hsbc judgement trying to get overturned HELP NEEDED PLEASE

[Castlebest]

[kashfat]

thaks for that, il give it a go and see what they say. just out of interest, anyone else going thru this situation?? id like to hear from them.

[freakyleaky]

There are not many in the same situation that I know of now but there are a few that have had judgement set aside. That letter above is the best response to this that I can find.

Let us know how you get on.

 

 

.

[kashfat]

Hi guys, sent my letter off today to HSBC, thanks for that freaky. Il let you know the response.

[freakyleaky]

Good luck Kash!

[rockinrodders]

I got a judgement by default against HSBC back on 9th October for them failing to return their documents. They pulled the same cr@p saying they hadn't received documents etc, although again I sent them reminders by recorded post with copies of all the court documents that were sent to me.

 

I filed the warrant of execution straight away but the court was so slow actioning it that the bank had applied for the set aside before they did anything.

 

The court has now made a set-aside hearing for February. Thats as good as a stay anyway so I don't see the point.

 

If the court was more efficient I would have won this months ago, but becasue of their incompetence it has dragged on and on allowing hsbc more and more time to use their delaying tactics and return their documents late etc.

 

 

For example, the original AQ return date was 6th August, HSBC didnt respond so the court waited a month then gave them a 2 week extension till the 16th September. On the 17th I took my judgement request to the court as per their instructions. But the judgement was not actioned until 9th October over 3 weeks later, again giving HSBC another 3 weeks to drag their butts to the post office to send their set-aside objection.

 

Funnily enough their set-aside application was actioned within a day.

[freakyleaky]

"If the court was more efficient I would have won this months ago, but because of their incompetence it has dragged on and on allowing hsbc more and more time to use their delaying tactics and return their documents late etc."

 

As you can see form Kash's experience, even when the warrant is executed the the Banks seem to miraculously get away without having to pay up!

 

Stinks of conspiracy to me!

[freakyleaky]

Just updating this thread as Kashfat is having trouble posting on here. I have recived a pm from him telling me his hearing is due and he needs advice on what he needs to do in preparation for that.

The hearing is for set aside of judgment! (remember Domant's case anyone?)

 

I imagine they will be successful in having judgment set aside but maybe an idea to send the objection letter (post 288 on pete's thread).

 

Also the stay bundle Bundle for stay hearings

 

Any other thoughts people??? Jo, pete, Lat, Auders, Pd, Syds mum, jailbird and anyone else reading.

[Castlebest]

I think syd's mum's case was the same/similar and she won her court hearing.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/102662-hsbc-bank-charges-court.html?highlight=sids+mum

 

pete

[freakyleaky]

OMG how did I forget!

Thanks Pete. I will send her a PM and hopefully using the same as SM we may have some success this time.

It was domant that failed with exactly the same situation wasn't it?

 

Lets hope he has a decent judge!

[syds mum]

hi all i am here.... how indeed did you forget me freaky???:o

 

now then kash... first off... on what grounds did you get your judgement.. i think it was by default?? is this right?? did HSBC send you anything regarding judgement being set aside or have they just ingnored your judgement???

 

as regards to balliff going in.. if he just wondered into the branch they properley dont know anything about it as DGs handle all litigation and with the response they gave "will be resolved after test case" is a standard response to all enquires regarding reclaiming bank charges!!!

you have judgement and should be paid... DGs are using a pathatic arguement and you need to get all you arguements into judge before you go to court...when is the hearing have seen 3rd dec mentioned is this it??? gonna pm you as well as freaky says you having spot of trouble posting..

 

debbie xx

[syds mum]

just bumping... freaky what is the prob regarding kash posting on here??? i have had a pm and think it would be benifiacial if we could all see it...

 

debbie xx

[freakyleaky]

He is having a problem navigating the site. He has told me to post all the details on his thread and I am sure he won't mind if you do the same.

I agree that all should be able to see it!

[kashfat]

hi guys, iv been really ill, friggen viral infection. i had to ask the judge to delay the date. truthfully speaking i wasnt ready. Just waiting on the date. What annoys me is, What the frigg was the point of paying the bailliff fee if he hasnt even done his job. guys i need my argument set in place. Is there anyone that give me a defence???

[kashfat]

sorry debbie i had problems with my link, basically iv new to this.

[syds mum]

no probs kash... now then we need some more info on why DGs have requested the set aside!! that is what you will be arguing in court..( and the fact that baliffs have been in but to no avail)

 

first things first you need to tell me what they are using to argue their set aside...if you have had a look at mine you will see alot of copy and pasting of documents that i recieved from DGs... have a look and see if yours is the same!!! heres the link...

