• Welcome to the LegalBeagles Consumer and Legal Forum.
    Please Register to get the most out of the forum. Registration is free and only needs a username and email address.
    REGISTER
    Please do not post your full name, reference numbers or any identifiable details on the forum.

Sweeney v Barclays

Collapse
Loading...
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • #16
    Re: Sweeney v Barclays

    Originally posted by PKea View Post
    From my chat with him at his house he basically said that the Judge didnt read through the bundle, which may be the case if he has been keeping himself abreast of the test case.

    I did try to encourage him to register on the site so he could give us a bit more background and his opinions on the case.

    If we forget the huge Barclays bundle and base it solely on his claim, ie his POC, then the Judge probably based his decision on that alone.
    Personally I have never agreed with using MCOL for claims as they inherently lead to truncated POCs like this and people forget to post off the full details and list of charges to MCOL.
    I also got the impression that he wasnt on any forums and therefore just used the templates available without asking for any assistiance throughout his claim.

    PKea
    Your summary tallies with what I discussed with Mr Sweeney earlier on the phone, he was unsure of where his template poc was from possibly MSE and he has not posted on any of the forums for assistance.

    He did say he would register and Ame emailed him links to the discussion threads on his case and asked him to register too.

    I am extremely grateful to him for allowing us to take his bundle and to you PKea for collecting it. Hopefully it can be used to help others, but at first glance it does appear that the case didn't have fully particularised details and as such made it a lot easier to get struck out. Barclays have made a shrewd move identifying this case and successfully obtaining a strike out that can be used to deter many many others.
    Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

    IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

    Comment


    • #17
      Re: Sweeney v Barclays

      Well I,m just wondering

      " because knowing there arent any major weird factors and its a bog standard straightforward claim as the majority of business claimants have put in"

      If any did get actually paid out before the stay?
      or if any since on hardship?

      Just thinking that because up until the stay MCOL didn't really know if it was on it's head or it's heals, went onto melt down.
      Maybe Barclays let one slip through and paid out.
      Last edited by enaid; 2nd May 2009, 05:51:AM.

      Comment


      • #18
        Re: Sweeney v Barclays

        Thanks Pkea for all the effort on this.

        Just a few notes at this stage.

        The devil is going to be in the detail. But I do have a gut feeling that there is some meat in this case that might be usable.

        I agree that the case would probably have been thrown out anyway because of lack of detail in the Claimant's POC.

        However, on a first look, Barclays have not gone into a huge amount of detail as to why the terms they have referenced in this case are not penal. They are actually purely relying on read across from the test case judgment on penal issues. Now I am willing to be shot down in flames but I am sure that the test case judgment was specific to the actual terms that were studied in the test case so it could be argued that read across to any other non covered account is not possible. I will have to refresh my memory by reading the test case judgment but I also seem to recall that the issues were studied from a pure contractual sense and Judge Smith reasoning was basically that the clauses which the OFT suggested may be penal did not themselves directly trigger a relevant charge.
        Some of the terms which have been referenced by Barclays in the instant case ( particularly those in the tariif leaflet ) do however seem to directly link a charge with a default action and IMO could therefore possibly be considered as being penal.

        It certainly would bear some further investigation on our side. I have a bit of time next week so will try to spend some time on research. Barclays have certainly picked up on a good opportunity to present arguments but it may well be that in doing so they have triggered a potential new avenue of attack for future claimants.

        Comment


        • #19
          Re: Sweeney v Barclays

          The penalty aspect IMO is dead, the terms referred to were "of no material difference to current account terms". The OFT did not challenge or appeal this and so I think this is now set in stone, however as always I could be wrong.

          As for not referencing where Justice Smith said they were not penal, we have accounted this in the letter back to Barclays asking them to highlight where in the Judgment this was said.

          Nelly, even after the Judgment I am quite sure there have been a few paid out, I have not seen any on other sites myself as it is very rare I stray from here, but I am sure others may be able to link/mention some cases elsewhere. I think if any have been paid out then they will have done so before a Court hearing as out of Court settlements and could not be used to counter this.

          The one major bugbear I am having with this is exactly what regulations the business accounts are bound by, I have never had a business account nor really advised on one as to be perfectly honest I haven't a clue. If memory serves me right, OTR everyone used to use Section 4 of the UCTA 1977, but since then the CPUTR 2008 and other Acts have repealed a lot of the sections or indeed replaced whole Acts so as for all I know business claims could now be regulated under UCTA, UTCCR, the RSPCA, MFI or B&Q.

