HSBC trying to enforce a stay

[brianwillaims]

Thanks, I'll re-consider my options/ talk to you soon, decided to make the best of wot's left of the bank holiday - wishing you a great day and thanks again

[lateralus]

just to back up one little bit - just so you know - that mor is master of the rolls or some such title. when the test case was announced - the banks wanted a blanket stay put on all bank charge cases. they would, wouldn't they - the cost to them has been huge - by their own figures and i think this is conservative - from the press - - - -

 

 

 

"Recently, the big five High Street lenders (RBS, HSBC, HBOS, Lloyds and Barclays) finally admitted just how much they had been paying out in "goodwill" payments to customers demanding a refund of their overdraft charges - a whopping £399m in the first half of this year alone. "

in six months!!!

 

but- back to the story - they wanted a blanket stay on all cases - the judicial said no - the master of the rolls wrote to the courts and said - don't do blanket stays - each case must be considered individually.

 

there's the background - so when dg just automatically asks for a stay - and informs you - as they must do - you fight the stay -

those in earlier stages of their claims won't stand a chance - but those further along - can show the judge how dg has never been in contact - you've done all the running trying for resolution (nudges, etc) and if the judge is on the ball - it should go in your favour when dg has missed deadlines, never submitted things when asked for by the court,etc.

 

ok, just thought i'd put that all down to kind of give you a background as to why things are as they are -

 

just keep going.

[brianwillaims]

Thanks Lattie, but, I'm abroad alot and arranging the date of my initial hearing was difficult, by the way,which is next week - thought the Courts would get fed up, as sometimes i have to work abroad at short notice. Could you clarify what I relevant paperwork I need to send along with Form N244 - I'd be sincerely greatful - as my eyesight's failing rapidly now and my determination! thanks

[lateralus]

i'm on it - i'm not sure - but i'll get someone to answer -

[bakingpowder]

I have included the Part C statement (reworded slightly to my case) which I copied from this link:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html

 

I have also written a letter to the judge appealing to his better nature, however the one I have posted I may reword a little more about how DG and HSBC have played no cummunication throughout this whole fiasco and therefore should not be allowed a stay in all fairness!

 

Hope that helps a little, but see what latrelaus comes up with cos she's a genius!

[bakingpowder]

Sorry forgot the link to my story so far:

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/111992-myb-stayed-even-after.html

 

[Audreygreeneyes]

I will dig out mine and post it for you...

[Audreygreeneyes]

Dear Sir,

 

Claim Number7QZ45507

 

 

please find attached Forms N244 in relation to the above mentioned case along with supporting documents. I would respectfully request that these are passed to the Judge for the allocation of a hearing date.

 

 

 

 

My concerns in relation to this are set out in my part C statement attached as I really do believe that this stay would not maintain the status quo, as this stay favours the bank’s by preventing the claimant’s pursuit of its legitimate remedy without placing any restrictions on the bank’s activities whatsoever and allowing them to further abuse the court process.

They had no intention of defending this case in court as they have not done so thus far and believe they are using the OFT test case in the same manner. By requesting stays quoting the test case they further delaying and abusing the court system for the bank’s own gain.

The claimant is strongly opposed to such a stay, upon the basis that the defendant, both during and prior to this litigation, has ignored all prior attempts by the claimant to narrow the issues in dispute, or otherwise engage in meaningful dialogue which may have facilitated an amicable settlement to these matters.

Attached is part C is my supporting evidence with this regards

 

Yours Sincerely

[Audreygreeneyes]

in part C i had the defendant breached rule 3.4(2)(b) of the civil procedure rules and the human rights act 1998 article 6 of the convention , record fo contact between the claimants and the defendant......

