Stax68 v HSBC

[stax68]

So that is the claim up to date. Allocated to the fast track, with a 15 min case mgmt hearing on the 24th. An application for leave to amend in progress but not yet submitted, and a Part 18 request for info put in to the opposition.

 

Anyone got any info on what will happen at the hearing, or any other info/advice/criticism/abuse?

[stax68]

Thanks GG. Didn't see your post until after I'd posted the previous entry. Keep watching - something is going to have to give soon I reckon.

[stax68]

Date: 17th May 2007

Dear Sir

XXXXXXXXX –v- HSBC Bank plc

Claim Number: XXXXXXX

Our client remains confident that those charges claimed prior to 28 December 2000 are statute barred pursuant to the Limitation Act 1980. Nevertheless, our client may be prepared, on a without prejudice basis, to consider refunding some of the earlier charges that fall outside the limitation period.

However, before our client can do so, you will need to provide evidence to show that all of the charges that you say were applied to your account were in fact applied to your account. Our client does not maintain, nor is it required to maintain, records beyond six years. If you would like our client to consider making an offer in respect of the charges allegedly applied prior to 28 December 2000, you will need to provide us with copy statements in relation to all such charges. We will then consider with our client whether it is prepared to increase its offer. In any event, as you are no doubt aware, should this matter proceed to a final hearing, you will need to prove to the Court that all the charges you say were applied to your account were in fact applied to your account.

We look forward to hearing from you.

Yours faithfully

DG SOLICITORS

[stax68]

Ask for: Rachel Tomlinson

Date: 21 May 2007

 

Dear Sir

XXXXXX XXXXXX -v- HSBC Bank plc

Claim Number: XXXXXXXX

Part 18 Request

We refer to your Request for Further Information (the Request) received by us on 10 May 2007. We will respond to the request on or before 24 May.

 

Yours Faithfully

 

DG SOLICITORS

[stax68]

from XXXXXX

to Rachel Tomlinson

cc

Deborah D'Aubnay ,

Naomi Wharton

date 18-May-2007 14:38

subject Part 18 request - claim no 6QZXXXXX

 

Dear Ms Tomlinson,

 

Thank you for your acknowledgement of receipt of my email of 10 May 2007, entitled "Important documents relating to claim no 6QZXXXXX", which contained a request for information under CPR Part 18. (the Request).

 

In the Request, I asked that you supply me with all documents specifying the terms, past and present, of the contract governing the operation of my bank account. I also asked that this information be provided within one week. I further specified that in the event of your declining or otherwise failing to supply this information, you should send an explanation for

such failure, also within a week.

 

I am sure you would not make the quite incredible claims that you do not possess this information or that significant research is required to gather it. Furthermore, I would expect to be furnished promptly with the requested information in the interests of transparency and good faith dealing, not to mention basic courtesy. This is particularly so since I am a party to a contract whose terms have been frequently modified by the other party without negotiation or prior consultation. I am accordingly very disappointed that the reasonable deadline I specified has now expired without any explanation from you of your delay in complying.

 

Please supply the aforementioned information immediately. Please also reply to this email explaining your conduct in this matter. I refer you to the provisions of Part 18 of the Civil Procedure Rules, and to the Practice Direction accompanying that Rule.

 

May I remind you that a case management hearing has been scheduled in this case to take place in less than one week's time, and that I shall certainly seek to raise this matter with the court at that meeting.

 

The deadline for supply of the remaining information falls on the morning of 24 May 2007 - the scheduled date of the abovementioned hearing. I request that a copy of all responses you may have prepared by then to any part of the Request be brought to that hearing and handed to me in person, notwithstanding that you may have used, or intend to use, any other means of delivery in addition. I am sure that you will not wish to cast doubt on your bona fides by refusing this simple request.

 

yours sincerely,

XXXXXXXX

[stax68]

Please ask for: Rachel Tomlinson

Date: 21st May 2007

Dear Sir

 

XXXXX -v- HSBC Bank plc

Claim Number: 6QZXXXXX

 

Part 18 Request

 

We refer to your Request for Further Information (the Request) received by us on 10 May 2007.

 

 

In accordance with points numbered 1 and 2 contained within the Request please find attached copy documentation.

