Can I appeal 'stay' on court case for Credit Card?

[manchestman]

Hi
Having taken out N1 back in mid March and not given an initial hearing date till 11 Sept i was desavasted to receive a 'stay' from Huddersfield court this morning!
I had been under the impression that stays only applied to bank charges and not credit card charges. Can I appeal this stay on grounds it is separate issue from with bank charges?
If someone can please advise or point me to a relative thread I would be grateful. Thanks

[Curlyben]

Yes as the OFT action is concerned with BANK charges and not cards.
This has already been covered by the OFT back in April 2006.

[anarchist]

Could do with knowing the exact same thing. Preston have stayed my Barclaycard claim awaiting the outcome of the OFT test case.

The wording for the stay blatantly refers to putting a stay on 'bank accounts' and mentions nothing about credit accounts.

[manchestman]

Thanks Curlyben. I am very glad to hear it!
What should I actually do? should i find the bank account stay appeal template and adapt it before sending off?

[Curlyben]

Yep that should do the trick.
Here's the OFT report about Card charges.:
The Office of Fair Trading: Calculating fair default charges in credit card contracts (April 2006)

[moneyhelp]

It just goes to prove that the courts do not read our claims - these stays are putting me off continuing with my claim - it makes me so fecking angry!

[manchestman]

Yes, dead right! My claim does not mention the word 'Bank' once in the whole of the details! The only time 'bank' appears is under 'name & address' (ie, Barclaycard, Barclays Bank).
The claim is for PPI charges, Data Protection Act non compliance and CREDT CARD penalty charges.

Finally managed to get through to court by phone to be told they could do nothing as they have no legal training and the best thing would be to try and write in with a letter. I'm not holding my breath on this one!

[moneyhelp]

Have a look here and maybe ask more questions - ~~## Stays info and guidance ##~~

[Curlyben]

When I filed my card I did put in CAPS that this was for CREDIT CARD charges, just have to see what my court decides.

[manchestman]

Here is my response to the stay, for which I am indebted to zootscoot (as usual!) and is heavily based upon his template, with a little help from alanderby, but with the emthasis on credit card charges this time. Hope it helps:

My name & address

The Court Manager
Huddersfield County Court
Queensgate House
Queensgate
Huddersfield
HD1 2RR

23 August 2007

Huddersfield County Court
Claim number XXXXXX

Between

xxxxxxx - Claimant

And

Barclaycard - Defendant



Dear Court Manager

I will be very grateful if you are able to put my argument against an unfair and mistaken stay to District Judge xxxxx who has ordered the stay on the above case on 20 august 2007 in the belief that this is a case about bank charge recovery. It is not.
Thank you.

Dear District Judge xxxxxx

I strongly and respectfully object to the proposed order of a stay in respect of the claim detailed above and respectfully ask that it be removed upon the following grounds;

The claimant relies on the following grounds

THIS CLAIM IS NOT FOR RECOVERY OF BANK CHARGES MADE ON A CURRENT ACCOUNT
This claim is mainly about the recovery of credit card charges that all exceed £12 each, the maximum recommended by OFT in 2006. Additionally, the claim is about illegally taken payment protection charges, non compliance with the data protection act (for more than 18 months) and an erroneous default marker placed on file with various credit agencies. Credit Card charges are quite different to current account overdraft charges in that there is a clear breach of contract so this case’s focus on credit card charges could potentially be decided solely on the common law of penalties without reference to the UTCCR which the OFT case focuses on. Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provision in DGFT V First National.

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.

This is plainly not a reasonable time within which to resolve the vast majority of claims before the Courts, which like mine are small claims and involve undue hardship.

THE OVERRIDING OBJECTIVE

3 CPR 1.1(2) sets out considerations which the Court must give effect to.

(a) ensuring the parties are on an equal footing

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 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 for more than 18 months by way of trying to negotiate an amicable settlement with the Credit Card Company and of court fees in pursuit of a legitimate right to seek a remedy.

The 8 Banks and the OFT will be represented in their test case. We as consumers are not represented. The case will determine issues essential to many other cases, but not to mine, yet we have no voice in them. There are particular circumstances in many other individual cases which will raise arguments the OFT are not aware of, nor can the case be expected to deal with the terms and conditions in all cases as not all Banks and Building Societies are listed as Defendants. Even if I were to be somehow joined in the OFT case, I would have no funding for representation and would therefore be prejudiced in a case with some heavyweight lawyers. The Court would properly ensure the parties in my case remain on an equal footing by allowing it to proceed.

(b) Saving expense

Expense would be saved by allowing my case to proceed in the normal way. Arguments on this issue are already set out below and apply equally under this head.

(c) dealing with cases which are proportionate to

(i) the amount of money involved

In my case, I claim £xxx in charges unlawfully levied for a breach of contract by Barclaycard. This is a large sum for me but a negligible sum for the Defendant. It is of no consequence to the Credit Card Company that I may be deprived of an opportunity to resolve my dispute for a further 1 - 2 years, as they already have my money and in any event they are under no financial pressure to resolve the case fairly and speedily. I on the other hand am extremely anxious to have my case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Credit Card Company is concerned, does not warrant the resolution of the dispute being delayed further.