          We need to know exactly what regulations business accounts are bound by and also if there are any differences for the type of business. For example, do Trading As, Sole Trader, Limited Company or Partnerships come under the same regs or are there some that fall within the UTCCR. Once we know that for certain we can study the regs and try identify what could be applied to the charges levied and if viable amend POC's to suit.
          Last edited by Tools; 2nd May 2009, 11:29:AM.
          Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

          IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

          Comment


          • #20
            Re: Sweeney v Barclays

            As always, we welcome any input from anyone, by no means do we profess to be the authority on things, so if anyone can chip in it would be most appreciated.
            Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

            IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

            Comment


            • #21
              Re: Sweeney v Barclays

              Regarding the 'read across' it was Sweeney who quoted this to Barclays in his Prelim letter and I think they have used this against him.

              I will scan some more bits up later when I have read some more of the bundle as there are some test case quotes regarding the different banks

              Comment


              • #22
                Re: Sweeney v Barclays

                Thank you PKea for all your efforts on this, much appreciated.
                Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

                IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

                Comment


                • #23
                  Re: Sweeney v Barclays

                  Smith Order relating to Penalty charges



                  Comment


                  • #24
                    Re: Sweeney v Barclays

                    The order that basically says all terms are not capable of being penalties except that no ruling be made on the Natwest 2002-3? terms.

                    Thank you PKea, would it be possible for you to scan the account T&C's next please?
                    Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

                    IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

                    Comment


                    • #25
                      Re: Sweeney v Barclays

                      Originally posted by Budgie View Post
                      Thanks Pkea for all the effort on this.

                      Just a few notes at this stage.

                      The devil is going to be in the detail. But I do have a gut feeling that there is some meat in this case that might be usable.

                      I agree that the case would probably have been thrown out anyway because of lack of detail in the Claimant's POC.

                      However, on a first look, Barclays have not gone into a huge amount of detail as to why the terms they have referenced in this case are not penal. They are actually purely relying on read across from the test case judgment on penal issues. Now I am willing to be shot down in flames but I am sure that the test case judgment was specific to the actual terms that were studied in the test case so it could be argued that read across to any other non covered account is not possible. I will have to refresh my memory by reading the test case judgment but I also seem to recall that the issues were studied from a pure contractual sense and Judge Smith reasoning was basically that the clauses which the OFT suggested may be penal did not themselves directly trigger a relevant charge.
                      Some of the terms which have been referenced by Barclays in the instant case ( particularly those in the tariif leaflet ) do however seem to directly link a charge with a default action and IMO could therefore possibly be considered as being penal.

                      It certainly would bear some further investigation on our side. I have a bit of time next week so will try to spend some time on research. Barclays have certainly picked up on a good opportunity to present arguments but it may well be that in doing so they have triggered a potential new avenue of attack for future claimants.
                      I think there could be legs in this mate. Seems to me that Barclays are just trying it on to try and reduce payouts in the future.

                      Definately worth some more investigating m8.

                      Comment


                      • #26
                        Re: Sweeney v Barclays

                        Originally posted by Tools View Post
                        Thank you PKea, would it be possible for you to scan the account T&C's next please?
                        Only 63 pages of the various T&Cs
                        1. Barclays Business Direct Terms an Conditions
                        2. Customer agreement revised 06/07
                        3. Customer Terms and Conditions (November 2007)
                        4. Card Terms and Conditons (business debit and business barclaybank card)
                        5. Business Direct Tariff (november 2001)
                        6. Small Business Tariff (may 2002)
                        7. Free Automated Transactions Tariff and standard business tariff (December 2002) version 1
                        8. Free Automated Transactions Tariff and standard business tariff (December 2002) version 2
                        9. Free Automated Transactions Tariff and standartd business tariff (september 2005)
                        10. Free Automated Transactions Tariff and standard business tariff (March 2006) version 1
                        11. Free Automated Transactions Tariff and standard business tariff (March 2006) version 2
                        12. Free Automated Transactions Tariff and standard business tariff (March 2008)
                        13. Terms & Conditions (May 2002)

                        Comment


                        • #27
                          Re: Sweeney v Barclays

                          I have my own business claim against NatWest that has been on hold for some time, largely pending a decision on how to angle the legal aspects.

