Stays re: OFT Test Case

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Stays: Information & Guidance

The OFT test case means that there is a chance that cases will be stayed (meaning put on hold) pending the outcome of the decision. There has been a lot of speculation and misinformation regarding stays both in the media and within discussions on the forums.

The following information was obtained by Martin Lewis directly from the Royal Courts of Justice, The Strand, London and it is hoped that this will clear up some of the questions.

I was passed these questions from the court service as they are a matter for the judiciary. I hope these answers provide you with the information you required.

1. The Banks & OFT wrote to the Master of the Rolls. Does this mean the MOR has accepted their request and is looking for a general stay. I would like to officially request whether this has been accepted and to hear how it is to be implemented in the courts.

Answer: The MoR decided not to issue an order staying all outstanding cases. Instead he asked the Deputy Head of Civil Justice to write to all Designated Civil Judges, (which he has done) inviting them to consider staying outstanding claims on a case by case basis as appropriate. Designated Civil Judges are the senior circuit judge responsible for a group of courts. S/he may agree arrangements with the district judges sitting at each individual court.

2. If it has been accepted by the MOR. Can I confirm

Answer: Whether case is stayed or not is a matter for the judiciary taking into account all the circumstances of the individual claim

b. That unless a stay is requested by one of the parties there will not be an automatic stay

Answer: A stay will be considered if a request is received from one of the parties or a judge may direct that proceedings are stayed without an application.

c. If one of the parties requests the stay, then the other party may still object to the stay.

Answer: If an application is made by one of the parties for a stay, the judge may hear the application. Otherwise judges may stay a case at their own initiative. If a judge orders a stay after a hearing, a party may appeal. If a case is stayed on the courts' own initiative (i.e. without a specific request from the parties and without a hearing), a party may apply for the judge to review his/her decision at a hearing. Parties would need to pay additional court fees for appeals and applications.

This means that it is quite clear there is no automatic applications of stays. It is up to the individual judge whether to order a stay. It is difficult to predict how things are going to progress at this stage and there is likely to be inconsistencies in approach by different banks/courts.

It is likely that all banks will immediately request a stay. Indeed Lloyds and Barclays have stated this is their position. There is also the possibility that judges will order stays on their own initiative.

If a stay is ordered you will have the opportunity to contest this. You would do this using form N244 making a formal application to lift the stay. This costs £35 if you wish this decision to take place with out a hearing or £65 with a hearing. There is no guarantee that this will be successful and it is difficult to tell at this stage what approach the courts will take. There are some early indications to show that the courts are not necessarily minded to order a stay. In fact yesterday in Birmingham (where recent bank charge claims have been lost by claimants) the judge gave the claimants a choice to have their case stayed or to continue.

In the link below is a suggested template adapted from one used where claims were stayed in relation to claims transferred to the mercantile court. This was generally very succesful at removing stays.

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

Below is an alternative template from the penalty charges forum which was produced in consultation with a barrister and is reproduced with the kind permission of penalty charges.

Which one you use is entirely up to you and you may like to produce your own based on bits of both. You might also like personalise it with any of your particular details which are relevant to why you need to have your case proceed.