Finance company claim- strilkeout dismissed!! - on to the next step

[HomerJSimpson]

I have an ongoing claim with a finance company that had a hearing with a DJ and he ordered a stay pending the outcome of the OFT test case. He seemed minded that the finance companies charges were probably excessive, but wanted to see the test case outcome.

Finance company never revealed their actual charges, and DJ wouldn't force them to, despite my requests. I (maybe naively,) never challenged the stay, thinking it's accruing 8% statutory interest. I wrote a letter to the court asking for directions for he future conduct of my claim post OFT outcome. I reminded court that this was finance company, not current bank account.

Reply.....

Upon reading the defendant's letter.

Upon the courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

IT IS ORDERED THAT

EXPARTE

1) The claim be dismissed.


I'm the claimant, not the defendant. What do I do now?

[BankFodder]

Can you tell us more about the failure to reveal their charges. Do you mean their costs?

Have they said anything about how they calculated their charges? Are there any aspects of their treatment of you which you think were in breach of contract or unfair?
Which finance company are you talking about?

[HomerJSimpson]

Originally Posted by BankFodder

Can you tell us more about the failure to reveal their charges. Do you mean their costs?

Have they said anything about how they calculated their charges? Are there any aspects of their treatment of you which you think were in breach of contract or unfair?
Which finance company are you talking about?

Close Premium Finance, a company that finance Insurance premiums over a twelve month period. Charges of £30 for each failed direct debit. All CPF will say about these charges are that they are a reasonable or genuine pre-estimate of their actual losses. They have failed to provide any actual proof.


The hearing in 2008 seemed to go ok, with the DJ seeming to agree that it didn't cost CPF £30 to send an automated letter, but he said it would have cost them something. Then he stayed the case pending the OFT outcome.

[BankFodder]

What is the value of the claim?

I can see some good arguments to resist the strikeout and proceed with the claim.
Can you email me on our admin@ address and let me have aphone number to call you tomorrow - if you want to go ahead.
I'm assuming that this is a small claim

[BankFodder]

... and there's no time to lose

[HomerJSimpson]

Hi Bankfodder and many thanks for taking your valuable time on this.

small claim, £240 plus interest, I had thought it would be an easy claim, CPF wouldn't disclose actual costs and judge would have to rule in my favour.

Judge originally ignored my draft order for directions which would have cleared matters up I thought. At the hearing, Judge seemed to agree that £30 was not a reasonable charge for re-presenting D/Ds and said that they would have incurred some costs. I argued that they had been given ample opportunity to disclose their actual costs. Judge was minded to stay case pending OFT outcome. I (naively) thought well it's accruing 8% interest.

Received general form of judgement staying case post OFT. Within 3 months I should apply for directions for the future conduct of the claim. I wrote a letter on 4 Feb 2010 applying for directions and hand delivered to court. 6 Feb 2010 I received order from court stating that after reading defendants letter, the court on its own motion.....

I attach copies of POC, judgements, defence and all relevant documents....

Many thanks in anticipation

Mike

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[HomerJSimpson]

After advice from BankFodder, I went to court today to get a copy of the letter from the defendants, the one the DJ read in deciding to dismiss the claim. The court can't find the letter! They brought out the case file and they couldn't find the defendants letter.

They tell me they will find it and send me a copy but I only have 7 days to vary or set aside the judgement. I left my mobile number with the court to contact me when they find it, but I'm not holding out too much hope.

[HomerJSimpson]

Returned to court again today with an N244 application to Not strike out my claim and for permission to amend my claim. Court staff have now located the defendants letter, but instead of calling my mobile as I asked, they stuck it in the post. As I have no knowledge of the contents of this letter, I can only guess what they have told to the court.

Also found that my claim was actually struck out on 16 January, but the judgement not posted to me until 4 February. Had to add to the N244 an application to have the claim reinstated.

The N244 only cost £40, I thought it would be more than that.

I attached the following letter from information in the article on the front page of the CAG.

The Consumer Forums - Not all charges are bank charges - so claim them back



county court
10 February 2010
　
　
　
　
Dear District Judge

Claim no xxxxxxxx
Xxxxxxxxxxxxx v Close Premium Finance
Objections to striking out. And request for leave to amend claim