 

Yours faithfully

 

DG SOLICITORS

Enc.

[stax68]

Along with the above letter came 86 pages of photocopies of photocopies of some selected T&Cs. No contract relating to me, and certainly not all the T&Cs covering the life of the contract. The older ones were only 'extracts' - they did at least send the bits dealing with the issue of unauthorised overdrafts, admittedly, but who knows what was in the bits they didn't include?

 

A rundown of what was included, using their own headings (handwritten on the photocopies of which they had sent me photocopies):

 

Terms + conditions 2004 - 30 Nov 2006

these appeared to be complete - 46 photocopied pages each with one page of the 48 page booklet - you know, the kind of horrible little shiny booklet that looks just like junk mail so you will throw it away immediately. The omitted pages were 2 and 47 which I think were blank.

 

Extract from terms + conditions 2004 (month unknown)

2 photocopied pages covering 4 pages of the T&Cs booklet

 

Extract from terms + conditions June 2005

Again 2 photocopied pages covering 4 pages from the booklet. The existence of these T&Cs contradicts the heading of the first set, which seems to state that they cover the period from 2004 - Nov 2006.

 

Extract from terms + conditions January 2004

4 on 2 as above

 

Extract from terms + conditions September 2002

6 on 3 this time.

 

Extract from terms + conditions July 2002

6 on 3

 

Extract from terms + conditions April 2002

4 on 2. Looks like 2002 was a busy year for T&Cs - no wonder I never got round to running them all past my solicitor

 

Extract from terms + conditions July 2001

4 on 2.

 

Extract from terms + conditions October 2000

4 on 2.

 

Extract from terms + conditions September 1999

4 on 2.

 

Extract from terms + conditions January 1999

3 on 3.

 

Extract from terms + conditions January 1997

3 on 3.

 

Unlabelled

An assortment of price lists with 01/02, 10/02, 04/04, 07/04, 08/04 and 09/06 in the printer's blurb presumably signifying month/year.

 

So not exactly full cooperation, but of some use, esp. the 1997 ones.

[stax68]

 

 

[stax68]

Please ask for: Rachel Tomlinson

 

Your Ref:

Our Ref: DMD/NW/XXXXXX

Date: 22nd May 2007

 

Dear Sir

 

XXXXXX -v- HSBC Bank plc

Claim Number: 6QZXXXXX

 

We refer to the above matter and to previous correspondence.

 

HSBC is confident that its charges are fair and reasonable, they were properly and fully disclosed in its terms and conditions and published price list and you must have been aware that you would incur such charges depending upon how you managed your financial affairs. HSBC is confident that it was entitled to apply these charges and that it would successfully resist your claim in the Courts.

 

HSBC is, however, mindful of the time and expense that would be involved in defending its charges. For those commercial reasons alone, and without any admission of liability whatsoever, HSBC is prepared to make an ex gratia payment to you in the sum of £4,309.71. That payment is made in full and final settlement of your claims arising from the charges applied to your account in the period 30 March 1997 to 30 April 2007 (totalling £2,804) and includes statutory interest in accordance with the County Courts Act 1984 (amounting to £1,155.71) and your court fees (amounting to £350). By accepting this payment you agree not to make any other claims relating to these charges. HSBC also, reasonably, requires your confirmation that you will treat the terms of this settlement, together with the payment thereunder, as confidential.

 

The above offer includes £1,017.50 in respect of charges, which, being charges that were applied to your account before 28 December 2000, are statute barred by virtue of the Limitation Act 1980. Our client's stance in relation to these charges remains the same as previously articulated to you in correspondence. However exceptionally on this occasion and in order to bring this matter to an amicable settlement our client is prepared to refund all of these charges to you.

We continue to disagree strongly with your analysis of the law in relation to your claims for compound interest and overdraft interest. Regarding your claim for compound interest, as we have previously pointed out to you, the House of Lords case Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 ALL ER 961 is authority for the proposition that, absent exceptional circumstances (that do not apply here), the court has no jurisdiction to award compound interest. You have singularly failed to explain to us the legal basis for this part of your claim. As for our claim for overdraft interest, as we have previously explained. you are, in effect, seeking a double recovery because of your claim already includes interest. Again, you have failed to explain to us the legal basis for this claim.

