HSBC apply for judgement of 25/7 to be set aside - help!

Palerie-head

I've received a pack from HSBC's solicitors today to advise me that they have applied for the judgement that I was awarded on 25/7 to be set aside. In brief, here is what they have said:

We DG Solicitors on behalf of our client intend to apply for a draft order that:

(i) The order dated 25 July 2007 (apparently issued on 2 August) striking out the defence be set aside and the defence be reinstated on the basis of CPR r3.3(5) (setting aside order made of court's own motion) and or CPR r3.9 (relief from sanctions) and or CPR r3.1 (extension of time) and or CPR r3.1(7) (power to vary or revoke an order)

(ii) The claim be stayed pending the final determination (including for the avoidance of doubt, any appeals) of the commercial court proceedings issued on 27 July 2007 between OFT and the Defendant (and seven others) comprised in claim number 2007 Folio 1186 (the test case)

Because:

(i) Insofar as the application is based on CPR r3.3 (5) and/or CPR r3.9 and/or CPR r3.1(2)a, the sanctions of striking out defence for the defendant's failure to provide certain particulars of its defence within 28 days of receipt of a schedule and ceratain further information from the claimant is disproprtinate , particularly in light of the fact that (1)such particulars require extensive legal analysis and the application of those matters in each case to a range of charges, terms and conditions levied at various times, (2) the particulars of the legal analysis are, however, likely to be properly considered in due course in relation to the test case and the final determination of the test case is anticipated to be determinative of the substantive issues in the present proceedings; and (3) it would be appropriate in any event to stay the determination of the quantum issues pending the final determination of the test case, at which point it is anticipated that the particulars of the legal analysis would be available.

Also:

The claim should be stayed pending the final determination of the test case because:

1) The issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for the county court.

4) A stay in proceedings is consistent with the approach of the FSA and the FOS which has decided not to progress complaints about current charges until the outcome of the test case.

5) Many other county courts have taken the approach of staying equivalent cases in a context where unifromity of approach across the country is desirable.


There is also a lengthy witness statement from someone called Naomi Wharton who gives her address as the solicitors address which is pretty much going over the above.

I called the court this morning and apparently the application will be listed and I'll have the opportunity to represent myself.

Any help would be really really appreciated right now!

:eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek:

Stokey125

Palerie-head wrote: »

I've received a pack from HSBC's solicitors today to advise me that they have applied for the judgement that I was awarded on 25/7 to be set aside. In brief, here is what they have said:

We DG Solicitors on behalf of our client intend to apply for a draft order that:

(i) The order dated 25 July 2007 (apparently issued on 2 August) striking out the defence be set aside and the defence be reinstated on the basis of CPR r3.3(5) (setting aside order made of court's own motion) and or CPR r3.9 (relief from sanctions) and or CPR r3.1 (extension of time) and or CPR r3.1(7) (power to vary or revoke an order)

(ii) The claim be stayed pending the final determination (including for the avoidance of doubt, any appeals) of the commercial court proceedings issued on 27 July 2007 between OFT and the Defendant (and seven others) comprised in claim number 2007 Folio 1186 (the test case)

Because:

(i) Insofar as the application is based on CPR r3.3 (5) and/or CPR r3.9 and/or CPR r3.1(2)a, the sanctions of striking out defence for the defendant's failure to provide certain particulars of its defence within 28 days of receipt of a schedule and ceratain further information from the claimant is disproprtinate , particularly in light of the fact that (1)such particulars require extensive legal analysis and the application of those matters in each case to a range of charges, terms and conditions levied at various times, (2) the particulars of the legal analysis are, however, likely to be properly considered in due course in relation to the test case and the final determination of the test case is anticipated to be determinative of the substantive issues in the present proceedings; and (3) it would be appropriate in any event to stay the determination of the quantum issues pending the final determination of the test case, at which point it is anticipated that the particulars of the legal analysis would be available.

Also:

The claim should be stayed pending the final determination of the test case because:

1) The issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for the county court.

4) A stay in proceedings is consistent with the approach of the FSA and the FOS which has decided not to progress complaints about current charges until the outcome of the test case.

5) Many other county courts have taken the approach of staying equivalent cases in a context where unifromity of approach across the country is desirable.


There is also a lengthy witness statement from someone called Naomi Wharton who gives her address as the solicitors address which is pretty much going over the above.

I called the court this morning and apparently the application will be listed and I'll have the opportunity to represent myself.

Any help would be really really appreciated right now!

:eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek: :eek:

If you go to this link http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part03.htm#rule3_9 you will find rule 3.9 mentioned in the application and from there you will also find the other rules mentioned. What they are doing is relying on the courts case management powers. You will notice that when you go through the checklist in 3.9 the bank do not do very well. That is why they are not relying on just 3.9

In relation to the other rules they cite in thier application they are outside the 7 days for applying to set aside an order made of its own motion.


