Ok - So I finally have an update after being very confused as to what was going to happen next! through the post came a "General Form of Judgment or Order" and this is what it said:
Before DISTRICT JUDGE A S JONES sitting at Warwick County
upon reading the court file
IT IS ORDERED THAT
1. The claim is stayed until further notice order to await the final determination including (for the avoidance of doubt) any appeal of the claim between the Office of Fair Trading and eight defendant banks issued in the High Court of Justice on the 27 July 2007 Number Folio 1186.
2. Either party may apply upon not less than 7 days written notice to lift the stay.
3. The case shall stand struck out if an application to lift or extend the stay is not received by 4pm on 31 December 2008.
4. This order has been made on consideration of written objections filed by the claimant which have been rejected for the reasons set out below. If the claimant seeks a further opportunity to make representations at a hearing he must file a written request with the court including a time estimate which is to be agreed with the defendant if possible. An order for costs may be made at the conclusion of any such hearing.
REASONS
Human Rights
It is understood that the test case is due to be heard in the two weeks commencing the 14 January 2008. Having regard to the complexities of the issues raised in the test case and in this claim and having regard to the obligation on the court to allot to this case an appropriate share of the court resources, while taking into account the need to allot resources to the other cases the stay does not contravene the requirements of Article 6 of Schedule 1 to the Human Rights Act 1998.
Blanket Stays
The stay in this case is imposed after giving an opportunity for representations to be made and after consideration of those representations. It is not a blanket stay.
Distinguishing factors
Paragraph 2 (3) of the claim form int he test case states that the banks have contended that the relevant charges are for services, rather than for breach of contract, and are not capable of amounting to a penalty at common law. It is therefore open to the High Court to clarify whether the terms of the contract in this case (as varied form time to time) constitute unlawful penalties. The Particulars of Claim (at paragraph 21) also plead that the relevant terms in the current and historic agreements covered by Regulations 6(2) of the 1999 Regulations. This is inconsistent with the terms amounting to penalty charges at common law.
Balance of convenience
The stay does not prevent the claimant from recovering money due to the claimant if, at the conclusion of the test case, it is found that the claimant is entitled to any money. At least two District Judges have found that claimants are not entitled to refunds and it would be inappropriate for this case be tried on the basis of legal principles which have yet to be clarified.
If the claimant contends that the defendant is acting unlawfully in its handling of information the claimant has his remedies elsewhere. He's under no obligation to remain in a commercial relationship with the defendant.
Defendant's notorious conduct
The way in which the defendant has conducted or resolved other cases is immaterial to the legal merits of this claim. If the claimant believes that he has a case for striking out the defence as an abuse of the process of the court, or that he is entitled to summary judgment, he may make an application on notice including a request to lift the stay for the purpose of application and take the risk in costs if he is unsuccessful.
The overriding objective
The factors put forward by the claimant disregard the need for the court to have regard to proportionality of the importance of the case and complexity of the issues. It also fails to take into account the need to allot an appropriate share of resources. Weighing the omitted factors in the balance the stay does not contravene the overriding objective.
The status quo
The issues raised by the claimant simply rehearse submissions that he has made previously.
Conditional orders
On the balance of convenience it is not appropriate to restrict the future activities of the defendant in connection with its contract with the claimant. The claimant is under no legal obligation to remain in a contractual relationship, and if he chooses to do so he can avoid the imposition of further charges by not (on his case) breaching terms of the contract. There is no evidence at this stage to suggest that the defendant intends to commence proceedings to enforce those aspects of the contract which are currently subject to dispute in the test case. It is not certain that the claimant will succeed, and if the test case concludes in favour of the claimant he can anticipate that he will be reimbursed for all unlawful charges, interest thereon, and the rectification of any records relating thereto.
Precedent
The above reasoning is persuasively supported by the judgment of HHJ Iain Hughes QC in the Winchester County Court in Heynes v HSBC Bank plc and Alliance & Leicester plc Nos xxxxxxxx & xxxxxxxx.
aaaaaaaaaaaand breath!
So not sure how goos this is looking, is it a case (excuse the pun) of waiting for the results of the test case?
Any help would be appreciated!
Cheers guys, I need a stiff drink!
