Defence for those having their action stayed

Elise1309

Shooter - I was in the exact same position as you, wrote a request for the stay to be lifted, and did manage to get my case referred from Northampton to my local court. I was also pleased to note that the judge at Northampton instructed that my letter was sufficient to serve as an application for the stay to be lifted, no additional forms needed to be filled in and no further charges should be levied. I was quite pleased with this outcome. It does now mean I have to wait to see if the stay is lifted locally, of which there is no guarantee - but it's a step in the right direction.

FYI - letters are supposed to be addressed to the 'court manager' and sent to the address on the letter you received re the stay.

To anyone appealing a stay, the best advice I can give is to be very specific about why you think it should be lifted in your case ie details of any bank malpractice relating to your account management, proof of hardship status (bank statements, references from arrears letters etc).

shooter

Hi Elsie1309
Can you suggest anything that I should attach to my letter other than the Schedule of charges, Maybe myletter from the hospital and my husbands death certificate?
I have added the paragraoh stokey 125 suggested and my letter now looks like this

Dear Sir/Madam

I would be grateful for your time in this matter<O:p</O:p
You have granted LTSB a stay in the above case and I am writing to you in the hope that you will either lift the stay or transfer my case to my local county court, this being Croydon county court for hearing<O:p</O:p
I am a 37year old single mother living on Widowed Parents allowance, Child benefit and child tax credit. My husband died 25<SUP>th</SUP> may 2007 after a very long and distressing illness.<O:p</O:p
The charges I am claiming were all taken from My/Our benefit payments and at time left us with no money for food and resulted in us having to ask our families for help, on several occasions.<O:p</O:p
When my husband died I immediately informed the bank that I was going to experience even more financial hardship as a result of this and asked for their help. None was forthcoming. My family’s income dropped from £**** to £**** per month upon my husband’s death. In fact since informing them they have added charges to the sum of £1361.93 to my accounts.( Enclose a schedule of charges for your attention) I am unable to work due to ill health, partly as a result of caring for my late husband. I am awaiting treatment at the Neuro-rehab clinic at the ********
I strongly believe that a stay will cause my family and me great financial hardship as if this case remains stayed until the outcome of the test case we will have even more charges to deal with and this will cause an unending vicious cycle.<O:p</O:p
<O:p</O:p
Also I would like to draw the attached particulars of claim in the case of OFT v Abbey National PLC and Others. I believe from reading this document that the stay was obtained by a misrepresentation of the facts. As you will see the only issue that the High Court is being asked to decide is whether the Unfair Terms in Consumer Contracts Regulations applies in relation to bank charges. No other matters are being dealt with so regardless of the decision in the OFT case a trial will still be needed to determine whether the actual charge in this case is fair or not. Also the question of whether the terms under which the charges are levied is in substance a liquidated damages clause and if so whether it amounts to a penalty clause so as to be unenforceable would have to be decided. As there are therefore triable issues which will not be decided in the OFT case a stay would not be appropriate.



This is the link to get the particulars of claim mentioned. http://www.oft.gov.uk/shared_oft/bus...s-of-claim.pdf<!-- / message --><!-- sig -->



What do you think have I given enough information? do I need to add anything else?


I look forward to you advise

Shooter

shooter

Does anyone think that I should send a copy of this to SCaM????

deary65

I posted this on an other thread, you are interested in the last clause, print it of and send it with your letter.


The most important document next to the conqueror's last will and testament is the magna carta ,which was amended several times from 1215 to 1219 it's most important enduring legacy is the great writ of Habeas corpus contained in clause 36,38,39 and 40. Three clauses still remain in force of the 1297 version:

• I. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

• IX. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.

• XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.[1]

A precedent is born out of a dispute between two or more persons having the legal capacity to do so, that decision, is not the law of the land, in other words judges do not make the law. The stay should therefore be lifted.

shooter

New and rehashed letter

Dear Sir/Madam,

I would be grateful for your time in this matter.

You have granted LTSB a stay in the above case and I am writing to you in the hope that you will either lift the stay or transfer my case to my local county court, this being Croydon county court for hearing.

The stay infringes 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.”

