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IN THE KINGSTON UPON HULL Claim Number: XXXXX

COUNTY COURT

 

 

B E T W E E N:

 

 

 

Claimant

 

 

-and-

BARCLAYS BANK

 

Respondent

_______________________

SKELETON ARGUMENT

_______________________

 

Application

  • The Claimant your name of xxxxxx has made an application for the Order to be set-aside on the grounds that the Claimant claim has Reasonable grounds of success.

The Law

 

Statements of Case

 

Strike Out

  • By CPR r.4.4 the court has the power to order the whole or any part of a statement of case to be struck out. This power can be resorted to on an application by a party. It can also be used by the court of its own initiative with (and sometimes without) the involvement of the ‘innocent’ party. Rule 3.4(2) of the CPR provides:

The court may strike out a statement of case if it appears to the court-

 

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

 

 

Procedure where an application is made by one of the parties

  • At least where a defendant makes such an application in accordance with PD 23 para 2.7 the rule is that any application to strike out should be made as soon as it becomes apparent that it is desirable to make it. Applications to strike out should usually be made in the period of acknowledgment of service and filing of allocation questionnaires (PD 26, para 5.3(1), and see also PD 3 para 5.1). A defendant who wishes to files a defence and defends on the merits will be taken to have acquiesced, and therefore it is too late to apply to strike out as an abuse of process, at least if the abuse is founded on the bringing of the claim (Johnson v Gore Wood and Co [2002] 2 AC; The Coca-Cola Company v Ketteridge (2003) LTL 4/11/03.

General Test

  • Under the old rules it was well settled that the jurisdiction to strike out was to be used sparingly. The reason was – and this has not changed- that the exercise of the jurisdiction deprives a party of his right to a trial, and of its right to strengthen its case through the process of disclosure and other court procedures such as requests for further information. Further, it has always been true that the examination and cross-examination of witnesses often change the complexion of a case. It was accordingly the accepted rule that striking out rule was limited to plain and obvious cases where there was no point in having a trial. The principles from W & H Trade Marks (Jersey) Ltd v W and H Trade Marks (Jersey) Ltd [1986] AC 368 the leading case under the old rules was approved in Three Rivers District Council v Bank of England (No) 3 [2003] AC 1 a t [96]-[97].

  • Applications under CPR r 3.4(2)(a) may be made on the basis that the statement of case under attack fails on its face to disclose a claim which is sustainable as a matter of law. On hearing such an application it will be assumed that the facts alleged are true (see Morgan Crucible Co plc v Hill Samuel and Co Ltd [1991] Ch 295. per Slade LJ).

  • A number of examples of statements of case open to attack under CPR r 3.4(2)(a) are given by PD 3. A claim may be struck out if it sets out no facts indicating what the claim is about, or if it is incoherent and makes no sense, or if the facts stated even if true do not disclose a legally recognisable claim against the defendant. A cause of action that is unknown to law will be struck out; as will subject to the courts permission to amend, a statement of case that omits some material element of the claim. Striking out may be refused in developing areas of law. (Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495.)

Sanctions

  • Rule 3.4(2)© provides that the court may strike out a statement of case if it appears there has been a failure to comply with a rule, practice direction or court order. Striking out the whole of a party’s statement of case ought to be reserved for the most serious, or repeated breaches or defaults (see UCB Corporate Services Ltd v Halifax (SW) Ltd [1999] CPLR 691, CA). Unless there is a serious default or breach the court should be prepared to impose a sanction which ‘fits the crime’.

  • Courts imposing sanctions such as stays and striking out have to pay attention to the fact that they may be depriving the claimant of access to the court, which has particular importance under art 6 of the European Convention of Human Rights (Woodhouse v Consignia plc [2002] 1 WLR 2558.) Proportionality is also an important factor.( Powell v Boladz LTL 22/9/03.).

Effect of strike out

  • Where the party in default is the claimant and the order provides for striking out the whole of the particulars of claim, the defendant may enter judgment with costs by filing a request stating the right to enter judgment has arisen because the court’s order

Berwick V Lloyds TSB 15 May 2007

  • The Court has highlighted the resent decision in the Berwick V Lloyds TSB in this judgement (copy attached) this decision in not binding on any court and at Para 14 of the Judgement District Judge Cooke stated “ I do not have in evidence a full set of terms and conditions applying to the account” Furthermore the claimant at Paragraph 23 stated in his view he would not be a breach of contract. Which was the principle of his claim.

  • In the claimant case she will be requiring discloser of the defendant’s terms and conditions from when she opened the account and by looking at the change made to the terms and conditions by the defendants over the last few years because of the numbers of claims and media interest. The claimant will argue that the defendant has tried to get around the law of penalty charges by disguising penalties as services. The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just their mechanism. For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's' default 'in exceeding his credit limit.
     

A particular problem with the Berwick V Lloyds TSB case in the claimants view is that by accepting without question the bank's interpretation of the current account contract the District Judge opens the door to any organisation to get round the law of penalty charges merely be producing a document which describes them as a "service".

 

 

Submissions

  • It is submitted that in deciding whether to set aside the judgement the court should consider each of the above factors listed above systematically, and then weigh up the various factors in deciding whether granting the set-aside would accord with the overriding objective.

  • In respect of these heads it is submitted on behalf of the Claimant that it is in the interest of the administration of justice to grant that the order be set a side in this case

  • Finally, this appears to be an extremely good claim on its merits. It is well known in the media that defendant banks and building societies against whom these claims are being brought are settling all claims of this nature where Claimants are seeking reimbursement of bank charges. To date no claim has proceeded to a fully contested final hearing. In fact a number of so called defences by banks and building societies have been struck out as an abuse of process in the last few month in Lincoln County Court. It is also submitted that in so far as this can be said to be a developing area of law striking out should be refused in accordance with the principles set out in Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495.

  • In addition the court will be aware that it needs to do justice between the parties in light of the overriding objective and the court is reminded that the Claimant is litigant in person.

  • It is submitted that striking out a claim is a draconian sanction which is not compatible with the overriding objective nor with Article 6 of the European Convention of Human Rights on the facts of this case. Further, the Defendant appear to perfectly understand what the Claimant is saying and not one of these penalty charges cases has gone to full contested hearing Banks and building societies have compromised every single one.

Conclusion

 

In the circumstances the Claimant asks that the Court set-aside its order and list the case for a full hearing and that the court makes and order for discloser of the Defendant Terms and Condition for the past 4 years.

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Its excellent - but CAG and MSE are funding representation at the strike out hearings now, as opposed to setting aside the orders.

 

http://www.consumeractiongroup.co.uk/forum/announcement.php?f=22&a=94

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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we have now had a member who has used the letter and took it in to HULL court and handed it over to the Court manager. he told to wait after 15 to 20mins the court manger came back and told are member that he was not to worry the judge is allocating 5 Min's to each person and it will be a direction hearing, and only claims where the POC were inadequate would he look at striking them out!

I.e claim which simply says " I want my bank charges back."

even then the judge should just make an order that the claimants are to amend their POC.

my adivice is send the letter as you nothing to lose by doing so!

and if the judge still wants to strike out your cliam (which i dont think he will on recipt of the letter) then MSE and CAG have a QC ready to help. who will probably be using the legal arguments oulined in the letter anyway!

 

Great work on getting a QC to help, hope your not paying for him/her though

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