As for the reason for a stay and taking thier points in turn. In relation to the argument that there are complex legal issues which need analysis. If there argument that they are inappropiate for a county court and they genuinely wanted to dispose of the matter why is there no application under part 35 for a transfer to the High Court. Further there have been two first instance county court decisions on this matter Berwick v LloydsTSB which went in favour of the banks and Terry v LloydsTSB which went in favour of the claimant. Moreover on looking at the decision in Berwick it is clear that the District Judge fully understood the issues and was able to come to a decision.


The fact that regulators have decided to put thier cases on hold is not a relevant consideration. The question for the court is different In furthering the overiding objective what is the correct course of action.


On thier final point if a uniform of approach was desirable then the Master of the Rolls could have exercised his powers and give a direction to stay all these cases the fact that he did not shows that the courts retain a discretion in these matters as to whether to stay matters. It is worth noting that some courts are equally not staying matters.


I hope this assists

Palerie-head

Thanks Stokey, really useful advice as ever. I'm going to be writing to the court and ask them to take my arguements into consideration, and I'll be using the information provided above. I'm at the point of just giving up now and waiting for the test case to be heard, but maybe I'll get a judge who sees this for what it is...intimidation and bullying tactics by the bank's legal team. I'll let you know how I get on.

Palerie-head

1) Judgement was awarded to me on 25<SUP>th</SUP> July 2007. The defence are using a test case announced on 27<SUP>th</SUP> July 2007 as the basis for the judgement to be set aside. I would respectfully refer you to the attached FSA Direction (point 6.1) which states: The direction takes effect on 27 July 2007. I would argue that my judgement was awarded 2 full days before the announcement of the test case and therefore has no baring on my case.
2) With regard to the application being based on CPRr3.9 I believe that the defendant does not meet with the criteria of this rule. Specifically:
<DIR>(b) Whether the application for relief has been made promptly. The court date was advised in an order dated 21<SUP>st</SUP> May. This order detailed the information required by the court and the time scales involved. I submitted my claim on June 20<SUP>th</SUP> and the defendant received this by special delivery mail. The defendant then had a further 28 days in which to lodge their defence or otherwise.
(c ) Whether failure to comply was intentional. I would argue that failure to comply was intentional and that the bank have disregarded the direction of the court for their own ends and have waited for judgement to request it be set aside to avoid giving the evidence requested by the court.
(d) Whether there is good explanation for the failure. The defendant argues that ‘issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for determination in the context of the small claims court’. The defendant has made no application under part 35 for a transfer to the High Court. I am aware of hundreds of cases where the defendant has settled ‘on the steps’ of the court to avoid the matter being heard in court. I would also refer you to Terry V Lloyds TSB where a County Court judgement was awarded in favour of the claimant.
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol. The defendant has not complied with any practice directions or court orders in relation to this case.
</DIR>In light of the above I would ask that consideration of CPRr3.9 be disregarded.


3) The defendant also relies on CPRr3.3(5), CPRr3.1(2)(a), CPRr3.1(7). I believe that the defendant is outside of the 7 days for applying to set aside an order made of its own motion.
4) The defendant argues that the regulators have decided to put their cases on hold until after the test case which was announced on 27<SUP>th</SUP> July 2007. I do not believe this to be a relevant consideration in my case. I was given judgement on 25<SUP>th</SUP> July 2007 because the defendant did not comply with the terms of the order, namely they did not enter a defence. The announcement made on 27<SUP>th</SUP> July 2007 should not be retrospectively applied to a judgement that pre dates the announcement. If this were the case, it would be sensible to assume that all judgements that pre date the 27<SUP>th</SUP> July 2007 announcement would be set aside. I believe these cases to number the hundreds and I would question whether the defendant has applied to have each and every judgement that pre dates 27<SUP>th</SUP> July 2007 set aside.
5) I am aware that the defendant is still settling claims directly with claimants who applied for a refund of penalty charges prior to 27<SUP>th</SUP> July 2007. The FOS and FSA have directed the defendant to settle all cases where settlement figures have been agreed pre 27<SUP>th</SUP> July 2007. I believe that my case should be no different in this regard and that the defendant should honour the judgement issued by the court.
6) The defendant calls for a uniform of approach on claims for unfair penalty charges. I would argue that the defendant is not applying a uniform approach to the way that they are dealing with such claims. I am aware of many examples of cases that have been settled by the defendant with claimants who submitted their claims at a similar time to my own. Also, had the Master of the Rolls decided that a uniform approach be called for then I believe he would have exercised his powers and given direction to stay all cases similar to my own. The fact that this has not been done demonstrates to me that the court retains discretion in these matters as to whether to stay claims.
In light of the above, I would ask that the application for my judgement to be set aside be disregarded and that the court issue a warrant to the defendant for the full amount of the judgement awarded to me on 25<SUP>th</SUP> July.

