Allocation Hearing - Test Case and/or Multi Track ***WON***

[bonrinso]

Hello - Could someone please advise me on the following?

 

I have been reading threads on the site for months now, but I haven't seen this one anywhere yet. I have been through the usual rout of LBA, MCOL, even filled in the AQ, but then i received the following letter from the court:

 

"Upon review of the Court file

 

IT IS ORDERED THAT:

 

1 The claim be listed for an allocation hearing on 25th May 2007

at 10:00 am to be held at Ipswich County Court.....

 

2 At this hearing the Court will consider either:

 

a. staying the claim pending the decision in a test case

involving the Defendant or

b. giving directions for this claim to be heard as a test

case and if necessary allocating the claim to the multi

track for that purpose

 

3 Not less than 14 days before the allocation hearing, the

Defendant shall file with the court and server upon the

Claimant details of any cases proceeding as a test case, the

decisionin which will determine the issue of this claim.

Alternatively, the Defendant shall file with the Court and

serve upon the Claimant draft directions for this case to

proceed as a test case

 

4 The Claimant may make any representation to the Court in

writing provided these are received by the Court and served

on the Defendant not less than 5 days before the allocation

hearing. If either party is prepared to abide by the

decision of the Judge as to the directions to be given, that

party is excused from attending the preliminary hearing."

 

 

I have sent a "nudge letter" including schedule of charges + interest + court fees etc. to DG, but as of now no response.

 

What is really worrying me is the possibility of allocation to the multi track. I am sure I have read other threads saying that the costs involved if you lose other than a "small claims" would be catastrophic.

 

Should I send a letter to the court as a "representation" as per section 4 of the letter pointing out that I would be unable to meet the costs if I lost the case as a "multi track"?

 

Any ideas/help would be most appreciated.

[bonrinso]

Hello - Could someone please advise me on the following?

 

I have been reading threads on the site for months now, but I haven't seen this one anywhere yet. I have been through the usual rout of LBA, MCOL, even filled in the AQ, but then i received the following letter from the court:

 

"Upon review of the Court file

 

IT IS ORDERED THAT:

 

1 The claim be listed for an allocation hearing on 25th May 2007

at 10:00 am to be held at Ipswich County Court.....

 

2 At this hearing the Court will consider either:

 

a. staying the claim pending the decision in a test case

involving the Defendant or

b. giving directions for this claim to be heard as a test

case and if necessary allocating the claim to the multi

track for that purpose

 

3 Not less than 14 days before the allocation hearing, the

Defendant shall file with the court and server upon the

Claimant details of any cases proceeding as a test case, the

decisionin which will determine the issue of this claim.

Alternatively, the Defendant shall file with the Court and

serve upon the Claimant draft directions for this case to

proceed as a test case

 

4 The Claimant may make any representation to the Court in

writing provided these are received by the Court and served

on the Defendant not less than 5 days before the allocation

hearing. If either party is prepared to abide by the

decision of the Judge as to the directions to be given, that

party is excused from attending the preliminary hearing."

 

 

I have sent a "nudge letter" including schedule of charges + interest + court fees etc. to DG, but as of now no response.

 

What is really worrying me is the possibility of allocation to the multi track. I am sure I have read other threads saying that the costs involved if you lose other than a "small claims" would be catastrophic.

 

Should I send a letter to the court as a "representation" as per section 4 of the letter pointing out that I would be unable to meet the costs if I lost the case as a "multi track"?

 

Any ideas/help would be most appreciated.

vbrep_register("739228")

[Rayne]

out of curiosity what is the total amount of the claim? I thought they only went multi-track if it was over £5k

[bonrinso]

The total I'm claiming is only £3848.

[John72]

I suspect this may be an attempt to order disclosure by the defendant on the basis that this can only be done in the multi-track?

[lateralus]

it looks to me like they are asking for dg's (bank's) info earlier than yours as they know they won't show it (or show up) - the week between means, to me, if they do happen to show -you then have time to rebutt - but if they don't (and they won't) the court can then decide their fate.

i''ll have some mods take a look - but it doesn't look bad to me - it means they will offer before the 25th. but i'll send some smart peeps around for a look.

[HSBCrusher]

smart peeps indeed.

HSBC will offer before this happens, they don't want a test case as latty says.

John is right too, small claims cannot set a precedent.

My opinion is that HSBC will run a mile.

[Castlebest]

I think the Courts tried to do something like this before to try to get precident set and the banks paid and walked as they always do.

This is about the third one of these I have seen recently with the "time lapse" for presentation of particulars, whoever thought that up is a very smart cookie, it will force DG to settle basically by whatever date the District Judge sets with a back up of an actual court date if they don’t do it.

pete

[bonrinso]

Thanks for all of the thoughts & words of encouragement, but what happens if DG do nothing and don't show at the allocation hearing? Would they lose the case by not adhering to order 3 in the letter, or could the judge then allocate it to the multi track anyway, or even put a stay on the case at the allocation hearing? Either way it seems to give them even more time before having to make any sort of offer.

Sorry to sound so negative, but as I said the thought of it leaving the reals of small claims does worry me somewhat.

