'Tish vs Abbey'

[adamc6671]

Hi All

 

Rang Ipswich County Court today and they informed me that - 'within the last few says we have taken the decision to STAY ALL bank charge claims until the result of the OFT test case is known. We are in the process of sending letters to all claimants'

 

Feels like a real kick in the teeth, but I suppose it was inevitable. Once again the consumer looses out to our very out of date legal system. The banks and their shareholders must be rubbing their hands with total glee that their licence to 'print money' is allowed to continue, right through a 'test case' and multiple appeals, for probably years to come. But, hey-ho, interest at 8% continues to accrue, and on the assumption that eventually the consumer will get something out of it, it all helps!

 

Does anyone really think it is worth appealing the Court's decision to stay this claim? We can't in all honesty argue hardship, but as Abbey admit breach of contract in their defence, is there a chance that the Judge would allow the claim to continue?

 

Would be very interested to hear what anyone else thinks.

 

Will post again when letter recieved from the Court.

 

All the best - Adam

[GaryH]

Does anyone really think it is worth appealing the Court's decision to stay this claim?

Yes. The OFT case cannot overturn 100 years of rulings including many promenant and unanimous House of Lords decisions on contractual penalties. If a charge arises from breach of contract it cannot be excessive or designed to make profits. Abbey admitted a breach in their defence, further evidnced by the Terms of the contract, so the issues are comparitively simple and only of fact. IMHO there is an excellent chance of getting a stay removed on that basis alone.

 

Sort of puts the kibosh on the summary judgment application though!

[adamc6671]

Hi Gary

 

Many thanks for that. Great shame about the Summary Judgement, but when do I submit the application for the stay to be removed?

 

Do I wait for the letter from the Court?

 

Am I best doing it with a Hearing (which I think costs £35), of just by submitting the form (which I think is free)?

 

Which is the best Application to use?

 

Many thanks - Adam

[GaryH]

See the important info thread in the stickies. Use one of the stay templates linked from there and add the section specific to Abbey (complexity of issues, etc).

 

Ask the court how they are accepting applications. Most are waiving the fee anyway.

[adamc6671]

Many thanks, once again, Gary.

 

Will ring the Court tomorrow. The 'complexity of Issues' argument seems very strong to me as Abbey have already admitted 'breach of contract' in their defence, and therefore, certainly as I see it, no need to wait for OFT test case result. Certainly worth a go, & I'll give it all I've got!

 

Just a shame I can't use same argument for my Lloyds claim (for JimmyBoy) - just have to accept the stay on that one I think. But there again 1 out of 2 isn't bad, and it means I can concentrate all my efforts on Abbey, which is a very good thing!

 

Will post again after I've rung the Court.

 

Once again, many thanks - Adam.

[adamc6671]

Hi All

 

Rung Ipswich Court again today. The Judge's Order for a stay in this case has not actually been sent out yet, but will be during the next week or so. I may object to the stay if I have good reason (which I think I have!) by submitting form N244 (which I know I can download) and must include the fee of £35. The application will then be passed to the Judge for his consideration, and he will decide if the Allocation Hearing goes ahead. They suggest I wait for the letter from the Court before applying, which I will do, especially as I am away from home from tomorrow until the middle of next week (although I will still have access to CAG!).

 

Gary - I have e-mailed you with the application I have written, with huge help from your templates, and would be very grateful for your comments. I feel it best not to fore-warn the bank of the precise detail at this stage by publishing it on the open forum - I hope very much that you do understand.

 

With many thanks - Adam.

[adamc6671]

Hi All

 

Have now recieved the formal stay from Ipswich Court, which I shall apply to have lifted, as per GaryH''s advice, here -

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/111571-abbey-court-hearings-important.html

 

My understanding of stays applied 'of the Court's own mind' and without application from either party, is that no fee should be charged for that application. However, on the phone, the Court said I must send £35 with the application!

 

Does anyone have any further info on what the Court rules say? Or does each individual Court have the right to charge if they so wish?

 

Many thanks - Adam.

[adamc6671]

Hi again!

 

Sorry to be a pain, but i have another question regarding the order from the Court staying the claim.

 

Paragraph 4 of the order states -

 

"Either party may apply to vary or discharge this order, provided that any application is made in accordance with Part 23 of the Civil Procedure Rules and made on 21 days notice"

 

The rest of the order is the actual stay " . . . pending the final decision (or the final appelate Court, whichever is the later) in the test case between OFT and Nat West and others . . ."

 

Can anyone tell me what Part 23 of the CPR says, or where I can find the info?

 

I assume that 'vary or discharge the order' means asking for the stay to be lifted, and that I have 21 days in which to do this.

 

Any help or advice would be greatly appreciated.

 

Many thanks - Adam.

[Lula]

Adam, just Google it

[adamc6671]

Will do - thanks Lula.

 

All the best - Adam.

[adamc6671]

Hi All

 

Just to say a VERY happy Christmas to one and all, and a million thanks to all who have done so much to help.

 

See you all in the New Year, which I'm sure we all hope will bring something good to us from the Test Case.

 

All the very best - Adam.

[adamc6671]

Hi All

 

Long time, no speak!

 

This case was stayed by the Judge at Ipswich County Court on 17th August 2007. pending the final decision in the test case.

 

It was ordered that

 

'The Defendant shall within 21 days of the final decision in the test case file at court and serve on the Claimant :

 

(a) A case summary of not more than 500 words setting out the effect of the final decision in the test case on this action

 

(b) Their proposed directions in this case

 

Now, the final decision in the test case was issued on 17th November 2009, which meant that Abbey had until 8th December 2009 to file with the court, and with the claimant, the documents above.

