Thread: Abbey Court Hearings - Important info

If you have a hearing with Abbey sometime in the near future then expect them to turn up to request a stay. Your main objective then is to prevent that happening. You should, of course, then be 100% ready to have the claim heard there and then.

This is in fact an excellent opportunity to rack up a flurry of court decisions against Abbey on the issue of their charges, which would be excellent publicity for us and the campaign and thoroughly disasterous for them. The barrister will almost certainly not have instructions to defend the claim, so if you successfully resist the stay attempt you in effect have an open goal.

There is some additional stuff below to take and learn so as you are well prepared to wipe the floor with them.

Preparation

Make sure you get your bundle and witness statement in to the court and Abbey beforehand, in compliance with the directions order.

See the bundle and witness statement here -

http://www.consumeractiongroup.co.uk...e-witness.html

If you have not used that witness statement, you should submit it ASAP in replacement for whatever you did use. It shouldn't matter that its late if your hearing is in the small claims track, unless you were given an order with a strict deadline.

Have a good read of the statement and get an understanding of the main points. You should also draw up some case notes. With Abbey the argument is reletively simple - the charges clearly arise from breach of contract, so all you need to do is demonstrate to the balance of probabilities that the amount they charge you is well out of preportion to their actual costs. The contents of the bundle should provide you with enough evidence to meet that standard fairly comfortably. Especially important is the Competition Commission report, becouse Abbey were one of the banks who actually submitted data to the Commission.

At Court

Firstly, don't panic. Small claims court is nothing to fear. Nobody expects you to be or know as much as a lawyer - in fact small claims court is designed especially to be used by litigants without the need for lawyers. Just be as well prepared as possible so as you understand and have confidence in your case.

Object to a stay

You need to take a second witness statement with you which contains your arguments in objection to the stay which will inevitably be proposed by Abbey's representitive.

There are 2 template statements to choose from on the site, found or linked from here -

http://www.consumeractiongroup.co.uk...-guidance.html

Also, specific to Abbey claims becouse the charges arise from clear breach of contract, make sure you add at the top of the stay objections template something like this -

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 regulations 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'; I.e. 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 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 evidenced by the terms of the account agreement and furthermore, is admitted and averred 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 innapropriate 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. The provisions upon which this claim is based are not being tested the the OFT test case, therefore a stay would serve no useful purpose other than to the defendant, who's provarication and attempts to frustrate justice in these claims are notorious.

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 simular to the draft attached. 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 repeatedy refused to contest all claims simular to the present for "commercial" or "costs" reasons, yet it now sends a barrister to each hearing solely to argue for a stay. Furthermore the defendant is likely to attend this hearing having breached the order for pre-hearing directions, without instructions to defend the claim, instead relying solely on the court granting a stay. 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 procedings to date.

Also, if possible include additional points in your objections, I.e. will a stay cause you hardship? If so, include that in with as much evidence as you can to back it up.

Abbey's rep will almost certainly not have any instructions to actually defend the claim - they will be relying on getting a stay - and neither will Abbey have submitted any documents beforehand. You should make a big point of this and ask questions such as the following;

Have they complied with the courts directions? Why not? This is a final hearing - why are they not ready to defend? I've prepared my bundle dilligantly, have they got a copy? Why not? Have they even seen it? Have they turned up solely on the assuption a stay will be ordered? Isn't that a little presumptuous? I thought only the court could decide if a stay is ordered or not? What happens if the request is refused and the claim is allowed to proceed today? Why are they turning up to courts just to ask for stays after refusing to attend court for the last 18 months for "costs" reasons? Why didn't they properly apply for a stay 3 weeks ago? ... etc, etc...

If your successful

If you pursuade the judge not to order a stay, well done, next step is getting judgment.

There are 2 steps to this. First, establish that the charges arise from a breach of contract, second that the charge is excessive and unrelated to Abbey's actual costs incurred as a result of the breach. The first step is easy - as Abbey state the charges arise from a breach in their defence.

Second, as per the witness statement, you are alleging Abbey's loss from your breach of contract to be between £0.50 - £1.50 per event of default. You have much circumstantial evidence that this is the case (see bundle), and can also point to Abbey's secrecy around the nature of the "administrative expenses" which its defence states the charges to be proportionate to.

Again, you should really try to pick at the many great big holes in their case. Ask whether the "administrative expenses" are incurred manually or automatically. Ask why they have not provided evidence to substantiate the defence. Ask do they even know what the costs are? If not, why not? Abbey's rep will clearly not be able to refute any of this and if you get an answer which is questionable ask the judge to swear him/her in and ask again under oath.

Also very important evidence is the Competition Commission report, which demonstrates that Abbey are making profits from their charges and that they are unrelated to their costs.

In the alternative

There is also then the option of suggesting an adjournment of 28 days and requesting that an order is made in the meantime which obliges Abbey to disclose what their actual costs are. This would put the matter beyond doubt. Here's a suggested draft order you could propose -

In the XXXXXX County Court
Claim number XXXXXX

Between

XXXXXXXX - Claimant

and

XXXXX - Defendant

Draft Order for Directions

1. The Defendant shall within [14 days] file and serve a response to the Claimant's witness statement and 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 admistrative 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;
• d) Copies of decided cases and other legal materials to be relied upon.

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 small claims hearing will proceed to be heard at [time] on [date] at XXXXXXX County Court.

Finally, read this thread -

http://www.consumeractiongroup.co.uk...abbey-plc.html

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Gary,
Thanks for the post, I'm just waiting for St Helens county court to set a date for my hearing against Shabbey, so I'm just getting my court bundle togetther (got most of it) do you have a link to the competition commissioners report.

