Leeds Mercantile court 4th October 2007

[jansus]

Hi Jenny

 

nice to see you back

 

hope you had a lovely holiday and a well deserved rest,

 

Sorry though that you did not come back to a cheque:(

 

 

Been a bit lonely on A&L sometimes felt I was the only one posting and as not many people have been successful in removing stays - it has been ard to recommend what to do. To be honest most of the time paying the fee seems a waste of time.

 

there is a new bundle for removing stays - and also a case from the merchantile court has been quoted as an important case - but although I have bben asking no body can explain why it is of particular importance.

 

I will post a few threads worth reading

 

Jan

 

 

 

Stay Lifted At Eastbourne County Court (

 

 

Please Read This If You Have A Stay

 

 

 

 

n

[j.barton1]

Thanks Jan, Nice to hear from you. I'm looking forward to the 4th, should be eventfull!! I'll look through the links..thanks again xx

[scoobz]

Hi Jen

 

Glad to see you are back. Hope you had a lovely holiday?

 

I take it you haven't heard anything from Wraggies whilst you were away?

 

Its been very quiet on here and everyone seems really down with all the stays being issued.

 

Not long until your day back at court, its certainly going to be interesting to see if they send anyone from Wraggies??

 

I'm just waiting for hearing date now (hopefully October) but won't be surprised if it ends up being a stay hearing!

 

Scoobz

[j.barton1]

Hi Hun, Had a great holiday but no fat cheque to come hope to. Cant wait for court...gonna be interesting!!

[j.barton1]

Just me & threadworm for the 4th? I cant find anyone else at the mo, i'll keep looking.

xx

[AndyGFLees]

I will be there on the 4th with you. I will be preparing everything over the weekend so no doubt I will have some questions. My gripe is with Lloyds TSB.

[j.barton1]

Hi, Anything we can do...we will

 

Jenny x

[jansus]

Hi jenny - can see you have been posting a lot today. I am nt on the site too much at the moment but if I find anything I think will help I will let you know.

 

Reading dougals thread - one of only about three I can think of who has managed to get the stay lifted - I am so angry for him - if he is not a hardship case I dont know what is. the banks are blatantly breaking the agreement they made with the OFT -its as if they feel they are invincible ( or already have a deal set up) It really just needs one sympathetic judge to push another couple of cases through to let the floodgates open.

 

All you can do I think is concentrate on your particular timetable and do your best (I know you will) . They deserve a kick up the rear!

 

JAn

[j.barton1]

Hi this is the letter i'll take...any ideas...feel free to edit.

 

I respectfully ask for this case not to be stayed and to continue on as before.

The reasons for this request are as follows.

The defendant did not feel the need to attend the previous case management conference on 28th June 2007. If they had attended this would have given both parties a chance to negotiate, failing negotiations, directions would have been given and the case would have ended by now. This is only delaying the case which has been ongoing since January.

I have tried to negotiate out of court with the defendant but they are reluctant at this time. (see evidence JB 1 ) Although they have quoted that they are not willing to attend court (see evidence JB 2) and have settled numerous cases out of court. (see evidence JB 3 ) I have spoken to a contact at the Alliance & Leicester ( Andy Benson) who has quoted to me numerous times that Wragge & Co have full authority to settle and should be doing that, he has also phoned Wragge & Co and asked them to contact me with view to a settlement which they were reluctant to do.

At the last CMC in August it was discussed that a condition of the stay would be for the un-disputed charges not to be enforced. The Alliance & Leicester sent me a letter (see JB 4 ) saying that they will close my account if I pursue this. The said account has been closed for a number of years so this threat didn’t affect me but the unacceptable retaliatory actions by the defendant shouldn’t be accepted. They have since been fined numerous times for this behaviour.

The defendants as I mentioned before, failed to attend the previous hearing, filed important paperwork at the last minute, failed to communicate properly with the courts and myself and now less than a week before the hearing, apply for a stay. Surely these actions are vexatious and the defendants shouldn’t be abusing the court process in this way?

