Adason Vs HSBC

[adason]

Hi all this website is fantastic and I have read and read and read but I go from link to link to link and yet I am still unsure what to do, i am working really long hours at the moment and finding it hard to digest after spending all day on a pc, I know it is designed to be self help so I will say what I think I should be doing and hope the people that know will advise me nay or yay!

 

I am taking HSBC to court over £3642, I filed on MCOL and have been referred without allocation questionnaire to Scarborough county court, that was on the 11th of May and I have heard nothing until Friday when D&G HSBC's solicitor sent me a letter stating

 

We act for HSBC Group

 

Our client has passed to us the claim form which you have issued, detailed above. In order that we may investigate your claim with our client, we shall be pleased if you will provide us with a full itemised breakdown of the amount claimed within your Claim Form. In respect of this, and by way of example of the information we are seeking, we require itemised schedule of the date, description and value of each individual charge applied to your account(s) together with details of the interest, if any, that you have claimed. We appreciate that you may have previously supplied our client with a schedule, as requested above, but which has not been provided to us. In order to assist our review of your claim we respectfully request that a further copy be sent to us as soon as possible. We apologise for any inconvenience that this may cause.

 

At this juncture we are unable to address your claim without the information sought and without you supplying us with such information will serve to delay any potential resolution of this matter.

 

The court will also require a copy of the itemised schedule and we invite you to send a copy to the court office for the claim file.

 

Please ensure that our reference and Claim Number are quoted upon any correspondence with this office.

 

 

so i have printed off my charges and will send these off but should i be doing anything else do i wait until the courts call to send the bundle? and should i send a Draft Direction to the court or am i too late?

 

sods law i have just sent D&G a prompting letter already including the charges again.

 

Hope you can help?

 

Thanks Lizz

[pinkduchess]

advice on here is to send the court (MCOL) 2 copies of your charges schedule and 1 copy to DG once your clam has been acknowledged.

 

but as your claim has now been transferred you need to get the copies to Scarbrough cc instead (if they were never sent).

 

You say you've now sent DG their copy so thats good.

 

You need to wait & see what directions the local judge will give but its been quite a while since you got transferred so I'd give the court a buzz to see whats happening & find out if an allocation fee will be payable.

 

and continue to nudge DG every 10-14 days

 

not sure about the draft direction - but someone else will hopefully advise

[adason]

You need to wait & see what directions the local judge will give but its been quite a while since you got transferred so I'd give the court a buzz to see whats happening & find out if an allocation fee will be payable.

 

 

Hi thank you for your advise i have already called 3 times the ladyu isn't very helpful!

 

i'll just sit tight and wait

 

Lizz x

[lateralus]

you could try sending in the draft order - if you've read a lot - you will know it's just a way of bringing things to a head faster - if the judge agrees with it - and it will mean doing a bundle which is a whole day of copying and putting together - but it could mean a much faster end to it.

did you send a copy of your breakdown with your claim to the court - they need one too - so send one if you haven't already - asking it be attached to your claim (send claim number).

post 1 on this thread may help youNew---after 28 Days - Maybe No Aq!!!!!!!

it will give you ideas to send to dg to hopefully gee them along - usually....it is a good sign when they ask for your breakdown as it can mean they are getting ready to deal with your claim.

as for the court - looks like as pd says - you'll just have to wait for them to decide what they want to do next.

good luck. -

[adason]

you could try sending in the draft order - if you've read a lot - you will know it's just a way of bringing things to a head faster - if the judge agrees with it - and it will mean doing a bundle which is a whole day of copying and putting together - but it could mean a much faster end to it.

did you send a copy of your breakdown with your claim to the court - they need one too - so send one if you haven't already - asking it be attached to your claim (send claim number).

post 1 on this thread may help youNew---after 28 Days - Maybe No Aq!!!!!!!

it will give you ideas to send to dg to hopefully gee them along - usually....it is a good sign when they ask for your breakdown as it can mean they are getting ready to deal with your claim.

as for the court - looks like as pd says - you'll just have to wait for them to decide what they want to do next.

good luck. -

 

Hi lateralus,

thank you for your contribution to this group, i love your posts i have read the one you have liked above several times and i have used the prompt letter but i really wasn't sure what the draft order is it just confuses me am i right in thinking that it is an order to speed up the process and give the judge the details he would ask if he set a date?

