The Hamster v RBS Stockport CC - Application for removal of stay.**Lost**

[Kurt_Hamster]

Well I just got back from the hearing. The judge ruled against the removal of the stay, so I'm stuck with the stay until final judgement of the OFT case.

 

Apparently the judge was not concerned with the Human Rights Act for a speedy trial as on the grounds argued by the counsel for the defence which were...

 

The threshold for a breach of Article 6 through unreasonable delay is high. In Dyer v Watson [2002] UKPC D1, Lord Bingham stated:

In any case in which it is said that the reasonable time requirement [in Article 6] … has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed

The judge was only concerned with how my particular circumstances made my case unique enough to warrant overturning the stay. "Financial hardship" held no sway with the continued charges being made against my account as she put it "because you aren't actually paying them". Neither did health problem.

 

I'll post the skeleton submissions made by the defence in the message after this one. But basically if you wish to attempt to overturn the stay you are going to have to demonstrate that

1. Your case is different enough from the rest of claimants in cases like these.
   
2. You can demonstrate that there are similar case where the stay has been overturned for similar reasons to those which you are claiming.

I wasn't able to do either.

 

On the bright side though I did manage to get the RBS to make an undertaking that my name won't be referred to the credit reference agencies or any defaults filed against me for this account.

 

Actually the stress of the hearing was worth it to see the face of the counsel for the defence when, after saying in his skeleton submission that the RBS had no intention of filing a default against me, I presented a letter from the RBS threatening me with an intention to file a default against me. His jaw almost hit the floor and he blushed furiously when the judge sternly asked him what was meant by this

[Kurt_Hamster]

IN THE STOCKPORT COUNTY COURT

 

 

Claim No 7SK*****

 

 

B E T W E E N:

 

KURT HAMSTER

Claimant

and

 

THE ROYAL BANK OF SCOTLAND PLC

Defendant

 

 

_____________________________________________________

 

 

SKELETON SUBMISSIONS OF THE DEFENDANT

 

FOR THE HEARING ON 13 SEPTEMBER 2007

 

_____________________________________________________

 

1.On 13 April 2007, the Claimant (Mr Hamster) issued a claim for the repayment of £1,888.71 in unauthorised overdraft charges from the Defendant (‘RBS’). He claims that those charges are unfair under the Unfair Terms in Consumer Contracts Regulations 1999 and/or are a penalty.

 

2.On 15 August 2007 District Judge Clegg ordered that Mr Hamster's claim be stayed pending the outcome of Office of Fair Trading v Abbey National & Others (2007 Folio 1186) (‘The Test Case’).

 

3.On 21 August 2007 Mr Hamster applied for that stay to be lifted.

 

4.These are the skeleton submissions of RBS, in opposition to that application

 

Summary

 

5.It is respectfully submitted that the court should not make the orders sought by Mr Hamster. The stay should continue, pending the outcome of the Test Case, which will be binding on this court. Further, no injunctions should be made. The stay ensures that Mr Hamster’s claim is dealt with in the most orderly, proportionate and just manner. It does not prejudice his position.

 

The basis for a stay

 

The Test Case

 

6.Following a large number of complaints against banks in relation to unauthorised overdraft charges, the Office of Fair Trading (‘The OFT’) launched an investigation into the fairness of those charges.

 

7.On 27 July 2007 the OFT commenced proceedings in the Commercial Court, under CPR Part 7, against eight banks. The Test Case was commenced following two agreements (‘The Agreements’) between the OFT, the eight banks, and the Financial Services Authority (‘The FSA’).

 

8.The Test Case will lead to the Commercial Court ruling on various issues concerning the applicability of the Unfair Terms in Consumer Contracts Regulations 1999 to each of the eight banks’ current account agreements and charges.

 

Conduct of the Test Case

 

9.On 31 July 2007 David Steel J ordered that the trial of the Test Case be expedited. A Case Management Conference will be held on 12 October 2007, and the trial has been listed for 14 January 2008, with a time estimate of 8 days.

 

10.The FSA and the OFT have decided not to progress complaints about unauthorised overdraft charges until the outcome of the Test Case is known.

