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THE DEFENDANT appeared in person
Crown Copyright ©
DISTRICT JUDGE HILL:
"Terms of your agreement with Barclaycard required you to make minimum monthly payments and not to exceed your credit limit. You failed to do so and have therefore breached the agreement in both respects."
So that is a fairly terse statement of the nature of the breach. There is no detail offered as to the minimum monthly payment requirement or indeed as to the credit limit itself.
"If you cannot afford to pay the balance in full you must send us a down payment equivalent to 40% of the balance outstanding within fourteen days of receipt of this letter and enter into a monthly arrangement to pay the remaining balance."
It is not I think immediately clear exactly what is required in this respect to remedy the breach. What is the balance which is to be paid with fourteen days or the extent of the balance within fourteen days? Is it the assigned balance or is it the current balance? It does not state that. It is argued that perhaps this is something which would be reasonably obvious to Mr. Burney or any other reasonable person in his situation. I have to say that there is ambiguity in this notice in that respect.
"IF YOU COMPLY WITH YOUR OBLIGATIONS BY 24 FEBRUARY 2011 NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH"
What is meant by "your obligations"? Turning to Schedule 2 of the Regulations it is made clear in paragraph 4 that a notice in upper case lettering is required in specific language, and it is set out in Schedule 2 quite precisely these are the words which are to be used. It says:
"In the following form if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of the breach."
Those words are not in fact used. Instead we have a slightly ambiguous reference to "if you comply with your obligations". It seems to me there is a breach in relation to Schedule 2 in that particular respect.
MR. BURNEY: Excuse me, sir. I do not know the correct protocol now, but I have incurred a small number of costs in attending to defend this claim. I have actually included this in my skeleton argument at paragraph 16 for some consideration. As an unemployed man and a new father, sir, the money that I have had to spend defending this case, well I just do not have it effectively. I feel that some sort of compensation is in order. JUDGE HILL: If you are asking for costs then I have to be satisfied that there has been unreasonable conduct. We have had this hearing. I do not feel that it quite gets over the necessary threshold for that. So what I am prepared to consider simply is your out of pocket expenses for attending court. Have you got any expenses today?
MR. BURNEY: My expenses today, sir, the cost of the petrol to get here, the parking, the inevitable parking ticket which I would have received by now.
JUDGE HILL: How many miles will you have travelled?
MR. BURNEY: I will have travelled today 15 miles – no, 30 in total.
JUDGE HILL: I will award you £12 for that. The parking, you have at least paid for some parking even if you have overrun for that now. How much have you actually paid?
MR. BURNEY: Parking, £5, sir.
JUDGE HILL: So that is £17. You have not paid any court fees because of course it was not your claim to bring and there is no counterclaim. So that is that. Have you lost any earnings today or are you unemployed?
MR. BURNEY: I am unemployed, sir.
JUDGE HILL: So I have got £17. I think by the sound of it that is it, is it not.
MR. BURNEY: Fine, sir, yes.
JUDGE HILL: I am going to make an order for payment of £17 witness expenses in fourteen days.
THE CLAIMANT: Sir, I would argue against those costs. Clearly information which could have been provided far earlier was not in fact done so. Sir, you have heard today in fact some of the issues raised were contained in the skeleton argument which was received this morning and clearly had such evidence been put forward in a timely manner then such costs could have been avoided.
JUDGE HILL: Yes, but it is for the Claimant to prove its case. It was for the Claimant to bridge the gap in the evidence, which it itself acknowledged. I am afraid the onus is on that Claimant. That order is going to stand.