Nat West refuse to send statements

[Bigmac versus]

sounds promising... wouldn't get my hopes up until I see the order for dismissal, however. DCA's have a tendency to get away with filing stuff late.

 

 

Yip on many occasions, sitting tight for now.

[Its WAR]

Bank statements arrived today going back to 1998. The date was the start of the limited company. The earlier business statements going back to 1992 for our partnership (prior to formation of the company) were not included. Also not included, were all the documents the Court ordered to be served by yesterday. So I guess the statements were in response to my SAR and not in response to the Court Order.

[Bigmac versus]

Id agree.

[Its WAR]

Counting too many chickens.

 

I received a letter today, from the Court saying that in fact, Cobbetts had faxed a revised particulars of claim to the Court before the 4pm deadline. The Court have sent me a copy ( it has a time stamped on it 14:23). Despite when I visited the Court at 4pm on the 1st Nov, I was told they had received nothing and I mentioned even unopened post (there wasnt any) and what if a fax arrived before they closed. I was told they had nothing.

 

Anyway, the Court order was not just to file with the Court a new poc, but also other specified documents (which I assume were not faxed). Therefore the question is: How strictly will the Court look at this now? Have Cobbetts complied with the Court order by only filing a poc without the other documents? Have they complied with the order by failing to serve me as well?

 

Also, today Saturday 3rd Nov. I have received from Cobbetts, a poc and other documents by 1st class post (post marked 1st Nov). So I guess by Monday 5th, the Court will also have been sent these , if they werent faxed.

 

1. The Court may have recieived all the docs by 4pm 1st November or:

2. The Court may have only received the poc by 4pm 1st November and the other docs by 5th November.

3. Either way, I was not served until 3 November and therefore Cobbetts have not met the conditions of the order.

 

I must now get the Court to agree to dismiss the claim. If they dont, I have had 3 days of my 14 day response time stolen from me.

 

And I am still waiting for a few years statements up to 1998.

 

On 1st at 4pm, I handed in a simple letter stating that they had failed to comply and requested dismissal, but now I think I should make a powerful argument why Cobbetts have flaunted the time schedules and the Court should dismiss. Late is late.

 

Oh, does the postmark indicate what time of day, the envelope to me was franked? There is a code number on the frank, N1208159 65p paid 01.11.07 and there is also a bar code.

 

Any ideas?

[steven4064]

Our experience on CAG is that Cobbetts time and again flout court timescales and just get away with it

[Its WAR]

Yes they do get away with it. So how do we fight it? If the Court orders a specific time and date, what rules can we use to ensure the Court stick to them?

[Bigmac versus]

Judge has overall say on this and will almost certainly side with Cobbetts.

[Its WAR]

No news yet from the Court regarding my dismissal claim. So, I now have threee days to lodge defense and counter claim (with only half the statements).

[Its WAR]

I have now sent in my 9 page detailed defence (on 15th Nov) but today I received the reply from the Court regarding my request to dismiss nat wests summons against me:

 

This was my request written on 5th Nov:

 

Further to my letter of 1st November 2007 where I alerted the Court to the failure of the claimants to comply with the Order of the Court.

Deputy District Judge Roach ordered that the Claimant on or before 4pm 1 November 2007 file with the Court and serve on the Defendants a full particulars of claim to include copies of Guarantees, Bank Statements and Default Notices, in default the Claimants claim to stand dismissed.

Whilst it appears the Claimant did file with the Court a full particulars of claim by fax before 4pm on the 1st November, the Claimants failed to file the other specified documents as ordered. Although these were ultimately filed with the Court a day late,

Furthermore, the Claimants completely failed to serve the Defendants with any documents whatsoever by 4pm 1st November. Although service of some of these documents were eventually made on 3rd November by post. However, the Claimants failed to supply a full set of bank statements (although some have been supplied) and therefore they remain in default.

As the Defendants defence and counter claim partly revolves around the premise that the amount claimed by the Claimant is made up of unlawful bank charges, penalty fees and interest, the Defendants defence is compromised by the banks refusal to send a full set of bank statements in particular those relating to the partnership account of the Defendants. These are required by the Defendant in order to precisely calculate the amount of counter claim. (This being a separate issue to the Defendants defence that in any case, the Defendants were released from any additional debt to the Claimants by previous full and final negotiated settlement of a related action for the guaranteed account).

