natwest summons for joined overdraft and loan

[tedney]

Hello Again!

Can a claimant obtain a Summary Judgment on a claim which a Defence and Counterclaim has been lodged?

[spamheed]

Absolutely not and if they try something sneaky to obtain a judgement, then having it set aside shold be little more than a formality, with the obligitary claim for costs

[AndyOrch]

English courts may give summary judgment against a claimant or defendant on the whole of the claim or on a particular issue if it considers that:

 

The claimant or defendant (as the case may be) has no real prospect of succeeding on the claim, defence, counterclaim, or defence to counterclaim.

 

One of the questions which the court may ask is: 'Is there a fair or reasonable probability of the defendants having a real and credible defence/counter claim and/or ‘is what the defendant says credible.

 

If the statement of case is not credible there is no fair or reasonable probability of the defendant having a defence;

there is no other compelling reason why the case or issue should be disposed of at trial;

the real prospects of success alleged by the respondent are fanciful or merely arguable;

it is clear that the respondent to the application will not be able to establish facts on which he relies.

 

Of course Applications for summary judgment should usually be made before allocation. Significant delay bringing an application may be fatal to the application.

 

Andy

[tedney]

Absolutely not and if they try something sneaky to obtain a judgement, then having it set aside shold be little more than a formality, with the obligitary claim for costs

Thanks for that spamheed. See post 174 too, I shall be keeping an eye out! t

 

it is clear that the respondent to the application will not be able to establish facts on which he relies.

 

Of course Applications for summary judgment should usually be made before allocation. Significant delay bringing an application may be fatal to the application.

Thanks for that Andy

 

Facts:

 

Original claim not particularised, included 2 accounts, 1 current and 1 loan.

 

Claim amount included PPI sum, which has subsequently been refunded, with interest.

 

Regular payments have been made since the claim was issued, so the overall sum "owed" is now lower that that shown on the claim.

 

Since the claim was issued, claimant has added interest to one of the accounts despite confirming in writing that "we are not charging further interest". No statements were received for a period of four and a half years to show interest had been added. Interest charges were arbitarily ended about two and a half years from when the claim was issued. No reason for this has been provided by claimant.

 

Claimant is now seeking a larger sum than that shown on the original claim.

 

Significant Delay:

 

Last order about the claim issued by the court almost 7 years ago. A period of about five years transpired without any correspondence from the claimant about the claim.

 

As always your comments would be welcome. thanks again. t

[AndyOrch]

Have they actually made application or threatening to Tedney?

[tedney]

Threatening now,

 

forgot to say on last post,

regular payments were started before claim was issued.

Am paying regular amounts as agreed in writing by Nastywest and have been since before claim was issued (as before),

 

their solicitors now suggesting a Tomlin Order for same payments,

but the totals owed are now not as they quote,

and they (or Nastwest?) are ignoring defence and counterclaim.

 

Thanks t

[AndyOrch]

Give the Tomlin Order some consideration and refine it to your satisfaction...it would put an end to this and avoid any judgment.

 

With regards to Summary Judgment...until they actually do/if make application then there is nothing to be concerned about.

 

Andy

[tedney]

OK Andy, thanks for that.

Can I "redo" the Tomlin order to take into account payments and the counterclaim, then send my suggestion back? t

 

unwanted visitor viewing?

[AndyOrch]

OK Andy, thanks for that. Can I "redo" the Tomlin order to take into account payments and the counterclaim, then send my suggestion back? t

 

Absolutely...negotiate the terms so that it suits your requirements..not the claimants

[tedney]

Another Question!

As per earlier posts,

Mrs tedney also has a claim against her for the joint account aspect of my claim.

 

Nastywest are suggesting via a Tomlin that she also repays,

 

so if she does it would mean that Nasty get paid twice for the same account.

Is this correct?

 

Surely they can only be paid once for the same account.

Advice/thoughts would be welcome.

Thanks

t

[AndyOrch]

One debt....one Tomlin Order per person (if needs be unless yours incoroporates her claim).....only one payment from one party can be taken.

[tedney]

Thanks for that Andy. I will adjust my Tomlin to suit.

 

Am I correct that for a claim to be withdrawn, a draft order to the court should be made, and not a Tomlin? Thanks. t

[Guest]

a claim is usually stayed when subject to a tomlin re payments. withdrawn once paid as per the tomlin?

[AndyOrch]

Am I correct that for a claim to be withdrawn, a draft order to the court should be made, and not a Tomlin? Thanks. t

 

Its not with drawn ...just stayed as per Fords post.

