Penfold V HSBC

[Penfold92]

This is what I am handing into the Court on Monday morning:

 

The Court Manager

RE: Claim number XXXXXXX Issue Date: XX July 2007

 

Dear Sir/Madam,

 

We received our copy of the defence yesterday. We would like to request that the District Judge not allow the Defendant to continue to abuse the legal system by time wasting. We are also aware that there are a large volume of claims that consumers are bringing against the high street banks. We are also aware that to date that HSBC have failed to defend any case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

Personally, we believe that HSBC is merely abusing the legal system, like so many other banks, and we ask you to ask the Judge to throw out the case as an abuse of the legal process like many other Judges are now doing. Failing that then we, the Claimants, respectfully suggest that special directions may be made as per the enclosed draft order. We think that this would expedite the matter, which will hopefully lead to an early resolution and therefore making a court date unnecessary altogether.

We are also aware that many Banks are now using the Office of Fair Trading Test Case as another excuse to issue a stay against cases. This again is merely their attempt to stall the legal system. We are aware that many District Judges are not agreeing to these as per the letter written by the Deputy Head of Civil Justice who wrote to all Designated Civil Judges, inviting them to consider staying outstanding claims on a case by case basis as appropriate.

The Claimants believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

Yours faithfully,

 

 

 

enc: Draft Order

 

Draft Order for Directions

 

 

1. The Claimant shall within 7 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 7 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defense will be struck out without further order.

I hope this will be agreed by the Judge and so we can keep the whole thing moving,

Penfold

[Audreygreeneyes]

firstly and only my view but i would change it around make them serve on you first............ then you on them. my reason for htis is that they will fial to do so, which thne gives you the open door to ask for it to be struks out unde the courts on civil procedures rules...........

 

you also need to put in their part FULL DISCLOUSURE of the composition of the charge/fee

 

We are also aware that to date that HSBC have failed to defend any case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

change that to abuse the court process

We are also aware that many Banks are now using the Office of Fair Trading Test Case as another excuse to issue a stay against cases. This again is merely their attempt to stall the legal system. We are aware that many District Judges are not agreeing to these as per the letter written by the Deputy Head of Civil Justice who wrote to all Designated Civil Judges, inviting them to consider staying outstanding claims on a case by case basis as appropriate.

The Claimants believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously

work in here somewhere that since the OFT & FSO and MOR statements of the 25th & 27th July where in the defendant stated they would no longer be setteling these cases...... quote 7QZ33778 & 7QZ26454 and that you know of at least 3 further case which you have nto yet got the reference numbers have all had offeres and been settled between the 03.08.07 - 10.08.07.

if oyu can also work in that they also settled with Barclays the other day in london... this is clear "abuse of process"

apart from that it look really good well done.......Age

 

 

[Penfold92]

Thanks so much Age,

 

I have worked those little things in. Let's we what happens...

 

Penfold

[Penfold92]

Just to let you guys know,

 

I dropped the letter and draft Directions in to be told by the lady at the counter that all bank charge cases are being automatically stayed in Luton now. I did ask if the judge would see the letter and she said yes, but she gave me the impression that it would be stayed anyway...

 

Oh well,

 

Penfold

[Penfold92]

Update:

Got the General Form of Judgment or Order today to say that the District Judge has said the following:

THE COURT OF ITS OWN INITIATIVE ORDERS THAT

1 This claim is stayed until 31st March 2008 with a view to awaiting the decision in the test case

2 Either party may apply at any time, by application on notice in accordance with CPR 23, to life the stay

3 If no such application is made, the court will give directions of its own initiative on the expiry of the stay

I have of course submitted an application to set aside the stay. I will keep this updated if I succeed. I notice from reading other posts that HSBC do have cases going through and even settling cases still. I hope the judge reads the file properly and notes that because I did also add that bit in my application.

Penfold

[Penfold92]

UPDATE....

Filled my application to have stay lifted and phoned the Court today to hear that the Judge has agreed to a hearing.

