chubbas dad v reliance & fester

[chubbas dad]

still nothing from a & l or wragges or my local court.getting to me now.all i want is my cash is it to much to ask for?these days i think it is.but i must soldier on,bayonets fixed and over the top.have a nice weekend all, im going to the sea side tomorrow.see you all on monday if your luky :grin:

[chubbas dad]

phoned my local court today.they are still w8ing for the letter that apparently has been sent out by the master of the roles,

 

(The MoR decided not to issue an order staying all outstanding cases. Instead he asked the Deputy Head of Civil Justice to write to all Designated Civil Judges, (which he has done) inviting them to consider staying outstanding claims on a case by case basis as appropriate. Designated Civil Judges are the senior circuit judge responsible for a group of courts. S/he may agree arrangements with the district judges sitting at each individual court.) (pinched from zootscoots thread)

~~## Stays info and guidance ##~~

once my local judge has this, he will make an informed decision :-? .

so its a w8ting game at the min,and i cant w8..............

[j.barton1]

That seems positive hunny, at least its not a stay. I am gonna phone court tomorrow, I keep putting it off, i am dreading if they say its stayed.

 

J x

[chubbas dad]

im definately gonna contest it if it is stayed.there is no reason for it to be.

[chubbas dad]

this looks like a good one , any comments or ideas how to make it better?

Claim Number:XXXXXXX

In the xxxxxxxxxxxxxx

 

Between:

 

 

Claimant: xxxxxxxxxxxxxxxxx

 

-and-

Defendant : alliance and Leicester plc

 

 

I strongly object to the proposed order of a stay in respect of the claim detailed above upon the following grounds;

 

Human rights

 

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

 

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

 

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

 

The Overriding Objective

 

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

 

Balance of convenience

 

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

 

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

 

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

 

The Status Quo

 

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

 

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

 

In the alternative

 

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, I respectfully request that the court issues the following injunctions:

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

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

That the defendant is prevented from closing my account.

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.

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 )

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.)

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

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.

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, the Claimant, believe all facts stated to be true.

 

Signed:

Dated:

 

 

thanx

[jansus]

good letter

 

I as well be appealing in a similar way if I get a stay

 

Jan

[j.barton1]

Looks great blondy.

xx

[moulon]

Hi mate, i am in a simular situation to yourself.I phoned Yeovil court today and was told they were waiting on what to do from a higher authority.I really hope my case wont be stayed but if it is i will definatly be appealing.

Rob.

[chubbas dad]

:o omg another in yeovil,thats real cool.i dont feel lonely now:grin:

 

hi jenny how you been,busy i hope?

 

 

well still nuffin from the court and im getting bored phonin oilys and emailing.need to find a different approach.......................from behind,with a sledgehammer?

[j.barton1]

Hiya hunny, I'm good...my courts still business as usual so i'm just waiting to hear what wraggies have to say now. Just fed up of waiting, i go on my hols soon and i can't wait...need a break. How r u??

 

XX

[chubbas dad]

same as you fed up.got holls with the kids in 3 weeks ,looking forward to that.hope the weather stays good.update tomorrow, gonna phone oilys again,keeping up the average of 1 a day 8)

[j.barton1]

How R they when you phone, I phoned them when they didnt attend court so i could let the judge know what they had said and they were really ars*y, put me off a bit!!

 

x

[chubbas dad]

8) yeah they are a bit smarmy with me.pass me from one person to another (normally 3 peeps) over about 15 mins,and then say they will get georgina to "phone me back".yeah like thats gonna happen.........

 

 

speak later gotta get bak to work

[chubbas dad]

:o just in and i have a letter from a & l.

 

 

dear mr chubbs

 

account no xxxxxxxxx

 

 

we refer to your complaint about charges for unauthorised overdrafts(meaning paid items,failed items, and unauthorised overdraft charges) and confirm that although we wrote to you with our final response,we consider that your complaint remains unresolved.

