The Stay - Here is the application grounds for the removal of the stay

[BankFodder]

The stayed cases have been settled by the defendant banks and the "test Case" has also been settled.

However, here is the basis of the application which we drafted to remove the stays.

If anyone else receives a stay then i suggest that this form the basis of the apication to remove it.

This application has also been sent to the Mail, Guardian and the BBC.

 

I respectfully request that the stay which was ordered on the XXXXXXXX be removed.

 

 

Human rights

It interferes with my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998.

Art.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 in a claim for a sum of £3,778.06, an indeterminate stay which depends on some litigation unconnected to the instant case, between two other parties who have no relation to the parties in the instant case is not reasonable.

It is not clear that the matter will be heard as predicted and in the event that it does go to trial, there could then be appeals and subsequent appeals so that the matter might become protracted and even last as long as 2 years or more – from the date of the commencement of trial. Even if the predicted case does go to trial, it is not certain that it will proceed to judgment as it is entirely possible that there will be a settlement during the course of the litigation so that the question in issue is inconclusive.

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my case is allowed to proceed speedily 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 is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

Lloyds TSB Bank

 

The defendants Lloyds TSB Bank have already settled 14 similar cases.

In the attached list of cases, the court will see that Lloyds were defendants in 14 cases. In most of these Lloyds actually filed defences and actually returned their allocation questionnaire, obliging the claimant to do the same. However, in every one of these cases, Lloyds bank settled the matter before the hearing.

In 2004 the head of personal banking of Lloyds TSB Bank Peter MacNamara stated in a radio 4 interview that Lloyds was making big profits out of its default charges and that this money was being used to find free banking for its customers. The Claimant can supply a copy of this recording of the court wishes.

 

 

Other cases

It is true that there are currently many other cases which are litigating on the same issue of contractual penalties. However the court may be unaware that not a single case so far has gone to a hearing.

Attached to this application is a sample list of 223 cases complete with county court reference numbers (Annexe 2)- of which the claimant is aware and which have been started since February of 2006. All of them have been settled before hearing.

Many of them have even received default judgments against the defendant banks in question which has then been set aside on application by that bank and then which has been settled by that bank rather than go to court.

In two cases the court has even ordered standard disclosure against defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing and that it will be settled out of court and therefore produce no useful decision from a higher court.

It is further submitted that the defendant in the instant case has no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right.

It is submitted that this is abusive of the justice system and of the public resource.

 

 

Balance of convenience

The sum claimed is insignificant to the bank 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 say are unlawful.

Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to take the claimant to the door of the court and then to settle the claim.

 

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks activities which the claimant submits are unlawful and/or retaliatory.

 

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks so far have settled every one of the 223 example cases and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. 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 defendants have declined to allow the issue to be decided.

My case presents another opportunity for the question to be definitively settled as should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy.

It is respectfully submitted that the court’s order to stay the claim creates more uncertainty and more difficulty.

It is respectfully submitted that if the predicted test case referred to by the district judge in his order, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the cases conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 gives the power to the Office of Fair Trading 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 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks.

The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

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 Regulations have prevented 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 myself in the instant case.

In the alternative

If the court decides not to accede to my request to remove the stay I respectfully request that the court issues the following injunctions:

 

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
  
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter
  
• That the defendant is prevented from closing my account
  
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
  
• That the defendant remove any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 )
  
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998. )
  
• That these injunctions remain in place until the settlement of my claim
  
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent
  
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.
  

 

 

Additional orders

If the court does accede to my request for a removal of 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. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges

 

 

.....

[spartagates]

Outstanding piece of work! You can really see the amount of work that went into that. Would have been nice to see the response it got from a judge....

[Rooster-UK]

A splendid effort, young BF. 10/10 for effort.

 

Oh, and take 3 house-points.:grin: :grin:

 

That is one hell of a letter.

[elsinore]

I almost hope that I get a stay in my case, so that I am able to submit this application for its removal. I cannot see how a judge could fail to be impressed by this sterling piece of work. Congratulations BF.

 

Elsinore

[cankster]

My god your good arnt you.

 

Thank you for enabling me to get my finances on track by shafting the conning buggers.

[closey]

BF you always come up trumps. Excellent work. Thanks on behalf of everyone.

[Smudgeless]

Hi,

I have had My Small Claim stayed and would like to use this application grounds for the removal of the stay . Where do I get the attachments for the 223 cases to attach with the application? The court have stayed my claim to the 31st of January 2007. I at the same time won my case with the same bank but different account with a different County Court.If some one can help me I think I am getting out of my depth.

