Bong v HSBC *Contractual Interest & 13yr claim**WON!!!**

[TANZARELLI]

don't think they read yours very well, did they?!!!

(btw, after xmas is fine, thankx)

 

I have actually read a fair bit of this thread as many others. However I don't feel there is anything wrong with reiterating points in letters especially if the reason they are trying to wriggle out of paying out money is due to exhaustion of time. I had a feeling Bong would have mentioned this as i posted earlier.

 

Tanz

[lateralus]

tanz, you may have misinterpreted what i said - it was a sarcastic throwaway aimed at the bank's response to bong. sorry if it got taken the wrong way. please accept apology if i offended you, no intention.

have a very pleasant holiday, everyone!

[TANZARELLI]

tanz, you may have misinterpreted what i said - it was a sarcastic throwaway aimed at the bank's response to bong. sorry if it got taken the wrong way. please accept apology if i offended you, no intention.

have a very pleasant holiday, everyone!

 

None taken. I miss read it. Happy xmas to you too.

[Guest bong]

thanks for the input everyone. I'm sorry I haven't been around much over Christmas.

 

Unfortunately I ran out of time for getting my application to strike in before the AQ deadline which was today. I tried last night but found it all a bit too much to get done and then decided it wasn't worth getting it wrong. So I concentrated on getting the AQ in today, which I hand delivered to the court.

 

At (G) I asked the court for an extra 7 days in which to submit an Application Notice seeking an order for the defence to be struck out and Summary Judgement to be entered in my favour. I also asked, in the event that the court did not give me an extra 7 days to do this, or if they allowed it but later dismissed the Application, for the new draft directions to be made into an order.

 

So I'm now £100 lighter:(

 

It might work, might not - we shall see.

 

Anyway, I've drafted the Application Notice, which is currently looking like this (Form N244):

 

PART A

I xxxxx intend to apply for an order that

1. the defence be struck out pursuant to Rules 3.4(2)(a) and (b) of the CPR and Summary Judgement (and an order for costs) be granted under Part 24 of the CPR, in favour of the claimant, as sought in the particulars of claim.

 

because

1. the defence discloses no reasonable grounds for defending the claim

2. the defence amounts to an abuse of the process of the court

3. the claimant believes that the defendant has no real prospect of successfully defending the claim

4. the claimant knows of no other reason why the disposal of the claim should await trial.

 

PART B

 

I wish to rely on evidence in Part C in support of my application.

 

PART C

 

I wish to rely on the following evidence in support of this application:

 

1. the defence is contradictory and vague, and discloses no reasonable grounds for defending the claim

 

a. At paragraph 1 of the defence it is immediately apparent that the defendant has not identified which terms and conditions ["contract"], business or personal, govern the operation of the claimant's bank account.

b. the defendant's submissions at Paragraphs 2 and 4 of the defence would require the defendant to have identified the contract. These paragraphs of the defence make reference to the defendant's (alleged) contractual rights - a contract that the defendant has not identified.

c. the claimant contends that the defence was pled without knowledge of the contract, or the claimant's account and therefore without proper regard for the transactions in dispute and the services the defendant alleges it has rendered under contract; services which (allegedly) form the very basis of the defence.

 

2. The defence was pled without context to the claim and therefore amounts to an abuse of the process of the court:-

 

a. The defence is not relevant to the claim; the defendant has invented and denied allegations that do not exist in the claim.

b. the claimant did not make any allegation in respect of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) in her particulars of claim.

c. at Paragraph 3 of the defence the defendant denies that its charges are unfair contract terms for the purposes of the UTCCRs.

d. At Paragraph 4 of the defence the defendant denies that the UTCCRs are applicable to its charges and, in the alternative, that its charges are unfair contrary to the UTCCRs.

e. the claimant contends that the defence was prepared in the manner of a bulk response to various unrelated and irrelevant court proceedings brought against the defendant by other claimants and is not relevant to these proceedings.

 

Statement of Truth...

 

comments and suggestions welcome before I finalise this:)

[bill-k]

Not qualified to comment in depth, Bong - but it sure looks like a Personal Litigant making a bl**dy good fist of it. Well done.