 

although we believe the charges are fair,transparent and lawful,since we wrote to you,a number of current account providers have become involved in legal proceedings with the office of fair trading("oft")in relation to charges for unauthorised overdrafts wich we beleive will resolve the legal issues about fairness and legality of your charges.

 

alliance and leicester is not one of the banks and building societys in the test case.however this is an issue where customers,as well as the financial services industry as a whole,would welcome legal clarity.

 

we have asked the fsa to suspened the normal timetable for dealing with complaints in relation to charges for unauthorised overdrafts,and the fsa has agreed to this request subject to conditions that protect your rights.

 

in view of this court case we have asked both the fos and the courts not to proceed with anyother case they are hearing untill the test case is resolved.fos has indicated that as a general proposition it will indeed not proceed with cases which rely on the legal issues being considered in the test case.similarly,you should be aware that if you choose to issue a claim in the county courts, we intened to apply to the court for an order to stay your action untill resolution of the legal proceedings with the oft.

 

obviously exactly what will happen next will depend on the courts.we do not know how long the case will take.given the importance of the issues being considered this may take many months to finally resolve.we can assure you that once the legal proceedings are completed we will resolve your complaint as quickly as possible.if at that stage you do not agree with our conclusions you will of course be able to refer your case to fos (or to the courts)

 

we can assure you that we have registered your complaint.please retain your bank records, as this will make it easier for you to support your complaint on resolution of the test case.

 

once the legal proceedings finish we will resolve your complaint as quickly as possible applying the test case principles, which may result in a different outcome to the one communicated to you in our final response

 

 

thats the main letter, and it is acompanied by a frequently asked questions page

 

grrrrrrrrrrrr im gonna go on one tonight..........

[j.barton1]

Awww hunny, i bet youre peeved. Make sure you contest it....bloody banks

[chubbas dad]

im gonna fite um all the way and im gonna get me4 a tank and an army of zombies to ........................

[Bigmark]

[granny50]

Hi I also had the same letterit seems we are all in the same boat. I shall have to check with the court again let me know how you get on.

[chubbas dad]

omg tanks............ i love um thanks bigmark u made me smile.

 

 

nps granny ill post as soon as i hear anything:-D

[chubbas dad]

I respectfully request that the stay which was ordered on the XXXXXXXX be removed.

 

 

Human rights

It interferes with my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998.

Art.6 1. of the Convention provides that “ In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”

It is submitted that in a claim for a sum of £3,778.06, an indeterminate stay which depends on some litigation unconnected to the instant case, between two other parties who have no relation to the parties in the instant case is not reasonable.

It is not clear that the matter will be heard as predicted and in the event that it does go to trial, there could then be appeals and subsequent appeals so that the matter might become protracted and even last as long as 2 years or more – from the date of the commencement of trial. Even if the predicted case does go to trial, it is not certain that it will proceed to judgment as it is entirely possible that there will be a settlement during the course of the litigation so that the question in issue is inconclusive.

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my case is allowed 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.

 

Lloyds TSB Bank

 

The defendants Lloyds TSB Bank have already settled 14 similar cases.

In the attached list of cases, the court will see that Lloyds were defendants in 14 cases. In most of these Lloyds actually filed defences and actually returned their allocation questionnaire, obliging the claimant to do the same. However, in every one of these cases, Lloyds bank settled the matter before the hearing.

In 2004 the head of personal banking of Lloyds TSB Bank Peter MacNamara stated in a radio 4 interview that Lloyds was making big profits out of its default charges and that this money was being used to find free banking for its customers. The Claimant can supply a copy of this recording of the court wishes.

 

 

Other cases

It is true that there are currently many other cases which are litigating on the same issue of contractual penalties. However the court may be unaware that not a single case so far has gone to a hearing.

Attached to this application is a sample list of 223 cases complete with county court reference numbers (Annexe 2)- of which the claimant is aware and which have been started since February of 2006. All of them have been settled before hearing.