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, even indeed probable that final resolution may not be reached for 2 – 4 years or perhaps even longer. It is thus submitted that the time of the final determination of the test case cannot be predicted and so the stay would 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

I would respectfully draw the courts attention to the Master of the Rolls decision that all outstanding bank charges cases should not be automatically stayed. My understanding is that the Deputy Head of Civil Justice has written to all designated Civil Judges, inviting them to consider staying outstanding claims on an individual case by case basis as appropriate.
I do not believe this has happened with my case.
I object to the order of stay and submit that there is good reason why my case should be allowed to proceed to trial in advance of the final determination of the OFT case. The grounds for such objections are set out as follows.
I am a 37year old single mother living on Widowed Parents allowance, Child benefit and child tax credit. My husband died 25th May 2007 after a very long and distressing illness.
The charges I am claiming were all taken from My/Our benefit payments and at time left us with no money for food and resulted in us having to ask our families for help, on several occasions.
When my husband died I immediately informed the bank that I was going to experience even more financial hardship as a result of this and asked for their help. None was forthcoming. My family’s income dropped from £**** to £**** per month upon my husband’s death. In fact since informing them they have added charges to the sum of £1361.93 to my accounts.( Enclose a schedule of charges for your attention) I am unable to work due to ill health, partly as a result of caring for my late husband. I am awaiting treatment at the Neuro-rehab clinic at the *********.
I strongly believe that a stay may potentially mean great difficulty for me and my family 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.

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.


At least 300 claims have been brought against the defendant this year involving similar issues. This is evidenced by a sample list of settled claims, which is attached. Despite flatly denying its customers complaint in the preliminary stages then subsequently always indicating an intention to defend, then filing a defence, then an allocation questionnaire, then breaching any directions, the defendant has compromised each and every such claim in advance of the hearing, usually following unnecessary and protracted litigation. The defendant purports to settle these claims without liability for ‘costs’ or ‘commercial’ reasons, yet for example on many occasions previously, as the court may already be aware, it has gone to the expense of setting aside default judgments only to settle the claim shortly after. The defendant continues to spuriously defend claims only to subsequently settle them, flagrantly breaching multiple court orders and provisions of the CPR as it does so. Many County Courts now consider the litigation tactics employed by banks in these cases as an abuse of court process and are regularly striking out their defences as a result.

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. I think that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, 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.

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the my pursuit of a 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 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.

Also I would like to draw the attached particulars of claim in the case of OFT v Abbey National PLC and Others. I believe from reading this document that the stay was obtained by a misrepresentation of the facts. As you will see the only issue that the High Court is being asked to decide is whether the Unfair Terms in Consumer Contracts Regulations applies in relation to bank charges. No other matters are being dealt with so regardless of the decision in the OFT case a trial will still be needed to determine whether the actual charge in this case is fair or not. Also the question of whether the terms under which the charges are levied is in substance a liquidated damages clause and if so whether it amounts to a penalty clause so as to be unenforceable would have to be decided. As there are therefore triable issues which will not be decided in the OFT case a stay would not be appropriate.


I would urge the court to reject the indiscriminate blanket staying of claims as is seemingly being sought by the defendant in this and other similar claims by way of its generic template letters.


If the court does not accede to this application, I respectfully request that the stay remains subject to the following orders:

• That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.
• That the defendant is prevented from closing my account.
• 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.
• 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 )
• 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.)
• That these injunctions remain in place until the settlement of my claim.
• 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.
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

I look forward to your decision with anticipation
Please accept my thanks for taking time in your busy schedule to read this.

Yours faithfully


Any one got any comments or suggestions
Should I send a copy to SCaM?
Is this OK or is it TOO long and windy?

Shooter

Stokey125

It sounds fine to me

monkeymax

Please see blelow the letter i intend to send to my CC in application to remove the stay applied on 30th Aug 07. Please be honest in comments of how i can change or add to it. I would like to send this tomorrow -
Letter reads -

I wish to apply for the recent stay applied to my claim against Barclays be lifted due to the following reasons-

Firstly, my claim was started in Feb 07 and was delayed all the way by Barclays. I received no correspondence from Barclays apart from an offer of less than 50% of my original claim just some 40 days into the claim. Once I turned this down I no longer heard from Barclays unless I e-mailed or phoned them myself. I have received e mails from members in Barclays Litigation team before the test case was announced stating that I should contact them one week before my hearing and they would probably make me an offer. I also wrote to Barclays offering a reduced settlement (minus interest) and received no reply. I feel that if Barclays had responded to me this would have been sorted before the test case was announced on 27th July. One week before my hearing I contact Barclays by phone and was told no offer would be made now as all cases will be stayed. The litigation team member then proceeded to ask me questions about the date and time of the hearing as there was no information in my file. I then attended a allocation hearing on 30th August, I had no paperwork from Barclays supplying what they handed to you in support of their stay, no contact with the Barclays representative that was in the hearing and no further contact from Barclays since, even though e mails have been sent to their litigation team.

