Hearing date set for November - Need help

[Zorro01]

Hello wise ones,

I recently sent a letter to the county court as my stayed claim was over and I told them I am still pursuing hsbc over the bank charges and I thought in all honesty they would stay my claim again but they didn't and instead gave me a date for court (November). I am happy about it but I am understandably worried as I was hoping for a further chance to listen to some new arguments before going for the throat of HSBC.

I also (24 days ago) recently wrote to HSBC asking them to settle with a detailed list of why they should as it was not in their interest to go to court. I also asked if they would mind me changing the POC to include my new arguments which I compiled using similar arguments as in the current scottish case and others but to date I have not heard from them so am going to have to go straight through the court and probably have to pay.

I am a bit worried as I have never been in a court in my life and so don't know what to expect and I am a little worried about batting it out with a Toff barrister.

I am going to go either way as I have nothing to lose and if they do send a barrister it will cost them a few ££££ doing so. Anyone got any help and advice as the best way to prepare for battle. Any tips or personal experiences you can offer up.

I presume I will have to amend my POC to reflect new arguments etc. I can post up any info that you need to look at/ Just say the word.

For the record I am going after HSBC under hardship if that is any help.

Thanks in advance.

[pompeyfaith]

Re: Hearing date set for November - Need help

what makes you think it will cost them if you lose there costs will be yours and remember hsbc have a supreme court judgement under there belt so unless you put a professionally pqepared case before the judge you will struggle

[Amethyst]

Re: Hearing date set for November - Need help

When do you have to have your amended particulars of claim in to court ? Have you already applied for permission to apply ?

HSBC will apply to have your claim struck out now the stay has been lifted so you will need to do a formal application to amend (depending what your original POC was but I suspect it is probably inadequate following the test case) and then the hearing can double up to hear that application too.

Does the court notification state what the hearing is for ? And can you type up the particulars of claim you have in at court ?

Also what do you feel your case is ?

[Zorro01]

Re: Hearing date set for November - Need help

When do you have to have your amended particulars of claim in to court ? Have you already applied for permission to apply ?

HSBC will apply to have your claim struck out now the stay has been lifted so you will need to do a formal application to amend (depending what your original POC was but I suspect it is probably inadequate following the test case) and then the hearing can double up to hear that application too.

Does the court notification state what the hearing is for ? And can you type up the particulars of claim you have in at court ?

Also what do you feel your case is ?

My case is I was caused financial hardship due to the ridiculously high charges month on month. Some months £150, other months £75.00 and so on. I will use the consumer credit act s.140 with corresponding info in relation to UTCCR to assess where burden of proof lies.

The banks must therefore prove they're fair and provide information of the same to justify the charges as above in relation to what the CCA and UTCCR say.
The best of all this is the burden of proof is on the banks to prove that the relationship is fair and not the consumers to prove the charges were unfair. How can they justify taking £150 within a 31 day period from somebody they know is already struggling financially - it should be an interesting discussion.

I wrote to HSBC asking for permission to change POC and have not had a reply. And that is why I am here looking for advice.
The court as set a date for the actual hearing and it is to argue the case in court. I would have been a bit more on the ball but have spent the last month in hospital recovering from an operation so it is all a bit rushed if I am honest.

Your quite right in presuming my old POC are inadequate and are here followed by some new arguments. I need some advice in how to go forward with this.
Also to answer the op question - even if I am ordered to pay the costs of HSBC then so be it. If we all think like that then there is no point in having a forum like this one to help with such situations?!
At the Manchester County Court



Defendant:
HSBC Bank PLC
8 Canada square
London
E14 5HQ

Particulars of Claim

The Claimant has an account: ******** ************ ("The Account") with the Defendant which was opened on or around

1. The account was conducted on the basis of the defendant’s own standard terms and conditions.
2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
3. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
5. The Defendant also charged interest on the charges which were applied.
6. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
7. A list of the charges applied is attached to these particulars of claim.
8. A partial payment was made to claimant on 20/05/2009 for £290.00 due to financial hardship.
The Claimant contends that:
Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because
a. They are contrary to the requirement of good faith.
b. They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-
· Bank accounts have become a basic essential service
· The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
· There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
· These banks exercise a collective dominance in the market.
· The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
· The charges exceed actual costs by several thousand percent
· They are applied unilaterally in a standard form contract without the possibility of negotiation
· The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
· The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
· The customer had no means of assessing the fairness of the Charges at the time of entering the contract
· The charges reflect a mark-up of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary mark-up for any UK business. The normal mark-up on the High Street is less than 100%.
· Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniosities which then trigger more charges. Therefore the Defendants have caused much of the claimant's impecuniosities and it is the Defendants who are causing the charges to be levied with a view to their own profit.
· The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
· The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
· The Defendant's charges structure depends upon the impecuniosities and vulnerability of its poorer customers to provide free-banking services for those in a better position.
· The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.·
As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.

In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.