Many of them have even received default judgments against the defendant banks in question which has then been set aside on application by that bank and then which has been settled by that bank rather than go to court.

In two cases the court has even ordered standard disclosure against defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing and that it will be settled out of court and therefore produce no useful decision from a higher court.

It is further submitted that the defendant in the instant case has no intention of going to a hearing.

It is submitted that the pattern of cases settled so 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.

It is submitted that this is abusive of the justice system and of the public resource.

 

 

Balance of convenience

The sum claimed is insignificant to the bank but it is a significant sum to me. Further more although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of penalties which I say are unlawful.

Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to take the claimant to the door of the court and then to settle the claim.

 

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks activities which the claimant submits are unlawful and/or retaliatory.

 

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks so far have settled every one of the 223 example cases and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the defendants have declined to allow the issue to be decided.

My case presents another opportunity for the question to be definitively settled as should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy.

It is respectfully submitted that the court’s order to stay the claim creates more uncertainty and more difficulty.

It is respectfully submitted that if the predicted test case referred to by the district judge in his order, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the cases conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

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.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by myself in the instant case.

 

In the alternative

If the court decides not to accede to my request to remove the stay I respectfully request that the court issues the following injunctions:

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
  
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter
  
• That the defendant is prevented from closing my account
  
• 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.
  
• That the defendant remove 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 )
  
• 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. )
  
• That these injunctions remain in place until the settlement of my claim
  
• 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
  
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

Additional orders

If the court does accede to my request for a removal of stay then I respectfully request that the case be allocated to the small claims track but that the defendant be ordered to make standard disclosure.

It is submitted that an order for standard disclosure will assist greatly in bringing this and other similar claims to a speedy and just conclusion.

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges

 

ah looks good mite use this 1 when needed.

[chubbas dad]

got me a stay letter from my court today............ gonna appeal on monday so gotta get my letter sorted tomorrow;)

 

on the 07th of august 2007 district judge b. silly sitting at xx xxxxxxx xxxxxx xxxxxxxxx considered the papers in the case and

 

ordered that;

1) a test case has been issued in the high court between the oft and certain banks with a veiw to deciding issues of legal principle in relation to the recovery of charges made on bank accounts.

2) further information in relation to the test case is likely to be available on that offices website at The Office of Fair Trading: making markets work well for consumers

3) the issues in that case will affect this case.

4) it is ordered that:-

5) this claim is stayed untill further order with a veiw to awaiting the final decision in the test case ( by which is included the outcome of any appeal or the expiry of time for appealing)

6) the defendant shall within 28 days of the final decision in the test case file at court and serve on the claimant a letter confirming whether or not the case is to proceed and, if so , setting out the required directions

7) either party may apply on notice at any time to remove the stay

8) because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside,varied or stayed. a party wishing to make an application must send or deliver the application to the court ( together with any appropriate fee) to arrive within seven days of the service of this order.

you have got to be joking!!!

over the top men,take no prisoners.....................................

charge

[chubbas dad]

OK BEING SERIOUS NOW.mentioned in the letter to remove the stay is a section ............

 

 

Attached to this application is a sample list of 223 cases complete with county court reference numbers (Annexe 2)- of which the claimant is aware and which have been started since February of 2006. All of them have been settled before hearing.

 

 

 

 

any ideas where i can get this infiormation ???

 

 

thanx

[togeoff]

I think that refers to LLoyds. Go to the Litigation section above this forum and do the A&L printout - count them and you'll get your relevant info.

[jansus]

I have sent my N244 with the letter as section C attachment and a cheque for £35.00

 

I notice in thread above that the charge is in some cases £65

 

maybe it depends on the amount of the claim

 

Now we are in the hands of the courts

 

jan:(

Find out here if your local court is staying claims

[chubbas dad]

yeah allways in the hands of some one.oh well just gotta keep stabbing away at it.what if the judge wont change his mind about the stay?can we keep appealing or will it be a case of "no get lost, youve been told ";-)