Stays & test cases to be heard

[mcuth]

My stays (and I guess a lot of everyone elses!) are in the following format:

 

Before District Judge Carron sitting at Swindon County Court, The Law Courts, Islington Street, Swindon, SN1 2HG.

 

Upon the Courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it

 

IT IS ORDERED THAT

 

the claim be stayed until 1st March 2007.

 

Dated 28 September 2006

 

PLEASE NOTE: There are a considerable number of these cases throughout England & Wales. There is likely to be a test case in the near future.

 

As I can't afford to make applications to have these set aside at the moment, I have to go with the stay. However, my query is about the "likely to be a test case in the near future" part - I can understand staying the case pending the outcome of a definite test case, but with so many cases being settled & not going to court (I can't even see a lot of the MC CMC ones going to an actual hearing), how can they make a stay pending something that's unlikely to happen?

 

Cheers

 

Michael

[mcuth]

I can understand staying the case pending the outcome of a definite test case, but with so many cases being settled & not going to court (I can't even see a lot of the MC CMC ones going to an actual hearing), how can they make a stay pending something that's unlikely to happen?

 

And another thing - if there isn't a test case (unlikely, since they'll probably be settled first), will my claim be stayed forever????

Cheers

 

Michael

[stadium_arcadium]

And another thing - if there isn't a test case (unlikely, since they'll probably be settled first), will my claim be stayed forever????

Cheers

 

Michael

 

That is exactly what I've been thinking for the past 6 weeks...or is it 8, I can't remember.... Something needs to happen. Soon!

[RETURNED TO SENDER]

How's your claim going SA ?

[pelham9]

If there is never going to be a test case - and this seems likely - the stay will never be lifted!

 

The recent happenings in the Mercantile Courts where the banks are settling PDQ suggests that this is a quicker way to go. Why not ask your court to transfer your stayed case to the Mercantile Court who seem to be adopting the tactic of 'hearing' and disposing of cases in batches.

[mcuth]

If there is never going to be a test case - and this seems likely - the stay will never be lifted!

Yup, that's what I'm afraid of really...

The recent happenings in the Mercantile Courts where the banks are settling PDQ suggests that this is a quicker way to go. Why not ask your court to transfer your stayed case to the Mercantile Court who seem to be adopting the tactic of 'hearing' and disposing of cases in batches.

Oh now, that sounds like a good idea to me!!

What say the rest of you?

 

Cheers

 

Michael

[0charles0]

I think the courts are trying to push one through ,but once they do and this bottleneck clears there are potentialy millions of claims that could come through the system.

[tim2718281]

There's a possible implication for costs if you request the Mercantile Court.

 

If the judges themselves decide to transfer the case to the Mercantile Court, you can reasonably ask them to rule that you will not have to pay more in costs than if the case had been heard under Small Claims rules. If the judges do not do that, you may withdraw the case because of the financial risk ... and that would defeat the judges' purpose.

 

But I don't know if you can advance the same argument if you yourself request the case be heard in the Mercantile Court.

 

Tim

[stadium_arcadium]

How's your claim going SA ?

 

In two words...... it's not:-|

 

Heard nothing from the court and nothing from SC&M. I meant to ring the court today but have been in Newport all day so didn't get chance. Will have to do that on Monday now.

[RETURNED TO SENDER]

Keep going SA.

[Number6]

I received a "stay notice" from the court yesterday. It's not pending a test case, simply a stay to give both parties the opportunity to settle but I don't fully understand it:

 

On the order of Judge *** ********** the case is stayed until 8 November 2006.

 

On or before 22 November 2006, one of the following steps must be taken:

 

either

the claimant must notify the court that the whole of the claim has been settled;

or

the claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediator, expert or other person helping with the process. The letter should confirm the agreement of all the other parties.

or

all the parties must file an allocation questionaire at the court. Where a settlement of some of the isues in dispute has been reached, a list of issues should be attached to the completed questionaire. The list must be agreed with the other parties and must indicate that it has been agreed.

 

If the case is stayed until 8th November why have we got until 22nd November to submit stuff???

 

It appears to me that if no settlement can be agreed that I then have to file an allocation questionaire; but why? I've already submitted my full claim particulars, I've submitted my full list of charges, interest, etc AND I've already submitted an allocation questionaire. So WTF do I have to submit another AQ (presumably along with yet another £100?) if SCM / LTSB refuse to speak to me just like they've done all along so far?

 

Can anyone explain the logic behind this please? Because I can't see any.

