Anyone else had their claim thrown out of court?

[GaryH]

You should'nt really have to 'establish your case' untill you are directed to provide evidance. Your POC's are to set out the basis of the claim, not comprehensively substantiate it. However, the judge made an order that you should provide the basis on which you contend that the charges are a disproportionate penalty and unreasonable - which of course he has every right to do. At that point, you should have submitted the case law summery - particularly new garage v dunlop - and the statutes and any circumstantial evidance that the charges are disproportionate to the costs incurred as a result of your breaches. The 'disguised penalties' section of the OFT report would also have been useful as Lloyds say (ridiculusly) that their charges are not a penalty.

[Tom_vRS]

Thanks for that Gary. In retrospect I wish I had popped over here for some advice at the time, and not just been lazy and slapped that admittedly "thin" response in, assuming it would do.

[Michael Browne]

I did send a schedule to the court to accompany my MCOL claim, although IIRC this wasn't sent recorded and I have no recollection of it being aknowledged. Could the reason it was struck out be this simple?

 

I don't think so, you included one when you responded to the judges order, so I still think the main reason was the lack of detail in your response.

 

Having said that, for weeks I have been advising anyone claiming via MCOL to send copies to MCOL immediately after filing and then a copy direct to the banks solicitors when they receive the Notice of Acknowledgement

[meagain]

The DJ asked you to clarify why the charges constitute a disproportionate penalty. Your reply merely restated the fact. In future, should anyone be faced with this, the specific bit you're looking for is paragraph 1(e) of Schedule 2 to the Unfair Terms in Consumer Contracts Regulations (Sch. 2(1)(e) UTCCR SI1999:2083 - there are probably better ways of citing ...)

 

While it is probably too late to add anything to this thread, it would probably be a good idea for other prospective claimants to get the "short title" of Unfair Contract Terms Act 1977 correct.

[BankFodder]

I think that this confirms once again that one must try to be as full about on's clim as possible and try to do mor than the templates suggest.

 

Italso confirms that that claiming over the counter is to be preferred to the MoneyClaim system as it allows the entire claim to be sent at one go.

 

Clearly there will be some judges in the country who are less sympathetic to what is going on and you seem to have stumbled across one of them.

 

I think that people would do well to learn from this thread.

 

I think that the judge would do well learn from this also.

 

I would suggest that you send a polite letter to the judge, pointing out that although he had formed the opinion that your claim showed no grounds, you consider that his decision was not in accord with the Overriding Objective and that he might like to know that clearly the defendants were not of the same opinion as they settled the claim in full.

 

Keep it very polite but send the letter

[Tom_vRS]

I would suggest that you send a polite letter to the judge, pointing out that although he had formed the opinion that your claim showed no grounds, you consider that his decision was not in accord with the Overriding Objective and that he might like to know that clearly the defendants were not of the same opinion as they settled the claim in full.

 

Keep it very polite but send the letter

 

 

Ok I'll draft one up and post it on here before sending it.

 

And I definitely DID send the schedule of charges to the court, along with a copy of the (detailed) letters I sent to the bank.

[GaryH]

It seems the schedule was'nt the main issue in your case, but its something for others to be aware of in the future.

[Guest bong]

Would it be of any benefit to have the defence posted up here aswell? Or is it a standard defence that Lloyds has been using throughout?

[GaryH]

Its reletively new. Primarily its points are that the claim is too vague, not adequately particularised and "embarrasing". Following on are the standard 'service charge' contentions. The relevant points of it are these;

2. The defence is served without predjudice to the defendant's contention that the statement of claim is insufficiently paticularised and is embarrassing. The defendant reserves the right to plead further to the Statement of Claim once they are sufficiently particularised.

 

3. The defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant and makes no allegations against the defendant as to why the defendant should be liable to the claimant for the amount claimed.

 

4. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not identify the account in question that appears to form the subject matter of these proceedings or indeed show how the sum of £194.40 is arrived at and the Particulars of Claim are too vague. The Statement of Claim shows no reasonable grounds for bringing the claim.

 

5. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact for his claim as there is no pleaded basis for the claim itself. The Claimant should give full Particulars of the Bank Account and the charges he is seeking to recover, indentifying each charge, the date and amount of the charge and why the Claimant in each case he alleges it is a disproportionate and thus unlawful.

 

They now file this for every claim filed on MCOL. In mostcases the claim does not need amending, unless obviously the template was not used or the POC were otherwise unsatisfactory. I've posted a thread which sets out how to deal with this defence, including a response to include in the AQ (which is linked on the previous page of this thread) which should hopefully stop things like this happening if it is followed.

[Guest bong]

Thanks Gary.

 

Perhaps Tom could confirm whether this was the same as the defence used against him in June.

 

I like their use of the word embarrassing!! Is it used in some legal context I wonder, or does it mean that it makes them feel awkward or that the claimant should?

