VOLVO v CABOT (Bank One) Help needed, Court Claim received **DISCONTINUED**

[volvo]

Thanks FG

 

Yes,This is still with Northampton.

 

When you say if havent received by 28th, do you mean disclosure or strike out??

 

VOLVO

[foolishgirl]

Strike out

[volvo]

Chasing letter to Morgans for disclosure sent SD today.

 

Also, have prepared N244 strike out request for submitting by early next week assuming still no response from Morgans (Cabot).

 

VOLVO

[volvo]

Should i also include a draft order direction with the N244, in case the strike out is not granted by the court?

 

Volvo

[gh2008]

IMHO I think that approach can backfire as the DJ can just make the order rather than having a SO hearing.

 

An app for SO should involve a hearing and then if the SO is rejected an Order should be made for the documents if the DJ wants to give the claimants another chance. (This is exactly what happened on another thread recently).

The DJ, in that case, also stayed the application with leave to restore (which has also just happened as the claimant did not comply AGAIN)

[foolishgirl]

I agree with gh, volvo.

An applic. should ask for one thing or related things, it shouldn't offer an either/or option.

[volvo]

Thanks GH and FG

 

Will just send the N244 requesting strike out then due to POC being insufficiently particularised etc.,

 

Thanks

 

VOLVO

[foolishgirl]

Post up a draft if you want any help checking it over before you send it volvo.

[gh2008]

Will just send the N244 requesting strike out then due to POC being insufficiently particularised etc.,

 

Whooooaa

 

you can do much better than that - have a read of the reasons for a strike out

Power to strike out a statement of case

 

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

 

(2) The court may strike out(GL) a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

 

 

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

Ok so you've got 3 reasons there, use those and show why the claim fall foul of all three, not just the least one.

 

 

Remember to check out

the Pre-Action Protocols PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice

and CPR16 PART 16 - STATEMENTS OF CASE - Ministry of Justice

& the PD PRACTICE DIRECTION 16 – STATEMENTS OF CASE - Ministry of Justice

together with the CPR31 breaches

[volvo]

Hi PT FG and all

 

Sent N244 to court requesting strikeout which court received by SD last friday 16/4/10.

 

Heard nothing yet, but if do not hear from court will need to post a defence to send to them, on this monday 26/4/10, so will have to pepare it at this weekend.

 

Anyone any idea how to proceed now regarding N244, and what i need to put together as the defence.

 

VOLVO

[volvo]

bump

[foolishgirl]

IMO you need to enter a statement based on the embarrassed defence I posted earlier on, eg:

 

1. The Claimant's particulars of claim are vague and fail to disclose any cause of action. They appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

2. The Defendant wrote to the Claimant on xxx requesting that

(a) they submit a new properly particularised claim

(b) they supply the Defendant with copies of any documents on which they had based their claim (this request made under CPRxxx)

© they agree to a 28 day extension for a defence to be submitted

 

A reminder letter was sent to the Claimant on xxxxx

 

To date the Claimant has failed to repsond to any of the above

 

As a result the Defendant is unable to plead effectively or at all. The Defendant is embarrassed.

 

4. Furthermore the Claimant pleads that the claim is brought in respect of credit card accounts that would by their nature, be defined as regulated credit agreements regulated by the Consumer Credit Act 1974, yet the Claimant claims statutory interest which the Claimant should surely know it is not entitled to by virtue of the County Courts (interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.

 

5. An application was made by the Defendant to xxx County Court on xxx. To date the Defendant has not received notification that this application has been considered or is likely to be considered imminently.

 

6. It is repsectfully requested that, if appropriate, the Defendant be permitted to offer an amended defence folowing consideration of the application & subject to the Claimant supplying the requested documentation upon which they have based their claim.

 

6. Without clarification of the Claimants claim, the Defendant is extremely disadvantaged and the Claimants claim appears without merit

[gh2008]

IMHO I would leave 4 out - again IMHO it is out of place here but will be of great use later on if (or when) you submit an application to have their case struck out.

 

The claim needs to be pleased properly before you answer it - para 4 is trying to answer a point by adding in info that should be in their POC in the first place.

 

JMHO though

[foolishgirl]

The claim needs to be pleased properly before you answer it - para 4 is trying to answer a point by adding in info that should be in their POC in the first place.

 

You're right gh, well spotted.

 

Leave it for the next leg, volvo.

[volvo]

IMO you need to enter a statement based on the embarrassed defence I posted earlier on, eg:

 

1. The Claimant's particulars of claim are vague and fail to disclose any cause of action. They appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

2. The Defendant wrote to the Claimant on xxx requesting that

(a) they submit a new properly particularised claim

(b) they supply the Defendant with copies of any documents on which they had based their claim (this request made under CPRxxx)

© they agree to a 28 day extension for a defence to be submitted

 

A reminder letter was sent to the Claimant on xxxxx

 

To date the Claimant has failed to repsond to any of the above

 

As a result the Defendant is unable to plead effectively or at all. The Defendant is embarrassed.

 

4. Furthermore the Claimant pleads that the claim is brought in respect of credit card accounts that would by their nature, be defined as regulated credit agreements regulated by the Consumer Credit Act 1974, yet the Claimant claims statutory interest which the Claimant should surely know it is not entitled to by virtue of the County Courts (interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.

 

5. An application was made by the Defendant to xxx County Court on xxx. To date the Defendant has not received notification that this application has been considered or is likely to be considered imminently.

 

6. It is repsectfully requested that, if appropriate, the Defendant be permitted to offer an amended defence folowing consideration of the application & subject to the Claimant supplying the requested documentation upon which they have based their claim.

