1Man v HSBC

[mhsy2006]

Hey all,

This is my 1st post here.

I have just received notice of transfer to my local court.

 

Neath & Port Talbot County Court

06/06/07

 

The notice states the banks defence and that the allocation questionnaire will be diespensed with.

I have just sent a breakdown of the charges to both my bank and the court. The breakdown states the amount of each charge, the date and the description of the charge printed on my statement.

 

Also I have read that some people are asking the judge to strike out the bank's defence as an "abuse of process". This is because they almost never turn up to court.

 

I would like to try the same tactic. How would i go about this?

Should i send a letter to the court? or should i include it in my court bundle?

 

Should I be "nudging" my bank to settle?

Should I start preparing my court bundle?

 

Any help would be greatly appreciated

[lateralus]

i don't think the abuse of process letter will work - courts are very used to the wheels of justice turning slowly - they tend to give both sides - but particularly the defendents loads of time to comply.

what you can do to possibly speed things up is to send a draft order for direction - we used to do this in the aq - it is a way of asking the judge to basically bring the court bundle thing forward (knowing full well that dg never compies and will make an offer instead) if the judge agrees.

this is a way to accelerate the process. so, if that's what you'd like to do - you send a letter to the court and attach the draft order. if the judge ok's it they will send both parties a notice to provide the paperwork(the court bundle) and you'll have at least 14 days to comply - so don't do it until you know you are going to need it. look at post 1 of my after 28 days - no aq required - thread in my signature - near the end of post 1 is a letter and the draft order.

[lateralus]

decided to copy it for you:

 

It has been suggested by Bookworm in this thread:

Is your court dispensing with the Allocation Questionnaire?

that if you find yourself in this position - you send the Draft Direction to the court you've now been transferred to - the same as if you were filing an AQ using the new strategy:

New strategy for Allocation Questionaires

So, this would mean a cover note like this:

 

 

 

 

 

 

 

 

[Your address]

The Court Manager

****** County Court

Court Address

Court P/code

 

 

[date]

 

 

 

 

Dear Sir/Madam

 

 

 

 

You -v- Bank Plc

Claim Number: *******

 

 

 

It is noted that in my case referenced above that the Allocation Questionnaire has been dispensed with. I am aware that this is likely due to the large volume of claims that consumers are bring against the high street banks. I am also aware that to date the banks have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

 

 

 

In light of this the Claimant respectfully suggests that special directions may be made as per the enclosed draft order.

 

 

 

The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

 

 

- The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

 

 

- In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

 

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

 

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

 

 

Yours faithfully,

 

 

 

 

[name]

 

 

 

enc: Draft Order

 

 

 

 

THEN ON A SEPARATE PIECE OF PAPER - THIS:

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

1. 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.

 

 

 

 

 

 

so, that's it - the letter and attach the draft order

aside from that - as post 1 also says - a nudge with a breakdown to dg every 10-14 days from this point until they offer.

[mhsy2006]

Hey Lateralus,

Thanks for the reply.

I will send a nudge to DG asap and also prepare a letter for Draft direction to court.

[lateralus]

the first one is the letter - the second is the draft order which you attach -

you can look up jowalshy's thread - she did a slightly different cover letter.

 

the last line of the draft order is asking for their defence to be struck out if they don't comply

 

 

there is no guarantee that the judge will make it a direction but if he does - it just bring everything forward. as it asks for the disclosure that the banks won't provide.

[mhsy2006]

Hi all,

I have just received this letter from my court:

 

 

"

Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it

 

IT IS ORDERED THAT

 

1. Directions will be given in this case by the Designated Civil Judge, on xx/xx/2007.

 

2. The parties may appear in person or make written representations as to how the case should proceed provided a copy of the representations is sent to the court and the other side at least 7 working days prior to the hearing.

"

 

Just to clarify, this means i need to send in a draft order for directions to the court and to DG and not the entire court bundle...?

[lateralus]

yes, i'm reading it that way - 7 working days prior to that date (i wouldn't have thought that was a personal detail needing to be xx'd) - so - go ahead and send it now - won't hurt. i'd add a line into the first para of the cover letter.

As per the order dated xx/xx/07, I submit the following:

---then jump in with the cover letter.....It is noted, blah, blah.

[mhsy2006]

Hi Lateralus,

Forgot to mention I have already sent the cover letter and draft order for directions to Neath Pout Talbot County Court. Then about 3 days later they sent me a letter to say they have now transfered me to Cardiff County Court.

 

Thats soo anoying, I now have further to travel to get to court!

 

Anyway, to be on the safe side i will send them again to the new court.

 

 

 

(i wouldn't have thought that was a personal detail needing to be xx'd)

 

Your right of course, maybe im just a little paranoid lol

[freakyleaky]

Any news Mhsy?

[mhsy2006]

Hey Freaky,

Not heard anything yet, will make a post as soon as i get a reply.