(ii) the importance of the case

My case is very important to me, though given the commercial strength and power of the Credit Card Company, of relatively little importance to them. Nor can the Credit Card Companies fairly argue that all of a sudden the principles as a whole are important to them so that all claims against them must be stayed, as the banks seek to do in their OFT test case. This is not an argument which lies with them to make, given their approach to cases like mine. The Credit Card Company’s’ strategy to litigation of this kind is almost without exception, to put in a defence and settle shortly before the trial. It is very rare when the Credit Card Companies bother to argue any defence. In other words, they treat cases like mine as another commercial decision. They have never sought to see a case through, take it to appeal if necessary and seek to establish certainty over the principles they assert are so crucial now, they necessitate a stay of all claims. Certainly of all the cases dealt with by my representative (consumeractiongroup.co.u k), I am told and believe that not one case out of thousands has been taken to trial. The Credit Card Company has always settled. If these issues were so critical to them they were at liberty to see their arguments through in a case, take it to appeal and seek certainty on the issues in an appellate court in the normal way. Only now do the banks (not the Credit Card Companies) seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

BALANCE OF CONVENIENCE

Furthermore, although a stay prevents me from recovering my money, the defendant Credit Card Company is not prevented from levying its charges or interest on debt comprised of those charges so 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 charges which I say are unlawful. Further, many Credit Card Companies are now routinely closing the accounts of their customers who commence claims against them and then passing their accounts onto debt collection agencies. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, the defendant remains at liberty to keep my name on the default register which it and other Credit Card Companies routinely do in respect of unlawful penalties which are unpaid by their customers. The Credit Card Companies have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. As long as my name remains on the default register I find it impossible to get credit or a mortgage and I would have to pay higher fees for any other credit which I did manage to obtain (Though this is virtually impossible). The Credit Card Companies would also remain at liberty to bring legal proceedings against me for the recovery of any debt which entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them. Allowing a stay of all claims like mine would facilitate this invidious practice, which cannot properly be compensated for, should I be successful in my claim. The damage has already have been done.

It is submitted that a stay may potentially mean even greater difficulty for me and yet be insignificant for the defendant Credit Card Company. In fact a stay is supportive of the Credit Card Companies litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim. In my attempts to obtain justice, I have been repeatedly frustrated by Barclaycard over the last 20 months

THE STATUS QUO

The stay does not maintain the status quo. As submitted above, a stay favours the Credit Card Company by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the Credit Card Companies 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.


(iii) to the complexity of the issues

The issues of whether the Credit Card Companies’ charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and whether they amount to penalty charges, whether for breach of contract or as a payment for services as some banks and Credit Card Companies now allege, is not so complex that it warrants the stay of all claims in which these issues are at large. The arguments are commonly dealt with day in day out by the County Courts who are more than adequately placed to deal with them. The complexity/simplicity of the issues is no reason to grant a stay; rather it is a reason why the County Court should continue to determine them.

(iv) to the financial position of each party

Many Claimants are normal people on low or average incomes who have been deprived, in many cases, of several thousand pounds going back up to 6 years. I had been unemployed for more than two years until 3 weeks ago and am now working 16 hours a week as a xxxxxxxxxxxx. I am on a very, very low income and have suffered real hardship as a result of the Credit Card Company’s charges. I cannot afford the additional fee entailed in contesting an unfair stay. I will continue to suffer hardship for a much longer period if the stay is allowed. The Credit Card Companies have virtually unlimited funds by comparison. I, like many other Claimants, will be financially prejudiced by the matter going off for a long period, not just by the fact that if I win I will have been deprived of my money for a much longer period, money that would make a significant difference to my life, but also by the fact that in the meantime, the Credit Card Companies can continue to charge me their outrageous penalties, incurring further hardship on me, for the period of the stay. I can have my private law dispute resolved expeditiously and fairly by the Court allowing my action to proceed to trial in the normal way.

(d) ensuring the case is allowed to proceed expeditiously and fairly

This case will not be expeditiously dealt with if delayed for up to 2 years. The Credit Card Companies have had years to invite the OFT to issue their case against them. Many hundreds of cases have gone through the Courts already, arguing the same points that are set out as preliminary issues in the OFT case. I should not be deprived of the same opportunity that all those other Claimants had, simply because 8 banks, but no credit card Companies, have elected to take this route vis a vis the OFT.

In any event, my case, as many others do, involve other additional arguments to those listed as preliminary issues in the OFT case. One major issue is the amount of recoverable Credit Card Company charges and the costs to the Banks of taking the particular step they charge for. There is clearly an issue over what is a reasonable charge and at what stage a charge moves from a reasonable one to an unenforceable penalty, which is why OFT ruled on a maximum charge of £12 in 2006. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of my case because some issues are similar to the preliminary ones in the OFT case, while there remain nearly all issues in my case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in my case to be determined at the same time, by the same Court that hears all the evidence and all the arguments.

My argument is that penalty charges by the Credit Card Company amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause further compounded and undue hardship and which, if found in my favour, cannot ever be properly compensated.

Yours Faithfully
xxxxxxx

[pjdavies2000]

Hi,
I have a letter to remove stays which is similar to the above, but gives more detail as to the OFt case and points the judge to specific points in botht the test case and the 2006 report.

If you would like a copy to compare with your own letter above, then drop me a PM with your email addy.

Peter

(that applies to anyone!)

[manchestman]

Thank you Peter. Your offer is very much appreciated. I have pm'd my email address for you.
I am just so angry with all the time delay delays by Barclaycard before I could even consider lodging court case (Took over a year to comply with S.A.R - (Subject Access Request)), then having lodged in mid march, given a prelim hearing for mid Sept! and now this.... ... grrrr!

[pjdavies2000]

Worth adding a line to your letter stating that their failure to fully comply with their legal obligation as Data Controllers to issue you information under the Data Protection Act 1998 should be considered a mitigating factor by the courts, and as such, you ask them to consider the Data Controllers breach a major factor, if not a colluded factor with the companies litigation team, to delay your dispute with them in the hope that courts would be forced into issuing Stays.

Something liek that may help show that BCard have not played fairly up until now, and have done all in their power to prevent you from getting information you require. Now you have that info, they are trying to abuse the system further by riding on the back of the parent companies current High Court case, which has no affect on this one!

Peter