 

The stay of individual claims

 

11.In the Agreements, the OFT recognised that stays of the individual claims against the eight banks were desirable. Paragraph 1.6 provides:

 

The OFT recognises the desirability of achieving a fair and orderly resolution of the relevant issues and will not object to any request or application for a stay of other court proceedings between RBSs and their customers concerning the Relevant Terms and/or Relevant Charges.

 

12.In an email of 27 July 2007 to the Designated Civil Judges, Moore-Bick LJ, the Deputy Head of Civil Justice stated that he would be surprised if a stay, pending the outcome of the Test Case, did not commend itself in most of the individual cases.

 

13.As the court is no doubt aware, County and Mercantile Courts have now stayed the majority of individual claims, pending the outcome of the Test Case.

 

14.As in almost all unauthorised overdraft charge claims, the legal issues that will fall to be determined in this case are the same as those that will be determined by the Commercial Court in the Test Case. It is in the best interests of justice that the individual claims are stayed until the outcome of the Test Case. This allows a specialist court – following submissions from the OFT and the various banks – to determine the issues.

 

No special grounds for the stay to be lifted in this case

 

15.Mr Hamster has not adduced any evidence, or given any reason, that properly distinguishes his case from the majority of other unauthorised overdraft charge claims. He does not allege that the stay itself will cause him any special detriment. In the evidence in support of his application, he claims that the stay should be lifted because it:

 

15.1.infringes his rights under Article 6 of the European Convention on Human Rights, because it will prevent his claim being determined within a reasonable time;

 

15.2.is contrary to the overriding objective, because it is disproportionate to the sums involved;

 

15.3.favours the bank;

 

15.4.was made ex parte and was therefore ‘carried out in an inappropriate and biased manner.’

 

In fact, a stay is in accordance with the overriding objective and Article 6, and is in the best interests of justice.

 

No breach of Article 6 ECHR

 

16.The threshold for a breach of Article 6 through unreasonable delay is high. In Dyer v Watson [2002] UKPC D1, Lord Bingham stated:

 

In any case in which it is said that the reasonable time requirement [in Article 6] … has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed.

 

17. Mr Hamster’s claim does not meet this threshold. There is every likelihood that Test Case, and Mr Hamster’s claim, will be finally determined within a reasonable time of the issue of his claim (13 April 2007). The trial of the Test Case will be conducted in January 2008, and it was a term of the Agreements that any appeals would be conducted expeditiously

 

Overriding objective favours the stay

 

18.As in the vast majority of individual unauthorised overdraft claims, the overriding objective favours the continuation of the stay of Mr Hamster’s claim.

 

Proportionality

 

19.His claim may only be for a relatively small sum, but its determination will require the court to decide upon complex legal issues. As stated above, those issues are exactly the same as fall to be determined in the Test Case.

 

20.The preparation and hearing of the arguments on the legal issues for Mr Hamster’s claim would require extensive preparation and considerable judicial time. This would arguably be disproportionate to the amount claimed by Mr Hamster. The Test Case offers the most efficient and proportionate means to resolve those complex legal issues in an expeditious manner.

 

Equality of arms

 

21.In the Test Case, counsel for the OFT will put forward the complex legal arguments that Mr Hamster would otherwise have to make in this case. Therefore, contrary to Mr Hamster’s argument, the Test Case will ensure equality of arms between him and RBS.

 

Inconsistent judgments

 

22.The continuation of the stay minimises the risk of inconsistent judgments. If a different decision were reached in this case to the Test Case there would be probably be an appeal. This would unnecessarily increase the costs of Mr Hamster’s claim.

 

Other issues

 

23.The lack of any evidence of substantial prejudice caused by the stay shows that Mr Hamster’s application is premature, if not ill founded. Should the situation change while awaiting the outcome of the Test Case it will be open to either party to apply for the stay to be lifted, or for injunctions to be imposed, on the basis of concrete facts.

 

24.In the meantime, Mr Hamster is protected from any prejudice by his claim for interest. He will also be able to seek to amend his claim, or bring further claims, for any further charges that may be imposed on his account.

 

25.In previous correspondence Hamster has referred to s.187 of the Social Security Administration Act 1992. This is neither relevant to the issue of a stay, or this claim as a whole. It concerns the assignment or charging of certain benefits.

