Case Struck Out Then Stayed! Madness

[Mister Twister]

Can someone help me with writing an application to have a stay removed?

 

 

This claim is for over £11,000.

 

 

I know there is a template for this on another thread but I think the circumstances regarding this case may be more straight forward and might not need the Human Rights argument.

 

Abbey did not complete the Allocation Questionnaire and on the 19th July it was ordered that they must file the AQ by the 1st August 2007 or the claim would be struck out and the claimant could request judgment forthwith. On the 2nd of August I requested judgment using the N255 form. I called the courts every day since and was informed that the request had been received and would be dealt with within a few days and the bank had not made any application to stay the case.

 

 

Today I called the courts to find that the District Judge that had looked at the request for judgment had decided to stay the case! This is in complete contradiction to the previous order given by a different District Judge.:?

 

 

Although the bank completely ignored all directions and orders the Judge has stayed the case!! – as he has decided to stay all the cases he comes across. The bank did not even apply to the court to stay this particular case! The Judge has let me down very badly and it feels so unjust.

Surely the case had been won in default and that has nothing to do with the OFT test case.

 

 

Please help…

[jotty]

Mr Twister I am in exactly the same position as you and cant get an answer either. In my case I had judgment entered as the other party didin't even acknowledge receipt until the bailiffs went in.

I have been orderd to attend a hearing in Sept where the other party has appealed against the judgement by default and will be asking for a stay. I am told that it is a foregone conclusion that they will get a seta aside and I will cop for the costs of their legal team.

This isn't putting me off but it is wrong especially when the proceedure has been followed and the other side plead ignorance as a defence.

[Mister Twister]

This cannot be right! So you win your case have judgement entered but then they can appeal to have the execution set aside!

 

I still need help writing the application and think we are probably the first of many who will require this information.

 

Funny how the banks ignored all the orders, requests and directions given to them however they are quick to apply for a stay or appeal. I think it is the judges who are letting us down here!

 

This is still a call for help.

[juicyd]

MT, when you get your order staying the claim, it should say that you have 7 days to apply to vary it. I would make an immediate application to lift the stay and have judgment entered on the grounds that the claim was struck out on 1 August so there was no jurisdiction for a stay to be ordered. In Part C of the application, set the events out chronologically including the fact that the bank have not asked for a stay and have not filed their AQ and so remain in breach of the order and their Defence is struck out. That is awful that the judge has not done what you were entitled to. Good luck getting a decent judge to look at it. what court are you in? Jotty in your case, if you can show the Court that there was a long delay between the judgment being entered and the application to set it aside, that will help your case. Such applications should usually be made immediately to get any sympathy from a judge so the longer the gap the better for you

[Mister Twister]

Cheers Juicy! Lets hope that the Judge sees sense here.

[juicyd]

Absolutely. do update the thread won't you, if you need an eye over your application, post it up. I am a solicitor but sadly not a mind reader of district judges! it seems to be that loads of them have shares in big banks!!

[Mister Twister]

GOT MY JUDGEMENT TODAY! :grin:

 

This week has been very stressful. I returned my request for judgment to the courts and it was put to another District Judge who then decided the case should still be stayed!

 

I called the courts again yesterday and they were about to send me out a copy of the order. I asked the woman on the phone that if I faxed over a letter for the judge would she make sure he gets it and she agreed.

 

I telephoned at 4.45pm last night and was informed the judge had not received the letter since the fax machine was broken. At this point I was pretty mad! The usher who I was speaking to on the telephone offered to put the fax to the judge again if I sent it to a different number.

 

I got a call at 5.15pm last night and was informed the judges were still in the chambers and the usher had finished his shift and had to go home.

 

This morning the usher called me and told me he had spoken to the District Judge and he had revoked the stay! He had even torn up the order and put it in the bin and was now holding the judgment in my favour in his hand!

 

Justice at last - but I had to fight for it!

