Not allowed to file court claim!

[midge61]

Hi all

 

I have been helping my daughter claim her charges from HSBC. Prelim and LBA done and today was day for filing court claim.

 

I did all the forms for her etc but when she went to our local court (Taunton) she was told that as of last week you can no longer file until a complaint has been lodged with the FOS.

 

Has anybody else had this?

 

I thought if you went down the FOS route you had to take their decision as final and that meant you could not then file a court claim.

 

Midge

[Guest Bert52]

This is odd. I thought it is one's right to do so regardless of bodies such as FOS.

 

Try another town or go online to file it.

[rosiecotton]

Courts tend to prefer people to use alternative dispute resolution, purely to save their own time, and will often advise this as a course of action. However you do have the right to a court hearing if you choose and they cannot stop you from doing so, although you may get a judge who doesn't like it much.

[blacksheep1979]

don't know why the court is bothered - they must be making a killing thanks to bank charges claims as they never get to court (they should give a % to cag )

[midge61]

HI

Thanks for replies. Daughter has been told file a complaint with FOS and then she can go back and file claim. I've done three claims via this court and never been told this before.

 

Think I will try moneyclaim but daughter is excempt from fees so how does that work? Do you file and then post necessary documents of proof of income support? It was because of this that we went down the N1 route.

Midge

[Spiceskull]

Simple way round this - send a complaint to FOS and make a duplicate copy to include with your court bundle, along with your schedule of charges...this demonstrates that you are following the "suggestion" of the court as well as enforcing your rights...

 

As for exemption from court fees, ask for a copy of the "exemptions leaflet" - this means that your daughter will need to get a letter from DSS/Jobcentre (or whoever it is now) dated within the last thirty days, and confirming that she is in receipt of income based JSA...

[dw190]

If this is just Taunton making their own rules go to the next town with a CC and file it there. You can then transfer it to Taunton if a defence is filed.

[ScarletPimpernel]

Simple way round this - send a complaint to FOS and make a duplicate copy to include with your court bundle, along with your schedule of charges...this demonstrates that you are following the "suggestion" of the court as well as enforcing your rights...

 

 

Two points worth noting:

 

1. FOS requires you to have followed the bank's complaints procedure, and that you are unhappy with the bank's final response - they are allowed 8 weeks to get to this, before you can escalate the complaint to FOS. It is not possible to complain direct to FOS.

 

2. Probably happily in this case, FOS will only deal with complaints arising on after 06 Apr 07.

 

The court appear to be following the example of Lord Falconer & Lord Cronysmith, and are talking out of their backsides.

[tiglet]

Absolutely - any british citizen has the right to file a claim unless they have been recognised as a "vexaious litigant".

[Guest Bert52]

HI

Thanks for replies. Daughter has been told file a complaint with FOS and then she can go back and file claim. I've done three claims via this court and never been told this before.

 

Think I will try moneyclaim but daughter is excempt from fees so how does that work? Do you file and then post necessary documents of proof of income support? It was because of this that we went down the N1 route.

Midge

 

I believe if your daughter is exempt from fees then a claim online isn't possible.

 

Can you not go to Bridgwater?

 

Or go back to Taunton and insist on it. The counter staff are no more than minions.

[The cobbett slayer]

On the subject of exemption, have a look here Court Fees - do you have to pay them?

 

As far as I'm aware, as long as the claim is correctly filed, it is for a judge to decide whether or not it is to be allowed, not the court staff. There would need to be a ruling by a court or an Act of Parliament to change the rules.

[Spiceskull]

As far as I'm aware, as long as the claim is correctly filed, it is for a judge to decide whether or not it is to be allowed, not the court staff. There would need to be a ruling by a court or an Act of Parliament to change the rules.

Yes - forgot to mention that bit - you fill in the exemption application form, and this is presented to the judge as part of case management. The judge will decide whether the exemption applies for your claim.

 

I went through this for a friend, on both the original claim and the subsequent AQ (exemption needs to be granted BOTH times...) - it was, and he won...

[jdey123]

It would be absolutely disgusting if you are required to file a claim with the FOS. The draft report of the European Parliament inquiry in to the manner in which HM Treasury, FSA and FOS dealt with Equitable Life investors has already concluded that delays in the FOS are unacceptable and the service is not what consumers should expect. Once the final report is ratified on 9 May 2007, it will be suggesting to the UK government that major changes are required in the FOS.

 

http://www.europarl.europa.eu/comparl/tempcom/equi/written_evidence/20070127_neill_en.pdf

 

See pages 52 onwards of Lord Neill's report in to FOS for witness statements.

 

The FOS is funded and staffed by members of the financial services industry. Unlike a judge in court, the ombudsman is not required to adhere to court rules or even to the strict letter of the law. There is no appeals system.

[azegard]

try money claim online, i have filled two cases with them

[Guest Bert52]

try money claim online, i have filled two cases with them

 

But his daughter is fee exempt. She would be unable to file online.

