IMPORTANT. Hull Court 'striking out claims'
MSE_Martin
MoneySaving Expert 8.3K Posts
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Some people have reported receiving a letter, something like this, from Hull Court.
"Upon the Court's own motion, the Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed, within seven days of receiving it.
IT IS ORDERED THAT
This matter be listed on 4th July 2007 at 3.00pm to consider striking out the claim as disclosing no reasonable prospect of success in the light of the recent decision on Berwick v Lloyds TSB 15th May 2007"
(see a BBC news report on it http://news.bbc.co.uk/1/hi/business/6711197.stm)
If you are one of the few who have received this letter there are a number of notes.
1. This is one court flying against the face of what others are doing
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2. It is a very strange note and one assumes it hasn't investigated fully what the case is.
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3. It is a substantial watershed in bank charges and needs to be challenged as it sets a very interesting issue.
What should you do
1. If you have received this letter please PM me your phone number, working with the Consumer Action Group we now are hiring a top QC to deal with the case. Yet you must be the client. Don't do anything else without doing that, we want to try and co-ordinate all 20 people involved.
2. You can send a delaying letter.
The following is a letter drafted by a solicitor friend (who wishes to remain anonymous) to help. You can use this as a template to send as a response to the court. Update: I've kept this in for info, however, actually the vast preference is you don't do anything just get in touch as noted above.
VERY IMPORTANT WARNING REGARDING THE TEMPLATE LETTER BELOW. While every effort’s been made to ensure this letters accuracy. It isn’t intended to be seen as legal advice, purely a rough, template and no liability can be accepted by this site, Martin Lewis individually, or the author of the letter for any individual claimants who rely upon it.
"Would you please treat this letter as my application to set aside the order dated xxxxxx and would you also please forward to me copies of any correspondence the court has received from the defendant or the defendant’s solicitors which has prompted the order. My application fee will follow. The grounds of my application which I advance with the greatest of respect are as follows:
1 The Berwick decision is not a factor to be taken into account in the context of whether my claim should be struck out and, that being so, the foundation for the order is wrong.
2 The Berwick decision is not such a factor because [a] it is neither binding on or of persuasive authority in so far as your court is concerned; it was reached without any legal or satisfactory argument on behalf of the claimant who appeared in person and in the absence of the defendant which appears to have failed to participate in any way in the proceedings beyond filing a defence and, possibly, an allocation questionnaire (and in the circumstances the claim should have been dealt with effectively on a default basis); [c] it was reached without any or any satisfactory evidence of the terms and conditions that governed the banking contract between the parties making the finding that there had been no breach of contract on the claimant’s part an unsustainable one ; [d] it was reached without any or any satisfactory evidence from the defendant on any issues whatsoever and without any documentation from the defendant which would have enabled the court to come to a correct decision on reasonableness of charges; [e] it was reached on the basis that the burden to prove unreasonableness was on the claimant whereas the burden was on the defendant to justify reasonableness; [f] it is subject to an application for permission to appeal; [g] the defendant had settled many thousands of similar claims to my own before the decision and I believe continues to do so and [h] the unanimous expressed views of well informed and respected legal commentators is that the decision is a legal irrelevance.
3 It is wrong, unfair, unduly onerous and contrary to established principles and the overriding objective that I should be put to what will be a considerable expense in a small claim to satisfy the court that I have a real prospect of success simply on the basis that in one isolated case with exceptional circumstances a decision has been reached in an evidentially flawed claim on what I submit were erroneous and irrational grounds. The effect of such an order is to risk the stifling of claims of the nature of my own and it would be outrageous if such claims were allowed to be crushed in their infancy.
4 If I have to arrange for legal representation at potentially vast expense then so be it but the repercussions for me and all current litigation of this kind if the order stands are monumental.
5 It was inappropriate and wrong for the court to have made an order of its own initiative in the particular circumstances and the deployment of this particular case management tool is not suited to the circumstances which prevail.
6 I ask that the order is set aside of the court’s own initiative"
Should you send the letter or wait for the call
The problem is I can't guarantee the call, i can just say 'we're working on it'. So why not prepare to send the letter but hold on. This isn't cos the letter isn't any good, but that if we manage to get a lawyer (as is very hopeful) then (s)he may have their own strategy which differs slightly.
Martin
"Upon the Court's own motion, the Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed, within seven days of receiving it.
IT IS ORDERED THAT
This matter be listed on 4th July 2007 at 3.00pm to consider striking out the claim as disclosing no reasonable prospect of success in the light of the recent decision on Berwick v Lloyds TSB 15th May 2007"
(see a BBC news report on it http://news.bbc.co.uk/1/hi/business/6711197.stm)
If you are one of the few who have received this letter there are a number of notes.
1. This is one court flying against the face of what others are doing
<O></O>
2. It is a very strange note and one assumes it hasn't investigated fully what the case is.
<O></O>
3. It is a substantial watershed in bank charges and needs to be challenged as it sets a very interesting issue.
What should you do
1. If you have received this letter please PM me your phone number, working with the Consumer Action Group we now are hiring a top QC to deal with the case. Yet you must be the client. Don't do anything else without doing that, we want to try and co-ordinate all 20 people involved.