All the best

Smudgeless

[med1]

This is a slightly different thing..........The Court has sent me back an order to say I have to particularise the particulars of the claim, setting out precisely the law and regulations referred to or the claim shall be struck out...........what does this mean? HELP!

[deek]

have i missed something or is the OFT test case only relating to unauthorised overdraft fees? in my case i have specifically not claimed any unauthorised OD fees but only returned items and cleared transaction charges. in my view therefore the test case does not cover my claim, a point i will make clear when i put my claim in to the court next week, hopefully avoiding any stay. any views?

 

deek

[12thdomino]

I'm getting really confused now, I have recieved a letter from the Abbey which says that they are going to apply for a stay

 

I quote" Your claim in relation to unauthorised bank charges is currently being litigated in the County Court

 

Although we believe the charges are fair, clean and lawful, since you have filed your claim in Court, Abbey (along with six other banks and a building society) has become involved in legal proceedings with the Office of Fair Trading("OFT") in realation to unauthoised overdraft bank charges. We believe this will resolve the issues regarding the fairness and legallity of your unauthorised overdraft charges

 

Pending the outcome of this test case, we are asking the County Courts to stay all claims relating to unauthorised overdraft charges. A stay means" blah blah

 

It goes on to mention the FSA suspending claims relating to charges

 

Anyway I don't know what to do, do I write a letter to the Court or is there some special form, could I pinch bits from the above.

 

I really am getting confused now

 

Domino

[Michael Browne]

Stay, Application for removal of: UPDATED

Application for removal of a stay - UPDATED TO ACCOUNT FOR OFT TEST CASE

Stays re: OFT Test Case - Info & Guidance

http://www.consumeractiongroup.c o....-guidance.html

[charliedog]

Hi have read the updated version of application for a stay - do I send this is to the court as well as the form N244? It is the court that have decided to stay MY case until result of test case and not the bank - does this make any difference:confused:

[choco]

Hi I too want to add my thanks for that brilliant letter!!! Thanks so much for this, you guys are the best

[MartyR]

The County Court had given me a hearing date in September so I cancelled my holiday! It then stayed the case and gave me 7 days to apply to set this stay aside. I did so and have just phoned the court to check on progress. The girl in the court office said that my application had never been received and anyway I should have sent another application fee for £65. So I have to resubmit the application (another evening's work!) and that makes £125 court fee plus £100 allocation fee and £65 application fee. The courts are making good money out of this and doing sod all for it! It's a national disgrace.

 

The girl in the court office then said that my case should not have been stayed anyway because a date had already been set, and only new case were supposed to be stayed! But that my slot would now have been filled (the date I have cancelled my holiday for)

 

What a nightmare. I hate banks! and our justice system doesn't seem to be much better!

 

Help!

[Castlebest]

I've written an "Overview" to BF's statement for my own submission, it replaces the first sentence. I believe this crystallises our position with these stays and adds a very strong argument to the basic request.

 

 

 

Following receipt of the General Form of Judgement or Order dated xx/xx/2007 issued for the above noted claim, the claimant respectfully requests, in accordance with paragraph 2, that the stay which was ordered by District Judge xxxxxx on the xx/xx/2007 be set aside or if the Court sees fit further directions be attached to the stay to last for the period directed by the court as detailed below.

Overview

The claimant has recognised an inequality in the current situation following Judge xxxxxx’s directions to stay this case.

 

It is acknowledged a test case was long overdue to settle the issues of legal principal surrounding bank charges and remove the need for litigation on every single case. This has now been achieved but because of this, in order to efficiently and fairly manage all of the current claims, stays have been put in place pending judgement of the lawfulness of these charges in the test case, however no suspension of possibly unlawful charges has been made by the Banks, these are still being levied against customers accounts.

 

In this particular case the claimants bank account is now in all but name closed but does have an overdrawn balance because in the period between the defendant settling out of court on the claimants first claim (7QZxxxxx) and the initiation of this claim (50 days) a figure of over £xxx.xx was deducted in charges which the claimant believes is totally ridiculous and intolerable and a further £xxx.xx in charges has been deducted since this claim was put to the court even though this account is not being used.

 

This stay has effectively removed the right of the claimant to prove these bank charges are unlawful in a court of law before a District Judge and expeditiously clear the outstanding amount of the account, however the defendant is at liberty to carry on with his current practises thus increasing the debt and even, if and when the defendant decides the time is right, report non payment to the credit reference agencies and/or “sell the debt on” to a third party for collection and/or commence litigation for recovery of the debt thus further disadvantaging the claimant. This will also result inevitably in another claim to recover the further charges and remove any notices that have been issued to the credit reference agencies in the intervening period of the stay.

