Defence for those having their action stayed

deary65

Here is an explanation of a penalty and why the banks settle out of court ( for they don't want to disclose the actual cost of the breach), and why in my opinion a stay may be an abuse of process, for the courts are being used to divest you of your right to wager your law on the contract and are subjecting you to will of a decision to which you are not a party ie. setting a default penalty charge. Which the courts will not enforce anyway.


Definition of penalty clause:
A penalty is a term in a contract that imposes some fixed, punitive payment in the event of a default on some duty in the contract. As a general rule, penalty clauses will not be enforced by the courts. However, it is open to a person who seeks to rely on such a clause to argue that it is a liquidated damages clause, that is, it genuinely reflects the loss that flows from the default.


Definition of liquidated damages:
A term of a contract which sets out an amount of money to be paid by one party to another, in the
event that there is some default on the duties in the contract. It is a defining feature of a liquidated damages clause that it genuinely addresses the losses that flow from the default, and does not attempt simply to penalise the default. No man should suffer a fine or penalty or punishment without the authority of the court: magna carta1215-1229, bill of rights 1689.


In other words the courts will not enforce what amounts to a penalty, so I have no idea what a test case is going to prove.

corinne28

i have got as far as court proceedings and all has been stayed. today i recieve three letters with regards abbey. one from the court 'allocationa questionaire' which you have to pay another £100 when returned. (wasn't aware of that fee) secound letter from abbey explanning the stay. And third from abbey with regards my overdraft i owe them which is made up of there charges anyway. demanding i pay it all now. shall i argue that iam not going to pay it until i've recieved my refund or what. any advice gratefully apprieciated.

deary65

lindilou39 wrote: »

weaknesses..vodka and poor spelling men..

I'm I to understand that you are flirting young lady?

Stokey125

deary65 wrote: »

Here is an explanation of a penalty and why the banks settle out of court ( for they don't want to disclose the actual cost of the breach), and why in my opinion a stay may be an abuse of process, for the courts are being used to divest you of your right to wager your law on the contract and are subjecting you to will of a decision to which you are not a party ie. setting a default penalty charge. Which the courts will not enforce anyway.


Definition of penalty clause:
A penalty is a term in a contract that imposes some fixed, punitive payment in the event of a default on some duty in the contract. As a general rule, penalty clauses will not be enforced by the courts. However, it is open to a person who seeks to rely on such a clause to argue that it is a liquidated damages clause, that is, it genuinely reflects the loss that flows from the default.


Definition of liquidated damages:
A term of a contract which sets out an amount of money to be paid by one party to another, in the
event that there is some default on the duties in the contract. It is a defining feature of a liquidated damages clause that it genuinely addresses the losses that flow from the default, and does not attempt simply to penalise the default. No man should suffer a fine or penalty or punishment without the authority of the court: magna carta1215-1229, bill of rights 1689.


In other words the courts will not enforce what amounts to a penalty, so I have no idea what a test case is going to prove.

If I might be permitted to play devils advocate for a minute. On this explanation of a penalty clause it is open to the banks to argue that the charge is not a penalty clause as it does not set the amount it only provides for it to be set. So while I agree that a penalty clause is not enforcable by the courts I am not totally convinced that the charge is a penalty clause as that term is normally used. Equally I do not believe that it is a liquidated damages clause either in which case that begs the question what is it and the answer to that which is what the test case is seeking to establish determines whether the chrage is enforcable.

Stokey125

corinne28 wrote: »

i have got as far as court proceedings and all has been stayed. today i recieve three letters with regards abbey. one from the court 'allocationa questionaire' which you have to pay another £100 when returned. (wasn't aware of that fee) secound letter from abbey explanning the stay. And third from abbey with regards my overdraft i owe them which is made up of there charges anyway. demanding i pay it all now. shall i argue that iam not going to pay it until i've recieved my refund or what. any advice gratefully apprieciated.

I am a bit puzzled if the court has stayed the case why have they sent an allocation questionnaire? In relation to the overdraft write to abbey saying that as the overdraft is made up only of charges and the legality of the charges you will seek an order from the court that the amount of the overdraft be paid into court untill the conclusion of the matter that way the money will be available should you have to pay it. The advantage of this is the 4% interest that you will be getting on it while it is in court. Just remember to make sure that the order says that the interest goes to you.

deary65

The post is an attempt to offer a defense to a stay.

The banks have had amble opportunity to come clean on the actual cost to them they have not, why?

My I suggest you read street V mountfort for an explanation of substance over form in a contract, a most interesting judgment not least because their lordships were unanimous in their judgment.

Stokey125

deary65 wrote: »

The post is an attempt to offer a defense to a stay.

The banks have had amble opportunity to come clean on the actual cost to them they have not, why?

My I suggest you read street V mountfort for an explanation of substance over form in a contract, a most interesting judgment not least because their lordships were unanimous in their judgment.

Actually I do not think the argument that it is not a penalty clause would actually succeed. However equally I do not believe your argument against a stay will succeed as the grant of a stay pending the outcome of another case is a permissible course of action and is within the courts case management powers. Also as one of the factors that has to be taken into count when deciding whether the overriding objective is best served by the grant or refusal of a stay is the efficient use of the courts resources. The argument that is can best be countered by the argument that taking the financial resources of the parties into consideration any disadvantage by pursuing the case as opposed to waiting for the outcome of the test case falls in favour of the claimant

Mark_My_Words

Originally Posted by corinne28
i have got as far as court proceedings and all has been stayed. today i recieve three letters with regards abbey. one from the court 'allocationa questionaire' which you have to pay another £100 when returned. (wasn't aware of that fee) secound letter from abbey explanning the stay. And third from abbey with regards my overdraft i owe them which is made up of there charges anyway. demanding i pay it all now. shall i argue that iam not going to pay it until i've recieved my refund or what. any advice gratefully apprieciated.

Stokey125 wrote: »

I am a bit puzzled if the court has stayed the case why have they sent an allocation questionnaire? In relation to the overdraft write to abbey saying that as the overdraft is made up only of charges and the legality of the charges you will seek an order from the court that the amount of the overdraft be paid into court untill the conclusion of the matter that way the money will be available should you have to pay it. The advantage of this is the 4% interest that you will be getting on it while it is in court. Just remember to make sure that the order says that the interest goes to you.

I'm sorry i dont want to hijack this topic but I have the same situation as Corinne except that we have debt collectors chasing us for the outstanding overdraft which is less than the claim we have made which now looks like it is going to be stayed (got a letter from the Abbey today).

What would you advise we do and if it's the same advice you gave Corinne can you clarify what you mean by 'paid to the court'?

Many thanks.

Mark

Stokey125

Mark_My_Words wrote: »

I'm sorry i dont want to hijack this topic but I have the same situation as Corinne except that we have debt collectors chasing us for the outstanding overdraft which is less than the claim we have made which now looks like it is going to be stayed (got a letter from the Abbey today).

What would you advise we do and if it's the same advice you gave Corinne can you clarify what you mean by 'paid to the court'?

Many thanks.

Mark

Basically this would have to be done by court order the maount iin dispute is paid into court, (actually it is paid to the court funds office who then hold the money in thier account until ordered to pay it out. Where both parties ar e represented by solicitors the same effect happens by the solicitors holding the money in a special join account with the money only paid out on a joint account. Money paid in to court has interst added to it I believe the ordinary inteest is 4%

lindilou39

deary65 wrote: »

I'm I to understand that you are flirting young lady?

who me??? never, interesting point on the magna carta, I mentioned this in these forums some months back albeit I quoted on the poll tax and not the current discussion on bank charges, I was looking for that quote funny enough..

young lol