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    • They may try to say that you haven't given them an opportunity to remedy the situation. You are now in a position to say that that is untrue and that you have invited them to address all the defects but subject to a written schedule and subject to supervision. Assuming that you will have actually issued the proceedings, you will then be able to say to the court that despite this approach, the defendants have declined and it is for this reason that you have been obliged to issue proceedings. You should emphasise that you have only brought the matter into the court process as a last resort – whereas by contrast, the building company have attempted to use a bankruptcy procedure as a first resort.
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    • hey your doing fine, stop sweating, it's really no big deal, you need to understand you are what is classed as 'a litigant in person' - meaning joe public against what can be seen as a somewhat daunting judicial system, that is too your advantage.   IMHO thats just a reprint of your defence, it might be better to structure around something like this, whos basis is around the WS in the thread i pointed too.         WITNESS STATEMENT OF DEFENDANT XXXXXXXXXXXX CLAIM NO. XXXXXXXX                                                                                                                                   Defendant: XXXXXXX                                                                                                                               Date XX/XXX2019 IN THE COUNTY COURT AT                                                                               CLAIM NO:XXXXXXX XXXXXXXXXXXXXXXXXXXXXX     BETWEEN     XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX      CLAIMANT     AND XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX     DEFENDANT    1. It is my understanding that the claimant is an Assignee, a buyer of defunct disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already written off as a capital loss and claimed against taxable income. Idem Capital securities issue claims to circumvent and claim the full amount of debt to maximise profit.    2. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.   I accept I have in the past had financial dealings with {insert original creditor name]. That being a Loan Agreement . I do not recall the precise details of the agreement but do recall it was on or about the year xxxx.   After seeking advice this led me to check all paperwork I held with creditors, from this I could not find any Credit Agreement relating to the account the claimant is referring to.   I have therefore sought clarification and requested copies of the agreements from the claimant by way of a section 77 request    exhibits   (DOC 1) A CPR 31.14 request pursuant to sec 61 B of the CCA1974 was sent xx/xx/xxxx via Royal Mail signed for and shows as received xx/xx/xxxx. Request for the following :   1.a copy of the default notice served under section 87 of the consumer credit act 3. Notice of assignment 4. A statement of account   (DOC 1A) To date NO default notice been produced.    (DOC 2) A Section 77 request was sent on xx/xx/xxxx via royal mail signed for and shows as received xx/xx/xxx. The claimant to date has failed to comply to my Section 77 request.   the defendant has failed to produce a copy of the Default notice issued by the original creditor,  as far as I can recall any breach with the original creditor would have been on or around xxxx.   The claimant as an assignee would not be able to legally issue a Default Notice as the debt would have already been terminated before assignment.   (DOC 3) I sort clarity of any Default Notice by the way of a CPR 31.14 request, sent via Royal mail signed for on xx/xx/xxxx and shows as received signed for xx/xx/xxxx   The claimant has still yet to comply to my CPR 31.14 request with regard to clarity of any valid default notice issued, as yet I have never received an original or seen a copy of a valid default notice from the defendant.   Conclusion   I contest that the documents I have received do not meet the requirements and prescribed terms of a legal binding credit agreement, and that the claimant has acknowledged that they are unable to produce an agreement and are unable to enforce litigation action.     I also state NO VALID Default has been produced from the claimant.   I believe that the that the facts stated in the witness state are true   ..................   have you received the claimants witness statement yet...   the above is just musings...    
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Hi,

Sorry to post on a new thread, but no-one has replied to my original one and I need help on this!

I had a stay put on my HSBC case, I put an application in to remove it without a hearing and the judge has come back to say he is will give me a hearing.

As a result I have no idea what to expect! The main thing apart from the letter I wrote is I believe I need to evidence that HSBC are still settling cases. I hope that even 3 or 4 case will be enough to give me the edge. Has anyone had settlement letters or been settled in the last few weeks? The more recent the better I guess?

Anyone got any pearls for me?

Thanks,

Penfold

Penfold

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Has your Judge granted you a hearing for your claim or a hearing for the stay ? and which court are you at ?

 

pete

 

Hi Pete,

 

I was told on the phone so I assume (sorry about this) that it is a hearing regarding the stay NOT the case. Also Luton County Court.

