Defence for those having their action stayed

Elise1309

You usually write to the Court Manager, whose address will be on the letter that informed you of the stay.

In order to get the stay lifted you'll have to present an argument that demonstrates considerable financial hardship should your case be delayed OR some evidence that your case isn't covered by the test case - for example, you aren't just argueing that the charges are excessive, you are disputing the manner in which they were applied to your account.

One point that I am slightly concerned about which I haven't seen addressed on here yet - if/when the bank enter a defence, the case is automatically supposed to be transferred to your local court. However, the court(s) processing the online claims seem to be granting 'stays' without referring the cases on. I feel this may be a corruption of due process - it should be the local court who grant or deny a stay since they would be the one hearing it. I'd be interested to know what others think about this point.

lindilou39

Elise1309 wrote: »

You usually write to the Court Manager, whose address will be on the letter that informed you of the stay.

In order to get the stay lifted you'll have to present an argument that demonstrates considerable financial hardship should your case be delayed OR some evidence that your case isn't covered by the test case - for example, you aren't just argueing that the charges are excessive, you are disputing the manner in which they were applied to your account.

One point that I am slightly concerned about which I haven't seen addressed on here yet - if/when the bank enter a defence, the case is automatically supposed to be transferred to your local court. However, the court(s) processing the online claims seem to be granting 'stays' without referring the cases on. I feel this may be a corruption of due process - it should be the local court who grant or deny a stay since they would be the one hearing it. I'd be interested to know what others think about this point.

I quite agree Elise...if the defendants have entered a defence then why the need for a stay?

Phamous

Hello all!

I have a court case against Barclays and have asked for an adjournment because I am taking my only week-long holiday of the year during my court date! (Typical timing!)

In response to my request for an adjournment I got a General Form of Judgment Or Order stating the following...(from Salisbury County Court)

_________________________________________________________________
IT IS ORDERED THAT

1. On application by Claimant hearing on the 11th September 2007 be vacated,

2. Parties show cause in writing by 26th September 2007 why Claim should not be stayed pending outcome of case in Commercial Court in London of OFT, Abbey and 7 others.
_________________________________________________________________

This is brilliant as rather than simply staying the case without a hearing - as some other judges seem to have done - this means the Judge is giving me the opportunity to put forward why he should still hear the case.

I have scoured the forums but as they are a little more deserted these days, I am struggling to find a comprehensive and correctly legally-worded argument that I can send to the court.

If anyone has already written to the court stating why the case should be heard please could you help?

I am not particularly legally-minded (although I have had a crash course recently in preparing for my case) and naturally I am worried I could jeopardise my case by saying something wrong. Like most people, I really need the money so want to get this just so and convince the judge to press on.

Any help would be appreciated.

Thanks in advance
Phamous

Stokey125

Phamous wrote: »

Hello all!

I have a court case against Barclays and have asked for an adjournment because I am taking my only week-long holiday of the year during my court date! (Typical timing!)

In response to my request for an adjournment I got a General Form of Judgment Or Order stating the following...(from Salisbury County Court)

_________________________________________________________________
IT IS ORDERED THAT

1. On application by Claimant hearing on the 11th September 2007 be vacated,

2. Parties show cause in writing by 26th September 2007 why Claim should not be stayed pending outcome of case in Commercial Court in London of OFT, Abbey and 7 others.
_________________________________________________________________

This is brilliant as rather than simply staying the case without a hearing - as some other judges seem to have done - this means the Judge is giving me the opportunity to put forward why he should still hear the case.

I have scoured the forums but as they are a little more deserted these days, I am struggling to find a comprehensive and correctly legally-worded argument that I can send to the court.

If anyone has already written to the court stating why the case should be heard please could you help?

I am not particularly legally-minded (although I have had a crash course recently in preparing for my case) and naturally I am worried I could jeopardise my case by saying something wrong. Like most people, I really need the money so want to get this just so and convince the judge to press on.

Any help would be appreciated.

Thanks in advance
Phamous

If you look at thbis thread thre are some arguments you might want to consider there are others http://forums.moneysavingexpert.com/showthread.html?t=514206. Also if you quote from the document at this link http://www.oft.gov.uk/news/press/2007/126-07. you can argue that as the OFT make clear in this press notice the only question that is being addressed in the Test Case is whether the requirement of fiarness in the UTCCR applies to bank charges none of the other issues are being considered. Accordingly, even after the test case a trial would be needed to determine whether the charges amount to a penalty charge so as to be unenforcable. Also the question of whether the charges actually are unfair would still have to be determined. Therefore as a number of issues would still ahve to be determined regardless of the decision in the test case there is no justification for staying the claim pending its outcome.

Phamous

Thanks Stokey, your help is much appreciated.