Accordingly the Claimant claims:
a) The restitution of the amounts debited in respect of charges in the sum of
b) Interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 29/11/2006 to 15/07/2009 *****and also interest at the same rate (8%) up to the date of judgment.
c) Restitutionary damages to be assessed by the court
d) Court costs of *****
Final sum and total claim of: ****plus other costs as allowed by the court.
I believe that the contents of these particulars of claim are true.

Signed:

My new arguments will be along these lines -

The charges are unfair under s.140A(1) of the Consumer Credit Act 1974 and contrary to the requirement of good faith, having caused a significant imbalance in our relationship and a detriment to myself, and under regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999, in the following respects (save for, in the case of the later, those matters which relate to the level of the charge as against the service supplied in exchange):

(1) The charges were (or had the potential to be) excessive and punitive in comparison with the costs to the bank caused by my conduct which triggered the charges.

(2) The charges were set by reference to the overall cost to the bank of providing current accounts to all of its customers which held such an account, rather than merely to the cost of my conduct thereby effectively requiring me to subsidise the provision of current accounts by the bank to other customers.

(3) In the premises the bank did not deal fairly as between myself and its other customers.

(4) The existence and quantum of the charges were inadequately and/or insufficiently explained and/or drawn to my attention either; when my account was first opened; when I gave an instruction which would result in the levying of a charge; or otherwise before any particular charge was applied.

(5) The circumstances and manner in which the charges were levied created potential for the application of multiple charges and the levying of charges to give rise to the application of further charges.
(6) The complexity of the charges and/or the circumstances in which they were levied.

(7) The nature of the charges and/or the circumstances of their application was such as to cause me inherent difficulties in predicting the incidence and amount of such charges in advance.

(8) The absence of any effective competition between providers of current accounts which restricted my ability to chose a current account operated on terms which did not provide for charges such as (and/or equivalent to) those levied by your bank.

(9) The charges were (or had the potential to be) excessive in comparison with the level of borrowing which triggered the levying of the said charges.

In particular, and without prejudice, the burden of proof for the above rests on HSBC Bank Plc to prove that the circumstances of our relationship are fair (pursuant to s.140B(9) of the Consumer Credit Act 1974), so you will need to provide evidence to the contrary in court.

As it is not within your interest for me to continue my case in court I would like you to reconsider my complaint based on this information and ask that you refund me the amount I have previously requested of £****which includes the interest the court would have awarded at time of issuing the POC 15/07/2009.

In addition I would like the further interest (8%) the court would award up to and including 17/08/2010 since the date of my original complaint making a total of £**** I have attached a full schedule of the new charges with this document. As I am in financial hardship I would also like to request HSBC bank can show some lenience towards me considering my ill health and situation in relation to the court fee which I had to pay of £***** If so the total owed to me is £****

If you are not willing to offer a settlement at this stage then instead I request the bank’s permission to amend my Particulars of Claim, so that the matter can be legally determined.

I look forward to a full response to this letter within 14 days but if you are not able to help please take this as notice that I will be contacting my county court at the earliest opportunity.

Yours faithfully,


Thanks for reading :- )

[Amethyst]

Re: Hearing date set for November - Need help

Right, I'm going to move your thread to somewhere where others have tried with the new bank charges arguments (and failed thus far but yep no point us being here if we just accept failure and give up) Quite a lot of reading for you in there, but you need to know what you are taking on FULLY before applying to amend.

Two mins

[Amethyst]

Re: Hearing date set for November - Need help

Legal Beagles Consumer Forum (VIP bank charges claims)

Have a read there and here > Legal Beagles Consumer Forum (Anthony Scrivener QC Opinion on 5.1)

I'll read through your proposed arguments.

[EXC]

Re: Hearing date set for November - Need help

Also to answer the op question - even if I am ordered to pay the costs of HSBC then so be it. If we all think like that then there is no point in having a forum like this one to help with such situations?!

The point of this forum is to give unbiased and honest advice in the interests of those it is given to. It is not to encourage people to embark on risky litigation with a disregard for the potential consequences.

In our view, as things stand, the costs risks outweigh the chances of success. We have sought counsel's opinion on the current position and the prospects of success for a litigant in person are minimal at best http://www.legalbeagles.info/Bankchargesopinion.pdf

[Zorro01]

Re: Hearing date set for November - Need help

The point of this forum is to give unbiased and honest advice in the interests of those it is given to. It is not to encourage people to embark on risky litigation with a disregard for the potential consequences.

In our view, as things stand, the costs risks outweigh the chances of success. We have sought counsel's opinion on the current position and the prospects of success for a litigant in person are minimal at best http://www.legalbeagles.info/Bankchargesopinion.pdf

I understand what you are saying and the fact is I am too seeking unbiased and honest advice. The point is I have two options.
1. I go to court with enough info to argue my case to the best of my ability and hope I am successful.
2. Give up becuase there might be court costs to pay.