The stay is being applied for under the blanket of the OFT test case but it has been reported ( see evidence JB 5 ) that the test case might be dropped if the banks agree to lowering their charges, many of the banks have already agreed to this the first being Lloyds TSB. It is also a concern that the Alliance & Leicester is not one of the banks listed in the hearing therefore do not have to defend themselves to the OFT, yet they want protection against claims by applying for a stay.

I hope you consider these points and allow the case to continue.

[jansus]

Hi this is the letter i'll take...any ideas...feel free to edit.

 

 

I respectfully ask for this case not to be stayed and to continue on as before.

The reasons for this request are as follows.

 

The defendant did not feel the need to attend the previous case management conference on 28th June 2007. If they had attended this would have given both parties a chance to negotiate, failing negotiations, directions would have been given and the case would have ended by now. This is only delaying the case which has been ongoing since January.(is this when you requested statements or started court proceedings or first letters)

I have tried to negotiate out of court( on several occasions) with the defendant but they are reluctant at this time. (see evidence JB 1 ) Although they have quoted that they are not willing to attend court (see evidence JB 2) and have settled numerous cases out of court. (see evidence JB 3 ) I have spoken to a contact at the Alliance & Leicester ( Andy Benson) who has quoted to me numerous times that Wragge & Co have full authority to settle and should be doing that, he has also phoned Wragge & Co and asked them to contact me with view to a settlement which they were reluctant to do.( therefore I would like to suggest that this inabilty for the defendant and their own representatives to correspond or co-operate in this case has resulted in the courts time being wasted in an un-necessary manner)

 

At the last CMC in August it was discussed that a condition of the stay would be for the un-disputed charges not to be enforced. The Alliance & Leicester sent me a letter (see JB 4 ) saying that they will close my account if I pursue this. The said account has been closed for a number of years so this threat didn’t affect me but the unacceptable retaliatory actions by the defendant shouldn’t be accepted. They have since been fined numerous times for this behaviour. ( could you put the bbc reoprt here - or the current case on A&L forum as evidence?)

The defendants as I mentioned before, failed to attend the previous hearing, filed important paperwork at the last minute, failed to communicate properly with the courts and myself and now less than a week before the hearing, apply for a stay. Surely these actions are vexatious and the defendants shouldn’t be abusing the court process in this way?( Did they file any of the paperwork the court asked for?)

The stay is being applied for under the blanket of the OFT test case but it has been reported ( see evidence JB 5 ) that the test case might be dropped if the banks agree to lowering their charges, many of the banks have already agreed to this the first being Lloyds TSB. It is also a concern that the Alliance & Leicester is not one of the banks listed in the hearing therefore do not have to defend themselves to the OFT, yet they want protection against claims by applying for a stay.

 

I hope you consider these points and allow the case to continue.

 

 

Jan:)

[jansus]

I forgot to ask did you find anything about whether there is a proper proceedure for applying for the stay that they may have abused?

 

I know there have been differing reports from court on this - but just wondering if that as A&L are not officially part of the OFT case they should have adhered to the court rules?

 

Jan

[jansus]

"Basically the Judge said that Lloyds are legally allowed to file for a relief (stay) providing they give evidence for the reason and submit that evidence to me and the courts. Lloyds failed to submit the defense when ordered and then submitted a stay application on the 3rd Sept when it should have been made within 7 days from when the order was filed against Lloyds. The case was to be heard on the 11th which didn't even leave me time to research 3.8 or 3.9, "i'm sure Mr Hady hasn't even heard of 3.8 or 3.9" (judges words). The Judge went on to say that CPR 3.8 requires that they submit an application within the allotted time frame with evidence for the court to consider and deliver verdict. CPR 3.9 requires that they have submitted a valid application for relief and then a stay of action will be considered. As they didn't satisfy CPR 3.8 the Judge then said that he will not consider the plea for a stay in CPR 3.9 and he was not happy with Lloyds' conduct through the litigation, and Lloyds didn't even pay the application fee!!!"