 

We believe the offer contained in this letter to be a generous and fair offer in the circumstances, particularly in light of the fact that the offer includes £1,017.50 in respect of statute barred charges. The facts of your claim have been considered with due consideration to the CPR, particularly Part 1. We consider that a clear and genuine attempt has been made by our client to settle your claim.

 

If you accept this offer please arrange to sign and return the attached copy of this letter. Taking into consideration the hearing listed for 24 May 2007, we should be pleased to hear from you before close of business on 23 May 2007. We would also ask you to notify the court immediately in the event that you accept this offer.

 

Should you be minded to refuse the offer set out in this letter then the case will proceed and the Court will give directions for the future conduct of the case at the 24 May hearing. At that hearing, our client will submit that in light of the fact that its offer relates to all of the charges applied to your account, your Part 18 Request is now redundant. Furthermore, our client's position is that Requests 3 to 23 of your Request are not "concise and strictly confined to matters which are reasonably necessary and proportionate to enable [you] to prepare [your] own case" as required by the Practice Direction to Part 18.

 

We should also remind you that this case is in the fast track and that you are therefore exposed to our client's costs incurred in connection with your claim in the event that you lose at the final hearing. When deciding the question of costs, the court will take into account the conduct of the parties, including the unreasonableness of any rejections of offers to settle.

 

We reserve our client's right to draw this letter to the attention of the Court on 24 May.

 

Yours faithfully

 

DG SOLICITORS

 

I accept the sum of £4,309.71 in full and final settlement of my claim against HSBC for the charges applied to my account in the period from 30 March 1997 to 30 April 2007. I agree not to make any other claims relating to charges for the period stipulated above. I also agree to keep the facts of my claim and HSBC's ex gratia payment strictly confidential.

 

Signed: ...................................................Dated:..............................................

(Mr XXXX XXXXX)

[lateralus]

do my eyes deceive me or is that a big fat offer you've just accepted! or perhaps you aren't accepting.

i never understood one word of your thread - but i can see that!

 

is it congrats time or not????

[photoman]

Stax,

You are obviousley determined to get the most just outcome from this case. It is an inspiration to us all.

HSBC's solicitors bill must be running out of control on this !!

On this basis alone, they should just cut their losses and settle, regardless of any projected outcome.

Otherwise, we'll be watching this one all the way, until it lands on the lap of the Queen !!

Best Regards

 

Photoman

[stax68]

i never understood one word of your thread

 

Lol! Sorry if my drivellings can get a bit obscure! They seem to make sense at the time, to me anyway!

 

As to the offer - I regard it as an insult. I have made my position quite clear - I require payment of £11, 533.10 - and I intend to stick to it. Their persistent evasion, delay and attempted intimidation only serve to make me even less inclined to compromise my principles for mere convenience. Harrumph. (Pauses for breath...)

 

Thanks for asking, though! Good to know someone out there is reading some of this stuff. After four months, things are finally shifting up a gear I think, so there may be some interesting developments in the next few days...

[lateralus]

i remember when you first posted - so i do keep an eye, be it a cross-eye on your thread, i just help with the easy stuff and sometimes where to find things - you go for the big one! it's lovely to see!

 

photoman - you do know that dg is hsbc's in-house solicitor firm - so you could say they own them - like they own metropolitan collections - so, don't think they will go bankrupt paying them, it's all from the same pot!

[photoman]

i remember when you first posted - so i do keep an eye, be it a cross-eye on your thread, i just help with the easy stuff and sometimes where to find things - you go for the big one! it's lovely to see!

 

photoman - you do know that dg is hsbc's in-house solicitor firm - so you could say they own them - like they own metropolitan collections - so, don't think they will go bankrupt paying them, it's all from the same pot!

 

WHAT !!

D&G (Dolce & Gabbana) are owned by HSBC !!!!

