hsbc bank charges **WON in COURT post-OFT!!!**

[syds mum]

hi junkie just to be clear... you had not recieved yellow bellies bundle by 9th aug?? you should have asked for strike out on this day???? have you done this??? if not do it today and take down and hand delivery with all evidence of proof of posting and delivery(can get this online from royal mail,print off conformation) you can get judgement before they get stay in... would be stronger on hearing day if you have already done this...

 

debbie xx

[syds mum]

[syds mum]

got judgement today claim number 7qz76559

 

USE IT WISELY!!!

 

DEBBIE XXX

[Noddy73]

This is great news.

[lateralus]

ok, so go after the money before they try for a set aside.

[JunkiMunki]

hi all,

Court letter today granted Judgement by default , hearing therefore vacated,complete Judgement form and return to court so Judgement can be entered for you.

 

oh you lovely man, I thank you for granting my request for Judgement by default, but am thanking you for also taking the time to note all other reasons as to why I should be granted the Judgement and to also consider my request for Wasted Costs, for the time effort, stress and unnecessary cost to myself, regarding printing requirements, manual intervention of filing a bundle with regards to the defence given, this to be done in triplicate and referenced accordingly posted to defendant and to court within 21 days, have faxed K Ross advising her that I have requested that the court grant me permission to enter Judgement by Default due to the non compliance of an Order set on the 27th June 2007 at Derby County Combined Court Centre . thanks again for making my day............

[bethcharlie]

hi Junkimunki ,

 

Just to let you know that i received judgement by default on 26th july and entered it to the court , Bank still wouldnt pay up and now HSBC solicitors have applied to the courts for this to be set aside until after the OFT test case . Have a hearing for this on 14th September

[freakyleaky]

got judgement today claim number 7qz76559

 

USE IT WISELY!!!

 

DEBBIE XXX

Well done SM! I hope you get your money without any problems!

[Castlebest]

If I acted like DG do in my job I would be sacked and the be honest I would expect to be, this is apalling behavour.

 

pete

[freakyleaky]

Totally agree Pete. Trouble is dg are working for and on behalf of hsbc and they will not punish them for stalling claims or scaring people off with their underhand tactics.(that seems to be what they want them to do! IMHO) The only protection the public has against the poor behaiviour of solicitors is the law society, oft, FO and the court's but any complaints made against them are simply being refered to the test case and we are told to wait and see!

Makes me sick!

 

Rant over!

[syds mum]

update guys...

 

DG have applied for judgement to be set aside!!! dont know on what grounds yet but will hear shortly for court... judge has granted short hearing for this application!!!

 

do i have to do anything or just wait to hear from court??

 

debbie xx

[freakyleaky]

Hi Debbie! Have you had a date for the hearing? Are you prepaired for arguing your case against the set aside? Have a read of the links in my signature for some more info!

[syds mum]

so nice to hear from you freaky.... got no hearing date but cant see what DG is gonna argue!!! they didnt comply with directions and thats that!!!

 

i have had a look into why you can get judgement set aside and as far as i know they have a couple of reasons...

 

1. being they didnt receive any paperwork so therefore didnt know about claim..( i can prove they signed for all letters!!!)

2. they cant reley on outcome of test case as my judgement has been entered before this as reached high court so therefore the law has it stands today is applied!!!

3. they can not argue that they didnt have time to comply as i was given same amount of time and i managed to do all that was asked of me!!!

 

seems to me they dont have an arguement!!! i dont mind going to hearing as it will give me oppatunity to ask for costs as well!!!

 

will keep you undated!!

 

debbie xxx

[bethcharlie]

Hi sids mum ,

 

I am in court next week , dg also applied for my judgement to be set aside . Have they used the excuse that it was an administration error that they did not meet the deadlines . I am trying to find out how many times they use this excuse , gonna use it in court .

