@santanderbankgb Bounced Cheque - Cause for Action for Damages? ** VICTORY IS MINE **

[slick132]

Excellent result and congratulations.

 

What a shame you weren't there to witness the HCEO's visit !

 

[madpriest]

Latest

 

Santander's solicitors called this morning essentially saying "WTF?"

 

Santander claim that they never received the claim form --- "Well they would say that wouldn't they"

 

Do you think that they might claim the money back and if so how?

[BankFodder]

I expect that they will attempt to have the judgment setaside.

 

If they succeed then it will be set at zero and they will have to file a defence.

 

In order to succeed in a setaside, they will have to show that they did not receive the claim and that they have a reasonable prospect of success if they are allowed to go ahead and defend the claim.

[madpriest]

Questions.

 

Am I notified of an application to set aside?

 

Can I ask for an oral hearing?

 

Can I oppose it?

 

Any Hints?

 

Thanks

[BankFodder]

Yes, you would be given notice of the application and you can oppose it - but it can be tricky.

[madpriest]

@Bankfodder

 

Thanks received.

 

Seeing that I sent a formal complaint to a particular address and got a response ...

Seeing that i sent a Letter Before Action to the same address and got a response

It is unreasonable for the bank to claim that they never got it.

 

Yeah I'll oppose

 

L

[madpriest]

OK - so tonight the brown excrement hit the oscillating device.

 

Obviously Santander's Solicitors are burning the midnight oil because at 8:30 pm tonight I got a batch of papers

 

1. They have issued an N244 to stay the enforcement, specifically, to stop the HCEO paying me the cash.

This to be decided WITHOUT notice

 

2. They have issued a N244 for set aside on Notice with a 45 minute hearing

 

Deep Joy - We get to argue a BCOB if we have to

 

meantime @bankfodder -- I'm sending you papers

[madpriest]

More and more missives from Santander's solicitors.

 

We cannot see how (1) they can stay enforcement when it has already been enforced. and (2) we will fight the set aside

on the grounds that on the balance of probabilities, they did receive the claim and the judgement

 

Having said all that, even if they do win the set aside, we will be happy the fight the case on the grounds of BCOBS etc

 

 

Any solicitor out there who wants to help a little church with a pro-bono please get in touch

[madpriest]

Ok an update as of this morning 27th March

 

There was a flurry of activity on Monday when Santander was trying to force the courts hand

by loads of emails and phone calls.

 

The long and the short of it is

 

a. There is going to be a hearing of their application to set-aside on 4th April at Norwich County Court.

 

What do I need to send or take with me??

 

b. It appears that there was NOT an order for stay of enforcement/execution. The District Judge

commented on the file .... "I am not going to conduct litigation on the basis of emails from the defendants".

 

What fun

[madpriest]

Morning everyone.

 

Well today I appear in Norwich County Court to fight Santander's two applications.

 

(1) To stay execution of the Judgement. I think it's too late. It's been executed already and the HCEO have sent me the cash.

(So nice to have the sheriffs give me money !!

 

(2) To set aside the judgement. I'm trying very hard to win that one as well although its likely that they will get their set aside

and we will have to fight the whole case in court. A Good BCOBS case that gets won, will set the tone.

 

Don't wish me luck. Just cry out ....... "Dominus Vobiscum"

[renegadeimp]

"Dominus Vobiscum" madpriest. Lets hope you nail these barstewards.

[Old Cogger]

"Dominus Vobiscum"

[madpriest]

Just back from court with a splendid result.

 

Their application to set aside the judgement was refused on the following grounds:

 

1. Papers in the case were correctly served.

2. They did not act speedily.

3. They hadn't a hope of winning especially as they had admitted the major claim in writing.

 

However there was a technical fault with the issue of the judgement and so the District Judge

replaced with judgement with an order for a hearing to assess damages. Has set 2 hours for the hearing

and has allowed me to replace the "not exceeding £4500" to "damages to be assessed by the court", i.e. unlimited !!

 

Not bad - I'll keep you all informed

 

Oh by the way - I have to pay the money I have had into court so I can't spend it -- BOO

[havinastella]

Excellent news MP. This is mainky down to your hard work and determination. Well done you.

[BankFodder]

Well done.

This is the first BCOBS judgment. Although it has not been fully argued. it is clear that the judge looked at their proposed arguments and decided that they didn't have a chance. This is a good start for BCOBS and maybe others will take a lead from it.

BCOBS is available as a simple action by any customer who has suffered unfair treatment at the hands of their bank. It can be brought as a small claim in the county court.

The BCOBS action has been available since 2009 and as far as I know, no one has brought one before now.

 

I can imagine that Santander will try to appeal but if they don't or if they do and they lose, then I hope that the judgment will be sent as part of a complaint to the new FCA - who I expect will show their colours and follow the example of the FSA by doing very little about it.

 

If people started taking BCOBS actions, the FOS would very soon start to become their redundant unless they pepped up their ideas a bit.

[citizenB]

Yes, well done MP. Just one question, does the changing of the "damages to be assessed by the court" mean that they could end up paying you a shed load more ?

[slick132]

Well Done MP !!

