Please Help Court hearing on Tuesday HBOS (Scotland)

[rodeo]

Any help would much be appreciated.

 

I attended a preliminary hearing on the 9th August 2007 to which I wasn't surprised to see banks lawyer apply for a stay due to the OFT test case. Luckily the Judge didn't go for this and instead gave the go ahead to have this case saw this Tuesday 16th.

 

I was thinking HBOS might have settled by now but the only contact I've had is a letter from there solicitors yesterday asking me to call them to confirm my intentions.

 

I can basically deduce from this that I will have to appear in court.

 

The judge at the preliminary hearing told me I would have to bring forward a legal argument if I was to stand any chance of winning my case. This is the bit I'm worried about.

 

It would be a massive help if anyone has any pointers on what I'm best saying to win my case as I'm pretty sure I'll get cross examined on my knowledge of the law I'm reclaiming the bank charges against.

 

I'm taking them to court under the Unfair Contractual terms in Consumer Regulations 1999 and Unfair Contract Terms Act 1977.

 

Thanks in advance Stephen

[rory32]

Hi Stephen and welcome to CAG. What did you put in your particulars of claim?

[rodeo]

hi

 

I basically used a template from this website. Niot sure what to write so here's thw whole thing.

 

The claimant, *****, has held a bank account with the defendant since November 1997 the account being ******* of money in penalty charges during the period 27th November 2002 to 14th June 2006. These were in respect of 'Charges as notified (levied if a cheque or direct debit payment was returned unpaid because the specified overdraft limit had been exceeded).

The claimant contends that these charges were legally unenforceable and the claimant is demanding the repayment of money. The Defender has refused full payment of these monies due. (copies of correspondence can be provided).

No admissions are made by the claimant as to the incorporation of any term into the contract between the claimant and the defendant purporting to entitle the defendant to levy these charges. If the defendant is able to establish that the contract did contain such terms, the claimant will contend that these charges are unenforceable at law, being penalty charges designed to penalise the claimant for a breach of contract and generate profile for the defendant rather than being liquidated damages designed to compensate the defendant for the actual loss occurring to the defendant as a result of the breach.

The claimant claims from the defendant a sum equivalent to the amount unlawfully debited to the claimant's account in the period 27th November 2002 to 14th June 2006. The sums are detailed in the attached schedule.

The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contractual Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

The Defender has a branch in Cumbernauld therefore it is under the juristiction of this court.

 

Hope that helps

[rory32]

If you download the file here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html it will give you Unfair Contractual Terms in Consumer Contracts Regulations and the Unfair Contract Terms Act.

[rory32]

Also if you've got a copy of the t&c's you should take those with you.

[rodeo]

yeh thanks for info...

 

i did try and get a copy of the terms and conditions but possibly due to the postal strikes it never arrived.

 

i'm now just wondering what other proof i can take with me to avoid loosing or at least have the case thrown out.

 

thanks S

[rory32]

Well you can take copies of the Acts that you wish to rely on. Remember to argue that the charges are for a breach of contract. If you post in the Halifax forum someone may be able to e-mail you a copy of some t&c's.

[rodeo]

i managed to find a few terms and conditions for the Halifax (2002 onwards). I assume that since the merger of the two banks took place in 2001 this T&C would be valid for my claim.

 

Can anyone clarify this as I seem to remember my T&C always saying its the bank of scotland with no mention of the halifax back then.

Cheers

[Michael23]

How did you get on at court? Any update?

 

 

I'm at court for the same thing on Monday.

[rodeo]

hi thanks for reply...

 

I turned up with a copy of the terms and conditions that i downloaded from a thread on here to use as evidence.

 

Because I didn't present this two weeks prior to the hearing HBOS applied for a sist to allow them to review the document. The judge favoured this decision and so a sist was granted.

 

My overall experience was that the Judge probably wanted a sist anyway to allow the test case to make the decision.

 

It seems if I apply for the sist to be removed submit the terms and conditions I would get a new court date round about january. This means I'm probably best just to wait till the test case.

[nmcnelis]

Hi. Could you possibly post the link to the t & c's you used?

 

I'm at court on Monday after managing to oppose a sist a fortnight ago. I've printed off the court bundle but any other advice would also be appreciated.

 

Cheers.

[rodeo]

here you go and good luck...

 

Document Library - WORK IN PROGRESS

[rodeo]

OK TRY AGAIN -

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/107915-terms-conditions.html?highlight=terms+conditions

[rodeo]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/101412-document-library-work-progress.html