Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***

[Alloyz1]

No... I'm happy to sit tight

 

I'm ready for sitting tight or court...

 

Fully prepared

[Guest]

cag support here if you need it. do keep thread updated.

[Alloyz1]

Hi

 

Received a 'General Directions Order' today, dated 17th July.

 

It states the DJ will deal with the matter of lifting the stay without a hearing.

 

The application to lift the stay and enter judgement is granted.

 

The application the claimant has submitted is on form N244 and they have applied under CPR3.4(2)(a) to have the stay lifted and my defence struck out as it discloses no reasonable grounds of defending the claim.

 

Could I have some advice on how to apply to set aside the order and how to best word the objection and set out my application (correct format and terms). Is it a form N244 I use to apply?

 

It states I have 7 days from service of the order (order dated 17th July).

 

Many thanks

 

alloyz

[Guest]

you say that judgment has been granted? have they been given a strike out/judgment without a hearing? or is it just the lifting of the stay that has been granted, and they are now applying for strike out/judgment?

[Alloyz1]

Lift the stay and enter judgement granted- without a hearing!

[Guest]

not good then!

would think your objections would be cf re the criteria for strike out/judgment eg triable issues, with merit, reasonable grounds etc. did the order say it was re no merit (3.4 6a?

also, no hearing, right to a fair hearing albeit within cpr?

cpr 3.6 re set aside after a strike out judgment.

have you complied with any prior orders?

check with andy though, give him a pm shout as is urgent. if andy is not available, try steampowered. or both?

[Alloyz1]

Last requirement was to submit defence which was done on time.

 

Have pm Andy and will try others later tonight.

 

Thanks ford

 

A

[AndyOrch]

Under CPR3.4(2) the court may, of its own volition, strike out a defence if it appears that it

 

discloses no reasonable ground for defending the claim, or

is an abuse of the process of the court, or likely to obstruct the just disposal of the case.

The court may also strike out a case where there has been a failure to comply with a rule, practice direction or court order.

 

 

Both CPR rules 3.4 and 24.2 may be exercised on application by the claimant or on the court's own initiative. If the court does not strike out a defence that

 

is a bare denial

sets out no coherent statement of facts, or

even if true, would not amount in law to a defence to the claim (for example, where it is wholly irrelevant to the claim)

 

You should be aware that CPR rules 3.4 and 24.2 may also be exercised by you the Defendant to strike out claims. You should be alert to such an application because unless you act on it quickly and properly, you run the risk of your defence being struck out as is the case here.

 

Regards

 

Andy

[Alloyz1]

Under CPR3.4(2) the court may, of its own volition, strike out a defence if it appears that it

 

discloses no reasonable ground for defending the claim, or

is an abuse of the process of the court, or likely to obstruct the just disposal of the case.

The court may also strike out a case where there has been a failure to comply with a rule, practice direction or court order.

 

 

Both CPR rules 3.4 and 24.2 may be exercised on application by the claimant or on the court's own initiative. If the court does not strike out a defence that

 

is a bare denial

sets out no coherent statement of facts, or

even if true, would not amount in law to a defence to the claim (for example, where it is wholly irrelevant to the claim)

 

You should be aware that CPR rules 3.4 and 24.2 may also be exercised by you the Defendant to strike out claims. You should be alert to such an application because unless you act on it quickly and properly, you run the risk of your defence being struck out as is the case here.

 

Regards

 

Andy

 

Hi Andy

 

My defence to their POC was put together on here so thought that would be sufficient.

 

 

Could you advise how to put a proper application to set aside together please. The agreement is not pursuant to CCA74, how is that best worded? With a full WS or a summary?

 

Many thanks

 

Alloyz

[Alloyz1]

Edited this post as I found the answer...

 

alloyz

Edited July 23, 2013 by Alloyz1
Answered own question

[Alloyz1]

Okay, done some research:

 

Stay lifted and struck out under:

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;

 

23.9

(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person –

(a) against whom the order was made; and

(b) against whom the order was sought.

