Morning

Please could you give me any comments please.

I am thinking of applying for a strike out order under Civil Procedure Rules 3.4(2)(b)and ©. Application to go something like:-

"The claimant has made a claim against the defendant without following Practice Direction and exchanging relevant documents contrary to Practice Direction- Pre Action Conduct s6.1 (1).

The claimant has admitted not being in possession of the documents at all. Without these documents specifically mentioned in the claimant’s statement of case, the claim has no reasonable prospect of success and bringing the claim was an abuse of the court process".

Then attaching a draft order.

Many thanks

A

Has the court directed them to disclose?

alloyz

note re non compliance with pre action protocol that there are specific 'sanctions which the court may impose' para 4.6.

if relying on pre action non compliance alone, can a court override 4.6 using cpr 3.4?

Has the court directed them to disclose?

Nothing from the court after filing DQ.

I thought about making the application because the claimant responded to my CPR31.14 request by saying they didn't have the docs they mention in their POC and will refer to OC.

Just thought it might be worth letting the court know that via an application to strike out!

I would appreciate your thoughts Andy

A

alloyz

note re non compliance with pre action protocol that there are specific 'sanctions which the court may impose' para 4.6.

if relying on pre action non compliance alone, can a court override 4.6 using cpr 3.4?

Not sure Ford, I just thought I would take a shot because 3.4 covers none compliance with a practice direction and couple that with bringing a claim without docs you mention in POC and you could summise 'abuse of process' as well.??

Long shot but worth a try?

Nothing from the court after filing DQ.

 

I thought about making the application because the claimant responded to my CPR31.14 request by saying they didn't have the docs they mention in their POC and will refer to OC.

 

Just thought it might be worth letting the court know that via an application to strike out!

 

I would appreciate your thoughts Andy

 

A

What stage is this claim at...have you submitted a DQ ..have you received Notice of Allocation/Directions?

What stage is this claim at...have you submitted a DQ ..have you received Notice of Allocation/Directions?

We have both submitted DQ's and await court Allocation/ Direction.

This morning a Small Claim Mediator arranged an appointment to mediate later this month

Well await the Allocation/directions.....let the court order disclosure...saves you £155.

Well await the Allocation/directions.....let the court order disclosure...saves you £155.

Of course!

Seems obvious once its explained.... as with everything in life!

Thanks Andy

Of course!

 

Seems obvious once its explained.... as with everything in life!

 

Thanks Andy

and their poss costs re a hearing, re yr app'n, if it went against you.

and their poss costs re a hearing, re yr app'n, if it went against you.

Minefield!!

Thanks all

Just had my Mediation Session.

They reduced the amount to settle from £2900 one payment to £2000 over 36 months.

I went from £740 over 48 months to £1450 over 36 months.

They need 24hrs to speak to legal team as the main part of their arguement is that a recon agreement satisfies a s77/ s78 request.

I pointed out this is not a matter of a s77/ s78 compliance, I said you have provided the original application, but it is not signed by the OC so it is a prospective agreement as per s189 of the CCA74 and there is a distinct different with an executed agreement and unexecuted agreement as per Carey summing up para 27.

I said as the agreement is not executed, even if you had provided the T&C's (which they did not), they would be irrelevant because the agreement and any associated doc's are unexecuted and therefore not part of any agreement I had with the OC lending me money. If the lender chose to lend me money without an agreement in place that was their business and not for me to comment on.

Waiting for a call back tomorrow to try and settle but happy with my position for now.

I did not even get to mention how I can show the T&C's were not present at the time I signed....

A

SETTLED!!!

Mediation Agreement £1750 over 36mths.

Takes away the uncertainty of a trial and gives me closure, on my terms.

Thanks again all for your great advice and support, I genuinely have learned so much and appreciate every post.

A special thanks to Andy for your tireless help.

Also a big thanks to Ford and Mould for your input and others who looked in.

Donation number two before the end of the day.

A

Donation made

Well done Alloyz...Im delighted that you have managed to resolve this to your satisfaction.Was it by way of a consent or tomlin?

Thread title amended to reflect the outcome.

Regards

Andy

Nor sure Andy! (but i fear i am about to answer your question)

We agreed to the mediation and settled.

The mediator stated the claim will be stayed for 39 months (36 plus 3 extra) after which time the claim and defense will be stuck out??

Definitely not Tomlin so I guess Consent?

Mmmm I was just curious with regards to any balance and credit reference data...that you had ample protection...It is important to settle these matter on a F&FS and in writing of some form which must be watertight and drafted accordingly.

I'm sure you will finalise the settlement accordingly.....you have had past experience.

I certainly do Andy

The court mediator has read out the proposed agreement, which I edited for her to suit my needs and for their agreement, which they did.

It is a F&FS with no review and on a fixed sum, fixed period.

Excellent....many thanks for the donation Alloyz.

Absolute pleasure

Hopefully I be of help to others with my experiences, particularly the mediation aspects (refer my PM to you some time ago)

Thanks again

well done alloyz

well done alloyz

Thanks Ford for all your help