Secondly, I’d like to apply for the lifting of the stay on the grounds of financial hardship. I feel this amount of money is significant in regard to my current financial problems. Since my claim was registered with the court Barclays have continued to charge my account as I am now in a position where my monthly earnings minus compulsory bills do not take me out of my overdraft and I continue to be charged each month. Since June 07 I have been charged an additional £450 in charges and due to rejected direct debits have twice missed payments causing black marks on my credit rating. This will not cease until money (whether lawful or not) has been repaid by my bank. I calculate that the rate of charges being paid every month (sometimes as much as £95) will soon take me down to level that will not allow my budget account payment to be taken out. This will cause a shortfall in Mortgage payments, utility bills and council tax. The only other income received into our budget account is my wife’s part time earnings and Children’s tax credit that is now being swallowed up on bills I cannot pay. My wife cannot work anymore hours due to childcare obligations. If my charges were to be paid back to me this problem would cease as my only unaffordable bill is monthly bank charges. I have a 10 month old son that relies on me being able to provide him with food and milk. The Tax credits are there to help me do this but are now in trouble of being swallowed up by other debts. If this is allowed to go on for another year or so pending the test cases outcome I could be in debt to a degree where I will have to sell my house and move away or downgrade. This is not something I wish to do with a young child
If the stay is not lifted I would like to apply to have Barclays stop charging me until the outcome of the test case. I understand the position of the judge in my hearing when he commented stating that these fees have not yet been deemed unlawful but at the same time they have not been deemed lawful. I cannot see why I should not be allowed to not pay Barclays money that might not be due to them when I have to continue to.

I also attach a statement from the FSA website, this shows the FSA has demanded banks still deal with cases that fall within the ‘Financial Hardship’ bracket. I would ask the court to also act in regards to this and to accept the application of lifting stays to those in financial hardship.

Finally from e mail correspondence I have received from Barclays and from posts on various consumer websites I feel if a hearing was set for my claim that Barclays would settle without attending court.

If you wish to see any of the documents I have mentioned in support of my application I would be more than happy to send you copies.

Stokey125

monkeymax wrote: »

Please see blelow the letter i intend to send to my CC in application to remove the stay applied on 30th Aug 07. Please be honest in comments of how i can change or add to it. I would like to send this tomorrow -
Letter reads -

I wish to apply for the recent stay applied to my claim against Barclays be lifted due to the following reasons-

Firstly, my claim was started in Feb 07 and was delayed all the way by Barclays. I received no correspondence from Barclays apart from an offer of less than 50% of my original claim just some 40 days into the claim. Once I turned this down I no longer heard from Barclays unless I e-mailed or phoned them myself. I have received e mails from members in Barclays Litigation team before the test case was announced stating that I should contact them one week before my hearing and they would probably make me an offer. I also wrote to Barclays offering a reduced settlement (minus interest) and received no reply. I feel that if Barclays had responded to me this would have been sorted before the test case was announced on 27th July. One week before my hearing I contact Barclays by phone and was told no offer would be made now as all cases will be stayed. The litigation team member then proceeded to ask me questions about the date and time of the hearing as there was no information in my file. I then attended a allocation hearing on 30th August, I had no paperwork from Barclays supplying what they handed to you in support of their stay, no contact with the Barclays representative that was in the hearing and no further contact from Barclays since, even though e mails have been sent to their litigation team.