Furthermore, the Defendants defence requires substantial calculation and time consuming preparation and the effect of these delays further compromises the defence in effectively shortening consultation and preparation time.

The Defendants wish to confirm their request that the sanction for the claim to stand dismissed as ordered by the Court is applied to this claim as the Claimants have failed to fully comply with the order. Solicitors are well aware of the Civil Procedure Rules and in this case appear to be playing free and loose with the Court and flouting the orders.

The Defendants would remind the Court that CPR 18.1 (3) (a) (b) refers:

3) Where the court makes an order under paragraph (1), the party against whom it is made must –

a) file his response; and

b) serve it on the other parties,

within the time specified by the court.

Also: CPR 3.8

3.8 (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

Then the matter is governed by CPR 3.9 which provides for the Claimant to apply to the Court for relief from the sanction under certain circumstances.

However, it is hoped that the dismissal will encourage the Claimants to enter into proper negotiation with the Defendants and the matter disposed of without further recourse to the Courts. Accepting of course that the Claimants can make a fresh action if negotiations fail over the coming weeks.

It is also noted that there is a High Court hearing brought by the Office of Fair Trading against the Claimants and other banks and set for January 2008 wherein the bank penalty charges matters will be decided and judgement in that case will have an important bearing on the outcome of this case if this case proceeds.

We respectfully ask again that the Court dismiss this claim .

Yours faithfully etc.

 

The Court today ordered that: The Defendant states the Claimant has failed to copy to them the documents set out in para 2 of the order of 18 Oct. The claim therefore stands dismissed.(yippeeee).

 

So now, I suppose we wait for NatWest to apply for relief from the sanction in accordance with CPR 3.9. Assuming they do, what should I be doing now? Should I be contacting Cobbetts to get them into dialogue with me? Or will I get a chance to be involved in the argument that NatWest dont get relief from the sanction? If the claim remains dismissed, can NatWest issue the claim again? This is new ground so any help would be realy useful. I am a bit nervous that the court will allow the sanction to be lifted if NatWest comply with cpr 3.9.

 

Should I make a payment of around £500 to bring the amount they are chasing me for, to below £5000, just in case they issue a new claim? Should I insist on the rest of the statements so I can calculate the penalty charges and make them an offer for the balance I owe them? should I just ignore everything unless I hear from them or the Courts?

 

Oh! What happens about the 29 hours I have so far spent preparing and researching my defence?

[tomterm8]

You could send the court a request for a wasted cost order.

 

At the moment, you have won, but they may chose to try to restart the case. Don't pay them any money without an agreement that this is a Full and Final Settlement.

 

Something like

 

Dear Sir / Madam,

 

I note that on XXth the county court struck out your claim (numbered XXXXX ). I do not believe there was any merit in your case.

 

However, to save further costs and expense, and without admitting liability, I am prepared to offer you the sum of £XXXth in full and final settlement of this matter.

 

Yours Sincerly,

 

XXX,

[steven4064]

The Court today ordered that: The Defendant states the Claimant has failed to copy to them the documents set out in para 2 of the order of 18 Oct. The claim therefore stands dismissed.(yippeeee).

Yippeee indeed! Well done Haydn.

 

I'm afraid I don't know the answers to your other questions - this is new ground for me too. I'll flag up for someone more knowledgeable. EDIT Tomterm got in first:)

[Its WAR]

Case has been reinstated because Cobbetts sent a letter to the Court. I have not received the letter or the order from the Court. I have just phoned the Court to see on the offchance and have been told. So new dates have been given for the disclosure and inspection of the documents by lists. We have until Monday 4pm to submit the lists.

 

What should the list contain and should it be in any format?

[Its WAR]

So the next Order is : Both parties to give standard disclosure and inspection by list by 4pm 3rd January 2008. (I made a mistake on the date in the above reply, the Monday date was the new date for my defence which I have already issued in accordance with the first Order). So less pressure now to deal with the disclosure order.

 

So what goes into our disclosure list? I am guessing its a list of all correspondence etc upon which I intend to rely AND a list of docs etc I wish NatWest to disclose. ALSO I should disclose the various case laws which support my counter claim in respect to pre limitation, guarantors, full & final settlement validity. But I am only guessing:

 

Any ideas anyone on what I should be including, please!!

[hedgey06]

Hi Haydn, sorry - I've been offline for a couple of days so I've not caught up with all the threads yet. If you have a look in the templates library, I'm sure there's something on standard disclosure in there (I'll check around also).

[fbnts]

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