Becci v HSBC ****WON****

[syds mum]

How soon after your judgment arrived did you get your application for set aside and stay? I imagine this will be the only time DG pull their finger out and move quickly!!

 

becci

 

hi becci... it was 16th august i got judgement and by 31st august DGs had put in set aside!!! you are correct they do move when you have judgement against them... funny that eh!!!

 

in court tommoz and cant bloody wait!!!

 

debbie xx

[becci]

unbelievable isnt it!

 

I phoned the court today and they said you can apply for a WOE any time after you've got judgment...you can even apply for a WOE at the same time as you apply for judgment, which might be worth knowing for anyone at that stage.

 

BUT obviously DG are pretty likely to apply for a set aside...so I might just be wasting my WOE fee (the fees have gone up as of today apparently but I don't know the new figure)...the nice court lady seemed to think it would be worth waiting a few days but Im not so sure... she said she would send me all the stuff about WOEs in tonihgt's post so should have it tomorrow

 

any ideas?

[jowalshy]

Hi becci, you can find all the info about WOE on the H M Courts web site. Here is the link:-

 

Warrant of execution

 

It also has a link on there for the fees to pay. Whether this has been updated or not I don't know.

[becci]

I'm in 2 minds whether to go for the WOE or not as the lady at the court said DG are virtually guaranteed to apply for set aside, in which case my WOE fee will have been wasted.

 

Does anyone know of any cases where they've got their money after a WOE? I've found one but it was Abbey.

 

In the light of debbie's win I would feel a bit more confident arguing that it shiould NOT be set aside, as our cases are v similar, but maybe I should just go for it with the WOE?

 

Help!

[syds mum]

hi becci the thing is that as you say WOE is gonna cost you and they could still apply for set aside.. when you in court love???

 

the way i see it is that it would have cost them a least £600 for barrister to come for day in court for mine and then all her expenses... so maybe they could realise it would be better to settle before the hearing if they have time!!! hence question re hearing..

 

oh god... just realise you haven't got a hearing yet have you!!! dah... sorry losing it love... but still think same how long do they have to pay up??

 

debbie xx

[becci]

hiya debs, my judgment just says:

You must pay the claimant a total of £2303.18 forthwith.

so there isn't actually a deadline for them to cough up, and it was dated 28th sept so theyve had a week now to do something...I suppose at least if I go for the WOE then it will spur them into action and we can get things moving towards the hearing...who knows, maybe in the light of your win they'll realise they're fighting a losing battle and just pay up...

 

I think its probably worth the WOE fee to get things moving

 

becci

[Castlebest]

Becci, the way DG have been submitting things to your court the Bailiff will have been and stripped your branch for the cash by the time they try to get the judgment set aside

 

pete

[syds mum]

i have to argee with pete... (more than my lifes worth to argue oh great one!! LOL) but they are a bit slow....

 

as regards to pay up time on your judgement at bottom in small print it should say they have 28 days in which to pay you and have cleared funds in your hand!!! it will make it 28th october which is a sunday so will need to get a cheque to you by 18th october (cos it SUPPOSE to take 7 working days to clear) or credit your account on the 26th october (friday) so they haven't got long to get their finger... trouble with DGs is you cant contact them as its a answer phone message... unless you write and we all know they respond really quickly to letters!!!!

 

not sure if you can claim back fee for the WOE i would have thought you can as its part of the process,.. but not sure love!!!

 

by the way just realised that when i posted regarding how long it took to get their application for set aside in on my claim it was actually 21st august not 31st... so was 2 working days... after they got my judgement... so if you heard nowt makes you wonder don't it???

 

 

debbie xx

[becci]

yep I think you guys are right, so I've got my WOE request form ready to take to the court tomorrow. Its ever so funny, I've had to fill in what hours the branch is open so the bailiff can make sure he catches them! My office is right opposite the bank so I'll be able to watch out of the window...tee hee!

[jowalshy]

do you have a camcorder to record it????

[becci]

great idea jo, then I can post it on here so we can all have a laff!

 

I've just been reading Getmyrefund's thread and once he/she had got her judgment DG wrote saying they had instructed HSBC to pay up. That sounds encouraging! I expect there is a letter just like that for me stuck in the post somewhere...

[jowalshy]

Its a shame there is a postal strike at the moment.

[syds mum]

hi becci so you haven't had a set aside yet then.... they are getting sloppy.... think they only have 7 days from order to apply set aside could be wrong but thats the impression i got from my hearing!!!

 

colud be good news love...

 

 

debbie xx

[becci]

hmm they seem to have been pretty sloppy from the start with my case!! Its odd that on my judgment there isnt a date by which they have to cough up...it just says "...must pay the claimant £x forthwith..." which is a bit woolly and could mean anything...