 

hsbc bank charges **WON in COURT post-OFT!!!**

its on page 7 post 122 (when you click this link it will take you to my thread look at the top of the page to the right in blue tells you the page numbers find 7 click on it... then scrool down till you find post 122... )

 

the CPRs they use in my case are totally wrong and dont relate to any of the arguments they used... this has been the case for quite a few on here but unfortunety peeps havn't got they response into court so judge can see it before case is hear and there lays the problem... the judge will make his mind up before you even go in so he needs to know everything that you plan to rely on!!! sounds daunting but i will give you as much support as poss....but i need more info!!!!

 

debbie xx

[syds mum]

bugger it my link wont work kash so i have copied my set aside request i got from DGs below have a read... is yours worded the same but diff dates???

 

 

Notice of Hearing of Application

To the Claimant's Solicitor

######################### ######

 

 

In the

Claim Number

Claimant (including ref.)

Defendant (including ref.)

Date

 

 

DERBY

County Court

7QZ76559

#####################

H S B C Bank Plc

05 September 2007

 

 

The hearing of the defendant's application for The Order of 16/8/07 To Be Set Aside (see copy attached) will take place at 14:00 on the 21 September 2007 at Derby County Court, Combined Court Centre, Morledge, Derby, DEI 2XE.

Cases are listed in accordance with local hearing arrangements determined by the Judiciary and implemented by court staff. Every effort is made to ensure that hearings start either at the time specified or as soon as possible thereafter. However, listing practices or other factors may mean that delay is unavoidable. Furthermore, in some instances a case may be released to another judge, possibly at a different court. Please contact the court for further information on the listing arrangements that may apply to your hearing.

Application Notice

 

 

Date

 

21 August 2007

 

Note You must complete Parts A and B, and Part C if applicable. Send any relevant fee and the completed application to the court with any draft order, witness statement or other evidence; and sufficient copies of these for service on each respondent

Part A

We(1) DG Solicitors

on behalf of the Defendant

 

intend to apply for an order (a draft of which is attached) that(2)

 

The Order dated 16 August 2007 (apparently issued on 17 August 2007) be set aside and the Defence be reinstated on the basis of CPR r3 J( 5) (setting aside order made of court's own motion) and/or CPR r3.9 (relief from sanctions) and/or CPR r3.1(2)(a) (extension of time) and/or CPR r3.1(7) (power to vary or revoke order);

 

 

(ii) The claim be stayed pending the final determination (including, for the avoidance of

doubt, any appeals) of the Commercial Court proceedings issued on 27 July 2007 between the OFT and the Defendant (and seven others) comprised in Claim No. 2007 Folio 1186 (the Test Case).

because(3)

(i) Insofar as the application is based on CPR r3.3(5) and/or CPR r3.9 and/or CPR r3.1(2)(a), the sanction of striking out the Defence for the Defendant's failure to provide certain particulars of its Defence within 28 days of receipt of a schedule and certain further information from the Claimant is disproportionate, particularly in light of the fact that (1) such particulars require extensive legal analysis and the application of those matters in each case to a range of charges, terms and conditions levied at various times, (2) the particulars of the legal analysis are, however, likely to be properly considered in due course in relation to the Test Case and the final determination of which Test Case is anticipated to be determinative of the substantive issues in the present proceedings; and (3) it would be appropriate in any event to stay the determination of the quantum issues pending the final determination of the Test Case, at which point it is anticipated that the particulars of the legal analysis would be available.

The Claimant is unlikely to suffer any prejudice from the proposed order since (1) the Defendant anticipates that, if the Defendant had complied with the Court's order to provide such particulars within the stipulated timeframe, such proceedings would have been stayed pending the final determination of the Test Case; (2) it is appropriate to stay the hearing of the quantum issues pending the final determination of the Test Case, and so the claim will not be concluded until that time in any event; (3) depending on the outcome of the Test Case, in the meantime the Claimants will be adequately protected from prejudice by the continuing accrual of interest. Conversely, the prejudice to the Defendant if the Order dated 16 August 2007 is not set aside is immediate and obvious.

The Defendant has acted promptly upon receipt of the Order striking out the Defence, which the Defendant believes it received on 20 August 2007. The Defendant further relies on the fact that the Order was issued on 17 August 2007, after the issue of proceedings in the Test Case.