 

[pinkduchess]

lol - new outfits all round then

[stax68]

from XXXXXXXX

to Rachel Tomlinson

cc [email protected]

date 23-May-2007 13:35

subject Re: XXXXX XXXXXX -v- HSBC Bank plc Claim number: 6QZXXXXX Directions Hearing listed 24th May 2007 at 10:00am

 

Dear Ms Tomlinson,

 

XXXXXXXXX v HSBC

6QZXXXXX

 

I refer to your letter, a hard copy of which I received this morning, and which was attached as "Scan NW 22.pdf" to the appended email.

 

1. Your latest offer

 

Since you seem to have left this move very late, I am replying in some haste to let you know that I, quite reasonably, do not accept your offer, which represents less than half of the amount which I stand to recover in the courts. I would remind you that by maintaining an untenable position for a long time, you cannot render unreasonable my conduct in refusing to compromise my claim.

 

2. Your latest informal concession

 

However, I note with weary approval that you have for negotiatory purposes abandoned the limitation defence, which now joins on the scrapheap of previously vehemently asserted claims your now long-extinct protestations that your charges are lawful. It is a shame that you could not have acted earlier, and that you continue to assert vague and feeble reasons for withholding payment in regard of the remainder of my claim.

 

3. The reasonableness of the parties' conduct

 

May I make it clear that we are not haggling: I did not inflate my claim in the expectation of making concessions later. I would regard such a practice as an abuse of the court's process. I have stated my claim and heard nothing to convince me that it is untenable. As legal professionals employed by a major corporation, I would expect you to be able to explain clearly any defence which you genuinely believe viable. The only authorities you have cited comprise: one statute in support of the now-abandoned limitations defence; and one case, the relevance of which you have still not made clear even in your latest letter which merely alludes, rather coyly, to some of the circumstances in which compound interest may be awarded and in the same breath brusquely asserts that they do not apply. Given your history of informal concessions and the insubstantial nature of your arguments, you have given me no reason to suppose that you have discovered some obscure obstacle to my claim.

 

4. The finer details of my case-in-preparation

 

This brief note is being drafted quickly, as you request. I will therefore not respond here to your remarks concerning the legal niceties of the claim, as I require time to give such due consideration to your submissions as they merit. I do not intend to be rushed into a response by your ostensible urgency to resolve the situation at this late date, particularly in view of the fact that you do not appear to have addressed even the outline case included in my statement of claim or the initial demand letter which you/your employer received on the 19th November last. As legal professionals in the employ of a multinational corporation, I would expect you to be able to understand the bases of my claim. Your insouciant protestations of bafflement must raise the suspicion that you are hoping to take advantage of some supposed lack of knowledge or expertise on my part, rather than on the merits of the claim itself. The details of the claim presented in court may depend to some extent on the information I have requested and which you have not yet supplied, nor explained your failure to supply - see below.

 

5. Your 'right' to draw the letter to the court's attention

Your most recent letter refers to previous correspondence and is made in the context of our ongoing discussions. It has no special status in relation to those discussions or the court proceedings, and it is my opinion that it would not be noticed by the court unless in conjunction with all the other communications which have preceded it. Many of those communications were marked 'without prejudice' by you. It is hard to see why the court would make an exception to the general rule that privileged discussions of this nature are not to be disclosed to the court before determination of the substantive issues. In any case, I do not accept that the effect of those communications is to portray my conduct as unreasonable. I suggest that on the contrary, they can be shown to reflect rather badly on you/your client. You are of course at liberty to settle the issue by make a binding offer or an admission - see below.

 

6. My Part 18 request

 

a. Your failure to comply

I am disappointed that you have failed to comply with parts 1 and 2 of my request, and that you have supplied no explanation of this failure. Your partial compliance with the request is appreciated - however, you have not supplied any contractual document specific to me, and you have not supplied all the terms and conditions which have applied to my account during its life. May I remind you that failure to supply this information is somewhat bizarre given that natural justice, the common law and freedom of information legislation somewhat overdetermine my right to this information quite apart from the provisions of the CPR. I intend to raise this issue with the court tomorrow.

 

b. Your intention to object to the request

 

i. On grounds of verbosity

 

Regarding the remainder of the request: It would be otiose for me to deny that it fails to the requirement of concision: those issues will, I suppose, be adjudicated - in my favour I am sure - by the court. My request is no more verbose than is necessary in the interests of precision. I do not take the CPR to require that precision be sacrificed for brevity. However, it may be that the superior drafting skills of the court wil make to it possible for similar directions to be issued in a different form.

