OFT case over, hows YOUR court dealing with claims

[IainHL]

Landy, as I see it this is what has happened:

• As peterlucas has said, the judge has decided without either you or LTSB being present to stay your claim until 26/02/2010;
  
• He has ordered you and LTSB to endeavour to settle the case by agreement;
  
• If you (or LTSB) oject to this you must apply withing 7 days with reasons as to why the case should not be stayed;
  
• When you and LTSB fail to reach agreement, and at some point before 26/02/2010 you apply to have the stay lifted and your claim then goes to a hearing.
  

I would agree with peterlucas here as to your approach. Don't make the application for your claim not to be stayed at this point. Make an effort (however token you wish it to be) to reach agreement with LTSB. When that fails apply to have the stay lifted and a date for a hearing set. You look good because you have endeavoured to reach agreement but silly intransigent bank looks bad because they have rebuffed you.

Edited December 12, 2009 by IainHL
Capital Y

[ncf355]

Folks,

 

I havent started a case yet (waiting for the new POC's) but wouldnt it be an idea to use this thread as the main point opf reference, with a short description of where a stayed case is at and then a link to a seperate thread?

 

(otherwise this thread is going to get V confusing!!)

 

[dogowner]

I haven't posted on here before but have been going it alone with helpful advice from these boards and firstly, would like to thank all the knowledgeable people of the CAG for their guidance.

 

I filed my claim late (like landy_alert) and too late to be involved with a stay - I received the papers from LTSB, but before I could agree or otherwise, the Supreme Court made their ruling so my claim continues...

I have received an Allocation questionnaire (small claims track), which must be back with the court by 22nd December, and the first question is regarding settlement. It asks whether I would like to use the small claims mediation service. In light of advice given to landy-alert, am I right in thinking I should agree to that first?

 

I am very unsure how to proceed now without the new templates being ready yet and, truth be told, am a little scared this will all go too quickly and I'll find myself in court without the correct evidence. Any help would be much appreciated.

 

Many thanks

Carol

[garyca]

Hi Dogowner

I myself have just sent back an Allocation Questionnaire, as Nationwide filed a defence soon after the Supreme Court Judgement.

Nationwide didn't mention anything about the judgement in its defence.

Have LSTB filed a defence?? and does in mention the Supreme Court judgement??.

 

I believe you can still apply for a stay on your AQ which will give you a bit of breathing space to see what the OFT intends to do regarding the test case basically. And you never know the bank might pay up if they know you intend carrying on.

 

Its totally up to you, and you might want to take further advice.

 

On my AQ i wrote (after taking advice) in the other information box.

 

''Following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the defendant or otherwise to generally decide the issues. I therefore respectfully submit that it would be appropriate for the Court to apply a general stay in this claim pending resolution of the issues raised.''

 

 

[dogowner]

Hi GaryCA,

 

LTSB has entered a defence but there was no mention of the Supreme Court Ruling.

 

Thanks very much indeed for your help, I can use that wording and get the wretched thing off to the court now (have been stewing about it for days...)

[dogowner]

I nearly forgot - did you fill the form out too or just that box (you're dealing with a simpleton here, sorry).

[garyca]

Hi dogowner

Fill out all the form.

 

A - Yes

 

B - straightforward - your local court if its not there already.

 

C - small claims track - YES

 

D - 0

 

E - no

 

F - straightforward

 

G - Other information - ''Following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the defendant or otherwise to generally decide the issues. I therefore respectfully submit that it would be appropriate for the Court to apply a general stay in this claim pending resolution of the issues raised.''

 

H - yes, unless you are exempt but you tick yes anyway and attach an EX160 if you are

 

I - sign it.

 

_______________________________________________________________

You might need to to amend your POC later, depending on what the outcome of the AQ is. Im pretty sure these will be on the forum by then.

 

This was my original POC, the bits in red are what i have been told to take off if i need to amend. I have also been told to strenghten other arguments adding (such as cca 140 unfair relationships and misrepresentation and competition etc).

