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Hi,

 

How far above the threshold are you? I still went for small claims and got it, and with interest my claim is nearly 8k.

 

I think if you aren't too far over, it's adviseable to still go for small claims, as with fast track you are liable for court costs, although it is thought that they wouldn't be awarded against you as a litigant in person as opposed to the defendant being a multi billion pound company.

 

Regards,

 

Fzrkitten.

Fzrkitten

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Hi,

 

How far above the threshold are you? I still went for small claims and got it, and with interest my claim is nearly 8k.

 

I think if you aren't too far over, it's adviseable to still go for small claims, as with fast track you are liable for court costs, although it is thought that they wouldn't be awarded against you as a litigant in person as opposed to the defendant being a multi billion pound company.

 

Regards,

 

Fzrkitten.

 

Hi Fzrkitten,

Thanks for your reply.

My total claim including court costs is £6,900 approx. So I am still elligible for small claims. but isn't fast track so called because it will be dealt with a lot faster?

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benjy,

 

How much of that figure is interest? The general rule is that anything £5000 or under (Before interest) is small claims and above that is fast track, but as Kitten say's people are still getting small claims allocations with bigger ammounts, it is agued that by being on the small claims track you are on a more equal footing with the bank.

 

So request on the form that small claims track be allocated.

 

Rich

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hi Rich,

 

Thanks for the reply. £5672 is total of charges and £1038 is interest. In section H of the N150 form, it asks if I had sent any attached documents(eg Statement of Evidence), to the defendents. Would I have to send a copy of the N150 form with all attached documents to the defendents before I give it into the court?

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Hi Benjy,

 

In section H, you are suggested to put in the following draft order for directions (this means that is SC&M dont send you a bundle then it is more likely the judge will strike out their defence and rule in your favour):

 

In the ??????????????? County Court

Claim number ?????????

 

Between

??????????? - Claimant

and

Lloyds TSB Bank PLC - Defendant

 

 

Draft Order for Directions

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.

END

Print it out and attatch it to you AQ, and mark in H see attached draft order for directions.

Because i forgot to put these in at first and faxed it to the court to be added with my AQ i did not send a copy of the directions to SC&M but you can do this if you want but it may promt them to apply for a stay by letter. and i think judges are not responding as well to the banks if they just turn up on the day and expect a stay, but stays requested by letter with payment are more than likely to be accepted.

We will also have to see what if anything SC&M request in their AQ.

Let me know what happens.

Rich:)

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Hi Rich, sorry for not getting back to you sooner, I appreciate your input. I have set up the draft order of directions and the Statement of Evidence and attached these to the AQ questionaire. So I do not have to send these to SC&M?

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Hi Guido, I have already sent to SC&M just the AQ. I didnt send them the draft order of directions or the Statement of Evidence. Today was the last day for me to put the AQ and stuff to the court of my claim would have been struck out. What do i do now. Can I still send those items by post? Is it too late?

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You can send it to the court with a letter, apologise and say that the draft order should have been attached to the AQ and request that the judge orders the same.

 

It is always best to comply with court deadlines, but you would not get struck out for non compliance by a few days.

 

The statement of evidence is for later.

If I have been helpful please click on my star and add a comment.

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Hi Guido, thanks again for the reply. I had taken to the court the AQ questionaire, the draft order and the statement of evidence, I just didnt send copies of the draft order and the statement of evidence to SC&M. I was just wondering if I can send these directly to SC&M in a seperate envelope, or via the judge?

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Hi Guido, as expected, I got a letter from SC&M requesting a stay. :(A letter was sent to the court on the same day Monday 24th September. The usual excuse about the OFT testcase. What happens now? I didnt add the stay rebuttal that was put on this forum as I thought that they would settle. I want to issue a rebuttal now before the judge complies with the request and issues a stay. I really need the money now as the bank has made me struggle due to these charges.

