Courts & Stays

[Woolleykat]

Hi Noddy - Judge cosidered striking out defence as an abuse of process. Basis for this the fact that the defendant is settling all claims of this nature where claimants are seeking reimbursement of bank charges, with no claims proceeding to a contested hearing. Judge quoted the authority of Mullen -v- Hackney London Borough Council.

[Hedgey1]

My case at Newark has been ordered a STAY, gutted as the last order was for Natwest to provide details of cases they had attended and won or there defence would be struck out and ordered to pay me. That order was also made before the high court announcement on 23rd July stamped 26th July giving 14 days to respond. This order to stay was made on the 6th August

[Woolleykat]

Suppose I ought to ring court again to check nothing has altered in my case. Court received letter form A&L on 18th July but sent me a hearing date out on 1st August.

[Sarah Frost]

Has anyone got any news on Bromley court issuing stays??? Last i heard no cases were being stayed!!

[Hedgey1]

sod it, just sent back a nice long letter applying for the stay to be lifted, claiming the defence solicitors were using delaying tactics, abuse of process and even the courts delay in my application.. in for a penny in for £3000 I say lol especially as they were so close to striking their defence out.

[Audreygreeneyes]

hedgey the OFT announcement was made on the 27th July, if you have a court order that pre dates the stay request go with it in the first instance..........

 

phone the court and ask I have received a stay but prior to this this was ordered.......

 

stick to the 14 days time line from the court............ once you reach it, then write to the court asking for judgement........

 

at the same time, apply for the stay to be removed......... use the court order as 1 part of your defence (abuse of process) and use the parts on here under the removal of stay thread

http://www.consumeractiongroup.co.uk/forum/general/108430-stays-info-guidance.html

 

when they dont met the 14 day deadline use this

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/58011-directions-non-compliance-letters.html

[Audreygreeneyes]

hedgly if the 14 days is now up use the non compliance letter............ you never know

[davedru]

But surely if it is the court itself that has applied a blanket stay on all claims, as in my case, you can't "...use the court order as 1 part of your defence (abuse of process) ...".

 

I received an order from the court, dated 24th July, allocating my case to the small claims track and set the hearing for 2nd October. 3 days before the OFT announcement was made........

 

DD

[Noddy73]

Sarah - Tried to call Bromley and got a busy tone. Normally I wait in the queue for about 15 mins, but today they must be really busy.

[Audreygreeneyes]

1stly dave , they cant apply a blanket stay, they have to be applied for on a case by case basis..........

 

yoiu are a little unfortunate in that your case is the 2nd october, what does the order say?

 

mine was the 15th may for a hearing on the 7th august.............. 14 days before th hearing they had to serve on me and the court... that being the 24th july. so yes I can and am using their non compliance as part of my reasons for asking for the defence to be struck.........

 

 

hope that makes sense

[Hedgey1]

But surely if it is the court itself that has applied a blanket stay on all claims, as in my case, you can't "...use the court order as 1 part of your defence (abuse of process) ...".

 

I received an order from the court, dated 24th July, allocating my case to the small claims track and set the hearing for 2nd October. 3 days before the OFT announcement was made........

 

DD

To clarify , the solicitors are abusing the process !!

[davedru]

But DG did not apply for the stay. I received a 'General Form of Judgement or Order', dated 10th August, which states:

 

"....On the Court's own initiative.....

 

.....The case is stayed with immediate effect pending the final determination of the case in the Commercial Court. ANY LISTED HEARINGS IN THIS CASE ARE VACATED AND WILL NOT TAKE PLACE......"

 

I can't really blame DG Solicitors for abusing the process when it wasn't even them who requested the stay. Having said that, if the judge hadn't I'm sure they would have applied for one!!!

 

DD

[Sarah Frost]

Thanks Noddy - ill try aswell - maybe one of us will be lucky and get through!

[Audreygreeneyes]

dave if it was my case this si what i would be doing.........

 

a letter to the court manager asking for an explanation of how can they apply for a stay before they have been given the court date.........

 

pointing out that i think it was the oft said they had to be doen on a case by case application or it might have been the MOR........

 

and you can only apply for a stay after you have been given a court date!!!!

 

you cant apply for one prior to court date issue.........

[davedru]

Sorry AGE, forgive my stupidity. I'm not sure I understand......

 

I received a 'Notice of Allocation to the Small Claims Track (Hearing)', dated 24th July, which stated the hearing of my claim would take place at 2pm. This letter was obviously produced 3 days before the OFT announcement and I had 14 days to send my court bundle to the court and HSBC/DG. The order gave HSBC/DG 14 days thereafter to serve a witness statement in response.

