant advancing credit to the claimant, which the defendant was under no obligation to advance. The defendant was entitled to impose such charges and interest when the claimant incurred the overdraft.

4 accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the unfair terms in consumer contracts regulations 1999 9or indeed any other provision)

5 it is denied that the charges were extravagant.

6 therefore it is denied that the charges were unlawfully debited from the account

7 if and to the extent the claimant incurred charges on the account this was caused by the claimant having gone into overdraft without having agreed with the defendant an authorised overdraft facility or to increase the overdraft facility and / or the failure to make payments to bring the balance of the account back into credit.

8 it is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same.

9 the defendant denies that it is liable to the claimant for the sums claimed and interest as pleaded or at all. in the alternative if (which is denied) the said charges are unenforceable and constiuted a breach of contract by the defendant those charges which were applied to the account prior to 9 october 2002 are not recoverable because they are time-barred under the terms of the limitation act 1980 in that more than six years have wlapsed since the accrual of the cause of action

10 in the alternative and without prejudice to matters stated above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the claimant or at all, and the charges were a consequence of the breach of contract by the claimant the defendant has nonetheless suffered loss and damage as a consequence of such breach of contract in allowing the account to go into unauthorised overdraft. accordingly in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out 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 the defendant seeks to set off such sums against any liability owed hereunder to the claimant.

11 the claim for costs is denied. The defendant asserts that such costs are not recoverable under the small claims track as set out in cpr 27.14.

12 in the light of the foregoing the claim for interest is denied. Without prejudice to that denial, the defendant does not understand the claimamts calculation and no admissions are made as to the accuracy or appropriateness of the rate on which the claimant relies.



is this a normal defence what do i do now?

[Mr lex]

Hi Novacav,

Thats Barclays standard rubbish, nothing to worry about there.

You don't need to do anything.

One of to things will happen now, either the court will send you a A.Q or the court will tell you your case is stayed.

If it's a A.Q have a read of this :-

http://www.consumeractiongroup.co.uk...ompletion.html

If they tell you it's stayed, can you consider 'hardship' ???

Lex

[novacav]

i have the A.Q to fill in

[novacav]

hi there i have received a letter to say my case is on hold for at least 3 months

[Mr lex]

Hi Novacav,

I take it this letter is from the court ??

Have a look at the 'hardship' critera and see if you fullfill the profile :-

The OFT waiver agreement can be found here :-

http://www.fsa.gov.uk/pages/Doing/Re...sp_monthly.pdf

I am looking in at a thread here which is a bit farther down the line, you might want to read where the O/P is upto :-

http://www.consumeractiongroup.co.uk...p-claim-2.html

Have a good Christmas and keep us up to date.

Lex