Barry v Swift (Court date 29/01/07) *Lost*

[Barry Paul]

Hi All, I suppose I'm a bit late to start a thread about this but better late than never.

 

 

The brief history is I redeemed my mortgage with Swift last March & got hammered for a lot of charges.

 

 

In May 06 after hearing about this fantastic website I started my action to get the fees & interest back of approx £5k.

 

However I'm in Northern Ireland & the Small claims limit is £500 so after sending the usual preliminary approach & LBA letters I started my claim in the Liverpool Court.

 

After AQ's the Liverpool judge granted Swift's request to have the case moved to the Basildon Court.

 

The Basildon Court set a date of 12 Dec 06 for a hearing in the Small Claims Track. All documents to be relied on had to issued to the court & the other party by 28 November.

 

I sent mine on the 20th.

 

Swift sent theirs on the 30th November.

 

On the 1st of December 06 I received a £1204 refund & a threat to drop the case as I was wrong & they would defend all the way.

 

On the 8th Dec 06 I booked & paid for my flight to Stanstead & car hire & was all ready to go.

 

 

Then BANG they applied to the court on the 11th Dec 06 to have the case changed with the reason being there was not enough time to hear the case in the 2 hours that had been allocated.

 

Accordingly the Basildon Judge agreed & transferred the case to the Southend Court. I got a phone call from the Basildon Court telling me what had happened at 4:30pm on the 11th. Of course my flight booking was lost & the money it cost gone aswell.

 

Then on the 4th January 07 the Southend Court gives me an early hearing date of 29th January 07.

 

Great I thought, but they have now moved it to the Fast Track but still only allocated a half day, which I believe is only 2.5 hours of court time.

 

So on the 8th January 07 I wrote to the Southend Court asking them to carry the "limitations of liability" over with this case from the small claims to the Fast Track because the grounds for moving it was to allow more time. Which only became an extra half an hour.

 

I also asked them assure me that the case won't be transferred again so as not to lose another flight cost.

 

Anyway that's what I'm upto & I thought it was about time I told the site my story.

 

Barry

[mrsfoot]

Great story Barry, frustrating as it must be!

 

I would like to maybe chat on here as to what you are claiming and who is dealing with your case etc. I am claiming from Swift also, here is my thread, would appreciate your thoughts

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/46576-me-swift.html

mrsfoot

[Barry Paul]

Firstly, thanks mrsfoot for your support. I read your thread & your charges are all the same as they charged me & your experience with Swift has been just as frustrating as mine. I'll let you know what happens next Monday.

 

Secondly to update my story I received an order back from the court, reference my request on the 8th Jan 07. Were I wrote to the Southend Court asking them to carry the "limitations of liability" over with this case from the small claims to the Fast Track because the grounds for moving it was to allow more time.

Well the court has listed my application to be heard next Monday prior to the claim case commencing.

 

So if anybody has any suggestions on how to argue this point further, it would be greatly appreciated.

 

Thanks

 

Barry

[Barry Paul]

Hi, I need URGENT help & advice regarding my claim.

 

As stated I'm in court on Monday 29th Jan & I've received correspondance from swift in the form of a "Skeleton agruement" & a "Schedule of costs".

 

The schedule of costs I'm not worried about as I know there only trying to scare me.

 

But they have asked to see my arguement & all documents that I will rely on in court & they say I have to send them to the court.

 

Do I need to respond? Is there a skeleton arguement draft on the site anywhere?

 

Any suggestions would be greatfully appreciated.

 

Thanks

 

Barry

[zootscoot]

Has the court asked you to send anything? If not you are not required to do so although it would be considered courteous. Is this hearing just to hear the issue of cost liability for the small claims?

 

You have already submitted your bundle for the hearing haven't you?

 

For the costs issue a good place to start would be to look at the overriding objectives of the Civil Procedure Rules and the Civil Procedure rules relating to costs.

