HSBC - General Form of Judgment or Order (HELP REQUIRED!!)

[Gunnerwelburn]

I wonder if anyone could help please.

 

I've been through all the stages so far, and thought I was on the path to riches......but alas -I have recently received the following letter and getting a bit concerned - maybe I should have a solicitor on the case (but wouldn't like to pay for the priviledge).

 

General Form of Judgment or Order

 

Before District Judge ***** sitting at *************

 

Upon reading the documents filed upon it appearing that there are many similar cases proceeding in this court which do not come to trial, and upon recognising that the court's recources are finate and of the Court's own motion

 

It is orderd that:

 

1. The claim is allocated to the Small Claims Track.

 

2. The claimant shall by 01 August 2007 file and serve on the defendant a schedule setting out each charge of which the claimant claims repayment, together with an explanation of the basis on which the Claimant claims repayment.

 

3. If the Claimant fails to comply with paragraph 2 of this order, the claim will be struck out without further order.

 

4. The claim shall be stayed between 01 August 2007 and 29 August 2007 to give parties an opportunity to reach a settlement.

 

5. If no settlement is reached by 29 August 2007, the defendant shall by 12 September2007 file and serve a schedule in response to the Claimant's schedule, stating in respect of each item claimed:

 

(a) pursuant to what contractual provision such charge was made,

 

(b) if such charge is alleged to be lawful, the basis on which it is so alleged.

 

© if it is alleged that the charge is a genuine pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such actions are in breach of contract), all facts and matters on which the Defendant relies as showing that the charges are a pre-estimate of loss, including the Defendants positive case as to the actual cost of dealing with such actions; and

 

(d) draft directions for the further conduct of the case, to be agreed with the Claimant if possible

 

6. If the Defendant fails to comply with paragraph 5 of this order, the defence be struck out and the Claimant shall be entitled to enter judgment without further order.

 

7. If the Defendant complies with paragraph 5 above, the matter will be referred to a district Judge for directions

 

8. This order has been made by the court of its own initiative without hearing the parties or giving them the opportunity to make representations. Any party affected by the order may apply to have it set aside, varied or stayed. Such an application must be made not more than 7 days after the date on which the order was served on the party making the application.

 

(blimey that was some serious typing) Please can someone explain to me what I should do from here???

 

Help!!!

 

 

Gunner

[Castlebest]

Hiya Gunner, no thats fine, quite a good set of directions actualy.

 

I think you should phone the court and ask if they can tell you if the judge had a problem with your schedule of charges or particulars of claim, if not just send another copy to the court and DG.

 

If he did have a problem then we may have to look at putting something a little more detailed together but still not a problem to you.

 

DG have way more work to do in their directions and I would think they will make an offer before their submission date and if they dont submit anything the defence is struck out... game over, you win

 

pete

[Gunnerwelburn]

Thanks Castle,

 

I didn't send the breakdown to the Court, and included interest at 8%, but also didn't mention that I wanted to claim the 8% on a daily rate.

 

Are there any template I can use Castle - to show beakdown, interest and daily rate I wish to claim?

 

Also would it affect the claim If originally I ask for a fixed amount, and now because of the length of time involved I wish to claim additional interest?

 

One more......What does DG mean?

 

Appreciate your help,

 

Gunner.

[chauvesouris]

DG is HSBC's solicitors.

 

Your best option for doing your schedule of charges is to use one of the spreadsheets on the newbie information forum (I am not sure of the best way to link to these things so I'll leave it to somebody else).

 

Daily rate of interest is then simply the total of charges at your date of issue x 0.00022.

[freakyleaky]

: Newcomer? Here's A User Guide

[chauvesouris]

Thanks Freaky. Did you just copy and paste it?

[freakyleaky]

Yes. If you copy and paste any of the links they will work.

[Gunnerwelburn]

Castle,

 

Can I use the original spreadsheet I sent to HSBC, as this only stipulated the date, charge amount & interest amount up to point of me producing the document.

 

The court is now asking me to :

 

2. The claimant shall by 01 August 2007 file and serve on the defendant a schedule setting out each charge of which the claimant claims repayment, together with an explanation of the basis on which the Claimant claims repayment.

 

Does thi mean I have to put my reasons to each one, or a summary at the end as to why I believe them to be unlawful - as obviously the same reason applies to all of them.

 

Also whenever I send anything to the court do I have to send copies to DG too?