 

 

 

Found this on the hadyanth thread

 

Jan

[jansus]

Originally Posted by fzrkitten

Unbelievable.

 

Just got home to a letter from SC&M that they have faxed to the court, asking for a stay, on next weeks 'small claims hearing'. Would that be the same one they already had re-allocated to fast track themselves I wonder?!

 

Need serious help now if anyone is out there, Lloyds faxed letter to the court yesterday, I got copy today. I think it's pretty standard, but as the court case is next week they have asked the court to fax them or phone them letting them know if they have got the stay, and saying that if they don't, their client will be represented by counsel.

 

I need to oppose this stay, and very quickly, (like now!) on the grounds that they defaulted a day before the 26th July anyway, but still managed to get the case re-allocated, now they've asked for a stay on a small claims case, when it's fast track now, and they've not corresponded once before this either. Also financial hardship is a huge factor for me, seriously.

 

Also, can they get a 'case management hearing' stayed? Because that's what they got it changed to by getting it re-allocated to fast track. And I've objected to the fast track re-allocation with help from Gary, which is also supposed to be heard next week.

 

All getting a bit confusing and very scary.

 

I'm actually worried about representing myself in court now as well if they don't get stay and bring counsel!

 

Oh well, at least it gives the rest of you guys something to read instead of all the stays for a bit!

 

Fzrkitten. x

Sorry - I've had a nightmare week. Didn't forget you though!

 

Its very unlikely that they will get a stay before the hearing, in fact the letter probably won't even go before the judge before the 7th. Expect them to turn up and argue for one there. Having said that, just in case you can send a fairly short letter to the court stating that you object to the defendants proposal of a stay and therefore they should be made to apply properly or otherwise the issue should be dealt with at the hearing, so as the issue and your objections can be heard properly.

 

At the hearing the issues as I see it will be these;

 

Your application

 

The first thing is to object to the reallocation of the claim and also their breaching of the order. Everything you need is pretty much in the statement which I prepared for you before. Make sure you understand the main points contained in it and also where possible you should try to expand on some of the points yourself and make some notes. Ask for the defence to be struck out for non-compliance with a court order and/or abuse of process. There are some materials you can take in support of this - the list of settled claims from the litigation section, plus abuse of process orders and Mullen v Hackney. PM me your e-mail address and I'll send you the last 2.

 

Stay

 

Take a stay removal/objections template and object on the usual grounds.

 

~~## Stays info and guidance ##~~

 

Also add your own stuff regarding your particular situation, for instance if you believe that yours would qualify as a 'hardship case' you should argue that and take as much evidence as possible to back it up.

 

Another important point is that the test case will, in the first instance at least, only test the application of the UTCCR and not the penalty at common law principles. Therefore IMHO you can make the distinction between the charges levied for overdraft excess and the charges levied for unpaid items. Charges for overdraft excess (and bounced cheques) arise from clear breaches of contract, so are subject to the common law on penalties (I.e the charge must be proportionate to costs) - whereas its more difficult to establish a breach for unpaid DD/SO so they rely on the UTCCR.

 

The OD excess and unpaid cheque charges therefore concern a simple issue of fact - whether the charge is proportionate to the cost - so you could argue that a stay is unnecesary. If it looks like they are going to get a stay I would suggest that you propose that the part of the claim relating to charges with clear breaches (OD excess/cheque bounce) is allowed to proceed, and only the UTCCR relient part (DD/SO charges) is stayed.

 

Establish charges arise from breach of contract

 

You need to take the T&C's with you so as you can demonstrate that the OD excess and cheque bounce charges arise from breaches of contract. This is important for both of the points above. Take a schedule of the relevant terms with an explaination of how the terms provide for a breach, such as this one (the terms will be the same) -

 

General Form of judgement or Order!

