MCOL Staying Cases Without Hearing...

Norfolk_Shot

Ok,

I've finally got home and read the court papers i have received which say....

IT IS ORDERED THAT:-

1) Following the filing of a defence or holding defence the claim shall be stayed pending judgment in the Office Fair Trading test case.
2) Liberty to apply with an explanation.

Note: Any party affected by this Order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of service of this order.


I'm guessing this means that i have 14 days to appeal against this decision as indicated in the previous posts by you guys, so do i write and ask for the stay to be set aside and then list my reasons?

Do i start the letter Dear Sir/Madam or some other title ??

What does Liberty to apply with an explanation does that mean i'm free to apply for the order to be stayed or varied with an explanation to why i'm requesting this??

Thanks once again in advance for your help.

Stokey125

Norfolk_Shot wrote: »

Ok,

I've finally got home and read the court papers i have received which say....

IT IS ORDERED THAT:-

1) Following the filing of a defence or holding defence the claim shall be stayed pending judgment in the Office Fair Trading test case.
2) Liberty to apply with an explanation.

Note: Any party affected by this Order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of service of this order.


I'm guessing this means that i have 14 days to appeal against this decision as indicated in the previous posts by you guys, so do i write and ask for the stay to be set aside and then list my reasons?

Do i start the letter Dear Sir/Madam or some other title ??

What does Liberty to apply with an explanation does that mean i'm free to apply for the order to be stayed or varied with an explanation to why i'm requesting this??

Thanks once again in advance for your help.

I would interpret this to mean that you should apply on a form N244 and within the form or in a statement accompanying the form give your reasons for asking for the stay to be set aside or varied.

Norfolk_Shot

Do i have to pay for this privilige???

And i've found this below on the C&G site, i take it this is what i send them to argue why i wish to have the stay lifted?



<table id="post1047690" class="tborder" align="center" border="0" cellpadding="5" cellspacing="0" width="100%"><tbody><tr valign="top"><td class="alt1" id="td_post_1047690" style="border-right: 1px solid rgb(209, 209, 225);"><table border="0" cellpadding="5" cellspacing="0" width="100%"><tbody><tr><td class="alt2" style="border: 1px inset ;">Respectfully request that the stay which was ordered by xxxxxxxxxx on the XXXXXXXX be removed.





The claimant relies on the following grounds

HUMAN RIGHTS

1 The Claimant contends that a stay of all court actions in which the preliminary issues identified in the Agreement of 25th July 2007, made between the Office of Fair Trading (OFT) and the Banks (the Agreement), a copy of which is annexed hereto, are raised, contravenes my rights under the European Convention on Human Rights (ECHR) as set out in Schedule 1 of the Human Rights Act 1998, Article 6.1.

2 Art.6 1. Of the Convention provides that, in the determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. The OFT v the Banks case is not going to be resolved within a year from its commencement. Further, given the importance of the issues there will almost inevitably be an appeal from a first instance decision and any stay could endure for two years or even more. This is plainly not a reasonable time within which to resolve the vast majority of claims before the Courts, which like mine are small claims.

THE OVERRIDING OBJECTIVE

3 CPR 1.1(2) sets out considerations which the Court must give effect to.

(a) ensuring the parties are on an equal footing

The Banks and the OFT will be represented in their case. We as consumers are not represented. The case will determine issues essential to many cases, like mine, before the County Courts, yet we have no voice in them. There are particular circumstances in individual cases which will raise arguments the OFT are not aware of, nor can the case be expected to deal with the terms and conditions in all cases as not all Banks and Building Societies are listed as Defendants. Even if I were to be somehow joined in the OFT case, I would have no funding for representation and would therefore be prejudiced in a case with some heavyweight lawyers. The Court would properly ensure the parties in my case remain on an equal footing by allowing it to proceed.

(b) Saving expense

Expense would be saved by allowing my case to proceed in the normal way. Arguments on this issue are already set out below and apply equally under this head.

(c) dealing with cases which are proportionate to

(i) the amount of money involved

In my case, I claim £ in charges unlawfully levied by the (name of Bank). This a large sum for me but a negligible sum for the Defendant. It is of no consequence to the Bank that I may be deprived of an opportunity to resolve my dispute for a further year to two years, as they already have my money and in any event they are under no financial pressure to resolve the case fairly and speedily. I on the other hand am extremely anxious to have my case determined as speedily as fairness permits and the comparatively low amount of money involved, so far as the Bank is concerned, does not warrant the resolution of the dispute being delayed further.

(ii) the importance of the case

My case is very important to me, though given the commercial strength and power of the Bank, of relatively little importance to them. Nor can the Banks fairly argue that all of a sudden the principles as a whole are important to them so that all claims against them must be stayed, as they seek to do in the OFT case. This is not an argument which lies with them to make, given their approach to cases like mine. The Banks’ strategy to litigation of this kind is almost without exception, to put in a defence and settle shortly before the trial. It is very rare when the Banks bother to argue any defence. In other words, they treat cases like mine as another commercial decision. They have never sought to see a case through, take it to appeal if necessary and seek to establish certainty over the principles they assert are so crucial now, they necessitate a stay of all claims. Certainly of all the cases dealt with by my representative (penaltycharges.co.uk), I am told and believe that not one case out of …….has been taken to trial. The Bank has always settled. If these issues were so critical to them they were at liberty to see their arguments through in a case, take it to appeal and seek certainty on the issues in an appellate court in the normal way. Only now do they seek to do so but in a way which involves the suspension of all the hundreds of cases against them.