[TANZARELLI]

Hello Bill, have you had a good xmaz?

 

Tanz

[bill-k]

One helluva - and you, mate ?

[nevos]

Hi All:

 

The below text came from this thread: http://www.consumeractiongroup.co.uk/forum/rbs-bos-successes/49470-contractual-interest-details-case.html

 

PART 2- INDICATION OF CLAIMANT’S SPECIFIC REASONING, ARGUMENTS, ETC

 

No contract ever existed between the parties hereto

21. No admissions are made by the Claimant as to the incorporation of any term in any contract between the parties hereto purporting to entitle the Defendant to levy the Charges. If the Defendant intends to rely upon such a term whatsoever as part of any defence it seeks to advance, then the Claimant calls upon it to show that such a contract and term did in fact exist.

 

Think I saw in this thread that you refer to a contract post 33?

 

2. The claimant admits to breaches of the terms of the contract that require the claimant to stay within any agreed overdraft limit.

 

I may be confused here but, do the T & C costitute a contract? and could the term contract be a form of agreement to the T & C and subsequent charges made by the Bnaks?

[bill-k]

Hi Nevos. The earlier reference was to Justwon's amazing claim, where they seemed to manage to claim that there was no contract in the form of a signed document, but that a form of contract could be implied from the T&C's, thus still allowing contractual interest to be claimed !!

 

I would love to see some senior mods show us how to apply this to our own claims, but perhaps it requires a few other claims to go through on a "suck it and see" basis, first. Until then, I believe that our claims are based on there being a contract actually in existence, as opposed to being just implied by the T&C's.

 

I am in favour of applying for a true copy of the original contract (under the Consumer Credit Act) prior to making a claim. If it can be produced, then fair enough - but if it can't, then that must be in our favour. It only cost £1 to request, too !!

[TANZARELLI]

One helluva - and you, mate ?

 

Indeedy.

 

PS Bong that looks bang on FWIW, not that i'm an expert, but it seems to read well.

 

Tanz

[nevos]

Hi Bill: The contract part always worries me a bit as if one has signed so to speak then one is a bit bound by it as in effect we have agreed to the Terms therein. I guess that justwon by rejecting the contract had in effect dismissed a magor part of the defence, though I doubt that the Banks function as it is could in fact enforce it.

[bill-k]

Sorry for the hi-jack chit-chat, Bong. I forgot where I was, and left my manners elsewhere !!

 

I think that's where we're in a win-win situation, Nevos. If there IS a contract, then we claim our right under it to contractual interest. If there ISN'T a contract, then we still claim it on the strength of the T&C's, and the fact that the bank had been taking theirs !!

[nevos]

Hi Bill and Bong: Sorry it was my fault! I had posted into the wrong thread, had used some information from Bong's but had so many windows open I confused myself, this is not difficult to do by the way for me.

[Guest bong]

letter sent to DG yesterday notifying them that claim has increased by £100 AQ fee paid.

[last in]

I can't wait to see how this turns out, am totally rooting for you bong - your knowledge and eloquence has impressed me, let's hope it makes HSBC faint in terror

[TANZARELLI]

I can't wait to see how this turns out, am totally rooting for you bong - your knowledge and eloquence has impressed me, let's hope it makes HSBC faint in terror

 

Ditto, she has a way with words.

 

Tanz

[RedDeath]

Bong, I have just found your post. I am going down the same path as yourself so I will be watching this thread with great care. All I can do is wish you the very best. May 2007 be a prosperous year to you and all in this forum.

[Guest bong]

thank you redDeath and may it be an excellent year for you too.

[Guest bong]

I submitted an application to have the defence struck out today. I don't have experience of these things and have no idea if it will be accepted or not but lets see what happens. I have an idea I may have missed the boat on this if the AQ has already been sent up to the judge.

 

 

Part A

 

I xxx

 

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

 

1. the defence be struck out pursuant to CPR 3.4(2)(a) and (b).

2. Summary judgement including an order for costs be granted in favour of the claimant as sought in the Particulars of Claim, under CPR part 24.

 

because

 

1. the defence discloses no reasonable grounds for defending the claim.

