Stay Hearing

[melsteph]

I'm sure I'm being a bit thick but have been going through as many relevant threads to stay hearings and can't find any arguments relevent to my case. The judge has ordered the stay it was not requested by DG Solicitors although they informed me that they intended to apply. Can I still use the arguments regarding CPR 3.3 and 3.9 in this instance? If it is helpful to gain advice I will copy details of order to have relevent info. In the letter I submitted regarding appeal against stay I included witness statement OFT particulars and a sample of claims.:?

[melsteph]

I have also seen some reference to the london case what is this and how would I be able to get a copy?

Thanks for help and support only got 1 day before court hearing.

[Audreygreeneyes]

mel were you give any directions? had you been given a court date? had DG missed any court deadlines?............

 

I have some arguements for those 2 sections but it depends on the answers to the questions I have just asked............

 

I think I knwo the case you are on about and it is only relevant if there is clear proof of "abuse of process" I need the sanwers before I know if oyu would be able to use it................

 

Auders

[melsteph]

original court date was for small claims track hearing. I needed to have court bundle in by 6th sept (which i did) DG should have sent theirs in by 20th Sept (they did not). on the 22nd sept applied for judgement (no response), on the 26th sept had general form of judgement or order.

 

"Before district judge etc......

 

Upon reading the court file

It is ordered that appearing that the proceedings have been bought by OFT etc......

And upon this case having been listed for a hearing eith a time estimate which ios clearly insufficient fo the case to be heard

And upon the parties having had no opportunity to make representations with regard to the question of a stay

It is ordered that

1. The claim is stayed until further order to await the final determination including ( for the avoiodance of doubt) any appeal of the test case.

2. Either party mey apply upon not less than 7 days written notice to lift the stay.

3. This claim shall be struck out at 4pm on 31st December 2008 unless by then an application to lift or extend the stay has been recieved by the court.

4. This order will come into effect at 4pm on 8th Oct unless by then the court has recieved written representations from any party seeking that the claim proceed to trial.

5. any such representations must be copied to the other party.

6. If any such representations are made the issue of a stay will be further considered at the listed hearing.

I sent my witness statement in support of application to lift order of stay to courts and DG on 27th September.

Have not had any correspondance but called courts yesterday and was told my case was still listed for thursday.

 

Is this the info you need or do you want my original dirrections as well?

 

thanks;)

[melsteph]

The original directions for claim. Hearing date 11/10/07 11.00am

1. This case is one of a number listed at the same time. Both parties must be ready for trial at that time. Depending on the number of cases proceeding on that date, the judge will give directions as to the order in which they will be heard, which may involve grouping cases raising similar issues and/or adjourning some cases to a later date.

2. The claimant shall by the 6th September send to the defendant and to the court:-

a. A schedule setting out each charge the claimant seeks to recover showing the date, amount and reason give (if any) for that charge being made.

b. A secure bundle of copy bank statements or other documents relied upon as showing that each and every charge has been made, with each page numbered.

c. A statement of evidence of all matters relied upon as showing that the charges are irrecoverable as penalties or otherwise.

d. Copies of decided cases and other legal material to be relied upon.

In default the claim shall stand struck out without further order.

3. The defe4ndant shall by the 20th september send to the claimant and to the court a response to the claimants 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 a charge is accepted to be a penalty, and if not why not.

c. If such a charge is alleged to be a pre-estimate of the defendants loss incurred by the claimants 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 defendants loss incurred by the claimants actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculatted 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.

In default, the defence shall stand struck out without further order and the claimant may obtain judgement with costs by filling a request for judgement.

4. The parties must notify the courts forthwith if there are any issues of law or fact which may affect the track or time estimate for the hearing. any such issues must be clearly and fully defined.

5. The court must be informed immediately if the case is settled by agreement before the hearing date.

6. setting aside etc order of courts own motion

Any party affected by this order may apply to the court to have it set aside, varied or stayed. Such application must be made in accordance with CPR Part 23 within 7 days of service of this order.

Date: 13th August 2007.

I think this is now a very full overview of my case.

[melsteph]

in light of the unfortunate events today with AGE I understand she feels unable to give advice although I am sure it was awkward judge not her advice but please could someone look at my case as I now feel completely unarmed for my hearing tomorrow morning. Thank you

[Penfold92]

in light of the unfortunate events today with AGE I understand she feels unable to give advice although I am sure it was awkward judge not her advice but please could someone look at my case as I now feel completely unarmed for my hearing tomorrow morning. Thank you

 

I fully appreciate what you are saying, but you will not be unarmed. If you have done the bundle and understood its contents then you are already partly there. You have the issue that you followed directions the they did not. This is a major plus on your side. Did you prepare the "objections to a stay" letters? See Zootscoots mail on this in the bank Letters templates. This should be a start.