 

Also take the actual T&C documents. PM me your e-mail address and I'll send the relevant ones to you.

 

If the claim is stayed

 

If the judge stays the claim anyway then ask for conditional orders as per the stay template, such as;

 

1) The defendant is not permitted to levy further charges until the stay is lifted,

 

2) The defendant is not permitted to take any default, enforcement or collection action on the account until the stay is lifted.

 

If the claim proceeds

 

If the judge allows the claim to proceed, or part of it, then the issue will be directions.

 

Hopefully your application will be successful and the claim will proceed on the small claims track. Even if not, either way you should really push for the defendant to be ordered to comply with the original order.

 

It all seems daunting but as long as you follow and prepare for the above then I think you'll have covered all bases and will be prepared for every eventuality. Remember that its not a final hearing, nothing can be won or lost so there isn't any real pressure. Just be prepared and do your best, and you'll be fine. 99% of people who have to go are nervous to start with but once its over wonder what all the fuss was about. Its very informal and your certainly not expected to be a lawyer or to know as much as one.

 

Any questions give me a shout."

 

found this post by garyh moderator

[elgincroft]

Hello

 

I know this is very bad forum etiquette to ask for help in a first post. I have tried really hard to make sense of the information about the Mercentile Procedure but I am pregnant and not taking in complicated information in my usual way - sorry.

 

My partner has got a hearing at leeds on the 4th also. Only problem is I believed HSBC's last letter saying it was all on hold for now. Just got another one today with loads of paper work from DG Solicitors and from checking on here, it seems the hearing IS going ahead. I am so cross with myself for believing them, I dealt with all my partners claim until I got pregnant and took my mind off the boil with this case.

 

So we havent filled anything in and sent it to the court. Please someone help me and tell me if I need to get anything to them before the 4th.

 

I have tried to call the court but it is shut.

 

I really hope someone can help me.

 

Thanks in advance.

 

PS edited to say I've been trying to reserach it myself and I now remember seeing that it had to be a form to the court at least 7 days beofre the hearing. We havent dfone that because I believed the letter that said it was postponed. I am now in pieces worrying that I have messed it all up and that HSBC will make us pay costs. Please help someone. I know I'm stupid.

[j.barton1]

Hi Try not to worry see... http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/101915-leeds-mercantile-hearing-29-a.html ...that'll give you info on the Case management sheet. Ring the courts on monday after 10am...ask for the chancery section, tell them what has happened and is it okay to fetch the cmsheet then...shouldnt be an issue...see you there!!

[j.barton1]

Thanks Jan, as far as i can see the only reason they have requested a stay is cos of the test case...no other reasons..the only evidence they have enclosed is the judges in devon & cornwall issueing a blanket stay on all cases...pretty feeble really considering they are not one of the banks in the test case!!

Ta again hun xx

[j.barton1]

HIya, Edited letter...does it look okay?

 

I respectfully ask for this case not to be stayed and to continue on as before.

The reasons for this request are as follows.

The defendant did not feel the need to attend the previous case management conference on 28th June 2007. If they had attended this would have given both parties a chance to negotiate, failing negotiations, directions would have been given and the case would hopefully have ended by now. They also failed to comply with Judge Grenfell’s directions asking them to explain their absence.

I have tried to negotiate out of court with the defendant but they are reluctant at this time. (see evidence JB 1 )copy emails Although they have quoted that they are not willing to attend court (see evidence JB 2)transcript from bbc radio 4 and have settled numerous cases out of court. (see evidence JB 3 )successfull claims I have spoken to a contact at the Alliance & Leicester ( Andy Benson) who has quoted to me numerous times that Wragge & Co have full authority to settle and should be doing that, he has also phoned Wragge & Co and asked them to contact me with view to a settlement which they were reluctant to do therefore I would like to suggest that this inability for the defendant and their own representatives to correspond or co-operate in this case has resulted in the courts time being wasted in an un-necessary manner.