Once again thanks
Mark

Hi Gary

Is it advisable to take all of the above to an Allocation Hearing (which Ipswich Court have ordered for 21st Sept), or just the 'Complexity of Issues' bit? i.e. Should I do the 'bundle' for that hearing, or would that be pointless at this stage?

many thanks - Adam

Originally Posted by adamc6671

Hi Gary

Is it advisable to take all of the above to an Allocation Hearing (which Ipswich Court have ordered for 21st Sept), or just the 'Complexity of Issues' bit? i.e. Should I do the 'bundle' for that hearing, or would that be pointless at this stage?

many thanks - Adam

I'd be very tempted to make an application for summary judgment beforehand. It'll mean the allocation hearing is also a summary judgment hearing which will take the focus off of the stay issue and put Abbey in a very difficult position. They would then be required to attend to defend your application for summary judgment - which, IMHO, they would be very unlikely to. They would almost certainly settle instead.

Summary judgment is basically when the court disposes of a claim or defence without a full hearing becouse it has no realistic prospect of success, and there is no other compelling reason why it should proceed to trial.

Even if Abbey did turn up and successfully defended the SJ application, which I cannot see in a million years, then you could go for a conditional order in the alternative - which would be a disclosure order.

The fact that they have ditched their defence and done a complete u-turn speaks volumes for how much confidence they have in it. They have tied themselves up in knots now and we can take advantage big time.

Have a read of the CPR relating to summary judgment (below) and have a think about it and let me know. I've also found some case law regarding SJ which can be used. If you decide to go for it I'll help you with the application and your preparation for the hearing.

PART 24 - SUMMARY JUDGMENT

PRACTICE DIRECTION – THE SUMMARY DISPOSAL OF CLAIMS - This Practice Direction supplements CPR Part 24

Originally Posted by chil

Hi got a court date sept 3rd 07 sent in my bundle WITHOUT abbey terms and conditions will this be a problem and has of today still no letters recieved for a stay please help and advise under extreme stress and i think ive just made a major mistake thankyou all in advance

Just submit the new witness statement and add anything from the bundle which wasn't in the original one. It shouldn't matter that its late.
T&C's are linked from the link.

See the bundle and witness statement here -

http://www.consumeractiongroup.c o....e-witness.html

If you have not used that witness statement, you should submit it ASAP in replacement for whatever you did use. It shouldn't matter that its late if your hearing is in the small claims track, unless you were given an order with a strict deadline.

Originally Posted by GaryH

I'd be very tempted to make an application for summary judgment beforehand. It'll mean the allocation hearing is also a summary judgment hearing which will take the focus off of the stay issue and put Abbey in a very difficult position. They would then be required to attend to defend your application for summary judgment - which, IMHO, they would be very unlikely to. They would almost certainly settle instead.

Summary judgment is basically when the court disposes of a claim or defence without a full hearing becouse it has no realistic prospect of success, and there is no other compelling reason why it should proceed to trial.

Even if Abbey did turn up and successfully defended the SJ application, which I cannot see in a million years, then you could go for a conditional order in the alternative - which would be a disclosure order.

The fact that they have ditched their defence and done a complete u-turn speaks volumes for how much confidence they have in it. They have tied themselves up in knots now and we can take advantage big time.

Have a read of the CPR relating to summary judgment (below) and have a think about it and let me know. I've also found some case law regarding SJ which can be used. If you decide to go for it I'll help you with the application and your preparation for the hearing.

PART 24 - SUMMARY JUDGMENT

PRACTICE DIRECTION – THE SUMMARY DISPOSAL OF CLAIMS - This Practice Direction supplements CPR Part 24

Just submit the new witness statement and add anything from the bundle which wasn't in the original one. It shouldn't matter that its late.
T&C's are linked from the link.

Hi Gary

A million thanks for this, and for your offer of help.

I rang Ipswich Court today, and, unfortunately, they told me that they have just decided to stay ALL bank charge claims pending the OFT Case, and we will be getting a letter from them very shortly. They also stated that our Allocation Hearing will NOT go ahead.

Am I correct in assuming that we cannot, therefore, submit an application for Summary Judgement, much though I like the idea? It really is a great piece of work you've done there, Gary, and I am bitterly disappointed that it seems we cannot use it.

Once again, MANY thanks - Adam.

Originally Posted by determindator

Hello Gary,

I handed in my AC over three weeks ago and have not recd a reply from the Court. It is Watford CC, and I have also sent a CPR part 18 to Abbey. Can you guide me on my status at present please.

Thanks Determind

Only the court can tell you where your claim is. If you have sent a p18 request and 14 days have elapsed then you can apply for an order - there is another thread to help you with that.

Hi GaryH. Thanks for this latest piece of work. I have added it to my letter that I shall be taking to Judge Kaye at Leeds Mercantile Court tomorrow for the Case Management Conference.

I note from my cut'n'paste into the Word Document that there have been a couple of spelling mistakes that you might want to correct ("similar", "repeatedly", "inappropriate").

Do I understand this bit correctly? Has the Abbey changed its Defence recently? Does this mean that they have to infoorm the court of their new Defence? Or can they change their minds at any time? I'm just wondering if they will have to produce anything tomorrow at the Case Management Conference which I can poke them with. As you say, they will probably be there with nothing more than a bit of paper to ask for the Stay.

As I am going to a CMC only, I do not have to take a full Bundle. Is there anything relative to your post that I should now take with me? I am taking a Mini-Bundle that just consists of the letters between Me, Abbey and the Court (which includes their Defence).