(iii) to the complexity of the issues

The issues of whether the Banks’ charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and whether they amount to penalty charges, whether for breach of contract or as a payment for services as the Banks now allege, is not so complex that it warrants the stay of all claims in which these issues are at large. The arguments are commonly dealt with days in day out by the County Courts who are more than adequately placed to deal with them. The complexity/simplicity of the issues is no reason to grant a stay, rather it is a reason why the County Court should continue to determine them.

(iv) to the financial position of each party

Many Claimants are normal people on low or average incomes who have been deprived, in many cases, of several thousand pounds going back up to 6 years. I am on a low income and have suffered hardship as a result of the Bank’s charges. I will continue to suffer hardship for a much longer period if the stay is allowed. The Banks have virtually unlimited funds by comparison. I like many other Claimants would be financially prejudiced by the matter going off for a long period, not just by the fact that if I win I will have been deprived of my money for a much longer period, money that would make a significant difference to my life, but also by the fact that in the meantime, the Banks can continue to charge me their outrageous penalties, incurring further hardship on me, for the period of the stay. I can have my private law dispute resolved expeditiously and fairly by the Court allowing my action to proceed to trial in the normal way.

(d) ensuring the case is allowed to proceed expeditiously and fairly

· This case will not be expeditiously dealt with if delayed for up to 2 years. The Banks have had years to invite the OFT to issue their case against them. Many hundreds of cases have gone through the Courts already, arguing the same points that are set out as preliminary issues in the OFT case. I should not be deprived of the same opportunity that all those other Claimants had, simply because the Banks have elected to take this route vis a vis the OFT.
· In any event, my case, as many others do, involve other additional arguments to those listed as preliminary issues in the OFT case. One major issue is the amount of recoverable bank charges and the costs to the Banks of taking the particular step they charge for. There is clearly an issue over what is a reasonable charge for say a returned cheque or at what stage a charge moves from a reasonable one to an unenforceable penalty. These are not dealt with in the preliminary issues listed in the Agreement. It is not fair to postpone the determination of my case because some issues are identical to the preliminary ones in the OFT case, while there remain issues in my case which are unaffected by the OFT case. Fairness is properly ensured by allowing all the issues in my case to be determined at the same time, by the same Court which hears all the evidence and all the arguments.
· Another additional argument in my case is the fact that I am in receipt of /COLOR][COLOR=red]insert benefit name[/COLOR][COLOR=black benefits which are paid directly into the my account. The category of benefit that I receive is deemed as inalienable under the Social Security Administration Act 1992 (s.187) which statesasfollows:

187.—(1) Subject to the provisions of this Act, every assignment of or charge on—
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b)any income-related benefit; or
(c)child benefit
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.

My argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay will allow the Defendant to continue this practice, which will cause undue hardship and which, if found in my favour, cannot be properly compensated.

ADDITIONAL POINTS

4 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 inconvenience and damage to reputations. Were my name to be entered on the default register I would find it very difficult to get credit or a mortgage and I would have to pay higher fees for any credit, which I did manage to obtain. Allowing a stay of all claims like mine would facilitate this invidious practice, which cannot properly be compensated for, should I be successful. The damage will already have been done.

IN THE ALTERNATIVE

5 If the court decides not to accede to my request to remove the stay I respectfully request that the court makes the stay conditional on the following orders:

1) That the defendant bank is prevented from applying further charges to my account until the final settlement of the matter.
2) That the defendant is prevented from applying interest to any outstanding amounts which are comprised of charges until the settlement of the matter.
3) That the defendant is prevented from closing my account.
4) 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 relating to charges on my account and/or the payment or non payment thereof until the final settlement of the matter.
5) That the defendant remove any adverse entry on its own records insofar as it relates to charges on my account or the payment or non payment thereof. (The Court has the power to do this under the Data Protection Act 1998 ).
6) 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 charges on my account. (The Court has the power to do this under the Data protection Act 1998.)
7) That these orders remain in place until the settlement of my claim.

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Stokey125

The fee for an application is £65. The grounds from the CAG site are more detailed in many respects to the ones I have posted on these boards so you could use them or any you find on this board.

Norfolk_Shot

I'll phone MCOL tomorrow, i don't see why i should have to pay before i've had had the chance to argue my case against a Stay in the first place.

As i said before it all smells of corruption to me.

Soupie_2

Thanks for the link, am gonna take advice on what is the best course of action if any.

Jazzy it says 'Without Hearing' right at the start of the letter...... its all so damn confusing

machomanugget

Norfolk_Shot wrote: »

I'll phone MCOL tomorrow, i don't see why i should have to pay before i've had had the chance to argue my case against a Stay in the first place.

As i said before it all smells of corruption to me.

How the FU*K can this be fair ? i have just had to save up to get the £120 together to actually get my case to the courts then they are staying them without even sending it to a judge ????? ad now i gotta save another £70 to send a request that to have it removed that probably wont even work??

What a con yet again why is everything going in the banks favour and we are getting shafted over and over, how can it be fair on US ..
this country is a joke it takes the !!!!

jazzyjustlaw

Soupie wrote: »

Thanks for the link, am gonna take advice on what is the best course of action if any.

Jazzy it says 'Without Hearing' right at the start of the letter...... its all so damn confusing

Fine I was just explaining what ex parte meant.

Norfolk_Shot

I've just phoned MCOL and they've just told me to write in within 14 days with my objections to the case being stayed...


Stokey or anyone else, am i in legal parlez asking for the stay to be set aside?

Stokey125

Norfolk_Shot wrote: »

I've just phoned MCOL and they've just told me to write in within 14 days with my objections to the case being stayed...


Stokey or anyone else, am i in legal parlez asking for the stay to be set aside?

Yes - unless you want it varied so that the BAnk are stopped from applying charges against you until further order