New strategy for Allocation Questionnaires

[BankFodder]

I think that the order which is posted below would form a very good basis for a standard attachment to all AQs and could help to turn the heat up a bit.

I think that we could modify it and use it as a template and encourage anyone who returns an AQ to ask for the atrtached draft direction to be made into an order.

I suspect that quite a few judges would agree.

[BankFodder]

In the XXXXXX County Court
Claim number XXXXXX

Between

XXXXXXXX - Claimant

and

XXXXX - Defendant

Draft Order for Directions

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.

Comments?

[GaryH]

Guide to the new AQ strategy

In section G (H if N150) of the AQ, you get the opportunity to add any other information you think may help the judge manage the claim, or make a request for specific orders that you want the judge to consider making.

Untill now, we have always requested an order of standard disclosure in this section, as per the AQ guide notes in the templates library.

A standard disclosure order, if it were ordered by the judge, would oblige the bank to fully substantiate exactly how its charges are made up and provide costings and documentary evidence, etc.

Trouble is, that standard disclosure is not availible in small claims cases - it is only usually ordered in the fast and multi-track. Judges do have the power to order it in small claims cases if they see fit, but up untill now they have been very reluctant to do so. In fact I'm only aware of a handful of cases in which it has been ordered dispite it being requested in hundreds of AQ's.

So now, instead of requesting an order of standard disclosure in the AQ, there is the option of requesting the directions as per the draft order on the previous page.

If ordered, this would still oblige the bank to produce all the important documentation that a standard disclosure order would - but, in a form that is far more likely to be agreed by the judge.

These directions are already being routinely ordered by some courts in small claims track cases, and it is fairly likely that if proposed most judges would agree to them. There is certainly no obvious reason why they would'nt, as is the case with standard disclosure.

So, if you want to request the directions on the previous page rather than standard disclosure, you need to attach the draft order (as per BF's post #2) to section G of the AQ. In the section G ('other info') itself, see below. If you have a N150, attach it to the 'proposed directions' section and see below for a suggestion of what to put in 'other info'.

The AQ will then go off to be looked at by the judge to consider the case file and AQ's and to allocate your claim - set the date, issue directions, etc.

You will then in a couple of weeks receive your notice of allocation from the court, which will contain the track, the date and the directions the judge has ordered.

If the judge has aceeded to your request and ordered the directions as proposed, you will THEN have to submit the claimants documents as per a), b), c) and d) of the order.

It is VERY IMPORTANT that you then know exactly what you need to provide and submit it to the court and the other side within the date specified on the order.

If you don't submit it, or don't submit it on time, your claim will then be struck out!!!

Once you've filed and served your documents, the bank will then have to submit theirs within their specified timescale. Going on past evidance, it is highly unlikely (although not inconcevable) that the bank will comply. They will probably either settle before the deadline, or default and have their defence struck out.

As discussed previously on this thread, the other big advantage of these directions is that the defendants documents have to be submitted within 28 days of the order. Therefore, the claims timescale would be considerably shortened as opposed to the standard small claims track directions, which don't require document exchange to take place untill 14 days before the hearing - which obviously in some cases could be months!

_________________________ _________________________ _________

Please note, there is now a condensed version of this thread containing all the important information in one place, here -

Draft Order for Allocation Questionnaires

_________________________ _________________________ _________


Passage for section G/H - 'other information' (you'll need a seperate sheet)

You -v- Bank Plc
Claim No:*******

N149/N150 Allocation Questionnaire

Section G/H - other information

If the court is in agreement, it is respectfully suggested that special directions may be given as per the attached draft order.

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute, and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend that it is incumbent upon it to disclose such information. Further, the proposed directions are now 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, I believe the outstanding issues to be of fact. Accordingly, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

Attach it to the AQ followed by the draft order. Then in the actual 'section G' box of the AQ, write this;

Please find the following attached to this allocation questionnaire;

1) Section G - other information
2) Draft order for directions

This allocation questionnaire and its attachments were sent to the defendant on **/**/**.

Then obviously send a copy of the AQ and attachments to the defendant as well as the court.

[Bookworm]

Pros:
- It ties in nicely with the court bundle.
- By asking for 14 days from date of order, rather than the usual no later-than-14 days-before-hearing, it should hopefully them get them throwing in the towel faster.
- If not, we'll end up with more claims struck out when they get sloppy.
- It could be very popular with judges who will cotton on, as this effectively could mean the end of the clogged up court system.

Cons:
- We will have to have a skeleton statement for claimants, and it is going to be difficult to create a one-size-fits-all. Bear in mind that we are seeing people saying they don't understand the court bundle, which I find worrying if they got that far and don't understand what the UTCCR mean!
- Claimants can't afford to get sloppy AT ALL. Unfortunately, we know a few of them are. They'll be at risk. It shouldn't be our problem, but you know that these are the ones that come back and moan about it.
- It won't work for estimated claims. Now, I know we don't encourage estimated claims, but there have been some around for whatever reason, some even justified, and we's need to make it very clear that the above could not be used for their cases, or it would be the ultimate own goal.
- People will have to be very careful with their schedule, especially when working out interest, especially if claiming contractual. ( remember Haydn's case?)

Otherwise, great idea. Yes, it means that our lot are going to have to pull their socks up, but so will the other side, and how! Instead of them still dictating the pace, and settling at any time between now and court hearing, it gives them a strict timeable. It is the ultimate LBA, you might say.

I like it.

[Karnevil]

May there not be the possibility the judge returns the order and requests it submitted formally on an N244 ?

[BankFodder]

Originally Posted by karnevil

May there not be the possibility the judge returns the order and requests it submitted formally on an N244 ?

no. The allocation questionnaire is intended to deal precisely with this kind of thing. The part relating to directions would simply have to say "please see draft order"

[caro]

Bear with me while I get my head round this.

1. Is this a CPR 18 request?
2. If so shouldn't a CPR 18 request go to the bank first giving 14 days before asking the judge for an order?

I'm not familiar with this which is why I'm asking. I would however like something posted on the Yorkshire Bank forum advising claimants to use this, because as I understand it, it could put an end to their horrendous delaying tactics. I don't feel confident enough to do it myself though as I would then be classed as the "expert", which I'm clearly not.

[BankFodder]

No - it's not a part 18 request. It is really just a well constructed order requiring an abbreviated from of standard disclosure.

It is well constructed because it was prepared by a judge who knew what he was doing.
Even by judge standards it is good

[Bookworm]

Was just thinking that Citi claimants,with Citi's ludicrous £12.88 secret costs, would be perfect testing grounds too.

Thoughts?

[caro]

Originally Posted by Bookworm

Was just thinking that Citi claimants,with Citi's ludicrous £12.88 secret costs, would be perfect testing grounds too.

Thoughts?

Or £8 as a judge seems to have decided arbitrarily now.

[Karnevil]

bumpy bump so we dont forget

[Karnevil]

lol..... thinking about it isnt the draft order basically asking for standard disclosuure anyway ?

[GaryH]

Pretty much, as good as for our purposes anyway. I would'nt have thought its necessary to ask for both.

[Karnevil]

If the AQ is an N150 should the draft order be attached