 

Penfold

Penfold

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Right, you need to read all of the info you can find on getting stays lifted I will find some good ones and post them here,

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/94703-hdr-hsbc.html

Dougal won his stay apeal in court

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/85633-castelbest-ii-return-claims.html

post 197 onwards has some strong arguments

 

pete

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Right, you need to read all of the info you can find on getting stays lifted I will find some good ones and post them here,

 

pete

 

But the Judge already had my application to set aside the stay. WOuld I still need to do it again? Also I am not a hardship case nor an account still open case. Will I be on a loser here? That's why I was wondering about any settled claims after the stays started this is a huge lever I believe in all our cases.

 

Penfold

Penfold

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Yes it is I think AGE has a list of settled claims will get her to send it to you

 

pete

 

 

Thanks Pete,

 

I think I will have to study the letter I sent along with others on here, pick the bits that suit my situation and make a short agruement along the lines of "they took money immeadiately, no cases in court (HSBC) so why should I wait for years for them to give me my money back? They have continued settling any cases not stayed or where stay was lifted therefore where is the justification for the stay to remain?"

 

Worth a try, but I need the correct cases info. The Litigation spreadsheets do not look upto date and do not appear to have any dates recently. Maybe I am reading them wrong? Also who should I sent my claim details to as I hope this will help others to lift the stay as well...

 

Penfold

Penfold

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WEll done Penfoldthat I think is a good thing.... he wants you to have your day in court that HSBC thought they woud deny you....... we have plenty time to prepare your arguements....:):) well done........... i have some case numbers for you and there are other bank numbers as well.............

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Thanks guys,

 

I will type up the letter from the Court and also what I sent originally tonight. That way we have something to work with rather than assuming.

 

Will post later,

 

Penfold

Penfold

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Ok how about this for a letter to give the Judge at the Hearing to set aside the stay. For those who have not read my thread, I had a stay put on my case and submitted an application to get it set aside. I did not ask for a hearing, but the Judge has asked to go to one. Date is TBA at this moment in time!

 

 

Hearing regarding Penfold V HSBC

Claim Number: 7LU0XXXX

Luton County Court

Date: TBA

 

Your Honor,

 

Seeing that neither my wife nor I are legal people we decided it was prudent to put our arguments/ queries down in writing for you to read. Here is a copy for HSBC's solicitors for their records. These are our objections to the Stay that has been requested by HSBC Bank and put in force by the Court.

 

HUMAN RIGHTS

 

1 The Claimant contends that a stay of all court actions in which the preliminary issues identified in the Agreement of 25th July 2007, made between the Office of Fair Trading (OFT) and the Banks (the Agreement), a copy of which is annexed hereto, are raised, contravenes our rights under the European Convention on Human Rights (ECHR) as set out in Schedule 1 of the Human Rights Act 1998, Article 6.1.

 

2 Art.6 1. Of the Convention provides that, in the determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. The OFT v the Banks case is not going to be resolved within a year from its commencement. Further, given the importance of the issues there will almost inevitably be an appeal from a first instance decision and any stay could endure for two years or even more. This is plainly not a reasonable time within which to resolve the vast majority of claims before the Courts, which like mine are small claims.

 

3 The above combined with the knowledge that HSBC has not successfully defended any of these cases in Court and in fact has not even been to Court to our knowledge. It is interesting that they are still settling any ongoing cases that have not been stayed to this date. Four examples are 7QZ46749, 7QZ26454, 7QT42155 and 7QZ 85517. I have reason to believe there are actually around 94 other cases that are in similar positions or where judgment has been granted in favour of the Claimant or the Defence struck out.

 

 

THE OVERRIDING OBJECTIVE

 

3 CPR 1.1(2) sets out considerations which the Court must give effect to.

 

(a) ensuring the parties are on an equal footing

 

The Banks and the OFT will be represented in their case. We as consumers are not represented. The case will determine issues essential to many cases, like ours, before the County Courts, yet we have no voice in them. There are particular circumstances in individual cases which will raise arguments the OFT are not aware of, nor can the case be expected to deal with the terms and conditions in all cases as not all Banks and Building Societies are listed as Defendants. Even if we were to be somehow joined in the OFT case, we would have no funding for representation and would therefore be prejudiced in a case with some heavyweight lawyers. The Court would properly ensure the parties in our case remain on an equal footing by allowing it to proceed.

