Jo x versus HSBC

[jox74]

Ha ha, only just read this reply!!!

 

Ok, I've been following everything that has happened with the OFT case - I did a marathon reading session on Friday, think it took me about 3 hours to read one particular thread, but very helpful.

 

I am going to apply for a Judgement on my case tomorrow, as I spoke to the Court on Friday (Luton) and they said that the Judges are still deciding what to do about stays, but HSBC didn't comply with the Judge's direction to file a schedule showing how each of my claims was disputed by 1 August.

 

Saw that Lunatic Flea was in a similar situation, but a week earlier, and the Judge threw the case out, so fingers crossed!!!

 

That said, the N225 form 'Request for judgement...' asks about interest claimed since date of claim, and I've seen on another thread that this should be calculated at 36p per day - is that right, or does it depend on your bank?

 

Cheers

 

Jo

[lateralus]

the daily interest is calculated on the amount of your charges

it's charges x0.00022 pence per day - so roughly - if your charges total is 2995 daily rate would be 66 pence per day.

[jox74]

GGGGGGGGGAAAAAAAAAAAAAAAAHHHHHHHHHHHH NO NO NO NO NO

 

Got letter in post today from Luton Crown Court saying that all cases stayed - letter dated 8 August, but note signed at the bottom on 6 August.

 

HSBC didn't comply with the court's directions by 1 August, so got my boyf to hand in a letter and N225 form on - yes, 6 August - requesting a judgement coz bank hadn't complied.

 

I'm on the phone to the court now to ask what my status is - and they can't find my form!!!!! NO no no.

 

We didn't ask for an acknowledgement from the court when handed it in, so don't think I've got a leg to stand on now do I?!!! Sh*t.

 

The court has said to take another copy in today but I can feel my strong (ish) case slipping through my fingers!!!!!!!

 

What can I do?!

 

Help me o learned ones!!!

[freakyleaky]

All you can do if you have no proof of the original being delivered is to take a copy in today. Make sure it is a copy with the dates corresponding to the original!

You may want to take with you your application for removal of stay at the same time.

[jox74]

Thanks for your reply.

 

I kept a copy of the letter and the form, so will give them photocopies of my copy - or boyf will coz I'm at work in London! Maybe if there is an issue with not having an original signed copy I'll re-do the forms tonight based on the original date and take those in tomorrow.

 

Are there stay request templates anywhere? If I had time I'd search around myself, but have spent all morning so far dealing with this, and probably should turn my attention to doing some work - even though my head is not in it at all!!!!! I'll then try to follow up my letter today with a formal lifting of stay request.

[freakyleaky]

Application for removal of staty Have a read of this for starters!

[jox74]

Righty,

 

Gah - whilst trying to fight the banks / courts I'm also trying to sort my wedding which is happening two weeks from today. Bit hard to keep my eye on all the plates up in the air at the mo! I'd like someone to tell me that stress is good

 

Bit frustrated with my case, which I had hoped was going to go my way...the story so far being:

• 10 July - letter from Judge directing me to submit schedule of charges, and directing the bank to respond
  
• 1 August - deadline for bank to respond to direction
  
• 3 August - rang Court who confirmed that the bank had not complied, and that the Judges in Luton were deciding how to proceed in light of the OFT case
  
• 5 August (sunday) - did N225 requesting judgement, and covering letter explaining that as the bank hadn't complied I was asking for case to be struck out
  
• 6 August - boyfriend handed in N225 and covering letter (didn't get acknowledgement)
  
• 9 August - received letter from the Court (dated 8 August at the top, and 6 August at the bottom) applying stay to case (text of letter copied below)
  
• 9 August - rang Court to ask my status, as I had already applied for case to be struck out. Court said had lost paperwork, so went in and handed in a photocopies (got acknowledgement!)
  
• 16 August - rang Court to ask status of case in light of above. Asked for my case to go before Judge, Court said this would happen in the next week - hoped that this was good news.
  
• 17 August - received letter dated 16 August from Court saying "We refer to your letter dated 9th August and would advise you that an order was made on 6th August staying your claim until 31st March 2008. We return your Request for Judgement along with an Application Notice, should you wish to make an application to the court, the fee being £65". The form enclosed was an N244 Application Notice. Oh, and surprise surprise, the N225 form enclosed was the original that was lost before I got the stay letter!

Stay letter

 

Date 08 August 2007

 

Before DISTRICT JUDGE GILL sitting at Luton County Court...

 

Upon reading the court file

 

And upon the court noting that a test case has been issued in the High Court between the Office of Fair Trading and certain banks, with a view to determining issues of legal principle in relation to the recovery of charges made on bank current accounts.