 

Al the best

 

Zoot

[Barry Paul]

Hi Zoot

The Fast track court has not asked me to send anything.

The hearing is the full claim hearing but the court has agreed to hear my application regarding costs first before we start the claim hearing.

Yes I have already submitted my bundle but that was when the case was at the small claims track, I have not submitted anything since it was reallocated to the fast track.

Where will I find this info on the Civil procedure rules?

Barry

[paulpb123]

Barry,

You'll find lots of good info here, including Overriding Objectives:

 

CPR - Parts and Practice Directions

 

All the best,

Paul

[Barry Paul]

Thanks Paul for the link.

 

Now that I've had a look at CPR's can anyone confirm if I'm right in thinking that I cannot be liable for costs as my order re-allocating my case from the Small claims track to the fast track did not mention costs as per

 

CPR Part 44.13 (1) Where the court makes an order which does not mention costs –

(a)subject to paragraphs (1A) and (1B), the general rule is that no party is entitled to costs in relation to that order

 

Any assistance would be greatly appreciated as time is fast running out.

 

Thanks. Barry

[mrsfoot]

Im my opinion your thoughts are correct Barry, if no costs were mentioned at the original small claims track then no costs should be transferred over to the fast track.

 

I am getting quite nervous for you now, am i right in thinking your full case is being heard Monday or is it just the costing part of it?

 

good luck although i dont think you will nbeed it as whats law is law!!

[Barry Paul]

Hi Mrs Foot

 

Yes on Monday we start by hearing my arguements over costs & then we're straight into the full case hearing.

 

Barry

[paulpb123]

Very, very best wishes go with you Barry. When they gave you the £1204 did you accept this as partial payment, or did you send it back? Was the letter without prejudice? I'm just thinking, they've already confessed their guilt.

Paul

[mrsfoot]

how are you doing, have you everything you need? have you got someone going with you? we will be hear wating with baited breath as its not too long till im in court with them , be very interested to hear who they send for their side. they guy they sent for the allocation hearing for our case was nice enough but first impressions was that he was bit slow but he was quite harsh once in the room with DJ!

[Barry Paul]

I think I'm all ready. Got my mountain of paperwork all ready. Don't have anyone going with me though.

I certainly let everyone know how I get on through this thread.

I see from your thread that Mark White is their witness. Was he there?

Was Mathew Payne the solicitor for them?

[mrsfoot]

Yes on both counts! Whr is the court case being held? Is it still Liverpool? Ill be very interested on what Mark White and Matthew Paybe have to say on the day, although Payne did not attend my allocation hearing it was a barrister

[Barry Paul]

No it's in the Southend county court.

Was the barrister the harsh one?

[mrsfoot]

Yes. He came across as tim nice but dim but totally different once in there! When we got out of the court he walked to the car with us, he drove a fiat uno lmao!

[Charbydis]

Any news? How did it go in court? Or are you only allowed to talk about the weather?

[Barry Paul]

BAD NEWS - I LOST MY CASE (although I would say on a technicality)

I finally got to court with this case yesterday. Just me on my own & Swift landed in mob handed (6 in total - Barrister, Solicitor, 1 witness, 1 Swift boss & 2 unknowns)

We had a half hour session before lunch when it was agreed that the law was not in doubt, so no need to argue whichs laws applied or which were suggested to be broken.

 

My statement of evidence which had been previously supplied was agreed as being submitted & accepted as my arguement.

 

The defendant's barrister then began questioning my in the witness box over a number of points mainly on me being aware of the terms of the contract at the time of signing it. Then we broke for lunch.

 

When we commenced again the barrister continued mainly about me knowing what I had gotten into. To which I totally accepted & agreed that they were intitled to charge me for my breaches but my only arguement was that the charges applied were inflated for profit etc, etc.