2. the defence is likely to obstruct the just disposal of the proceedings

3. on the evidence, the claimant believes that the defendant has no real prospect of successfully defending the claim

4. the claimant knows of no other reason why the disposal of the claim should await trial.

 

Part B

 

I wish to rely on evidence in Part C in support of my application.

 

Part C

 

The defence discloses no reasonable grounds for defending the claim. The defendant has not identified the terms and conditions ("contract") that govern the operation of the claimant's account. In order to satisfy the requirement of reasonableness the defendant would need to have identified the contract and given full consideration to the claimant's account records, particularly since the primary basis of the defence is that charges applied to the claimant's account were (allegedly) made in respect of contractually agreed services (which is denied). The defence was pled in some vague and contradictory manner, without knowledge of the contract or the claimant's account and therefore without proper regard for the transactions in dispute.

 

Further, the defence is not relevant to the claim because the defendant makes denials of non-existent allegations. The claimant did not make any allegation in her particulars of claim in respect of The Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCR"). However, the defendant denies that its charges are unfair contract terms for the purposes of the UTCCR, denies that the UTCCR are applicable to its charges and denies, in the alternative, that its charges are unfair contrary to the UTCCR.

 

*The defendant has had many cases concerning its default charges raised against it by consumers who have been made aware that the charges are unlawful by the publication of the report of the Office of Fair Trading in 2006 and the subsequent media coverage of consumers who have successfully obtained out of court settlements/refunds of their unlawful bank charges. These cases are usually settled for the full amount just before the court trial date, which ensures that the defendant is not required to justify its charging regime but does result in a lot of wasted court time, considering these matters could easily be settled when the claims are initially issued or even before that stage.

It is against this background and the inclusion in the defence of irrelevant information, that the claimant avers that the defence was prepared in the manner of a bulk response to various unrelated and irrelevant court proceedings issued against the defendant by other claimants, and is not relevant to her claim.

 

Accordingly, this court should seek to give effect to its overriding objective and strike out the defence at this early stage so that no more valuable court resources are wasted in dealing with a claim where the defence; has no real prospect of success; discloses no reasonable grounds for defending the claim; is likely to obstruct the just disposal of the proceedings, and where the defendant will almost certainly settle for the full amount anyway.

 

In view of the above averments the defence should be struck out and summary judgement granted, with an order for costs, in favour of the claimant as sought.

 

*The claimant is aware of 67 other claims that have been issued and settled in full out of court by the defendant. A list of these claims is attached on two pages, marked exhibit A.

 

The defendant's attention is drawn to CPR 24.5(1) which states as follows: If a respondent to an application for summary judgement wishes to rely on evidence at the hearing, he must (a) file the written evidence and (b) serve copies on every other party to the application.

 

Statement of Truth etc.

[chezt]

Good Luck Bong! Looks great to me!

[GaryH]

Nice work Bong. Can't wait to see what result comes of it - well, well worth a try anyway. Looks like we could be starting to turn the screw now, what with the recent order made by the judge in Lincoln.

[Guest bong]

thanks chez. I've just been reading about an order that was given by a judge in Lincoln for Lloyds to provide details of all cases that they have settled before trial and all cases that have proceeded to trial, otherwise the defence will be struck out because it is an abuse of process. It does give me hope but knowing my luck I'll get a boring old f*rt of a judge who will tear mine up. Hope not though:D

[Guest bong]

cheers Gary. yes lets hope this judge in Lincoln isn't gonna keep it to himself and that they've all clubbed together to find a way out of this stupid situation.

[photoman]

For anyone viewing and curious, heres the link to the Lincoln court direction.

http://www.consumeractiongroup.co.uk/forum/post-467620.html

 

OUT OF COURTESY TO AVOID HI-JACKING BONG'S THREAD, DON'T POST ANY COMMENTS ABOUT THIS HERE, POST THEM ON THE RELEVENT THREAD, UNLESS THE COMMENT IS PERTINENT TO BONGS CASE.

 

Hi Bong, still watching your case with interest, hope all is well. PM

[bill-k]

Bong - that strike-out application looks awesome to me, but all your stuff does, anyway !! I really hope it does the job, but Kazzaw's order is another chance as well, now, too, isn't it ? Looking good to me.