 

Here is a copy of the letter I sent:

 

Claim Number: ********

(My Name) v Abbey National PLC

In support of the Claimant;

 

Please could the Request for Judgment in the above case be respectfully considered by District Judge for the following reasons;

 

1. As per the General Form of Judgment or Order given by Deputy District Judge Shakespeare on 23rd July 2007 the Defence was struck out on the 1st August 2007 and therefore a stay based on the outcome the OFT High Court test case is irrelevant.

 

2. The Defendant failed to complete an Allocation Questionnaire due by the 2nd July 2007.

 

3. The Defendant failed to complete an Allocation Questionnaire due by the 1st August 2007.

 

4. The Defendant has not specifically requested a Stay in this case.

 

5. The Defendants solicitor has already requested a copy of the Judgment to ‘speed payout’.

 

Yours sincerely,

 

Mister Twister

 

 

It goes to prove if you keep the pressure on your local court you might succeed. My request for judgement was considered by three District Judges before one saw sense.

 

Good Luck

[juicyd]

HURRAY!!!!!!!! :D

WELL DONE MT!!!!! brilliant stuff! am really chuffed for you!

 

What does it say that it took three goes for it to be seen by a DJ who had any sense?!!

 

I admire your persistence and tenacity! ENJOY YOUR CASH!!!!!

[Mister Twister]

Thanks Juicy!

[Mister Twister]

PLEASE HELP!

 

I knew it was too good to be true.

 

Abbey have instructed the solicitors to have the jugement set aside.

 

They won't tell me on what grounds and said i will have to wait until I have recieved notifiaction from the court along with directions.

 

I thought it was over - but I guess not. This claim is for almost £11,000 and their defence was STRUCK OUT - so how can they do this now?

 

Also, the reason for the defence being struck out is because they did not complete the Allocation Questionnaire which was due well before the OFT test case announcement - so on what grounds could they possibly have it set aside?

[alecmac18]

Yeah - Abbey and their litigation team are pretty much composed of pure evil.

[poppynurse]

There must be something we can do to stop this abuse of process by the banks, I've had similar experiences with abbey in that they didn't submit a bundle, I applied for judgement and the judge took it on himself to order a stay, I appealed but have yet to hear. The banks are acting as if they are a law unto themselves and the courts are colluding with them - is there anyone who regulates the courts????

[Mister Twister]

I Need Help Again!

I have a hearing date now for Thursday 1st November. I have recieved the application to set aside judgement from Abbey and it is total BS.

 

The reasons they give are:

 

1. The Defendant has a real prospect of success in defending the claim because of the High Court Test Case.

 

2. That I did not send them a list of charges debited. (This is laughable since the bank and solicitors have been sent this information 7 times and I have the dates. Also the courts would have sent them a copy with the claim forms.)

 

3. They made this apllication promptly. They say it was a reasonable time because they recieved a copy of the judgement late and they had to seek counsel. (Yes 1 month and 10 days after judgement, is this considered prompt?)

 

4. The Defendabt did not submit the claim forms because they were swamped with thousands of other cases at the same time. They quote that the OFT Litigation Agreement have recieved over 50,000 per month in 2007. (My opinion is the banks have unlimited resources compared to me! how can they say they were too busy? Also what the hell is OFT Litigation Agreement? and does this mean that Abbey had 50,000 complaints I don't think so!)

 

5. They ask that the new defence be considered and the case stayed and have included a copy of their new standard defence.

 

OK so how do I tackle this with the courts - I am very nervous to say the least. But I can't believe it has got this far.

 

I think I have some pretty strong arguments but how do I present them? Do I need documents, witness statements or anything. I only have 2 days to prepare so any help would be greatly appreciated.

[einyuk]

hi mister

 

on point 5.......how can abbey be able to apply their new defence to charges that go back 6yrs which came under T&Cs again going back 6yrs:confused:

 

can/will they get away with that using their new defence?

 

questions questions!!!

 

i think your case on 1st will be the most interesting so far to fellow abbey claimants, hope some MODs come along and assist you further.