 

And upon it appearing that the issues raised in the test case are similar to those in this claim

 

THE COURT OF ITS OWN INITIATIVE ORDERS THAT

 

1. This claim is stayed until 31st March 2008 with a view to awaiting the decision in the test case. Either party may apply at any time, by application on notice in accordance with CPT 23, to lift the stay.

2. If no such application is made, the court will give directions of its own initiative on the expiry of the stay.

 

Dated 06 August 2007

 

 

So - is the form they sent the same form that you apply for a stay to be removed on?

 

When I complete this, is it worth setting out the history - as per the above - highlighting that I feel that the stay should be removed just so that the case can be struck out?

 

I've seen the stay letters on the system, and note the points made about the overriding objectives, such as saving expense etc. While I recognise the importance of these, in my case do you think I should stick to the fact that, irrelevant to the wider arguments of the case, the stay should be lifted because the bank defaulted in it's responsibilities to the Court?

 

Grateful for anyone's views - and sorry for the long post

 

Jo x

[freakyleaky]

Firstly, stress is good! Keeps you on your toes!

 

I think the more reasons for removal of stay you can put forward the better. The fact that the banks disregard for the justice system has caused your case to drag on for so long is a valid point. The other reasons that the courts are taking into consideration is whether the lifting of the stay will prevent any financial and personal hardship to the claimant so if you can think of anything along these lines then include them too.

Good luck.

I take it you have seen this thread Application for removal of staty

[jox74]

Ok, been away for a while getting married...now ready to try to kick some @rse here!!!

 

Grateful for anyone's views on this as an application for removal of stay letter - particularly as the bank defaulted on the courts' direction before the stay was applied.

 

Thanks!!!

 

Application for removal of stay

 

Re: Jxxxxxxxx – v – HSBC

Claim Number: 7Qxxxxxxxx

Filing Date: 14/05/07

 

 

MY CASE

 

On 10 July 2007 the court directed me to, by 24 July, file and serve a schedule specifying each and every item in dispute in my case. Further, the defendant was directed to, by 1 August 2007, file and serve a schedule showing how each item in dispute was calculated and the legal basis for the charge. The bank did not comply with this direction, and to my knowledge has never provided the Court with this information.

 

Notwithstanding all of the arguments set out below as to why I would humbly request the stay on my case is lifted, it remains primarily the case that the bank defaulted on it’s obligations to the Court before the stay was applied. In this event I would request that the stay is lifted, to allow my request for judgement, dated 5 August 2007 (original attached), to be considered.

 

I respectfully make the following additional arguments for a removal of stay.

HUMAN RIGHTS

 

1 The Claimant contends that a stay of all court actions in which the preliminary issues identified in the Agreement of 25th July 2007, made between the Office of Fair Trading (OFT) and the Banks (the Agreement), a copy of which is annexed hereto, are raised, contravenes my rights under the European Convention on Human Rights (ECHR) as set out in Schedule 1 of the Human Rights Act 1998, Article 6.1.

 

2 Art.6 1. Of the Convention provides that, in the determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. The OFT v the Banks case is not going to be resolved within a year from its commencement. Further, given the importance of the issues there will almost inevitably be an appeal from a first instance decision and any stay could endure for two years or even more. This is plainly not a reasonable time within which to resolve the vast majority of claims before the Courts, which like mine are small claims.

 

3 The above combined with the knowledge that HSBC has not successfully defended any of these cases in Court and in fact has not even been to Court to our knowledge. It is interesting that they are still settling any ongoing cases that have not been stayed to this date. Four examples are 7QZ46749, 7QZ26454, 7QT42155 and 7QZ 85517. I have reason to believe there are actually around 94 other cases that are in similar positions or where judgment has been granted in favour of the Claimant or the Defence struck out.

 

 

THE OVERRIDING OBJECTIVE

 

3 CPR 1.1(2) sets out considerations which the Court must give effect to.

 

(a) ensuring the parties are on an equal footing

 

The Banks and the OFT will be represented in their case. I, as a consumer am not represented. The case will determine issues essential to many cases, like mine, before the County Courts, yet I have no voice in them. There are particular circumstances in individual cases which will raise arguments the OFT are not aware of, nor can the case be expected to deal with the terms and conditions in all cases as not all Banks and Building Societies are listed as Defendants. Even if I were to be somehow joined in the OFT case, I would have no funding for representation and would therefore be prejudiced in a case with some heavyweight lawyers. The Court would properly ensure the parties in our case remain on an equal footing by allowing it to proceed.

