keren29 v Abbey ** WON **

[caro]

Then just make sure you are up to speed with all the arguments in it. I suggest that you take a good look at the cases they have settled to see if you can find similar ones to yours. Look at any where Abbey have ended up in court (was Whizzkid Abbey?) to see what strokes they might try to pull so you can be ready to counter them. Also make sure the list of concluded Abbey cases is up to date when you go to court, and perhaps look at how long it has been before payment.

I am sure there must be other things too. Look in the forum libraries and see if there is anything useful there you can draw on. There is something on preparing for court and there are loads of documents so have a good look through.

[GaryH]

Hi Karen,

I had to attend a hearing for my stay removal application too, although it was'nt against Abbey, it was Lloyds. In my case, although they were obliged to attend, Lloyds did'nt actually show up in the end. Instead they just sent a letter apologising for their non-attendance and stating that they had no objections to the stay being lifted 'in that particular case'. That just left the judge to convince, which in truth was'nt that hard. I think he'd pretty much made his mind up beforehand from the written application, but in any case he agreed and the stay got lifted.

Although it's against a different bank, I would be very surprised if something simular did'nt happen at your hearing. Its hard to see how Abbey could have any reasonable grounds for objecting to the lifting of the stay and I doubt they will even attempt to object to it. Especially in light of the contents of the application you have submitted (assumeing you used the template) - if they were to object they would have to have a very convincing and genuine reason, or it would just re-inforce your contentions of their stalling and abusive practises.

Application hearings are certainly nothing to worry about anyway, even if Abbey did turn up. It'll actually be a good introduction to the small claims court and the good thing is that there's no real pressure on you - nothing can really be won or lost on that day, the worst thing that can happen is that you don't get the stay removed. You'll find that the hearing is very informal and it is held in nothing more than an office type room.

I've got a script I prepared for my hearing, which your welcome to take bits from or use however you like. Its based around the most important bits of the application from the templates, but cut down to be about 10 minutes worth, which is how long I was allowed for my hearing. Let me know if you think it might be of use to you and I'll post it up.

[keren29]

Hello Gary - that would be incredibly useful for me if you could post it up.
Thankyou.

[GaryH]

Here you go Karen;

APPLICATION HEARING FOR STAY REMOVAL

I don’t feel there is a great deal I can add to my written part C application, but I will now attempt to summarise the most important points.

Firstly, I wish to make clear that I can fully understand the will of the court to see this matter resolved once and for all by way of a test case and I also realise that the courts recourses must be being stretched by this current flood of litigation relating to bank penalty charges. I also understand the reasoning behind the decision to order stays to all similar cases while the issue is sought to be resolved. However, I do not believe that the stay ordered to this case will be of any actual benefit to anyone apart from the defendant. Therefore, I believe that the stay ordered to this case should be removed on the following grounds.

1) This Stay was imposed to await the result of the cases due to proceed to a higher court as test cases, but based upon the pattern formed by the cases brought so far, I believe that it is perfectly reasonable to suggest that these cases, or in fact any test case, will NEVER actually be heard.

Since the start of this year, there have been at least 500 cases brought by bank customers seeking to reclaim punitive charges levied by the banks (there's a list of settled cases around somewhere in the general forum - it would be useful to print it off and take it with you). In every single one of these cases so far, the banks have chosen to settle the claims without liability before a hearing could take place. Each and every one of these cases presents an opportunity for the issue of the banks charges to be settled once and for all. The banks have almost limitless legal resources available to them and if they were to lose a case, they have the capability to be able to appeal and continue the case up through the court hierarchy, thereby establishing case law.

Even more significantly perhaps, as the court is aware there have recently been a number of cases transferred to a higher court to proceed as test cases.

The fact is that EACH and every one of these intended test cases have been settled by the defendant banks before any trial could actually take place.

The defendants in this case themselves settled a case back in July - ‘Elliot -v- Lloyds TSB’ - which was due to proceed to the Mercantile Court as a test case.

More recently, the court may not yet be aware that the latest group of test cases due to be heard have also begun to be settled by the banks concerned, one of them being ‘Williams -v- Barclays Bank’, and at least one other involving the defendant in this case. It is assumed that these cases were the reason for a stay to be ordered in the first place, and as such, it is respectfully submitted that upon the court receiving confirmation that these cases are no longer to proceed, there will be no longer be grounds for a stay in the instant case.

Further, it is my belief that unless a test case can somehow be forced to trial, the banks including the defendant in this case, will never allow one to be heard.

2) I believe that the defendant’s litigation strategy is abusive of the courts resources, and that the stay ordered to this case will only serve to benefit the defendant.

Since first requesting a refund of penalty charges from Lloyds TSB, my communication to the bank and now their solicitors have been met with outright refusals to discuss the matter on any meaningful level, and they have always insisted their charges are fair and lawful. As such, I felt I had no choice but to proceed with legal action to recover the charges which I firmly believe were taken contrary to UK law.

Since initiating the claim in June this year, every single stage of the process has been delayed by brinksmanship from the other side. For instance, they filed a defence on the last possible day available to them and filed their A/Q over a week late. I am aware of over 25 cases involving the defendant where this pattern has been followed almost identically. It is my opinion therefore, and I think it a perfectly reasonable inference to draw, that this is a pre-meditated strategy designed to wear out and intimidate the claimants, whom they know will more than likely be acting in person and not accustomed to the court process.

This supposition is further re-enforced by the fact that Lloyds have gone on to settle every single one of the claims so far after a court date has been allocated. I firmly believe that the defendant has no intention of going to a hearing in this or any other case, and further, that they are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing a legitimate right.

It is submitted that this is abusive of the justice system and of the public resource.