 

I did as directed but then received a letter , dated 10th August, advising as in my previous post that the case is stayed on the Court's own initiative.

 

How can I find out if Derby County Court have applied a blanket stay for all cases as at the moment I'm just being cynical? Having re-read the Order, it states that "any listed hearings in THIS case are vacated and will not take place".

 

DD

[Audreygreeneyes]

right your 14 days was up ont he 7th August.......... and theirs will be up on the 21st august..........

 

the court order was issued prior ot the announcement. so I would go with that timescale.........they appled for the stay after you submitted you bundle.......

 

in the first instance I would requst the stay be removed and ask for a hearing. you will be granted one.

 

you can phone the court and ask how many cases were due to be herad that day, this number they will give you........ they may very well nto give you how many were in fact stayed.........

 

if I have got this right, all cases as of the 27th july that are usint on the uctr are automatically being stayed............ now this is the grey area your court order was issued prior to this..........

 

as was mine......... I am argueing on the front of A they faile dot comply with the court order 3.4 (2)(b)... B the human rights article 6 of the convention and C 6 months record of no response to any form of contact........

 

does this help? if I have not made it clear let me know and i will try again.............lol

[davedru]

Yeah, sorry AGE. We're getting there........

 

Apart from the fact that it wasn't DG who requested a stay, the court did it themselves. On the 10th. After I submitted my bundle a few days earlier.

 

Presuming I can't get the stay lifted, or lifted in time, does this stay mean that HSBC/DG get out of submitting papers before 21st? Surely the fact that it was the court who decided to apply a stay themselves, they are aware that the case already had a hearing date scheduled even before the OFT announcement?

 

Your argument that they failed to comply with the court order 3.4 (2)(b) - what specifically was this term that they were asked to do? If a stay has been granted, doesn't this mean that they don't have to do as initially directed? Although I do fully accept that they are just using it as a delay tactic so you could certainly argue that point......

 

I doubt I can though as they (DG) never asked for the stay......

 

:???:

 

DD

[juicyd]

Hi Noddy - Judge cosidered striking out defence as an abuse of process. Basis for this the fact that the defendant is settling all claims of this nature where claimants are seeking reimbursement of bank charges, with no claims proceeding to a contested hearing. Judge quoted the authority of Mullen -v- Hackney London Borough Council.

 

Wooleykat - that is fantastic - sorry to sound pedantic but what is present stage - he considered striking it out but didn't and ordered the stay instead? I have just read Mullen and think it could be useful for people who are in Courts where their hearing was set down before test case and all the evidence is that without the test case, it would have been settled because all other cases were being settled up to that point.

Probably more likely to work if Court has familiarity with the tactics of your particular bank but that probably applies to most people!!

Certainly worth mentioning it in opposition to a stay. Happy to print up relevant sections of judgment if anyone is interested

[Audreygreeneyes]

jucy I submited that report with my requset to have it struck out in july................

 

erm david am not really sure on some of that to be honest......3.4.(2(b)

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

[Woolleykat]

Hi Juicyd

 

A&L are objecting to the strike out by the court not a stay, now got a hearing for 1st October at local court time allocated 1.5 hours, not sure what that's about. See my post with more details of letter from Wragge to court.

[tina9776]

Hi, just jumping in as I recently sent a request for judgement for my case as the bank had not put in their response to my schedule as instructed by the court - my case was due to be heard on 10th September. As a result I got a letter from the court saying that they had ordered a stay and vacated my hearing. I can't help wondering if I had not requested a judgement whether I may have just turned up at court and won. I have sent a request for the stay to be lifted but don't have much hope. Can anyone tell me whether they have had their stay lifted and also should I ring the court following the request for the stay to be lifted or will they contact me. Lastly, I didn't send any money with my request, should I have done? Very grateful for any replies to this.

Thanks.

[Audreygreeneyes]

firstly Tina your case is almost a mirro image of my own....... mine was due ot be heard on the 7.8 and the stay granted ont he 6th........

 

they failed to comply also and I also wrote asking for it to be struck out but it was never looked at by a judge ....

 

I submitted a requset for the stay to be removed.......on an N244..... for my defence I used .......

