The "Claim Too vague" defence and guide to amending a claim

GaryH · 17th November 2006, 10:19

If you have not yet filed, it is advised that you use an N1 form direct to your local court, with CAG's new particulars of claim. Many judges seem to be rejecting MCOL (MoneyClaim Online) claims of late and requesting more substantial POC, so to avoid any potential complications later on its far better to avoid MCOL completely. However, if you've already filed on MCOL, read on......

Recently, Lloyds (as well as some other banks) are increasingly defending claims primarily on the basis that the claim is; "not adequately particularised, 'embarrasing', too vague" etc, etc. This is usually a 14 point defence with the standard 'service charge' defence following on.

You will usually get this defence if you have filed on Moneyclaim online, regardless of whether or not you sent a schedule of charges. This is clearly a scare tactic and in most cases should be ignored and no action to amend your claims particulars is necessary.

However, If you did'nt use the correct MCOL template from the library which states the statutory and common law basis of the claim, you will probably need an amendment, depending on exactly what you used as your particulars. To amend your claim you will need to submit an application on form N244. See the section below for a guide to applying for an amendment.

If you did use the proper template, including in it your account number, then your claim should be adequately particularised. See below for a response for inclusion on the AQ, which refutes the defence's claim and that you should consider using.

If you used the template but did'nt send a schedule to MCOL, send a schedule to the court and SC&M ASAP, then use the AQ response below, but take out the bit that says you previously sent your schedule to MCOL.

If you used the template and sent a schedule to the MCOL court (Northampton) I would suggest responding in your AQ with this;

Quote:

ALLOCATION QUESTIONNAIRE N149 / N150

Section G / J Other information

The defendant in its defence contends that this claim is not suitably particularised and the statement of claim is “embarrassing” and shows no reasonable grounds for the claim to be brought. The Claimant disagrees with this contention entirely. The claims particulars clearly state the statutory and common law provisions on which this claim relies, and the claimant will of course elaborate upon the claim particulars at such time as is required upon the direction of the court. Further, contrary to the contention of the defendant, the relevant numbers of the account in question were clearly identified in the claimant’s particulars of claim, and a full schedule of the charges which form the sum claimed from the defendant was sent to Northampton bulk court on the day of issue for inclusion alongside the claims particulars. Additionally, the defendant was served with this information on two occasions previously within a 28 day period allowed by the claimant to attempt to resolve the issue prior to the commencement of this litigation. In the interest of expediency, I have attached another copy of the schedule to this allocation questionnaire.

As is known to the defendant, I am a litigant in person in this claim. It is respectfully submitted that the contentions of the defendant are highly likely to be an attempt to distress and intimidate, rather than presenting any valid or reasonable objections to the clarity of the Particulars of claim.

Follow the above with the guide notes from the templates library, ie, the request for allocation to the small claims track and for the draft directions.

As ever with all templates, before you just copy and paste, ensure you make slight amendments if any part does not apply. For instance, some of the defences do not contain the word "embarrasing", so if thats the case with yours leave that bit out.

There will not be enough room for all this on the form, so attach a seperate sheet, ensuring that your claim details are marked at the top. Don't forget to attach a schedule. It is also recommended that you send a copy of the AQ and the attachments to Lloyds solicitors.

Beware that in some cases the court may well order you to elaberate on your POC anyway. If this is the case you should submit the new POC from the templates library. Note that if the court has ordered you to replace or amend then you do not need a formal application or a fee.

AMENDING A CLAIM

The Civil Procedure Rules require that your POC's contain a concise statement of the basis of your claim in law and fact. This should include reference to the common law and relevant statutes on which the claim relies - ie the Unfair Terms in Consumer Contracts Regulations 1999, the Unfair Contracts (Terms) Act 1977 and the Supply of Goods and Services Act 1982. It should also include your account number.