 

Pete

[BankFodder]

I received a "stay notice" from the court yesterday. It's not pending a test case, simply a stay to give both parties the opportunity to settle but I don't fully understand it:

 

 

 

If the case is stayed until 8th November why have we got until 22nd November to submit stuff???

 

It appears to me that if no settlement can be agreed that I then have to file an allocation questionaire; but why? I've already submitted my full claim particulars, I've submitted my full list of charges, interest, etc AND I've already submitted an allocation questionaire. So WTF do I have to submit another AQ (presumably along with yet another £100?) if SCM / LTSB refuse to speak to me just like they've done all along so far?

 

Can anyone explain the logic behind this please? Because I can't see any.

 

Pete

This is a good opportunity to get the high ground.

Can you post a version of this in the forum for your bank and I will expalin why. Link me to it.

[Number6]

This is a good opportunity to get the high ground.

Can you post a version of this in the forum for your bank and I will expalin why. Link me to it.

 

Thanks BF

 

My thread is HERE

 

Pete

[BankFodder]

If there is never going to be a test case - and this seems likely - the stay will never be lifted!

 

The recent happenings in the Mercantile Courts where the banks are settling PDQ suggests that this is a quicker way to go. Why not ask your court to transfer your stayed case to the Mercantile Court who seem to be adopting the tactic of 'hearing' and disposing of cases in batches.

This is an excellent idea. I think that if you applied to have the claim transferred to the Mercantile Court to be grouped and dealt with on the same basis as the other test cases, then if the request was granted, you would very likely benefit from the small claims costs order and also from getting standard disclosure.

 

However, I suppose that there is always a risk - assuming that the case was lost, of course.

[Number6]

Bankfodder

 

I've started a new thread about my stay HERE

 

Pete

[mcuth]

This is an excellent idea. I think that if you applied to have the claim transferred to the Mercantile Court to be grouped and dealt with on the same basis as the other test cases, then if the request was granted, you would very likely benefit from the small claims costs order and also from getting standard disclosure.

 

However, I suppose that there is always a risk - assuming that the case was lost, of course.

 

Ok, I think I'm going to write a letter to the District Judge, using some arguments from the Application for removal of stay post and suggesting that the cases are transferred to the Mercantile Court with a small claims costs order. I'll post a draft of my letter here so that it can be picked apart, but before I start on it, has anyone got the "sample list of 223 cases complete with county court reference numbers" so I don't have to go trawling through the litigation concluded/successes fora and build it up?

 

Cheers

 

Michael

[Joa]

I do; you could add a couple of more recent ones though. PM me your email address.

[mcuth]

Thanks Joa

Ok, here's what I got so far - amended & removed all the default stuff cos I've been defaulted anyway and my credit record's FUBAR :

 

The District Judge

Swindon County Court

The Law Courts

Islington Street

Swindon

Wiltshire

SN1 2HG

 

Dear Sir/Madam

 

mcuth v Lloyds TSB Bank PLC – claim number 6SN02738

&

mcuth v Egg PLC – claim number 6SN02736

 

I respectfully request that the stays on the above claims, which were ordered on 28th & 29th September 2006 respectively, be removed per the following.

 

Human rights

The stays interfere with my rights under the European Convention on Human Rights (“the Convention”) directly and as enacted in the Human Rights Act 1998.

 

Art.6 1. of the Convention provides that “In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”. It is submitted that in claims for sums of £354.66 & £85.22 respectively, a stay of 5 months which depends on unspecified litigation unconnected to the instant claims between two other parties who have no relation to the parties in the instant claims, is not reasonable.

 

Indeed, it is unlikely that there will actually be a test case proceeding to hearing as specified (see “Test Case” & “Other Cases” below).

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my claims are allowed to proceed speedily so that a just settlement may be obtained by the parties to these claims. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

Lloyds TSB Bank PLC

The Defendant in claim 6SN02738,Lloyds TSB Bank PLC (“Lloyds”), has already settled at least 28 similar cases. A list of these 28 claims where Lloyds was the Defendant is attached (Appendix 1). In most of these claims, Lloyds actually filed a defence to the claim and returned their Allocation Questionnaire, obliging the Claimant to do the same. However, in every one of these claims, Lloyds settled the matter before any hearing.

In 2004 the head of personal banking of Lloyds, Peter MacNamara, stated in a Radio 4 interview that Lloyds makes big profits from its default charges and that this money was being used to fund free banking for its customers. The Claimant can supply a copy of this recording if the Court wishes.

 

Other cases

It is true that there are currently many other claims which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that so far, not a single case has proceeded as far as a hearing.

