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Advice on N244 please.....Should I apply to continue the case


Aoife
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Just heard from court that they are stopping the hearings pending the test case. Does anyone know what the general advice is re Abbey and making an application to ask the judge to decide if it can go ahead. Does anyone have experience of the Guildford judge Reid?

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Here -

 

There are 2 template statements to choose from on the site, found or linked from here -

 

~~## Stays info and guidance ##~~

 

Also, specific to Abbey claims becouse the charges arise from clear breach of contract, make sure you add at the top of the stay objections template something like this -

 

 

 

Complexity of the Issues

 

The complexity or otherwise of the legalities arising from the bank charges issue should be viewed in context.

 

The test case between the banks and the OFT is essentially to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999.

 

The fundamental issue to be tested is whether the contractual provisions permitting such charges fall within the ambit of regulation 5 and are thus subject to an assessment of fairness, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a core term or that they relate to the adequacy of the price or remuneration, as against the goods or services supplied in exchange. This is a complex issue of legal interpretation and should be viewed against the background of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms.

 

There are no such complex issues in the present case. This claim is not primarily based upon regulation 5 of the UTCCR, and indeed the claimant is prepared to drop that aspect from the claim. The basis of this claim is that the charges imposed arise directly from breaches of contract. This is evidenced by the terms of the account agreement and furthermore, is accepted by the defendant in its defence.

 

In consequence, the charges are subject to the long settled principles of common law relating to contractual penalty clauses, as pleaded in the particulars of claim. The OFT test case will not, cannot, overturn 100 years of decisions, including unanimous House of Hords decisions, which establish the prohibition of penalty charges arising from breach of contract.

The issue in this case therefore is a simple one of fact – specifically whether the actual cost to the bank of the breach is proportionate to the charges it imposes. The claimant submits that it is wholly innapropriate and unnecessary to stay a claim at such a late stage in proceedings which can be easily and routinely disposed of by the County Court.

 

In view of the above, if the court is not minded to proceed today, the claimant respectfully suggests that these proceedings may be adjourned for one month and an order made simular to the draft attached. If the defendant cannot/will not comply with such an order then the defence should be struck out as having no realistic prospect of success.

 

 

 

 

Also, if possible include additional points in your objections, I.e. will a stay cause you hardship? If so, include that in with as much evidence as you can to back it up.

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Gary

Thanks so much for this. Deadline for sending was today and i have just done that. Just one question though. Your para on dropping Para 5 from the claim. Would this affect my claim for contractual interest?

Cheers

Aoife

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