I believe that a stay in this case supports this strategy.

3) Also, please bear in mind the fact that I am a litigant in person and the defendant is a multi-national company with an annual turnover of billions.

The sum claimed is insignificant to the bank, but it is highly significant to me.

This stay prevents me recovering my money, which I contend was taken unlawfully, but the defendant bank remains at liberty to continue levying its charges, plus interest on debt comprised of those charges. I believe that the order of the court has the effect of favouring a powerful and well resourced institution and does not place any restriction on their continued application of penalties which I say are unlawful.

4) Additionally, I would like to add that I believe that this case contains no complicated issues of law, only issues of fact. The common law relating to contractual penalties is settled law since the late 1800’s and has been re-enforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999.

The main crux upon which this case, and others like it, rests upon is wither or not the banks penalty charges are a true representation of the loss incurred as a result of the breach on the part of the claimant. As such, I firmly believe that this litigation could be expediently concluded if only the banks would be open and transparent with regard to the true costs and mechanisms of their charging systems. As I rely upon the bank as my fiduciary it is clear they have a duty to act in utmost good faith and in a straightforward manner in relation to their conduct of their contract with me.

Bearing that in mind, in the event that the court accedes to my request and sets aside this stay, I respectfully request that the case be allocated to the small claims track and that the defendant be ordered to make standard disclosure. I would suggest that this would assist greatly in bringing this case and others similar to a swift and just conclusion.

Use as much or as little as you like. Obviously you'll need to change the bits that refer to Lloyds, but the issues are exactly the same other than that. Also, I arranged this as a 'script' mainly becouse I was worried (unnecessarily in the end) that I might be nervous and forget bits if just used notes. It would come over better perhaps if you come away from the script at times or perhaps even just used prompt notes, but thats up to you. In any case, make sure you edit it to suit - change bits, add bits in, take bits out, etc as you feel appropriate, so that it personalises it a bit and so you feel comfortable with what you are saying and how you are saying it. I practised reading it out loud to my O/H a few times the day before, which was useful.

Anyway, good luck, and let me know how you get on.

[keren29]

That's excellent - many thanks

[keren29]

i'm getting ready for court on Friday for the hearing to see if the stay on my Claim 2 will be lifted.

I've had news today that the stay on claim 1 has been lifted and there is a hearing on 22 Feb.

The order says

A hearing has been ordered for 22 February 2007.

It is ordered that

1. This case be listed for hearing on Thursday 22 February 2007 at 10.00am

2. It will be listed with all other outstanding claims for refund of bank charges etc (it says etc - bit vague!!!)

3. The parties shall file and serve witness statements with copies of all relevant documents annexed by 4.00pm on 7 February 2007

4. The judge will use his case management powers to decide in each case whether to make any agreed order, give directions for the further conduct of the case or to procedd there and then with the hearing

5. It is likely that any case seriously conducted will be given directions and a later hearing date

6. It is probable that the judge will deal with cases in batches where there is more than one case against a particular defendant

7. If a party fails to attend the judge may strike out the claim or defence as he sees fit and enter judgement acordingly



It'll be a busy day for me.........my citicards hearing is also in that batch on the same day, same time. It wouldn't surprise me if the stay was lifted on Friday and Claim 1 also be lumped in with all the others on 22 Feb .

[keren29]

Well, I'm in court tomorrow for the hearing for the stay to be lifted on my claim.

I've got everything together, I've not heard anything from the Abbey so I guess they will either attend or send a letter to the Judge?

Hopefully can get the stay lifted, and I am going to see if I can get an early court date.

[jax1964]

Good luck for tomorrow Keren.

[Karnevil]

Very good luck Keren, you sound like you are well prepared.

[keren29]

cheers guys, fingers crossed.

[Seamus Duffy]

Good luck Keren - you sound like you are well prepared for them and well able for them too. Look forward to hearing how it went!!

[chilli50]

good luck hun. ill be followin your thread

[GaryH]

Good luck Karen!

[keren29]

I've got everything printed off and all collated in date order, leaving in about an hour. I had to go to court a few weeks back with Citicards so at least I know where to go, what to expect etc. I predict that the stay will be lifted and the hearing will be on 22 Feb with all the other local cases , but I'm going to ask if there is any possibility of an earlier hearing date.

[keren29]

I'm back.

The Abbey didn't attend, but sent a letter saying they neither agreed with nor objected to the stay being lifted.

He lifted the stay and , as I predicted, has scheduled it for 22 February with all the the others.

He said that if he had seen the application earlier he would not have had the hearing and would have added it to the 22nd Feb list, but a Deputy had ordered the hearing today.

He said that he understood that it was causing me financial difficulty but that if he now listed my case separately it would defeat the object of having a big hearing on the 22nd and that the earliest hearing dates were February anyway. He said they had lots to deal with and had to consider the available resources in the court.

He said the reason he had originally put stays on the claims was because he was waiting for some 'meaty' claims to go through the Mercantile, but because they had all been settled, he had decided to lift all the stays he had ordered and push them through all on one day. He will be dealing with all the Abbey cases together, then all the Nat West ones etc.

He said that the hearing date will either be a damp squib because everyone will have settled, or it will be a mad scramble for seats!

That means I have all three of my outstanding claims (2 with the Abbey and 1 with Citicards) on the same day at the same time!!)

[GaryH]

Good news. Glad it all went OK. Thats pretty much what I expected to be honest, Abbey could hardly object could they and it was pretty obvious they would'nt actually turn up. Fingers crossed for a settlement (or 3!) soon then.

[Karnevil]

Nice to see the judge understands how these things are panning out.

Should be a nice easy day for you on the 22nd then - probably only Citi will bother.