 

I believe the OFT will make an announcement on Tuesday regarding if they will carry on.

 

 

Particulars of Claim The Claimanthasan account *****("the Account") with the Defendant which was opened on or around 2006

 

1. The account was conducted on the basis of the defendant’s own standard terms and conditions.
   
2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
   
3. During the period in which the Accounthas been operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
   
4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
   
5. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
   
6. A list of the charges applied is attached to these particulars of g claim.
   

The Claimant contends that:

Insofar as they might be penalties the charges debited to the account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

 

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR becausea.They are contrary to the requirement of good faith.

b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

 

• Bank accounts have become a basic essential service
  
• The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
  
• There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
  
• These banks exercise a collective dominance in the market.
  
• The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
  
• The charges exceed actual costs by several thousand percent
  
• They are applied unilaterally in a standard form contract without the possibility of negotiation
  
• The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
  
• The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
  
• The customer had no means of assessing the fairness of the Charges at the time of entering the contract
  
• The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
  
• Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
  
• The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
  
• The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
  
• The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
  
• The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.· As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey& 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.
  
  11.In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.Accordingly the Claimant claims:
  a) the restitution of the amounts debited in respect of charges in the sum of £*********
   
  and
  interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 15/01/2007 to 13/11/2009 of ******
   
  I believe that the contents of these particulars of claim are true
   
  Signed:
   
   
  Date: 13/11/2009
  

 

Regards

[dogowner]

That's more than helpful, I can't thank you enough!

 

Regards

[themadcap]

Just phoned Liverpool County Court told stay would remain as judge has refused my application to have it lifted and set a hearing date.

[ICY]

They have no grounds to keep the claim on stay do they.

[yourbank]

Just phoned Liverpool County Court told stay would remain as judge has refused my application to have it lifted and set a hearing date.

 

 

Have they given ANY reasons ? What did you put in your stay lift application ?

[themadcap]

Hi yourbank,

I sent off the first template that was listed on here straight after the supreme court hearing nov 25th (I was a bit hasty me thinks) that my claim was not in relation with clause 6 but would be found under clause 5 etc, im sure you know the letter which i refer to.

The court office just said the Judge had refused my request for removal of the stay and i would receive a letter shortly.

Any help greatly appreciated

[yourbank]

hmmm, which bank are you claiming with and have you heard anything from then ?

 

 

and garyca - are you carcos ?

[indebtstudent]

Recieved a letter from Darlington County Court yesterday saying the case is stayed until 30th Nov 2010 and that in order for this to be removed would have to provide evidence that we have tried to resolve the issue.

 

I wonder why the timescale is so long, since it seems there will be no more official action on this. I suppose to comply with the order I will have to write to the bank advising that I am currently taking legel advice to reflect developments which occurred in the test case and re-open communication.

 

My brother incurred the fees and, with then cancelled he will still owe the bank around £1000. Charing someone who is unemployed who owes you £3000 IMO is not fair, and I hope this gives his case more sway under the unfair relationship kind of regs people are looking at.

[Poor-Credit Borrower]

I'm strating to wonder if the OFT is fit for purpose, what EXACTLY did thier intervention achieve?

 

At last I have found the post-Test Case thread I agree with the sentiments of Indebtstudent. Before the OFT waded in with this "superclaim" most of us were doing just fine with the reclaiming of unfair and excessive bank charges. About 99% of claimants were getting some, if not all then at least the majority, of the unarranged overdraft charges back from their bank before the claim even got to court, as the bank did not want to try to justify its grossly disproportionate charge in Court!

 

When this all started in July 2007, the FSA slapped on a waiver which meant that all individual claims were put on hold. I managed to get some money back from the Halifax before, but my claims management company (I know it was a mistake to go through one!!) sat on the case with the Abbey for about 6 to 9 months - because they wanted to get back 100%, I would have been happy with 80% or 90% but they obviiously wanted to maximise their cut!

 

I don't suppose the OFT would have predicted the eventual outcome from the Supreme Court - the banks craftily made a case that the charges could not even be assessed for fairness, because if they were so I don't think they would have been able to defend the actual level/proportionality of the charges.

