Archer V HSBC - ***Won in court POST OFT!***

[bettsy]

Hello all

 

Firstly thanks for all the help and support these forums provide. This is my first post because I have found most of the info I need without having to ask!

 

I am currently claiming a total of £682 (including interest and court costs) from HSBC and have just received a hearing date of 17.08.2007 at Derby County Court. I am just preparing my court bundle as per directions on the order and have 2 questions (which are very basic!)

 

1) In what format should I present the court bundle? i.e there are about 200 pages - should these be placed in a folder, or binded together in some way?? What is the protocol?? I am sorry if this has a really obvious answer but I know the courts are inundated with this information and I'd like to send it in the most user friendly way.

 

2) Re Schedule of charges. I am claiming statutory interest at 8%. When including the Schedule of charges should I include interest calculated from date of charge to the date of claim (05.04.2007) or todays date?. My original claim stated I would be claiming interest at stat rate until date of judgement or payment.

 

Thanks for your help - like I said I seem to have got to grips with the complicated legal bits - sometimes it's the simple things that are most complicated!!

[lateralus]

just to ask - when is the court bundle due - is it two weeks before the court date?

 

the reason i'm asking it that's still a pretty long ways away - if you wanted to bring the matter forward - you could try sending in the draft order for direction with a cover note to the judge - if he sees it as a good thing and orders it - he could say ok - get it in to us in 14 days (and as you've already got to grips with it - that would be a problem at all) - it would mean dg has to show all their stuff and they won't - so your offer will probably come much more quickly.

should you want to do this - just copy out this draft order and the letter and send it to your court.

 

 

 

[Your address]

The Court Manager

****** County Court

Court Address

Court P/code

 

 

[date]

 

 

 

 

 

Dear Sir/Madam

 

It is noted that in my case referenced above that the Allocation Questionnaire has been dispensed with and that a date for a Preliminary Hearing has been set for 25th July 2007 at 10.00am. 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 HSBC 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. I think that this would expediate the matter, which will hopefully lead to an early resolution and therefore making a court date unnecessary.

 

 

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.

 

 

 

as for your questions -

have you seen my new thread - it's the last one in my signature below.

as for the format - in a folder would be nice - with a table of contents - and 3 of them - one for you one for dg and one for the court.

see my thread for the table of contents

 

i'd say for the interest - it should be to the date of the claim - plus a daily rate from the claim date to the date of settlement. the daily rate is calculated at charges x 0.00022 pence/day.

[bettsy]

The court bundle has to be returned within 21 days of service of order (which was 11 June). As I am holiday end of June/ begining of July I am preparing it to get it sent. I have also sent nudging letter today to dg.

 

I have based my bundle on your thread 'Court Bundle for dummies' - it was great, many thanks

[lateralus]

that is excellent news - as theirs will have to be in within the same time frame? - and already nudging - well done - that would have been my next move - and you know what - send another nudge next week referring to the need to get their court bundle in on time - chances are one of these days they will get the hint and make the offer before the bundle is actually due instead of the day after. - have you seen the all the wins recently just after the bundle is sent off - it really presses them into action. are you away on holiday - because i've a feeling their offer will come just after - like 3 july - will someone be able to let you know if it arrives?

[bettsy]

They have 21 days after I have submitted mine to then submit theirs, but looking at these threads it does seem that they don't bother and offer prior to that deadline. I am away on hols until 6th July but i have told dg that in letter.

 

Derby County Court seems to go straight to the point - there was no AQ and the directions from Judge were very clear - he wants dg to provide justification as to how much it really costs them to process unauthorised overdrafts.

 

Hopefully this means the Judge is sympathetic!! I am surprised that I have had no contact from dg at all - no offers (partial or otherwise) as I think I am claiming for a relatively small amount compared to most of the threads on this board.

 

Thanks for your help

[syds mum]

hi bettsy... found your thread... did the judges directions come from courts own motion or did you request them?? and i already know that you asked for judgement is that right? could do with seeing your directions as in my hearing they were highly relevant!!! need to get your claim in my head before i can advice clearly where they are coming from!!!

 

debbie xx

[syds mum]

also what happen to hearing on 23rd august???

[bettsy]

Hi Debbie

 

My directions were exactly the same as yours albeit the dates were different. I have ammended your arguement accordingly and it all makes sense, but I could really do with copies of the OFT Waiver and the cases you relied on. Any chance you could send those to me asap. My case is on Friday and I need to get this stuff off asap

 

Many thanks

[syds mum]

no probs love just getting them into correct format to e mail them... did your directions say they had 21 days after you put in your bundle.. if so they should have complied by the 16th july by my calulations!!!

 

in your application does it rely on CRP 3.3(5)... and make referance to your directions order or your judgement order?

 

it is important as if they have, then the mistake is the same as mine and you will sail thu...

 

got the london borough done.. you say you only need the OFT argreement?

 

debbie xx

[syds mum]

here is the link for OFT agreement http://www.oft.gov.uk/shared_oft/press_release_attachments/bankagreement.pdf

 

just need to print off and have e mail london borough case...