[brianwillaims]

Thanks folks, you've all been a great help, will soldier on tomorrow- nite nite

[Audreygreeneyes]

ok biran firstly you go after them under

 

 

 

See also Practice Direction 3, Practice Direction 3B, Practice Direction 3C

 

Part 3 THE COURT’S CASE MANAGEMENT POWERS Contents of this part The court’s general powers of management Rule 3.1Court officer’s power to refer to a judge Rule 3.2Court’s power to make order of its own initiative Rule 3.3Power to strike out a statement of case Rule 3.4Judgment without trial after striking out Rule 3.5Setting aside judgment entered after striking out Rule 3.6Sanctions for non-payment of certain fees Rule 3.7Sanctions for dishonouring cheque Rule 3.7BSanctions have effect unless defaulting party obtains relief Rule 3.8Relief from sanctions Rule 3.9General power of the court to rectify matters where there has been an error of procedure Rule 3.10Power of the court to make civil restraint orders Rule 3.11

 

 

The court’s general powers of management 3.1 (1)The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)Except where these Rules provide otherwise, the court may –

(a)extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b)adjourn or bring forward a hearing;

©require a party or a party’s legal representative to attend the court;

(d)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e)direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f)stay (GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g)consolidate proceedings;

(h)try two or more claims on the same occasion;

(i)direct a separate trial of any issue;

(j)decide the order in which issues are to be tried;

(k)exclude an issue from consideration;

(l)dismiss or give judgment on a claim after a decision on a preliminary issue;

(ll)order any party to file and serve an estimate of costs;

(m)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

(3)When the court makes an order, it may –

(a)make it subject to conditions, including a condition to pay a sum of money into court; and

(b)specify the consequence of failure to comply with the order or a condition.

(4)Where the court gives directions it may take into account whether or not a party has complied with any relevant pre-action protocol (GL) .

(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

(6)When exercising its power under paragraph (5) the court must have regard to –

(a)the amount in dispute; and

(b)the costs which the parties have incurred or which they may incur.

(6A)Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings , subject to the right of a defendant under rule 37.2 to treat all or part of any money paid into court as a Part 36 payment .

[(Rule 36.2 explains what is meant by a Part 36 payment)] (7)A power of the court under these Rules to make an order includes a power to vary or revoke the order.

 

Court officer’s power to refer to a judge 3.2 Where a step is to be taken by a court officer –

(a)the court officer may consult a judge before taking that step;

(b)the step may be taken by a judge instead of the court officer.

 

Court’s power to make order of its own initiative 3.3 (1)Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

(Part 23 sets out the procedure for making an application)

(2)Where the court proposes to make an order of its own initiative –

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3)Where the court proposes –

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

 

it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

(4)The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5)Where the court has made an order under paragraph (4) –

(a)a party affected by the order may apply to have it set aside (GL) , varied or stayed (GL) ; and

(b)the order must contain a statement of the right to make such an application.

(6)An application under paragraph (5)(a) must be made –

(a)within such period as may be specified by the court; or

(b)if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

(7)If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit –

(a)the court's order must record that fact; and

(b)the court must at the same time consider whether it is appropriate to make a civil restraint order.

 

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

(3)When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(4)Where –

(a)the court has struck out a claimant’s statement of case;

(b)the claimant has been ordered to pay costs to the defendant; and

©before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

 

the court may, on the application of the defendant, stay (GL) that other claim until the costs of the first claim have been paid.

(5)Paragraph (2) does not limit any other power of the court to strike out (GL) a statement of case.

(6)If the court strikes out a claimant's statement of case and it considers that the claim is totally without merit –

(a)the court's order must record that fact; and

(b)the court must at the same time consider whether it is appropriate to make a civil restraint order.

 

 

(a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);
 
(b) any of these Rules specifies a different date for compliance; or
 
© the court has stayed the proceedings or judgment.
 

(Parts 12 and 14 specify different dates for complying with certain default judgments and judgments on admissions)

[Audreygreeneyes]

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

thats the part you need.................

 

that is your basis for objecting ot the stay................

 

if oyuneed help to tweak or compose a letter jsut shout...............:)

[brianwillaims]

Hi, Audrey, feeling ready for batt;e thanks to you and all your help- Cheers

[lateralus]

seen the discussion thread we started for this problem - check out those two links in my last post on that thread

[nyc_lond10]

I hi just wanted to all point out that DG Solicitors will try to keep a "stay" in force even passed the oputcome of the OFT Case. In other words, pending any appeal. One should ensure that the "stay" is exhausted after the outcome of the OFT case irrespective of any appeal. This is because an appeal can be on a number of grounds, including one of a technical nature, that will have little or nothing to do with one's case....