 

(b) Saving expense

 

Expense would be saved by allowing my case to proceed in the normal way, particularly as the bank defaulted on its responsibilities in this case, before the stay was applied.

 

Further arguments on this issue are set out below and apply equally under this header.

 

© dealing with cases which are proportionate to

 

(i) the amount of money involved

 

In our case, I claim £3496.01 in charges unlawfully levied by HSBC (including interest, not including court fees). This is a large sum for me but a negligible sum for the Defendant. It is of no consequence to the Bank that I may be deprived of an opportunity to resolve our dispute for a further year to two years, as they already have my money, which they took immediately and in any event they are under no financial pressure to resolve the case fairly and speedily. I, on the other hand, am extremely anxious to have my case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Bank is concerned, does not warrant the resolution of the dispute being delayed further.

 

(ii) the importance of the case

 

My case is very important to me, though given the commercial strength and power of the Bank, of relatively little importance to them. Nor can the Banks fairly argue that all of a sudden the principles as a whole are important to them so that all claims against them must be stayed, as they seek to do in the OFT case. This is not an argument which lies with them to make, given their approach to cases like mine. The Banks’ strategy to litigation of this kind is almost without exception, to put in a defence and settle shortly before the trial. It is very rare when the Banks bother to argue any defence. In other words, they treat cases like mine as another commercial decision. They have never sought to see a case through, take it to appeal if necessary and seek to establish certainty over the principles they assert are so crucial now, they necessitate a stay of all claims. Certainly of all the cases discussed on www.consumeractiongroup.co.uk, I am told, and believe, that not one case has been taken to trial. The Bank has always settled. If these issues were so critical to them they were at liberty to see their arguments through in a case, take it to appeal and seek certainty on the issues in an appellate court in the normal way. Only now do they seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

 

To further strengthen the points above it is interesting for you to note that DG Solicitors have not sent me any correspondence at all to do with this case. They have not adhered to the legal system in many of their other cases as I have discovered from the Consumer Action Group website and even tried to set aside judgments after ignoring all their obligations under the legal timescales. I appreciate that this should not concern me, however, it may be helpful to Your Worship to note the manner with which these solicitors and their clients are abusing the system to their advantage.

 

 

(iii) to the complexity of the issues

 

The issues of whether the Banks’ charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and whether they amount to penalty charges, whether for breach of contract or as a payment for services as the Banks now allege, is not so complex that it warrants the stay of all claims in which these issues are at large. The arguments are commonly dealt with days in day out by the County Courts who are more than adequately placed to deal with them. The complexity/simplicity of the issues is no reason to grant a stay, rather it is a reason why the County Court should continue to determine them.

 

(iv) to the financial position of each party

 

Many Claimants are normal people on low or average incomes who have been deprived, in many cases, of several thousand pounds going back up to 6 years. I am on an average income and have suffered hardship as a result of the Bank’s charges. I will continue to suffer hardship for a much longer period if the stay is allowed. The Banks have virtually unlimited funds by comparison. I, like many other Claimants would be financially prejudiced by the matter going off for a long period, not just by the fact that if I win I will have been deprived of my money for a much longer period, money that would make a significant difference to my life. The monies owed to me would clear my current overdraft completely, with a considerable amount left over. I could have my private law dispute resolved expeditiously and fairly by the Court allowing our action to proceed to trial in the normal way.

 

(d) ensuring the case is allowed to proceed expeditiously and fairly

 

This case will not be expeditiously dealt with if delayed for up to 2 years. The Banks have had years to invite the OFT to issue their case against them. Many hundreds of cases have gone through the Courts already, arguing the same points that are set out as preliminary issues in the OFT case. I should not be deprived of the same opportunity that all those other Claimants had, simply because the Banks have elected to take this route vis a vis the OFT after my court papers had already been filed.

 

In any event, my case, as many others do, involves other additional arguments to those listed as preliminary issues in the OFT case. One major issue is the amount of recoverable bank charges and the costs to the Banks of taking the particular step they charge for. There is clearly an issue over what is a reasonable charge for say a returned cheque or at what stage a charge moves from a reasonable one to an unenforceable penalty. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of our case because some issues are identical to the preliminary ones in the OFT case, while there remain issues in our case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in our case to be determined at the same time, by the same Court which hears all the evidence and all the arguments.

 

My argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause undue hardship and which, if found in my favour, cannot be properly compensated.

 

ADDITIONAL POINTS

 

4 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 inconvenience and damage to reputations. Were my name to be entered on the default register I would find it very difficult to get credit or a mortgage and I would have to pay higher fees for any credit, which I did manage to obtain. Allowing a stay of all claims like mine would facilitate this invidious practice, which cannot properly be compensated for. Should I be successful, the damage will already have been done.