[bettsy]

Hi Debbie

 

Yes the OFT Waiver, the case you mention and the list of dealt with cases would be great.

 

They are using CPR3.3(5) and the wording of the whole direction is exactly the same as yours appart. You've confused me now though - are they refering to judgement order of directions order (like I say, wording is the same as yours)

[syds mum]

this is from my application for set a side...

 

The Order dated 16 August 2007 (apparently issued on 17 August 2007) be set aside and the Defence be reinstated on the basis of CPR r3 3( 5) (setting aside order made of court's own motion) and/or CPR r3.9 (relief from sanctions) and/or CPR r3.1(2)(a) (extension of time) and/or CPR r3.1(7) (power to vary or revoke order);

 

the bit in blue tells you what they are asking to be set aside.... it is the dates you need to look at...if the date is the same as your judgement order then they are asking for the judge to set aside the order made on courts own motion...

if you asked for judgement then it is not made on courts own motion therefore they cannot use CRP3.3(5) and also the CPR 3.9 becomes inrealavant as they can't ask for relief from sanctions when they had no intention to comply...which is where the london borough case comes in as judge can refer to all cases he has knowledge of... i.e their abuse of process when settleing just before hearings...

 

basically they should have applied for relief 7 days after the directions order not the judgemant... which would have been 18th june in your case...

 

i know its a bit daunting but honestly it does become very clear when you understand the CPRs...

 

 

 

debbie x

[bettsy]

Ahh I understand a what you mean now.

 

Yes I requested a Judgement, the Court did not make it of it's own accord. I'd understand that that meant 3.3(5) wouldn't count but I didn't realise that the relielf from sanctions wouldn't either.

 

Incidently, did you have to actually say much during the hearing - your post said that the Judge was quoting from your arguement, but did you have to state your case??

[syds mum]

heres the link for CPRs love...

PART 3 - THE COURT’S CASE MANAGEMENT POWERS

 

no i didn't have to speak judge did it all for me... he said he had read my EXTENSIVE response and proceeded to quote without reading it, i might add, my points to the letter... he did ask if i would like to add anything but i just said "no sir as you have covered everything i was going to say"

 

just gonna get the settled cases now love... nearly there now... now you know why i couldn't do it yesterday!!!

 

debs xx

[syds mum]

link for settled cases love..

 

http://www.consumeractiongroup.co.uk/index.php?option=com_content&task=view&id=138&Itemid=82

 

you need to get all HSBC claims that are conclued and a few of the other banks for good measure!!!

have you got everything now..

 

have e mailed you back re posting by the way!!

 

debbie xx

[syds mum]

i take it you have everything as you have gone quite... been there and know when info comes in thick and fast you need to get it together... mind boggling at times....

 

just yell if you need owt love i am gonna do some dreaded house work now:eek:

but will stay logged on and keep checking you thread so just post if you want owt love will get it...

 

debs xx

[bettsy]

hi Debs

 

I've just finished pulling it all together! Yeah - got to dash to staples now though to get it copied as not enough ink in my printer!!

 

Thanks for all your help - I couldn't of done it without you. Just hope I get the same Judge you did on Friday. Incidently has anyone else contacted you who is at Derby court on Friday - I get nervous going there (it makes me feel naughty!) and it be nice to know someone!!

 

Thanks again - don't do too much housework

 

Dawn

[syds mum]

there are a few peeps at this stage but vary on hearing dates... the judge was judge stark... was surpose to have judge douce... it o.k love dont be afraid all very nice to you... you will be fine babe.. and smiling broadly on friday i am sure...

here if you need owt!!!

 

good luck...

 

debbie xx

[Audreygreeneyes]

Hi Debbie

 

if bettsy's case is identical to yours then what I woudl do is see that 30 question thing I gave youthe answers for , give her that but take out your details and bettsy put in your own............. this will only be of use thought if they use those arguements. but ti wont do any harm to have it printed off and take it to the court with you.. you will need 3 copies of this one for oyu , one of rDG and one for the judge.........

 

if Debbie still has the london borough & the oft pdf thingys I sent her get them and print them as well. again 3 copies.............

 

 

can I ask has bettsy been sent the same thing as you Debbie?... so far I have had nothing at all other than the date and the time.........lol

[syds mum]

hi auds yes her directions and application is exact same as mine aside from dates!!!... have e- mailed her my response and all relavant documents... she is of to printers as we speak..

 

fingers crossed....

 

debbie xx

[Castlebest]

all things being equal then we should get the same result

 

pete

[bettsy]

Hi All

 

Just to let you know that I have copied everything, delivered and posted it all!! Phew. Got extra copies for friday as well just in case........

 

I don't know who the Judge is as it does not say on the Notice.

 

But fingers crossed!! Hopefully we will get same result, but as I'm learning - you never do quite know!

[jowalshy]

Good luck bettsy. I will have everything crossed for you for Friday.

[Audreygreeneyes]

good girl Debbie/.....:)

[syds mum]

getting good at this advice lark!!!! its all down to you lot that i am a bit more educated in these matters... we were all newbies once upon a time.... before you know it i will be going pink:eek: !!!

 

debbie x