I refer to the order of the court dated 4 February 2010 and received by post on the 6 February 2010. I am writing as invited by the Court to lodge my objections to the proposed strike out of my claim. Please note that I was not aware of the application to strike out. Furthermore I have visited the court on the 9th February 2010 to obtain a copy of the defendants letter of application and I have been told by the Court staff that the letter is lost and they cannot find it.
As the Courts strike out order contains no information as to the reason for the decision, and as the Court is unable to supply me with a copy of the defendants application, I have no idea of the actual reasons for striking out my claim, and so I am unable to address the points specifically.
However I expect that the application to strike out is connected to the recent Supreme Court decision on bank charges and I expect that the defendants have claimed to the Court the recent decision in favour of Eight UK banks applies in this case.
Objections to strikeout
· My position is that the Supreme Court decision does not apply to my claim.
· The Supreme Court decision was made in respect of Personal Current Account providers (PCA's) and the defendants in my case are not a PCA.
· The OFT test case was decided particularly on the issue of whether Charges fell to be assessed for fairness under regulation 6 of The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)
· UTCCR Regulation 6 applies to charges which are levied in respect of activity which is incidental to a business’s core activity.
· The Eight UK banks argued that their charges produced more than 30% of their PCA revenue derived from 20% of their PCA customer base.
· The Supreme Court accepted this argument.

· The Supreme Court held quite specifically that unfairness under regulation 6 of UTCCR was not to be a factor when considering their validity.
· The Supreme Court made it clear that it's decision was extremely narrow and highly particular.
· I submit that my claim against the defendants is not affected by the Supreme Court decision in respect of core business Charges levied by UK banks. I submit that Late Payment Charges / Representation Charges do not form a core part of the defendants business activity, and that the revenue derived from Charges does not form any substantial portion of the revenue derived from their lending business.
· I respectfully admit that it would be in the interests of justice to allow me to continue my claim.
　
Leave to amend my claim
I respectfully request permission to amend my claim.
With the hindsight of the recent Supreme Court decision both the defendant and myself have had an opportunity to consider the judgment and to refine our positions.
Because of the very short deadline given to me by the Judge’s order of 4 February 2010, received by post on 6 February 2010, and because I have been unable to obtain the defendant’s application from the court, I have been unable to prepare a proposed draft amendment in time to accompany this letter.
However I am not proposing to change the basis of my claim, merely to provide more detail of the claim and to clarify the issues for the court and for the defendant.
I request permission to file an amended claim within 14 days of the order of the court.
I understand that the defendant will need to be given an opportunity to respond.
　
Yours Sincerely

[HomerJSimpson]

Maybe a belt and braces approach but think I will follow up tomorrow with the following letter to the court to be attached to the N244.




Xxxxxx county court
10 February 2010
　
　
　
　
Dear District Judge

Claim no xxxxxxxx
xxxxxxxxxxx v Close Premium Finance

Additional information for my application to restore my claim

I have learned from the court that my claim was actually struck out on 19 January 2010.
I would respectfully point out to the court that the order itself is actually dated 4 February 2010, a clear fourteen days after the date of the strike out and was only received in the post on 6 February 2010.
I would ask the court to recognise that in the circumstances I have reacted as quickly as I could and without any kind of delay on my part.
I hope that my application to object to the strike out will not be prejudiced by the circumstances, which are in fact that there has been a delay in sending the order out to me, which is in no way my own fault.
　
Yours Sincerely

[HomerJSimpson]

Received copy of letter from defendants today. Can't believe District Judge dismissed a claim on the basis of this letter


Dear sir,
The above case was frozen as you wished to await the decision in the Supreme Court on unarranged overdraft charges.

As you are aware, verdict has now been given that such charges cannot be challenged by the OFT under the UTCCR 1999.

In any event the charges in this case were part of our standard contract and related to a loan deposit, not an unarranged overdraft.

Given the points above we respectfully request that the claim be dismissed as the charges contested have been properly and reasonably levied.

Yours sincerely



Properly and reasonably levied - £30 a time to send an automated letter and represent a direct debit

I just don't see how any Judge can dismiss a claim on the basis of this letter.

[HomerJSimpson]

Received Notice of Hearing of Application throuth the post today.

The hearing of the claimant's application for *(see copy attached) will take place at xx.00 on the xx xxx 2010 at xxxxxxxx county court.


I never requested a hearing, but at least it's a step in the right direction.

I think I'd better revise my POC's and make this claim watertight.

How would I bring up the defendant's abuse of process with the DJ?

I'm guessing abuse of process by asking for dismissal of claim with no grounds other than we believe our charges are fair. No evidence to back it up.

[HomerJSimpson]

Well, Court hearing tomorrow to ask fro my claim to be reinstated and ask for permission to submit Amended POC.

Still very angry that DJ dismissed claim without any valid reason as far as I can see. I've been busy reading UTCCR regs, CCA and have taken great inspiration from GLC's victory in Scotland. Coupled with the advise on CAG about misrepresentation of charges as grounds for a claim, I am cautiously optomistic.

Don't know if I should post my grounds for opposing the strike out on here before the hearing. Any advice?

