On an application to lift a stay on a claim to recover allegedly unfair bank charges, the court must consider the general guidance given in respect of such stays but also the particular facts of the case involved.

This was the finding in Rutherford v HSBC Bank PLC, in which the claimant sought to have the general stay imposed on his claim to recover bank charges from the defendant lifted so that he could pursue his claim and use the sums recovered to pay off arrears on his mortgage and so stave off possession proceedings. A general stay was imposed on all the bank charges cases pending resolution of the test case although with a proviso that each case should be considered on its own merit with the court having the discretion to lift the stay if necessary in a particular case. The claimant appealed against the court's refusal to lift the stay in his case.

The court held that if a warrant for possession was issued, the claimant could apply in those proceedings to suspend the order on the basis that if he recovered the charges from the defendant, they would go a long way to discharging the mortgage arrears. That application, if made, may or may not be successful. At first instance the judge had considered the particular circumstances of this case, including the financial difficulties it was alleged the stay was causing the claimant, as well as the general guidance on the stay and had fairly balanced the various factors in deciding not to lift the stay. The exercise of discretion here could not be faulted.

Things to consider

It would be an unusual case, given that leave to appeal to the House of Lords has recently been given to the banks, in which a stay will be lifted. This does not stop the bank customer using the existence of the proceedings against the bank in other, non-related proceedings, as was open to the claimant to do here.