[Audreygreeneyes]

thanks for pointing that out nyc. but the courts own civil procedure rules are an act of parliement. and if DG breach them. it has nothign to do with the OFT waiver.......... two totally seperate issues

 

if the stay was purely and totally based on the OFT waiver , then they may well try and suceed but as its not...........

my own view is that there is nore than a fair chance of winning here.............

 

but good point..

[johnnymitch]

The way they're misusing/abusing procedures for waivers and stays, they'll be lucky if the stays last until the end of the OFT case.

 

Evidence is being gathered daily of them playing fast and loose with the judicial system - the MOR will only take so much flak... then hopefully :

 

 

However, your point is well made - we know they're a devious bunch of bankers .................

[brianwillaims]

Hi folks, well it's the day before the court hearing and although I've written to the court for any stay to be lifted on N244 form and for judgment to be made in my favour due to DG not sending their paperwork by time of court's directions, I posted letter over a week ago and I've heard ZILCH!! It seems that the banks can do exactly what they please!!! What's going on!!! Anyway I'm going to turn up at court and find out what's going on. By folks got loads of things to do. Cheers for all your help Wish me luck I think I'm going to need loads of it!

[pinkduchess]

i wish you the best of luck

[johnnymitch]

Yep! Best of Luck Brian!

 

Hope it goes well for you - let's know how it goes

[Castlebest]

Good luck Brian !!

 

pete

[Audreygreeneyes]

well how did it go brian???

[johnnymitch]

Eh , Ah think it's tomorrow Auburn, m'Dear !

 

At 1530 today Brian said it was 'the day before the hearing'............

[brianwillaims]

Hi yeh! yer right Johnny it's tommorrow but thanks for your concern Greeneyes. I'll let you know what happened tomorrow ok thanks

[Penfold92]

Hi guys,

 

Sorry to butt in, but this matter is similar to what I am trying to put together for my Hearing to set aside the Stay. So you may have some interest in the following summary letter I am toying with providing the Judge apart from the application letter I sent him/ her to appeal to the stay in the first place. Use if you want or anyone can add or correct bits. I stole bits from AGE and other to put it together so it may not make sense...(LOL)

 

Your Worship,

Further to the letter I have given you regarding the matter of a Stay by the Defendant on this case I would like to summarise our view on this:

1) HSBC have not successfully defended any case so far. In fact they and the other main Banks have paid out in “Goodwill Gestures” over £399,000,000 in the first six months of this year. Is it any wonder they are trying to use the Test Case as an automatic way of Staying all cases an preventing further profit losses.

2) They and the other Banks are still settling other cases and are not standing up in Court on any of the individual cases. HSBC has not successfully defended any of these cases in Court and in fact has not even been to Court to our knowledge. It is interesting that they are still settling any ongoing cases that have not been stayed to this date. Four examples are 7QZ46749, 7QZ26454, 7QT42155 and 7QZ 85517. I have reason to believe there are actually around 94 other cases that are in similar positions or where judgment has been granted in favour of the Claimant or the Defence struck out.

This can easily be taken as a breach of the 3.4(2)(a) & (b) of the civil procedure rules and could even be simply struck out on these breaches.

(2)The court may strike out a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim; - We believe that £399,000,000 is probably enough in "Goodwill" gestures to confirm the Defendant has no reasonable grounds to Defend the case.

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; This point is emphasised by the Defendant acknowledging the claim then waiting till the last minute to ask for the extra 14 days to Defend, then taking their time to do anything and at the final hurdle just before the Court Hearings paying out! If that is not abuse then we do not know what is and we appeal to your Worship on this alone.

 

3) If they can take our money immediately without question, then we should not have to wait to get it back if it is wrong.

 

As a result of the letter and this summary we ask your WORSHIP to strike out the Defence on this case. If not then we would appeal for you to set aside the stay and also request that you enter the following 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.

Hope it helps and if it is wrong or inaccurate someone please say before we all look silly...

Penfold