Oh The Audacity of DG

[Audreygreeneyes]

thank you crusher :) 8)

[Audreygreeneyes]

This has just come in the post. am totally gutted, as the court said they had set a trial date.. and now discover it is a pre lim date........

 

A PROPER OFFICERhas considered the statements of case and allocated the claim to the small claims track.

 

Before the claim is listed for hearing, the judge has ordered that a preliminary hearing shoudl take place because:-

 

special directions are needed in this claim to prepare for the final hearing which the judge would prefer to explain to you in person.

 

 

The preliminary hearing will tak epalce at 12.00pm on the 7 August 2007 at xxxxxxxx

 

At this hearing the court will consider either:

 

A to stay the claim pending the decision of a test claim involving the defendant , or

 

B to give directions for this case to beheard as a test ase, and if necessary to reallocate the claim to the multi track for that purpose.

 

Not less than 14 days before the preliminary hearing the Defendant shall file with the Court and serve upon the Claimant details in which will determine the issues in this claim. Alternatively. the Defendant shall file with the Court and serve upon the Claimant draft directions for this case to proceed as a test case.

 

 

the Claimant may make any representations to the Court in writing provided these are received by the Court and served on the Defendant not less than 5 days before the preliminary hearing. If either party is prepared to abide by the decision of the Judge as to the directions to be given, that party is excused from attending the preliminary hearing.

 

Has anyone else been given this? am not sure is this giving the banks the opportunity to apply ofr a stay and delay even further?

 

Thoughts would be most welcome and any suggestions as to exactly what representations we should submit to the court.... thanks auburn

[querkyone]

Auburn, I believe this is a GOOD thing.

Basically, the Judge is telling DG they can give Draft Directions if they want it to go to Court as a Test Case - They will run like hell away from this.

 

And he is giving you the option to also submit Draft directions.

 

Both of the above can occur, but DG will not want to either attend or submit as a test case! So only you have ability to submit Directions, so submit and ask for FULL disclosure. Don't settle for a stay, I can provide details of how I had a stay set aside in past few weeks at my court.

 

Don't worry, this is good. I do ramble on sometimes, sorry, but this is the Statement the Judge is saying in between the lines

 

Judge

"DG, do you want to make this a test case??

 

DG

"Erm, no thank you Judge"

 

Judge

"Claimant, would you like Disclosure and you own draft Directions?

 

Claimant

"Yes please!"

 

Judge Orders full disclosure and allocated to Fast track as a Test Case.

DG think "Bugger - Offer in FULL!"

[Audreygreeneyes]

Querkyone thanks so much for al lthis, I would be very grateful of the details for the setting aside. I was going to ask for FULL DISCLOSURE but not really sure what else to ask for in the directions...........

 

Thank oyu so much for your help:)

[querkyone]

I have the details of how I got the Stay set aside on PC at home, will post tonight when I get home. Send me a PM with an email address and I'll email you the document direct. Also have a read of the below for further information, could be worth using for your Directions and also ask for the strike out - aggresive, but the Judge has given you the option to suggest so go for it

 

Just posted this on another thread, but use this as a basis:

 

Have a read of mariejader v Abbey **DEFENCE STRUCK OUT!**WON**

 

Use the details and write to Judge.

Also have a read of

Abbey abuse orders - keeping the pressure on.

 

Both basically Abbey threads, but the law basis is exactly the same.

Use their defence and highlight points that they defend all as identical.

 

The first link above is someone who used it and it worked for them

The second link is the details of what to write.

 

You could use the basis of it as purely a letter to Judge to have them struck out, or as a basis for your Draft directions. As the Judge has invited you to submit draft directions then that is the least aggressive route.

Up to you, but keep us all informed Manic

 

Querky

[Audreygreeneyes]

:???:

[Audreygreeneyes]

:confused:

[Bookworm]

3 threads merged, pls stay on one thread per claim.

 

Why are you getting so worked up? However infuriating it may seem, it is perfectly logical for them to settle them in order, and at least, it seems to indicate that they have no intention of actually going to court.

 

Seems to me they're now starting to copy Barclays' way of doing things. Yes, annoying, yes, frustrating, and definitely an abuse of court's process, but there you are. Take a deep breath, you'll get there.

 

Oh, and time frame and order they decide, well, up to a point, they DO have the court hearing date as a pretty definite deadline, actually. Think of that, that should cheer you up.

[Audreygreeneyes]

I am sorry bookworm I did not realise there were 3 thread for my claim?. it seems that I am having difficulty with your site and locating my thread....but have taken note of your comments.........

[beat_the_bankers]

auburngreeneyes, if you click on your own name, a screen will come up and one of the options will be "see all threads started by auburngreeneyes", that should make it easier for you to find them!!

 

[Audreygreeneyes]

Lateralus did you tell me a wee while ago that the court dont really go for ermail copies of letters? just got a fax programme and wondered are faxes accaptable do you think? or is it best to just use snail mail?