 

ii. On grounds that it is unnecessary or disproportionate

The supposed redundancy of the application you seek to assert does not provide a distinct ground for objecting to it, and also provides the only ground you have stated for objecting on grounds of non-necessity or disproportionality. I therefore take the issue of redundancy to be identical to ( i.e. one with and the same as) that of non-necessity/disproportionality. In the absence of either an admission of liability or a binding offer of full settlement in relation to the central issue of the claim, that issue (viz., unlawfulness of the charges under at least one of the heads pleaded) must be regarded as still a live issue. Furthermore, even if that central issue were put beyond dispute, it may still be necessary to decide the status of those claims - by adjudication or admission - in deciding the other issues involved. Furthermoren, my claim for compound interest is in any case likely to draw on the evidence I seek to elicit. For example, such interest may be claimed in lieu of an account of profits to reverse, for example, either autonomous unjust enrichment or unauthorised profit by a fiduciary. I therefore regard it as unlikely that your submission will be viewed favourably by the court once I have been heard.

 

7. My willingness to accept a reasonable offer

May I take this opportunity to remind you that I am still willing to accept a reasonable offer of settlement, but that I do not see any reason why I should accept a sum substantially below the amount currently due to me - viz., £11, 533.10. It is entirely reasonable for me to allow this claim to go to adjudication if you refuse to pay. Part 1 of the CPR does not seek to make the courts redundant, only to prevent their abuse.

 

Yours sincerely,

 

XXXXXXXXXX

 

 

On 22/05/07, [email protected] wrote:

Dear Mr XXXXXXXX

 

Please see attached letter for your attention. I confirm that a hard copy has also been sent by first class post today.

 

(See attached file: Scan NW 22.pdf)

 

Regards

Naomi Wharton

Tel: 0121 455 2366

Fax: 0121 455 2771

 

DG Solicitors

e-mail:

[email protected]

 

[lateralus]

he's going for longest thread - i'm sure of it!

[Audreygreeneyes]

Woooooooo I am seriously impressed stax, perhaps Tom B shoudl ahve you fighting in his corner...........Very well constructed letter.

[photoman]

Stax

Any response to your last email yet ?

[stax68]

Lat: I'm afraid the credit will have to go to HSBC for that!

 

Auburn: thanks :grin:

 

Photoman: Nope - looks like someone from Brum will be having a nice day out at the seaside tomorrow (I don't think that gives too much away!) If I'm honest, I don't really believe they will bother to turn up though - don't know why. Well, we'll see.

 

Should be quite interesting, whatever happens. Stay tuned for an update tomorrow!

 

BTW, does anyone know how the scheduling system works for short hearings at a county court? The time I've been given is 10am, but since that's when the court opens, I'm wondering whether everyone listed for the morning is told 10am and then fitted in on a first come first served basis...

 

cheers all,

 

stax

[stax68]

Well, that was fairly unsatisfactory though nothing particularly problematic occurred. I got off to a bad start by keeping the district judge waiting - though only for a minute or two I think.

 

DG had sent some sort of inscrutable drone and the judge was certainly more interested in what he had to say than in hearing from me. The drone opened by saying this is 'another bank charges case', and I think a look was exchanged which I didn't entirely like the look of. He was trying to get everything scheduled on the longest possible timescale, but the judge to his credit was having none of it so he didn't quite get what he wanted. Trial window set for 31 Aug - 30 Sep, with pre-trial checklists on 26 Jul. Standard disclosure ordered (I think), which I think was what the bank wanted.

 

The drone got in his remarks about my part 18 request for further information being more like (I think he said) a request for full disclosure, 'running to some 32 paragraphs with numerous subparagraphs'. He and the judge said I would need to make an application if I wanted to courts to enforce the part 18 request. I think if I do I'll condense it a bit, since they seem keen to pretend that it's far too long - though perhaps I'll include the original request for reference.

