Garsan v HSBC

[garsan]

After starting in April going through MCOl, My case was transfered to the local court because HSBC submitted defence. The Judge at my local court put a 28 stay for settlement. I wrote to DG with 2 nudge letters. They did not reply. I have now received a letter from the court saying " The court of its own motion is considering striking out the defence in this action as an abuse of process, The basis for this is the fact that the defendant is settling all claims of this nature where the claimants are seeking the reimbursement of Bank Charges, with no claims proceeding to a contested hearing." He has given them 14 days for a schedule setting out all claims of this type in England and Wales which have proceeded to a ninal contested hearing. He goes on that in the absence of any such objections being filed in time the defence will be struck out and judgement entered for the amount claimed by the claimant.

HAS ANYONE RECEIVED ANYTHING LIKE THIS

[chauvesouris]

I am going to be asking my local court to strike out HSBC's defence. Where is your local court?

[lateralus]

yes, several have had that notification - it's good news - keep on top of it - when the deadline has passed ring the court and ask if they have complied and if not how they want you to proceed

[Rayne]

lattie, i know it's the wrong type of court but can this be used by anyone else once transferred to local county court?

[lateralus]

the local courts all deal with it in their own way - they decide - it's luck of the draw - some are clued up and order this sort of thing - others seem to just struggle on towards a court date -

the only thing we can really do is to ask for the draft order for directions

 

asking the judge to order the court bundle to be done first by you then responded to with the banks (which they won't do) -

this is about the only thing you can do to try to speed up the 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. 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.

 

 

 

 

 

we have used these many times before - - we usually just hope he will grant it;. if he makes the draft direction an order - you will have 14 days to produce the court bundle and get it to the court and dg - dg would then have a further 14 days to respond. this is when they usually make an offer as they don't want to produce their stuff in court.

 

you also, would then write a letter to dg - saying i have given the judge the following draft order for direction as my opinion as to how this case should proceed.

more for the letter can be found on page one of either of the aq threads in my signature. just saying let's save the court some time and get this done - and send another schedule of charges with your letter.

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