[blacksheep1979]

But his daughter is fee exempt. She would be unable to file online.

 

The question the op has to ask themselves then is - is it worth the hassle to get it filed fee free or pay the fee, have less hassle and get the fee returned by the bank in a month or so time?

[azegard]

i think it is worth paying the fee and then claiming it back later, depending on how much you are claiming for, it should not be that much money

[Guest tlusnoc2]

The question the op has to ask themselves then is - is it worth the hassle to get it filed fee free or pay the fee, have less hassle and get the fee returned by the bank in a month or so time?

 

 

She may not be in a position to pay the court fees and to be honest if I were her I would be submitting a formal complaint to the court manager, as they can't prevent her from filing.

[blacksheep1979]

well maybe thats the difference between you and other people. Fair enough if money is a problem, but there is no point kicking up a stink and causing trouble which may get peoples backs up who could and maybe would have helped you before.

[djdave]

Equally there's no point letting the court give out incorrect information, when the next person they fob off probably won't be a CAG member and not as well aware of their rights.

 

No point getting angry with the court staff, they're doubtless following instructions in good faith, but they need to be corrected.

[Guest tlusnoc2]

well maybe thats the difference between you and other people. Fair enough if money is a problem, but there is no point kicking up a stink and causing trouble which may get peoples backs up who could and maybe would have helped you before.

 

She has a legitimate right to file her case, therefore if the counter staff refuse her that right, then she has the option to complain in writing to the court manager and I would be inclined to do so. That is not as you say kicking up a stink etc. I am not telling her to have a full on argument with the counter staff as that would do her no good whatsoever, and also those same staff are not exactly bending over backwords to help her now anyway.

 

There is also no reason for you to have a go at me personally either!

[Movingon]

What's wrong with simply posting the claim form and associated documents to the Court? Any reply in writing saying that she can't file until FOS have been used could then be challenged formally (By, as tlusnoc says, complaining in writing to the Court Manager).

 

Your right to file a claim is absolute and unconditional, and only a Judge can strike out the claim, and then only under certain circumstances; none of which include lack of consultation with a commercially biassed body.

[midge61]

Hi all

What the court staff said to my daughter was that as of last week they now ask that you file a complaint form with the FOS first and then go back and file court claim.

What I was worried about was that it was my understanding that if you complained to FOS you had to take their decision as final and then you would be unable to continue to file court claim.

I didn't think you could do both. Surely if courts are going to insist on this route it is going to cause confusion and block up the system even more.

I have used the FOS before with an issue I had with LLoyds and they were good but then I decided to go for all my charges and filed a seperate claim for that.

I have decided to fill out form for FOS and stress that HSBC denied her her money even after taking in a letter of appropiation as I think this will help and at end of day bank get charged for investigation so what the hell. She will still get her money back and in about the same timeframe as well.

Midge61

[hagenuk]

Yes - forgot to mention that bit - you fill in the exemption application form, and this is presented to the judge as part of case management. The judge will decide whether the exemption applies for your claim.

 

I went through this for a friend, on both the original claim and the subsequent AQ (exemption needs to be granted BOTH times...) - it was, and he won...

 

Remission/Exemption of fees is a discretionary power delegated to courts staff of a specified grade. The criterion for remission or exemption is that 'the applicant would suffer financial hardship to paying the court fee'.

 

A Judge does not need to see it.

 

For more information, look here.

 

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/25457-guide-reclaiming-bank-charges.html?garpg=9

[hagenuk]

Hi all

What the court staff said to my daughter was that as of last week they now ask that you file a complaint form with the FOS first and then go back and file court claim.

What I was worried about was that it was my understanding that if you complained to FOS you had to take their decision as final and then you would be unable to continue to file court claim.

I didn't think you could do both. Surely if courts are going to insist on this route it is going to cause confusion and block up the system even more.

I have used the FOS before with an issue I had with LLoyds and they were good but then I decided to go for all my charges and filed a seperate claim for that.

I have decided to fill out form for FOS and stress that HSBC denied her her money even after taking in a letter of appropiation as I think this will help and at end of day bank get charged for investigation so what the hell. She will still get her money back and in about the same timeframe as well.

Midge61

 

I would suspect that it was one fed-up Court Clerk - certainly this is not public or HMCS policy.

 

Following the judgment in R v. the Lord Chancellor ex parte Witham, the Lord Chancellor decided that litigants in the county courts and in family proceedings should be placed on the same footing as litigants in non-family proceedings in the Supreme Court.

 

Mr. Justice Laws, giving judgment in ex parte Witham said "the right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any which I can envisage". He went on to say:

 

"Access to the court is a constitutional right; it can only be denied by the Government if it persuades Parliament to pass legislation which specifically - in effect by expressed provision permits the executive to turn people away from the court door."

 

Certainly you should make a written complaint to the Court Manager about this, there is no reason at all that you should have been denied the right to file your claim.