Here is an example of a POC template that would almost certainly not be regarded as adequate in the eyes of the court -

Quote:

The claiment claims the repayment of unlawful bank charges for the period **/**/** to **/**/** amounting to £*** for direct debit, standing order, over draft interest and over draft excess fees. The claiment also claims interest on this amount under section 69 of the County Courts Claim Act 1984 at the rate of 8% a year from **/**/** to **/**/** of £*** and also interest at the same rate upto the date of judgement or earlier payment at the rate of 8%. The claiment also claims the court fee of £***.

If you used inadequate POC's such as the above and then the Bank defends on the basis that the claim is "too vague", they certainly have a valid case and what would probably then happen is that the court will order you to elaberate by providing further information.

However, the court does have the power, if it see's fit, to strike out your claim without warning. This is unlikely and has'nt happened yet as far as I'm aware, but to be safe its probably advisable to amend your claim upon receipt of the defence.

If you have decided what you did use was inadequate and needs amending, you need to make an application for the amendment on a form N244 - http://www.hmcourts-service.gov.uk/c.../n244_0400.pdf. This will cost you a non-refundable fee of £35.

Heres a guide for completion of the N244 -

Quote:

Top left hand box:

1. Tick c), without a hearing

Leave the rest blank

Part A:

I ***** (the claimant)

(that....) allows an amendment to the above claim in respect of the claim particulars

(because....) the claimant did not adequately particularise his claim in that he did not specify the common law and statutory provisions upon which the claim relies.

Part B:

tick 'evidance in part C' box

Part C:

Something like;

"I respectfully request that the court allows an amendment to my particulars of claim.

(brief explaination of why the amendment is needed, etc...............)

Please find attached to this application my proposed new particulars of claim, as well as a schedule of the amount claimed in respect of penalty charges levied by the defendant"

Then, print out the N1 particulars of claim from the templates library - http://www.consumeractiongroup.co.uk...n1-lloyds.html and attach it to an N1 form - http://www.consumeractiongroup.co.uk...-form-pdf.html

Attach your spreadsheet and take 3 copies to the court, along with 3 copies of the completed N244 + the fee. Tell the court staff what has happened, apologise for their inconveniance, and ask that your current particulars of claim are disregarded and replaced by the new ones. It will have to go before a judge to ok the amendment, and you could possibily get called for an application hearing which is nothing to worry about.

Also, if you are at the AQ stage, complete your AQ and take that to the court at the same time - you'll find guide notes in the templates library.

The Court will then amend the details, re-seal the claim and return it to you and it is your responsibility to re-serve it on the Defendant. Ensure that you keep a copy of the sealed N1 for yourself too. Once you have served the claim you should send the Court a completed certificate of service, here http://www.hmcourts-service.gov.uk/c.../n215_0106.pdf along with a copy of the N1 so the court knows when the bank need to respond.

kingliam · 17th November 2006, 16:22

Good Work Gary!

Joa · 18th November 2006, 01:57

My friend has two claims with lloyds; one for personal, one for business account. She followed the CAG procedures, used identical templates, etc etc; only the relevant bits were different (dates, account numbers and so on)Yet she received these two diametrically different responses; the business account settled soon after moneyclaim issued, whilst the personal account's defence from lloyds contained the "vague" and "unclear" bits. She has written to the court, with the AQ, pointing this out to the judge.
This confirms Gary's assertion that this is a part of low, dirty trick routine shamelessly followed by Lloyds legal team.

laurend · 20th November 2006, 15:50

thanks for that Gary, a huge huge help.

One quick question - the schedule of charges that I must send with my AQ, and to the solicitors acting for Lloyds, etc.. is it best to send the actual bank statements where I have highlighted the charges, or better to send the spreadsheet with calculated interest, etc etc or both? Hope that makes sense!
going to get everything posted today hopefully so any advice from anyonw would be greatly appreciated!!

cheers

GaryH · 20th November 2006, 18:25

Hi Laurend,

The schedule should be a spreadsheet of the charges and interest (if any) you have claimed. You will need to submit your statements at a later date, when requested by the court.

