HBOS (Birmingham Midshires)

[Ihaterbs]

Re: Success! (well, sort of) HBOS - Birmingham Midshires

So I went to the hearing yesterday equipped with all my arguments relating to Section 32 of The Limitation Act 1980 and incredibly the Defendant didn't turn up!

So their Application to Set Aside was struck out, I got Judgement for the full amount claimed, plus costs plus interest which represents a tidy sum.

On the basis they have known about the hearing for in excess of four months I'd be interested to know on what grounds they could apply for the judgement to now be set aside as I'm no doubt they will attempt to avoid paying and will stretch this out with lots of fancy legal arguments why they weren't able to attend the hearing.

I'm a realist, so I know their going to do something, but what will that "something" be?

RM

They don't like defending these cases so it may be game set and match. Do you hold the original mortgage agreement explaining their charging regime?: The amount charged for late payments, telephone calls etc, the right to vary the amount?

Another customer issued proceedings against Birmingham Midshires (original credit agricole).....they capitulated.

MAN OF STEEL HAS WON ON PENALTIES - Mirror Online

[removalman]

Re: HBOS (Birmingham Midshires)

I would love it if they just pop a payment in the post!

How cool would that be.

Sensible me thinks that this isn't over yet and they will carry on. The order to include costs and interest and pushed up the amount due to me to approaching £6k. I think that's enough for them to carry on fighting.

We shall see....

Many thanks for your post.

Regards,

RM.

[Ihaterbs]

Re: HBOS (Birmingham Midshires)

They must be "prompt" with any setaside application, I believe there's case law allowing two weeks max. They should also have a good reason why they didn't turn up for their own application to strike out the claim.

[removalman]

Re: HBOS (Birmingham Midshires)

Oh well - wishful thinking on my part...

Received a copy of Defendants application to set aside the Judgement in today's post...

Their good reason for failing to appear?...

The solicitor concerned failed to put the hearing date in their diary!!!!!

They've known for four months about the hearing and the date was mentioned in a number of exchanges between the Court and the various parties. It's unbelievable!

Really fed up with the whole thing.

[Guest]

Re: HBOS (Birmingham Midshires)

Hi
I can understand your frustration.

Just reading through your thread and trying to understand the dates.

Can you tell me are you are you contestng the statute bar on the basis of 6 or 12 year perid?

Peter

[removalman]

Re: HBOS (Birmingham Midshires)

Using section 32. Three years from when I could reasonably have discovered their concealment.

[Ihaterbs]

Re: HBOS (Birmingham Midshires)

Using section 32. Three years from when I could reasonably have discovered their concealment.

What argument are you relying on for concealment?

[removalman]

Re: HBOS (Birmingham Midshires)

I was intending to cite:

HOUSE OF LORDS, OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

CAVE
(RESPONDENT)
v.
ROBINSON JARVIS & ROLF (A FIRM)
(APPELLANTS)
ON 25 APRIL 2002
[2002] UKHL 18

In the meantime I've also (rightly or wrongly) sent representations to the Court suggesting that the Defendant forgetting to put the hearing date in their diary cannot possibly be regarded as "a good reason for not attending the trial" as detailed in CPR r39.3 and as such their application for judgment to be set aside should be denied.

I'm really hoping that the Judge recognises the above and won't be antaganised by my further representations and fairness and of course justice will be served.

We will see....

[Guest]

Re: HBOS (Birmingham Midshires)

What argument are you relying on for concealment?

Yes just to help you clarify your argument,(should you need to)

I presume using the date that they notified you of the charges you are contesting for the cause of action?

Peter

[removalman]

Re: HBOS (Birmingham Midshires)

I'm relying on the FSA rulings in 2010 against Redstone and DB Mortgages as the start date for being the first time I could reasonably have discovered I had cause for action.

[Guest]

Re: HBOS (Birmingham Midshires)

Hi
I understand your reasoninmg i think, i presume you have developed your arguments.

I have not seen the SOL used in this way before, not saying of course that it cant be, but i suppose they would say that the section can only be used in cases of concealment or mistake. The point i would raise, is how can they be accused of concealement if untill recently what they were doing was not even regarded as unfair practice(devils advocate mode)

Peter

[removalman]

Re: HBOS (Birmingham Midshires)

I think you make a very fair comment (with your devils advocate hat on). So the argument in my favour would be:

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.
11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)
"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."
12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent.

Forgive me for highlighting certain sections in the passages above but I belive they give some strength to the message that I try to put over to the Judge.

I would certainly welcome some views....

[Guest]

Re: HBOS (Birmingham Midshires)

Hi
Wonderful, i was completely unaware of this jugement.
One thing that does worry me slightly. It seems that although the defendant was unaware that he was acting unfairly it would have been accepted at the time by people in the know that he was, although it parrellels your case quote closeley, is it not true that at the time the unfairness accourred in your case it was in fact not generally considered to be so, this has only been asscertained subsequently.

Peter

[removalman]

Re: HBOS (Birmingham Midshires)

Point taken, although in my case this goes back to the 1990's so not sure if anyone was aware of wrongdoing.

Anyway, I'm hoping the Judge will deny the Defendants request to set aside the Judgment so no hearing will be necessary at all.

Wishful thinking?...

[Guest]

Re: HBOS (Birmingham Midshires)

Point taken, although in my case this goes back to the 1990's so not sure if anyone was aware of wrongdoing.

Anyway, I'm hoping the Judge will deny the Defendants request to set aside the Judgment so no hearing will be necessary at all.

Wishful thinking?...

Who can say we just must keep our fingers crosssed

In response to my argement, i would say that when the judge commented that ignorance was no defence, the remark need not just have the narrow meaning of just applying to the defendant, it could apply to society as a whole. Because we were all not aware at the time that it was unfair, similarily could this be said to be no excuse.

Peter