Insofar as the application to set aside the Order dated 16 August 2007 is based on CPR 3.1 (7), the issue of proceedings in the Test Case amount to a material change of circumstance justifying the variation or revocation of the Order dated 16 August 2007.

(ii) The claim should be stayed pending the final determination of the Test Case because

(1) the issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for determination in the context of small claims;

(2) those issues of principle will be resolved by the Test Case, including a hearing of Preliminary Issues fixed for eight days in January 2008; the Preliminary Issues could not be finally determined any more swiftly via the County Courts in light of the time required for appeals;

(3) the Test Case represents the most efficient and proportionate means to resolve those issues in an expeditious fashion;

(4) a stay of the proceedings is consistent with the approach of the Financial Services Authority and the Financial Ombudsman Service, which has decided not to progress complaints about current account charges until the outcome of the Test Case is known;

(5) many other County Courts have taken the approach of staying equivalent cases in a context where a uniformity of approach across the country is desirable; and

it is a common practice for County Courts to stay proceedings pending binding and authoritative resolution of an issue (or issues) of principle by a higher court: see, for example, Wilson v. Robertsons (London) Ltd [2002] EWCA 622, paras 9 to 10 (per Chadwick LJ).

 

Part B

We wish to rely on:

 

 

the attached witness statement of #######dated 21 August 2007

 

my statement of case D

 

 

evidence in Part C overleaf in support of my application D

 

 

Signed

 

For D G Solicitors

Applicant's Solicitor

 

I, ######, of 12 Calthorpe Road, Edgbaston, Birmingham, B15 1QZ, WILL SAY:

1. I am a litigation executive employed by HSBC Holdings pIc and I have conduct of this matter on behalf of the Defendant. The in-house litigation department ofHSBC operates under the name of"DG Solicitors".

2. I am duly authorised by the Defendant to make this witness statement in support of the Defendant's application to set aside and/or provide relief from the Court's Order dated 16 August 2007 striking out the Defence ('the Strike Out Order'), pursuant to CPR r3.3(5) (setting aside an order made of the court's own initiative), CPR r3.9 (relief from sanctions) and/or CPR 3.1 (2)(a) (extension of time), and! or to vary or revoke the Strike Out Order under CPR 3.1 (7) on the basis that the issuing of proceedings in a test case in the Commercial Court between the OFT and the Defendant (and seven others)

(together, 'the Banks') constitutes a material change of circumstance since the Order was issued.

3. There is now shown to me marked "NW-1" a paginated bundle of documents to which I will refer (by page number) in this witness statement.

4. The claim is for £832.02 and anses out of bank charges levied by the Defendant on the Claimant's account between 2001 and 2007.

5. The Court gave directions for the conduct of the claim without a hearing by an order of its own motion dated 5 July 2007 ('the Directions Order') [NW-l, page 1]. The Directions Order provided that the Defendant must, within 28 days of receipt of a schedule and certain further information from the Claimant, file and serve a response to the schedule. On 27 July 2007, pursuant to an agreement with the Defendant, the OFT issued proceedings in the Commercial Court in a test case (the details of which I describe below). The Strike Out Order, dated 16 August 2007 (but apparently - from the date in the top right-hand comer of the Order - issued by the Court on or about 17 August 2007) [NW-l, page 2], was served on the Defendant. To the best of my knowledge, the Defendant received the Strike Out Order on 20 August 2007 (although the document is not date stamped), and accordingly insofar as this application is made under CPR 3.3(5), I believe this application to be compliant with CPR 3.3(6)(b). The Defendant has sought to make this application as soon as practicable.

The Directions Order and its effect

6. Paragraph 2 of the Directions Order required, in respect of each item claimed, the following details:

a. Pursuant to what contractual provision such charge was made, producing a copy o/the contractual document relied upon.

b. Whether such charge is accepted to be a penalty, and if not, why not.

c. If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is to be treated as a breach of the contract between the parties), all

facts and matters intended ta be relied upan as shawing that such is a praper estimate af such lass, and all evidence ta be adduced at trial as ta what the true cast af dealing with the matter was.

d. Any witness statements.

e. Capies af decided cases and ather legal materials ta be relied upan.

