Shakespeare62 - v - a NastyBank

[shakespeare62]

Drawing up the N244 now .... I'll post (on the forum) within 30 mins

[shakespeare62]

Right here is the N244 stuff - I've just done box 3 and box 10 for this post (the other boxes are filled out as in my previous N244 on 22 May)

 

3.What order are you asking the court to make and why ?

 

 

An Order to set aside the Order made without a hearing by District Judge W---- on 29 May 2009 and directing that the Summary Judgment hearing date of 5th June 2009 be adjourned until the Claimant complies with the CPR Part 31.15 disclosure request for inspection of original documents

 

 

 

10.What information will you be relying on, in support of your application ? [X] the evidence set out in the box below

PLEASE SEE ATTACHED SEPARATE SHEET LABELLED “N244 Application notice Box 10 continuation sheet”

 

 

“N244 Application notice Box 10 continuation sheet”

 

Inspection of the original document is crucial to enable me to respond fully under CPR 24.5(1)

 

The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimant claims to have in its possession a document which is determinative of one of the major issues as between the parties should in my submission require the Claimant to permit inspection of the original document (i.e. Application Form containing the alleged back page) in accordance with the Defendants CPR 31.15 request and CPR 16 Practice Direction 7.3. It is with respect the position that not only do the interests of justice require this but that the Claimant cannot prove its case without producing the original Application Form to the Defendant.

Edited June 2, 2009 by shakespeare62
removed DJ name ...

[shakespeare62]

Drafting an URGENT cover letter, which I'll post in 5 mins or so.

 

In the meantime comments welcomed on the above ...

Then I'll fill in the N244 on line and print out for real ...

[shakespeare62]

[My Address]

 

02 June 2009

 

[Court Address]

 

 

FOR THE IMMMEDIATE ATTENTION OF COURT MANAGER

 

 

BY HAND

 

 

Dear Sir / Madam,

 

 

Re: Claim No: XXXXXXXX

American Express Services Europe Ltd – v – Shakespeare62

 

 

Please find enclosed an N244 Application in duplicate for an order to set aside the Order made without a hearing by District Judge W----- on 22 May 2009

 

Please place this application before a District Judge as soon as possible.

 

This is crucial to my being able to respond fully under CPR 24.5(1)

 

Yours faithfully

 

Shakepeare62

[shakespeare62]

I'll start filling out the N244 for real now, and also the covering letter. I'll check back in 15 mins for any important suggestions.

 

Then I'll be at the Court Office 20 mins later.

[shakespeare62]

I'll also need to post up a DRAFT ORDER ...for submission along with this N244 ..give me 5

[shakespeare62]

[Court Details]

Claim Number]

 

Between :

 

American Express Services Europe Ltd – Claimant

and

Shakespeare62 - Defendant

 

Draft Order

 

 

1. Unless within fourteen days of the date of service of this Order, the Claimant complies with a disclosure request made by the Defendant on 9th May 2009 pursuant to CPR 31.15 by permitting the defendant physical inspection of the original document(s) mentioned in section 3(i) and 3(ii) of the Claimant’s Witness Statement dated 21st April 2009 namely [1] the Application Form, the claim shall stand struck out and the Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of the Litigants in Person (Costs and Expenses) Act 1975.
   

 

1. 2.In the event that the Claimant shall comply with this order
   [1] The Defendant shall file and serve any further written evidence, under CPR 24.5(1), within 7 days following the date of inspection
   
   

 

[ii] The Claimant shall pay the Defendant his costs of this application

in any event assessed in the sum of £40.00

Edited June 2, 2009 by shakespeare62
edited typos

[shakespeare62]

All done - filed with the Court this afternoon

Edited June 2, 2009 by shakespeare62

[shakespeare62]

Just rang the Court 10 mins ago. The set-aside Application is not back from the Judge yet. The Court Management person suggested I ring back tomorrow afternoon. They said they appreciate the urgency.

 

Hmmm ..perhaps the old boy's decided to give this one a bit of thought first ....

 

The SJ Hearing is on Friday.

[car2403]

Whatever happens, just be sure that the Judge hearing the SJ application is aware of the set aside application before he begins the hearing on Friday.

[shakespeare62]

Thanks Chris.

 

I've just called the Court ...and the DJ has written on the application that I will need to apply at the SJ hearing tomorrow, because there is no time for them to notify the Claimant. So I will do this before the hearing begins.

 

Hmmm... I note he didn't reject it. It's before a DDJ tomorrow, so I will be citing CPR 31.21 amongst other things.

 

The Court staff told me they will keep the application so no need for me to reprint it for tomorrow.

 

Preparing my line of attack for tomorrow...(no further docs filed by Brachers other than a statement of costs which they sent to me)

[I've got no money]

At the hearing tomorrow - at the very beginning before the other side start tell the DJ that you have an application to make - explain that you want disclosure and explain exactly why - they've refused because of their refusal you've been unable to properly prepare your case - refer to the overriding objective - refer to CPR 1.1 (2)(a) - ask him to order disclosure and to stay the application for SJ until they comply - tell the DJ exactly why you want to see the original document

[shakespeare62]

Brill - thanks IGNM. If the DDJ rejects the application, I will respectfully request him (I'll give him a copy) to note down the detailed reasoning behind any judgement he gives, for appeal purposes. I'll put him on notice before I go through my Witness Statement....

[car2403]

At the hearing tomorrow - at the very beginning before the other side start tell the DJ that you have an application to make - explain that you want disclosure and explain exactly why - they've refused because of their refusal you've been unable to properly prepare your case - refer to the overriding objective - refer to CPR 1.1 (2)(a) - ask him to order disclosure and to stay the application for SJ until they comply - tell the DJ exactly why you want to see the original document

 

Won't this work in reverse, though? They can say the same applies to the application to set aside, also.

