Thread: Hearing to remove stay

Originally Posted by Castlebest

Has your Judge granted you a hearing for your claim or a hearing for the stay ? and which court are you at ?

pete

Hi Pete,

I was told on the phone so I assume (sorry about this) that it is a hearing regarding the stay NOT the case. Also Luton county court.

Penfold

Ok how about this for a letter to give the Judge at the Hearing to set aside the stay. For those who have not read my thread, I had a stay put on my case and submitted an application to get it set aside. I did not ask for a hearing, but the Judge has asked to go to one. Date is TBA at this moment in time!


Hearing regarding Penfold V HSBC
Claim Number: 7LU0XXXX
Luton county court
Date: TBA

Your Honor,

Seeing that neither my wife nor I are legal people we decided it was prudent to put our arguments/ queries down in writing for you to read. Here is a copy for HSBC's solicitors for their records. These are our objections to the Stay that has been requested by HSBC Bank and put in force by the Court.

HUMAN RIGHTS

1 The Claimant contends that a stay of all court actions in which the preliminary issues identified in the Agreement of 25th July 2007, made between the Office of Fair Trading (OFT) and the Banks (the Agreement), a copy of which is annexed hereto, are raised, contravenes our rights under the European Convention on Human Rights (ECHR) as set out in Schedule 1 of the Human Rights Act 1998, Article 6.1.

2 Art.6 1. Of the Convention provides that, in the determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. The OFT v the Banks case is not going to be resolved within a year from its commencement. Further, given the importance of the issues there will almost inevitably be an appeal from a first instance decision and any stay could endure for two years or even more. 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.

3 The above combined with the knowledge that HSBC has not successfully defended any of these cases in Court and in fact has not even been to Court to our knowledge. It is interesting that they are still settling any ongoing cases that have not been stayed to this date. Four examples are 7QZ46749, 7QZ26454, 7QT42155 and 7QZ 85517. I have reason to believe there are actually around 94 other cases that are in similar positions or where judgment has been granted in favour of the Claimant or the Defence struck out.


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 Banks and the OFT will be represented in their case. We as consumers are not represented. The case will determine issues essential to many cases, like ours, before the County Courts, yet we have no voice in them. There are particular circumstances in 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 we were to be somehow joined in the OFT case, we 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 our case remain on an equal footing by allowing it to proceed.

(b) Saving expense

Expense would be saved by allowing our 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 our case, we claim £1242.80 in charges unlawfully levied by HSBC. This is a large sum for us but a negligible sum for the Defendant. It is of no consequence to the Bank that we may be deprived of an opportunity to resolve our dispute for a further year to two years, as they already have our money, which they took immediately and in any event they are under no financial pressure to resolve the case fairly and speedily. We, on the other hand, are extremely anxious to have our case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Bank is concerned, does not warrant the resolution of the dispute being delayed further.

(ii) the importance of the case

Our case is very important to us, though given the commercial strength and power of the Bank, of relatively little importance to them. Nor can the Banks 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 they seek to do in the OFT case. This is not an argument which lies with them to make, given their approach to cases like ours. The Banks’ 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 Banks bother to argue any defence. In other words, they treat cases like ours 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 discussed on www.consumeractiongroup.c o.uk, we are told and believe that not one case has been taken to trial. The Bank 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 they seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

To further strengthen our points above it is interesting for you to note that DG Solicitors have not sent us any correspondence at all to do with this case. They have not adhered to the legal system in many of their other cases as we have discovered from the Consumer Action Group website and even tried to set aside judgments after ignoring all their obligations under the legal timescales. We appreciate that this should not concern us, however, we feel Your Honor should fully realise that these solicitors and their clients are abusing the system to their advantage.

We are lucky that we closed our HSBC account some time ago, but this does not deter from their tactics. In fact Judge Abrahams, at Luton County Court, ordered one of the Banks to stop applying the charges until a High Court test case settles the legal issues involved. So the Banks wish to postpone paying out or justifying their charges, but are perfectly happy to continue with their charges, is this not abuse in its entirety? When it suits them they wish to stay the issue of charges, yet they wish to continue charging them.


(iii) to the complexity of the issues

The issues of whether the Banks’ 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 the Banks 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 days 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. We are on an average income and have suffered hardship as a result of the Bank’s charges. We will continue to suffer hardship for a much longer period if the stay is allowed. The Banks have virtually unlimited funds by comparison. We like many other Claimants would be financially prejudiced by the matter going off for a long period, not just by the fact that if we win we will have been deprived of our money for a much longer period, money that would make a significant difference to our life. The monies owed to us would clear our current overdraft completely. We can have our private law dispute resolved expeditiously and fairly by the Court allowing our 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 Banks 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. We should not be deprived of the same opportunity that all those other Claimants had, simply because the Banks have elected to take this route vis a vis the OFT after our court papers had already been filed. We questioned HSBC initially in March this year. We gave them many opportunities to respond and resolve this matter and we only finally started court action in July. In any event this was prior to the test case announcements and so we feel we should not be subject to those agreements.
· In any event, our 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 bank 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 for say a returned cheque or at what stage a charge moves from a reasonable one to an unenforceable penalty. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of our case because some issues are identical to the preliminary ones in the OFT case, while there remain issues in our case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in our case to be determined at the same time, by the same Court which hears all the evidence and all the arguments.
· Our argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause undue hardship and which, if found in our favour, cannot be properly compensated.

ADDITIONAL POINTS

4 The defendant remains at liberty to enter our name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks 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 inconvenience and damage to reputations. Were our name to be entered on the default register we would find it very difficult to get credit or a mortgage and we would have to pay higher fees for any credit, which we did manage to obtain. Allowing a stay of all claims like our would facilitate this invidious practice, which cannot properly be compensated for, should we be successful. The damage will already have been done.

IN THE ALTERNATIVE

5 If the court decides not to accede to our request to remove the stay we would then respectfully request that the court makes the stay conditional on the following orders that a hearing will take place no later than the 31st March 2008 and thus not allowing the Defendant to use the appeals system to further lengthen the timescales.

Yours faithfully,




Views, additions, corrections all welcome, thanks,

Penfold