Is this good news or not? Anyone know if this is normal as I thought he would either agree to set aside or deny it....Also will I have to pay the extra for a hearing or is this the Judge’s decision so nothing more to pay?

Thanks,

Penfold

[Penfold92]

Morning guys,

 

Long time no hear...

 

Well, the stay with HSBC has now come to an end and they have written to the Court to extend it, however, on ringing the Court it appears they have not got that letter.

 

The Court advised me that they are waiting to hear from either party as to whether it is proceeding or not...I find that unbelievable as surely the file should be linked to the date to automatically go back to the Judge, but then hey that's our Legal system I guess.

 

So what should I do? I guess I should just write again the same stuff I wrote before regarding the stay ending and no obvious solution on the horizon and so I wish to proceed to a full hearing?

 

The Court Manager

RE: Claim number XXXXXXX Issue Date: XX July 2007

 

Dear Sir/Madam,

 

We are aware that the stay placed by the Court has now expired. We received a letter from the Defendant's solicitors explaining they will be applying to extend the stay once more.

 

As far as we are aware HSBC have still failed to defend any case in the courts and that they have been using the court process to extend and delay the period of time within which they deal with these matters satisfactorily. This is surely against our Human Rights to have this dispute resolved expeditiously?

 

Personally, we believe that HSBC is merely continuing its abuse of the legal system, like so many other banks and we humbly ask the Judge to throw out this application to extend the stay.

 

We are also aware that many Banks are still using the Office of Fair Trading Test Case as another excuse to issue a stay against cases in the County Courts, however, Mr. Justice Robert Smith agreed that the OFT could rule on the fairness of the charges. So a precedence of sorts has already been achieved. We will this again is merely HSBC’s attempt to stall the legal system.

 

The Claimants believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

Yours faithfully,

 

 

 

 

 

enc: Draft Order

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

1. The Claimant shall within 7 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;
  

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;
  

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;
  

• d) Copies of decided cases and other legal materials to be relied upon.
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

2. The Defendant shall within 7 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;
  

• b) Whether such charge is accepted to be a penalty, and if not why not;
  

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;
  

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.
  

• e) Any witness statements.
  

• f) Copies of decided cases and other legal materials to be relied upon.
  

If the Defendant fails to comply with this order, the Defense will be struck out without further order.

[Penfold92]

I don't know if anyone has seen this yet and sorry if you have, but this looks promising...

 

BBC NEWS | Business | Bank plans for overdraft refunds

 

Penfold

[Castlebest]

Well with the government as the major share holder they will have to be seen to be doing the right thing however I'm not holding my breath

[johnnymitch]

Hi penfold , nice to see you posting again

 

Someone did post this on the

 

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/135299-oft-case-new-post.html

 

this morning and there are some follow-up comments there too.....

[Penfold92]

Hi Pete and johnny,

 

Yup still around...just...

 

I agree with Pete though, not holding my breath either, but sounded nice anyway,

[johnnymitch]

Just heard there's to be a Bill in the House about 'Treating Customers Fairly' instead of just a Bank Code ..... which they regularly break

 

Might make a difference ..... and give the judicial system a nudge to make a decision in the OFT case

 

Then again as pete says ....... don't hold your breath...just yet anyway .. lol !

[Penfold92]

Quite Johnny!

 

I know it has been mentioned before, but Mr Brown should really nudge them as a few grand in a lot of peoples pockets right now would help them with their "spending" and that is exactly what the country needs....isn't it?

[johnnymitch]

Absolutely, penfold .....

 

And as it's probably our (tax) money that the banks are getting to pay us back ...... at least we'd all get some benefit out of it , eh ?

[Penfold92]

Well after a long absence decided to come and see if anything new has been happening on the "stay" front? Any new angles of attack and if not what are the dates we are waiting on now? Last I remember the OFT were going down a different route, but I kind of got lost in other things and forgot about the case completely. Hope all the oldies are good and still around?

[freakyleaky]

Hi Penfold. Glad to see you haven't forgotten us.

I'll try and find some info for you re stayed cases.