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Old 10-08-2007, 11:19 AM
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Default Request for Removal of Stay

Originally Posted by Belibaste
Quote:

My own feeling from reading posts from those whose claims who have been stayed is that individual requests will be granted more mileage than those who use a generic form. The courts seem to be asking claimant's why their claim should be given precedence over other claimants'

Anyway that notwithstanding, please find attached my own version which you may feel free to trash as much as you like. Please note that this version is only for straightforward small claims and makes no reference to any benefits etc. It can be adapted and/or added to - AOP claims will need a longer adapted version as well.


Quote:
BASIC SMALL COURT CLAIMS
The claimant respectfully wishes to draw this honourable court’s attention to the following implications regarding the stay which was ordered on ****** and accordingly, seeks removal of the stay.

The Agreement made between the Office of Fair Trading and The Banks on the 25th of July 2007 (annexed hereto) and the subsequent requests by the banks for blanket stays on claims is contrary to the requirements of both the Overriding objectives for Court Procedure and various schedules contained within The Human Rights Act 1998 ( further detailed within this request.)


1. Unnecessary and immeasurable delay

CPR 1.1 (2) (d) sets out the requirement for claims to be dealt with in an expeditious and fair manner.
Article 6.1 of the Human Rights Act 1998 further states that “In the determination of his civil rights ....... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
David Black who is the Head of Banking at independent financial research company defaqto has cited, as an example, the OFT action regarding overseas credit card transactions which began in 2003. The final result is expected later this year, after more than four years. It is likely that the court action which has recently been instigated by the Office of Fair Trading against the banks will also be protracted and subject to counter claims and appeals, despite affirmations by both sides that they wish to achieve a speedy resolution to litigation. I contend that this court, being of competent jurisdiction should find this widely expected delay contrary both to the overriding objective 1.1 (2) (d) for a expeditious resolution specified by the Civil Procedure Rules and the requirement of Article 6.1.of the Human Rights Act 1998 for a hearing within a reasonable time frame.

2. Ensuring the parties are on an equal footing
CPR 1.2(2) (a) Overriding objective
My case against the defendant is based on information which is applicable to my own circumstances. The action which the OFT has instigated against multiple banks in no way reflects my individual position. It is notable that the Terms and Conditions and the rationale given for the charging regime vary from bank to bank and therefore, the particulars of claim will also differ. No consumer organisation or individual consumers have been given any opportunity for input regarding the Agreement or subsequent litigation between the OFT and the banks and I fear that my own individual circumstances will be lost within the broad brush strokes of a judgement which will naturally and necessarily be generalised . My understanding was that the ethos of the small claims court was to give litigants in person the opportunity to be heard in the same way as large organisations with huge resources. I contend that to allow this stay to continue would erode my rights in this respect and deny me the opportunity to research and present my individual case to the court.

CPR 1.2(2) (b) Overriding objective
Saving Expense
I have already particularised my case and paid the appropriate fee to the court. It would be more expeditious and therefore economical to allow my case to continue in the usual manner. If the court were to accede to my request for full disclosure of the Defendant’s pre-estimate of liquidated damages, the matter could be settled even more expeditiously therefore, freeing the resources of both the interested parties and the court.

CPR 1.2(2) (c) Overriding objective
Dealing with cases which are proportionate to :

(i) the amount of money involved
There is an obvious disparity between my circumstances and resources and those of the Defendant. The claim which has been made by me represents the sum of £*** which I contend has been debited from my account by virtue of unenforceable contract terms, representative of a penalty at common law. Whilst this is a small sum to the Bank it is not insignificant to me particularly since I have already paid court fees (*including an additional fee for allocation* delete if inapplicable)
There is no legitimate reason from a monetary aspect for any further delay which may potentially adversely affect my circumstances whilst allowing for the continuing enrichment of the bank.

(ii) the importance of the case
On an individual basis, this case has a high level of significance and importance for me. I have attempted to reach resolution without the need to issue court documents but, have been rebuffed at every attempt. If this issue carried any genuine weight with my bank, they would have attended courts on a regular basis and provided evidence to satisfy the courts that their fees are either genuine pre-estimates of losses or meet the requirements necessary to be categorized as a fair service charge. They have done neither and instead relied upon flat refusals to settle followed by template defence documents and settlements at the “court door” on a regular basis. Decisions have been made for commercial purposes rather than to either address the issues raised or treat customers with fairness and transparency.



(iii) to the complexity of the issues
I did not undertake the instigation of court proceedings lightly. I have conducted a large amount of research on an independent basis. This research has been inclusive of reading and understanding the requirements of the Unfair Terms in Consumer Contracts Regulations 1999. The issues relevant to the Office of Fair Trading Report into Credit Card Charges published in 2006 and also the Office of Fair Trading interpretation of the UTCCR (both the older version and the version which is at consultation stage).
The common law issue of penalty clauses within contracts is already well established and one which county courts are thoroughly familiar with. I hope to be able to present pertinent and unequivocal case law in this respect.
I therefore do not believe that these issues are too complex for me to argue in court and accordingly request that the stay which has been placed on my account is lifted.

(iv) to the financial position of each party
There is no comparison possible between the financial resources of the bank and my own financial position . The bank’s resources are endless with regard to the specific issue of my own claim whereas, mine are severely limited. This is something which the banks have sought to use to their advantage by forcing litigants to the stage of producing significant bundles of evidence for the courts whilst having no intention of attending a contested hearing themselves. This approach has already received censure from the Mercantile Court. I believe that the banks use this approach because they are aware of the disparity of resources between the parties and seek to use this disparity to their advantage. To allow the stay on my case to continue indefinitely, perhaps for years with no resolution could further jepoardise my personal financial position whilst allowing the banks to continue enriching their own finances further by the continued enforcement of contract terms which are potentially invalid.

