Roscodog18 V G.E Money in Court this month ***WON***

[roscodog18]

Hello everyone,

 

I havn't posted for a while as all my claims are have been stayed pending the test case......even the credit card and business claims!

 

Story so far with GE Money Home Lending LTD

Claim is for £760.00 plus contractual interest at

 

Prelim,LBA,N1, AQ.....all as normal claim goes back 6 years and 2 of the penalties are just over the 6 year limit but I went for them any way.

I did receive a 'without prejudice ' offer of £450 but rejected it.

The solicitor involved is Eversheds ( who are also representing Bank of Scotland in another claim I have)

 

The original loan was with I Group but GE took them over.

 

I have a Court date at the end of this month at the request of Eversheds

The application notice states

 

that they 'intend to apply for an order that Summary Judgemeny be given in favour of the Defendant under cpr 24.2 or the claim be struck out in accordance with 3.4 (2)

 

because

 

the Claimant does not have reasonable prospects of succeeding with his claim

 

The paperwork contains a witness statement by Philip Abell who is a 'Contentious Litigator in the Legal Services Department of GE Money'

 

Any advice would be greatly appreciated

 

Roscodog

[steven4064]

Hi roscodog

 

Could you post your particulars of claim so we can have a look. Also, presumambly Eversheds sent in a defence - was there anything of substance in that?

 

Perhaps you could counter with a request for summary judgement in favour of the claimant under CPR 3.4(2)(b) (abuse of process) on the grounds that GE Money have had many cases against them of this natue, have submitted a defence and AQ and then settled at the last minute out of court. No cases to our knoweldge have ever actually got to court. They are using the court process to try and intimidate genuine claimants without any serious intention of ever defending a case in court.

 

We can draw up a draft order for you to send in to the court asking

 

a) for the defence to be struck out for abuse of process or requiring GE Money to provide a list of cases that they have defended in court

 

OR if the court doesn't want to do that

 

b) requiring details of theiri charging structure to demonstrate that the charges are not penalties (ie to prove their contention that you haven't a case)

 

Either way, they will throw in the towel.

[steven4064]

Right

 

Here is a draft letter to the court in reply to Evershed's notice

 

Note improved version later (post #8 )

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature.

 

Since May 2006, I am aware of several claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1A).

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by LincolnCounty court (attachment 1B) in at least 10 cases similar to my own involving various high street banks. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1C)

 

 

2. In the alternative, should the court not be minded to strike out the defence, and if the claim is to proceed, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

The Defendant is seeking an order under Part 3.4(2) of the Civil Procedure Rules to strike out my claim on the grounds that I do not have reasonable prospects of succeeding with my claim. The claim is for the return of contractual penalty charges levied on my account and it is the defendant’s responsibility to demonstrate that the charges claimed are not contractual penalties. As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact The information requested in the draft order will provide the required facts.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in inter alia Leicester, Derby, Chesterfield, and Mansfield County Courts.

Attachment 1A can be generated by filing in the form here with GE capital selected. Attachment 1B here and 1C here. Attachment 2A to follow later. Ring the court as soon as you can and ask how you should provide this information - will they accept a letter in 'defence' of Evershed's application or do you have to make an application yourself.

 

 

[steven4064]

Attachment 2A

Draft Order for Directions

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;
  
• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

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

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed:

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;
  
• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), 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) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) 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.

 

[roscodog18]

Thanks so much for your prompt,consice and unbelievably helpfull reply.

 

I shall call the Court in the morning. I will post up my POC. The defence runs to 3 pages but is generally standard waffle with no substance.

 

Roscodog

[steven4064]

No probs roscodog - it's all stuff that I had to hand from my own claims.

[roscodog18]

Should have said , that was the draft order for directions that I submitted with my AQ questionaire............

[steven4064]

I don't think there is any harm in submitting it again. In the letter I think we could make a bit more of their CPR 3.4(2) request - they say that you have little chance of success - so, the first choice to the court is effecively for them to not only show that they are not abusing process but also to give a list of similar cases where they have won in court, which presumambly they would have if you really had little chance of success.

 

The second option (ie the draft order you have already sent) is to say you are claiming penalty charges, they say you have little chance of success, ie it must be obvious that they are not penalty charges. The information you are asking for is just the information for them to prove this.