 

Attached to this letter is a sample list of 244 claims, complete with County Court reference numbers (Appendix 2), of which the Claimant is aware and which have been issued since January 2006. All of these claims have been settled before a full hearing. Many of these claims even received default judgments against the Defendant banks in question, which has then been set aside on application by that bank and which has further been settled by that bank rather than go to court.

In two cases the Court has even ordered standard disclosure against Defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing - that it will be settled out of court and therefore produce no useful decision from a higher court. It is further submitted that the Defendants in the instant claims have no intention of going to a hearing.

It is submitted that the pattern of claims settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right.

It is submitted that this is abusive of the justice system and of the public resource.

 

Balance of convenience

The sums claimed are insignificant to the banks but are significant sums to me. Furthermore, although a stay prevents me from recovering my money, the Defendant banks are not prevented from levying their charges or interest on debt comprised of those charges. Thus, the order of the Court has the effect of favouring powerful and well-resourced institutions and does not place any restriction on their continued application of penalties which I say are unlawful.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the Defendant banks. In fact, a stay is supportive of the banks’ litigation strategy - which is to take the Claimant to the door of the court and then to settle the claim.

 

The Status Quo

The stay does not maintain the Status Quo. As submitted above, a stay favours the bank by preventing the Claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks’ activities which the Claimant submits are unlawful.

 

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks have so far settled every one of the 244 example cases in Appendix 2, and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the Defendants have declined to allow the issue to be decided in court.

My claims present another opportunity for the question to be definitively settled as, should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy. It is respectfully submitted that the Court’s order to stay the claim creates more uncertainty and more difficulty.

It is respectfully submitted that, if the predicted test case referred to by District Judge Carron in the orders, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the claims conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) gives the power to the Office of Fair Trading (“the OFT”) to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

The OFT conducted a 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks. The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by myself in the instant claims.

 

Additional orders

If the Court does accede to my request for a removal of stay then I respectfully request that the claims be allocated to the Small Claims track but that the Defendants be ordered to make standard disclosure. It is submitted that an order for standard disclosure will assist greatly in bringing these and other similar claims to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges

 

In the alternative, a number of cases have recently been transferred to various Mercantile Courts for hearings, and these again have been settled before any hearing. If the Court were to decide that my claims should be similarly transferred to a Mercantile Court (the closest being located in Bristol), I respectfully request that a Small Claims Costs Order is made and the Defendants be ordered to make standard disclosure.

 

Many thanks

 

Yours faithfully

 

mcuth

APPENDIX 1

List of 28 County Court claims where Lloyds TSB Bank PLC was the Defendant and settled before a hearing:

 

{table removed due to to post size}

 

APPENDIX 2

Sample list of 244 County Court claims against banks on the issue of contractual penalties, all settled before a hearing:

 

{table removed due to to post size}

Cheers

 

Michael

[CrispDust]

Looks pretty good there dude. All the best for a speedy result.

[gizmo111]

It is true that there are currently many other claims which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that so far, not a single case has proceeded as far as a hearing.

Is this still true even though LTWFB had a hearing in NI against CITICards- which he is appealing?

Apart from that letter looks good.

 

 

 

[mcuth]

Thanks

 

I'm actually considering removing the "Balance of convenience" section, as both accounts are defaulted and no charges or interest are being added....

 

Cheers

 

Michael

[mcuth]

Is this still true even though LTWFB had a hearing in NI against CITICards- which he is appealing?

Apart from that letter looks good.

 

Ah, didn't know about that one - plus (while researching contractual interest for another claim ) just remembered that Haydn's had his CMC, which I guess is also a hearing...... hmmm, let me dig

 

Cheers

 

Michael

[gizmo111]

Ah, didn't know about that one - plus (while researching contractual interest for another claim ) just remembered that Haydn's had his CMC, which I guess is also a hearing...... hmmm, let me dig

 

Cheers

 

Michael

 

And keren's set aside hearing and Empire Strikes Back had a hearing that was adjourned. Doint tea at moment but will be back a bit later if you need any help.

[mcuth]

And keren's set aside hearing and Empire Strikes Back had a hearing that was adjourned. Doint tea at moment but will be back a bit later if you need any help.

 

I dunno if a set aside hearing counts as a hearing to decide the legal arguments of the case does it? I mean, in those you're just arguing against/for the set aside. LTWFB didn't lose his case either, despite the hearing - basically the amount of charges was reduced to the "OFT guideline" (though it's going to be interesting to see what his "phase 2" is! ). Not seen ESB's hearing details... Mind there's also that one case that Egg won on a technicality because our member wasn't able to get to the hearing.