 

you wouldn't think i did AS Law or covered it in a business management HNC i just can't get my head round it!

 

do you think i am too late sending it? are there any risks?

 

what would you do if you were me wait or do the draft order?

 

thanks again

 

Lizz x

 

P.S i work in Hull and am helping alot of people at work, your posts have been invauable thank you from me and them

[lateralus]

oooh, i could come give tutorials! lol

 

no risk in the draft order if you are game for doing the bundle.

 

here's the draft order and a cover note - might need to tweak the note:

 

 

[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.

 

 

 

 

 

just curious, did you file in hull or transferred to hull - just wondering as the judge seems a bit harsh - don't quite know what happened to the "hull 20" - i think it's still being looked at.

[adason]

oooh, i could come give tutorials! lol

 

just curious, did you file in hull or transferred to hull - just wondering as the judge seems a bit harsh - don't quite know what happened to the "hull 20" - I think it's still being looked at.

sorry I have only just seen this, I used to live in hull but I moved back out in a village near market weighton (lived there 18 years) so luckily (I hope) my post code now falls for Scarborough.

I have been watching the Hull cases with bated breath, but they seem to be a good success in our favour though

Lizz x

[adason]

Hello all I typed this out once and lost it! aggh never mind, just wanted to share my good news (I hope:D ) and ask for yet more advice!

Today I have finally received my General Form or Judgement or Order, it says

Upon the file being referred to the District Judge for directions.

Upon neither party attending

IT IS ORDERED THAT

1. By 4pm on the 09-August 2007 the Claimant do file at the Court and serve on the Defendant, the following:-

a.) A list of the dates and amounts of the charges he seeks to recover.

b.) The reason(s) given to him for the changes being applied (eg) unauthorised overdraft.

c.) The contractually agreed charge at the time the charges were applied.

d.) The reason why the charges constitute a penalty.

e.) The Claimants contention as to what is a fair charge should have been.

f.) The Claimants reasons and justification for the figure in 1(e) above.

2. In the default of compliance this claim do stand dismissed.

3. If complied with the court will give further directions.

 

Ok so all i really want to double check is now do i send in the bunddle as per this thread http://www.consumeractiongroup.co.uk/forum/hsbc-bank/97447-court-bundles-dummies.html which is brillaint thank you lateralus again!

or is their something else i should do or add?

Thanks in advance Lizz

[Michael Browne]

No you don't need to send the court bundle. Respond with something along these lines:

 

In response to (a),(b) and © please find herewith (attached Schedule one) a break down of the charges applied to the claimants account this includes the claimants account number sort code and the dates of the charges were applied and the reason.

 

 

In response to (d) the claimant alleges that the charges are Penalty charges are irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79.along with Murray v. Leisure play [2005] EWCA Civ 963 It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

In support of part of his basis of claim the Claimant contends, and intends to prove that:

 

a. the Charges are:

i. punitive in nature;

ii. unreasonable;

iii. generally disproportionate;

iv. excessive;

v. unfair;

vi. unlawful;

vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant;

ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit;

x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and would not have incurred but for any alleged breaches of contract on behalf of the Claimant; and

xi. are held in in terrorem to discourage the Claimant from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item.

 

b. all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of:

i. the UTCCR;

ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’)

iii. the Supply of Goods and Services Act 1982; and

iv. the common law.

 

In respnse to (e) and (f), the Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.

[adason]

oh brilliant thank you so much, do i need to include any other documents just my schedule of charges (with no typo this time!) and send a copy to D & G and the courts.

 

thank you again

 

Lizz

[Michael Browne]

do i need to include any other documents

No, just the Response + the SoC + brief covering letter

[adason]

Thank you i have sent it off fingers crossed!

 

Lizz x