Chunky Linc Vs. HSBC

[johnnymitch]

You're a credit to the spirit of CAG chunkylinc , you certainly have been busy ......keep up the good work ! LOL....

[chunkylinc]

not been about on here for ages, how's everyone been? I kinda lost hope a little after the outcome of the court case, but a colleague was talking the other day about some new legal argument which can be used. I'll try to find out more and let you know.

Do we know if anyone has had any success since the court ruling?

[johnnymitch]

Hi chunkylinc , welcome back!

 

I don't know if you've seen this link , if not it should hopefully fill in a few gaps ...

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/244669-hsbc-after-test-case.html

 

 

Situation at the moment is that we believe the door was left ajar by the Supreme Court to claim under another section of the Act .... which the OFT declined to pursue ..... but we're hopeful that , with a good revised set of POCs ...... it can be kick- started again ... and people are working on that at the moment ...

 

There is also I believe , at least one Court Hearing pending and it will be interesting to see if that is successful , to be used as a precedent ...

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/248268-sheriff-puts-bank-scotland.html#post2782254

[chunkylinc]

great stuff, thanks. I'll take a look at your link and digest the info. Fingers crossed for whoever has that test case on the go, always a bit hair raising if your the first...

[Castlebest]

I'm looking forward to it

 

pete

[chunkylinc]

yer, and so am I lol.

 

Well that's me up to speed with a bit of weekend reading, I'd best pull my finger out and get on with some letters...

 

It's a little odd tho as I've not actually heard a thing since the ruling from my local court or from D&G, infact the only correspondence I've had came directly from hsbc mid december saying that unless I contact them within 8 weeks they would consider the case closed...? I'd have thought D&G would have been a little swifter to act.

[johnnymitch]

Hi chunkylinc ,

 

Did you let them know that as far as you were concerned , it wasn't closed ?

I'd watch them , because if you didn't respond , telling them that your case was still at court waiting new POCs, they may tell the court that you didn''t respond within the 8 week dead-line and ask the court to throw it out on the grounds of ''no movement ''.........

 

They've tried this in the past .... the court of course should ask you to confirm that you want this to happen , but it has also been known that they haven't in some cases ........ leaving a claimant struggling to have it re-instated......

 

Worth checking out I'd say ....... and if necessary write and let DG know it's still ongoing .....

[chunkylinc]

Hi JM,

 

Errr well no, not exactly. After the loss of the test case and the letter from HSBC I kinda did nothing for a while as I assumed that it was all over. I then started doing some further investigation into the situation around feb time, which was when I learnt about persueing under financial hardship through the FO. So I finally contacted HSBC early march time, where I told them that I'd intend to withdraw the court claim and take matters to the FO. So I'm hoping that letter will stall them for a while as I have not contacted the court to close the case in the slightest...

[johnnymitch]

So I finally contacted HSBC early march time, where I told them that I'd intend to withdraw the court claim and take matters to the FO.

Chunkylinc ,

I'd say that makes it even more imperative that you check with the court if you haven't withdrawn the the claim . Bcause if you told HSBC you would , they've got a lever and may even have told the court of your intention to withdraw ...

[chunkylinc]

Ummm, yep! I've screwed up.

 

Is it best to write to them or simply try and call them to ask? If they havent been contacted I guess I can write back to hsbc (I didnt send that letter to D&G) and say I've changed my mind?

[chunkylinc]

Well after several months of all being quiet on the western front It's kicking off again. Today I recieved two 'General Form of Judgement or Order' letters from Norwich County Court (one for each of my cases), so it looks like my stay has been lifted - has anyone else experienced this?

[caro]

What do they say?

[johnnymitch]

I don't think your stay should be lifted without the court giving you the chance (and the time ) to either agree or contest this ..you could try ringing the court and asking for further details ...

 

If they intend to lift your stay you need time to :

a) adjust your POCs if necessary ...

 

b) ask for further extension of the stay , on the grounds that some important cases are in process(the Scottish ones )the results of which could affect the outcome of your claim ...

or

 

c) give you time to come to a mutual agreement with the bank ..

 

My son went for b) and has had his case stayed again ... hope this helps ... but as Caro says it depends on what the Court Orders say ...

[caro]

My son went for b) and has had his case stayed again ...

 

That's good to know johnny.

[chunkylinc]

from reading the letters I think I may well be able to also try route b.

 

Content of the letters is as follows...

 

Upon this claim having been stayed pending the decision of the Supreme Court in OFT -v- ABBEY NATIONAL and ors (2009) UKSC6 And it now being settled law that:-

 

1. sums of money payable to their banks by customers persuant to their banking contracts and in particular sums payable in respect of unauthorised overdrafts are properly designated as 'charges' and are not contracted penalties, and

2. There is no power under regulation 6(2)b of the Unfair Contract Terms in Consumer Contracts Regulations 1999 (as amended) to assess the fairness of those charges as expressed in clear and intelligible language in relation to the adequacy of the price or remuneration as against the services supplied in exchange whether at the behest of the OFT or the bank customer.

