Why bother with prelim and LBA

[podgydad]

As it is quite clear the likes of Lloyds, Barclays, and Nationwide amongst other have made it their policy not to repay prior to court action, is there not an argument for jumping to this phase and bypassing the prelim & LBA? It would be a simple matter to show the court that this was bank policy and so there was little point in contacting them to negotiate.

 

I actually managed to get a Nationwide to admit on the phone the other day that they wouldn't negotiate with me prior to court action as they had worked out how many people would give up versus the additional costs of paying out after legal action had been commenced. And no I didn't record the call as I normally do, I could kick myself. I'm going to give them another call and see if I can get them to admit it again.

[Bigmac versus]

If a dca took you to court withour first sending correspondance you would be the first one to defend it, as would the banks, keep to the tried and tested system.

[Rooster-UK]

Hi Podgydad.

 

It is a requirement of the courts that you take all reasonable steps to settle out of court. Litigation is regarded as the last resort.

The prelim letter and the LBA is your attempt to reach a settlement.

Sometimes it works..... more often it doesn't, but if you have tried in this manner then it's brownie points to you when the claim is filed.

 

Our methods have been very carefully devised to give you the best chance of success.

 

Regards, Rooster.

[senanbyrne]

I think that PodgyDad is dead right and I was going to bring up that thread myself.

 

Yes it is a requirement that you made reasonable attempts to settle outside, but believe it or not, the courts take your word for it because the banks don't bother defending. If it did go to court you would lose, but it never does.

 

Now, some might say that OK, the bank might take it to court on the basis that you didn't try to settle. Wrong. They don't want either the publicity or the hassle of such a case.

 

Skip the preliminary letters if you are short of time.

[JonCris]

senabyrne don't kid yourself They don't need to defend the claim they only need make an application to the court for a strike out on the basis you had not forwarned them of your intended action. They wouldn't even have to leave their offices.

 

Also even if that wasn't the case you might have any costs disallowed

 

So podgydad don't do it.......stick to the drill

[podgydad]

Well I have already dispensed with the 2 letter approach and simply send a single 28 day LBA. Doesn't seem to have made any difference to their response. If they asked the case to be struck out, surely you would simply request the strike out be denied on the basis they have not shown any willingless to negotiate and settle out of court, regardless of your actions, the result would still be the same, it would appear before the court. In all honesty, I think the banks are so disorganised that its highly unlikely that the legal department even check to see if the matter was handled by the complaints department in the first place.

 

Will have a word with my solicitors on Monday, see what they think.

[JonCris]

OK but they can make their application to strike out ex-partie......The 1st you may know is when you receive the order...........having said that your LBA being 28 days might satisfy the court.......you are after all a lay person

[senanbyrne]

I am sure that the court would be statisfied with even a 14 day LBA. It still shows you made an effort to settle out of court. Lets stop wasting time.

[Glenn UK]

Senanabyrne/podgydad

 

Can you help, i have just had my claim struck out because i didnt follow court protocols what should i do?

 

Ok so i didnt acutally, but when you have given others the benifits of your 'experience' and they post a line similar to the above, what is your response going to be?

 

You seem to have each found a soulmate who's reposne to sound advice was to rubbish it until you found someone to agree with you.

 

If you choose to do things your own way and win, then thats good for you, however, there are good reasons to stick to a reasonable approach which adds 14 days or the price of a couple of bits of paper and a stamp out of your pocket depending on which route you chose.

 

JMHO

 

Glenn

[itsamomentintime]

Senanabyrne/podgydad

 

Can you help, i have just had my claim struck out because i didnt follow court protocols what should i do?

 

Ok so i didnt acutally, but when you have given others the benifits of your 'experience' and they post a line similar to the above, what is your response going to be?

 

You seem to have each found a soulmate who's reposne to sound advice was to rubbish it until you found someone to agree with you.

 

If you choose to do things your own way and win, then thats good for you, however, there are good reasons to stick to a reasonable approach which adds 14 days or the price of a couple of bits of paper and a stamp out of your pocket depending on which route you chose.

 

JMHO

 

Glenn

 

 

superb advice as ever Glenn

 

 

Senanabyrne/podgydad

 

we all know where you are coming from, but your suggestions might offer the defendants an easy way out of any claim against them by stating that you have not given them a reasonable opportunity to settle before court action

 

stick to the tried and trusted methods

[podgydad]

Glenn,

I believe I was only kicking an idea around, last time I checked, it wasn't a crime to do that. Plenty of ideas have been kicked around and developed on here over the last 18 months, some don't go anywhere, others do. Lets face it, the banks have been guilty of abuse of process for some time now and yet the courts don't seem to be coming down to hard on them do they? The banks seem to have a blatant lack of respect for procedure, and yet get given a lot of leeway by the courts, surely the same should be true in reverse? Quite frankly, with the court system in crisis, I feel the banks should be getting a much harder time from the courts. Perhaps if they did, we would see a lot more settlements prior to issuing proceedings. But, just for clarification, what is the legal reasoning behind the 2 letter approach as opposed to a single LBA giving 28 days?

 

As I have already said, I doubt the lawyers even check with the bank to see if a previous complaint was made.

 

I'm not suggesting everyone rushes out and tries it but rather than just rubishing the idea, perhaps you can point us to the legal basis of your opinion. Is there part of the CPR that covers this issue?

[Glenn UK]

podgydad

 

Sure its no crime to kick ideas around and its also no crime to suggest the idea is cack and significantly flawed.