 

See also Practice Direction 3, Practice Direction 3B, Practice Direction 3C

 

Part 3 THE COURT’S CASE MANAGEMENT POWERS Contents of this part The court’s general powers of management Rule 3.1Court officer’s power to refer to a judge Rule 3.2Court’s power to make order of its own initiative Rule 3.3Power to strike out a statement of case Rule 3.4Judgment without trial after striking out Rule 3.5Setting aside judgment entered after striking out Rule 3.6Sanctions for non-payment of certain fees Rule 3.7Sanctions for dishonouring cheque Rule 3.7BSanctions have effect unless defaulting party obtains relief Rule 3.8Relief from sanctions Rule 3.9General power of the court to rectify matters where there has been an error of procedure Rule 3.10Power of the court to make civil restraint orders Rule 3.11

 

 

The court’s general powers of management 3.1 (1)The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)Except where these Rules provide otherwise, the court may –

(a)extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b)adjourn or bring forward a hearing;

©require a party or a party’s legal representative to attend the court;

(d)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e)direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f)stay (GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g)consolidate proceedings;

(h)try two or more claims on the same occasion;

(i)direct a separate trial of any issue;

(j)decide the order in which issues are to be tried;

(k)exclude an issue from consideration;

(l)dismiss or give judgment on a claim after a decision on a preliminary issue;

(ll)order any party to file and serve an estimate of costs;

(m)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

(3)When the court makes an order, it may –

(a)make it subject to conditions, including a condition to pay a sum of money into court; and

(b)specify the consequence of failure to comply with the order or a condition.

(4)Where the court gives directions it may take into account whether or not a party has complied with any relevant pre-action protocol (GL) .

(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

(6)When exercising its power under paragraph (5) the court must have regard to –

(a)the amount in dispute; and

(b)the costs which the parties have incurred or which they may incur.

(6A)Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings , subject to the right of a defendant under rule 37.2 to treat all or part of any money paid into court as a Part 36 payment .

[(Rule 36.2 explains what is meant by a Part 36 payment)] (7)A power of the court under these Rules to make an order includes a power to vary or revoke the order.

 

Court officer’s power to refer to a judge 3.2 Where a step is to be taken by a court officer –

(a)the court officer may consult a judge before taking that step;

(b)the step may be taken by a judge instead of the court officer.

 

Court’s power to make order of its own initiative 3.3 (1)Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

(Part 23 sets out the procedure for making an application)

(2)Where the court proposes to make an order of its own initiative –

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3)Where the court proposes –

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

 

it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

(4)The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5)Where the court has made an order under paragraph (4) –

(a)a party affected by the order may apply to have it set aside (GL) , varied or stayed (GL) ; and

(b)the order must contain a statement of the right to make such an application.

(6)An application under paragraph (5)(a) must be made –

(a)within such period as may be specified by the court; or

(b)if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

(7)If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit –

(a)the court's order must record that fact; and

(b)the court must at the same time consider whether it is appropriate to make a civil restraint order.

 

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

 

here is the letter I also sent

09.08.2007

Claim Reference Number 7QZ45507

Dear Sir,

 

Claim Number7QZ45507

 

 

please find attached Forms N244 in relation to the above mentioned case along with supporting documents. I would respectfully request that these are passed to the Judge for the allocation of a hearing date.

 

 

 

 

My concerns in relation to this are set out in my part C statement attached as I really do believe that this stay would not maintain the status quo, as this stay favours the bank’s by preventing the claimant’s pursuit of its legitimate remedy without placing any restrictions on the bank’s activities whatsoever and allowing them to further abuse the court process.

They had no intention of defending this case in court as they have not done so thus far and believe they are using the OFT test case in the same manner. By requesting stays quoting the test case they further delaying and abusing the court system for the bank’s own gain.

The claimant is strongly opposed to such a stay, upon the basis that the defendant, both during and prior to this litigation, has ignored all prior attempts by the claimant to narrow the issues in dispute, or otherwise engage in meaningful dialogue which may have facilitated an amicable settlement to these matters.

Attached is part C is my supporting evidence with this regards

 

Yours Sincerely

 

 

 

you have every chance.... my hearing has been granted today and it is for 10.10.......... so yes you still ahve every chance...............all the help and advice you need is here........ have faith:D

[Audreygreeneyes]

I was todl by my court that ti was not required. you coudl phone adn ask? if they say yes then if you want to redo it oyu can......... :)

[Audreygreeneyes]

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

 

thats the bit.........i used ignore the rest of it...............lol made a mess of copying and pasting............:o

[Sarah Frost]

Ive just spoken to Bromley Court and hearings for 21st Sept are going ahead as normal. She said the banks are really trying to get out of it but theyre all going ahead as normal! Wayhey!!