[syds mum]

HI BETH not got paperwork yet only had confirmation they are appling for set aside... they are abusing the system!!! how can they actually expect judge to belive that there was "administration error" in all the cases... more like they were not giving us the respect we deserve!!! we are all account numbers as far as they are concerned!!! they will ask for set aside and IF its granted they will pile in with stay, citing test case as reason!!! if they are allowed to get away with this it will be massive miscarriage of justice as far as i am concerned!!! so make sure you have all arguments ready to fire back... dont let them take the p##s... i am sure the judge will see thu all this.... which court you at??

 

hope all goes well keep me posted love!!!

 

 

debbie xxx

[bethcharlie]

Hi ,

 

They have applied for a stay aswell citing the test case , they had one line in their application apologising for the "administration error" and then 2 pages going on about the test case .

Will let you know how i get on .

Also i got a letter from HSBC yesterday because my account is over my overdraft limit saying they will do all they can to help me if i am having financial difficulties , which i am at the moment , so am going to show that to judge aswell . they just take the p***

[syds mum]

IT DOES... TAKE THE P##S!!!!

 

getting to read the banks quite well now... i cant believe they are trying this if you have your arguments ready i just cant see how a judge will let this happen!!! they are abusing the system over and over again!!! we will soon have a list of all the admin errors they claim to have made and then that will surly prove they are not compling with directions and just using delay tatics FOR A CHANGE!!!

 

i have actually got 2 more claims against barclays and they have made an offer at this stage... admitted defeat in a fashion!!! why cant DGs just give it up and play ball!!!!

 

which court you at love???

 

debbie xx

[bethcharlie]

Hi ,

 

Bishop Auckland Court , Friday Sept 14th , i am really nervous about it , apparantly they have been sending these top barristers to cases . I even sent DG a letter saying i would except my original claim minus the interest and court charges , they didint even respond

[syds mum]

hope it had WITHOUT PREJUDICE on it!!!

 

dont get too worried its the same everywhere they just want to frighten us all into thinking we are not capable... but we are otherwise they wouldnt be in court!!!

 

good luck love and keep me posted!!

 

debbie xx

[bethcharlie]

Will do , thanks

[freakyleaky]

Hi beth. Aparently the buddy system is up and running again now so you might want to look there for someone who would go along with you for morale support.

This is the link 'Buddy' System

Good luck and keep us posted!

[syds mum]

O.K GUYS HERE IT IS...

 

this is their reason for asking for judgement to be set aside!!!! happy reading... from what i can tell they are basically saying that they couldnt possibly get all the evidence in on time (28 days not long enough) because they had so many similar cases to deal with and again just didnt have time!!! well i say why didnt they just do a templete bundle to send out...LOL thats what they do regarding charges letters!!! press a button and print it off!!! oh sorry forgot it costs £35 a time to do that, LOL..LOL..LOL

 

 

Notice of Hearing of Application

To the Claimant's Solicitor

###############################

 

 

In the

Claim Number

Claimant (including ref.)

Defendant (including ref.)

Date

 

 

DERBY

County Court

7QZ76559

#####################

H S B C Bank Plc

05 September 2007

 

 

 

 

 

 

 

 

 

The hearing of the defendant's application for The Order of 16/8/07 To Be Set Aside (see copy attached) will take place at 14:00 on the 21 September 2007 at Derby County Court, Combined Court Centre, Morledge, Derby, DEI 2XE.

Cases are listed in accordance with local hearing arrangements determined by the Judiciary and implemented by court staff. Every effort is made to ensure that hearings start either at the time specified or as soon as possible thereafter. However, listing practices or other factors may mean that delay is unavoidable. Furthermore, in some instances a case may be released to another judge, possibly at a different court. Please contact the court for further information on the listing arrangements that may apply to your hearing.