Good luck

mark1981 · 21st November 2006, 13:40

Feeling a bit silly as i've realised that while everything else in my POC are correct i haven't included my account number. I only have one account with Lloyds and they have acknowledged the fact I have an account with them, should I still file an amendment to the claim with an N244 or is it possible to carry on. Any help greatly appreciated!

laurend · 21st November 2006, 17:16

thanks gary dunno what we'd all do without you!!

GaryH · 21st November 2006, 18:16

Quote:

Originally Posted by mark1981

Feeling a bit silly as i've realised that while everything else in my POC are correct i haven't included my account number. I only have one account with Lloyds and they have acknowledged the fact I have an account with them, should I still file an amendment to the claim with an N244 or is it possible to carry on. Any help greatly appreciated!

What stage are you at Mark? Assuming you've just got a defence and AQ, I'd be inclined to carry on and just attach a schedule to the AQ with your account number and claim details clearly marked at the top. IMO a formal amendment is not necessary.

mark1981 · 21st November 2006, 19:28

Thanks Gary, I am at defence and AQ stage so am going to send two copies of my schedule of charges (which has my account number on it) when i return the AQ.

mel5 · 21st November 2006, 23:11

Thought this might be of interest. This is a copy of Lloyds defence which I received on Fri 20th against my credit card small claims action which comes to court (Scottish) on 5th December.

The Defendant Lloyds TSB plc (“the Bank”) is a Bank whose registered office is 25 Gresham Street, London EC2V 7HN. It is admitted that the Claimant has been a Credit Card holder of the Bank at all material times.
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.
The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of £185.87 was arrived at and the Particulars of Claim are too vague. The Statement of Claim shows no reasonable grounds for bringing the claim.
The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact for her claim as there is no pleaded basis for the claim itself. The Claimant should give full Particulars of the charges she is seeking to recover, identifying each charge, the date and amount of the charge and why the Claimant in each case she alleges it is a disproportionate penalty and thus unlawful.
The Defendant should then be given the opportunity to defend the proceedings further.
For the avoidance of doubt by opening a Credit Card account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of Credit Card services. The Agreement is regulated by the Consumer Credit Act 1974. The Bank is entitled, as part of that arrangement, to charge for those services. At the time of applying for the Credit Card and at the time of the account opening a customer is provided with details of the Bank’s charges that are set out in Clause 8 of the Terms & Conditions that govern the agreement. By using the account, the customer acknowledges that the charges are incorporated into the contract. For Credit Card customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include, but are not limited to, providing:

Credit Card statements
Up to 56 days interest free where the balance is paid in full by the due date
Free Additional Card
The facility to make payments by direct debit to Third Party.

Clause 8 of the Terms and conditions and headed CHARGES states:
8.1 For letting you continue to use your card (if we do let you) despite you having broken these conditions we will charge you:

· £20 if you do not make at least your minimum payment by the payment date;
· £20 each time you exceed your credit limit;
· £20 each time a direct debit, cheque or other payment order you have given us is not accepted when we present it for payment.

We will also charge reasonable cost and expenses resulting from you breaking these conditions.

By maintaining the account in within the agreed Credit Card limit agreed with the Bank, the customer may avoid most if not all charges.
7. There is no breach of contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank’s loss. The charges are fair and reasonable, and it is denied that they are unlawful.

The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charge are terms which relate to the price payable by the customer for a service provided by the Bank, an pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999, are not subject to the assessment of fairness.
In the premises:

9.1 the charges are for Credit Card services, and are not damages nor a penalty;
9.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;
9.3 it is denied that the charges, are unlawful or contravene any statute or regulation.
10. The Claimant’s claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the Bank.

Alan Ingledew, Sechiari Clark & Mitchell

When I first read it I was sure it had been sent to the wrong person - it so full of inaccuracies.