[Guest The Terminator]

There defence is very poor and when they mention CPR that is a contridiction because I can't see where they have complied with CPR.In order to comply both parties are at contary to disclose.I see this as an"edging your bet's" scenario and it makes me laugh in a way because they then go and settle.

[Guest The Terminator]

You should'nt really have to 'establish your case' untill you are directed to provide evidance. Your POC's are to set out the basis of the claim, not comprehensively substantiate it. However, the judge made an order that you should provide the basis on which you contend that the charges are a disproportionate penalty and unreasonable - which of course he has every right to do. At that point, you should have submitted the case law summery - particularly new garage v dunlop - and the statutes and any circumstantial evidance that the charges are disproportionate to the costs incurred as a result of your breaches. The 'disguised penalties' section of the OFT report would also have been useful as Lloyds say (ridiculusly) that their charges are not a penalty.

 

Gary I note you cite New Garage vs Dunlop(1908) but there is in fact an earlier case in 1896 which I have at work so when I find it I'll post it and although im not 100% sure it has been cited in recent COA judgements.

 

Wilson v. Love (1896)

 

A tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings a ton more than straw.

[GaryH]

Not that its at all relevant now, but Dunlop v New Garage would have been the most useful I think. He was asked to provide basis for his claim that the charges are a disproportionate penalty. - "A sum is a penalty if it is greater than the greatest loss that could have been suffered from the breach" and "The essence of a penalty is a payment of money stipulated as in terrorum of the offending party" would have pretty much done it along with the UTCCR's and some circumstantial evidance that their true costs could only possibly be around a couple of quid.

[Glenn UK]

Of course the judge had the right to request that the particulars were elaborated on and thats where this claimant fell down, because the response was clearly in no way adequate. I'm not denying that for one minute.

 

Agreed

 

IMHO the judge absolutely took the defence into account before he made the order to provide further basis for the claim. He ordered exactly what Lloyd's asked in their defence!FWIW it is a legitimate defence to say there isn't a claim to answer and with the limited amount of detail set out in the MCOL POC then its not uncommon and has been used by abbey numerous times. I can only speak for Lloyd's cases really, but this was unheard of until they started issuing the "claim too vague" defence a few weeks ago, since which an order for further particularisation has been made in a number of cases.

 

 

 

Read the defence. I have only been able to do this since you posted the copy of their defence after you posted this.One of the main points is that the claim does not provide a schedule. This is probably the only part of it in which they have a valid objection - as I understand it the CPR's state that the particulars must include how the value of the claim was arrived at.

 

I think the bottom line is whether we agree about the detailed reasons why the claim was struck out, it should act as a warning to all of us to make sure we put as much detail as we can to prevent this outcome in the future.

 

Its fortunate that the defendant settled in this case, I'm not sure they all would.

 

JMHO

 

Glenn

[Guest The Terminator]

Agree with what your saying Glenn but it might also be of use to cite some case law. I work for a London Borough in Housing Litigation and I know for a fact that the case law works.

[GaryH]

FWIW it is a legitimate defence to say there isn't a claim to answer and with the limited amount of detail set out in the MCOL POC then its not uncommon and has been used by abbey numerous times.

 

I don't want to go round in circles with this, but there was a case to answer!!! The basis of which was set out in the POC. Are you seriously suggesting that those POC left no case to answer? Lets face it, that defence is primarily an attempt to intimidate the claimant and Lloyds obviously thought the claim had merit, contrary to their defence, becouse they settled it. Had Lloyds been aware of the strike out they no doubt would have been laughing their heads off. As far as I'm aware, those POC do not contravene any CPR, but please correct me if I'm wrong. PART 16 - STATEMENTS OF CASE

 

I think the bottom line is whether we agree about the detailed reasons why the claim was struck out, it should act as a warning to all of us to make sure we put as much detail as we can to prevent this outcome in the future.

 

Could'nt agree more.

[Glenn UK]

Gary

 

You have fallen into the trap of believing in the claim and ignoring the law.

 

It is a legitimate defence to claim there is no case to answer, full stop.

 

Whatever you and I think, the realities of the law is that as the claimant it is up to you to make sure your claim is acceptable to the court.

 

In this sense it makes no difference what you or i think of the original POC, it only matters what the court thought.

 

As claimants we should all realise that the courts make no allowances for us in terms of whether the law supports our case or not.

 

Because we do not understand all of the laws workings and the CPR we will make mistakes and the defendant being professionally represented means they can take advantage of this fact.

 

Although a judge may help a litigant in person when in court, this only usually extends to how you are treated and not when it comes to deciding the matters of law.

 

JMHO

 

Glenn

[GaryH]

Glenn,

 

Please believe me when I say that I respect your opinion and have no wish to argue with you.

 

However, on this occasion I believe some of your views to be completely misguided.

 

These 'no case to answer' defences are all part of the banks well known wider strategy of intimidating and wearing out claimants. To suggest there is no case to answer in response to a claim particularised as per our template and including a schedule is ridiculous. Yes, obviously they have a right to defend claims in this way - but that does'nt mean there is any substance, foundation or valid objection to the claim within a defence like this. Very, very few judges would be naive enough to uphold the objections contained within a defence such as the one I posted earlier on this thread, especially as the banks tactics are becoming increasingly well known.