Application Notice

 

 

 

 

Date

 

21 August 2007

 

Note You must complete Parts A and B, and Part C if applicable. Send any relevant fee and the completed application to the court with any draft order, witness statement or other evidence; and sufficient copies of these for service on each respondent

Part A

We(1) DG Solicitors

on behalf of the Defendant

 

intend to apply for an order (a draft of which is attached) that(2)

 

 

 

The Order dated 16 August 2007 (apparently issued on 17 August 2007) be set aside and the Defence be reinstated on the basis of CPR r3 J( 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 be stayed pending the final determination (including, for the avoidance of

doubt, any appeals) of the Commercial Court proceedings issued on 27 July 2007 between the OFT and the Defendant (and seven others) comprised in Claim No. 2007 Folio 1186 (the Test Case).

because(3)

(i) 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 its Defence within 28 days of receipt of a schedule and certain further information from the Claimant is disproportionate, particularly in light of the fact that (1) such particulars require extensive legal analysis and the application of those matters 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 in 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 it is anticipated that the particulars of the legal analysis would be available.

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 within the stipulated timeframe, 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 Order dated 16 August 2007 is not set aside is immediate and obvious.

The Defendant has acted promptly upon receipt of the Order striking out the Defence, which the Defendant believes it received on 20 August 2007. The Defendant further relies on the fact that the Order was issued on 17 August 2007, after the issue of proceedings in the Test Case.

Insofar as the application to set aside the Order dated 16 August 2007 is based on CPR 3.1 (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 16 August 2007.

(ii) 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;

(2) those issues of principle will be resolved by the Test Case, including a hearing of Preliminary Issues fixed for eight days in January 2008; the Preliminary Issues could not be finally determined any more swiftly via the County Courts in light of the time required for appeals;

(3) the Test Case represents the most efficient and proportionate means to resolve those issues in an expeditious fashion;

(4) a stay of the proceedings is consistent with the approach of the Financial Services Authority and the Financial Ombudsman Service, which has decided not to progress complaints about current account charges until 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

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

 

 

Part B

We wish to rely on:

 

 

the attached witness statement of #######dated 21 August 2007

 

my statement of case D

 

 

evidence in Part C overleaf in support of my application D

 

 

Signed

 

For D G Solicitors

Applicant's Solicitor

 

I, ######, of 12 Calthorpe Road, Edgbaston, Birmingham, B15 1QZ, WILL SAY:

1. I am a litigation executive employed by HSBC Holdings pIc and I have conduct of this matter on behalf of the Defendant. The in-house litigation department ofHSBC operates under the name of"DG Solicitors".

2. I am duly authorised by the Defendant to make this witness statement in support of the Defendant's application to set aside and/or provide relief from the Court's Order dated 16 August 2007 striking out the Defence ('the Strike Out Order'), pursuant to CPR r3.3(5) (setting aside an order made of the court's own initiative), CPR r3.9 (relief from sanctions) and/or CPR 3.1 (2)(a) (extension of time), and! or to vary or revoke the Strike Out Order under CPR 3.1 (7) on the basis that the issuing of proceedings in a test case in the Commercial Court between the OFT and the Defendant (and seven others)

(together, 'the Banks') constitutes a material change of circumstance since the Order was issued.

3. There is now shown to me marked "NW-1" a paginated bundle of documents to which I will refer (by page number) in this witness statement.

4. The claim is for £832.02 and anses out of bank charges levied by the Defendant on the Claimant's account between 2001 and 2007.

5. The Court gave directions for the conduct of the claim without a hearing by an order of its own motion dated 5 July 2007 ('the Directions Order') [NW-l, page 1]. The Directions Order provided that the Defendant must, within 28 days of receipt of a schedule and certain further information from the Claimant, file and serve a response to the schedule. On 27 July 2007, pursuant to an agreement with the Defendant, the OFT issued proceedings in the Commercial Court in a test case (the details of which I describe below). The Strike Out Order, dated 16 August 2007 (but apparently - from the date in the top right-hand comer of the Order - issued by the Court on or about 17 August 2007) [NW-l, page 2], was served on the Defendant. To the best of my knowledge, the Defendant received the Strike Out Order on 20 August 2007 (although the document is not date stamped), and accordingly insofar as this application is made under CPR 3.3(5), I believe this application to be compliant with CPR 3.3(6)(b). The Defendant has sought to make this application as soon as practicable.

