Arguing against a stay on the limited scope of the test case

steveh66_2

Hello all

well, had my hearing today at Durham County court with Deputy District Judge Baird. To try and argue against the stay that DG Solicitors had informed me would be coming, I decided to deploy the argument suggested by several on this site and CAG: namely, that as the test case will only look at whether the unfairness element of the UTCCRs applies to bank charges - not at whether these charges are in fact unfair or penalty charges - it will not therefore settle all these issues leaving the possibility of further trials in place. As advocated on these boards, I printed off copies confirming this from the OFT's own website. As soon as I arrived at court, the bank's brief (23, if a day; there were about six in total) asked for a quiet word, during which she informed me that the court WOULD be issuing a stay. To try and put her on the back foot I mentioned that I would be arguing against this, citing the OFT statement. She wasn't in the slightest fazed, and reiterated that a stay WOULD be granted.

Into court with another claimant to see the good, impartial judge who immediately stated that since the test case was underway, he had decided to apply a stay to both our cases, in order to ensure "uniformity" across the courts so "fairness applies to both parties". He then asked if we had any objections to this, at which point I raised the issue of the limited scope of the test case, and provided him with a copy of THE OFT'S OWN STATEMENT confirming this. The good judge - I kid you not - quickly read over it, held the sheet in the air and pronounced that "This information is wrong; the test case WILL address ALL these issues". I then raised the issue of hardship as a result of a stay and was informed that hardship "is to be expected by anyone not receiving their hoped for payout".

Then the cherry on the cake. After brushing aside my objections (I was extremely polite throughout, I must add), he granted the stay AND decreed that if the test case is not settled by the end of October 2008 I and my fellow claimaint will have to reapply for our cases to be heard, or they will be struck out, so we had "better keep our eyes on the ball" (I'll post the exact wording of the judgement as soon as I get it through the post). I was too numbed at the time to query this, but I assume that reapplying means finding more money for a second allocation fee, etc.

So, a cheapo bottle of wine for me tonight. I cannot believe that a supposedly impartial judge could arbitrarily decide that he knows the details of the test case better than the OFT themselves, blatantly ignore their own statement, and suggest that we almost certainly will have to pay more money just to stay in the game. I don't think the chances of a final outcome are great by October, and if so that's me priced out. My hoped for refund, by the way, wasn't earmarked for a holiday or the like; it would have been used to clear some debts and made a real difference to us. But so much for justice.

Stokey125

steveh66 wrote: »

Hello all

well, had my hearing today at Durham County court with Deputy District Judge Baird. To try and argue against the stay that DG Solicitors had informed me would be coming, I decided to deploy the argument suggested by several on this site and CAG: namely, that as the test case will only look at whether the unfairness element of the UTCCRs applies to bank charges - not at whether these charges are in fact unfair or penalty charges - it will not therefore settle all these issues leaving the possibility of further trials in place. As advocated on these boards, I printed off copies confirming this from the OFT's own website. As soon as I arrived at court, the bank's brief (23, if a day; there were about six in total) asked for a quiet word, during which she informed me that the court WOULD be issuing a stay. To try and put her on the back foot I mentioned that I would be arguing against this, citing the OFT statement. She wasn't in the slightest fazed, and reiterated that a stay WOULD be granted.

Into court with another claimant to see the good, impartial judge who immediately stated that since the test case was underway, he had decided to apply a stay to both our cases, in order to ensure "uniformity" across the courts so "fairness applies to both parties". He then asked if we had any objections to this, at which point I raised the issue of the limited scope of the test case, and provided him with a copy of THE OFT'S OWN STATEMENT confirming this. The good judge - I kid you not - quickly read over it, held the sheet in the air and pronounced that "This information is wrong; the test case WILL address ALL these issues". I then raised the issue of hardship as a result of a stay and was informed that hardship "is to be expected by anyone not receiving their hoped for payout".

Then the cherry on the cake. After brushing aside my objections (I was extremely polite throughout, I must add), he granted the stay AND decreed that if the test case is not settled by the end of October 2008 I and my fellow claimaint will have to reapply for our cases to be heard, or they will be struck out, so we had "better keep our eyes on the ball" (I'll post the exact wording of the judgement as soon as I get it through the post). I was too numbed at the time to query this, but I assume that reapplying means finding more money for a second allocation fee, etc.

So, a cheapo bottle of wine for me tonight. I cannot believe that a supposedly impartial judge could arbitrarily decide that he knows the details of the test case better than the OFT themselves, blatantly ignore their own statement, and suggest that we almost certainly will have to pay more money just to stay in the game. I don't think the chances of a final outcome are great by October, and if so that's me priced out. My hoped for refund, by the way, wasn't earmarked for a holiday or the like; it would have been used to clear some debts and made a real difference to us. But so much for justice.

I would normally be reticent in advocating an appeal but in this case I am going to as the learned judge misdirected himself. The OFT statement was correct as is clear from the particulars of claim which can be found at the following link http://www.oft.gov.uk/shared_oft/business_leaflets/general/PCA-particulars-of-claim.pdf

Stokey125

You may wish to look at making a formal complaint about the district judges behaviour. While they would not look at the correctness of the decision the fact that he had made up his mind prior to hearing the matter and the disregarding of relevant inforamtion brings into question whether he was cating impartially in handling the matter and is a complaint that might be coonsidered as it does not require them to decide on whether the decision he reached was correct.

steveh66_2

Cheers, Stokey; I meant to add a sincere thanks for your help in supplying me with this information, regardless of how it was ignored/misinterpreted. An appeal's certainly one option, but I'm presuming that costs, and I really cannot afford anything else for the forseeable future. I'd expected a stay, despite the solid grounds of my objection, but the manner in which the facts were distorted has left me genuinely shocked.

Stokey125

steveh66 wrote: »

Cheers, Stokey; I meant to add a sincere thanks for your help in supplying me with this information, regardless of how it was ignored/misinterpreted. An appeal's certainly one option, but I'm presuming that costs, and I really cannot afford anything else for the forseeable future. I'd expected a stay, despite the solid grounds of my objection, but the manner in which the facts were distorted has left me genuinely shocked.

That is alright I woud not have minded so much if he disagreed as a matter of law but to say it was factually incorrect when it was not. Well it is vacation so the normal district judges are away.

steveh66_2

Thanks again, Stokey. Moving beyond my own shock for a moment, what I certainly don't want to happen is for people to decide that this strategy is flawed: I firmly believe that this is a course of objection that's sound and well thought through (it's down in black and white, for God's sakes). Anyone considering this argument should see it through; with the 'right' judge (i.e. impartial and competent) I'm sure a different outcome will be reached. Back to my own mire - Stokey, or anyone else, can you advise on the process of making an appeal/complaint? I still don't know how on earth I can afford any more outlay on this but it's too much to stomach.

Stokey125

steveh66 wrote: »

Thanks again, Stokey. Moving beyond my own shock for a moment, what I certainly don't want to happen is for people to decide that this strategy is flawed: I firmly believe that this is a course of objection that's sound and well thought through (it's down in black and white, for God's sakes). Anyone considering this argument should see it through; with the 'right' judge (i.e. impartial and competent) I'm sure a different outcome will be reached. Back to my own mire - Stokey, or anyone else, can you advise on the process of making an appeal/complaint? I still don't know how on earth I can afford any more outlay on this but it's too much to stomach.

For information on making a compliant which I believe is free go to this site http://www.judicialcomplaints.gov.uk/ As faras an appeal you would need to fill in an Appellants Notice and lodge it with a fee and copy of the order being appealed