Abbey Court Hearings - Important info

[adamc6671]

Hi Magnum

Have a good read of this - GaryH's advice on applying to have stays lifted on Abbey claims is excellent!

Abbey Court Hearings - Important info

Hope that helps - Adam.

[Entitled]

Ummm, Adam, you've just linked to the same thread that the post was added to!

[Entitled]

Magnum, I hope that you have sufficient time available to canvas as much opinion as possible from which to make up your mind on this. I attended Court yesterday to see my claim Stayed. This was at the Leeds Mercantile Court and I was one of 120 claimants whose cases were (almost) all Stayed. From what I saw yesterday, I'm finding it difficult to imagine a Judge lifting a Stay unless there are compelling circumstances.

I cannot advise you or recommend any particular course of action. At this stage in MY case, I wish I had been made an offer that was still available. I would probably have accepted... but that's not the position for me now. I now await the OFT case.

[Magnum]

Thanks for the advice. Just going through all my Abbey documents and reviewing site to try and make up my mind.

[adamc6671]

Originally Posted by Entitled

Ummm, Adam, you've just linked to the same thread that the post was added to!

Whoops - sorry - meant to link to my own thread post 52, which is here -

'Tish vs Abbey'

GaryH puts a VERY strong argument for challenging a stay on an Abbey claim where they have admitted a breach of contract in their defence.

All the best - Adam.

[ohoh4312]

Hi all

I have just received notice of a Preliminary Hearing on 21 September; the details are here:

us v the Abbey for £7,500

Can anyone help me to reword the appeal against a stay, considering this is not a Final hearing, please? I am assuming that "they" will just turn up to request a stay, and as the Order from the Judge says this is one of the things to be considered, I need to be prepared.

Any help/advice gratefully received.

Thanks

Jo xx

[adamc6671]

Originally Posted by ohoh4312

Hi all

I have just received notice of a Preliminary Hearing on 21 September; the details are here:

us v the Abbey for £7,500

Can anyone help me to reword the appeal against a stay, considering this is not a Final hearing, please? I am assuming that "they" will just turn up to request a stay, and as the Order from the Judge says this is one of the things to be considered, I need to be prepared.

Any help/advice gratefully received.

Thanks

Jo xx

Hi Jo

GaryH's advice at the top of this thread is very helpful. Its only a fairly minor re-word.

I have done it for my claim (Tish vs Abbey), for an allocation hearing, and am about to submit the N244. GaryH has checked my wording and says it's OK. Don't really want to post exactly what I have done on an open forum for fear of pre warning the bank, but if you pm me your e-mail address I'll gladly send you a copy.

All the best - Adam.

[ohoh4312]

Adam

You are a star - thank-you very much. I will PM you in a bit.

Thanks again

Jo xx

[adamc6671]

Hi All

If anyone else would like the use of the document I have done for an Abbey case stay removal, in the case of an Allocation or Preliminary hearing, just pm me your e-mail addy and I'll send a copy, with full acknowledgement to GaryH, whose original work it was.

All the best - Adam

[determindator]

Originally Posted by ohoh4312

Hi all

I have just received notice of a Preliminary Hearing on 21 September; the details are here:

us v the Abbey for £7,500

Can anyone help me to reword the appeal against a stay, considering this is not a Final hearing, please? I am assuming that "they" will just turn up to request a stay, and as the Order from the Judge says this is one of the things to be considered, I need to be prepared.

Any help/advice gratefully received.





Thanks

Jo xx

Hi Jo,

The PSMvAbbey thread may be useful.

[adamc6671]

Originally Posted by adamc6671

Hi All

If anyone else would like the use of the document I have done for an Abbey case stay removal, in the case of an Allocation or Preliminary hearing, just pm me your e-mail addy and I'll send a copy, with full acknowledgement to GaryH, whose original work it was.

All the best - Adam

Hi All

In view of the response I have had to this, and after consideration, I am posting the document I have done (in its 'general' form) for requesting the removal of a stay in the case of an Allocation or Preliminary hearing for an Abbey claim. I stress that this is purely a rework of GaryH's document, at the top of this thread, to cater for Preliminary, as opposed to full, hearings, and for use where Abbey HAVE admitted to 'Breach of Contract' in their defence to the claim. I post this with full acknowledgement to GaryH, whose work it really is.