 

No such documents have been recieved from Abbey within that timescale!!!!!

 

My own understanding is that I could now ask to court to strike out Abbey's defence, as they have defaulted on the requirement above, and award judgement in the Claimant's favour.

 

I would be VERY grateful if someone who understands more about these things than I do could advise me if, in fact, my understanding is correct, or if I have got it wrong, and should actually be doing something else!

 

Many thanks, in anticipation.

[adamc6671]

I have spoken to Ipswich County Court this morning regarding the above default by Abbey.

 

They inform me that they have had no official notification of the final result of 'The Test Case'!!!! Surely, that was 'published' on 17th November????

 

They say I may ask, by letter, for the defence to be struck out, by default on the part of Abbey, but they could offer no indication of the possible result of that application other than to say it would be returned to the claimant if it was felt to be inappropriate at this time.

 

I would be VERY grateful if someone 'in the know' regarding the test case could advise me if, indeed, the judgement released on 17th November WAS the final judgement on that paticular case - if it was, then I shall apply to have the defence struck out on the grounds of the bank's default.

 

Many thanks, in anticipation.

 

 

Just out of interest, the Witness Statement we prepared for this case DOES include, amongst other things, detailed reference to UTCCR Section 5 - Individually negoiated terms (as per a template downloaded from GAG in 2007). Does anyone happen to know if that is sufficient to meet the test case judge's comment that there MAY be a way forward under that section of the UTCCR's?

Edited December 14, 2009 by adamc6671

[bankchaser35]

I've exactly the same situation, my County Court gave Abbey x14 days to reply following the test case and I telephoned my Court on Friday who said I should write in to point out default, like you, I'm not sure if this is the best thing to do though?

[adamc6671]

As far as I can see, bankchaser35, it all hangs on the 17th November announcement from the Supreme Court being the FINAL judgement in 'The Test Case'.

 

If indeed it was, then the banks in your case, and both of mine, ARE in default of a Judges Order, and, in theory anyway, the judges in our cases should react favourably to requests to strike out defences and award judgement to the claimant. Something tells me, though, that it won't actually be that simple!

[bankchaser35]

that's what I'm thinking too - I've been reading up on:

 

PRACTICE DIRECTION – DEFAULT JUDGMENT - Ministry of Justice

 

 

this is the part that I'm concerned with:

 

Cases where the court may set aside or vary judgment entered under Part 12

 

13.3

 

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

 

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

 

(ii) the defendant should be allowed to defend the claim.

 

 

 

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

(Article 19(4) of the Service Regulation (which has the same meaning as in rule 6.31(e)) applies to applications to appeal a judgment in default when the time limit for appealing has expired).

[adamc6671]

I've just read that practice direction, bc35, and like you, am very concerned that in our cases a default judgement would not be allowed.

 

Advice and / or opinions from the Site Team, or anyone else 'in the know', would be HUGELY appreciated, and would, no doubt, be of great help to what I presume to be large numbers of people in the same situation.

 

I does seem VERY unfair to the consumer that a Judge can make an order instructing the defendant in a civil claim to carry out a certain action within a clearly defined time frame, and then is under no obligation to take action against the defendant when they fail to carry out that order!

 

Oh well - carry on regardless!

[yourbank]

I dont think it would be a default judgment. The Judgment was 25th November in any case so 21 days is tomorrow.

 

Have you called the court and asked the current status of your claim, that would seem to be the best move first, then if need be write in and ask to prolong the stay. Theres no unless order attached to the directions order so its exceedingly unlikely the banks defence would just be struck out for not complying in time.

[adamc6671]

Many thanks, yourbank - greatly appreciated.

 

The Court says there is no clear direction yet as to the future of any bank charge claims, so to be on the safe side I'll write in and ask for both the claims I am helping with to continue to be stayed until the result of any further action by the OFT, and any further test case, is known.

[yourbank]

Good idea. Most courts seem to be saying the same thing

 

Looks like there might be something before Christmas but its politicians talking so who knows really ! (check main test case thread)

[adamc6671]

Hi All

 

I've just had this from Ipswich County Court, dated 22nd January 2010 -

 

 

" Upon it appearing that this claim relates to bank charges, and it is or may be within the categories considered by the Supreme Court . . . . . .

 

It is ordered that

 

1. The claim be further stayed generally;

 

2. Either party may apply to remove the stay on application to the Court. Such an application may be made by way of a letter (accompanied by the appropriate court fee) and copied to the opposing party;

 

3. The application must state:

 

a. By reference to the decision of the Supreme Court the grounds upon which the application to remove the stay are based, and

 

b. Whether, and if so, what attempts have been made to settle the claim;

 

 

4. If no such application to remove the stay is made by 10 February 2010, the claim shall be struck out without further order.

 

This seems to me to be more or less the end of the road for this, and similar, claims!!!!!

 

Has anyone else recieved similar from the Court dealing with their claim? I'd be VERY grateful if anyone has any advice on what to do now.

 

Many thanks.

[adamc6671]

Hi All

 

Following the advice given on other threads, and taking into account my own worries, I've today requested a further stay of a max of 3 months on the grounds of obtaining further legal advice under UTCCR Section 5 and Consumer Credit Act Section 140A(1). I've also suggested that as a 'litigant in person' the Court may see it as prudent to allow me this extra time to obtain and consider this new advice, and to decide whether to ammend my POC's.

 

 

I've sent the Govan letter to Abbey, personalised to suit, and copied that to the Court with the stay extension request as proof of attempting to settle.

 

 

With a bit of luck that will do the trick for now!