 

(b) Saving expense

 

Expense would be saved by allowing our case to proceed in the normal way. Arguments on this issue are already set out below and apply equally under this head.

 

© dealing with cases which are proportionate to

 

(i) the amount of money involved

 

In our case, we claim £1242.80 in charges unlawfully levied by HSBC. This is a large sum for us but a negligible sum for the Defendant. It is of no consequence to the Bank that we may be deprived of an opportunity to resolve our dispute for a further year to two years, as they already have our money, which they took immediately and in any event they are under no financial pressure to resolve the case fairly and speedily. We, on the other hand, are extremely anxious to have our case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Bank is concerned, does not warrant the resolution of the dispute being delayed further.

 

(ii) the importance of the case

 

Our case is very important to us, though given the commercial strength and power of the Bank, of relatively little importance to them. Nor can the Banks fairly argue that all of a sudden the principles as a whole are important to them so that all claims against them must be stayed, as they seek to do in the OFT case. This is not an argument which lies with them to make, given their approach to cases like ours. The Banks’ strategy to litigation of this kind is almost without exception, to put in a defence and settle shortly before the trial. It is very rare when the Banks bother to argue any defence. In other words, they treat cases like ours as another commercial decision. They have never sought to see a case through, take it to appeal if necessary and seek to establish certainty over the principles they assert are so crucial now, they necessitate a stay of all claims. Certainly of all the cases discussed on www.consumeractiongroup.co.uk, we are told and believe that not one case has been taken to trial. The Bank has always settled. If these issues were so critical to them they were at liberty to see their arguments through in a case, take it to appeal and seek certainty on the issues in an appellate court in the normal way. Only now do they seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

 

To further strengthen our points above it is interesting for you to note that DG Solicitors have not sent us any correspondence at all to do with this case. They have not adhered to the legal system in many of their other cases as we have discovered from the Consumer Action Group website and even tried to set aside judgments after ignoring all their obligations under the legal timescales. We appreciate that this should not concern us, however, we feel Your Honor should fully realise that these solicitors and their clients are abusing the system to their advantage.

 

We are lucky that we closed our HSBC account some time ago, but this does not deter from their tactics. In fact Judge Abrahams, at Luton County Court, ordered one of the Banks to stop applying the charges until a High Court test case settles the legal issues involved. So the Banks wish to postpone paying out or justifying their charges, but are perfectly happy to continue with their charges, is this not abuse in its entirety? When it suits them they wish to stay the issue of charges, yet they wish to continue charging them.

 

 

(iii) to the complexity of the issues

 

The issues of whether the Banks’ charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and whether they amount to penalty charges, whether for breach of contract or as a payment for services as the Banks now allege, is not so complex that it warrants the stay of all claims in which these issues are at large. The arguments are commonly dealt with days in day out by the County Courts who are more than adequately placed to deal with them. The complexity/simplicity of the issues is no reason to grant a stay, rather it is a reason why the County Court should continue to determine them.

 

(iv) to the financial position of each party

 

Many Claimants are normal people on low or average incomes who have been deprived, in many cases, of several thousand pounds going back up to 6 years. We are on an average income and have suffered hardship as a result of the Bank’s charges. We will continue to suffer hardship for a much longer period if the stay is allowed. The Banks have virtually unlimited funds by comparison. We like many other Claimants would be financially prejudiced by the matter going off for a long period, not just by the fact that if we win we will have been deprived of our money for a much longer period, money that would make a significant difference to our life. The monies owed to us would clear our current overdraft completely. We can have our private law dispute resolved expeditiously and fairly by the Court allowing our action to proceed to trial in the normal way.

 

(d) ensuring the case is allowed to proceed expeditiously and fairly

 

· This case will not be expeditiously dealt with if delayed for up to 2 years. The Banks have had years to invite the OFT to issue their case against them. Many hundreds of cases have gone through the Courts already, arguing the same points that are set out as preliminary issues in the OFT case. We should not be deprived of the same opportunity that all those other Claimants had, simply because the Banks have elected to take this route vis a vis the OFT after our court papers had already been filed. We questioned HSBC initially in March this year. We gave them many opportunities to respond and resolve this matter and we only finally started court action in July. In any event this was prior to the test case announcements and so we feel we should not be subject to those agreements.