 

using the 7 day thing they had til last Friday to respond, so I spose they could've done and its just stuck in the post...another excuse for DG to try it on methinks!

 

Im thinking I'll get my WOE request to the court in the morning pronto...gotta be worth a try...

[Castlebest]

I would move as fast as possible it will be hard to reverse anything if the bailiff has been and gone

 

pete

[becci]

Aaaaarrrrghhh!!! the buggers!! just when I thought it was all going well I got the letter from DG enclosing a copy of their application to have the judgment set aside. Its pretty much about 10 pages of crap, but the basics are:

 

We DG Solicitors on behalf of the Defendant HSBC Bank plc

intend to apply for an order (a draft of which is attached) that

(I) the judgment in default dated 28 September be set aside and the Defence struck out in the Order dated 3 July be reinstated on the basis of CPR r3.3(5) (setting aside order made of court;s own motion) and/or CPR r3.9(relief from sanctions) and/or CPR r3.1(2)(a)(extension of time) and/or CPR r3.1(7)(power to vary or revoke order);

(II) the claim and/or alternatively the hearing of outstanding issues including quantum be stayed pending the final determination (including, for the avoidance of doubt, any appeals) of the Commercial Court proceedings issued on 27 July between the OFT and the Defendant (and seven others) comprised in Claim No. 2007 Folio 1186 (the Test Case) it sounds to me like they don;t know what they're going to be relying on yet, so they;ve just stuck everything in there to hedge their bets

 

because:

 

(1) insofar as the application is based on CPR r3.3(5) and/or CPR r3.9 and/or CPR r3.1(2)(a), the sanction of striking out the defence for the defendant's failure to provide certain particulars of Defnce by 31 August 2007 is disproportionate, particularly in the light of the fact that (1) such particulars require extensive legal analysis and the application of those matter in each case to a range of charges, terms and conditions levied at various times, (2)the particulars of the legal analysis are,however likely to be properly considered in due course in relation to the Test Case and the final determination of which Test Case is anticipated to be determinative of the substantive issues i the present proceedings and (3) it would be appropriate in any event to stay the determination of the quantum issues pending the final determination of the Test Case, at which point iot is anticipated that the particulars of the legal analysis would be available so why if you knew it was going to take you ages to get the stuff together didnt you ask the court for an extension at some point? lets face it, you've had plenty of time, guys!

 

The Claimant is unlikely to suffer any prejudice from the proposed order since (1) the Defendant anticipates that, if the Defendant had complied with the Court's order to provide such particulars by 31 August 2007, such proceedings would have been stayed pending the final determination of the Test Case, (2) it is appropriate to stay the hearing of the quantum issues pending the final determination of the Test Case, and so the claim will not be concluded until that time in any event; (3) depending on the outcome of the Test Case, in the meantime the Claimants will be adequately protected from prejudice by the continuing accrual of interest. Conversely, the prejudice to the Defendant if the Defence is not reinstated is immediate and obvious. "unlikely to suffer any prejudice"? are you having a giraffe, mate?! so the small matter of 2 grand wouldnt make the slightest differences to my finances, no?

 

Insofar as the application to set aside the Judgment in default dated 28 September 2007 is based on CPR r3.1(7), the issue of proceedings in the Test Case amount to a material change of circumstance justifying the variation or revocation of the Order dated 3 July 2007.

 

The Claim should be stayed pending the final determination of the Test Case because:

 

(1) the issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for determination in the context of small claims; so why have you not brought this to the court's attention before and referred it to high court?

 

(2) those isssues of principle will be resolved by the Test Case, including a hearing of Preliminary Issues fixed for 8 days in January 2008; the Preliminary Issues could not be finally determined any more swiftly via the County Courts in the light of the time required for appeals; HA HA HA it would have been determined AGES ago if you chumps had done as you were told!

 

(3) the Test Case represents the most efficient and proportionate means to resolve those issues in an expedious fashion; what a joke! what are the chances of anything being resolved efficiently OR expediously when DG are involved?

 

(4) a stay of the proceedings is consistent with the approach of the Financial Services Authority adn the Financial Ombudsman Service, which has decided not to progress complaints about current account charges unti;l the outcome of the Test Case is known;

 

(5) many other County Courts have taken the approach of staying equivalent cases in a context where a uniformity of approach across the country is desirable; and NO: some courts have stayed all equivalent cases but many, including mine, have not!

