Groovycaz v The unCooperative Business Bank

[groovycaz]

Hi all,

got all my docs together, made a list of all dates from beg to end, made sure ive got the letter from the set aside hearing on the 25th Oct which they were not opposing, wonder why they then didnt get into court a proper defence, got good arguments together and feel quite confident..Gc

[groovycaz]

Hi all, what a complete nightmare, got to court, the bank had 3 solicitors there, on my court form the hearing was to hear the claim, 2 hours allocated, their solicitor asked for the hearing to be changed to a limitation hearing and the judge agreed stating if she was doing the case management thats what she would have ordered. I didn't go prepared for a limitations hearing and only had a small section in my bundle regarding the limitation issue, I argued that I could not have been aware of the banks unlawfull penalty fees until April last year, the bank argued that they were not penalty fees, that they were in fact fees for a service, they stated that as per the terms and conditions (which no one had a copy of) I agreed to pay those fees, I stated that I agreed to pay the fees because I did not know at that time that they were unlawfully taken from my account, The judge agreed with the defendant in stating that I knew when I did not have enough money in my account when running my business that any I would be paying those fees therefore the limiataion period should begin from 1996 which meant my claim was statute barred,

The question is this, because I agreed to pay the fees in 1996 because I had no choice and did not know at the time that these fees were penalty fees and therefore unlawfull, how can the judge claim I should have known, and was I expecting the bank to give me legal advise of whether the fees were lawfull or not, she made reference to my agreement in the terms and conditions, yet there was no terms and conditions for her to refer to, their solicitors stated that there is no law that states that the fees charged by the bank are penalties, I stated that the Law is clear, if the fees are not a true estimate of the actual cost to the banks loss, then thay were in fact penalties, the judge did not agree and found in favour of the defendant, the judge was wrong in her claims, can I appeal:-x ...Gc

[photoman]

Groovy

 

Have you PM'd any of the Mods ?

 

PM

[elsinore]

can I appeal

 

It all depends what the order says, probably yes. If you can't wait for the paper copy to arrive, call the court and ask them.

 

Els

[zootscoot]

If you wish to appeal you should generally ask permission on the day of hearing. However, if you have not requested on the day there is generally a short period when they will allow you to ask for leave to appeal. You would need to demonstrate that you have grounds for appeal. Being insufficiently prepared does not count as grounds, although the fact that the court had not stated that the CMC would cover limitations may be sufficient as you would not be expected to be adequately prepared for it. You also need to consider the costs implications of an appeal. If unsucessful and in the small claims track costs are limited to £1,000. However, if fast track costs could be considerably higher.

[groovycaz]

Hi PM an d Els, no I havent PMd anyone yet, do you think I should, I was looking into the rights of appealing a small claim and I think you can if you have a good enough reason, not just because you think the decision is wrong, Ive now had time to reflect on the hearing and I lost before I went in, what I should have done is ask for the case to be adjourned as I was unprepared for a limitations hearing, I also believe that I should have been informed that the hearing was for the limitation issue, I was completely unprepared, I could not believe it when they sent 3 lawyers, they had also faxed documents into the court the day before which I was unaware of, The judge asked me if I needed 5 mins to get my thoughts together regarding the limitation issue, but I said I was aware of the points Id raised in my PoC, citing 32 (b) which their lawyer made a big deal of by stating that I was making a very serious allegation, 1 step down from alleging fraud, the judge would not allow me to address the penalty issue at all yet allowed their lawyer to show 2 statements which showed charges, however these charges related to management time, not penalty fees for any breaches, when it was my turn to speak I stated that the bank was a multi national company, that I believed they had full knowledge that the fees they charged to my account were not a true pre estimate of the actual cost, but that they had in place a charging regime to enrich themselves and it was my submissions that they had in fact concealed this fact, on citing 32 © they were a result of a mistake the judge asked me if I expected the bank to give me legal advise, which I replied that I did not but that I expected the bank to opperate within the Law. I stated that the Law was clear about penalty fees, which she said we could not discuss The judge then went on to say that if any concealment or mistake was made by the bank, then I should have acted when these charges were applied in 1996, she looked at it from a completely different angle than me, as I claimed that I could not have known when paying these charges tha they were unlawfull and believed the bank were acting lawfully and knew they were acting unlawfully when they debited these charges from my account, she said that, the bank could not be responsible for my ignorance to these facts, that they were under no obligation to offer me legal advise (as if they are going to tell me that all the money they took from me was unlawful) and found in favour on both counts of the limitation issue for the defendant. I think I should have been given some direction from the judge as to my right to ask for an adjournment, instead of 5 mins to have a think about it, she had seen my bundle, which she said was very well put together so would have seen that there was very little included on the limitation act, Id already stated that the bank had offered to repay me charges back 11 years but she stopped me and said I was not allowed to mention this, they also removed 2 letters from my bundle, one was a without predjuce and the other was from the bank which should have been left in as it was an offer to pay compounded interest over 6 years, I really feel cheated at the way they went about the whole case, when they knew from my bundle, as Id stated in my letter of evidence that the bank had offered to repay all charges and that id accepted and it was my understanding that the issues were now about interest, they must have thought, if I had gotten past the limitation issue that I had a good case for CI, or why send 3 lawyers, Im going to appeal, even if I lose again it will cost the bank more money to pay their three lawyers again, Im not upset about it, I just really believe that it was wrong to change the hearing without informing me, leaving me completely unprepared, which I stated to the judge, her answer was, I asked you first if you needed time to get your thoughts together and you said you did not, I said that it wouldnt have made any difference as I had no case laws or enough information in my bundle regarding the limitation issue as Id believed from the Notice of Allocation to the small claims track was in fact to hear my claim as in my PoC, and had not been informed otherwise, I said that as a litigant in person I was not aware of the court proceedures or that they could change the hearing, without notice from one of a hearing of the claim to a hearing of the Limitation Act. The judge then said that she had made her decision...Gc