Right - well after some looking around, I found a letter (on the CAG site) which was successful in overturning a stay and added my own bits and pieces to it - including your bit about the UTCCRs, thank you kindly!

I know it's a long read but if you do happen to get a mo to cast your eye over it and let me have your opinions, that would be great.

Thanks in advance
An already feeling a tad more optimistic
Phamous

Claim Number:XXXXXXX

In the XXXXXXXX County Court

Between:


[YOU]
Claimant

-and-



XXXXXXX BANK PLC
Defendant



I strongly object to the proposed order of a stay in respect of the claim detailed above upon the following grounds;

Human rights

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

The Overriding Objective

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

Balance of convenience

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim. I have enclosed a copy of an email which was sent to me from Barclays Litigation and Compliance Department which states that: “I fully intend to settle your claim before it gets to court…” which is clear evidence of the bank’s deliberate attempt to use the justice system as a delaying tactic and as much was repeated to me in a telephone conversation with Barclays Litigation and Compliance Department regarding the settlement of my claim.

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

ffice:office" /><O:p></O:p>
The Test Case<O:p></O:p>
<O:p> </O:p>
As the test case is only dealing with the question of whether the fairness requirement in the UTCCR applies to bank charges and not to either whether they are in fact unfair or the question whether they amount to a penalty charge and are therefore unlawful a trial would be need to determine these points. Accordingly, the case should go ahead to determine the matter on these two points which will not be determined by the test case. (I have enclosed a recent Press Release from the Office of Fair Trading in support of this statement)
<O:p> </O:p>

In the alternative

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, I respectfully request that the court issues the following injunctions: <O:p></O:p>

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter. <O:p></O:p>
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter. <O:p></O:p>
• That the defendant is prevented from closing my account. <O:p></O:p>
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter. <O:p></O:p>
• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 ) <O:p></O:p>
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998.) <O:p></O:p>
• That these injunctions remain in place until the settlement of my claim. <O:p></O:p>
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent. <O:p></O:p>
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.<O:p></O:p>

I, the Claimant, believe all facts stated to be true.

Signed:
Dated:

Stokey125

Phamous wrote: »

Thanks Stokey, your help is much appreciated.

Right - well after some looking around, I found a letter (on the CAG site) which was successful in overturning a stay and added my own bits and pieces to it - including your bit about the UTCCRs, thank you kindly!

I know it's a long read but if you do happen to get a mo to cast your eye over it and let me have your opinions, that would be great.

Thanks in advance
An already feeling a tad more optimistic
Phamous

Claim Number:XXXXXXX

In the XXXXXXXX County Court

Between:


[YOU]
Claimant

-and-



XXXXXXX BANK PLC
Defendant



I strongly object to the proposed order of a stay in respect of the claim detailed above upon the following grounds;

Human rights

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

The Overriding Objective

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

Balance of convenience

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim. I have enclosed a copy of an email which was sent to me from Barclays Litigation and Compliance Department which states that: “I fully intend to settle your claim before it gets to court…” which is clear evidence of the bank’s deliberate attempt to use the justice system as a delaying tactic and as much was repeated to me in a telephone conversation with Barclays Litigation and Compliance Department regarding the settlement of my claim.

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

ffice:office" /><o>:p></o>:p>
The Test Case<o>:p></o>:p>
<o>:p> </o>:p>
As the test case is only dealing with the question of whether the fairness requirement in the UTCCR applies to bank charges and not to either whether they are in fact unfair or the question whether they amount to a penalty charge and are therefore unlawful a trial would be need to determine these points. Accordingly, the case should go ahead to determine the matter on these two points which will not be determined by the test case. (I have enclosed a recent Press Release from the Office of Fair Trading in support of this statement)
<o>:p> </o>:p>

In the alternative

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, I respectfully request that the court issues the following injunctions: <o>:p></o>:p>

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter. <o>:p></o>:p>
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter. <o>:p></o>:p>
• That the defendant is prevented from closing my account. <o>:p></o>:p>
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter. <o>:p></o>:p>
• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 ) <o>:p></o>:p>
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998.) <o>:p></o>:p>
• That these injunctions remain in place until the settlement of my claim. <o>:p></o>:p>
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent. <o>:p></o>:p>
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.<o>:p></o>:p>

I, the Claimant, believe all facts stated to be true.