At the last CMC in August it was discussed that a condition of the stay would be for the un-disputed charges not to be enforced. The Alliance & Leicester sent me a letter (see JB 4 ) saying that they will close my account if I pursue this. The said account has been closed for a number of years so this threat didn’t affect me but the unacceptable retaliatory actions by the defendant shouldn’t be accepted. They have since been fined numerous times for this behaviour ( see evidence JB 5 ). this is money article

The defendants as I mentioned before, failed to attend the previous hearing, filed important paperwork at the last minute, failed to communicate properly with the courts and myself and now less than a week before the hearing, apply for a stay. Surely these actions are vexatious and the defendants shouldn’t be abusing the court process in this way.

The stay is being applied for under the blanket of the OFT test case but it has been reported ( see evidence JB 6 ) bbc news articlethat the test case might be dropped if the banks agree to lowering their charges, many of the banks have already agreed to this including the Alliance & Leicester ( see evidence JB 7 ). this is money articleIt is also a concern that the Alliance & Leicester is not one of the banks listed in the hearing therefore do not have to defend themselves to the OFT, yet they want protection against claims by applying for a stay.

I have expressed my concerns regarding the stay to the FSA, OFT, my MP and the treasury minister. The waiver is up for review but as yet the conclusion has not been published.

I hope you consider these points and allow the case to continue.

[j.barton1]

Right...I've got my 3 packs ready, 1 for me 1 for the judge and 1 for wraggies...if they show up. Asking for the stay not to happen so hopefully they'll listen but if the stay is granted i suppose march is'nt too far away. Is there any new ones coming? I've had a look round the "other" sites and no takers for the 4th.

Jenny x

[j.barton1]

me & threadworm & AndyGFLees & elgincrofts partner....anyone else??

[smiley123]

Hello everyone!

 

Another first time - poster here! I too (well my partner) is in Leeds Mercantile court on Thursday. We received a letter from the HSBC implying that the case had been postponed and foolishly we believed them so, handing in the Case Management Form was very last minute. It's great to have a bit of support on here and know there are others in the same boat. The only thing is, I'm not sure exactly what we should take with us other than letters and statements etc and we're both starting to panic. Any advice would be greatly appreciated. Their most recent letter was explaining that they were applying for a stay. I'm just feeling very unprepared at the moment.

 

Many Thanks in advance,

 

Smiley123

[j.barton1]

hi hun,

 

try not to worry too much, have a look here... http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/101915-leeds-mercantile-hearing-29-a.html ...the first few should help. anymore i can do let me know

 

xx jenny

[j.barton1]

this too...

 

http://www.consumeractiongroup.co.uk/forum/alliance-leicester/113888-please-read-if-you.html

 

http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/108430-stays-info-guidance.html

 

http://www.consumeractiongroup.co.uk/forum/general/16950-stay-here-application-grounds.html

 

I have written a letter asking for the stay not to be accepted but if they let it go ahead the above needs to be handed in...with a fee if you want to contest the stay

[smiley123]

Hi there Jenny,

 

Many, many thanks for that. I've just finished making copies of all the letters etc and I'm all fired to go! (Still a bit nervous though!)

 

Good luck for tomorrow,

 

Smiley123

[j.barton1]

Hi, Your welcome!!

Nerves are normal...i've done this 3 times and i'm still nervous...i've got all my stuff sorted and i am ready now!! Bring it on Hahah. See you tomorrow!

Jenny x

[elgincroft]

Hi

 

Thanks for the help JBarton. I have prepared my parnter as best I can. He is wondering - will he have to take a stand and speak? Also I am very confused about this stay business - does that mean he has to turn up to be told to go away again? All very confusing. I still can't believe I believed it was cancelled. Also I'm not a stupid person (hold a professional management role) and yet I really didnt understand the case management form. Hey ho. My partner will be there tomorrow.