 

The stay should not be subject to injunctions

 

26. Mr Hamster seeks, in the alternative, for the court to continue the stay, but subject to injunctions in relation to (a) further penalty charges on his account; (b) the closure of his account; and © adverse credit references. It is submitted that the tests for making those injunctions are not met in this case.

 

26.1.There is no evidence that a money remedy would be inadequate; any further unauthorised overdraft charge related losses by Mr Hamster should be capable of financial assessment.

 

26.2.The status quo is that RBS is entitled to take various actions, and levy charges, subject to the terms and conditions of the account. It is this position that should be preserved, and not altered by the making of the proposed injunctions.

 

26.3. Mr Hamster has not offered an undertaking to pay any further unauthorised overdraft charges, and any other damage suffered by RBS, if he were to obtain the injunctions and RBS were to win the Test Case.

 

26.4.In relation to the account closure injunction: Mr Hamster has not adduced any evidence to suggest that his account might be closed. Nor has he identified a cause of action that prevents RBS from doing so upon reasonable notice.

 

26.5. In relation to the adverse credit reference injunctions: Mr Hamster has not adduced any evidence to show that there are already adverse credit entries against him, or that any are likely to be made in future. He claims only that RBS remains ‘at liberty’ to make such entries. But if RBS made such a reference, in relation to the disputed charges, it would arguably be in breach of the Banking Code. This is the one that dropped him and the RBS in the s**t

 

27. In relation to the injunctions generally, RBS is already adhering to requirements placed on it by the FSA, the OFT and the Financial Ombudsman Service. None of those bodies, at present, regard it as necessary to impose, or seek to impose, any restrictions on RBS in relation to standard unauthorised overdraft claims.

[Castlebest]

Nicely done Kurt and thanks for the defence document

 

pete

[Kurt_Hamster]

Oh I forgot to mention.

 

The judge noticed and passed comment about the arguments against the stay as supplied with the N244 app. She asked if it was all my own work or had downloaded it from the net. It was actually partly the document from here and partly my own work. Although she didn't pass any negative comment the look on her face was that I'd lost points for doing so.

 

My hearing was given 20 minutes. Even though it ran over by 10 mins due to the defendant having to phone the bank because of the default letter it's very little time to get any salient arguments across.

 

My suggestion is that one doesn't rely or even argue much about the Human Rights issue, it barely came up at mine, as they aren't interested in how long the case might take. Focus on how your case is different from everyone else's. Do your best to find evidence of previous cases that have overturned this "OFT stay". If you have any financial hardship spend time documenting exactly how this stay is going to make things worse for you. If it's health issues you will need to prove exactly how the stay will exacerbate them.

 

Do all this in your initial application, do not wait until the hearing to bring it forward. The judge in my case wasn't really interested in any additional arguments beyond what was in my application. In the hearing you can make clarifications, but not bring any new points forward that you haven't mentioned in your application.

 

I received the defence document from Cobbetts via email the night before the hearing, so don't expect plenty of warning from the defendant as to what their defence is going to be.

 

Oh yes... speak fast

[jansus]

Well done for presenting your case and for this very useful and informative posting - the document explains things very well and the date for the case conference is interesting. This helps to explain why the stays are so difficult to lift and means that individuals should not feel bad if they dont succeed with the appeals.

 

A very good report.

 

I will pass on to others on the A&L forum

 

Jan

[pt2537]

Hello Kurt

 

i was in the same position as you but i had a barrister in my corner (My tutor as im a law student) and we couldnt get the stay overturned either

 

i agree that the Human Rights arguement is not the way to go as i tried that and even with te arguements we presented it was no use

 

Still at least you tried thats the main thing

 

we will just have to wait for some movement on the OFT case before our claims will be sorted out i suppose

 

 

regards

paul

[MartyR]

At my hearing today to attempt to set-aside the stay, I had a Carlisle/Carlyle v Clydesdale Bank case quoted at me, which the DJ and defendant barrister maintained blew most of my arguments out of the water! It is a Mecantile Court authority allegedly. Does anyone know this case which i think is quite recent. I would like to read it to be sure that it really does blow my case away. Only wish I had known about it before the hearing (which was for 5 mins so hardly time to say "let me have a look at that"!)

 

Thanks

 

Marty