[photoman]

It seems to me that the judge has put the cart before the horse here?

 

It is intrinsic to determining whether or not any concealment or mistake has also occurred that it should first be determined whether or not the charges were lawful or not.

Only once that issue is determined, can it be examined if the defendant was also aware of this, and whether or not they chose to represent them as something other than they were, ie. if any concealment or mistake occurred at the time.

 

She seems to have stated that the defense should be afforded protection under the SOL as the charges were conceded by you due to you own failure to act sooner.

However, this could only be the case if they were represented to you at the time as what they truly were, and so should be countered by the fact that such mistakes and failure to act sooner only occurred as a result of their own misrepresentations, which were engineered to keep you ignorant of your rights of action.

You conceded to the charges as a result of these misrepresentations, and had no cause at the time to question such representations, even if at the time you had been aware of the laws on penalty charges.

It is only through events that have occurred over the last 12 months or so that you became aware of your rights of action, and you also became aware that you had been previously misled into not acting sooner.

[groovycaz]

Hi PM,

Im going to appeal the court decision, but if the court allow the appeal and we get another date for limitation issues, can you guide me in any direction which will help me get past this issue, Kind Reagrds and thanks Carol

[photoman]

Groovy,

I'll try to gather what I can, and help if I can (with the usual disclaimers) but I suggest you also read around the various threads on the subject, and also ask about.

Get a copy of the judgement, and analyze the relevant sections. Then start to work out some concise counter arguments and have them clear in your mind.

If I find any relevant case law, I'll try to forward to you too.

 

Pm

[groovycaz]

Thanks PM, Il have a good look about and get myself educated enough ti know what im taking on, Ive 30 days to appeal but want to get it in ASAP, once again thanks for your help Carol

[phatram]

Any news GC?

[groovycaz]

Hi, Phatram, well after my case was struck out in Dec I thouht about appealing whe my step father took ill and died on 31 Dec, anyway as next of kin I had all the organising of the funeral and had to take care of all his personal affairs, then empty his house (council) and OMG the stuff he had hoarded over the years!!!, so thats all out the way now, Ive just filled in and sent to the court an Appeallants notice form N164, appealing by way of case stated, ive done a lot of research and have lots of case notes, so if I obtain permission to appeal, I will appeal, I did not even have anyone managing my case, Ive got lots of evidence where the CPR were not followed, see what happens, keep you informed..Gc

 

ps how you getting on, have'nt been keeping up with things of late?

[groovycaz]

Forgot, its all there about the day in court in my other thread,

Business claim stayed but with the right to apply to have it setaside, in the stayed threads..Gc

[zootscoot]

Thread moved to the new forum for business claims