· In any event, our case, as many others do, involve other additional arguments to those listed as preliminary issues in the OFT case. One major issue is the amount of recoverable bank charges and the costs to the Banks of taking the particular step they charge for. There is clearly an issue over what is a reasonable charge for say a returned cheque or at what stage a charge moves from a reasonable one to an unenforceable penalty. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of our case because some issues are identical to the preliminary ones in the OFT case, while there remain issues in our case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in our case to be determined at the same time, by the same Court which hears all the evidence and all the arguments.

· Our argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause undue hardship and which, if found in our favour, cannot be properly compensated.

 

ADDITIONAL POINTS

 

4 The defendant remains at liberty to enter our name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous inconvenience and damage to reputations. Were our name to be entered on the default register we would find it very difficult to get credit or a mortgage and we would have to pay higher fees for any credit, which we did manage to obtain. Allowing a stay of all claims like our would facilitate this invidious practice, which cannot properly be compensated for, should we be successful. The damage will already have been done.

 

IN THE ALTERNATIVE

 

5 If the court decides not to accede to our request to remove the stay we would then respectfully request that the court makes the stay conditional on the following orders that a hearing will take place no later than the 31st March 2008 and thus not allowing the Defendant to use the appeals system to further lengthen the timescales.

 

Yours faithfully,

 

 

 

 

Views, additions, corrections all welcome, thanks,

 

Penfold

Penfold

(feel free to click the scales on the left if I said something that helps)

Due to recent issues I have had....

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Penfold might be worth changing it to your worship. as that si what county court judges are called you honor in the high court.......... the part about the luton thing. here is part of the clip

 

Judge Abrahams, at Luton County Court, has ordered Barclays to stop applying the charges until a High Court test case settles the legal issues involved.

 

also if you can find some where to fit in that the bank's collectively have settled 94 cases since the oft announcemnt on the 27th July when they went to the high court.......this is the ones we know about........ there coudl be more that we dont.....

but again all this info just adds more weight and also shows just the extent to which they will go to manipulate the system...........:):):)

 

good letter.........

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rockin all over the world

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oh jsut one other thought Penfold.. did they by any chance fail to submit anything to the court by its due date?

 

 

Nope a they only needed to submit defence then went straight to stay by the judge.

 

Point taken about worship and will alter on real thing.

 

Glad you spoted the 94 thingie, so they are settled cases, but we just do not have the case numbers right?

 

Can't put the charges bit in as no account with them, but did sort of include it...

 

Thanks,

 

Penfold

Penfold

(feel free to click the scales on the left if I said something that helps)

Due to recent issues I have had....

All posts written by me and involving my opinions and written without any legal knowledge are....

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Nope a they only needed to submit defence then went straight to stay by the judge.............. ok

 

Point taken about worship and will alter on real thing........... just thought as you had made sucha good job of it.......

 

Glad you spoted the 94 thingie, so they are settled cases, but we just do not have the case numbers right?. no we do not............ it was on someone elses post i saw it........... but the numbers you have are from the hsbc on and I have collected them form those concerned. when I have seen a judgement awarded. I have aske dfor the number and kept a list......

 

Can't put the charges bit in as no account with them, but did sort of include it...ah right ok...........

 

Thanks,

 

Penfold

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Do you recon I should go in with a summary page saying something like:

 

1) HSBC have not successfully defended any case so far.

2) They and the other Banks are still settling other cases and are not standing up in Court on any of the individual cases

3) If they can take our money immediately without question, then we should not have to wait to get it back if it is wrong

 

As a result of the letter and this summary we ask your WORSHIP to set aside the stay and also request that you enter the following directions:

 

 

1. The Claimant shall within 7 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 7 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 Defense will be struck out without further order.

Penfold

Penfold

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Hi Penfold

 

Great news! Like you, I sent in an order to have the stay removed and have just got back a hearing date set for 29th Nov. My case is against First Direct (HSBC).