 

6. Without clarification of the Claimants claim, the Defendant is extremely disadvantaged and the Claimants claim appears without merit

 

Hi

 

Update

1.) Have checked with the Court and my N244 Strike Out request of 16/4/10 has still not been considered by them yet.

 

2.) Have not received any response relating to my CPR31.14 request of 7/3/10 at all regarding their POC.

 

3.) Have received a response on 22/4/10 relating to my CPR18 request of 7/3/10.(Foolish Girl's template).

 

They have enclosed a massive pack containing:-

Copy application form for Barclaycard and Bank One Intl accounts, both without any prescribed terms, No terms & conditions have been supplied at all for either account but they state they have requested the original T&C's and also those applying at time of default and will forward them to me when they receive them. They also state they have requested copies of Default Notices also but are not needed as they are only claiming for arrears, (They have claimed full balances outstanding.) They also enclosed their action history log for each account.

They say regarding proof of copying, storing and retrieval info request that the that serving of witness statement will comply with CPR r33 and section 2 (1) of civil evidence act 1995.

 

They have also supplied redacted copies of Deeds of Assignment for both accounts with nearly everything blanked out.

 

Some statements have been supplied but not a complete set.

 

4.) They have offered an further extension of time till 28/5/10 due to their delays in responding which i confirmed and agreed with them on phone today. I am Posting letter to court tommorow advising them of the furthertime extension agreed for submission of defence

.

*Does this mean the Strike out request will now fail when considered by the court as thay have responded to the CPR18 request. No correspondence has been received relating to the CPR31.14 request sent at the same time.

 

What do i need to do now, wait for N244 to be considered or do i need to start preparing a defence now, if so, unsure how to go about this. ?

 

Many Thanks

 

VOLVO

[foolishgirl]

I don't know what you put as your reasons for the strike out so can't comment.

 

Can you post up copies of the agreement please (minus personal details)?

 

Of course the DN is required if they are asking for full balance.

 

CE compliance just means that they comply with WS & provide Witness at hearing if required to (but note you could be liable for costs of such). Wait & see what you need first.

 

You now need to go through all those statements & check for unlawful & unexplained charges. Have you ever claimed anything back?

[gh2008]

You still need a properly pleaded POC

 

The info they have sent is for you - it is not (at the moment) part of their claim.

 

You defence can still only answer their POC - and IIRC the wasn't really much to answer in that.

 

So FG's defence still stands. Yes, you have a load more info but they are still relying on their POC.

 

Get it re-pleaded .... that will be your goal at the SO hearing as I cannot see you getting a SO - JMHO though

[gh2008]

Oh, and if they are saying arrears only the account is still 'live' and therefore they should have complied with all the new '2006' regulations check out s.86(A-F) for instance.

[volvo]

Thanks GH & Foolish Girl

 

Will post up my submitted Strike Out Application tommorow night, also had a letter from court stating the N244 £75 fee i sent, was only £40 and they will send me a cheque for the difference.

 

FG the agreement (application form) is already posted earlier on in the thread.

 

Will check the statements they supplied for charges, but they are not a complete set.

 

VOLVO

[foolishgirl]

Thanks volvo, found the applic. form. IMO they will struggle with this.

 

Do wish the courts would all play by the same fee book. I really can't work out why some courts seem to charge you £75 & others £40 but you're in pocket volvo, so don't worry.

[volvo]

Hi Foolish Girl

 

Pse see attachments for Strike out request as promised.

(Was sent hurredly off top of my head as i was leaving for Germany, before i got your kind offer to check the strike out application for me.)

 

Anyway, this is what i sent and am waiting for the courts response, they have banked the cheque though.

 

 

 

 

VOLVO

[foolishgirl]

The SO applic. looks OK volvo.

 

IMO gh's advice stands. You need to attend the hearing, state that the Claimant has now supplied some info. under a CPR18 request but has failed to amend his pleading to reflect the particulars of the claim & you are unable to offer a defence if you are not aware of exactly why & what the Claimant requires in respect of each debt under the claim.

 

Aswell as the amended POC, you could also try asking for directions from the DJ that

 

1. an original agreement be produced to the court (remind him of CPR16(7.3) -

Where a claim is based upon a written agreement:(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

and also the Money Laundering Regs that require a business to keep originals of documents for at least 5 years beyond termination of the business relationship.

 

2. a copy of the DN be produced with proof of posting

[volvo]

The SO applic. looks OK volvo.

 

IMO gh's advice stands. You need to attend the hearing, state that the Claimant has now supplied some info. under a CPR18 request but has failed to amend his pleading to reflect the particulars of the claim & you are unable to offer a defence if you are not aware of exactly why & what the Claimant requires in respect of each debt under the claim.

 

Aswell as the amended POC, you could also try asking for directions from the DJ that

 

1. an original agreement be produced to the court (remind him of CPR16(7.3) -

Where a claim is based upon a written agreement:(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

and also the Money Laundering Regs that require a business to keep originals of documents for at least 5 years beyond termination of the business relationship.

 

 

2. a copy of the DN be produced with proof of posting

 

Thanks FG and GH

 

Are you saying i should attend the Strike Out hearing as the case is still with Northampton and i live in the North West and the court have not advised when they will consider the N244 S/O request anyway. Morgans did agree to defence extension submission until 28th May though(probably as they have not yet supplied DN or the original T&C's

 

VOLVO

[foolishgirl]

If you are required to attend, the case will probably be transferred to your local court.

[volvo]

Thanks