SolidStan V The Woolwich(OpenPlan)

[purp72]

Hi - I have exactly the same stay on my proceedings from Cardiff County Court (as does Stadium_Arcadium).

 

This is my letter (if it helps):

Further to the Order granted by the Court on 9 August 2006 staying the above proceedings generally (“the Order”), I respectfully request that the stay be removed for the reasons stated below:

1. CPR 26.4(2)(b)

Civil Procedure Rule 26.4 (2)(b) stipulates that the Court may direct that the proceedings be stayed “for one month, or for such specified period as [the court] considers appropriate”. I respectfully submit that the Order does not comply with CPR 26.4(2)(b) as it is neither limited to one month nor is any period specified within the Order.

2. CPR 1.1 - the Overriding Objective

It is submitted that the Overriding Objective requires that my case is allowed to proceed expeditiously so that a just settlement may be obtained by the parties to this case. There is no complicated issue of law. The common law relating to contractual penalties has been settled law since the end of the 19th century and has been reinforced by the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”).

3. Human Rights Act 1998

It interferes with my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 1 of the Convention provides that “in the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.” It is submitted that an indeterminate stay on proceedings is not reasonable.

 

4. Settlement

Although I am continuing to attempt to reach an agreeable settlement with Abbey National plc (“the Defendant”), I have so far been unsuccessful. I have made numerous attempts to enter into meaningful dialogue with the Defendant who continue to refuse to negotiate. Whilst I have received an offer of partial settlement as a gesture of goodwill, there has been no admittance of liability or any offers of the full amount outstanding. Since the Order was made on 9th August 2006, I have received no contact from the Defendant’s solicitors attempting settlement.

5. Other cases

 

I understand that there are many similar cases being progressed at Cardiff County Court (and elsewhere throughout England and Wales), litigating on the same issue of contractual penalties. However, the Court may be unaware that not one of these has so far gone to a hearing. Whilst the banks are filing defences, they are regularly settling pre-hearing. In many other cases, the defendant banks are even receiving default judgements against them which are being set aside on application by the bank and which are subsequently being settled prior to a court hearing. In two cases, the court has ordered standard disclosure against the defendant banks but those banks have gone on to settle rather than reveal the details of its contractual penalties. I believe that I will not reach an adequate agreement with the Defendant relating to these proceedings until a date for a hearing is ordered by the Court.

 

Also, every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise, the defendant banks have declined to allow the issue to be decided. By agreeing to remove the stay and ordering a hearing date, my case would also present an opportunity for the question to be definitively settled as, should the Defendant lose, they have the resources to continue the matter through the appeals process and through the court hierarchy.

6. Office of Fair Trading

The UTCCR gives the power to the Office of Fair Trading (“OFT”) to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf. The OFT conducted a two year investigation of the contractual charges regime and in April 2006, the OFT stated that credit card default charges had been generally set at a significantly higher level than was considered fair. The April statement also indicated that the OFT considers that the broad principles in relation to default charges are likely to be relevant to other standard agreements with consumers such as those for bank current accounts. It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the UTCCR prevents the citizen from doing so. However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by me in the instant case.

7. Balance of convenience

The sum claimed is insignificant to the Defendant but it is a significant sum to me. Further more 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 penalties which I believe are unlawful.

8. Additional orders

If the Court does agree to my request for a removal of the stay then I respectfully request that the case be allocated to the small claims track but that the Defendant be ordered to make standard disclosure. It is submitted that an order for standard disclosure will assist greatly in bring these and other similar claims to a speedy and just conclusion. The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks’ default charges system. Standard disclosure will put the matter beyond doubt.

Thank you for taking the time to consider the above requests and I look forward to hearing from the Court in due course.

 

Before anyone says anything, I know that I should have done it by N244 application to the court, but as I only have a fairly small claim (approx. £300) I did not want to spend the additional £35 (which I believe is probably irrecoverable from by bank). I have also altered BF's letter and I am not saying what I've done is correct - I haven't had a response from the court yet so I don't know what (if any) effect it's had.

 

You can see I cut out the stuff about the test case (Elliott v Lloyds) because the order doesn't refer to it (and I was only advised verbally about Williams v Barclays) but I did add an extra paragraph 1 about CPR 26.4. I also cut out the information about injunctions etc. because my Abbey account is closed so they cannot add any charges while the proceedings are ongoing.

 

No reason is given for the stay so hopefully (at the very least) the court will come back to me with written confirmation of this. If it is a stay pending the decision in Williams v Barclays - then as I know that it has been settled, there is no reason for the stay to remain in place.

 

The problem is that, unless you take some action, I can't imagine the courts will be very quick to remove the stay and while there's a stay in place, there's no incentive for your bank to negotiate a settlement. Hence, Bank Fodder's advice to everyone affected by a stay is to apply for its removal. I would check out the Mercantile/Stays sub-forum of the General board.

 

Hope that this helps.

Purp72

[solidstan1]

Hey PURP72, that is an amazing reply, and although this is getting way over my head, I am considering taking the same action as yourself, or possibly using the N244 application to the court.

Thanks absolutely loads form all your replies.

Any suggestions are gratefully received.

Many Many Thanks, SolidStan.

[purp72]

As I said, I am not suggesting that what I have done is correct but hopefully it helps - if only in reminding you that you are not the only one in this position.

 

Just for further info, this is what court told me this morning about stays at Cardiff:

 

http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/34409-has-your-case-been.html#post276993

 

Keep us informed.

[solidstan1]

Thanks, and execellent work PURP.

I am following your thread with massive interest!

 

Thanks for keeping us informed.

 

TOP MAN! :)

[purp72]

See http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/40322-breaking-news-cases-stayed.html

 

Things are looking up for Cardiff claimants!

Purp

[solidstan1]

Prior to my court date 21st December,Cardiff County Court, I received and excepted (signed and returned) an offer from my bank of £900.50(charges) + £80 costs. I did not relise, I should of also claimed the daily 8% intrest, which would of amounted to £300, which was on the N1 claim form.

 

Does anyone know, do I still have the right to claim this, of have I screwed it??

 

Damn gutted about this little extra, pLeAsE HeLp!!