I'm sorry that i didn't say what you wanted to hear - i was only sharing my own experiences. Without a doubt you are entitled to object to the Stay being granted, or to apply for a Stay to be lifted, but the general feeling now is that the Courts are reluctant to agree in the light of the forthcoming OFT test case.
For what it is worth, I have shown below my letter to the Court and my Skeleton Argument on which I relied at my hearing to have the Stay in my case lifted (unsuccessfully):
xxx – v – Lloyds TSB Bank plc
Case No xxxxx in the xxxxx County Court
I have been provided with a copy of a letter dated xth September 2007 to the Court from the defendant’s solicitors, Sechiari Clark & Mitchell. Reference is made to a hearing on xth September of which I had no previous knowledge. Can you kindly confirm a hearing is to take place?
I have taken note of the contents of the above letter in support of the defendant’s application for the stay, ordered on xth August 2007, to remain in place. I have already set out in my witness statement the grounds of my application for the stay to be removed and the Court will see the basis of my claim as set out in the Claim issued in March 2007. It is germane that prior to the defendant’s current application it had not seen fit to make any contact with me whatsoever or to comply with directions or orders of this Court.
However, the defendant’s application relies solely on the fact that a test case is being taken by the OFT in the High Court; a case which deals solely with the fairness or otherwise of the bank’s charges for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999.
My claim, however, also addresses the issue of the bank’s charges being penalties for breach of contract – an aspect not, I believe, to be addressed by the OFT case. In fact the correspondence sent to me over the years by the defendant (through it’s local business banking department) has consistently referred to the implications of any breach of contract by me, namely the incurring of charges and the request to seek alternative banking arrangements. It is my contention that the charges levied are punitive in nature and thus unlawful ab initio.
I respectfully request, therefore, that the Court orders that the stay of xth August 2007 be lifted to allow my claim to continue on the substantive issue of determining that the bank charges are penalties and thus unlawful.
SKELETON ARGUMENT FOR THE CLAIMANT (Litigant in person)
In the proceedings on xx September 2007 at 10.00 am relating to the Defendant’s application for Continuation of the Stay and the Claimant’s application to lift the Stay
The Claimant will rely on the following submissions:
1. Human Rights
To impose a stay in the present proceedings would infringe my rights conferred by Article 6 of the European Convention of Human Rights, to receive a fair hearing within a reasonable time. The case of Wilson v Robertsons (London) Ltd referred to by the defendant in their skeleton argument is not authoritative since the issue of Human Rights was not argued. The appeal in that case was against costs not against the imposition of a stay and therefore the point was not fully argued. No definitive statement of the law can emerge.
2. Blanket stays
The imposition of blanket stays runs contrary to the wishes of the Master of the Rolls and my right to have my case decided on its merits.
3. Distinguishing factors
The test case between the banks and the OFT is primarily 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 OFT's Particulars of Claim are attached. The fundamental issue to be tested is whether the contractual provisions which permit such charges are subject to an assessment of fairness under the Regulations and fall within the ambit of regulation 5, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a 'core term'. Regulation 6 provides;
"(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate -
(a) to the definition of the main subject matter of the contract, or
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."
It is accepted that this is a complex issue of legal interpretation and one on which clarity is needed. However, this issue should be viewed in the context 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 of contract. 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.
In view of the preceding paragraphs, I wish to draw the courts attention to the following matters;
a) The OFT Test Case will not, primarily, test the position at common law of whether or not such clauses amount to an unenforceable penalty; and,
b) It is settled by virtue of the unanimous decision of the House of Lords in the case of Director General of Fair Trading v First National Bank  UKHL 52 that a default provision, that is one concerning the consequences of a breach of contract, is not and cannot be excluded from the regulations by virtue of regulation 6.
It is thus submitted that my claim should proceed on the grounds that the vast majority of the charges imposed by the bank were levied in advance of the redrafting of its contractual terms and as such were imposed as default charges as a consequence of breaches of contract. The issues are therefore distinguishable from the fundamental issues of the OFT Test Case, are relatively straightforward issues of fact, and can be routinely and expeditiously disposed of by the County Court.
4. Balance of convenience
A stay will disproportionately affect myself and operate oppressively whereas it will relieve the defendant of all obligations towards me until the outcome of the test case
5. Defendant’s conduct
The present case has now been ongoing for seven months, during which time the defendant has failed to reply to any of my correspondence and has failed to comply with orders and directions made by this Honourable Court. Therefore I submit that to stay this claim at this stage is wholly unjust and would have the obvious effect of favouring a defendant notorious for its wilful refusal to comply with court orders and the litigation process in general.
In the defendant’s skeleton argument reference is made to many tens of thousands of complaints having been received by banks relating to their charges. It should be mentioned that the defendant in many similar cases has settled those complaints in full without the matter being heard in Court.
6. Status quo
A stay would not maintain the status quo but would favour the defendant by allowing them to continue to apply charges to my account without allowing myself to pursue a legitimate claim to a remedy
7. Conditional order
Should the court be minded to order a stay it is respectfully requested that conditions should attach to the order so as not to prejudice the claimants position. Such an order should include:
a) That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
b) That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.
c) That the defendant is prevented from closing my account.
d) That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
e) That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998)
f) That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998.)
g) That these injunctions remain in place until the settlement of my claim.
h) That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent.
i) That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.
I suspect that the reality of what I am saying is that if you apply now for the stay to be lifted, a hearing date will be set for around some four weeks from now, which will take you to almost November. By that time we would only be some two and a bit months away from the hearing of the OFT test case - and it would be unlikely that (if you were successful) your case would be heard before then. In all probability the Court would not, in those circumstances, lift the Stay and you may also be faced with an application from the bank for their costs to be awarded against you.
Having said all that, I'd be delighted to see you succeed in having the Stay lifted. Good luck!