 

thanks for your help so far

[pinkduchess]

snail mail - recorded

[tomcody]

Hi Auburn, just thought I'd drop in an say hello. Looks like you're a little bit further on than me and have date by which you can nudge DG. Good luck!

[Audreygreeneyes]

Good Morning All, all and any thoughts advice and sugestions gratefully received.....

 

DG have to file with he court and serve on me details in which will determine the issues in this claim........ am I correct in thinking this mean thye have to state exactly what they are using for their defence? and not just the basic thing they did for the defence?

 

Alternatively they can file with the court and serve on me draft directions for this to proceed as a test case.......erm some how do not think they will choose this option?

 

Now I can make any representaion to the Court and DG at the latest 5 days befor ethe hearing......... I was wondering if I shoudl submit a full court bundle........ any ideas

 

also should I do a draft directions and do you have any suggestions on exatly what should eb included in them?

 

this last part is even more interesting........

 

Have jsut been given a lovely surprise this morning , wont actually be here the week before DG's deadline......(person did not about this claim when they booked the surprise)

 

So was planning a final nudge letter in the next 2 weeks. but would liek this one to BE REALLY STRONGly worded........

 

hadh thought on giving them a date to have the cleared funds in my account and failure will result in my representation to the court that they move this to the multi track and treat as a test case............given I have been tryign to resolve it for 6 months..........

 

NO I AM NOT GOING TO TELL DG I WONT BE AT HOME............. COS THEY WILL GO FOR A STAY I AM POSITIVE.....

 

look forward to suggestion

[Audreygreeneyes]

Any thoughts anyone?

[lateralus]

in your position i most certainly not ask to be a test case! what i would do is submit the draft directions - as querky advised in post 28 a few weeks back - it brings everything to a head sooner if the judge orders it - you would have to be prepared to submit your court bundle but it means it all gets done and dusted much quicker.

 

here's what you do -

a letter politely requesting the draft order be made a direction.

attache the draft order, send them to the court.

 

the letter and the draft direction are on post 1 of my New---after 28 Days - Maybe No Aq!!!!!!! thread about half way down -

also, jowalshy wrote a slightly different cover letter for her draft order - you can look hers up and see if you like it.

[Audreygreeneyes]

Draft Order for Directions

 

 

 

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

AND ONE FURTHER BIT OF INFO - I KNOW IT'S DRAGGING THIS POST OUT BUT I THINK IT BEST TO HAVE AS MUCH AS POSSIBLE ALL IN ONE PLACE SO:

 

If the judge were to grant the draft order it would mean that when the court asks for the info - this is it, in triplicate (one set for you, one for the court and one for dg) - so DON'T do this until it is ordered by the court and it is about 5 days from being required as it is a heck of a lot of copying - probably over 200 pages times 3.

but this is the info that would be required should the draft direction be made an order:

 

If the judge agrees with the draft order and makes it a direction, it will come back to you and you will have at least 14 days (the date will be on the paperwork) to send in four things:

 

a) your schedule of charges. (ie a copy of your spreadsheet)

b) your statements showing the charges. Alternatively, the list of charges which the bank provided under your S.A.R (subject Access Request) (only send the statements with charges on them.)

c) A Statement of Evidence: (post 55 in the new strategy): New strategy for Allocation Questionairesnote here: hsbc uses the service charge defence - so use this the first one on post 55

d) All the statutes and decided cases on which your claim relies. ie, UTCCR's, UCTA's, SOGA, case law, etc. For this, I'd just submit the whole of the Basic Court Bundle.

AND AFTER THE LLOYD'S WIN - LET'S BE SURE THERE'S A COPY OF TERMS AND CONDITIONS IN THE BUNDLE.

 

This whole thing runs to around 200 pages and should be done in triplicate: one copy for you, one for the court and one for dg – that’s 600 pages of copying – LEAVE IT UNTIL YOU KNOW FOR SURE YOU NEED IT. If an offer comes in from DG and is accepted you wouldn’t need it. Really leave it until you have to do it to meet the deadline set by the court!

 

courtesy of hagenuk: some t & c's from 2004

Attached Filespersonal_banking_terms.pd f (177.1 KB, 40 views)

 

thank you to givememymoney,castlebest, garyh for your help

Last edited by lateralus : Today at 15:18. Reason: adding a whole lot more!!!!

vbrep_register("695176")

 

 

Is this what you mean Lateralus?.......... and if so I do not have 14 days as my request to the court only requires to be in court adn served on them not later than 5 days before the hearing........

 

they have to submit what they want 14 days before the hearing..............