 

Then the barrister called their witness & they proceeded to lay out their defence consisting of but not limited to

1. Other lenders charge the same.

2. The banks charge them

3. There's a lot of manual intervention.

4. They loose money on accounts with poor payment records.

 

Then I got my chance & if I do say so myself I think I gave an excellent performance.

I believe I shot down everyone of their arguements. I had the witness backtracking on what he had said, having to retract parts of what he had said. I Had him having to admit that some previous statements he had made in the witness box where infact untrue & I proved that the large amount of manual intervention claimed by the defence didn't amount to much after all.

 

Then the big one, the defence claimed that the missed or late payments on accounts cost them money, they lost money on those accounts & it ate into their profit margin made from the interest rate.

So when I asked the witness what their true costs were in relation to the charges applied to my account. The defence claimed they did not know their exact costs.

 

However in the witness's own written statement submitted to the court it stated that Swift carried out regular reviews of the Credit Control Department & had done so in spring 2004 whereby it "showed that there was parity between the income received & expenses incurred from the credit control function." Totally contridicting the witness's previous statements.

 

When pressed to produce a copy of that review. The witness refused claiming it was commercially priviledged information. I asked the judge could the witness be forced to produce the review. The judge said yes if I issue an order to do so.

 

After some more picking apart of the defence I summarised by saying that the arguement came down to the defence's claim that the credit control department only broke even from the charges. My claim that the credit control department was making a profit from the charges and the only way settle this, was for the defence to produce the review report, which they were refusing to do. So I was asking the Judge to make an order forcing them to do so.

 

Then came the bombshell.

 

To cut a long story short. In the judges summary he said that even though the defence was refusing to had over a copy of the charges review, he had to accept that the credit control department was not making a profit because the witness for the defence said so.

 

However, if I (the claimant) had of previously submitted an offical application for a disclosure order, and not just asked for one on the Allocation Questionaire. Then even if it had not been previously actioned, he would have issued it there and then. But unfortunately the time had passed to submit such an application so therefore he was left to strike out my claim.

 

He then ordered me to pay £500 in costs to the defendant.

 

The lesson to all of us is to have "an official application for a disclosure order" submitted with our claims.

Had I have had an application submitted the judge would have issued it & you & I both know that the defence would not have produced the information, thus conceeding & I would have won.

 

Barry

[GraemeC]

Humm, there must be an avenue of appeal on this one - new evidence prehaps if the charges review was to be disclosed??

[MARTIN3030]

Will draw this to the attention of the other Mods.

We need to obviously take stock of this if in fact there are lessons to be learned.

I expect you will get some feelings about this too and whether there are further avenues to go down in your case.

A bad day at the office tho.....despite all your efforts.

You are to be commended for this.

[ellielou]

Well done Barry, you sound like you did really well - despite their attempts at intimidation, bringing 6 people along!!!

 

Why bring 6 people along if they thought this was going to be straight forward - if they're so sure they're on the right side of the law - why turn up with so many people?

 

Hopefully you can appeal this one & get them to present thier actual costs.

 

What is an application for a disclosure order by the way?

[Rooster-UK]

Sorry to hear of the outcome.

What an absolute bummer.

[tallchap]

Barry

 

Bad news on that though you did v well 6 versus 1. Did the judge give any decision on the ERC element, or did he strike the claim as a whole ?

[paulpb123]

Barry,

Really sorry to hear this news. Sounds like you represented yourself extremely competently in what turned out to be a very unequal fight in the end. I thought the Civil Procedure Rules were supposed to ensure that both parties are on an equal footing. Can you/do you want to appeal?

Paul

[Barry Paul]

Thanks for your support Gramec, Martin3030 & rooster

 

ellielou the application for a disclosure order is where you ask the court to make an order forcing the bank to had over the information about their actual costs. But maybe one of the mods would like to pick this up in more detail?

 

tallchap I did not claim the ERC this claim was for the other charges in order to keep it below 5k. I started my ERC claim a few weeks ago & the court papers are due to go in today.

 

Thanks again for the support.

 

Barry