 

(6) it is a common practice for County Courts to stay proceedings pending binding and authoritative resolution of an issue (or issues) or principle by a higher court: see, for example, Wilson v Robertsons (London) Ltd [2002] EWCA 622, paras 9 to 10 (per Chadwick LJ)

 

There then follows a lengthy Witness Statement (with a couple of blank pages somewhere in the middle...) by Michelle Orton of DG (never heard of you love). I won't reproduce it in full unless anyone would like me to, but point 10 made me laugh my socks off:

 

(10) It may assist the Court in understanding the Defendant's failure to comply with the Directions Order to explain its effect. Despite its relative brevity and the apparent simplicity of paragraphs 3(a) to (d) thereof, the impact of thi Directions Order is extremely onerous for the Defendant. The legal and factual issues raised, and to which the Directions Order requires answers, are extremely complicated, and, I would respectfully submit, would be more appropriately dealt with in the test case referred to abvoe blah blah blah oh bring out the violins, peeps! again, why have they only just realised this?

They then attach the draft order (2 identical copies of it actually!):

 

It is ordered that:

 

(1) the Default Judgment entered against the Defendant on 28 September 2007 be set aside and the Defence struck out in the Order dated 3 July 2007 be reinstated

 

(2) the present proceedings be stayed pending the final determination (including, for the avoidance of doubt, any appeals) of the Commercial Court proceedings between the OFT and the Defendant (and seven others) comprised in claim no 2007 Folio 1186

 

Both parties shall have liberty to apply.

 

So I imagine I;ll be waiting for a new hearing date then and, in the meantime, the Civil Procedure Rules will be my bedtime reading!

Ho hum.

[Castlebest]

Happy reading Becci

 

Have a look what Syd's mum did when they tried to set aside her judgement.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/102662-hsbc-bank-charges-court.html

 

pete

[syds mum]

hi becci... took their time didn't they!!!

 

it looks almost the same as mine except the dates!!!!

 

for a start the CPRs dont apply to the order they are trying to set aside as they only have 7 days after order is issued to revoke or vary it..

in other words they should have done it by 5th october.... they could argue the postal srike but as always they could have handed it in to court by hand!!!! and if i remember right someone was in derby corut last week and DGs didnt turn up!!!! the order they refer to dated 3rd july is that your directions order??? and was it made on courts own motion???

 

you asked for judgement so they cant use CPR3.5 as that is only if order was made on courts own motion!!!

 

they cant ask for relief from sanctions because they were never going to defend in the first place as all cases before test case was announced, that reached court were settled just before the hearing... judge made a piont of this in my hearing!!!

 

tell you what love i will send you all my argiments and you can see for yourself what i put!!! pm me your e mail and will sort it out...

 

have you found CPRs if not they are in my sig at bottom of this post in red!!!

 

speak soon love

 

debbie xx

[syds mum]

hi becci did you get the e mail i sent last night with arguments in??

i have a few things in my sig in above post at bottom... that will make sense when you read the response..

 

just yell if you need owt else love..

 

debbie xx

[becci]

Hi debbie yes got it thanks, I tried emailing you but it kept bouncing back to me for some reason...

 

have got about half way through amending it to apply to my case, I can;t tell you how helpful it is having someone who's "been there,d one that" and done all the legwork - I feel like a bit of a cheat!

 

I tell you what, its all makes so much mjore sense when you actually read through the CPRs, you can see what a load of old rubbish it is that they've sent to me. even the witness statement is virtually word for word! Both yours and mine have been sworn by someon who is a "Paralegal" ie an unqualified legal professional - looks like DG are so swamped they're getting some office monkey to do them (sorry Michelle Orton, whoever you are HHAHA!)

 

Heres hoping my hearing will be sooner rather than later and not in January, like someone else's was

 

becci xx

[syds mum]

no probs becci glad it helps... does make you laugh re being the same they cant even be bothered to read peeps cases and just send out templet arguments with the date changed... the person named on my documents wasn't the person who showed up in court either....

 

happy reading and if you need any surporting documents just shout up i have got them all..

 

keep us informed love..

 

debbie xx

[syds mum]

hi becci

hows it all going have you had hearing date yet and what you up to?? we need to keep on top of this as someone just been with same sort of case and unfortuntly she had her judgement set aside.... want to make sure you are up to speed!!!

 

debbie xx

[becci]

hi debbie & everyone

 

I've finally got my hearing date through...22nd January!! What an absolute joke...thats AFTER the test case!

 

I had exams last week (tax...urgh) so have had to leave the bank charges stuff on the back burner for the last few weeks. As it happens I neednt have worried...looks like Ive got plenty of time to prepare...

 

becci

[Castlebest]

Hiya Becci, the court dates are getting later and later unfortunately. Just have to wait and see where the test case seems to be going when your date comes around .

[syds mum]

hi becci sorry been a while... i too have been extremley busy else where!!! at least you are still moving... could be interesting re after test case court date.. if test case does start when we all expect... keep us informed love..

 

debbie xx