 

Gunner

[chauvesouris]

The original spreadsheet should be fine; just tack the daily interest amount on at the bottom and make sure it's got the following details on it: Claimant, Defendant, Claim No., Date Issued, Court.

 

Your direction is telling you to send a copy to DG and you should send a copy to the court as well. In general, if you are sending anything that is material to your case (i.e. evidence or requests) then you ought to be letting DG know about it too. Apart from being good practice legally, it is also quite persuasive for DG if they know you haven't dropped the ball.

 

In re your current directions, they are asking you to send your schedule of charges, along with the basis of your argument. For this, you might try using the statement in the templates for court bundles.

[Castlebest]

you need to show the charge description as entered by HSBC on your statement i.e total charges, returned so/dd or whatever they have put against each of your charges too.

 

pete

[Gunnerwelburn]

Jesus Mahoney - I've got some work to do, and I'm about to be made redundant.

 

Fantastic!

 

With the court bundle - do I just print it out and send it to DG and the Court? I can't see anywhere on the 40pages where I can personalise it to my case?

 

I appreciate everyones help with this, I'm starting to struggle a bit now.......

[Castlebest]

Gunner you havent been asked for a bundle, just a copy of your charges schedule and particulars of claim.

 

pete

[Gunnerwelburn]

Thanks Pete,

 

So I guess all I really have to do is resupply the original claim details I sent (i.e. charges schedule?), making sure I go back through the 6 years of statements for both accounts I'm claiming and putting the bank reference for the charge, and the fact that I'm intending to claim interest for everyday since I first created the claim, and the reason why I'm claiming (i.e. particulars of claim? -which in reality I've already done).

 

I'll send a copy to DG, and a copy to the court. Send it registered post and wait to see what happens...........

 

is that about it do you think?

 

 

Gunner

(forgive me for being naive/an idiot)

[Castlebest]

Yes thats what your Judge has asked for in the directions

 

pete

[Godiva]

Hello All,

Have received an offer from HSBC in 'full and final settlement' but obviously not for the full amount (just over half of what I asked; not in thousands but in hundreds). Now, the question is this: is it worth persevering, this all started in April this year and we're now July. They have obviously taken their time, things were not helped with my having to go away quite a bit for work. I'm at my wits' end and I have until 18 July to reply to them.....

Many thanks for ideas/advice,

Regards and good luck to you all,

Rekha

[chauvesouris]

I'd suggest you start your own thread first. Then the advice you receive will be all for you and less confusing.

[Gunnerwelburn]

Thanks for all your help guys,

 

I've also just spoken to the Court and an administator gave me a little advice. She basically said break the paragraph down a do everything the Judge has asked you to do. Sound advice.

 

Does anyone have a brief but concise reason why I am claiming the charges, and why I find them unlawful? Maybe something I can cut and paste?

 

I'm redoing my list of charges to include a 'description' i.e. Total Charges, Returned S/O, or DD, etc. as originally I only put the figure, date and interest.

 

Watch out DG I'm a coming (said in the style of Elma Fudd)

 

 

Gunner

[chauvesouris]

How about something like this:-

 

I contend that:-

1. The charges are payable only on breach of the contract - i.e. when I exceed the agreed overdraft limit.

 

2. The charges are not a genuine pre-estimate of the cost to the defendant of any such breach.

 

3. The charges are therefore unlawful according to the rule on penalty clauses in contract law (e.g. Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co. Ltd [1915] AC 79).

 

Additionally:-

4. The contract term [it might be a good idea to say which term this is - you'll need to look at your T&Cs] and the charges contravene the Unfair Terms in Consumer Contracts Regulations 1999.

 

5. Under reg 3, I am a "consumer", and the defendant is a "supplier".

 

6. The term is unfair under reg 5. The contract was not individually negotiated. Attention is drawn to the grey list of example terms, specifically at Sch 2(1)(e) - "Terms which have the object or effect of... requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

 

I am obliged not to exceed my overdraft limit. When I fail in that obligation, the term requires me to pay a disproportionately high sum in compensation.

 

7. The contract is for the provision of an overdraft facility, so:

For the purposes of Reg 6(2)(a), the main subject matter of the contract is an overdraft facility.

For the purposes of Reg 6(2)(b), the price or remuneration is the application of interest at the "Standard Overdraft Rate".