 

Not sure what to do now, or on what basis to now claim?

[Poor-Credit Borrower]

That's more than helpful, I can't thank you enough!

 

Regards

 

I agree, the letter drafted and quoted by garyca is more than helpful and really illustrates the wholly dominant position of the bank in relation to any of its customers. best of luck to all in claiming

[themadcap]

hmmm, which bank are you claiming with and have you heard anything from then ?

 

 

and garyca - are you carcos ?

 

Hi Yourbank,

Its with HSBC, was due in court august 2007 about a week after they issued the waiver!

I got a letter from HSBC 3rd Jan saying as far as they were concerned all issues resolved with the sc outcome and as it was a court claim It would be dealt with by their solictiors.

Any help greatly appreciated

[Poor-Credit Borrower]

Hi, I don't think anyone has responded directly to my post of last Friday evening (8th January). I'd like to ask a direct question: in 2006 and the first part of 2007, my complaint against the Abbey was being dealt with by Licit Legal, latterly First Step Legal, based in Stockport. They managed to get a satisfactory settlement from the Halifax, but not from the Abbey. However, from the Abbey, I managed to get about £900 from them as a "hardship case".

Do you think I'm obligated to apply via them, or could I just send a template letter to the Abbey myself? I think the Supreme Court suggested in their recent ruling that the only grounds on which we could complain are Regulation 5 of the UTTCR terms regarding fairness?

[yourbank]

It really depends on the agreement you signed with Licit Legal and any changes you agreed when they went under and shifted cases to FirstStep Legal. How much claim do you have remaining?

[yourbank]

Hi Yourbank,

Its with HSBC, was due in court august 2007 about a week after they issued the waiver!

I got a letter from HSBC 3rd Jan saying as far as they were concerned all issues resolved with the sc outcome and as it was a court claim It would be dealt with by their solictiors.

Any help greatly appreciated

 

you will most likely get a letter from Dg solicitors asking the court to dismiss your claim so you need to be reading up on the issues and new arguments and decide if you want to fight against the dismissal and continue with your claim or get out.

 

Read the main judgment thread in Campaign - I have posted some good info as to the arguments on there.

 

(also @ everyone its polite if someone has helped you elsewhere or on here to give them a mention when requoting their work)

[themadcap]

Thanks Yourbank,

Ill have a run through the judgement and your arguments, will keep in touch when D&G send me their letter

cheers

[Poor-Credit Borrower]

It really depends on the agreement you signed with Licit Legal and any changes you agreed when they went under and shifted cases to FirstStep Legal. How much claim do you have remaining?

 

Thank you very much Yourbank. I think I have about £2200 remaining, but I'll probably need to check. I also have a few charges from Alliance & Leicester but I never formally claimed them, and certainly not through any agency.

 

Regarding Licit Legal I don't think I actually agreed to any changes when they shifted the cases to First Step Legal. I used FSL for claiming mis-sold payment protection insurance, which was partially successful.

[Gaznkaz08]

hi just found this thread, would anyone be able to give me some advice on this

http://www.consumeractiongroup.co.uk/forum/barclays-bank/241147-hardship-claim-partially-can.html

 

would i be able to take this further through the courts myself like detailed above, or were the above cases already in motion and i wouldn't be able to start a new case , if i don't get any joy, i'm quite new to this so think i might've tackled it completely the wrong way

[yourbank]

have replied on your thread for you

 

Re court - no I wouldnt take this into court at the moment

[Poor-Credit Borrower]

Yourbank, thanks for your helpful comments to both me and another chap. I think I will ring First Step Legal to first ask if they have closed the bank charges case, which they were helping me with in mid to early 2007 before the FSA waiver on the banks/courts having to deal with claims. If they say it is, then I'll just apply under my own steam. I also got this "complaint no longer upheld but you have 8 weeks to apply with anything new otherwise we'll consider the case closed" letter from the Abbey and A&L.

Edited January 14, 2010 by Poor-Credit Borrower
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