Firstly I used the small claims form template which as we all know includes the information they say is missing. I included a schedule of charges with it.
How they came to the figure of £185.87 is beyond me. My claim is in the region of £750 which is the amount allowed in Scotland. (This being the first of 3)

Also on their very pukka defence form they name two different courts.

I assume that I don't bother contacting them with correction and just wait to the court hearing and point them out to the sheriff. Is this correct:

Appreciate any comments.

Mel

GaryH · 25th November 2006, 11:52

Hi Mel,

Sorry about the delay in replying, your post did'nt flag up in my user CP for some strange reason

.

Your defence is typical of the "claim too vague" ones they have been issueing lately, except its the CC version obviously. Respond accordingly as advised above.

With regard to their error with the value of your claim, I'd point this out by including a sentance on the AQ.

Hope this helps

Tjones73 · 25th November 2006, 12:32

Hi Everyone, I got the standard too vague defence and I used the standard template and included my account numbers and enclosed schedules of charges etc....So after an inital panic I check here and found this thread and treplis to my own. Looks like Lloyds have cottoned on that we are all using templates and they have started using them now.

The info on this site is so helpful I would have been lost without the information, help and support of everyone else.

sporo7 · 28th November 2006, 08:32

I am about to complete my moneyclaim online form but I am not sure whether the interest is calculated up to todays date or do I stick to the original interest amounts I sent in my schedule of charges to the bank?, Please help!!

rbrears · 28th November 2006, 08:54

Or you could file an amended claim - after all the defendant suggests that the claim needs to be amended - and at the same time a Part 18 request (which they won't answer) but which will focus their minds on settlement.

Have a look at this old thread which might help and gives another way of dealing with this - although Gary's method is one way it will not avoid the possibility that the court might then order you to file an amended claim anyway.

Reply to stock defence and Part 18 issues

Tjones73 · 28th November 2006, 09:15

Quote:

Originally Posted by sporo7

I am about to complete my moneyclaim online form but I am not sure whether the interest is calculated up to todays date or do I stick to the original interest amounts I sent in my schedule of charges to the bank?, Please help!!

Hi Sporo

I submitted my claim with the interest on the day the claim was submitted and alsomade sure it was clear on the claim that interest would continue to be added at a daily rate.

Hope that helps.

Tracey

sporo7 · 28th November 2006, 10:35

Quote:

Originally Posted by Tjones73

Hi Sporo

I submitted my claim with the interest on the day the claim was submitted and alsomade sure it was clear on the claim that interest would continue to be added at a daily rate.

Hope that helps.

Tracey

thank you!

GaryH · 28th November 2006, 18:11

Quote:

Originally Posted by rbrears

Or you could file an amended claim - after all the defendant suggests that the claim needs to be amended - and at the same time a Part 18 request (which they won't answer) but which will focus their minds on settlement.

Yes, and the defendant also suggests in its defence that it charges are fair, transparent and lawful.

Why dance to the banks tune and pay an extra £35 for the priviledge? Lloyds file this type of defence in response to every MCOL claim, to run for the N244 form solely at their behest is completely unnecessary.

As above, so long as the MCOL template is used and schedule sent, the claim is adequately particularised and, in my interpretation, complies with the Cival Procedure Rules in relation to statement of case.

rbrears · 28th November 2006, 22:05

Hi Gary - and if you'd read the thread I linked to you'd see that you don't EVER need to pay a fee to file an amended defence in the circumstances discussed in this thread or fill in and file an N244 or any of that - so we agree on that point

It was not my intention to criticise your suggestion.