 

good luck

[jotty]

see my update on today

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/104528-sppl-judgement-set-aside-2.html#post1208923

[Mister Twister]

Thanks for the support EINYUK.

 

Jotty I have looked at your thread and it does not make good reading and I don't see you recieving any advice other than keep up the pressure.

 

I need some help from a mod or a solicitor so I dont make a complete fool of myself on Thursday.

 

I don't even know if it is heard in a court room or who will be there - how long I will be given or how to defend - Do I need any documents or witness statements?

 

Please help!

[Mister Twister]

Ok - I am getting confused now.

 

I requested judgment because the defence was struck out on the 1st August. But the copy of the judgment for claimant is (in Default) and reads:

 

To the Defendat

 

You have not replied to the claim form.

 

It is therefore ordered that you pay the claimant £10498.32 for debt (and interest to date of judgment) and £250 for costs.

 

I am very confused because I had won the claim because the defence was struck out - they had ample time to respond to the Allocation Questionnaire - They did respond to the claim form and did enter a defence.

 

They have made the application under rule cpr 13.3. Which applies to judgement in default. Was this really a default judgement?

[Mister Twister]

I just tried posting but it dissapeared so if I repeat myself I apologise.

 

My judgment for claimant was in default and read:

 

To The Defendant

 

You have not replied to the claim form.

 

It is therefore ordered that you must pay the claimant £10498.32 for debt (and interest to date of judgment) and £250 for costs

 

What is confusing me is the request for judgment I made to the court was because the defence had been struck out on the 1st August. The copy of the judgment they sent me seems to be for someone not replting to the claim form which the bank did. Their defence was struck out because they repeatedly failed to complete the allocation questionnaire.

 

They make their application under cpr 13.3 which only applies to judgment in default. Was this really the correct judgment.

 

Only a few hours to go and I am in court and this is confusing me.

[Mister Twister]

I just tried posting but it dissapeared so if I repeat myself I apologise.

 

My judgment for claimant was in default and read:

 

Quote:

To The Defendant

 

You have not replied to the claim form.

 

It is therefore ordered that you must pay the claimant £10498.32 for debt (and interest to date of judgment) and £250 for costs

What is confusing me is the request for judgment I made to the court was because the defence had been struck out on the 1st August. The copy of the judgment they sent me seems to be for someone not replting to the claim form which the bank did. Their defence was struck out because they repeatedly failed to complete the allocation questionnaire.

 

They make their application under cpr 13.3 which only applies to judgment in default. Was this really the correct judgment.

 

Only a few hours to go and I am in court and this is confusing me.

[Mister Twister]

I just tried posting but it dissapeared so if I repeat myself I apologise.

 

My judgment for claimant was in default and read:

 

Quote:

To The Defendant

 

You have not replied to the claim form.

 

It is therefore ordered that you must pay the claimant £10498.32 for debt (and interest to date of judgment) and £250 for costs

What is confusing me is the request for judgment I made to the court was because the defence had been struck out on the 1st August. The copy of the judgment they sent me seems to be for someone not replting to the claim form which the bank did. Their defence was struck out because they repeatedly failed to complete the allocation questionnaire.

 

They make their application under cpr 13.3 which only applies to judgment in default. Was this really the correct judgment.

 

Only a few hours to go and I am in court and this is confusing me.

[juicyd]

MT yes it will be heard in a court room but if you haven't been in one before, that's not as glamorous as it sounds. It will be a grey civic building room with you, the judge and NatWest barrister (more than likely). As it is NW's application, they will take the judge through their evidence first, no doubt laying it on dead thick. You will not be allowed to interrupt but feel free to make theatrical snorts of derision (I normally do). Then the judge will ask you what you say in response. You probably don't have time now to prepare a witness statement to file with the court beforehand but I would write down in detail all the points you make above. If you ask the judge, I'm sure he won't mind letting you refer to your notes.

 

If you have time, simply prepare it in the format of a statement, then you can offer to hand him a copy which he can read while you are talking.