Maybe I should just wait until the 12th and see if DG actually do anything before worrying to much?

[Castlebest]

Firstly to ignore a District Judges Order is contempt of court, trust me they won't do it.

IF they did the Judge would either strike out their defence, you win, or set a court hearing date, they won’t show to that either, you win.

You will get an offer before DG have to submit their details, in fact on the basis you wont stop your claim until you have the money in your bank expect an offer any day now.

pete

[GaryH]

I've seen this order quite a few times. Have a read of this thread, it should tell you all you need to know -

http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/37561-starting-three-claims-lloyds.html#post530490

[bonrinso]

Thanks very much Gary. It looks like the bottom line is that they may leave it until the actual day of the allocation hearing before paying up, but if necessary I will attend the hearing armed with some of the excellent advice in the thread.

 

Again many thanks

[zootscoot]

Hi bonriso

Here is a witness statement you can use:

Claim no xxxxxx

 

 

 

 

In the (insert place) County Court

XXXXX (your name)

 

Claimant

 

And

 

 

 

XXXX Bank plc

Defendant

 

Witness statement submitted for allocation hearing.

 

I, [insert name] of [insert home address] will say as follows:-

 

1.I am the CLAIMANT is this case.

 

2.I make this Witness Statement in support of my request for allocation to the small claims track

 

3.I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. The claim involves a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

 

5.Under the overriding objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the Defendant is a huge financial institution it would be unfair to place this in the fast or multi - track as this would give the Defendant the advantage in being able to bear the risk of costs whereas the Claimant does not. The Defendant has ready access to legal advice and representation whereas the Claimant is a litigant in person.

 

6. It is further submitted that the Overriding Objective requires the case 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. There are no complex issues of interpretation. There is thus no need for it to go to the County Court/High court.

 

7. The claim is well below the 5K threshold. The Claimant filed the claim believing it would be dealt with in the small claims court and did not anticipate the risk of bearing the costs in the fast or multi - track. To allocate the claim outside the small claims track would be grossly unfair.

 

8. Whilst the Claimant has repeatedly tried to contact the Defendant to resolve the issue, the Defendant has failed to respond to any communication, they have refused requests for a breakdown of their costs in order to satisfy the Claimant that their charges are lawful.

9. The Claimant believes fully in the justice of the claim and if it is to be transferred to the Fast or Multi-track, it is respectfully requested the court orders that no costs order will be made against the Claimant.

 

10. It is further submitted that it would be unfair to use the Claimant’s case as a test case as the Claimant lacks sufficient resources to conduct the litigation on an equal basis. It is submitted that such a test case should be brought by the Office of Fair Trading to ensure that an important consumer issue of general public interest is given the sufficient resources to ensure a fair and balanced hearing.

 

10. 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.

 

 

11. The Claimant would also like to draw the courts attention to the fact the Defendant has consistently abused the court process by Defending many such similar claims but has not yet once entered a court room to defend one case. Often only reaching settlement on the door of the court steps. It is submitted that the pattern of cases settled thus 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. The Claimant contends that this is an abuse of the justice system and of the public resource.It is further submitted that the defendant in the instant case has no intention of going to a hearing. The Claimant is of the opinion that the defendant in the instant case has no intention of going to a hearing. It is likely to be settled out of court and therefore produce no useful decision from a higher court.

 

STATEMENT OF TRUTH

 

 

I believe the facts stated within this defence to be true and comprising of X pages.

 

 

Dated: xx/xx/2007

[bonrinso]

Thanks a lot Zootscoot. I will put that in about a week before the hearing if I havent got my money by then.

[bonrinso]

Finally the offer !!!

 

Got the offer letter from DG today for full amount & costs! I didn't sign the acceptance form though since it gave them permission to tell the court the claim was over. I have sent a letter of acceptance to them saying I will cancel the case myself once the money is in my account.

 

Many thanks to all for your advice and support.

[bonrinso]

Finally the offer !!!

 

Got the offer letter from DG today for full amount & costs! I didn't sign the acceptance form though since it gave them permission to tell the court the claim was over. I have sent a letter of acceptance to them saying I will cancel the case myself once the money is in my account.

 

Many thanks to all for your advice and support.

[ukaviator]

Well done. . great news.. Congratulations..

[Rayne]

WELL DONE!!!! Another winner

 

Mine's a tequila

[Castlebest]

Another Result !!! Well Done !!!

Pete

[freakyleaky]

Congrats, brilliant!

 

When did you file your claim?

[bonrinso]

MCOL claim was issued on 7th February.

[freakyleaky]

Thanks, I'm 17 days behind you so not long now hopefully!

[GaryH]

Congrats!!

 

I've changed your title to reflect your victory, plus moved your thread to the HSBC forum.

[lateralus]

well done,

congratulations........

now, go back and read what you wrote about 3 weeks ago - a right little nervous nelly, weren't you -

so,,,,,, to all you others reading - take heart -

they won't go to court - they will deal before then.

yeah!!!! another one bites the dust!!!

spend wisely!

[zootscoot]

Fantastic! Congrats