Wilkins vs Halifax ***WON***

[WILKINSS208]

can section 5 be used. i used all relevant sections for my claim etc and more and read my court bundle and have tried this to be struck out same day. cant believe it! what can i do, anything?? they never submitted one before the 14 days.

[paulwlton]

can section 5 be used. i used all relevant sections for my claim etc and more and read my court bundle and have tried this to be struck out same day. cant believe it! what can i do, anything?? they never submitted one before the 14 days.

 

Have they mentioned the use of sec 5 in their Defense yet?

[WILKINSS208]

yes they mentioned that in their defence, but judge still allocated to small claims court, then asked us to produce a court bundle. i sent mine last thursday as we were told had to send in before 14th day of court hearing. i sent mine but halifax did not.

if they mentioned sec 5 in defence but judge still allocated to hearing, should judge strike out? or do you think there is something else they are using? can court tell me the reason?

[paulwlton]

yes they mentioned that in their defence, but judge still allocated to small claims court, then asked us to produce a court bundle. i sent mine last thursday as we were told had to send in before 14th day of court hearing. i sent mine but halifax did not.

if they mentioned sec 5 in defence but judge still allocated to hearing, should judge strike out? or do you think there is something else they are using? can court tell me the reason?

 

They may have made an application to strike out using sec 5, i think it's down to the judges discretion to allow the application.

In your AQ did the bank state they were going to make an application to strike out.

 

The judge will not necessaraly strike the claim out but order the hearing to be an application hearing, has oposed to a final hearing.

 

A similar situation arose in my case after being allocated a date for a final hearing the judge ordered an application hearing.

 

Paul

[WILKINSS208]

what happens in application hearing?

in their defence to my claim, they said:

 

the particulars of claim do not disclose any legally recognisable claim against the defendant and the defendant respectfully requests that the court gives due consideration to where the claim should be "struck out" pursuant to CPR part 3.4(2)a and the practice direction which supplements CPR part 3.4

 

They also mention:

 

the particulars of claim state that the claimants claim is based on contract and as such section 5 of the Limitation act 1980 applies. Sec 5 stated that an action founded on simple contract cannot be brought after the expiration of 6 years from the date on which the cause of action accured. and accordingly the defendant submits that the remainder of the claimants claim is statue barred.

 

I now feel the halifax are in control!

[paulwlton]

In small claims. At any stage the District Judge can make an order of his or own initiative without notifying the parties in advance.

 

Don't worry too much in most cases this is bound to happen and i've been working on something will pm you.

[WILKINSS208]

i realise the judge can, but how can the halifax just step in and throw something else in. surely, if they havent done as judge asked in the first place they are wrong not me!

[Glenn UK]

I have had a quick look back through your thread, i cannot see the details of your claim set out, perhpas i missed it.

 

Can you summarise where you are ie is this only charges older than six years and if so what grounds did you use to refute sec 5 limitation Act?

 

Glenn

[WILKINSS208]

my claim is 1991-2006. the halifax have paid me 2000-2006, but defended the rest under sec 5. i however, went ahead with the claim and the judge allocated to small claims court even after their defence.

the judge informed both parties to produce a court bundle before 14th day before court hearing. i sent my on thursday and halifax must of rang court the same day to ask for strike out.

i am now awaiting judges decision........

court hearing 22 march - or will it now....

in my court bundle had all the things, including section 32 etc

[Glenn UK]

Well the inclusion in your court bundle is good, depending on what the court receives they may or may not strikeout the claim, however, if they have listed it already based on your POC then it seem unlikely.

 

Applications to strike a claim should normally be made prior to the submission of AQ i recall.

 

Even if the court does strike the claim out its probable they will allow an appeal and if its simply a procedural matter then correction of the matter will usually suffice to see the claim reintroduced i believe.

 

something i think that should be highlighted as that where the defendant offers claimants partial settlement in respect of charges newer than six years this should be resisted using the templates in the library.

 

Keeping the claim in tact as a single entity is preferable when ever there is anything unusual about it.

 

It removes the exposure of the claimant to having to argue their point in court on what is IMHO a strong legal position, but they may not have the skills to argue against an experience barrister.

 

JMHO

 

Glenn

[WILKINSS208]

so what you saying - yes or no to me

[Glenn UK]

yes they can do this

 

Is that what you meant?

 

Whether they are succesful is another matter and is in the jduges hands i now.

 

glenn

[WILKINSS208]

what do you mean about the mentioning of partial settlements etc. i mentioned they offered part settlement, but wrote the standard letter to accept as part payment only

[WILKINSS208]

should i hear this week from judge, considering hearing 22 march

[TideTurner]

Wilkins,

 

Take a deep breath. You must consider the sheer volume of claims being dealt with by the Courts. The more cases are defended, the higher the risk to the Banks that the Judge will rule an abuse of process.

 

The Judge will consider your position, and the might of the Banks and the resources available to them.

 

If it is struck out and you appeal, they will have to go through the process again, and you will be better prepared.

 

They cannot afford to roll over and admit what they have been doing is wrong, but it might be an idea to bring Kazzaw's thread (Lincoln) to the attention of the Court.

 

You can do this by letter.

 

Tide

[WILKINSS208]

i thought my bundle was fab. took 2 months to do and 112 pages long. full of other reference cases, letters, etc etc

i feel all of this was a waste. how can halifax just do this without submitting a bundle

[TideTurner]

Wilkins,

 

They are simply playing for time and trying to get it thrown out under S.5.

 

I'd wait and see what the Judge has to say on it, I can't see a Judge throwing this out, and think they have asked for further time to deal with it.

 

Tide

[WILKINSS208]

i hope so!

would judieg give them more time to defend again? they have already wrote a defence after I filed the MCOL. they have failed to submit bundle after judge asked them too. surely, this doesnt look good. have had from 15 january 2007 to do something but left until 11 days before hearing!

[Boris303]

Been following this thread for a while now.

 

Just want to say, stick with it Wilkins, your doing great from what i see.

[dazzaboy2]

Hi wilkins,

 

In response to your post on my thread, I am out of my depth on this one!

 

I won purely by default as HBOS failed to submit a defence. I have no experience whatsoever with what you're going through.

 

Good luck tho, take a deep breath, relax and let things unfold!

[WILKINSS208]

i hope its a good unfold, LOL

[WILKINSS208]

sitting waiting for post and see if anything from court or halifax.

i cant cope with this, excitement getting the better of me..........i am nervous for court but will not give up at this stage.

can anyone help me also on another case:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/61212-two-accounts-wilkins-capital-2.html

 

why i choose to run 2 difficult cases together beats me! LOL

[WILKINSS208]

Nothing From Either

[TANZARELLI]

sitting waiting for post and see if anything from court or halifax.

i cant cope with this, excitement getting the better of me..........i am nervous for court but will not give up at this stage.

can anyone help me also on another case:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/61212-two-accounts-wilkins-capital-2.html

 

why i choose to run 2 difficult cases together beats me! LOL

 

2, I got 1 Barclays 2 Barclaycard, one HSBC, and a Capital One to boot, plus got 3 mates claims going and 2 others at SAR stage. I must be mad. lol:eek:

 

Tanz

[sallysas]

Ha!!!! I can file for judgment against haliprats and natwest next Wednesday, awaiting SARs on 5 accounts (2 of which I have threatened with court action within 7 days) and awaiting 3 replies to prelims. And there's more.

 

It's nice to have a hobby. Sally