Started taking on Barclaycard

[barracad]

Other inormation is for information to help with case management only - e.g. will there be a lot of paperwork for the judge to look at - do you have any special requirements e.g. wheelchair access. That kind of thing.

 

It's not to be used for details regarding the case e.g. evidence you will be referring to etc - that comes at a later date.

 

There is a guide to completing the AQ in the bank templates library on this site.

[hannanshah]

I've looked at the AQ guide. So your suggestion is to avoid any mention of specific case details for the moment and just tick the right boxes for now? I'm assuming that all the evidence will therefore be presented at any future court appearance (if Barclaycard actually go that far!).

[barracad]

Correct - the AQ is purely for case management purposes.

[give_me_it_back]

Hi - any update on this yet..?

[hannanshah]

Hi - any update on this yet..?

 

No. I sent back the AQ 2 weeks ago but I have heard nothing since.

[hannanshah]

Is this supposed to take this long. It's been six weeks since I posted the AQ but I've heard nothing from the court. What should I do now?

[give_me_it_back]

Sorry - it's different in Scotland (where I am), so I am not sure about AQ's and stuff...

 

Can you not just call the court and ask?

[hannanshah]

Just phoned the court and I was told that the judge 'stayed' the claim on August 3rd. I don't really understand any of this but I made it clear to them on the phone that I hadn't received any communication since I posted back the allocation questionnaire. I was told I'd be sent a copy of the order and if I had any issues I should write back. Can anyone explain what's going on?

[hannanshah]

Thanks for the help karnevil.

[hannanshah]

I got the copy of the order I requested today.

 

===============

 

Before DISTRICT JUDGE BEATTIE sitting at Bow County Court, 96 Romford Road, Stratford, London, E15 4EG.

 

Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

IT IS ORDERED THAT

 

1. This claim is stayed pending the decision of the London Mercantile Court in ELLIS -V- LLOYDS TSB.

 

2. If no request to restore is received by 23.7.07, the claim is struck out.

 

Dated 03 August 2006.

 

===================

 

I only received the court order today so I am assuming I have 7 days to take action though I will obviously have to explain that I received the copy of the order much later than I should have. What's should be my next step?

[pugsley]

wow that isn't very organised of the court!, I will probably be filing at that court too, so lets hope they get it together... You should ring them again saying that the date of receipt of the stay was not compatible for restoration of the claim..

[hannanshah]

Can anyone guide me on the next step? I've seen karnevil's post #35 but am a bit unsure as to how to proceed. I've only got five more days to try and get the order changed.

[pugsley]

bump

[hannanshah]

Okay I've looked at the link in karnevil's post and it seems as though I will have to pull out another £35 for the application for removal of the stay. Can I claim this money back later? I could also do with some help in filling in form N244 as I not sure how to fill in much of the beginning bits.

 

Also Bankfodder's letter (http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay.html) talks about 'Annexe 2' which contains additional information. Where is this information and how do I include this?

[hannanshah]

Yes it's the list of settled cases.

 

Here is a link to form N244: http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

I understand that Bankfodder's letter goes in part C. A bit unsure on how to fill in the stuff in the top left corner as well as Part A.

 

Also with regards to thre £35 fee, will I be able to claim this back if the stay is removed?

[BankFodder]

Please will you pm me and also Caro with the details.

When is the deadline for the appication to remove?

 

Don't make any application until we have discussed it

[hannanshah]

An update. After Bankfodder's excellent help over the phone I submitted an application to remove the stay on 29 August 2006.

 

It contained the following part C statement (all credit to Bankfodder) plus a spreadsheet containing a list of all the cases settled (from the Litigation Concluded forum)

 

PART C STATEMENT FOR N244 APPLICATION

I respectfully request that the stay which was ordered on 3 August 2006 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 £40.00 (plus court costs and interest), 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.

 

Barclays Bank

The defendants Barclays Bank have already settled at least 6 similar cases.

In the attached list of cases, the court will see that Barclays were defendants in 6 cases. In fact there are many others whose details are not available to me. In some of these Barclays actually filed defences and actually returned their allocation questionnaire, obliging the claimant to do the same. However, in every one of these cases, Barclays settled the matter before the hearing.

 

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 12 page sample list of 294 cases complete with county court reference numbers (Annexe 1) - of which the claimant is aware and which have been started since February of 2006. All of them have been settled before the hearing.

Many of them have even received default judgments against the defendant banks in question, which have then been set aside on application by that bank and then which have 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 their contractual penalties.

It is submitted that were the predicted test case still in progress it would be unlikely to go to a hearing and that it would be settled out of court and therefore produce no useful decision from a higher court. However, the claimant has discovered that the test case referred to by the court has ELLIS –V- LLOYDS TSB is in fact called ELLIOT -V- LLOYDS and that this case was in fact settled out of court after the defendant bank made a payment in full of Mr and Mrs Elliot’s claim. Therefore it is submitted that the basis of the court’s order to stay my claim no longer exists.

It is further submitted that the defendant in this 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.

It is submitted that if the banks were claimants rather than defendants that this style of litigation would be deemed Vexatious.

 

 

Balance of convenience

The sum claimed is insignificant to the bank. 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.

It is submitted that a stay may potentially mean 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 294 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.

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 this 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.

 

Costs

I would respectfully request that as the grounds for the stay no longer exist and as the stay was made on the court’s own initiative that the cost of this application be returned to me or that the costs be awarded against the defendant in the event that they settle my claim at any stage.

 

Today I got an order from the court:

 

Before DISTRICT JUDGE VOKES sitting at Bow County Court, 96 Romford Road, Stratford, London, E15 4EG.

 

Upon reading Claimants application dated 29.8.06

 

IT IS ORDERED THAT

 

1. The stay be lifted.

 

2. The action be transferred to the Mercantile Court (High Court of Justice).

 

Dated 02 October 2006

 

All this hassle for 40 quid! If Barclaycard had any sense they'd have settled this ages ago.

[hannanshah]

Here's my original thread:

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/5356-started-taking-barclaycard-3.html

 

I received a copy of the order today saying that my claim has been transferred to the Mercantile Court.

 

I'm only claiming £40 (a lot for a student!) but it's been a load of hassle so far! Hope I can utilise the £9.25 costs per hour!

[keren29]

Good grief.........Mercantile for £40?!!!

 

I'd bet this will be settled very very fast!!

[austenpowers]

Good luck Hannah and 10 out of 10 fpr perserverance! You certainly deserve your 40 quid after all this.

[hannanshah]

So what happens now? Do I just sit here and wait for the inevitable settlement offer from Barclays?

[file_wizzard]

So what happens now? Do I just sit here and wait for the inevitable settlement offer from Barclays?

In short yes, however the Mercantile will no doubt indicated that the small claims procedure shall apply to the claim so unfortunately you will not be able to claim preparation costs.

[hannanshah]

Okay it's been a while now and I've heard nothing since I was told that my case was being transferred to the Mercantile Court. I know the courts are VERY slow but surely I should've heard something by now.

[xfox]

I'm in for the 11th of Dec 2006

[hannanshah]

My case was transferred to the Mercantile Court in October. I haven't heard anything from the courts since this order was issued. Is it really supposed to take this long?