Application for removal of a stay

From Consumer Wiki

At the end of June and in early July 2006 several claims were stayed (suspended) by some County Courts pending the outcome of a case which had apparently been transferred to a higher County Court.

In order to challenge the stays, the application grounds below were drafted.

In the event, the "test case" was settled out of court (as predicted) and so were the stayed cases so the application to remove the stay was never heard.

However, in case it happens again, here is the suggested basis for the grounds for applying removal.

The application below would be used as the Part C statement on a form N244 Application notice.

The application requires a fee of about £35

This application has also been sent to the Mail, Guardian and the BBC as it contains a useful summary of some the issues involved in the whole problem of penalty charging by the banks

I respectfully request that the stay which was ordered on the XXXXXXXX be removed.

Human Rights

It interferes with my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998.

Art.6 1. of the Convention provides that “ In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time.”

It is submitted that in a claim for a sum of £3,778.06, an indeterminate stay which depends on some litigation unconnected to the instant case, between two other parties who have no relation to the parties in the instant case is not reasonable.

It is not clear that the matter will be heard as predicted and in the event that it does go to trial, there could then be appeals and subsequent appeals so that the matter might become protracted and even last as long as 2 years or more – from the date of the commencement of trial.

Even if the predicted case does go to trial, it is not certain that it will proceed to judgment as it is entirely possible that there will be a settlement during the course of the litigation so that the question in issue is inconclusive.

The Overriding Objective

It is submitted that the Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

Lloyds TSB Bank

The defendants Lloyds TSB Bank have already settled 14 similar cases.

In the attached list of cases, the court will see that Lloyds were defendants in 14 cases. In most of these Lloyds actually filed defences and actually returned their allocation questionnaire, obliging the claimant to do the same. However, in every one of these cases, Lloyds bank settled the matter before the hearing.

In 2004 the head of personal banking of Lloyds TSB Bank Peter MacNamara stated in a radio 4 interview that Lloyds was making big profits out of its default charges and that this money was being used to find free banking for its customers. The Claimant can supply a copy of this recording of the court wishes.

Other Cases

It is true that there are currently many other cases which are litigating on the same issue of contractual penalties. However the court may be unaware that not a single case so far has gone to a hearing.

Attached to this application is a sample list of 223 cases complete with county court reference numbers (Annexe 2)- of which the claimant is aware and which have been started since February of 2006. All of them have been settled before hearing.

Many of them have even received default judgments against the defendant banks in question which has then been set aside on application by that bank and then which has been settled by that bank rather than go to court.

In two cases the court has even ordered standard disclosure against defendant banks but those banks have then gone on to settle rather than reveal the details of its contractual penalties.

It is submitted that the predicted test case is most unlikely to go to a hearing and that it will be settled out of court and therefore produce no useful decision from a higher court.

It is further submitted that the defendant in the instant case has no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the banks are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate Right.

It is submitted that this is abusive of the justice system and of the public resource.

Balance of Convenience

The sum claimed is insignificant to the bank but it is a significant sum to me. Further more although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of penalties which I say are unlawful.

Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on an indeterminate hold.

Additionally, 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 damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain.

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to take the claimant to the door of the court and then to settle the claim.

The Status Quo

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks activities which the claimant submits are unlawful and/or retaliatory.

Test Case

It is agreed that a case in which the issues were fully argued would be of enormous benefit.

However, as has been explained above, the banks so far have settled every one of the 223 example cases and it is clear that it is their abusive litigation strategy which is responsible for the problem of the large number of cases being started against them. Every one of the cases settled so far has presented an opportunity to settle the common issue of contractual penalties. Despite their massive resources and access to high level expertise the defendants have declined to allow the issue to be decided.

My case presents another opportunity for the question to be definitively settled as should the defendants lose, they have the resources to continue the matter through the appeals process and through the court hierarchy.

It is respectfully submitted that the court’s order to stay the claim creates more uncertainty and more difficulty.

It is respectfully submitted that if the predicted test case referred to by the district judge in his order, was actually in the course of a trial at the present moment so that it was more certain that the matter would be tried and that a decision would be likely to be reached, then there would be good grounds for staying all similar actions including my own.

However, it is respectfully submitted that none of this is at all clear and on the evidence of all of the cases conducted so far it is submitted that the predicted test case is most unlikely to be heard at all.

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 gives the power to the Office of Fair Trading to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

The OFT conducted a 2 year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks.

The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by myself in the instant case.

In the Alternative

If the court decides not to accede to my request to remove the stay I respectfully request that the court issues the following injunctions:

  • That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter.
  • That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter
  • That the defendant is prevented from closing my account
  • 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 insofar as it relates to penalty charges until the final settlement of the matter.
  • That the defendant remove any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 )
  • 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 penalty charges. (The Court has the power to do this under the Data protection Act 1998. )
  • That these injunctions remain in place until the settlement of my claim
  • That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent
  • That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

Additional Orders

If the court does accede to my request for a removal of stay then I respectfully request that the case be allocated to the small claims track but that the defendant be ordered to make standard disclosure.

It is submitted that an order for standard disclosure will assist greatly in bring these and other similar claims to a speedy and just conclusion.

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the banks default charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt.

As I rely upon the bank as my fiduciary it is clear that they have a duty to act in utmost good faith in relation to their conduct of their contract with me. I submit that they do not act in good faith in relation to me or their other customers in the matter of penalty charges