 

Start with a chronology of the case. ie put the heading of the action on a black piece of paper, then in the middle 'Statement of Claimant in response to Defendant's Application to Set Judgment Aside'.

 

Then write numbered paragraphs. Give the sequence of events early on ie - write down the date and event

date - claim issued

date - defence filed

date - allocation questionnaire. C filed his, D did not

date - claim struck out

 

etc etc

 

What you need to drive home to the judge is that if Nat West can't be bothered to deal with litigation, that's not your fault, considering the resources they have available and that until the test case was commenced, their behaviour to the courts was vexatious in that they were filing defences they had no intention of testing at trial. They now have the advantage of the test case but this will cause massive hardship to you as you expected a resolution ages ago.

 

They did NOT issue the application promptly (a matter of a couple of days is the usual timeframe expected). Do EMPHASISE that they refused to tell you the grounds until very late in the day also

 

er and reinforce that this was NOT a default judgment - they already had ample opportunity to get their house in order and comply with the Court's orders with the vast resources at their disposal and yet they did nothing and that is why the claim was struck out. (they mention their defence but the issue of whether or not that has a good chance of success are more relevant to default judgments where they have not had a chance to put their case already).

 

don't know if that helps at all and sorry it's rather late in the day but

Good luck

[Mister Twister]

Just back from court and....

 

The judge decided that the application to set aside judgement should be allowed because the banks were very busy and it was a geniune mistake that the Allocation Questionnaire was not filed by the Defendant!

 

1. Set Aside

2. Stayed

3. Allowed Amended Defence

 

Going to court was a complete waste of time and the judge actually coached the blundering barrister because they they made the application using the wrong CPR. The judge even told the barrister what CPR it should have been made in and went through the book with him to make sure it covers each area.

 

No Justice.

[jansus]

Just back from court and....

 

The judge decided that the application to set aside judgement should be allowed because the banks were very busy and it was a geniune mistake that the Allocation Questionnaire was not filed by the Defendant!

 

1. Set Aside

2. Stayed

3. Allowed Amended Defence

 

Going to court was a complete waste of time and the judge actually coached the blundering barrister because they they made the application using the wrong CPR. The judge even told the barrister what CPR it should have been made in and went through the book with him to make sure it covers each area.

 

No Justice.

 

Crikey - posts are all over the place.

 

Sorry for what happened today - but I know that as a general rule of thumb the defendant is always given more leeway / time in a case - and I suppose if your were in that position you would appreciate that. However it does seem unfair when it is a bank who have dedicated departments to deal with this and therefore really have no excuse - especially as they probably had no intention of defending the case. Also Apparenly they are perfectly entitled to depend on the original defence documents if the case came to court and are under no obligation to file a full court bundle.Unfortunately the courts are not allowed really to distinguish or be prejudiced against the defendant just because they are a large financial institution ( although many judges have been scathing of them)

 

With the amount of money involved in your claim it must be really frustrating. As hardly any cases at all have been successful in getting the stays lifted even in severe hardship cases - then the waiver is working and the courts do not seem to be the place to continue the fight at the moment. I know the FOS are only dealing with "hardship" cases at the moment - but how about complaining about the abuse of the court process (rather than the actual charges) - We might as well give the FOS/OFT/FSA lots of paperwork to deal with as they instigated the waiver ? IMO only

 

Jan

[Mister Twister]

Thank you very much Juicy!

 

Just to clarify this is against Abbey - My first claim against Natwest was a success and I recieved my refund. This of course does not change the excellent advice you have given me.

 

I will post my statement here before going to court and let you know the outcome as soon as I get back.

 

Fingers Crossed!

[jansus]

Hi

 

I hope this does not give you un-neccessary reading - but have a look at post I think 44 - if it does not apply then I am sorry - but I have seen you are looking for help from a mod - and none seems forthcoming.

 

this is the only case I can think of won on a technicality

 

Best of luck for tomorrow

 

Jan

 

hsbc bank charges **WON in COURT post-OFT!!!**