Signed:
Dated:

Let me know if it works

geoff1057

hi went on a 10 day holiday ,to arrive back home late on tues 4th sept, my court prelim hearing was 5th sept ,all my paperwork was in place ,and i was looking forward to going to court ,i had forwarded another copy of SoCs, and a letter opposing a stay (barclays said they would be applying for one) to the court to be put on my file . i had phoned the court previously asking about stays ,and was informed that they are not issuing them and the judge looks at every case individually...........................a letter on the mat when i arrived home........it is ordered that......1. this claim is stayed until further order with a view to awaiting the final decision in the test case....2. the defendant shall within 28 days of the final decision in the test case file at court and serve on the claimant ;(a)a case summary of not more than 500 words setting out the effect of that decision;(b)their proposed directions in this claim..........3. upon receipt of the documents para 2 of this order the file be reffered to a resident district judge to consider further directions....4. either party may apply at any time ,by application on notice in accordance with the civil procedure rules 1998 part 23 to lift the stay........5. because this order has been made by the court without considering representations from the parties the parties have the right to apply to have the order set aside , varied or stayed. a party wishing to make an application must send or deliver the applicationto the court to arrive within seven days of service of this order.. this was issued on 23rd aug and arrived 27th aug , while on holiday, ......i phoned the court asap told do not turn up, and you are to late to apply to get stay lifted, would be wasting your money anyway. the judge in this case didnt even look at my notes as he would have seen the letter opposing this stay . can any one please tell me what this document is actually saying ,apart from the case being stayed, and is there anything i can do to complain about this ....thanks Geoff

Stokey125

geoff1057 wrote: »

hi went on a 10 day holiday ,to arrive back home late on tues 4th sept, my court prelim hearing was 5th sept ,all my paperwork was in place ,and i was looking forward to going to court ,i had forwarded another copy of SoCs, and a letter opposing a stay (barclays said they would be applying for one) to the court to be put on my file . i had phoned the court previously asking about stays ,and was informed that they are not issuing them and the judge looks at every case individually...........................a letter on the mat when i arrived home........it is ordered that......1. this claim is stayed until further order with a view to awaiting the final decision in the test case....2. the defendant shall within 28 days of the final decision in the test case file at court and serve on the claimant ;(a)a case summary of not more than 500 words setting out the effect of that decision;(b)their proposed directions in this claim..........3. upon receipt of the documents para 2 of this order the file be reffered to a resident district judge to consider further directions....4. either party may apply at any time ,by application on notice in accordance with the civil procedure rules 1998 part 23 to lift the stay........5. because this order has been made by the court without considering representations from the parties the parties have the right to apply to have the order set aside , varied or stayed. a party wishing to make an application must send or deliver the applicationto the court to arrive within seven days of service of this order.. this was issued on 23rd aug and arrived 27th aug , while on holiday, ......i phoned the court asap told do not turn up, and you are to late to apply to get stay lifted, would be wasting your money anyway. the judge in this case didnt even look at my notes as he would have seen the letter opposing this stay . can any one please tell me what this document is actually saying ,apart from the case being stayed, and is there anything i can do to complain about this ....thanks Geoff

YOu could apply under the provision in paragraph 4 to lift the stay. I would advise that the best argument to deploy is that looking at the OFT press notice of 31 August, It can be found at this link http://www.oft.gov.uk/news/press/2007/126-07, it is clear that NOT all issues are being dealt with in the test case and that two important issues will be left unresolved and would need adjudicating on and therefore a stay is inappropiate. The two issues which are not being considered is whether the charge is actually unfair. The test case is only concerned with the question of whether the requirement of fairness in the UTCCR applies not with whether they are actually unfair this is made clear in the press notice. The second issue is whether the provision allowing the charge to be levied is a liquidated damages clause therefore requiring the charge to be a genuine pre-estimate of the banks loss. If it is not a genuine pre-estimate then it is unenforcable.

geoff1057

thanks stokey,so i could write to stoke on trent court to try and get the stay lifted with the argument in paragraph 4 of their document. Would my reason for opposing the stay be the template letter that i originally sent to court to be put on my file, the one judge schreoder couldnt be bothered to look at, and could i add any other arguments to this letter that would make my case for a lift of stay stronger, i would really like to go for this but not 100% sure what to put in my letter to change their minds about this stay . any help would be greatl appreciated thank you Geoff

Stokey125

geoff1057 wrote: »

thanks stokey,so i could write to stoke on trent court to try and get the stay lifted with the argument in paragraph 4 of their document. Would my reason for opposing the stay be the template letter that i originally sent to court to be put on my file, the one judge schreoder couldnt be bothered to look at, and could i add any other arguments to this letter that would make my case for a lift of stay stronger, i would really like to go for this but not 100% sure what to put in my letter to change their minds about this stay . any help would be greatl appreciated thank you Geoff

It has to be a formal application on notice using form N244 which attracts a fee. Paragraph 4 gives liberty to apply which means you still have to pay the fee. In part c of the application add everything from thentemplate letter and the observations on the scope of the test case.