[tedney]

Its not with drawn ...just stayed as per Fords post.

 

OK, what I was trying to establish was that for claim and counterclaim to be withdrawn/discontinued, would a "request" or draft order be required, rather than a Tomlin?

Thanks t

[Guest]

prob wld be a notice of discontinuance with consent once the tomlin is satisfied, maybe both parties if involves a counterclaim and the counter is part of the tomlin settlement. ensure the issue of any costs is resolved in the tomlin.

[AndyOrch]

A Tomlin Order only stays a claim and suspends it subject the schedule being adhered to....settlement agreed.

To withdraw/discontinue a claim a Consent Order can be drafted and then a Notice of discontinuance submitted and agreed by both parties.

[tedney]

Thanks for that Andy Here is the draft Consent form. Does this suffice please? Do I send it unsigned, with a form N279 as well, or just send the blank Consent form first?

 

In the ************* County Court Claim Number: ***********

 

Between

 

National Westminster Bank plc Claimant

 

and

 

************** Defendant

 

CONSENT ORDER

 

Upon the parties agreeing the following terms:

 

AND BY CONSENT IT IS ORDERED THAT

 

1. All further proceedings in this action be stayed save for the purpose of carrying into effect the terms in schedule hereto.

 

2. There be no order as to costs.

 

In the ************* County Court Claim Number: ***********

 

Between

 

National Westminster Bank plc Claimant

 

and

 

************* Defendant

 

CONSENT ORDER

 

SCHEDULE

 

1. The Claim against the Defendant is discontinued;

2. The Defendant withdraws the Counterclaim against the Claimant;

3. There be no order as to costs.

4. The Claimant submits within seven days of this order a Notice of Discontinuance to the Court.

5. The Claimant submits within seven days of this order a Notice of Discontinuance to the Defendant.

 

Dated this day of 2015

 

We consent to the terms of We consent to the terms of

this order this order

Signed: …………………….. Signed: ……………………..

Name: ..…………………… Name: ………………………

Position: ……………………. Position: …………………….

Dated: …………………….. Dated: ……………………..

For and on behalf of the Claimant For and on behalf of the Defendant

[AndyOrch]

Yes that's fine Tedney...its normal practice for the claimant to draft the consent order...but attach a covering note and state that the position you would suggest and accept by way of the attached proposed consent order and schedule and trust that they are in agreement and consent.

 

Just send it blank...the claimant will deal with the N279.

 

Regards

Andy

[tedney]

Thanks again Andy, sending off today.

[tedney]

Hello Again!

I got this:

 

CPR Part 40.6(2)(b);

 

40.6 (1)This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

(2)A court officer may enter and seal (GL) an agreed judgment or order if –

(a)the judgment or order is listed in paragraph (3);

(b)none of the parties is a litigant in person; and

©the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

 

From this:

http://www.consumeractiongroup.co.uk/forum/showthread.php?2545-What-is-a-Tomlin-Order

 

1. In view of this, is it correct that a Tomlin Order cannot be made with a LIP?

 

2. Also, I appreciate that from posts above on this thread, that wording on a suggested Tomlin Order can be amended, but can a Tomlin include terms such as "withdrawing the claim"?

 

3. Can a Tomlin Order refer to a "full and final settlement" figure that is greater than the claim in the case that it refers to, and greater than the amount currently owed, due to interim payments having been made?

 

4. Lastly, if a Tomlin Order, received under "without prejudice" is refused by the claimant/defendant, what would the view of the court be. As it is "WP" am I correct in thinking that refusal could not be introduced in a court?

 

All views/comments welcome.

Thanks

t

[Guest]

need to look at 40.6 (2) and then 40.6 (5)

(2) is all to do with a court officer 'entering and sealing....'

[tedney]

Thanks for that Ford

I have read 2 entirely now. and understand ref court officer.

I have also now seen CPR 40.6, 3 (b ) (i) and (vi). Am I correct that dismissal and discharge of liability can be included in a Tomlin Order?

Thanks again

t

[Guest]

have a look at the associated practice direction 40b as well.

40.6 (3) applies to para (2).

where it is re an LiP, then para (2) doesnt apply. a court officer cant seal it, it has to go before the J.

so, para (5) applies 'Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.'. then goes before the J to 'check' and seal.

see what andy says also.

[AndyOrch]

The contents of the schedule, which remains confidential between the parties and brings the disputes between the parties and the litigation to an end other than for the purpose of enforcement proceedings, if required.

 

Therefore almost anything agreed between parties is WP

 

Regards

 

Andy