 

I think the two things together cover all the bases - either way they lose because either way, you have a (strong) case. On consideration I would like to propose the amended letter/document

In their application under Part 3.4(2) of the Civil Procedure Rules the Defendant asks for my claim to be struck out on the basis that I do not have reasonable prospects of succeeding with my claim. If this really is the case, the onus is on the Defendant to provide evidence that that is the case, either by showing other cases which they have successfully defended in court or by providing evidence that the regime of charges applied to my account do not constitute contract penalties as I claim.

 

Therefore the Claimant respectfully requests that orders may be made as follows;

 

1. That the Defendant provides a list of cases of a similar nature that it has successfully defended in court or the defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules.

 

Since May 2006, I am aware of several claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has finally settled without liability shortly in advance of the hearing or trial. A sample list of these claims, including their claim numbers, is attached (attachment 1A). I know of no cases of a similar nature which have proceeded to trial.

 

It is submitted that the defendant’s litigation strategy is flagrantly abusive of the public resource, and further, contrary to almost all of the Overriding Objective’s of the Civil Procedure Rules. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.

 

Please find attached a copy of an order made by LincolnCounty court (attachment 1B) in at least 10 cases similar to my own involving various high street banks for the respective defendants to provide the court with a list of cases they had defended in court. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s notorious and well established conduct in similar cases when considering such an order in the present case. Please find attached the case to which I refer (attachment 1C)

 

2. In the alternative, should the court not be minded to make the above order or to strike out the defence, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A) which was previously submitted to the court as an attachment to the Claimant’s Allocation Questionnaire.

 

I believe that I have reasonable prospects of success in my claim since the money I am reclaiming was taken from my account unlawfully since the charges that make it up are unlawful contact penalties. As the law relating to contractual penalties is long established, I believe that the outstanding issues are of fact and the information required by the draft order will provide the necessary facts to establish if the charges constitute contract penalties or not.

 

The proposed directions will also further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

I would aver that if the Defendant has the serious intention of defending this claim at trial, as is indicated by its defence and subsequent actions, that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as small claims track cases in several County Courts.

I think this better highlights the link between the two draft orders and Eversheds' CPR Part 3.4(2) application.

[roscodog18]

Steven,

 

I am deeply in debted to you...........

When you are down and need someone to back you up......this website is the place to visit............I had some serious victories before the test case and subsequent stays.........and look forward to several more after the stays are removed

I will keep you updated............

 

Roscodog

 

"What counts is not necessarily the size of the dog in the fight; it's the size of the fight in the dog."

Dwight D. Eisenhower

[Goldlady]

Subscribing - best of luck roscodog. I am about to issue claim against GE/IGroup having just paid the rotters off:D and received their standard 'our charges are fair' letter in response to my LBA for about 2k of unlawful charges.

[steven4064]

I had some serious victories before the test case and subsequent stays.........and look forward to several more after the stays are removed

If there is any suggest of staying your GE Money cliam then you should coimplain - the test case does not apply to credit cards in general and specifically not store cards

[roscodog18]

The strange thingis this claim HAS been stayed.......but GE have chosen to try and get it thrown out!

 

Roscodog

[steven4064]

Was it stayed because of the OFT case? Did GE ask for the stay or was it the court of its own volition?

[roscodog18]

It was the Court.....I have also had credit card claims and buisiness account claims stayed as well.........getting close to d day now.

[steven4064]

Sometime the courts stay claims to give the parties a chance to settle (yeh, right!) - was yours one of these or because of the OFT case?

[roscodog18]

It was stayed because of the OFT case.

 

Roscodog

[steven4064]

It will be interesting to see what happens. It is quite clear that the case only applies to bank accounts and not credit cards.

[roscodog18]

I spoke to an extreemly helpful young woman at the Court and they are happy for me to supply this documentation as a response to GE Money's application to have my case thrown out.

She explained that on the morning of the hearing the Judge would read through all paperwork relating to the days cases to familiarise himself with them, then at the end of the heaing would make his decision on the evidence before him.

So it has been printed and posted, with a copy to Ge's lawyer.

 

It looks like I may see the inside of a Court. I will keep you updated:)

 

Roscodog

[steven4064]

It looks like I may see the inside of a Court.

