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Arguments against suspending Claim

As some of you have cases coming up over the next couple of months and are likely to be met with requests from the banks for the cases to be suspended I thought I would make a suggestion as to an approach to take if the bank does ask for a suspension of the claim until after the Test Case.


I would suggest telling the judge something like the following


The decision whether to suspend is one within your discretion in coming to your decision there are four points which you should bear in mind in determining whether this application is a genuine attenpt to come to a fair resolution of matters and should be allowed or a delaying tactic and dismissed.


Firstly, if you look at the conduct of the defendant in previous claims of this nature after putting in a defence they have waited until the day of the hearing and then settled matters. They have never defended a claim. They seem to use the court process to delay matters until the hearing when they suddenly settle so it is not clear that this matter will actually come to trial if it is not suspended.

Secondly, while they argue that this claim should be stayed pending the resolution of the test case they are not suspending the charges which are at the root of both the test case and this claim. If it is appropiate to suspend this claim pending the outcome of the test case then it must equally be appropriate to suspend the imposition of the charges.

Thirdly, applying the overridding objective and looking at the relative resources of the parties who would suffer the greater relative loss and accordingly suffer the greater detriment if this matter is suspended.

Fourthly, the purpose of the request for the stay is to allow a test case which has only just started to go through. The same result can be achieved by setting this matter down for trial on the first open date after 28 days with the defendant ot produce a statement supported by a statement of truth detailing exactly what work is involved in returning a payment and why the charge remains the same when more than one payment is returned the same time.

On this argument the judge can do one of three things grant the stay, refuse the stay, grant the stay but order that the charges be suspended until the outcome of the test case. If anyone uses this argument let me know what happens.


Michael
As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person

Comments

  • Stokey125
    Stokey125 Posts: 671 Forumite
    Also as an alternative strategy if the bank try and persuades you to agree to a stay then say that you will only agree to a stay if they agree as a term of the consent order staying the proceedings to suspend imposing any new charges on your account until the resolution of the test case.


    If they then impose any new charges they will be in contempt of court
    As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person
  • Stokey125
    Stokey125 Posts: 671 Forumite
    bouncing back up for a while
    As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person
  • I think the idea you have on post two is very interesting indeed. Wonder if anyone will argue that point, in fact, if everyone did, the bank would have contempt hearings for quite some time.
    I have not worked for NatWest Bank since February 2009

    This username is no longer active.
  • Lets not fool ourselves that the courts will find in our favour. The FSA by suspending all future claims until after the test case has given the banks a get out of jail free card. Why? Because there will never be a test case.
    The banks and their legal teams will find all kinds of obstacles to prevent it even reaching the court anytime in this millenium. If the boot was on the other foot would the charges be stopped until after the test case. I think we already know the answer to that don't we. NO.
    I think that we should raise a fighting fund to take the FSA to court to have this suspension thrown out. They are SUPPOSED to be independent, this is not an independent act.
  • Stokey125
    Stokey125 Posts: 671 Forumite
    mi.keyb wrote: »
    Lets not fool ourselves that the courts will find in our favour. The FSA by suspending all future claims until after the test case has given the banks a get out of jail free card. Why? Because there will never be a test case.
    The banks and their legal teams will find all kinds of obstacles to prevent it even reaching the court anytime in this millenium.

    If this case had been bought 8 years ago you would have possibly had a point but these days there is little scope for stalling cases. Also the suspension does NOT apply to court cases. By the end of this week we should have a better feel of how the courts are going to react to the test case early indications are they are not going to be very cooperative mainly tothe banks behaviour in this area. Also the last time the OFT tookmthe banks to court over using credit cards abroad there was a hearing and an appeal so history is against you.
    As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person
  • Stokey125
    Stokey125 Posts: 671 Forumite
    I have added a new argument to the initial post please reaad.
    As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person
  • It says that the test case is looking into overdraft charges adn claims for these are suspended at the moment. Does that mean that claims for charges for unpaid Direct debits and cheques are also suspended?

    Thanks

    Layla
  • Stokey125
    Stokey125 Posts: 671 Forumite
    It says that the test case is looking into overdraft charges adn claims for these are suspended at the moment. Does that mean that claims for charges for unpaid Direct debits and cheques are also suspended?

    Thanks

    Layla


    No court claims have been suspended yet as far as I am aware I am not sure about cases with the ombudsman but unpaid direct debits and cheques would be covered
    As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person
  • tiger5000
    tiger5000 Posts: 108 Forumite
    Part of the Furniture Combo Breaker
    I have just had a reply from Smile citing the standard suspension text that I was expecting.
    I've replied to them asking them to confirm that, while the suspension is active, they will not impose any more penalty charges on my account.
    I suspect they won't agree to this. I suspect that they'll remind me that they are not penalty charges. Its all very one-sided.
  • Ta stokey...bit late now tho, no matter I addressed with my sols mate tonite on what to write to scam and she says to address the court on the 7th regarding the stay on my claim...
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