In all fairness the CPR require compliance with the rules relating to statements of case at the time those documents are served and not at the close of pleadings at the allocation questionnaire stage. Pleadings should comply with those requirments in the first place. This issue arises because of the templates on this site telling people to use the MCOL website. The banks are quite right - the MCOL template does not plead the case properly. People keep banging on about how they have served the schedules and the bank already know the account numbers etc. etc. but this misses the point completely. The court also needs to have the case properly set out in the pleadings and it will not have seen any of the documents one might have sent to the bank or its lawyers. To comply with the CPR the POC should really state the contractual terms we are talking about by reference to the particular terms and conditions of the bank in question and also set out clearly the legal principles and basis for the claim as well as giving full details of each charge (by appending the schedule). The MCOL template, because of the limitation on size, patently fails to do that.

In reality pleading the claim properly and thus complying with the CPR at the right time would wholly avoid the types of defence we see all the time here. We should really submit our cliams on paper, properly pleaded, and get them right the first time. Yes it means we can't use MCOL but we won't have to deal with these issues if it is done that way. And anyway based on my experience courts usually issue the claim quicker if it is submitted on paper direct to them than the MCOL system does.

To do this I would suggest that the amended POC in the thread I linked to above would suffice as the POC to be filed on paper in the first place.

GaryH · 28th November 2006, 23:09

Quote:

Originally Posted by rbrears

It was not my intention to criticise your suggestion.

None taken

Quote:

In all fairness the CPR require complance with the requirements relating to statements of case at the time those documents are served and not at the close of pleadings at the allocation questionnaire stage. Pleadings should comply with those requirments in the first place. This issue arises because of the templates on this site telling people to use the MCOL website. The banks are quite right - the MCOL template does not plead the case properly. People keep banging on about how they have served the schedules and the bank already know the account numbers etc. etc. but this misses the point completely. The court also needs to have the case properly set out in the pleadings and it will not have seen any of the documents one might have sent to the bank or its lawyers.

I agree that any schedule sent to the bank prior to the issue of the claim is irrelevant when the case file goes before a judge.

The passage above for inclusion on the AQ was designed to be used in cases where the schedule has been sent to the MCOL court at the time of issue for attachment to the particulars. If this is the case, I really don't see that the banks have any merit whatsoever to their objections and I think its extreamly unlikely that a judge would either. Come to think of it, nor do Lloyds, becouse ultimately they've settled every single claim.

Quote:

In reality pleading the claim properly and thus complying with the CPR at the right time would wholly avoid the types of defence we see all the time here.

Although it does'nt provide for any sort of elaberation, I am of the belief that the sites MCOL template if accompanied by a schedule sent by post does satisfy part 16 of the CPR, although obviously I'm no lawyer.

The bank will always seek any flaws in a claim that they possibly can, whether they be in relation to particularisation or otherwise. I agree that the risk's should be mitigated wherever possible, but not if that means pandering to their underhanded tactics by taking steps that are disproportionate and unnecessary. I think we are all aware that for the most part these defences are part of their wider strategy of wearing out and intimidating claimants.

Quote:

We should really submit our cliams on paper, properly pleaded, and get them right the first time.

For what its worth, I agree that claiming on an N1 is far preferable to MCOL and I do in fact advise as such.

Quote:

Yes it means we can't use MCOL but we won't have to deal with these issues if it is done that way. And anyway based on my experience courts usually issue the claim quicker if it is submitted on paper direct to them than the MCOL system does.

This is a debate thats come up a couple of times recently, and its one thats well worth having - thank you for your input. I will certainly raise these concerns with the sites mods and admin.

In the meantime though, my advice (for what its worth) would certainly still be to refute any defences such as this, providing the criteria has been met as set out in the post above.

Its also worth remembering that you're not expected to be legally trained to file a claim at the small claims court. In fact the use of lawyers is positively discouraged. Although this should not be relied upon as insurance for filing a inadequate or ill-prepared claim, it does add to the many reasons why in my view, these sorts of defences would not hold sway with a judge.

rbrears · 29th November 2006, 00:06

Still not sure that the MCOL and a schedule does comply with CPR part 16 but as you say thats a matter for debate and the reality is that the claims are being settled on that basis, so why worry

As to the rest of your post - absolutely agree.

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