7. It may assist the Court in understanding the Defendant's failure to comply with the Directions Order to explain its effect. Despite its relative brevity and the apparent simplicity of paragraphs 3(a) to © thereof, the impact of this Directions Order is extremely onerous for the Defendant. The legal and factual issues raised, and to which the Directions Order requires answers within only 28 days of the Claimant's particularisation of the claim, are extremely complicated, and, I would respectfully submit, would be more appropriately dealt with in the test case referred to above. By way of example, those issues include such questions as:

(1) the identification of each of the relevant terms and conditions applied on the

account from time to time during the period for which the charges were levied;

(2) the identification of the relevant charges levied, the reason for levying

such charges, and any relevant steps taken by the Defendant in dealing with such charges;

(3) whether each type of charge and/or each term is in plain intelligible

language and relates to the main subject matter of the contract and accordingly is excluded from the assessment of fairness under the 1999 Regulations by reason of Regulation 6(2)(a) and/or (b);

(4) If a charge or term is not so excluded, whether the charge and/or term

is unfair under the 1999 Regulations, including whether when assessing fairness under the 1999 Regulations it is a necessary but not sufficient precondition that they be shown to be contrary to the requirement of good faith;

(5) the meaning of 'good faith' in this context;

(6) whether each type of charge and/or each term provides for

remuneration for services supplied by the Banks in exchange, rather than payment of a sum by the customer for breach of a contractual duty owed to the Banks, so as not to amount to a penalty at common law.

8. As an illustration of the complexity of the legal issues even when examined only in the abstract, the pending trial of the test case between the OFT and the Banks - which is focused on certain 'Preliminary Issues' including some of the issues listed at paragraphs 7(3), 7(4) an 7(6) above - has been listed for 8 days in the Commercial Court, with extensive written submissions.

9. However, this hearing will not address the complexities in applying the law.

The legal issues set out above are further complicated by the difficulties in applying these principles to the individual circumstances of a particular claim, for example, in light of the fluctuation in the charges, terms and conditions over time and the account history of the claimant.

10. These difficulties can be illustrated by reference to particular paragraphs of the Directions Order, set out above at paragraph 6 of this witness statement.

11. In respect of paragraph 3(a) of the Directions Order, while it would be possible for the Defendant to provide the terms and conditions and price lists of charges, it may be noted that these terms and conditions and prices have fluctuated over time, and differ as between the types of charges, and that the Court would be required to examine a large volume of documentation in each case, which would be of critical importance to its determinations.

12. In respect of paragraph 3(b) of the Directions Order, the Court orders the Defendant to state whether the charges are accepted to be penalty charges and, if not, why not. To the extent that the Claimant has asserted generally and in a conclusory manner, without analysis, that the charges breach the Regulations and are penalties at common law, the Defendant's response is based on a

complex analysis of the law, which involves some of the issues referred to at paragraph 7 of this statement. For example, the fundamental issues of whether the Regulations apply, and if they do apply, the proper construction of its components so as to identify whether there has been a breach depend on intricate points (turning again on the factual issues identified above) that, I would respectfully submit, cannot be conveniently summarised, nor summarily determined, as illustrated by the length and complexity of the test case proceedings.

13. As to paragraph 3© of the Directions Order, the Defendant's primary position is that the charges are not payable upon a breach of contract. If the Defendant's position is correct, then an analysis of this cost to the Defendant is unnecessary. Alternatively, if an analysis of such costs is required, that analysis involves an extremely complicated exercise. In particular, there are difficult legal questions about which categories of costs may be included in the assessment, and equally complicated factual questions as to what those costs include. Such an exercise requires an extensive auditing exercise which takes into account the general commercial context, the impact of the fact that the Defendant provides a suite of banking services free of charge, and the relevance of the individual claimant's account history. Of course, each of these matters has fluctuated over time, and the answers vary across different types of charges, terms and conditions (which have themselves varied over time).

14. Furthermore, the difficulty in complying with the Directions Order is multiplied by the large number of claims, and similar orders, which have been received by the Defendant.

The test case and Defendant's application

15. However, the Defendant (along with seven other financial institutions) has now agreed with the OFT that some of these issues will be resolved in a test case. The Defendant is now expending a great deal of time, money and effort in arguing the test case, and has agreed to expedite the hearing of that case and

any appeals; the trial is scheduled to take place in January 2008. As noted above, that test case will determine some of the fundamental legal issues upon which the present claim depends, and which require detailed argument. It is anticipated that additional issues of the sort listed in paragraph 7 above, which will be relevant to the present claim, might be included in the test case in due course. In those circumstances, the Defendant anticipates dealing properly and in detail with the issues referred to in the Directions Order dated 5 July 2007, but which it has been (and remains) difficult and, I would respectfully submit, disproportionate to provide in the present case.

