Sminole v Nat West Bank- Set Aside Hearing 12 Jul 2006

[Seminole]

I'm in court with Nat West on Wednesday 12 July at 3.30pm.

 

Nat West are applying to set aside my CCJ against them on the basis that my claim is statute barred. This will be an opportunity to try to deploy the deliberate concealment argument and it will be interesting to see if this flies.

 

If anyone wants to come along, I'd welcome a gallery to play to. The hearing is as above and will be held at the Central London County Court, Civil Justice Centre, 13-14 Park Crescent, London, W1N 1HT.

 

Please could you let me know if you're planning to attend.

[cumbria123]

I`d love to, but too far from here, good luck though.

[clairus99]

Don't know if I can come but I will certainly be there in spirit. The very best of luck to you.

 

 

BTW I thought there was no statute on CCJs?

[MatthewL]

I'd love to come but I too am far away. Good luck (like you need it )

[barracad]

Seminole,

 

Best of luck for tomorrow.

 

Shame I can't make it.

[Solowka]

I wish you the very best of luck mate, id come but i live some 200+ miles away lol, i shall eagerly await the verdict

[Yaesu]

Good luck to you!

 

Remember, we are all with you in spirit!

 

"Knock 'em down"

 

Y

[thunderpuss2k]

Just got back from Seminole's hearing. Although I was a little late (you ever tried to find empty bike parking in London at that time of the afternoon? argh!) I did get to hear most of the proceedings, and meet up with a few other people after.

 

All very interesting. I'm not going to comment on the case before Seminole's had a chance to post as it wouldn't be fair. However, all I will say is thanks for giving me the opportunity to attend, nice to put faces to a few names, and I'm looking forward to seeing what comes next from the bank

[Janet-M]

Hurry up seminole we are all sitting on the edge of our seats waiting for the news

[thunderpuss2k]

Yeah hurry up I'm bursting to discuss what happened today a little further.. but my lips are sealed as I said..

[Solowka]

Yeah, come on...chop chop!

 

(edit)

 

I`m even watching London news to see if owts on it lol

[Seminole]

OK, thanks to everyone for their good wishes.

 

In the event it was a bit of a damp squib. The Judge made it clear that today's hearing was about whether the claim should be set aside and nothing else. I had prepared on the basis that the claim was likely to be set aside and the bank would ask for it to be struck out immediately. I therefore prepared my paper to defend against that possibility. I believe that they could have done this today but in the event the judge closed off that avenue before they could even ask for it.

 

The judgment was set aside. All the defendant has to do is to show that they have a reasonable defence to the claim. They did this by putting forward the Section 5 Limitation Act argument. The judge said that he wasn't concerned with whether the argument would succeed in court but rasiing the issue in these circumstances was sufficient. Interestingly he did comment that the issue of whether Section 5 would apply was a matter for debate so he didn't laugh it out of court and I really need to find someone who really knows how the Limitation Act should work. Anyway, the Section 32 argument wasn't discussed because it wasn't something that the bank had raised.

 

The upshot was that the bank and I have August to file a defence, a rebuttal to the defence and our Allocation Questionaires.

 

The most interesting points raised were the potential test case(s) in the Mercantile Court. The Judge suggested that I should discuss with the bank's solicitors whether my case might be suitable as a test case and more importantly, I should contact Judge Mackie's office to discuss this. I will be up that particular drainpipe like a rat as it will hopefully enable us to gain some insight into what's going on.

 

Overall, it could have been worse and I think the bank knows it's not dealing with a fool. I suspect that they will proceed to defend and they will probably also be seeking a stay if the case doesn't go to the Mercantile Court. Given this claim involves rather different issues from the majority, it probably isn't suitable for that route.

 

Towards the end the other side's barrister was looking a little smug that she had got her set aside (although quite why, as it was never really in any dount) so I dropped a small bombshell on her that wiped the smile off her face.

 

Earlier today, I was telephoned by the bailiff at the court and told that they were off to execute the warrant that I issued earlier in the year. I told them about the set aside hearing in the afternoon and so the guy said that he'd better go this morning then . I did actually suggest to the bailiff that this might not be a good idea but I got the impression that he WANTED to do this and that "as you're not a judge, I can't take instructions from you". I don't know what happened but it certainly cased the bank's barrister to break out in a cold sweat when I mentioned it and even the judge looked a little perturbed.

 

I got a small amount of costs for loss of income plus the £55 warrant of execution fee refunded but frankly, for the entertainment value it generated, it was worth every penny!

[NitrousOxide]

I'm assuming you had no contact for over 6 years then?

[Seminole]

I'm assuming you had no contact for over 6 years then?

 

No it's not as simple as that. The charges were applied to the account in 1998 and 1999. Since then I paid a couple of thousand to them (the last £500 in 2001), they sued me, got a charging order and I repaid in rull in 2004. The question is whether the fact that the charges are older than six years means that they can't be challenged although a general claim under the contract wouldn't be statute barred.

[NitrousOxide]

I'm guessing that it's because of when the cause of action accrued. Not sure I'll read up some more.

[Seminole]

I'm guessing that it's because of when the cause of action accrued. Not sure I'll read up some more.

 

But that leaves you in the anomalous position that one party's rights may be statute barred whereas those of the other are not. A bank could pursue you for an account balance that includes charges levied more than six years ago but you can't challenge the lawfulness of those charges.

[blueskies]

The day went as well as can be expected then, well done.

[NitrousOxide]

But that leaves you in the anomalous position that one party's rights may be statute barred whereas those of the other are not. A bank could pursue you for an account balance that includes charges levied more than six years ago but you can't challenge the lawfulness of those charges.

I can quite clearly see what's wrong now. My NatWest account I'm pretty sure has charges well over 6 years on it. It's wrong they can enforce it after say 7 years just because you are still in contact or admitting liability by paying on the account. If what the court did was correct then surely that leaves us with the same defence if they try to CCJ us? Surely if you had a really bad account (like mine) you could argue that the amount owed is less if you have left it for longer than 6 years. You could argue that all the charges and interest before then are statute barred surely.

[colinsunderland]

Can I just ask, as I don't think it's very clear, what was the exact reason for them applying for the judgement to be set aside?

Surely they couldn't have just used the statute barred argument as surely that should have been made in their defence statement before the judgement was obtained? Did they not try to argue they didn't recieve the summons or something like that?

 

FWIW I'm claiming from the Halifax at the moment (court papers going in Monday) and my claim includes £100 from over 6 years ago (4 x £25 charges between June 1999 and March 2000). Will be interesting to see if they try to defend part of the claim on that basis (and I don't mind going into court and arguing it either )

[CrispDust]

*Bump*

Seminole - whats happening here? Any news?

[Guest bong]

*Bump*

Seminole - whats happening here? Any news?

 

bump

[wehavetheright]

Yeah Seminole, we've all been waiting with baited breath what the final outcome was?? Any news?

 

Best of luck.

[Guest bong]

I think we have to draw our own conclusions about what has happened. Seminole hasn't posted so I think that probably means he's won and agreed not to talk about it. Only my guess.