The Directions Order and its effect

6. Paragraph 2 of the Directions Order required, in respect of each item claimed, the following details:

a. Pursuant to what contractual provision such charge was made, producing a copy o/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 to be treated as a breach of the contract between the parties), all

facts and matters intended ta be relied upan as shawing that such is a praper estimate af such lass, and all evidence ta be adduced at trial as ta what the true cast af dealing with the matter was.

d. Any witness statements.

e. Capies af decided cases and ather legal materials ta be relied upan.

7. 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 © thereof, the impact of this Directions Order is extremely onerous for the Defendant. The legal and factual issues raised, and to which the Directions Order requires answers within only 28 days of the Claimant's particularisation of the claim, are extremely complicated, and, I would respectfully submit, would be more appropriately dealt with in the test case referred to above. By way of example, those issues include such questions as:

(1) the identification of each of the relevant terms and conditions applied on the

account from time to time during the period for which the charges were levied;

(2) the identification of the relevant charges levied, the reason for levying

such charges, and any relevant steps taken by the Defendant in dealing with such charges;

(3) whether each type of charge and/or each term is in plain intelligible

language and relates to the main subject matter of the contract and accordingly is excluded from the assessment of fairness under the 1999 Regulations by reason of Regulation 6(2)(a) and/or (b);

(4) If a charge or term is not so excluded, whether the charge and/or term

is unfair under the 1999 Regulations, including whether when assessing fairness under the 1999 Regulations it is a necessary but not sufficient precondition that they be shown to be contrary to the requirement of good faith;

(5) the meaning of 'good faith' in this context;

(6) whether each type of charge and/or each term provides for

remuneration for services supplied by the Banks in exchange, rather than payment of a sum by the customer for breach of a contractual duty owed to the Banks, so as not to amount to a penalty at common law.

8. As an illustration of the complexity of the legal issues even when examined only in the abstract, the pending trial of the test case between the OFT and the Banks - which is focused on certain 'Preliminary Issues' including some of the issues listed at paragraphs 7(3), 7(4) an 7(6) above - has been listed for 8 days in the Commercial Court, with extensive written submissions.

9. However, this hearing will not address the complexities in applying the law.

The legal issues set out above are further complicated by the difficulties in applying these principles to the individual circumstances of a particular claim, for example, in light of the fluctuation in the charges, terms and conditions over time and the account history of the claimant.

10. These difficulties can be illustrated by reference to particular paragraphs of the Directions Order, set out above at paragraph 6 of this witness statement.

11. In respect of paragraph 3(a) of the Directions Order, while it would be possible for the Defendant to provide the terms and conditions and price lists of charges, it may be noted that these terms and conditions and prices have fluctuated over time, and differ as between the types of charges, and that the Court would be required to examine a large volume of documentation in each case, which would be of critical importance to its determinations.

12. In respect of paragraph 3(b) of the Directions Order, the Court orders the Defendant to state whether the charges are accepted to be penalty charges and, if not, why not. To the extent that the Claimant has asserted generally and in a conclusory manner, without analysis, that the charges breach the Regulations and are penalties at common law, the Defendant's response is based on a

complex analysis of the law, which involves some of the issues referred to at paragraph 7 of this statement. For example, the fundamental issues of whether the Regulations apply, and if they do apply, the proper construction of its components so as to identify whether there has been a breach depend on intricate points (turning again on the factual issues identified above) that, I would respectfully submit, cannot be conveniently summarised, nor summarily determined, as illustrated by the length and complexity of the test case proceedings.

13. As to paragraph 3© of the Directions Order, the Defendant's primary position is that the charges are not payable upon a breach of contract. If the Defendant's position is correct, then an analysis of this cost to the Defendant is unnecessary. Alternatively, if an analysis of such costs is required, that analysis involves an extremely complicated exercise. In particular, there are difficult legal questions about which categories of costs may be included in the assessment, and equally complicated factual questions as to what those costs include. Such an exercise requires an extensive auditing exercise which takes into account the general commercial context, the impact of the fact that the Defendant provides a suite of banking services free of charge, and the relevance of the individual claimant's account history. Of course, each of these matters has fluctuated over time, and the answers vary across different types of charges, terms and conditions (which have themselves varied over time).