 

I cant quote the relevant CPR, and to be honest i cant be arsed to go look, I'm not even sure there is one which deals with this issue specifically.

 

However, do you think, as an earlier poster suggested, that a creditor should simply write to the debtor and say pay up or I'm taking you to court?

 

So if you think it is reasonable for your first approach is to say pay up or else then fine, personally I dont think it needs much common to think actually its not a particularly sensible approach.

 

With respect to the way courts treat the defendants abuse, if you read the CPR at all you will know that the courts can do pretty much what they like within the rules. So as much as many people bleat about the banks behaviour in respect of claims its pretty much down to their better knowledge of the courts because they have played the game before.

 

With regards to speeding up the settlement process, i think you'll find that most of the banks have a protocol set up as to more or less when they decide to make offers and settle claims. I cant see them changing simply because you change the heading on your letter, although i could see them having some fun at your expense. I would if i was them.

 

As I said if it works for you, and your solicitors will no doubt advise you accordingly, thats fine. Incidentally if they suggest sending letters threatening court action before entering into sincere attempts at settling claims i suggest you get a second opinion.

 

JMHO

 

Glenn

[Guest NATTIE]

podgydad- I agree with Glenn, because tried and tested methods work, this site and others have been going more than a year and is having an effect with financial institutions now settling earlier than before because the approach was reasonable and litigation was the last case scenario. The CAG, is in my opinion having an effect, it is making changes, to the way the cases are being dealt with so that is the advice. I am not sure if I would believe a Gap Year student at a call centre saying they will not budge or maybe a mature person who may have no real authority to talk for the bank. At the end of the day it is your choice so if you choose the method you are intending to do please tell us how you get on in case it works.

[rbrears]

Chances of a court striking out ex-parte against a litigant in person for failure to send an LBA is practically nil. The result would probably be a stay for a month so that settlement "negotiations" could take place.

 

But why risk that when a prelim and an LBA will ensure that this never happens to you?

[JonCris]

rbears don't kid yourself If an application to strike out is made then the court could strike out............at the very least failure to send an LBA without allowing enough time for a response will be deemed as unreasonable & might reduce any reward given by the court

[GaryH]

PRACTICE DIRECTION – PROTOCOLS -

[podgydad]

PRACTICE DIRECTION – PROTOCOLS -

 

THANKS VERY MUCH, THAT WAS ALL I NEEDED

[rbrears]

Jon Cris I dont want to get into a spat with you but you repeatedly come on these boards and tell people not to "kid" themselves or rubbish their comments as if you are the fount of all knowledge.

 

I have been a solicitor for many years and have worked in the legal profession for over twenty years, much of that time dealing with litigation in the county courts. It may be that there is a miniscule possibility of an ex parte strike out order as you say, but frankly not in my local county courts. If you read my post i have also said that using an LBA is the best way. The court won't reduce a "reward", they might take it into account on costs, that is all. Honestly, I dont know whether its your post count you are massaging or something else.....

 

As to the general protocol listed here its very interesting but the reality is that the vast percentage of cases issued in the county court, particularly in small claims, will not have followed this protocol. This is the reality that judges deal with many times every day and they don't go wielding a heavy hand and striking out almost all of the claims they come across.

[JonCris]

rbrears....a solicitor for many years..............& a litigator at that mmm.........then you should know that if we don't follow not just the CPR but also the spirit of the CPR then anything can happen..........The CC Judges have considerable discretion in the conduct of their courts.....as too many have begun to witness

[ladybird17]

What is this all about? This site follows a particular tried and tested procedure and that can be confirmed by many, many successful claimants on here. If someone thinks they have found a better way to do it, then isn't that great?!! But I think we can all reserve our judgments until that procedure, too, is proven to be successful. If someone wants to it differently then do it - and then come back & tell us all about it. This is a place for exchange of ideas and debating & researching certain issues, but not really a place for petty squabbles. Maybe those of you in the legal profession who are subscribing and feel they have a valid and real solution would do more good by offering your skills & experience pro bono for site members.

[senanbyrne]

rbrears is right. The protocol is never followed precisely.

 

14 days is plenty of time to notify your bank of your intentions. The judge would understand that to a poor person, 14 days is loads of time to offer a major company that has unlawfully applied charges.

 

I also have an aunt and a friend of mine who took their bank's straight to court without a letter and both won unconditonally. That is the reason I was going to bring it up in the first place.

 

Me? To be on the safe side, I have given my bank 14 days.

 

28 days? OK.. if you want to wait that long..

 

If you don't have the time, just slip a 14 day LBA and get on with it.

[Janet-M]

If you don't have the time, just slip a 14 day LBA and get on with it.

 

This is not recommended by CAG .

The tried and tested way is 28 days , we say 28 days for a reason.If you wish to cut corners then you can , it's your claim , but please do not advise others using this site to cut corners and jepordise their claims .

[senanbyrne]

Isn't the CAG about people coming together to offer their advice? I am giving advice based on my experience and I make that quite clear. Is this not allowed? If not, I won't offer it.

[Janet-M]

to offer informed advice yes , not to offer advice that if someone followed it they could risk their claim .

[Spiceskull]

The small claims court, and procedures, is about "being reasonable" and about trying to settle without recourse to court.

 

Prelim and LBA, giving two lots of 14 days for the bank to enter into a meaningful dialogue, demonstrates your adherence to these basic principles.

 

If people want to take shortcuts, against the advice offered here, then they are welcome. However, if it all goes horribly wrong you will understand why the tried and tested methods are the recommended ones...