 

Think it's a bit poor that I originally had a date set for 3rd Sept and then the stay was applied by the court. Paid £65 for an order to get it lifted and now have a date for a hearing re the stay 3 months away. If that is successful I will probably get a final hearing date xx months after that which may not be any earlier than if I'd just accepted the stay and waited for some decision on the test case.

 

Sorry for whining!!

 

I'll keep on eye yours now cos the advice and help is excellent and it will certainly help me along

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Hi Penfold

 

Great news! Like you, I sent in an order to have the stay removed and have just got back a hearing date set for 29th Nov. My case is against First Direct (HSBC).

 

Think it's a bit poor that I originally had a date set for 3rd Sept and then the stay was applied by the court. Paid £65 for an order to get it lifted and now have a date for a hearing re the stay 3 months away. If that is successful I will probably get a final hearing date xx months after that which may not be any earlier than if I'd just accepted the stay and waited for some decision on the test case.

 

Sorry for whining!!

 

I'll keep on eye yours now cos the advice and help is excellent and it will certainly help me along

 

 

Please put your thread link in as well so I will keep an eye on that too. I beleive we should fight these stays especially if you started your case before the Test case announcements. MY view is the cases started before therefore should be treated as others before that date too. We'll see what the judge thinks I guess.

 

I will post my dates as soon as, but I do think if the Judge agrees to proceed the directions bit is the most important, because it effectively gives 14 days for HSBC to provide the info they have NEVER supplied so do not worry about the court date it will not get to that!

 

Penfold

Penfold

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Due to recent issues I have had....

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Hiya Penfold, just realised your at Luton, have a look at this thread, post #93 onwards is the important bit.

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/76679-johnsworld-barclays-bank.html?highlight=johnsworld

 

If your Judge is favoring keeping the stay in place even after all of your arguments ask that any new charges are also suspended by the bank, John got it for his daughters case (be carefull though this has caused him problems as you will see).

 

pete

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Hi Pete,

I read it and I am only sorry he was one of the first to see the Judge regarding the stays. His posts are helpful though and I think the letters AGE, you and I have put together will help. I am not a public speaker; however, I do have a mouth on me and will not be scared to use it. I will not be rude, but will argue any point I can so my preparation is paramount.

I thought of adding somewhere in the summary:

Since we only discovered the charges were unlawful this year we started proceedings immeadiately and so the Human Rights to a fair and speedy trial are very relevant. It has been argued that this wait has been the last six years due to the timescale of the claim, however, this is not the case.

This is due to his comments about the Judge. Thsi should help nullify that agrguement?

Penfold

Penfold

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Due to recent issues I have had....

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I want to write to DG, I know I probably should not, but since they applied early for the stay and we never got them to ignore the Judges directions I need something on them. I wrote to them before and they ignored it. So one more letter would just be another small extra brownie point for us?

 

How about this:

 

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

 

Re: Penfold- v - HSBC

HSBC Account no’s: 0XXXXX30 and 9XXXXX99

Claim no: 7LU0XXXX and Issue date:XX July 2007

 

It has come to our attention that as of xx/09/07, that we have been successful in our application to get a hearing regarding the stay that you requested be put on our case.

We are mindful of the vast number of claims with which you are currently dealing, even with the majority of your applications for a stay being granted. In order to more speedily resolve this matter, we are willing to accept the sum of £1827. This figure is an upto date one including the extra court costs. We do not agree to waive our rights in respect of any other actions, nor do we agree to a clause of confidentiality.

 

We hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. We are sure that the courts would approve of our settling this matter in a timely manner and without their further intervention. We can back this up with the knowledge that you and your clients are still settling cases even after your client’s announcements that they would not do so with regards the OFT Test Case. This will be brought to the attention of the Judge and made clear including case numbers to prove your clients hypocritical actions. It would make sense to refrain from opposing our request to set aside the stay and in fact be better to show some credibility by settling our claim without further delay or costs.

However, should you be in any doubt of our resolution on this matter then please be fully prepared at the hearing for the numerous points we will be raising with the Judge along with further evidence to support our case against your clients actions.

Yours sincerely,

Penfold

Penfold

(feel free to click the scales on the left if I said something that helps)

Due to recent issues I have had....

All posts written by me and involving my opinions and written without any legal knowledge are....

Without Prejudice

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