 

IN THE ALTERNATIVE

 

5 If the court decides not to accede to my request to remove the stay I would then 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, as per the judgment of Judge Abrahams, at Luton County Court, whoordered one of the Banks to stop applying the charges until a High Court test case settles the legal issues involved.
  
• 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.

[freakyleaky]

Hi Jo, first of all can you delete the name from the letter please. You never know who is watching!

[jox74]

Good call - thanks!!!! - but I'm a forum eejit and don't know how to do that!!! Is there an administrator that can show me?!!

[jox74]

PHEW - name deleted. Thanks!!

[jox74]

Grateful for any advice I can get.

 

I applied to the county court (Luton) for removal of stay, and have my hearing on 14 Jan.

 

Has anyone else done this in Luton, and if so how did it go?

 

I think I've a reasonable case, as the bank didn't comply with the court's direction a few days before the stay was applied, so I will argue that the stay should be removed simply so that the case can be thrown out...is there anything else I should be saying.

 

Details of my case is on here, but i don't know how to do a link to it!!!!!

[zootscoot]

Threads merged

[Castlebest]

Hiya Jo, don't shoot the messenger , very few judges have lifted stays for any reason whatsoever since the test case was announced back in July .

Added to this the test case is due to start on the 14th January which is the same day you have your appeal hearing so I don't hold out much hope for you.

 

I would go along for the experience and try to argue your case but I think your stay will be left in place .

 

pete

[jox74]

Ahhhh...

 

Well, in a way that is good to know...managing expectations and all that! I'd started to spend that money in my head.

 

I had intended to solely argue from the point that as the bank had not complied with the court's order that, irrespective of progress with the OFT's case, there would be grounds for the case to be simply thrown out....

 

I will argue that it will be one further case off their system and all that!!

 

I hadn't intended to argue the basis of my case though - given that there is this reliance on waiting for the outcomes of the test case. Do you reckon that sounds ok?

[Audreygreeneyes]

well oyu can try but I and a lot of others have all failed and we had used those arguements and other ones............ but apparently according to the judge...........

 

the OFT waiver, is far more important and superseeds an act of parlaiment..... the courts on cpr being that act........ failure to comply is ok .........

[jox74]

Oh well, I've booked the day off so might as well try to enjoy it!!!

 

Can anyone tell me how to address the Judge?

 

Also, I've been looking on the Ministry of Justice site but can't find any guidance on how binding non-compliance with county court directions are (other than claimants requesting a judgement, which I did) - any thoughts?

 

Finally, I was thinking of trying to cite some cases, pre-stay, where courts have found in favour of claimants when the banks have not complied...I recall reading a case on here...lunatic flea I think. I'll have a look round to find it, but does anyone have any other ideas on cases, or can direct me to where I can find this out?

 

Would be even better if there are examples post-stay of course, but that doesn't seem likely.

 

Realise that this is all probably futile, but worth giving it a go all the same.

 

Cheers

 

Jox

[jowalshy]

Hi jox. I think the best way to address the judge is "your honour". Here is a thread I started which lists some cases that were won by the claimant after the OFT announcement:-

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/114301-claim-details-post-oft.html

[jox74]

You are a ruddy star!!!

 

Just the sort of thing I was after!!!

[jox74]

Well, hearing for removal of stay is tomorrow. Knew this was coming so was determined not to leave prep til the last minute...and what do you know?!

 

Annoying thing is that I thought I would be nervous, but I'm feeling really up for this - and it seems as though I don't stand much of a chance!!!

 

Is the OFT case still scheduled to kick off tomorrow?

[jowalshy]

It looks as though the test case is starting on Wednesday. Here is the thread for the latest news. Looks like the test case has be moved to a different location where there is a restriction on seating. Also have a look at the prome ministers thread below and if poss email the links.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/125791-latest-news-oft-case.html

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/126477-prime-ministers-website.html

 

And also good luck for tomorrow. let us know it all goes.

[freakyleaky]

Hey Good luck for tomorrow Jo!

[jox74]

Cheers all!!

 

Jitters'll no doubt kick in tomorrow morning, but for now I'm ready to kick some @rse!!!! Especially having read the stuff about the OFT case Jowalshy just flagged up.

 

I'll mail my MP first thing tomorrow... then I'll read all of my claim papers again!!!

[Castlebest]

Good luck Jo just remember they are just people like you, listen to what they say and put your case forward as clearly as you can, you will be fine

 

pete