 

The claimant contends that to be fair and reasonable either this case is allowed to proceed to hearing to enable both parties to plead their cases before a District Judge and settle the matter as quickly as possible and clear the outstanding account balance or the stay is allowed to remain in place for the period decided upon by the court but directions are issued by the court to the defendant to accompany the stay ensuring suspension of any further charges and/or actions by the bank until an unopposed judgement is gained in the OFT –v- The Banks test case.

 

Obviously as with all of the template documents you should edit this to suit your own claim and circumstances.

 

pete

[charliedog]

Do you think that the judges are now deciding to stay cases as they actually DON'T KNOW WHAT TO DO with our cases ...they really shouldn't be taking our money the way they are and then making us wait till "whenever" - anyone got any idea when the test case will be over and done with ?

[Castlebest]

Hiya charlie, was talking to Chau on the HSBC forum, he's a law student so should know the basics, if the appeals go all the way to Luxembourg he recons it could be up to 5 years... a good reason to get your bank charges stopped in the mean time

truely free banking

pete

[Audreygreeneyes]

bril letter Pete, am going to incorporate it in my little statement whcih will be taken to the court for my stay hearing in october:):)...............

[charliedog]

Thanks Pete - do you think that the courts would be able to make the banks stop all charges for that length of time??

[Castlebest]

One of the Judges, Luton CC I think it was has already ordered it for one case so its possible

 

pete

[12thdomino]

Removed by postee

 

Had a more detail look and will add

The European Charter of Fundamental Rights - Article 47, “Right to an effective remedy and fair trial”

 

EU Charter - Art 47. Right to an effective remedy and to a fair trial

[sparklyd]

Can anyone tell me where to find spreadsheets of claims settled by the Abbey Bank. I have searched site but no luck and I need to make an application for stay to be removed, and the statement on this site refers to OFT test case and list of settled claims. Cant find POC for OFT case either, and I am confused - is this relevant to Abbey????? Every thread I go to seems to be 'closed', and I could not find the specific one for 'Abbey stays' either. I know I sound like I'm whining dont I?! Sorry, I just could do with a point in the right direction please. I am probably being v. dense but I can't seem to find what I need.

 

Thanks in advance

 

Sparkly

[Michael Browne]

See here for stay advice:

Stay, Application for removal of: UPDATED

Application for removal of a stay - UPDATED TO ACCOUNT FOR OFT TEST CASE

 

Stays re: OFT Test Case - Info & Guidance

http://www.consumeractiongroup.c o....-guidance.html

 

Settled cases here:

 

http://www.consumeractiongroup.c o....38&Item id=82

[alecmac18]

Has anyone here actually been successful in having a stay lifted yet? I'd be really interested to know.

[Dougal16T]

Hi alecmac18,

 

Yes I have, please see my posts 'HDR - v - HSBC'.

 

I now have a trial date of 24/9/2007 at Eastbourne - BBC are filming outcome for the 'Money Programme'!!

 

Attention all credit/store card claimants URGENT

 

The following has just happened to me in relation to GE Money (Debenhams charge card claim) I wrote to the Court which had stayed my claim 'on the courts own motion'.

 

Order received today

 

 

 

Before District Judge Murdoch, Northampton County Court

Without hearing

IT IS ORDERED THAT:

The filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the Court of transfer orders otherwise.

Order drawn 6/9/2007

 

attached to this was another order:

 

Before District Judge Murdoch, Northampton County Court

Without hearing

IT IS ORDERED THAT:

1) The Claimants letter stands as an application for leave to lift the stay

2) No fee payable

3) Transfer to Claimants home County Court

Order drawn 6/9/2007

 

Before these 2 Orders arrived and the stay had been imposed I wrote to the Court Manager in the ISSUING Court and marked it for the attention of the District Judge originally responsible for the issue.

 

I pointed out (politely) that Credit Card/Store card claims were/are NOT subject to the OFT Test case having already been dealt with by the OFT some time ago. I did not use form N244 - which requires a fee , I just wrote the letter and did not enclose a fee. I read somewhere that this can be done and no fee is payable [i just can't remember where I saw it....!!]

 

Well you know the result!!

 

Best wishes to you all...............

'Illegitimus non tatum carborundum'....!!