 

Along the way, our monotonous friend mentioned HSBC's most recent offer to me - which 'covered' all charges (inc statute-barred ones) and statutory interest, but not overdraft interest or compound/contractual interest. This was as part of his attempts to get a long timescale scheduled in. When I questioned whether he was supposed to be mentioning this, he said the offer was in an 'open' letter - presumably meaning not privileged. I pointed out it was a letter which referenced earlier communications which were privileged, but it didn't seem to be of interest to the judge who was clearly very keen to crack on and seemed to treat my presence - perhaps with some justice - as something of a mild irritant.

 

Drone also stated that HSBC 'were considering' applying for the compound interest part of the claim to be struck out and summary judgement to be granted, droning something about that part being hopeless and ruled out by the authorities - the judge nodded as though they shared some deep understanding of the issue. In fact I imagine they both dimly remembered reading a digest of Westdeutsche and thought it probably meant you shouldn't bother trying to get compound interest or something.

 

Anyway, the fact they want to strike that bit out suggests they do want to avoid a trial I suppose. And I don't think they have any chance of having it thrown out as 'hopeless' (which is what droneboy superciliously called it). I might try and organise some sort of publicity for such a hearing, as it would be nice to have a meaningless victory in court to balance the Berwick v Lloyd's case (on which more below!)

 

I mentioned that I had a strikeout and summary judgement application ready to go myself at this stage, drone boy I thought betraying a flicker of mild surprise - though I don't imagine he personally could give a **** one way or the other. I think I'll try and get mine in first - later today or else I suppose Tuesday. Actually I think Tuesday would be better. I'll post a draft and any comments would be welcome.

 

Finally, the judge pointed out this was in the fast track and that I was therefore exposed to paying costs if I wasn't successful. I stated I knew this, but I thought that they were limited to £750. He pointed out that that was only to cover cost of the trial - and there could be lots of other costs. However, I'm not intending to be cowed by such thereats and I don't think I will end up paying any costs. Anyway, the judge warned 'it's time to take stock and have think about this', and mentioned the recent Berwick decision.

 

This was perhaps the most interesting development. Our friend hadn't heard of it, or thought he meant something else, but I took the opportunity to point out that there was very little evidence in the case and it was decided largely on the basis of admissions by the claimant. Judge said that it was 'very closely argued' though. I nearly blurted out 'maybe closely, but certainly not cogently', but managed to bite my tongue as I thought that was a bit antagonistic. I did point out that it didn;t set a precedent, but the judge said 'no, but I think it will be followed'. I didn't like that much. Hope he isn't allocated to the trial or the strike-out hearings. Again I refrained from antagonising him by sarcasically asking which point of law he thought had been decided by the case. I did point out that I had clear evidence which rebutted the concusion reached in that case.

 

Anyway, the schedule was arranged, neither party made any applications or requested particular directions, and the whole thing lasted about 10 minutes.

 

I'm now wondering whether there will actually be any advantage in applying to have the defence struck out at this stage, and also whether to make a Part 18 application. I'll post a draft of the amendment/strike-out/summary judgement application I'm thinking of making, and I'd be very keen to hear any comments...

[photoman]

Sounds like you had a very interesting day.

Roll on your trial window.

Will be watching this thread with great interest.

 

Photoman

 

PS: Your posts are always so long ..... but very enjoyable.

[stax68]

Well, I'm trying to make the thread a complete record of the development of the case.

 

And if you think that's long, wait til you see my draft application, coming soon! Have a thermos of strong tea, some eye drops and a doughnut-shaped cushion ready...

[photoman]

Stax

 

I really think you ought to PM some of the Mods and get them to come on down and take a look at your thread.

 

I think they would be very interested in your case.

 

Make sure you let them know what stage your at.

 

Maybe try:

 

Bookworm, zootscoot, josamoly, and GaryH.

 

I think even Bankfodder and Dave would be interested, particularly after your meeting today.

 

Best wishes.

 

PM

[lateralus]

and for your benefit - have you muddled though bong's 13 yr contr. interest thread? i think you could join it about half way through and read it and it could be helpful to you. i think (numnutz thinking) that she did something with trying to get the defence thrown out - and it's really a very similar story - with her happy ending.

 

some people are meant to go to court - and if anyone can handle it stax you can.....

 

other peeps following this - his is a complicated case - no way should a bog standard one end up in court - so just plow on.