 

Although thisis a pre lim hearing does that make a difference?. sorry if I am being stupid and missing the obvious......... thanks

[lateralus]

yes, there was a letter just above it - and that would be the letter you would send asking the judge to read, take-in, and apply the above draft order and make it a direction. were he to do this - he would then write back and so - ok, here's the direction - within 14 days of today(today being the date he sends his letter) - both sides submit the following 4 things (those listed above). then, you both would have 14 days from then to file the court bundle - if they didn't file it in 14 days their defence would be struck out and you win. so, instead of waiting until 5 days before the hearing date in aug. you are asking the judge to make it an order now - and if he does - in 14 days when you submit yours and they don't - you win. instead of all this happening in august it would happen now! 14 days from when the judge ok's it.

 

also, as i said - check jowalshy's letter to see if you like it better

[Audreygreeneyes]

Soirry to be thick lateralus. so you mean write to the court now. this week asking for a draft order? yes? and use the letter about what i have jsut posted or jo's?.........

 

so rather than wait till august it could be settled sooner yes?

[lateralus]

yes, and you aren't thick - it's complicated if you've never done anything like this before - and yes, you've got it.

 

here's the info on the post in my thread:

 

 

 

HERE IS THE DRAFT ORDER INFO - PLUS LETTER AND THE ORDER.

HERE'S ANOTHER BIG ADDITION TO THIS THREAD AS OF FRIDAY 6 APRIL

 

It has been suggested by Bookworm in this thread:

Is your court dispensing with the Allocation Questionnaire?

that if you find yourself in this position - you send the Draft Direction to the court you've now been transferred to - the same as if you were filing an AQ using the new strategy:

New strategy for Allocation Questionaires

So, this would mean a cover note like this:

 

 

 

 

 

 

 

 

[Your address]

The Court Manager

****** County Court

Court Address

Court P/code

 

 

[date]

 

 

 

 

Dear Sir/Madam

 

 

 

 

You -v- Bank Plc

Claim Number: *******

 

 

 

It is noted that in my case referenced above that the Allocation Questionnaire has been dispensed with. I am aware that this is likely due to the large volume of claims that consumers are bring against the high street banks. I am also aware that to date the banks have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

 

 

 

In light of this the Claimant respectfully suggests that special directions may be made as per the enclosed draft order.

 

 

 

The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

 

 

- The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

 

 

- In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

 

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

 

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

 

 

Yours faithfully,

 

 

 

 

[name]

 

 

 

enc: Draft Order

 

 

 

 

THEN ON A SEPARATE PIECE OF PAPER - THIS:

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

the letter jowalshy wrote which is a little different to the one above - if you choose to use it - attach the draft order and send it off.

i can't find a copy of it - so i'll ask her to put it here for you - it just refers to the court date, i think. she will put it here for you.

 

 

 

ok, i found where we had changed it a bit - so the cover letter would look like this:

 

 

 

 

 

[Your address]

The Court Manager

****** County Court

Court Address

Court P/code

 

 

[date]

 

 

 

 

Dear Sir/Madam

 

It is noted that in my case referenced above that the Allocation Questionnaire has been dispensed with and that a date for a Preliminary Hearing has been set for 25th July 2007 at 10.00am. I am aware that this is likely due to the large volume of claims that consumers are bring against the high street banks. I am also aware that to date HSBC have failed to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily

 

In light of this the Claimant respectfully suggests that special directions may be made as per the enclosed draft order. I think that this would expediate the matter, which will hopefully lead to an early resolution and therefore making a court date unnecessary.

 

The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of any hearing so that this claim may proceed justly and expeditiously.

 

 

 

- The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

 

 

- In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

 

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is incumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

 

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

 

 

 

Yours faithfully,

 

 

 

 

[name]

 

 

 

enc: Draft Order

 

 

 

 

obviously change the orange line to your specifics.

bottom line is - if the judge approves and orders it - everything moves way forward - dg won't do it and so will make an offer.usually just after the 14 days.

[Audreygreeneyes]

Lateralus thankyou so much for this, you are a true star................will do these tomorrow and will hand it in to the court Monday..........again thanks so much for the time and effort and help............ it is greatly appreciated..............

 

yes it is a very daunting process.......... have I got the bottle to go after the ml.......lol:)

[tomcody]

Hi Auburn,

 

Hopefully not long for you now, it's all taking much longer now and we are all having to put that little more effort in but the reward will be worth it.

[Audreygreeneyes]

Thanks Tom and glad to see you are almost at the end of this as well.........

 

Lateralus do I send DG a copy of this? or just let the court inform them?..... I did wonder if it was worht one last ditch attempt with a nudge letter attaching a copy of the letter........ worded along hte lines of... this is my last attempt at trying to resolve this matter with you and your client without involving the courts...........

 

If by 12noon on the 11th June 2007 you have not made contact with me to resolve thjis matter, then I am seeking the courts approval for a draft order.......

 

and possibly add what Tom got from his court?........

 

or do I just take it stratight to the court in the morning?

[sharongina]

I have just altered my draft order using this one, great!

[sharongina]

I am doing this for my direction hearing 28 June, I am also taking this to court tomorrow morning, I was told you can send it in to D&G as part of your next nugde letter