16. The Defendant also understands that, in common with many other County Courts, I and consistent with both the view of Moore-Bick LJ and that of the FSA and Financial Ombudsman Service, the Court is now routinely staying similar claims pending the final determination of the test case. It is the Defendant's belief that this provides the most expeditious, efficient and orderly means of resolving the issues set out above.

17. In light of that general approach, if the Defendant had complied with the Directions Order, it is anticipated that the claim would have been stayed, and accordingly the claim would not yet be resolved. Therefore, the Claimants would suffer no prejudice as a result of the Defendant's breach if the claim were to be reinstated but stayed. If the claim is ultimately successful, the Claimants would be protected by the continuing accrual of interest during the period of the stay.

18. Conversely, the Defendant would suffer immediate and irreparable prejudice if this claim is not reinstated or stayed but the issues in the test case are resolved in the Defendant's favour. That prejudice is multiplied since it is anticipated that the Defendant faces the same order in other cases.

I Including claims received via Money Claims Online, which the Defendant understands is based in Northampton. New claims received in this way are, as of 13 August 2007, being automatically stayed pending judgment in the test case.

19. I accordingly invite the Court to set aside the Strike Out Order and stay the present proceedings on the terms attached to this witness statement [NW -1, page 3].

20. I believe that the facts stated in this witness statement are true.

 

 

Signed: .#########,

#########

Dated: 21 August 2007

 

 

IN THE DERBY COUNTY COURT

BETWEEN:-

##############

-and-

HSBC BANK PLC

 

 

 

 

DRAFT ORDER

 

 

Claim No. 7QZ76559

Claimant

Defendant

 

 

UPON HEARING the Claimants and hearing Counsel for the Defendant

IT IS ORDERED THAT:

1. The order dated 16 August 2007 be set aside.

2. The present proceedings be stayed pending the final determination (including, for the avoidance of doubt, any appeals) of the Commercial Court proceedings between the OFT and the Defendant (and seven others) comprised in Claim No. 2007 Folio 1186.

3. Both parties shall have liberty to apply.

 

 

Dated this

 

 

 

day of August 2007

well done you made it to the end...

debbie xx

 

 

[Castlebest]

What this one ?

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/102662-hsbc-bank-charges-court.html

 

 

pete

[syds mum]

yes pete... the bloody thing wouldn't work for me:mad: !!!

 

thanks love....:grin: :grin:

 

let me know if yours is the same kash and we can get moving on all the stuff you need to send of to court!!!

 

debbie xx

[kashfat]

Hiya debbie, im going to get my brother to scan the letter in(hes a bit of a whizkid at I.T), the only problem is hes so lazy. il get the letters scanned in from the solicitors tomarrow and hopefully you can help. So you won your case? bet that felt good:D . just how did you manage it???

[syds mum]

was the best feeling in the world love... if you have a read of my thread will tell you more...(my link is in post 43 above) i won because, not least some dam hard graft regarding research into law... and the help and guidance of all the peeps on this wonderful site.... :D everyone has a field of expertise and everyone puts in a little here and there to make a case... but you need to get prepared as well as its you that faces the judge in the end.... dont let this put you off its just so you realise that we can only help so much and give you all the support you need but in the end you need to understand the whole case to argue effectivley....

 

dont fret we are here and wont leave you to the wolves!!!!

 

preparation is everything.....

 

debbie xxx

[kashfat]

Hiya all,

debbie my brother has just spent an hour trying to get the response up, (he calls himself an it engineer:lol:), cudnt do it.

Basically there saying they didnt get the papers and that if they did, they would have responded to it. it also says that the defendant will suffer prejudice if the judgement is not set aside, and that we shud wait until the test case. Iv put a letter to them from Freaky saying that im gunna fight this but i am willing to except an offer. Basically they told me to get lost and let the judge decide. Id like to put my stuff forward to the judge asap. Can you help me please??

[kashfat]

oh yeah i also would like to know if i can still instruct the bailliffs to still reposess?? they didnt have a clue as i think they havnt been in this situation before

[freakyleaky]

Hi Kash! I don't know where everyone has been for the last 2 days. I have been severly hung over after anual christmas do!

 

I am sure debbie will be on today to give you some advice. It would be really usefull if you could get those documents on here. Even if you have to type them out word for word.

[kashfat]

Hi freaky and debbie, im going to type it up on thurs, havnt heard from you guys? u ok?