Difference between revisions of "Application for Removal of Stay: Updated"

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== Related Pages ==
[[Stays re: OFT Test Case]]
[[OFT Test Case]]
[[OFT v The Banks: Read This If You're Worried]]

Latest revision as of 20:30, 22 August 2007

Application for removal of a stay - UPDATED TO ACCOUNT FOR OFT TEST CASE

1st August 2007

As the banks have indicated they will apply for stays, it’s in the form of a statement to be used to oppose any application for a stay.

If you already have a court date, it should be taken to court with you alongside your usual bundle and witness statement so you can argue against a stay if one is proposed.

If the court has already ordered a stay and you want to apply for it to be lifted using form N244 - here, this should be the part C statement and you will need to amend the wording slightly in places to reflect the fact that you are applying for a set-aside, rather than opposing the banks application.

Claim Number:XXXXXXX

In the XXXXXXXX County Court







I strongly object to the proposed order of a stay in respect of the claim detailed above upon the following grounds;

Human Rights

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

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

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year.

Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 3 – 5 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

The Overriding Objective

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. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a reletively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

Balance of Convenience

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, 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 charges 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. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

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 frustrate justice by repeatedly taking 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 its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

In The Alternative

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, 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 removes 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.

I, the Claimant, believe all facts stated to be true.



Related Pages

Stays re: OFT Test Case

OFT Test Case

OFT v The Banks: Read This If You're Worried