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Hi benjy

 

Whilst it is extremely frustrating to be the subject of a Stay in proceedings, my own experience is that it is extremely unlikely that you will succeed in having that overturned prior to the outcome of the OFT case. Not only would the bank be unlikely to allow that to go unchallenged by them, the Courts would be wary of allowing a case to proceed in the expectation that (in the event of a claimant being successful) the bank would appeal to a higher court. That has serious costs implications for claimants.

 

I honestly believe that the only thing to do now is sit and wait for the outcome of the OFT case. If that addresses all issues (including the "penalty" aspect) then the way forward is clear. If it does not (and frankly it would be strange if, having proceeded that far, the OFT and the banks did not deal with all aspects) then our claims would continue.

 

J

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Hi John72, thanks for the reply, but that is not what I wanted to read, dammit! Really fed up with OFT for messing things up for us like this. However I do believe that the stay can be rejected. Is there a letter i can send the courts in the interim to prevent the stay from going ahead?

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Hi Benjy

 

I'm sorry that i didn't say what you wanted to hear - i was only sharing my own experiences. Without a doubt you are entitled to object to the Stay being granted, or to apply for a Stay to be lifted, but the general feeling now is that the Courts are reluctant to agree in the light of the forthcoming OFT test case.

 

For what it is worth, I have shown below my letter to the Court and my Skeleton Argument on which I relied at my hearing to have the Stay in my case lifted (unsuccessfully):

 

Dear Sir

xxx – v – Lloyds TSB Bank plc

Case No xxxxx in the xxxxx County Court

 

I have been provided with a copy of a letter dated xth September 2007 to the Court from the defendant’s solicitors, Sechiari Clark & Mitchell. Reference is made to a hearing on xth September of which I had no previous knowledge. Can you kindly confirm a hearing is to take place?

 

I have taken note of the contents of the above letter in support of the defendant’s application for the stay, ordered on xth August 2007, to remain in place. I have already set out in my witness statement the grounds of my application for the stay to be removed and the Court will see the basis of my claim as set out in the Claim issued in March 2007. It is germane that prior to the defendant’s current application it had not seen fit to make any contact with me whatsoever or to comply with directions or orders of this Court.

 

However, the defendant’s application relies solely on the fact that a test case is being taken by the OFT in the High Court; a case which deals solely with the fairness or otherwise of the bank’s charges for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999.

 

My claim, however, also addresses the issue of the bank’s charges being penalties for breach of contract – an aspect not, I believe, to be addressed by the OFT case. In fact the correspondence sent to me over the years by the defendant (through it’s local business banking department) has consistently referred to the implications of any breach of contract by me, namely the incurring of charges and the request to seek alternative banking arrangements. It is my contention that the charges levied are punitive in nature and thus unlawful ab initio.

 

I respectfully request, therefore, that the Court orders that the stay of xth August 2007 be lifted to allow my claim to continue on the substantive issue of determining that the bank charges are penalties and thus unlawful.

 

Yours faithfully

______________________________________________________________

 

 

SKELETON ARGUMENT FOR THE CLAIMANT (Litigant in person)

In the proceedings on xx September 2007 at 10.00 am relating to the Defendant’s application for Continuation of the Stay and the Claimant’s application to lift the Stay

 

 

 

 

 

The Claimant will rely on the following submissions:

 

1. Human Rights

 

To impose a stay in the present proceedings would infringe my rights conferred by Article 6 of the European Convention of Human Rights, to receive a fair hearing within a reasonable time. The case of Wilson v Robertsons (London) Ltd referred to by the defendant in their skeleton argument is not authoritative since the issue of Human Rights was not argued. The appeal in that case was against costs not against the imposition of a stay and therefore the point was not fully argued. No definitive statement of the law can emerge.

 

2. Blanket stays

The imposition of blanket stays runs contrary to the wishes of the Master of the Rolls and my right to have my case decided on its merits.

