What happened in Preston County Court today!!

[jowalshy]

Have you received anything from your court regarding a stay on your claim? If Lloyds solicitors are just applying for the stay you could probably object to the application. Here is an application thing a good old friend of mine (plus I think that a MOD did most of the work) did:-

 

Anyone using this should read it through and amend details to suit their individual case! DO NOT JUST COPY AND PASTE IT!

 

 

 

 

 

Claim Number:XXXXXXX

 

 

In the XXXXXXXX County Court

Between:

[YOU]

Claimant

-and-

XXXXXXX BANK PLC

Defendant

_________________________ _________________

OBJECTION TO APPLICATION FOR ORDER OF STAY

_________________________ _________________

1. I, [you], the claimant and applicant, of [address] make the following Statement as my objection to an application for an order of stay to the above claim dated

[date of stay application].

2. I understand that a stay has been applied for on my case to await the final determination of the proceedings recently issued at the Commercial Court involving the Office of Fair Trading and Abbey National Limited and others, claim number 2007 Folio 1186 ("The OFT Test Case"), where it is said that the issues raised will affect this claim.

3. I object to the application for an order of stay and submit that there is good reason why my case should be allowed to proceed to trial in advance of the final determination of the OFT case. The grounds for such objections are set out as follows.

Human rights

4. The stay

would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

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

5. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable, even indeed probable that final resolution may not be reached for 2 – 4 years or perhaps even longer. It is thus submitted that the time of the final determination of the test case cannot be predicted and so the stay would be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

Blanket Stays

6. I would respectfully draw the courts attention to the Master of the Rolls decision that all outstanding bank charges cases should not be automatically stayed. My understanding is that the Deputy Head of Civil Justice has written to all designated Civil Judges, inviting them to consider staying outstanding claims on an individual case by case basis as appropriate.

7. I therefore object that this stay has seemingly been imposed indiscriminately without regard for or consideration of any individual factors which may distinguish it from other similar cases or indeed the fundamental issues of the OFT test case itself.

8. Accordingly, I would urge the court to reject the indiscriminate blanket staying of claims as is seemingly being sought by the defendant in this and other similar claims by way of its generic template letters.

Distinguishing Factors

9. 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."

10. 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.

11. 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 [2001] 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.

12. 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.

Hardship Issues

Add any specific hardship circumstances here, with any evidence in support. Include details of any benefits, unemployment, how much the bank are repeatedly taking each month, etc, etc. If there are no such issues in your case, then remove.

Balance of convenience

13. The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, 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. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

14. Additionally, the defendant remains at liberty to enter my 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 damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

15. It is submitted that a stay may potentially mean great difficulty for me 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.

Defendants Notorious Conduct

16. At least 300 claims have been brought against the defendant this year involving similar issues. This is evidenced by a sample list of settled claims, which is attached. Despite flatly denying its customers complaint in the preliminary stages then subsequently always indicating an intention to defend, then filing a defence, then an allocation questionnaire, then breaching any directions, the defendant has compromised each and every such claim in advance of the hearing, usually following unnecessary and protracted litigation. The defendant purports to settle these claims without liability for ‘costs’ or ‘commercial’ reasons, yet for example on many occasions previously, as the court may already be aware, it has gone to the expense of setting aside default judgments only to settle the claim shortly after. The defendant continues to spuriously defend claims only to subsequently settle them, flagrantly breaching multiple court orders and provisions of the CPR as it does so. Many County Courts now consider the litigation tactics employed by banks in these cases as an abuse of court process and are regularly striking out their defences as a result.

17. The present case has now been ongoing for X months, during which time the defendant has attempted to prevaricate and frustrate justice at every opportunity. 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.

The Overriding Objective

18. The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this 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,

would not be just, nor would it be expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

The Status Quo

19. The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

20. Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

Conditional Orders

21. In view of the preceding paragraphs, if the court does not accede to this

objection and allows the stay, I respectfully request that the stay remains subject to the following orders: That the defendant bank is prevented from applying further penalty charges to my 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 my 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. (The Court has the power to do this under the Data Protection Act 199

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.)

That these injunctions remain in place until the settlement of my claim.

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.

That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

22. I, the Claimant and applicant, believe all facts stated to be true.

 

Signed:

 

 

Dated:

[jowalshy]

also here is some useful info (that I copied from a MOD - hope he doesn't mind)

 

If you wait until the stay is in place you have to do a formal application which will cost £35 or £65 with hearing. If you make your objections known to the court before a stay is granted. It is more likely to go to a hearing rather than be simply stayed without any representations from the claimant. Also the bank will foot the bill for the application. So best to send it off before.

[jowalshy]

Good luck.