 

I have not been served with either the application or the supporting evidence the claimant refers to.

 

Application to set aside made under:

23.10

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

 

I am making this application promptly; and within 7 days of service of the order.

 

My set aside application therefore needs to satisfy the DJ that I have reasonable grounds and a reasonable chance of success.

 

I'm off to do some more research but happy for any advice as usual.

 

Alloyz

[AndyOrch]

If you have not been served a copy of their application Alloyz then were is this statement from in your post #153?

 

" The application the claimant has submitted is on form N244 and they have applied under CPR3.4(2)(a) to have the stay lifted and my defence struck out as it discloses no reasonable grounds of defending the claim."

 

The application has been dealt with without an hearing (that is just to lift the stay)....does the General Order refer to any future hearing to consider their application? (Strike out of your defence)

 

Regards

Andy

[Alloyz1]

Hi Andy

 

" The application the claimant has submitted is on form N244 and they have applied under CPR3.4(2)(a) to have the stay lifted and my defence struck out as it discloses no reasonable grounds of defending the claim."

 

This is stated on the General Directions Order I have recieved. It states I may apply to the court to have the order set aside within 7 days under CPR part 23 rule 10.

 

The General Order states:

 

It is ordered that:

 

The application to lift the stay and enter judgement is granted

 

No reference to considering applications or future hearings

 

Alloyz

[AndyOrch]

So no physical copy of the application..... only reference within the GDO?

 

There has to be a hearing to determine...they have made application...its not by the courts own initiative.Otherwise it becomes a kangaroo court.I accept here is no requirement to have an hearing to lift the stay but they cant strike out on the claimants say so without an hearing.

[Alloyz1]

Spot on. The first indication I have had of anything happening after submitting my defence was this GDO.

[AndyOrch]

What date is their N244 and what date on the GDO?

[Alloyz1]

N244 11th June

GDO 17th July

[Alloyz1]

Just so I get this deadly acurate, the court have included a copy of the claimants N244 with the GDO, without the supporting evidence the claimant submitted with their application

[AndyOrch]

Do they refer to a WS within their application?

[Alloyz1]

No not at all.

 

It refers to some coded supporting evidence and their opinion that full expanaition has been given to the defendant.

 

they then request a stay lift and a strike out and the claimant to be at liberty to enter judgemnt in accordance with n225 attached (no n225 with the GDO)

[AndyOrch]

CPR 3....very underhand the way they have handled this....civil procedure must allow you to respond and therefore you will have to make application to set a side their request for judgment under CPR3.4(2) as per my previous post of #158.

 

However Alloyz...lets take a breath and consider the options:

 

Your defence is based on a agreement that you state is unenforcible due to its deficient prescribed terms.

Also there are problems with the DN

 

They have offered mediation by way of a payment plan and Consent Order.

 

This application will cost £80 are you sure your defence will succeed?

[Alloyz1]

Andy

 

I have a very detailed WS ready which I would like you to look over.

 

It is factual, based on points of law and the non compliance is breathtaking and remarkably obvious.

 

I know its a DJ lottery, but this is not a weak DN only arguement or me as the claimant... there is no way they can prove compliance.

 

What do yiou think Andy

[AndyOrch]

The decision is yours ...if you feel your defence has merit then proceed with the application...set a side their application and request a hearing...also requesting their statement of claim struck out and judgment in your favour within the application.

Unlike the claimant serve a copy on them and retain a copy.

 

Attach your WS in support of the application as evidence.

 

You will need to update your WS to contain the latest developments....reiterate their lack of service and evidence in support.

 

Regards

 

Andy

[Alloyz1]

Thanks Andy

 

I understand I will be making the application under 23.10 (that is on the GDO), however what CPR rule would I request their claim be struck out? 3.4 (2)(a) no reasonable grounds?

 

A

[AndyOrch]

Correct...post up your draft order and Ill check it.