 

Unfortunately in the current climate be prepared for a stay and then having to appeal it...By the way have you still got the HSBC account and are they still pursuing you? Or have you a default or any other proof HSBC are pursuing you for anything?

 

Penfold

[melsteph]

my hearing tomorrow is to appeal against the stay that has ben placed by the court, I am pursueing for 2 accounts both of which are still active and currently in agreed overdraft limit. I have drafted witness statement of which i have already sent copies to both court and DG.

[Penfold92]

my hearing tomorrow is to appeal against the stay that has ben placed by the court, I am pursueing for 2 accounts both of which are still active and currently in agreed overdraft limit. I have drafted witness statement of which i have already sent copies to both court and DG.

 

Have you done this:

 

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

 

This is the core, but you must be ready for what DG may come up with and the best thing you can do right now is read Auds, Castlebest etc's posts and see what the judge and DG came up and be fluent and ready. Luckily I have a telephone hearing so I will have everything laid out and hopefully will be able to make sense...

 

Who knows,

 

Penfold

[Penfold92]

Read up about the CPR's in particular as your main arguement is in there... DG have breached the Courts specific directions (according to what you wrote above) this is perhalps your key and trump card. Save it for last...

 

Penfold

[melsteph]

I have done a copy of the stay bundle but havent sent one to either courts or DG

should i take copies for them tomorrow?

Am i right that I am unable to use CPR 3.3 (5) and 3.9 as the courts have applied the stay not HSBC.

Leaving me only with my arguement being that I requested judgement on 22nd September due to the defendant not issueing their court bundle by the 20th September as dirrected by the court. The order for stay was dated 26th September?

[pinkduchess]

best of luck for tomorrow!!

[melsteph]

I think I will need luck head spinning don't know what Im ging to hacve to face and just need to hope can argue my case once their as am having difficulty relating anybody elses advice to my particular case. One just never knows what could happen on the day am just going to make over-riding objection being that judgement should have already been granted prior to stay being imposed.

[pinkduchess]

its late mel...you should get a good nights sleep, what time are you in court?

 

Edit: I see its at 11am....fingers crossed for you

[jowalshy]

Good luck for today melsteph. Before you go have a quick skim through your paperwork to refresh your mind.

 

Best of luck.. .

[melsteph]

Thank you, am starting to read through documents again. I still havent presented any docs to court or DG I just sent Witness statement to support application to lift order of stay, OFT's particulars of claim and settled cases sample. Would I need to take with me a copy for court and DG of other docs in my bundle ie. Human rights act 1998, CPR Part 1 & 3, BBC transcript OFT may compromise on bank case. In which case should i number and index them as I did with original court bundle?

[jowalshy]

I would take a copy for DG and a copy for the judge. Also do the numbering thing and index page.

[jowalshy]

Good luck. My fingers and everything else will be crossed for you.

[melsteph]

thanks again will keep informed I feel that it all depends on the judges view before we even get their though. will let everyone know what happens once I'm back.

[freakyleaky]

Good luck steph! As you say it really does depend on the Judges view so lets hope yours has some backbone and common sense!

Loads of luck!

[Penfold92]

Hi Steph,

 

How did it go?

 

Penfold

[melsteph]

The stay remains in place, but I do have to say that all in all was not that bad an outcome.

The solicitor from Dg approached as soon as he heard I was there to inform me he was going to apply for a stay in this claim. When I asked why he looked really happy and proceeded to inform me about OFT test case. I pointed out I knew all of this but a stay had already been imposed by the court it self 3 days ago and that I was present to appeal this stay, I can only say Gobsmaked!!!!!!

We went into chambers Judge very nice went through appeal etc. I then pointed out that as I entered Judgement 4 days before notice of stay due to the defendant not following dirrections of order that I felt the stay unfair and should be lifted to allow Judgement by default.

This is where it went wrong the request for judgement I had already submitted was the incorrect format as it covered no initial defence not compliance with court order, because of this no judgement could be granted, and the stay could not be lifted on these grounds.

A quick heads up though DG are basing arguements for a stay to remain in place on four cases that had gone to appeal at canterbry court on 28th September 2 lloyds, 1 barclays and i think abbey where the judge through out all appeals on varying grounds.

The judge asked why they had not sent a response to my schedule the excuse was with the OFT case being the same as all single cases would not of had time to collect information. got a bit of a tell of about flaunting orders with out notification to court.

Sorry its a bit gloomy but still earning the intrest daily

[Castlebest]

No Steph you did well

 

pete

[pinkduchess]

well done - you did your best

[jowalshy]

Well done melsteph. You did well, and as you have said, the interest is still accruing.