 

Errr anyway, I think I might change that section to read "It is true that there are currently many other claims which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that so far, the vast majority have been settled before any hearing, with only a handfull proceeding as far as a hearing. "

 

With the removal of the "Balance of Convenience" section, and some tweaks for the above (and consistency between the use of "case" & "claim"), here's what it looks like now:

 

The District Judge

Swindon County Court

The Law Courts

Islington Street

Swindon

Wiltshire

SN1 2HG

Dear Sir/Madam

mcuth v Lloyds TSB Bank PLC – claim number 6SN02738

&

mcuth v Egg PLC – claim number 6SN02736

I respectfully request that the stays on the above cases, which were ordered on 28th & 29th September 2006 respectively, be removed per the following.

 

Human rights

The stays interfere with my rights under the European Convention on Human Rights (“the Convention”) directly and as enacted in the Human Rights Act 1998.

Art.6 1. of the Convention provides that “In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”. It is submitted that in cases for sums of £354.66 & £85.22 respectively, a stay of 5 months which depends on unspecified litigation unconnected to the instant cases between two other parties who have no relation to the parties in the instant cases, is not reasonable.

Indeed, it is unlikely that there will actually be a test case proceeding to hearing as specified (see “Test Case” & “Other Cases” below).

 

The Overriding Objective

It is submitted that the Overriding Objective requires that my cases are allowed to proceed speedily so that a just settlement may be obtained by the parties to these cases. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

Lloyds TSB Bank PLC

The Defendant in case 6SN02738,Lloyds TSB Bank PLC (“Lloyds”), has already settled at least 28 similar cases. A list of these 28 cases where Lloyds was the Defendant is attached (Appendix 1). In most of these cases, Lloyds actually filed a defence to the case and returned their Allocation Questionnaire, obliging the Claimant to do the same. However, in every one of these cases, Lloyds settled the matter before any hearing.

In 2004 the head of personal banking of Lloyds, Peter MacNamara, stated in a Radio 4 interview that Lloyds makes big profits from its default charges and that this money was being used to fund free banking for its customers. The Claimant can supply a copy of this recording if the Court wishes.

 

Other cases

It is true that there are currently many other cases which are litigating against banks on the same issue of contractual penalties. However the court may be unaware that so far, the vast majority have been settled before any hearing, with only a handfull proceeding as far as a hearing.

 

Attached to this letter is a sample list of 244 cases, complete with County Court reference numbers (Appendix 2), of which the Claimant is aware and which have been issued since January 2006. All of these cases have been settled before a full hearing. Many of these cases even received default judgments against the Defendant banks in question, which has then been set aside on application by that bank and which has further been settled by that bank rather than go to court.

In two cases the Court has even ordered standard disclosure against Defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing - that it will be settled out of court and therefore produce no useful decision from a higher court. It is further submitted that the Defendants in the instant cases have no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right. A stay is supportive of the banks’ litigation strategy - which is to take the Claimant to the door of the court and then to settle the case.

It is submitted that this is abusive of the justice system and of the public resource.

 

The Status Quo

The stay does not maintain the Status Quo. As submitted above, a stay favours the bank by preventing the Claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks’ activities which the Claimant submits are unlawful.

 

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit. However, as has been explained above, the banks have so far settled every one of the 244 example cases in Appendix 2, and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the Defendants have declined to allow the issue to be decided in court.

My cases present another opportunity for the question to be definitively settled as, should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy. It is respectfully submitted that the Court’s order to stay the case creates more uncertainty and more difficulty.

It is respectfully submitted that, if the predicted test case referred to by District Judge Carron in the orders, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the cases conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) gives the power to the Office of Fair Trading (“the OFT”) to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

The OFT conducted a 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks. The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by myself in the instant cases.

 

Additional orders

If the Court does accede to my request for a removal of stay then I respectfully request that the cases be allocated to the Small Claims track but that the Defendants be ordered to make standard disclosure. It is submitted that an order for standard disclosure will assist greatly in bringing these and other similar cases to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges

In the alternative, a number of cases have recently been transferred to various Mercantile Courts for hearings, and in the majority have been settled before even the Case Management Conference was held. The Claimant is aware of only 1 of these transferred cases that has proceeded to the Case Management Conference. If the Court were to decide that my cases should be similarly transferred to a Mercantile Court (the closest being located in Bristol), I respectfully request that a Small Claims Costs Order is made and the Defendants be ordered to make standard disclosure.

Many thanks

Yours faithfully

mcuth

 

Cheers

 

Michael

[gizmo111]

Looks good to me now - Keren's case for set aside the judge orderd that citi pay the full amount of the claim into court in 14 days - so not exactly a legal point but still got a hearing of some sort.