Reply to form N244 submitted 20 August.

[millie no nappies]

Took a long time, had resigned myself to the fact that the case was stayed and dead.... but after sending in the N244 form on Aug 20, received this on Friday:-

 

General Form of Judgment or Order.

 

Before DISTRICT JUDGE ******** sitting at County,Civil Justice Centre.....

Upon reading the Ex Partie application

 

IT IS ORDERED THAT

 

The claimants application be listed on Thursday 4 October 2007 .. time estimate 20 minutes

 

The hearing will take place by the parties attending the hearing and not as a telephone hearing. The direction for filing of a case summary, draft order, and any other document must still be complied with.

 

 

First question... What does this mean, is it the big one? or just a deciding whether to go to a full hearing hearing!

 

What documentation would i need to prepare.

 

&

 

A BIG PROBLEM...

 

I cannot make this date as i will be out of the country, unfortunately arriving back late on 4th October... any suggestions

 

 

 

M-N-N.

[muggins73]

Firstly, I'm lovin' the name!!!!

 

Secondly, well done you for having your stay lifted.

 

Thirdly, no this is not the big one, it is meerly a chance to advise the judge to have the stay lifted and to continue down the normal route with the possibility of going to a full hearing, yes. However, and most importantly, your first point of call should be to inform the court that you cant make the hearing and reschedule.

 

As for the documentation required, kindly advise what reason you gave in your application to have your stay lifted.

[zootscoot]

Hi Millie,

 

Check out the forum for stays here:

 

http://www.consumeractiongroup.co.uk/forum/general/

 

and take a look at the bundle for stay hearings in the bank library templates.

 

Best of luck

 

Zoot

[millie no nappies]

Thanks Muggins, i was trying to ring the court today but was not getting any answer, will be trying again tomorrow.

 

Here, if you are sure you want to read it, is what i sent the court :-

 

 

"In the Birmingham County Court

 

Claim Number: **********

 

Between

 

Millie No Nappies - Claimant

 

And

 

National Westminster Bank Plc - Defendant

 

 

APPLICATION FOR LIFT OF STAY – EVIDENCE

I, the Claimant, respectfully request that the stay which was ordered on the *th August 2007, pending resolution of the test case between the Office of Fair Trading (OFT ) and the UK banks, be lifted and that this claim be allowed to proceed under normal Court procedures in the small claims track.

 

HUMAN RIGHTS ISSUES

Art.6 1 of the Convention provides that “In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”

 

The UK Banks involved in the test case, which include the defendant, have published virtually identical statements on their websites indicating that they expect that the test case may last longer than 1 year. From the nature and complexity of that test case it is clear that the matter may become protracted and that there could be subsequent appeals to the Court of Appeal and the House of Lords so it is conceivable that afinal 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 Claimant’s right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

.

THE OVERRIDING OBJECTIVE

It is submitted that the Overriding Objective requires that the Claimant’s case be allowed to proceed speedily so that the parties to this case may obtain a just settlement. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive. The claimant requests that his 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 the claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

 

BALANCE OF CONVENIENCE

The sum claimed is insignificant to the bank but is a significant sum to the Claimant. Furthermore, although a stay prevents the Claimant from recovering money owed, the defendant bank is not prevented from continuing to levy its penalty charges or interest on debt comprised of those penalty charges so the order of the court has the effect of favoring a powerful and well-resourced institution and does not place any restriction on their continued application of penalties which the Claimant contends are unlawful or certainly in legal dispute. Additionally, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. The Claimant will remain at risk of such action despite the fact that the remedy has been placed on an indeterminate hold.

 

Additionally, the defendant remains at liberty to enter the Claimant’s 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 are not required to obtain a County Court judgment before they enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were the Claimants name to be entered on the default register it would be almost impossible to obtain credit or a mortgage and the Claimant would have to pay higher fees for any credit actually obtained.

 

It is submitted that a stay may potentially mean great difficulty for the Claimant and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy, which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

 

 

THE STATUS QUO

A stay does not maintain the status quo. As submitted above, a stay favors the defendant bank by preventing the claimant’s pursuit of a legitimate remedy without placing any restriction upon the banks activities which the claimant submits 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 the Claimant submits that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to the Claimants rights in a way which is unfair and inequitable.