-----------------------------------------------------------------------

Claim Number:xxxxxxxx

In the xxxxxxx County Court

Between:

xxxxxxxxxxxxxxxxxxxx

Claimant

-and-

Abbey National Bank Plc

Defendant

I respectfully request the Court to reconsider the order of a stay in respect of the claim detailed above upon the following grounds, and to allow the Preliminary Hearing ordered for this claim to go ahead.

Complexity of the Issues

The complexity or otherwise of the legalities arising from the bank charges issue should be viewed in context.

The test case between the banks and the OFT is essentially to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999.

The fundamental issue to be tested is whether the contractual provisions permitting such charges fall within the ambit of regulation 5 and are thus subject to an assessment of fairness, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a core term or that they relate to the adequacy of the price or remuneration, as against the goods or services supplied in exchange. This is a complex issue of legal interpretation and should be viewed against the background of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms.

There are no such complex issues in the present case. This claim is not primarily based upon regulation 5 of the UTCCR, and indeed the claimant is prepared to drop that aspect from the claim. The basis of this claim is that the charges imposed arise directly from breaches of contract. This is admitted and accepted by the defendant in its defence.

In consequence, the charges are subject to the long settled principles of common law relating to contractual penalty clauses, as pleaded in the particulars of claim. The issue therefore is a simple one of fact – specifically whether the actual cost to the bank of the breach is proportionate to the charges it imposes.

The claimant submits that it is wholly inappropriate and unnecessary to stay a claim at such a late stage in proceedings which can be easily and routinely disposed of by the County Court.

In view of the above, if the court is not minded to proceed today, the claimant respectfully suggests that these proceedings may be adjourned for one month and an order made similar to the draft attached below, in the paragraph headed ‘In the Alternative’.

If the defendant cannot/will not comply with such an order then the defence should be struck out as having no realistic prospect of success.

Defendant's Conduct

The Defendant has repeatedly refused to contest all claims similar to the present for "commercial" or "costs" reasons, yet it now sends a barrister to many hearings solely to argue for a stay. It is therefore very likely to attend this Allocation Hearing having breached the order for pre-hearing directions, and relying solely on the court granting a stay. Indeed, the Defendant has already written to the Claimant stating that it is likely that this claim will be put on hold. The Claimant submits that this is presumptuous and displays the arrogant and disrespectful attitude towards court orders and procedure in general which is entirely typical of the defendant's conduct in these proceedings to date.

Human rights

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

The Overriding Objective

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case, if this claim is so allocated, involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

Balance of convenience

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.




In the alternative

In the xxxxxxxxxxx County Court

Claim number xxxxxxxxx

Between

xxxxxxxxxxxxxxxx - Claimant

and

Abbey National Bank Plc - Defendant

Draft Order for Directions

1. The Defendant shall within [14 days] file and serve a response to the Claimant's schedule of charges, stating in respect of each item claimed;

• a) Whether such charge is accepted to be a penalty, and if not why not;
• b) Whether the defendant's administrative expenses as referred to in its defence are incurred as a result of manual or automated administration or otherwise;
• c) As such charge is alleged to be a genuine pre-estimate of the Defendant's loss incurred by the Claimant's actions, all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

2. Upon compliance with paragraph 1, the Allocation Hearing will proceed to be heard at [time] on [date] at xxxxxxxx County Court.

I, the Claimant, believe all facts stated to be true.

Signed:


Dated:

-----------------------------------------------------------------------

I hope this prooves to be of use.

Al the very best - Adam.

[adamc6671]

Hi Gary

I have just found the POC for the OFT Test Case, posted on CAG here -

OFT Test Case POC's

Do you happen to know if it is permissable to attach a copy of these POCs to an application for stay removal in a claim in which Abbey HAVE ADMITTED to a breach of contract in their defence?

Many thanks - Adam.

[GaryH]

I would think so, yes.

[determindator]

Originally Posted by GaryH

I would think so, yes.

Hello Gary,

I sent a PM and wondered if you recd it. I gave my case details and wanted to be guided to the appropriate stay info for breach of contract. I have seen Adam's post and therefore I am in the process of using that.There is a lot of info in different places on the CAG site and you fill your mind with this and lose momentum and can doubt yourself. Can you reassure me with your reply.

Many thanks

[determindator]

Hello Adam,

I am in the process of using your stay request it is very good. I have also considered a bit of the info on thread 'application for removal of stay' by Bankfodder and GaryH. I want to just check a bit with Gary first. there are a couple of interesting threads active now which have interesting info. they are 'urgent info needed to confirm bank leak' and 'oft test case poc's' Info given by Bill65 guides us as to to the intracies of law. I'm off for a brain rest now!!