3. Possible Consequences
Should the stay be permitted to remain until the conclusion of the Office of Fair Trading case which is at present unascertainable I should like the court to consider the following implications.
Should my financial position worsen due to a lack of resolution regarding this issue the bank is able to enter detrimental information regarding the conduct of my account on a unilateral basis. I will have no control over this information which may remain on my financial records for 6 years. Removing this information, should the charges constitute penalty clauses will necessitate either court action or removal via permission of the bank. Even if it were possible to achieve this following resolution of the ongoing case, I would, in the meantime, have been either refused further financial services or forced to pay a much higher price than someone who did not have detrimental information registered on their account.
Further, the bank may instruct a company to collect the alleged debt on their behalf which would not only add to what is already a very stressful situation but, also impact heavily upon my right to respect for family life. With this in mind I wish to respectfully draw the court’s attention to the following
Article 8 (1) of the Human Rights Act
Everyone has the right to respect for his private and family life, his home and his correspondence.

4. Should the court decide not to grant my request for the removal of the stay, I respectfully request in the alternative, that the stay should be made conditional on the following

A) That, pending a resolution to this matter, the defendant bank is prevented from applying further charges to my account.
B) That my account must be allowed to remain open unless by my explicit request.
C) That no detrimental information regarding the conduct of the account in question be passed to any third party pending the ultimate resolution of the issue.
D) That the Defendant Bank abide strictly by the Office of Fair trading Guidelines with respect to debt collection activity. Specifically, that no debt collection activity be undertaken relating to outstanding amounts comprised of bank charges or interest therein relating to an account which is formerly “in dispute”. Likewise, that the account must not be sold to a third party whilst any element relating to charges is disputed.
E) That the defendant bank respect my right to a peaceful family life and do not undertake any action with relation to outstanding bank charges which impact upon this or contravene the Protection from Harassment Act 1997
F) That the defendant bank cease applying interest to any outstanding amounts which are comprised of charges.
G) That the Defendant bank arrange for the retrospective removal of any detrimental information which has been previously been passed to third parties if it relates to the charges previously imposed upon my account.
H) That these orders remain in place until the outcome of my own claim is known.

With thanks to Belibaste for the hard work here...
This is a request to remove/set aside/lift a stay placed on a claim which has been 'caught up' in the OFT test case delays etc..
It's important to remember to personalise this request, so that the courts are not flooded with the 'same template'...
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Last edited by Perseus : 12-08-2007 at 10:12 AM.
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  #2  
Old 12-08-2007, 10:10 AM
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Default Request for Removal of Stay

Belibaste has worked on this removal of stay application, citing numerous considerations for the court/judge.
Would anyone wishing to use this request, please make sure that you read it thoroughly, personalise it, and understand what it is you are requesting.
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Any advice or guidance given by Perseus or Consumer Credit Support is provided without prejudice, and is based on personal experience only. Please seek professional legal assistance to clarify your particular case. Thank you.

If we've helped in recovering bank charges, please help us keep this site alive for others by donating.

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  #3  
Old 12-08-2007, 10:15 AM
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Default

right Happiestdaughter is just about to use it.
She will obviously be putting in her own dates and amounts, and will also be adding that it has already taken 5 months to get a court date. She originally had a date at the Mercantile Court for July, but this was changed to her local court for Aug. 24th (now less than 2 weeks away)- prior to that was 2 months corresponding with HSBC, and also that she submitted her court bundle as directed (at huge cost) but HSBC solicitors did not.
In fact, the letter she received yesterday, it says they will be applying for a stay - so they haven't even done that yet, despite her court date being so close.

She will also add that with the court fees, postage, printing etc. she is almost £200 out of pocket, and it seems extremely unreasonable that she will have to wait possibly years for any outcome.

How does this sound?
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PLEASE NOTE :

I am always happy to give my time, advice and support without prejudice and based only on my own experience and knowledge, however, you must seek legal counsel if you are at all unsure of your claim......

Please do not publish my posts elsewhere without my express permission beforehand. Thank you!
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Old 12-08-2007, 10:36 AM
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Perseus Perseus is offline
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Sounds fine to me... there are so many being stayed and having their costs incurred so far basically put in limbo, it's just not right is it?
Maybe if a covering letter were to be submitted to the Court Manager, explaining these issues - it may carry some weight - especially as the defendant has been to slack in time compliance!
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Any advice or guidance given by Perseus or Consumer Credit Support is provided without prejudice, and is based on personal experience only. Please seek professional legal assistance to clarify your particular case. Thank you.

If we've helped in recovering bank charges, please help us keep this site alive for others by donating.

sedit qui timuit ne non succederet.
He who feared he would not succeed, sat still.
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  #5  
Old 14-08-2007, 12:04 AM
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Is there any work being done on a 'pointer' template for removal of stays which do not come under the ruling? ie credit card claims where the banks are obviously flouting the rules?!

*I only ask as I'm mid composing at the mo & am a bit stuck on my approach! *
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  #6  
Old 14-08-2007, 01:43 AM
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Perseus Perseus is offline
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chezt, I'm sorry we haven't got that one sorted yet.
I'll try to get through it tonight, or tomorrow - but as always will be subject to vetting and suggested editing by others.
Please bear with me?

Pers

p.s. if you'd like to post/pm what you have, I could add or comment if required.
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Any advice or guidance given by Perseus or Consumer Credit Support is provided without prejudice, and is based on personal experience only. Please seek professional legal assistance to clarify your particular case. Thank you.

If we've helped in recovering bank charges, please help us keep this site alive for others by donating.

sedit qui timuit ne non succederet.
He who feared he would not succeed, sat still.
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