14. Furthermore, the difficulty in complying with the Directions Order is multiplied by the large number of claims, and similar orders, which have been received by the Defendant.

The test case and Defendant's application

15. However, the Defendant (along with seven other financial institutions) has now agreed with the OFT that some of these issues will be resolved in a test case. The Defendant is now expending a great deal of time, money and effort in arguing the test case, and has agreed to expedite the hearing of that case and

any appeals; the trial is scheduled to take place in January 2008. As noted above, that test case will determine some of the fundamental legal issues upon which the present claim depends, and which require detailed argument. It is anticipated that additional issues of the sort listed in paragraph 7 above, which will be relevant to the present claim, might be included in the test case in due course. In those circumstances, the Defendant anticipates dealing properly and in detail with the issues referred to in the Directions Order dated 5 July 2007, but which it has been (and remains) difficult and, I would respectfully submit, disproportionate to provide in the present case.

16. The Defendant also understands that, in common with many other County Courts, I and consistent with both the view of Moore-Bick LJ and that of the FSA and Financial Ombudsman Service, the Court is now routinely staying similar claims pending the final determination of the test case. It is the Defendant's belief that this provides the most expeditious, efficient and orderly means of resolving the issues set out above.

17. In light of that general approach, if the Defendant had complied with the Directions Order, it is anticipated that the claim would have been stayed, and accordingly the claim would not yet be resolved. Therefore, the Claimants would suffer no prejudice as a result of the Defendant's breach if the claim were to be reinstated but stayed. If the claim is ultimately successful, the Claimants would be protected by the continuing accrual of interest during the period of the stay.

18. Conversely, the Defendant would suffer immediate and irreparable prejudice if this claim is not reinstated or stayed but the issues in the test case are resolved in the Defendant's favour. That prejudice is multiplied since it is anticipated that the Defendant faces the same order in other cases.

I Including claims received via Money Claims Online, which the Defendant understands is based in Northampton. New claims received in this way are, as of 13 August 2007, being automatically stayed pending judgment in the test case.

19. I accordingly invite the Court to set aside the Strike Out Order and stay the present proceedings on the terms attached to this witness statement [NW -1, page 3].

20. I believe that the facts stated in this witness statement are true.

 

 

Signed: .#########,

#########

Dated: 21 August 2007

 

 

IN THE DERBY COUNTY COURT

BETWEEN:-

##############

-and-

HSBC BANK PLC

 

 

 

 

DRAFT ORDER

 

 

Claim No. 7QZ76559

Claimant

Defendant

 

 

UPON HEARING the Claimants and hearing Counsel for the Defendant

IT IS ORDERED THAT:

1. The order dated 16 August 2007 be set aside.

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.

3. Both parties shall have liberty to apply.

 

 

Dated this

 

 

 

day of August 2007

 

 

[Audreygreeneyes]

hells bells in buckets o herrin!. ok will print that off and have a right dood read at it...........and see what I can find if anything to reply with...........

 

I will reply in private syd.....DG IF YOU WANT TO KNOW MY REPLY PLEASE FEEL FREE TO ASK ON THIS FORUM, YOU WILL BE GIVEN THE REPLY ONCE THE APPROPRIATE FEE HAS BEEN PAID.......

[syds mum]

thanks age... its a good read i actually LAUGHED OUT LOUD... reading it, they think that waffling on in legal jargon will put a stop to us but they are soooo.. wrong!!! as far as i can see they are basically saying they didnt have time to research and back up their defence... because its so complex... which is why they will then (should they get it set aside) apply for stay!!! in other words they havn't got a clue what to do or what they are on about!!! i feel sure there is an arguement there for, well why put in a defence if you haven't got anything to back it up!!!

 

will speak to you soon love!!!

 

thanks

 

debbie xx

[Audreygreeneyes]

debbie do me a favour.. correctme if I am wrong here. but did they not file the basic standard 5 point defence?