JimboJones Vs HSBtotheC

[JimboJones06]

haha - I thought that when I walked into the building "I wonder if their going to kidnap me and torture me to give up!" but no such thing, very pleasant in fact! lets just hope they forget and get struck out!

[JimboJones06]

How will I know if they have submitted there bundle? I guess I'll get a copy?

[Castlebest]

Does it say on your directions they should send you a copy? if not phone the court on the day after the due date and ask if the court has received it

 

pete

[JimboJones06]

3) The defendant shall by 4.00p.m. on 5th October 2007 send to the claiment and to the court a response to the claimants schedule, stating in respect of each item claimed

 

So yeah I guess they will send me a copy once their off their A**

But lets hope not eh!?

[Castlebest]

Fingers crossed Jimbo makes life a hell of a lot easier if they dont

 

pete

[pinkduchess]

not partying tonight? or are you saving yourself for tomorrow?

[jowalshy]

Get ready for the 5th at 4.01pm. If they haven't done what they are supposed to go for judgement

[JimboJones06]

will it pretty much mean I should get my money or is that just wishful thinking?

[jowalshy]

I wouldn't count your chickens just yet. Wait until the 5th. If they don't comply, go for judgement but do remember that they could possible try and set this judgement aside. Just make sure that you are one step ahead of them at all times.

[JimboJones06]

when you say go for judgement, what exactly does that mean Jo?

[JimboJones06]

Oh and sry PD yeah I was partying but only on the Sat night this time, had to save myself, though I didnt see much of sunday as I didnt get in until 5am!

[jowalshy]

Going for judgment is when you apply for judgement eg. you ask the judge to award in your favour as HSBC has done nothing.

I will try and find a link for you (unless someone else beats me to it)

[jowalshy]

Right the form you need i s N227:-

 

http://www.hmcourts-service.gov.uk/news/forms/docs/n227_0406.pdf

 

and here is a few other useful links as well (if the judge lets you have judgement:-

 

http://www.consumeractiongroup.co.uk/forum/general/66182-how-enforce-judgement.html

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/99563-got-judgment-how-get.html

[JimboJones06]

Thanks Jo, so do I just fill out the request for judgement form and take it to the court tomorrow just after 4 if nothing shows by then?

[jowalshy]

I would give the court a ring in the morning, just after lunch and then just after 4pm. Ask them if DG have done anything, if they haven't when you phone at just after 4pm pop down there with your judgement form. Just remember that the judgement still has to go before a judge for it to be ok'd.

[freakyleaky]

Any news Jimbo?

[Catlover64]

I second that! I'm dying for someone to nail these bar stewards rear ends to the wall....

 

Please let us know if/when the bailiffs go in. Could do with a laugh!

[JimboJones06]

Hiya sry for the lack in response! well DG should have had their bundle in by the 4th! which is when I phoned the court, I said to the lady at the court that the defendant had to hand in what the judge had asked for (bundle) by the 4th, which they hadnt, I went on and said that is there a possibility the case will be struck out and can I apply for judgement?? she told be that there is a backlog of cases and the judge will be giving out directions as to what may be needed next, next!?!?! I want my money!! it just felt like I knew more than she did on whats going on! she said that the defendant was applying for a stay which I quickly responded to by saying that when I got my bundle in by the due date, I also handed in my objection to a stay, if one was applied for (which it hadnt been at the time!)

 

I just dont know where I stand now, havent heard from the court, last time I called them was about a week ago and same sort of thing really

[freakyleaky]

Good to hear from you Jimbo.

 

I would keep in touch with the court and try and get a definate answer as to the status of your claim. The court staff are there to help you and should do all they can to keep you updated.

 

I think you could apply to have the case struck out on the grounds of not complying with th courts directions. I will have a scout around and see what you can do.

[JimboJones06]

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!

[JimboJones06]

And yes that was all typed ^^^ ah sore finger!

[Castlebest]

Well he has detailed his thinking and has made his decision on the merits of your apeal :-? the only thing I can see that you could argue is this

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.

 

I think the Carlisle v Clydesdale case superceeds Heynes v HSBC My understanding of Carlisle v Clydesdale is that it is precedent, by virtiue of the fact that Judge Behrens was sitting as a Judge of the High Court at the time, not considering an appeal at a County Court.

Having said that the case was still stayed but it does limit the bank collecting any overdraft which is outstanding.

 

pete

[JimboJones06]

Its been a while guys & girls and havent heard anything new, still not sure what I should be doing except waiting

 

Could somebody shed some light thank you please, as I can see this just going downhill from now on

[Castlebest]

Hiys Jimbo, unfortunatly your right, all we can do is wait :-| as for things going downhill I think there are many reasons that cant happen, the most important one is the sheer number of us who are in this situation.

 

If you fancy spending 50 pence to show your support have a read of this thread, would be so good to get this to number one in the chart

 

http://www.consumeractiongroup.co.uk/forum/announcement.php?f=22&a=114

 

pete

[pinkduchess]

i kinda missed that bug ....jo - bet you cant sparkle that up !!