 

I fear you'll have a stalemate tomorrow, but it's still a good chance to get some decent directions out of the Court relating to disclosure, as IGNM is pointing out.

 

Fingers crossed for you

[shakespeare62]

Surely all the more reason to adjourn ...?

[I've got no money]

If you let the other side start and present their application there is less chance to get an adjournment

 

So before the other side start you get in first with

 

"Sir, before my friend opens I have an application to make..."- you then ask him to give the direction to produce the original, to adjourn and to stay the application

[shakespeare62]

I'll follow that good advice tomorrow.

[car2403]

Judges don't like Summary Judgment - it's a very old and decrepid remedy that is frowned upon as it removes the Courts powers to deal with a claim sufficiently effectively during the normal running of proceedings. It's also used by the less favourable DCA's to "test" the presiding Courts position on it's claim - it's sometimes seen as a mock run for the actual trial hearing, where the DCA can see if the Court is likely to side with them at the later stages or not.

 

As a result, the "Judge Lottery" tends to take hold and if you don't get a favourable Judge, he will cripple you with an inbalanced set of directions in the hope that you will keel over and die. (Plus he'll put the woolies up you by threats of allocation to the fast- or multi-track, by the way) I know, because I've been there.

 

The key, here, is that it isn't in the Courts interests to hear the SJ application as key documentation required to allow that to happen hasn't been disclosed despite requests. This has to work in your favour, IMHO. It will take the Court longer to hear a SJ application that it would to hear the actual claim - what you should try to do before going in to see the Judge is to discuss this with the other side, get them to see it this way, and see if you can agree directions prior to seeing the Judge. This way the Court will see that the parties are cooperating. Also less chance of a Judge "going against" you if both parties are in agreement.

[I've got no money]

Judges don't like Summary Judgment - it's a very old and decrepid remedy that is frowned upon as it removes the Courts powers to deal with a claim sufficiently effectively during the normal running of proceedings. It's also used by the less favourable DCA's to "test" the presiding Courts position on it's claim - it's sometimes seen as a mock run for the actual trial hearing, where the DCA can see if the Court is likely to side with them at the later stages or not.

 

As a result, the "Judge Lottery" tends to take hold and if you don't get a favourable Judge, he will cripple you with an inbalanced set of directions in the hope that you will keel over and die. (Plus he'll put the woolies up you by threats of allocation to the fast- or multi-track, by the way) I know, because I've been there.

 

The key, here, is that it isn't in the Courts interests to hear the SJ application as key documentation required to allow that to happen hasn't been disclosed despite requests. This has to work in your favour, IMHO. It will take the Court longer to hear a SJ application that it would to hear the actual claim - what you should try to do before going in to see the Judge is to discuss this with the other side, get them to see it this way, and see if you can agree directions prior to seeing the Judge. This way the Court will see that the parties are cooperating. Also less chance of a Judge "going against" you if both parties are in agreement.

 

Personally I'd much sooner have a fast track trial than a SCT any day...

 

If you get there and the other side have decided already to withdraw the SJ application then they'll tell you when you get there and you agree directions - in that situation the Judge can't (if they've agreed then to withdraw the application) give an SJ. I've personally never got to court and been able to persuade the other side to withdraw at the doors of the court - they'll have made a decision before you get there whether their application will be pursued or not .

 

What might be an idea is that if you get there and they indicate that they are going to proceed with their application you could see if they'll agree directions in case their application is unsuccessful...

 

If you want a copy of Pascoe - pm me with an email address and I'll forward you a copy

 

 

 

 

 

A case that you might find useful to read and if necessary cite to the Judge is Anglo Leasing v Pascoe - which is authority for the proposition that if the DN is arguably defective the case is not suitable for SJ - it also talks about SJ generally - although in that sense it relates to the old pre-cpr rules but the principle is the same

[I've got no money]

Won't this work in reverse, though? They can say the same applies to the application to set aside, also.

 

I fear you'll have a stalemate tomorrow, but it's still a good chance to get some decent directions out of the Court relating to disclosure, as IGNM is pointing out.

 

Fingers crossed for you

 

Chris - there isn't a set aside application - its' the hearing of the claimants' application for SJ

[car2403]

Chris - there isn't a set aside application - its' the hearing of the claimants' application for SJ

 

The OP is making an application?

[shakespeare62]

Yes it's the original provider..

[shakespeare62]

The key, here, is that it isn't in the Courts interests to hear the SJ application as key documentation required to allow that to happen hasn't been disclosed despite requests. This has to work in your favour,

 

Yes I'm going to rock into the attack tomorrow. Basically FCT , or Bancruptcy is not really a sanction for me. The Claimant is litiigating against the proverbial "man of straw"

 

The solicitors couldn't be wasting more of their clients money if they tried.

Edited June 4, 2009 by shakespeare62
tidied grammar etc.

[shakespeare62]

Does anyone know which is the relevant Anglo Leasing v Pascoe case ?

 

I see 2 listed for the Court of Appeal ...

[1997] EWCA Civ 2366

[1997] EWCA Civ 895

 

On one, appeal is allowed , the other it isnt ....

 

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 2366 (25th September, 1997)

[shakespeare62]

Ok it from a quick looks it seems [1997] EWCA Civ 895 is the one to go with. Although both cases referred to Summary Judgment issues, 'the 895' is relevant for me.

 

I'll keep that up my sleeve. Could be a good reference for Appeal purposes too.