GYHOMS v hsbc... have just entered defence

[GetYourHandsOfMyStack]

cheers guys! Rang the court today and they said that although they still havent got to my claim, it seems the judges in norwich are very much on our side and the chances of it being thrown out regardless of my draft order are quite high! They reckon that if it goes to a preliminary hearing the date would probably be early sept, but i spose i'll have to have the bundle in way before then if it goes that way, so from what you guys are saying i could have the dosh fairly soon! God i love HSBC for saving all this money for me, i might even write them a thankyou letter, actually, maybe not...

[GetYourHandsOfMyStack]

Got my Court directions through yestersday!!!!

 

Am very happy, hopefully not much longer now... looks like the courts are properly on my side as well, directions are:

 

'Upon review of the court file

 

It is ordered that:

 

1. The claim be allocated to the small claims track.

 

2. The claim be listed for further directions only at a preliminary hearing. (time estimate 5 minutes)

 

3. At this hearing the court will consider either:

 

a) to stay the claim pending the decision in a test case involving the defendant, or

b) to give directions for this claim to be heard as a test case, and if nessesary to re-allocate the claim to the multi-track for that purpose.

 

4. Not less than 14 days before the preliminary hearing, the defendant shall file with the court and serve upon the claimant details of any cases proceeding as a test case, the decision in which will determine the issues in this claim. Altenatively, the defendant shall file with the court and serve upon the claimant draft directions for this case to proceed as a tect case.

 

5. The claimant may make any representations to the court in writing provided these are recieved by the court and served upon the defendant not less than 5 days before the preliminar hearing, If either party is prepeared to abide by the decision of the judge as to the directions to be given, that party is excused from attending the preliminary hearing.

 

 

DISTRICT JUDGE HAYES has considered the statements of case and allocation questionarres filed and allocated the claim to the small claims track.

 

Before the claim be listed for hearing, the judge has ordered that a preliminary hearing should take place: -

 

to consider whether the claim can be disposed of because the defendant has no real prospect of success at a final hearing.'

 

 

i love the last bit!!!

 

Right, am really bricking it now because of all the mentions of test cases, but im guessing thats just the courts trying to put the wind up the bank?

 

also, where it says that i may make written representations to the court/defendant 5days before the hearing, is that gonna be my court bundle? and does this all sound fairly standard?

[lateralus]

you won't need the court bundle (not yet anyway and probably not at all)

 

just a quick question - did you do an aq? and in it did you include the draft directions for order? i'm thinking that you have and this is basically a response to them - you've sent your draft order for directions and this is asking the bank to send some - so you've already told how you want it to proceed -

i'm talking this over with castlebest to see if we think you should resend the draft directions - probably - we'll get back to you on this

 

just verify for me that you sent an aq with the draft directions attached -

don't worry if you didn't - just tell me if you did

[GetYourHandsOfMyStack]

cheers for gettin back so quick lats, yes, i did do an aq and sent the draft order with it...is this good?

[lateralus]

sorry, i forgot where i put you!

had two the same directions on the same day - so we had a little confab on the other one - take a lookchriselaine V HSBC (1 2)

 

i think it's good - because i read it that the judge has your draft order and is now looking for something from their side -

push coming to shove - yes, send it again within the time frame - if yours follows that other thread - and you want the strike out letter - i'll find the link.

 

 

 

this will give you the idea:

ok, at this point i'm going to insert a letter that rob-the-viking wrote - he wrote this to his local county court and received a court date shortly after - so it may have moved things along - tweak it to your own details - here is the letter:

 

Address

 

You Vs HSBC

Claim No

DATE

 

 

 

Dear Sir/Madam

 

I write to bring to your attention to the fact that the above claim has been waiting for action on the part the defendant for quite some time now.

 

Over 5 weeks have now elapsed since the deadline for submission of Allocation Questionnaires, and as of xx/xx/xx the defendant has yet to file theirs. In my opinion I believe this to be totally unacceptable, with the defendant showing a severe disregard for the clear instructions set out by the Court. Therefore, I respectfully request that the defence be struck out on the grounds of abuse of process by the defendant.

 

In my attempts to resolve this matter without further misuse of the Courts time, I sent the defendant a letter reminding them of the aforementioned deadline dated xx/xx/xx. Please find a copy of this letter attached, also attached is proof of both postage and receipt, via the Royal Mail’s recorded delivery service.

 

Should you need to contact me about any matter that may arise in this case, please do not hesitate to do so using either the above address or phone number.

 

I look forward to hearing from you.

 

 

yours faithfully

 

Your Name

 

 

 

get back if you have questions

[GetYourHandsOfMyStack]

hi, thanks for that. Is this the strike out letter? am guessing it is - do you think i should send the draft order and the letter?

 

cheers

 

sam

[lateralus]

did you read that other thread? i think try the strike out now but if it doesn't fly - send the draft order to comply with the court directions within the time specified. maybe the draft order with a cover note like this - but tweak it to say you are complying with the court's directions

 

 

 

County Court

Court Address

Court P/code

[Your address]

The Court Manager

******

 

[date]

 

 

 

 

 

 

Dear Sir/Madam

It is noted that in my case referenced above that the Directions hearing will be heard on 14/8/07. I am asked my opinion of how the case is to proceed. I am aware that this is likely due to the large volume of claims that consumers are bring against the high street banks. I am also aware that to date HSBC have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

 

In light of this the Claimant respectfully suggests that special directions may be made as per the enclosed draft order. I think that this would expediate the matter, which will hopefully lead to an early resolution and therefore making a court date unnecessary.

 

 

 

The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

 

 

 

- The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

 

 

 

- In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

 

 

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

 

 

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

 

 

 

Yours faithfully,

 

 

 

 

 

[name]

 

 

 

 

enc: Draft Order

 

 

 

 

 

 

 

THEN ON A SEPARATE PIECE OF PAPER - THIS:

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

just adjust those first couple of lines to say you are complying with the court directions,,,,,,,etc.

 

 

 

 

 

 

 

 

[GetYourHandsOfMyStack]

cheers for that - did read the other thread but didnt really have time to take it all in as moving house at the mo and have no internet, which is making this tricky! Ranf courts today to check if DG had bothered filing anything at the courts and they havent, so thats their day period gone, so have drafted a strike out letter and will deliver it by hand/recorded delivery to court/DG today.

 

Had a bit of a shock when i saw the news this morning about the high court case! As DG will no longer be able to make any representations to the court untill the hearing in my particular case, ie; they want to wait for the outcome of the test case, then im guessing they wont be able to ask for my case to be stayed until then? by which time they'll hopefully have made an offer...i know this is probably being asked a lot at the mo but im sneakinly borrowing the internet at work and havent got a chance to go through all the other threads to see what the general consencus is, but do you think i'll still get paid out or have to wait for the outcome of this case based on what i've said above? thanks again Lats, your help is very much appreciated!!!

 

sam

[Castlebest]

The claims that have already been filed with the court have been left up to the local judges, whether they hear them or stay them pending the outcome of the test case.

 

I know the block hearing in Cardiff on August the 14th is going ahead so I think just carry on unless you get something from the court saying otherwise.

 

pete

[lateralus]

carry on, regardless!!!