                          It may be worth spelling out here what I see as a crucial point in my case. Business accounts incur service charges for payments in and out, and as these are in pence, they can reasonably be assumed to be genuine costs or reasonable preestimates, which you don't get with personal accounts.

                          We therefore have - at the same time - the bank charging 40 or 65p for providing an agreed service to process items, yet charging £30 not to process the same items. The difficulty with this point is addressing it to the law, but at a practical level it offers interesting scope on the argument of fairness and could be used to put the banks to proof, given the enormous difference between these two 'service fees'.


                          11. Being a business account (rather than a personal account), the Claimant always paid legitimate service charges for the use of the account as follows.
                          · Payment in (manual) 65p
                          · Payment in (automatic) 40p
                          · Payment out (manual) 65p
                          · Payment out (automatic) 40p
                          · Monthly account maintenance fee £2.50
                          Given the precise amounts of these transaction charges, it can be reasonably inferred that they represented a genuine reflection (or genuine pre-estimate) of the actual costs incurred for providing the services described by the Defendant, calculated by some accounting process that the Defendant refuses to reveal.


                          12. At the same time, the Defendant charged the Claimant £30 for not paying a direct debit or a cheque. If the Defendant avers that these default charges were fees for a service, then it should be possible for the defendant to explain to the Court’s satisfaction how it cost only £0.65 or £0.40 to provide the service, yet £30 not to provide the same service, whilst still classing these charges as ‘service fees’. The only way that this can be clarified is by examining the true costs or pre-estimates of these ‘service fees’, but the Defendant has continually refused to reveal these costs, preferring instead to settle hundreds of similar claims out of court rather than reveal this information.

                          Comment


                          • #28
                            Re: Sweeney v Barclays
                            1. Business Direct Tariff (november 2001)
                            2. Small Business Tariff (may 2002)
                            3. Free Automated Transactions Tariff and standard business tariff (December 2002) version 1
                            4. Free Automated Transactions Tariff and standard business tariff (December 2002) version 2
                            5. Terms & Conditions (May 2002)


                            Think those are the ones need looking at...could you scan the relevant parts in? Think thats clauses 7.1 and 7.4 and surrounding parts as mentioned in the witness statement.

                            Thanks babe xxxxxxx


                            Kafka, the difficult bit is applying the law to it. I have the internal natwest docs showing those transaction charges and things such as the cost to business of processing DDs for them if this may be of help?


                            Last edited by Amethyst; 3rd May 2009, 19:01:PM.
                            #staysafestayhome

                            Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                            Received a Court Claim? Read >>>>> First Steps

                            Comment


                            • #29
                              Re: Sweeney v Barclays

                              Originally posted by Amethyst View Post

                              Kafka, the difficult bit is applying the law to it. I have the internal natwest docs showing those transaction charges and things such as the cost to business of processing DDs for them if this may be of help?
                              Exactly!

                              What I was planning to do was to use this argument as a practical example of an unfair term or something, but never found the time to get it workable.

                              The other point is that NatWest was the odd one out re the test case ruling on penalties. Because the NatWest terms were unclear, there can be no credible argument for a read-across, unlike the other banks.

                              I planned to use this claim as a test to see how these two arguments would stack up for a T/A account going back 14 years. Its just mothballed due to work needed on the the legal arguments.

                              Comment


                              • #30
                                Re: Sweeney v Barclays

                                Again we must not forget one of the greatest angles on the penalty issue (latin phrase escapes me) concerned the chat about the Clapham Omnibus & a de facto favouring of an interpretation in law that would be the most beneficial to the consumer due to the misbalance of power in financial contracts.

                                Smithy and the QC's decided that the most favourable interpretation was in fact that a consumer was not in breach of contract in these instances. Which sits completely contrary to the belief consumers have always had about 'default' charges.

                                We also didn't at length have much discussion about cloaking and the move towards 'service fees'. I'm sure Smithy at one point said about a consumer test case on the issue of penalties aswell?

                                Also CCA aspects to consider as that does apply to sole traders and small partnerships.

                                Comment

                                View our Terms and Conditions

                                LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy.

                                If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here.


                                If you would like to cancel your registration please Contact Us. We will delete your user details on request, however, any previously posted user content will remain on the site with your username removed and 'Guest' inserted.
                                Working...
                                X