Regards, HJS

[HomerJSimpson]

Well court this afternoon, entered Courtroom and met the same District Judge who stayed the original hearing.

Nobody was there representing the finance company, and the DJ commented he was surprised at that. DJ explained that he stayed my claim pending the result of the OFT case, and as the OFT lost and charges were deemed to be part of the service a customer receives from the bank, that charges were not reclaimable.

I said that the OFT lost the case by relying on Reg 6 of UTCCR and even the Supreme Courts summary judgement hinted Reg 5 would be a better way to go. I then argued that the ruling only applied to Personal Current Bank Accounts, which my claim isn't. I said that credit card and mortgage claims are still being heard by the courts, as the ruling doesn't apply to them.

I then handed the DJ a statement in support of my application to continue my claim and to file ammended particulars of claim. He sat quietly reading it and with some raised eyebrows along the way, he finished reading it.

DJ then agreed that his order of 19 January should be set aside.

He spoke as he was writing the court order.....

The order shall be set aside pending representations.
1.Order dated 19th January 2010 be set aside.
2.Claimant has permission to amend particulars of claim to be filed and served by the 15th March 2010.
3.Defendant do file and serve any amended defence by 29th March 2010.

DJ told me that if the defendants defence wasn't filed by 29th March I could apply for judgement.


So all in all, a nice result.

[supasnooper]

Nice result, HJS.

[citizenB]

Yes, excellent result. One small step at a time.

[BankFodder]

We will disclose the amended POC in the next 2 or 3 weeks.
For the moment, people should understand that the OFT test case only applies to banks - where their charges business is so great that it amounts to core business.

Why has that not been pointed out by the OFT?

I have no idea.

[themadcap]

This seems like a very strange decision for a judge to make, the claim had no reason to be stayed pending the OFT case as it has no bearing on a matter outside of the banks/building societies it is not a business that uses the "core business" arguments, the company you were suing sells insurance as their core business - seems yet another judge has bungled a case.
Ive had problems with the same judge (nescafe) previously.

[HomerJSimpson]

Originally Posted by themadcap

This seems like a very strange decision for a judge to make, the claim had no reason to be stayed pending the OFT case as it has no bearing on a matter outside of the banks/building societies it is not a business that uses the "core business" arguments, the company you were suing sells insurance as their core business - seems yet another judge has bungled a case

They finance insurance policies taken out through brokers, I'm a taxi driver - large insurance premiums. I agree that the case should never have been stayed, the DJ agreed that the charges of £30 for representing a direct debit were probably excessive, but thought they had incurred some costs. He stayed pending the OFT outcome and I (perhaps foolishly) didn't object as I believed the OFT would win and my claim was accruing 8% interest.

It seems that the defendants had jumped on the bandwagon of applying charges to failed direct debit payments. They are unable or unwilling to justify these charges so far.

It seems some Judges are dismissing claims if they are for any type of financial charge. I expect a lot of people just accept the Courts decision to dismiss/strike out these claims. I'm glad that I posted my problem and received stirling advice and assistance from the site team.

Hopefully this will help to show that these strike outs can be reversed and the claims continue through the Court process and hopefully achieve the correct outcome in the interests of justice.

HJS

[HomerJSimpson]

Originally Posted by BankFodder

We will disclose the amended POC in the next 2 or 3 weeks.
For the moment, people should understand that the OFT test case only applies to banks - where their charges business is so great that it amounts to core business.

Why has that not been pointed out by the OFT?

I have no idea.

And perhaps more importantly,not pointed out to District Judges?

[themadcap]

Originally Posted by HomerJSimpson

They finance insurance policies taken out through brokers, I'm a taxi driver - large insurance premiums. I agree that the case should never have been stayed, the DJ agreed that the charges of £30 for representing a direct debit were probably excessive, but thought they had incurred some costs. He stayed pending the OFT outcome and I (perhaps foolishly) didn't object as I believed the OFT would win and my claim was accruing 8% interest.

It seems that the defendants had jumped on the bandwagon of applying charges to failed direct debit payments. They are unable or unwilling to justify these charges so far.

It seems some Judges are dismissing claims if they are for any type of financial charge. I expect a lot of people just accept the Courts decision to dismiss/strike out these claims. I'm glad that I posted my problem and received stirling advice from the site team.

Hopefully this will help to show that these strike outs can be reversed and the claims continue through the Court process and hopefully achieve the correct outcome in the interests of justice.

HJS

Yes well done HJS, I wrote my response before reading the whole thread, they can have no argument as it now seems clear the judge would ask how their charges equate to £30 and as has been shown with credit cards and mortgages they cant just charge whatever they want, hopefully theyll cave in now and pay you off
good luck (though you wont need it)