Secondly, I’d like to apply for the lifting of the stay on the grounds of financial hardship. I feel this amount of money is significant in regard to my current financial problems. Since my claim was registered with the court Barclays have continued to charge my account as I am now in a position where my monthly earnings minus compulsory bills do not take me out of my overdraft and I continue to be charged each month. Since June 07 I have been charged an additional £450 in charges and due to rejected direct debits have twice missed payments causing black marks on my credit rating. This will not cease until money (whether lawful or not) has been repaid by my bank. I calculate that the rate of charges being paid every month (sometimes as much as £95) will soon take me down to level that will not allow my budget account payment to be taken out. This will cause a shortfall in Mortgage payments, utility bills and council tax. The only other income received into our budget account is my wife’s part time earnings and Children’s tax credit that is now being swallowed up on bills I cannot pay. My wife cannot work anymore hours due to childcare obligations. If my charges were to be paid back to me this problem would cease as my only unaffordable bill is monthly bank charges. I have a 10 month old son that relies on me being able to provide him with food and milk. The Tax credits are there to help me do this but are now in trouble of being swallowed up by other debts. If this is allowed to go on for another year or so pending the test cases outcome I could be in debt to a degree where I will have to sell my house and move away or downgrade. This is not something I wish to do with a young child
If the stay is not lifted I would like to apply to have Barclays stop charging me until the outcome of the test case. I understand the position of the judge in my hearing when he commented stating that these fees have not yet been deemed unlawful but at the same time they have not been deemed lawful. I cannot see why I should not be allowed to not pay Barclays money that might not be due to them when I have to continue to.

I also attach a statement from the FSA website, this shows the FSA has demanded banks still deal with cases that fall within the ‘Financial Hardship’ bracket. I would ask the court to also act in regards to this and to accept the application of lifting stays to those in financial hardship.

Finally from e mail correspondence I have received from Barclays and from posts on various consumer websites I feel if a hearing was set for my claim that Barclays would settle without attending court.

If you wish to see any of the documents I have mentioned in support of my application I would be more than happy to send you copies.

You may wish to use the Human Rights arguments and the argument based on the particulars of claim from the OFT case in post 8 of this thread

zpacey

Hi all,

I received a letter from the courts stating my case will be stayed until after th test case. so I browsed here and found this letter which I sent the court:

I write with regard to the stay on my above case that was sanctioned by the Honourable District Judge Hewstson-Brown sitting at Luton County Court, which the court advised me of on 20<SUP>th</SUP> August 2007 to which I received on 22nd August 2007 in the post.

I respectfully submit to the court, that the stay be lifted for the following reasons:

I believe the case set down to be heard in the high court March 2008 violates my human right to a fair and speedy trial for the OFT are using an instrument in the form of UTCCR which, in its self, has not been fully incorporated into the body of laws and as such does not have competent authority to create and set a precedent nor bind me, and as I cannot be made a party to the proceeding.

I further contain that this is denying me my right to wager my law on the contract.

I further submit for the courts consideration that it is common knowledge the Alliance and Leicester Bank have consistently failed to defend similar claims made against them in the county courts and that sums of money, wrongfully appropriated, have been returned to customers accounts.

I further contain and believe that the banks and OFT are by their action denying me the right to do justice to the manner in which, I feel I have been wronged.


I respectfully submit the above matters for your consideration and equitable decision.

Well the court has cme back to me with the following letter:

Your letter dated 5th sept 2007 was referred down to the judge who states you make a formal application and that you should carefully consider the issue of the costs of any such application.
The cost of making an application on notce is £65. It is possible that with consent the matter can be dealt with on paper in which case the fee is £35. However, if the judge does decide a hearing will be needed the fee will be £65.

Now the forms I have to fill are the ones I really need help with: they state:

1. How do you wish to have your application dealt with
a) at a hearing?
b)at a telephone conference
c)without a hearing?

2. Give a time estimate for the hearing/conference

---

(hours)

---

(mins)

3. Is this agreed by all parties?

4. Give dates of any trial period or fixed tria date

5. Level of judge

6. Parties to be served.

Then you need to either complete part a or b.

part a: I

---

intend to apply for an order (a draft of which is attached) that

---

because

---

part b: I wish to rely on:
tick one
the attached (witness statement)(affidavit)
my statement case
evidence in Part c in support of my application.

Am so sorry this is a long one but I really need help so that I fill out this form correctly. I feel i might have chance with this so guys/gals go ahead and help a desperate mum.

Many thanks in advance.


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monkeymax

try this page on CAG.
http://www.consumeractiongroup.co.uk/forum/bank-templates-library/17065-application-removal-stay-updated.html
it show what to right on the form N244 (needed to apply for the lifting of a stay)
hope this answers your question, i have just sent off a letter containing this info