Stokey125

Palerie-head wrote: »

1) Judgement was awarded to me on 25<SUP>th</SUP> July 2007. The defence are using a test case announced on 27<SUP>th</SUP> July 2007 as the basis for the judgement to be set aside. I would respectfully refer you to the attached FSA Direction (point 6.1) which states: The direction takes effect on 27 July 2007. I would argue that my judgement was awarded 2 full days before the announcement of the test case and therefore has no baring on my case.
2) With regard to the application being based on CPRr3.9 I believe that the defendant does not meet with the criteria of this rule. Specifically:

<DIR>(b) Whether the application for relief has been made promptly. The court date was advised in an order dated 21<SUP>st</SUP> May. This order detailed the information required by the court and the time scales involved. I submitted my claim on June 20<SUP>th</SUP> and the defendant received this by special delivery mail. The defendant then had a further 28 days in which to lodge their defence or otherwise.
(c ) Whether failure to comply was intentional. I would argue that failure to comply was intentional and that the bank have disregarded the direction of the court for their own ends and have waited for judgement to request it be set aside to avoid giving the evidence requested by the court.
(d) Whether there is good explanation for the failure. The defendant argues that ‘issues of principle raised by the present case have complex legal and factual aspects that cannot be resolved on a summary basis and are not appropriate for determination in the context of the small claims court’. The defendant has made no application under part 35 for a transfer to the High Court. I am aware of hundreds of cases where the defendant has settled ‘on the steps’ of the court to avoid the matter being heard in court. I would also refer you to Terry V Lloyds TSB where a County Court judgement was awarded in favour of the claimant.
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol. The defendant has not complied with any practice directions or court orders in relation to this case.

</DIR>In light of the above I would ask that consideration of CPRr3.9 be disregarded.


3) The defendant also relies on CPRr3.3(5), CPRr3.1(2)(a), CPRr3.1(7). I believe that the defendant is outside of the 7 days for applying to set aside an order made of its own motion.
4) The defendant argues that the regulators have decided to put their cases on hold until after the test case which was announced on 27<SUP>th</SUP> July 2007. I do not believe this to be a relevant consideration in my case. I was given judgement on 25<SUP>th</SUP> July 2007 because the defendant did not comply with the terms of the order, namely they did not enter a defence. The announcement made on 27<SUP>th</SUP> July 2007 should not be retrospectively applied to a judgement that pre dates the announcement. If this were the case, it would be sensible to assume that all judgements that pre date the 27<SUP>th</SUP> July 2007 announcement would be set aside. I believe these cases to number the hundreds and I would question whether the defendant has applied to have each and every judgement that pre dates 27<SUP>th</SUP> July 2007 set aside.
5) I am aware that the defendant is still settling claims directly with claimants who applied for a refund of penalty charges prior to 27<SUP>th</SUP> July 2007. The FOS and FSA have directed the defendant to settle all cases where settlement figures have been agreed pre 27<SUP>th</SUP> July 2007. I believe that my case should be no different in this regard and that the defendant should honour the judgement issued by the court.
6) The defendant calls for a uniform of approach on claims for unfair penalty charges. I would argue that the defendant is not applying a uniform approach to the way that they are dealing with such claims. I am aware of many examples of cases that have been settled by the defendant with claimants who submitted their claims at a similar time to my own. Also, had the Master of the Rolls decided that a uniform approach be called for then I believe he would have exercised his powers and given direction to stay all cases similar to my own. The fact that this has not been done demonstrates to me that the court retains discretion in these matters as to whether to stay claims.
In light of the above, I would ask that the application for my judgement to be set aside be disregarded and that the court issue a warrant to the defendant for the full amount of the judgement awarded to me on 25<SUP>th</SUP> July.

That looks fine save on 3) I would add that the defendant has not given any reaon why the court should extend time to make the application.


As you will be given a hearing date for your applciation there is no need to send this to anyone just yet.

Palerie-head

Thank you. Just after my last post I hot footed it down to the court and handed it in, asking the judge to throw out the request for the judgement to be set aside. I don't know if my letter will have any influence on that or not, but I can try I suppose. I'm concerned that the Judge might give me a court date way in the future, which of course drags this whole sorry mess on way longer than it has done already (started in February!).

Thanks for comments on point 3, I'll add that in when I go to court!

Palerie-head

Please post or PM me if you've had your judgement set aside.

Thanks.

Palerie-head

Looks like I'm the only one then!

chris1huk

I received a letter from the court today saying my case has now been transfered to my local court after a request for a judgement to be set aside
:mad:
I feel a bit like you and now just want to wait the result of the test case, i know if i go in front of the judge im going to do more harm than good

Palerie-head

Sorry to hear that Chris, I suspect they'll be coming thick and fast now. Hopefully you're going to appeal though???

Don't give up - send the court a letter once you have the bank's reasoning for setting aside the judgement and appeal against it. You've come this far you can't give in now.

It might not get us anywhere, but at least we're making more work for banks!!

chris1huk

thanks, i did post about it the other day after receiving a letter from the solicitors.. but the official court papers came thru today.. was hoping they were bluffing
funnily enough its HSBC im claiming from as well.
It cost them £65, my claim was only for 500 odd.. I hope they cant try to claim this £65 from me