Neither of these are in dispute. The term which is in dispute is not a core term.

 

8. Accordingly, under reg 8, the disputed term is not binding on me and the sums taken from my account by the Defendant should be returned.

 

...anybody like to add anything - I haven't mentioned the SGSA argument. But looking at the directions, I can't see HSBC complying with them - regardless of whether they agree that the charges are payable on breach of contract, they still have to explain their charging and the real cost to them - and that is probably not going to happen. So their defence is going to get struck out.

[Gunnerwelburn]

Hey Chauvesouris,

 

Thanks a lot for your help with all this.

 

Can I just Copy & Paste wht you typed below, sign it and send it off - or will I need to 'personalise' it in any way?

 

Thanks

 

 

Gunner

[Janet-M]

Gunner can you Private Message me the name of the judge and the court please

[chauvesouris]

Hi Gunner,

 

The only bit you probably ought to personalise is the bit about the term in your T&Cs which says they can take money from you when you exceed your overdraft limit (which I put in square brackets and I've now highlighted in red). It just makes your claim clearer and more precise. Have you found your own T&Cs, or have you downloaded any from this site? It's something you ought to do anyway, so if you haven't already done it, now would be a good time.

[Gunnerwelburn]

chauvesouris,

 

Is this ok mate - or do I need to put my address on it, or sign it or anything?

 

I contend that:-

1. The charges are payable only on breach of the contract - i.e. when I exceed the agreed overdraft limit.

 

2. The charges are not a genuine pre-estimate of the cost to the defendant of any such breach.

 

3. The charges are therefore unlawful according to the rule on penalty clauses in contract law (e.g. Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co. Ltd [1915] AC 79).

 

Additionally:-

4. The contract term 7.9 (copy supplied) and the charges contravene the Unfair Terms in Consumer Contracts Regulations 1999.

 

5. Under reg 3, I am a "consumer", and the defendant is a "supplier".

 

6. The term is unfair under reg 5. The contract was not individually negotiated. Attention is drawn to the grey list of example terms, specifically at Sch 2(1)(e) - "Terms which have the object or effect of... requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

 

I am obliged not to exceed my overdraft limit. When I fail in that obligation, the term requires me to pay a disproportionately high sum in compensation.

 

7. The contract is for the provision of an overdraft facility, so:

For the purposes of Reg 6(2)(a), the main subject matter of the contract is an overdraft facility.

For the purposes of Reg 6(2)(b), the price or remuneration is the application of interest at the "Standard Overdraft Rate".

Neither of these are in dispute. The term which is in dispute is not a core term.

 

8. Accordingly, under reg 8, the disputed term is not binding on me and the sums taken from my account by the Defendant should be returned.

[chauvesouris]

You will be sending this with your schedule of charges and you will need a covering letter. The covering letter should explain that the enclosed information is being sent in compliance with the judge's directions in the order. It won't hurt if you include the claim reference number and name (i.e. you v HSBC Bank) at the top of the sheet, but, as it will be accompanied by the covering letter, it doesn't seem necessary. Staple the sheets together when you have printed them out - 1. covering letter, 2. schedule of charges, 3. explanation of reason why charges are unlawful.

[Gunnerwelburn]

Because my case has been going on for about 4 months now, I have just gone to print off my charges from the internet and the 1st charge of £27.50 was in May 2001 so has 'fallen' off the available statements.

 

Although when I went through them again I found an additional one to the same value that I had missed first time around. So this would keep the requested amount the same.

 

I was thinking the best way to resolve this would be to do the schedule of charges spreadsheet again - but didn't know if this would weaken my position at all, as DG could say 'Oh look - he's changed his claim'.

 

Also last time I used MSE Scedule of Charges - Is there one on here I can use, or someone has a link for? Ideally one that says what the interest daily from my original request would be accrueing.

 

I really, really appreciate everyones help (especially Chauvesouris) but I don't want to annoy anyone - it's just that I'd hate to get to this point and 'blow it' with stupidity, and / or niavity.

 

Thanks

 

Gunner

[jowalshy]

if you have a look in the bank templates library there are some spreadsheets that automatically calculate the interest for you. Just type over the info already there. Do not delete any of the example charges as this will delete all of the formulas. Just type over the top of them and once you have finished, delete the one that do not apply to you.

 

Here is the link for you:-

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/182-6-interest-calculation-spreadsheets.html