Don't bank on it, they've still got time to chicken out

[roscodog18]

I have posted all response ducumentation to the Court and copies to GE............game on!

 

Roscodog

[roscodog18]

Well Court day tomorrow..........worried but looking forward to it.I have all my paper work in order , the Court and GE's solicitors ( Eversheds.......and I know you will be reading this!) have copies of what I will rely on in Court

Rest assured I will quickly post my experiences.........

 

Roscodog

 

"What counts is not necessarily the size of the dog in the fight; it's the size of the fight in the dog."

Dwight D. Eisenhower

[Goldlady]

Best of luck rosco for what is now in fact today!!

 

Look forward to hearing news of a victory;)

[steven4064]

All the best rosco

 

Give us a blow-by-blow (or perhaps snarl-by snarl ) account as soon as you can. We are waiting with baited breath....

[roscodog18]

Well today was interesting.

 

I arrived with time to spare and sat in the County Court waiting room. 10 mins before the hearing an agent for GE's solicitors turned up....young trainee straight out of law school .....on the first rung of the ladder.

 

He introduced himself and then immediatly said that he was merely an 'agent' for Eversheds and as such was not able to discuss any offer of settlement to which I replied 'fine because an offer is not what I want.........full settlement is' so immediatly I was 1 up..........the duty solicitor approached me concerned that I was representing myself and asked if she could offer any advice or indeed accompany and represent me, she clearly knew GE's agent and asked me to accompany her into a private room to discuss my case.

I expalained my case and that I had never had to proceed this far with previous claims. This claim is relating to a penalty charges on a secured loan and she physically relaxed when I told her that the loan was now cleared and there was no danger of me losing my home if I messed up. She was very helpfull and explained that myself and the agent would enter the Judges chambers , sit on either side of a desk and state our position relating to GE's application to have my case struck out, she suggested I call the Judge Sir.........for this advice I am exteemly gratefull.

 

15 mins late we were called to the chambers.........we both were invited to sit on opposite sides of the desk......the Judge was extreemly polite and very eloquent.

 

Judge......what is your status

 

Agent....agent for Eversheds he replied.

 

Judge....'an agent' what does that mean?

 

Agent.......eh I work for an agency and have been asked to turn up an speak on behalf of the defendant he stuttered.

 

Judge.....do you have any legal training? As he turned and looked me in the eye as if to say..........don't worry.

 

Agent .....yes I am a trainee solicitor.

 

Judge.....well as your client has requested this hearing I think you should start by stating why we are here.

 

Agent......My client askes that this claim be struck out because the claimant has no prospect of success..he read from the sheet.

 

I won't bore you all with every last detail but the Judge got so frustrated he took the directions sheet from the agent and read it himself because he got fed up trying to get a straight answer from him........then got ratty because Eversheds asked for a hearing on a case that was already stayed........clearly not acceptable for people who should know better

 

My case will remain stayed pending the test case result.

 

So then quickly the Judge took things into his own hands.....struck out the application to strike out my case and then spoke of GE's objection to my case on the grounds that I was claiming against the wrong company ( I am claining against GE Money Home Lending LTD and todays application stated that they are a seperate legal entity from GE Money Secured Lending LTD).....he asked if I thought I was suing the right company and I explained that I believed I was having submitted a S.A.R - (Subject Access Request) and having recieved a response.

 

He suggested that it would be almost impossible for someone like me to know who to claim against ( my original loan was with Home Mortgage Corporation who were taken over by I Group who were taken over by GE) I was told if I were in your shoes I would submit an application to the Court changing the Defendant to GE Money Home Lending Ltd and /or GE Money Secured Lending Ltd to make sure I was getting the right company.

 

So the upshot is GE's application to have my claim struck was thrown out and I now can apply to make sure I am suing the right company.

 

Despite being a little nerve wracking because I was unsure of what to expect it was OK....however the Judge was clearly prepared to cut me a lot of slack because I was not a lawyer.

 

So if you have to turn up at Court and speak up for yourself it actually is not that bad...GE have spent more money on legal representation and have nothing to show for it.....roll on the judgement on the test case

[steven4064]

Well done rosco - you took a major company to court, didn't make a fool of yourself and showed them up. As you say, roll on the test case result (even though it actually has no bearing on your case) so that you can get what is due to you.