3. Distinguishing factors

 

The test case between the banks and the OFT is primarily to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999. The OFT's Particulars of Claim are attached. The fundamental issue to be tested is whether the contractual provisions which permit such charges are subject to an assessment of fairness under the Regulations and fall within the ambit of regulation 5, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a 'core term'. Regulation 6 provides;

 

"(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate -

 

(a) to the definition of the main subject matter of the contract, or

 

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."

 

It is accepted that this is a complex issue of legal interpretation and one on which clarity is needed. However, this issue should be viewed in the context of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach of contract. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms.

 

In view of the preceding paragraphs, I wish to draw the courts attention to the following matters;

 

a) The OFT Test Case will not, primarily, test the position at common law of whether or not such clauses amount to an unenforceable penalty; and,

 

b) It is settled by virtue of the unanimous decision of the House of Lords in the case of Director General of Fair Trading v First National Bank [2001] UKHL 52 that a default provision, that is one concerning the consequences of a breach of contract, is not and cannot be excluded from the regulations by virtue of regulation 6.

 

It is thus submitted that my claim should proceed on the grounds that the vast majority of the charges imposed by the bank were levied in advance of the redrafting of its contractual terms and as such were imposed as default charges as a consequence of breaches of contract. The issues are therefore distinguishable from the fundamental issues of the OFT Test Case, are relatively straightforward issues of fact, and can be routinely and expeditiously disposed of by the County Court.

 

4. Balance of convenience

 

A stay will disproportionately affect myself and operate oppressively whereas it will relieve the defendant of all obligations towards me until the outcome of the test case

 

 

 

5. Defendant’s conduct

 

The present case has now been ongoing for seven months, during which time the defendant has failed to reply to any of my correspondence and has failed to comply with orders and directions made by this Honourable Court. Therefore I submit that to stay this claim at this stage is wholly unjust and would have the obvious effect of favouring a defendant notorious for its wilful refusal to comply with court orders and the litigation process in general.

 

In the defendant’s skeleton argument reference is made to many tens of thousands of complaints having been received by banks relating to their charges. It should be mentioned that the defendant in many similar cases has settled those complaints in full without the matter being heard in Court.

 

 

6. Status quo

 

A stay would not maintain the status quo but would favour the defendant by allowing them to continue to apply charges to my account without allowing myself to pursue a legitimate claim to a remedy

 

7. Conditional order

 

Should the court be minded to order a stay it is respectfully requested that conditions should attach to the order so as not to prejudice the claimants position. Such an order should include:

 

a) That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.

 

b) That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.

 

c) That the defendant is prevented from closing my account.

 

d) That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.

 

e) That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998)

 

f) That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998.)

 

g) That these injunctions remain in place until the settlement of my claim.

 

h) That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent.

 

i) That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

 

I suspect that the reality of what I am saying is that if you apply now for the stay to be lifted, a hearing date will be set for around some four weeks from now, which will take you to almost November. By that time we would only be some two and a bit months away from the hearing of the OFT test case - and it would be unlikely that (if you were successful) your case would be heard before then. In all probability the Court would not, in those circumstances, lift the Stay and you may also be faced with an application from the bank for their costs to be awarded against you.

 

Having said all that, I'd be delighted to see you succeed in having the Stay lifted. Good luck!

 

J

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Hi all,

 

As of today there has been no word from the court on whether they have agreed a stay. The stay was requested by SC&M on 24th September, and a letter sent to me later that week. BTW, I did send a draft order of directions to the court and SC&M previously. Would the draft override the stay request?

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Hi all,

 

As of today there has been no word from the court on whether they have agreed a stay. The stay was requested by SC&M on 24th September, and a letter sent to me later that week. BTW, I did send a draft order of directions to the court and SC&M previously. Would the draft override the stay request?

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Last week I got a letter from the court agreeing the stay. I had seven days from the date of receipt to dispute the stay. However looking at the posts nowadays it seems more unlikely that stays will be lifted, so I may or may not dispute it...

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I think you realise that attempts to get a stay lifted are futile really, unless you have exceptional circumstances, e.g. hardship.

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