 

I'm so pleased Santander lost the Set Aside Application.

 

It'll be interesting to see how the damages are dealt with.

 

[Hacked_Off]

Oooh interesting read, well done!!!

 

Fight fight fight!!!!!

[madpriest]

@citizenB

 

It's now set at the discretion of the court.

 

Best case = shedloads more money. My current calculations are around £11K although it could be heaps more.

 

Worst Case - It could be nominal - say £100 on the grounds that I can prove no damage.

 

I don't think it will be nominal. There is sufficient case law that says that bouncing someones cheque when there are funds available is obviously defamatory and one doesn't have to prove anything by way of 'general damages'. If I was to say that I've lost business and could quantify those losses then it would be 'special' damages.

 

My best guess? Well it could easily be reduced to around £3.3K - down from £4.5K which I've got to re-pay into court who will hold it until disposal.

 

For those of you who get your rocks off by reading case law ...

 

Kpohraror v Woolwich Building Society

 

 

 

 

I just LOVE that case !

 

When this is over I'm going to post all the papers and perhaps suggest an N1 and POC for a BCOBS claim.

[BankFodder]

http://www.shweb.pwp.blueyonder.co.uk/kpohraror%20v%20woolwich.pdf

[madpriest]

OK -- I've now had the court order and date for hearing to assess damages - its 13th June - a 2 hour hearing.

So I need to be prepared - any advice would be appreciated.

 

Note for admins - What bright spark decided to censor the word "vobiscum" ?? It's latin and has nothing to do with the word s c u m ?!?!?!

 

 

[BankFodder]

A two hour hearing is very long.

 

Anyway, I'm not aware of any particular procedure - but anyway, the judge will manage it all - so don't be too worried about it.

 

Be very familiar with the law you are going to rely upon but in court you don't need to go into depth. Just refer to the case name and the principle - in not more than 50 words and then if the judge wants more clarification, you can go into it more deeply. However, you should generally be as brief as possible.

Let the other side strut and puff and pontificate. Your best bet is to be seen as a well-prepared litigant in person - emphasis on litigant-in-person.

 

I think that you need to present actual damage to you and then explain why it is significant to you. Don't propose a particular figure - but point out what has been decided in the past and then suggest to the judge that he uses that as a guide in your present case - but bear in mind that the authority you are relying on was decided X years ago.

 

It would be helpful to you to get statements from the people whose cheques were bounced if those people are prepared to talk about their surprise that payments were bounced, the effect on them and what fears they had about the probity of the church.

 

As for bundles - 2 days is very short in my view but there is nothing you can do.

 

The bundle should comprise your skeleton arguments - a brief bullet-pointed resumé of what you intend to say - accompanied by any particular documents you are going to rely upon - witness statements - and case references of any authorities you are going to rely upon - full references. No need to provide copies - the lawyers should have access to anything you refer to.

References to any reports or other documents which you intend to refer to.

Copies of bank statements etc should be included - not just referred to.

Make sure that they have your bundle a clear two days so you clearly comply with the court order.

 

Watch out for bundle games from the other side. They clearly haven't taken anything very seriously so far and it may continue that way.

 

If you don't get a bundle from them, then complain about it in court - but don't ask for extra time. Show willing on your part and emphasis ill-will and stupidity on their side - not heard to do.

 

I think that roughly, the order of service should be:-

 

 

• Introduce the elements for which they have been held liable - this especially will include a brief reference to BCOBS because the judge will most likely not have heard of it.Be sure to point out that it is a breach of statutory duty. You will have referred to BCOBS in your bundle but have relevant extracts with you so that you can pass them to the judge if asked.
  
• The damage you have suffered - either specifically or generally with supporting evidence. Examples of how that kind of damage has been compensated in the past.
  
• Try to be as brief as possible and each time you think that you have made the point, you can ask the judge if there is anything else you can help him with on that point.
  

 

Be alert to the other side who will probably try to introduce red herrings - such as still bleating on about the fact that the claim has not been fully argued and that it is not fair etc. Don't be worried about interrupting them gently by truning to the judge and saying "excuse me sir, but the defence ha had their chance, this has already been raised and dismissed in the setaside hearing - they really are trying to go over old ground etc.

I am sure that the judge will agree with you and will tell them to move on.

 

If they try to refer to documents which they have not given you notice about, then call the judge's attention to it and point out that this was not included in the bundle - but in order not to delay matters you aren't going to make an issue of it but that it is rather typical to the cavalier attitude that the bank have had towards the entire matter - and that you will do your best - but please to remember that you are only a litigant in person.

[madpriest]

Bank's Solicitors wrote to offer me £500.

 

I think not .......

 

At the last court order, we had to send cases being relied on etc

within 2 days of the hearing. Which is no time.

 

I've written politely asking them to agree 7 days and also to agree to send me full copies of the cases they are relying on as I dont have Westlaw.

 

If they don't agree to this polite request, I will consider an N244 seeking directions.

[citizenB]

 

What bright spark decided to censor the word "vobi****" ?? It's latin and

has nothing to do with the word s c u m ?!?!?!

 

Not guilty, .. this is an automated filter, nothing to do with the site team

[GuidoT]

Good work MP.