 

 

 

THE OFT AND ITS POWERS UNDER THE UNFAIR TERMS IN CONSUMER CONTRACT REGS 1999

The Unfair Terms in Consumer Contracts Regulations 1999 gives the power to the Office of Fair Trading to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

The OFT conducted a 2-year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks.

The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by the Claimant in the instant case. The Claimant should not however be deprived of the right to seek redress whilst this protracted legal battle continues.

 

IN THE ALTERNATIVE

If the court decides not to accede to the Claimants request to remove the stay then the Claimant respectfully requests that the court issues the following injunctions:

• That the defendant bank is prevented from applying further penalty charges to the Claimants account until the final settlement of the matter.

• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter

• That the defendant is prevented from closing the Claimant’s account.

• 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.

• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges.

• 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.

• That these injunctions remain in place until the settlement of the Claimant’s case.

• That should the Claimant’s case proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent

• 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, the Claimant, believe all facts stated to be true.

 

 

Millie - No Nappies

August 2007

 

 

 

Claim Number – *********"

 

Nice letter i thought, personally love the bit at the end..

 

M-N-N

[muggins73]

Okey-doekey, pretty standard then.

 

As zootscoot has so kindly obliged, have a look at the bundle for stay hearings given below:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/114505-bundle-stay-hearing.html

 

Itmay mean a lot of work initially, but it's certainly worth being prepared.

 

Keep trying to get hold of the court, failing that, and as a back up plan, write to them advising them that you cant make the hearing.

 

Let us know how you get on.

[millie no nappies]

Hi,

 

Can anyone help, i am just illing out my witness statement in support of application to lift order of stay.

 

Where do i get the OFT's particulars of claim?

 

M-N-N.

[millie no nappies]

And another thing....

Where do i get sample lists of settled claims ??

 

M-N-N.

[zootscoot]

List of settled cases:

 

http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=138&Itemid=82

[zootscoot]

OFT POC are linked in the bundle for stay post here:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/114505-bundle-stay-hearing.html

[millie no nappies]

Thanks Zoot

[millie no nappies]

Hi,

 

Update---

 

I phoned the court, they told me to send them a letter asking to re-schedule hearing, enclosing evidence of my reason, i.e. holiday confirmation, which i have done.

 

I have just prepared my court bundle relating to the hearing, my witness statement and some supporting docs.

 

I am going to send this off tomorrow.

 

Thanks for the help,

 

Regards

 

M-N-N.

[millie no nappies]

Help... Need some more info..

 

How much of the human rights act do i need to print off and enclose, it looks massive !!

 

Are there particular extracts i could print..

 

Haven't sent off my stuff yet because i don't know what to do about this..

Any advice appreciated..

M-N-N

[zootscoot]

The most relevant parts are s.6 of the Human Rights Act and Article 6 of the Convention which is in one of the Schedules

[millie no nappies]

Thanx again Zoot

M-N-N

[millie no nappies]

Hi everyone,

 

Recieved this today:

 

IT IS ORDERED THAT

 

The hearing listed on Thursday 4 October 2007 is vacated and will be re-listed on a date to be advised before His Honour Judge MacDuff QC together with other applications to lift the stay.

 

My original hearing was before District Judge Cooke and had been scheduled for 20 mins on it's own.

 

Any ideas what it means ??

 

M-N-N.

[zootscoot]

It means you've had a very lucky escape! DJ Cooke is the notorious judge who has held that charges are lawful.

 

You will get a date through for a hearing to lift the stay which will be decided along with other peoples' claims to lift the stay.

[millie no nappies]

Hi

 

Received letter today:-

 

"TAKE NOTICE that the hearing will take place on

 

4 December 2007 at 10:30 AM

 

at Birmingham County Court, Civil Justice Centre

 

before His Honour Judge MacDuff QC

 

When you should attend

 

30 MINUTES has been allowed for the hearing."

 

They don't give much away with these letters do they, the previous letter i had implied that this would be a joint hearing with others applying for lift of stays, 30 minutes seems like a long time if i am on my own !! getting scared now.

 

M-N-N

[peep]

Hey M-N-N

 

do you have any updates as to how things went?