Upon review of the claim and of the courts own initiative IT IS ORDERED THAT:

(1) The stay on the claim be removed forthwith

(2) Unless the Claimant files within 28 days of the deemed service of this order upon the claimant, a notice of application seeking further directions in the claim the claim shall stand struck out without further order (3) any notice of application files in accordance with paragraph (2) of this order must clesrly explain the legal basis upon which the claim as set out in the Particulars of claim should be permitted to continue or exhibit draft amended Particulars of Claim. The notice of application with all accompanying documents must be filed with the court tgether with sufficient copies for service on all other parties. The court fee of £75.00 (fee2.6) will be payale unless the claimant/applicant produces evidence of entitlement to excemption.

 

yep, thats pretty much word for word what it says - And being incredibe thick it makes about as much sense as a paper umbrella!!

 

So,clearly I have 28 days to send a couple of copies of whatever it is i need to change to the court (and also directy to DG I guess?)

[chunkylinc]

so with the above in mind, do you think writing asking for a further stay will work? Does any one have a template for this letter, does it need to contain any legal type jargon, or is is merely just the case of writing to the judge and asking for a further extension due to several scottish cases? Do I need to provide specific details here?

[caro]

I have a couple of thoughs on this chunky, which probably won't help in your decision, but are maybe worth considering.

 

1. If you let the strike out stand and give up the claim, it would appear that you won't have to pay any costs.

 

2. If you do that and GLC go on to win, I don't know if you could then start again with a brand new POC. HSBC might fight that.

 

Has your claim been allocated to a track, eg small claims? If not how much is it for.

 

You need to consider whether pursuing this may end up costing you, and no guarantees of a result.

 

Perhaps Johnny could advise on how his son managed to prolong the stay.

[chunkylinc]

There's that word I dont like again.... "costs". It was so long ago now I cant remember exactly what I did - but after the letter before action, I then went onto moneyclaim online and filed my case within the small court, as I thought that even if you loast HSBC could not then come after you for there costs??

 

So are you saying that if I ask for another stay and then I eventually lose i'll be liable for HSBC's costs...? or is the letter just saying I can apply for a stay, but will have to pay the court costs again? Obviously I have already payed the court once as when applying online you need to pay at the time of submitting the case - Im confused now, which doesnt take alot I know!

 

I'm just wondering why not too many other people have had this type of letter?

[caro]

If the case hasn't yet been allocated then you can still be liable for costs. If you haven't filled in an allocation questionnaire yet, and the claim hasn't been allocated to small claims by a judge you are still exposed to costs, including HSBCs. Only when it's allocated to SCT are you safe from them. You submit a claim but it's not up to you if it's in small claims or not. It's a judge, so if you haven't had anything saying it's small claims you could be on dodgy ground. Just because it's under £5k it isn't automatically a small claim. especially if it isn't considered a simple issue.

 

If you want to apply for the stay to be extended you will have to pay an application fee according to the order - unless you're exempt from court fees due to low income or being in receipt of certain benefits.

 

Your letter says it's the courts initiative to take this action, and different courts are doing different things, but in time I suspect the courts will want to clear the stayed cases off their desks.

 

Just because you apply to extend the stay there is no guarantee the court will agree unless you can show good reason for it.

 

I don't want to put you off continuing. I just want you to know that there may be risks, and at the moment all you have to lose is your court fees so far.

 

On the positive side, have a read of this. GLC are in court in a bank charges case in August! http://govanlc.blogspot.com/2011/05/bank-charges-fight-still-alive-glc.html

[johnnymitch]

Hi chunkylinc,

 

This is the gist of the letter my son sent . He actually did include Reg 5 in his original POCs so maybe that could have a bearing on para 4 ... but you could always say you'd like to reserve the right to amend your POCs to include Reg 5 if the cases in train at the moment are successful.

 

btw .. he sent this to the court ... by his deadline date ... however they haven't come back with a yes or no yet apparently ... but it must still be in court or they'd have notified him .... hope this helps .... :

 

"

 

DATE : xx xxx xx

CLAIM NO. xxxxxxxxxxx

 

 

XXXXXXXXXXXXXX

 

 

Vs

 

 

HSBC

 

 

With reference to the order received from the court dated xx xxx .2011, I respectfully request that the order be amended and that the stay remain in place.

 

My reasons for this request are as follows

 

Although the Supreme Court decision found in favour of the banks, the Law Lords in their summing up went to great pains to point out that the case was focused only on regulation 6 (2) (b) of the Unfair Terms in Consumer Contracts Regulations 1999.

In addition the law lords also pointed out that ‘the charges might still be open to assessment on other grounds under regulation 5 of the UTCCR 1999

 

UTCCR 1999 REG. 5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

My Particulars of Claim include a challenge under Regulation 5 and this issue remains unresolved. I strongly believe that the defendant has acted in bad faith and that it has caused an imbalance in rights that has been to my detriment.

 

At present two cases are being taken through the Scottish courts by the Govan Law Centre, Sharp vs Bank of Scotland and Reid vs Clydesdale Bank Plc and are in large part based upon Regulation 5 being used to challenge the fairness of bank charges.

 

As the banks were granted a stay in regard to the ‘Test Case’ at the Supreme Court, in the interests of fairness I would like to request that my case remains stayed until judgment has been made with regards to the above cases and until the legal position in regards to Regulation 5 has been clarified.

 

 

 

Yours etc.

 

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