 

To run for the N244 form everytime the banks defence objects to the POC's in this way is dancing to the tune of their bully boy tactics. This would be to do precisely the opposite to what has got this group and its members so much success against them up untill now.

 

Your absolutely right, of course I'm no lawyer, but in my interperetation the POC's on this site completely satisfy the CPR in relation to statement of claim, and untill a lawyer tells me otherwise, I'll keep advising people to refute the "too vague" defence on the AQ - so long as the template was used and a schedule had been supplied.

[Glenn UK]

Glenn,

 

Please believe me when I say that I respect your opinion and have no wish to argue with you.

 

However, on this occasion I believe some of your views to be completely misguided.

 

These 'no case to answer' defences are all part of the banks well known wider strategy of intimidating and wearing out claimants. To suggest there is no case to answer in response to a claim particularised as per our template and including a schedule is ridiculous. Yes, obviously they have a right to defend claims in this way - but that doesn't mean there is any substance, foundation or valid objection to the claim within a defence like this. Very, very few judges would be naive enough to uphold the objections contained within a defence such as the one I posted earlier on this thread, especially as the banks tactics are becoming increasingly well known.

 

As I said, it matters not whether we agree about the POC used in this or any other case and whether its adequate, its a legitimate defence and if the bank uses it, the courts have the right to strike a claim out if they think there is any merit in this defence.

 

To run for the N244 form every time the banks defence objects to the POC's in this way is dancing to the tune of their bully boy tactics. This would be to do precisely the opposite to what has got this group and its members so much success against them up until now.

 

I'm not sure how you come to the conclusion that defending our claims in any way detracts from the purpose of this site?

Whatever the banks throw at a claimant needs to be refuted in any way we can whether we agree with the defence or not.

 

Your absolutely right, of course I'm no lawyer, but in my interpretation the POC's on this site completely satisfy the CPR in relation to statement of claim,

 

As I keep trying to explain, it doesn't matter whether you think they're good enough, it doesn't matter if i do or if every one of the CAG members believes its good enough.

 

The only person that needs to be satisfied is the judge!

 

and until a lawyer tells me otherwise, I'll keep advising people to refute the "too vague" defence on the AQ - so long as the template was used and a schedule had been supplied.

 

I have no problem with refuting it either, but you should also consider that by using a very brief POC the claimant will leave themselves open to this kind of defence and I think you said you advise people to use the N1 and give a more detailed particulars.

 

The judge is not obliged to invite the claimant to provide further information.

 

Gary

 

I have no problem with debating the merits or not of the claim and whether we agree is in a sense immaterial. Simply by arguing our points we may both think of other things and learn something new.

 

If the thread makes others think more about what they're doing then the thread has achieved some purpose.

 

I think we both agree that the banks will try anything to get out of the claim, i think i was wrong in my earlier comment when i said that the claim couldn't be brought again.

 

I wouldn't want to fall out with anyone over a debate of this kind, in my mind this is what makes the board great.

 

HTH

 

Glenn

[GaryH]

Glenn,

 

I'm going to let this thread go now, I think the debates run its course and I'm happy to agree that this is something we should all be aware of and take reasonable steps to avoid its recurrance.

 

Perhaps the advice on the site should now be to avoid MCOL completely, although I'm sure the mods and admin have already discussed this issue and come to their own conclusions over whether it is a suitible format or not.

 

I have previously acknowledged on this thread that ultimately the judge in each case will decide whether the POC's are suitible or not, and that the judge has the right to manage a case however he see's fit. Please don't think for one minute that I am ignorant of this fact.

 

In reality however, the chances of a claim being struck on the basis of inadequate statement of claim, if the MCOL template and schedule is used, are remote. Without warning even more so. Remember the strike in this claimants case occurred primarily becouse he was requested for further specific information which he failed to provide - if he had, it would not have been struck out.

 

I agree that the risk, small as it is, should be mitigated where possible, but not by taking disproportionate measures, and not by pandering to the banks underhanded tactics. Incidently, I think you misconstrued part of my last post - what I meant was that we have had so much success so far by standing up to the banks and dictating to them, rather than letting them dictate to us.

 

We could all submit 10 page POC's with a detailed and comprehensive summery of case law and statutes relating to penalties, but the banks would still pick holes in it wherever they could. Occasionally, just maybe, the case could come before an unsympathetic, naive or ignorant judge who for whatever reason on that particular day, see's merit in the defences contentions. You cannot legislate for that.

 

For what its worth, dispite his compounding the situation by not responding properly to the subsequant order, I think the claimant in this case was extreamly hard done by, and I hope he does write to the judge his objections to the strike out.

[GaryH]

I wouldn't want to fall out with anyone over a debate of this kind, in my mind this is what makes the board great.

 

Absolutely;)