The truth is I am not prepared to give up "in-case" something might happen - thats all I was getting at. The risk for me is minimal as I am in severe financial hardship / have no money / recently disabled and my claim is below £5000 so is small claims track. I am sure that if the banks do request costs it will also prove my point about their conduct towards those with dire finances.
I am merely after advice to go prepared - win or lose? who knows.
Even if I do lose I can post the information I recieve on here with the arguments the bank turns up with and it will possibly help many others hopefully with varied bespoke legal arguments for their own cases in response to what the banks are saying in their defence.
Thanks for all your help thus far. :- )

[Amethyst]

Re: Hearing date set for November - Need help

The claim will be put in fast track as it is not just a fact of law, that is despite it being under £5k, and costs are likely to be around £5 - 10k should you lose at a full hearing.

The POC you have intended so far doesnt give very much detail on the unfair relationship and there is no mention of the UTCCR at all. There are some examples of POC work we did before we decided the risk was too great for LiP's which should assist you. Thus far what you have written is very non specific and doesnt deal with your account at all and is far too generalistic for a s 140 claim.

With HARDSHIP you would be much better placed to go through the Financial Ombudsman.



Ask anything you like

[pompeyfaith]

Re: Hearing date set for November - Need help

I am not for one minute saying give up merely advising to think carefully and i would advise that you have legal insurance and representation

[Zorro01]

Re: Hearing date set for November - Need help

The claim will be put in fast track as it is not just a fact of law, that is despite it being under £5k, and costs are likely to be around £5 - 10k should you lose at a full hearing.

The POC you have intended so far doesnt give very much detail on the unfair relationship and there is no mention of the UTCCR at all. There are some examples of POC work we did before we decided the risk was too great for LiP's which should assist you. Thus far what you have written is very non specific and doesnt deal with your account at all and is far too generalistic for a s 140 claim.

With HARDSHIP you would be much better placed to go through the Financial Ombudsman.



Ask anything you like

It was generalised for the bank as I sent it recently asking for it to settle the claim otherwise I would bring arguments (obviously elaborating on those points) to the court.
I feel much more resaerch is neccessary and with time running out I am not sure what to do.
If I go forward then I need to ask the court can my POC's be changed, change them after reasearching and then issue them to the respondent and court before hearing date.
If I go to the ombudsman then what are my chances in getting my money back.
I did try that in the past under hardship and HSBC refused to playball.
So confused with what to do.

[Amethyst]

Re: Hearing date set for November - Need help

Without knowing your circumstances it is hard to advise.

If the charges have been imposed after you have told the bank of hardship then you have a good case for getting those charged within the period of hardship returned.

I note you have had some back

8. A partial payment was made to claimant on 20/05/2009 for £290.00 due to financial hardship.

Prior to the hardship (eg lost your job etc) then it will be extremely difficult.

Also, hardship is not an argument for court.

[Zorro01]

Re: Hearing date set for November - Need help

have you got a link to the sample poc's please.

[Zorro01]

Re: Hearing date set for November - Need help

One thing I can show in my arguements that hardship was caused almost as a direct result of the amount of charges.
One monthHSBC took out £150 in charges, it is worth noting that I had never before recieved any charges as I had been able to manage if I was careful yet that was the start of the concurrent charges a snow ball effect if you will, i could never get back to the position I was in before. It was therefore an issue actually created by the bank which put me in that god awful position. The charges were for an unpaid direct debit which i spoke to the bank about and told them my wages would be paid later that month than normal, instead they just applied charge upon charge.
If I can demonstrate this fact in the court with the legal arguments to back it up surely the judge (if not an idiot) can see that if I wouldn't have been charged so much then I would not have had any more charges. Thats the angle I was going to go with along with the other arguments above and placing the burden of proof upon the bank.

I understand now that every arguement will need to be tailored to the individuals circumstances and I just need help putting it down on paper - then I can try my very best on the dayknowing that I at least had some good issues and arguments that the bank could not just brush under the carpet.

[Amethyst]

Re: Hearing date set for November - Need help

Theres some in the VIP forum I linked you to earlier. We didnt really do the general template stuff.

As an idea one we were working on (sadly she was struck out at the application to amend particulars hearing with costs over £3k) so this never got to the court room.

14: On 01.03.2001 the Defendant granted an ''authorised'' overdraft, on its standard terms, to the Claimant of £1150.

15: On 1st April 2004 the Defendant reduced the ''authorised'' overdraft available to the Claimant to £300. The Claimant does not recall receiving any notification of the reduction and the Defendant has not disclosed any evidence to date to the contrary.

16: On 5th April 2004 the Defendant by virtue of a direct debit transaction requested by West Bromwich Building Society allowed the Claimant to overdraw the account by £650. £350 of the debit balance was outside of the ''Authorised'' overdraft available to the claimant. The Defendant applied a ‘’Debit under Advice’’ fee of £33.00 which was directly related to the transaction.

ie point out specific examples where the relationship was weighted heavily in the banks favour