2. You can send a delaying letter.
The following is a letter drafted by a solicitor friend (who wishes to remain anonymous) to help. You can use this as a template to send as a response to the court. Update: I've kept this in for info, however, actually the vast preference is you don't do anything just get in touch as noted above.
VERY IMPORTANT WARNING REGARDING THE TEMPLATE LETTER BELOW. While every effort’s been made to ensure this letters accuracy. It isn’t intended to be seen as legal advice, purely a rough, template and no liability can be accepted by this site, Martin Lewis individually, or the author of the letter for any individual claimants who rely upon it.
"Would you please treat this letter as my application to set aside the order dated xxxxxx and would you also please forward to me copies of any correspondence the court has received from the defendant or the defendant’s solicitors which has prompted the order. My application fee will follow. The grounds of my application which I advance with the greatest of respect are as follows:
1 The Berwick decision is not a factor to be taken into account in the context of whether my claim should be struck out and, that being so, the foundation for the order is wrong.
2 The Berwick decision is not such a factor because [a] it is neither binding on or of persuasive authority in so far as your court is concerned; it was reached without any legal or satisfactory argument on behalf of the claimant who appeared in person and in the absence of the defendant which appears to have failed to participate in any way in the proceedings beyond filing a defence and, possibly, an allocation questionnaire (and in the circumstances the claim should have been dealt with effectively on a default basis); [c] it was reached without any or any satisfactory evidence of the terms and conditions that governed the banking contract between the parties making the finding that there had been no breach of contract on the claimant’s part an unsustainable one ; [d] it was reached without any or any satisfactory evidence from the defendant on any issues whatsoever and without any documentation from the defendant which would have enabled the court to come to a correct decision on reasonableness of charges; [e] it was reached on the basis that the burden to prove unreasonableness was on the claimant whereas the burden was on the defendant to justify reasonableness; [f] it is subject to an application for permission to appeal; [g] the defendant had settled many thousands of similar claims to my own before the decision and I believe continues to do so and [h] the unanimous expressed views of well informed and respected legal commentators is that the decision is a legal irrelevance.
3 It is wrong, unfair, unduly onerous and contrary to established principles and the overriding objective that I should be put to what will be a considerable expense in a small claim to satisfy the court that I have a real prospect of success simply on the basis that in one isolated case with exceptional circumstances a decision has been reached in an evidentially flawed claim on what I submit were erroneous and irrational grounds. The effect of such an order is to risk the stifling of claims of the nature of my own and it would be outrageous if such claims were allowed to be crushed in their infancy.
4 If I have to arrange for legal representation at potentially vast expense then so be it but the repercussions for me and all current litigation of this kind if the order stands are monumental.
5 It was inappropriate and wrong for the court to have made an order of its own initiative in the particular circumstances and the deployment of this particular case management tool is not suited to the circumstances which prevail.
6 I ask that the order is set aside of the court’s own initiative"
Should you send the letter or wait for the call
The problem is I can't guarantee the call, i can just say 'we're working on it'. So why not prepare to send the letter but hold on. This isn't cos the letter isn't any good, but that if we manage to get a lawyer (as is very hopeful) then (s)he may have their own strategy which differs slightly.
Martin
Martin Lewis, Money Saving Expert.
Please note, answers don't constitute financial advice, it is based on generalised journalistic research. Always ensure any decision is made with regards to your own individual circumstance.
Please note, answers don't constitute financial advice, it is based on generalised journalistic research. Always ensure any decision is made with regards to your own individual circumstance.
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Replies
http://news.bbc.co.uk/1/hi/business/6711197.stm
Zootscoot from Consumer Action Group here. I have been helping on these claims
If anybody has received an order, in addition to phoning Martin, could they please scan the order and e-mail it to [email protected].
Thanks.
Just to re-iterate we do not foresee that these orders will pose any threat to your claims.
Zootscoot.
have sent martin my no but can not scan order ,prior to this coming online i had already made a letter out to the judge himself ,stateing that each case should be dealt with on its own merit and that the berwick case did not set a presidance
hussar
How do I contact Martin wth my e-mail / phone no, and am I advised to send the letter Martin earlier mentioned?
many thanks,
headphoneman
And whilst I know I don't need say it. I will just for form. The CAG and MSE are together on this, so posts like the above from Zootscoot are more than welcome. And it's lovely for us all to be working so closely for the same goal
Please note, answers don't constitute financial advice, it is based on generalised journalistic research. Always ensure any decision is made with regards to your own individual circumstance.
please do what martin asks
If you have received this letter please PM me your phone number, working with the Consumer Action Group we are trying to investigate a lawyer to take on these cases. But I need phone numbers as you have to be the client.
There is a thread here that can be used for discussion...
http://forums.moneysavingexpert.com/showthread.html?p=5349265#post5349265
its gonna be busy as my times for 1400 hrs to on the 4th july too
Good luck Martin and it is nice to know that there is people to help please keep up the excellent work you are doing
we are all totally behind you
what is very annoying is that I had 2 successes against Nationwide and am doing this for my Daughter