RBS Loan and PPI - COURT CLAIM **WON** discontinued

[I've got no money]

I don't know much about PPI but I'll have a proper read through and see what I can suggest - it won't be until tomorrow tho

[I've got no money]

Help needed.

 

I submitted my Witness Statement for the Summary Judgement, together with an N244 Application to amend Defence.

 

I have today received a letter requesting that the SJ Hearing next week be used as a directions hearing and they want me to agree.

The Draft Directions are:

 

1. Claimant’s application for Summary Judgement, dated 6th April, be withdrawn.

2. Defendant’s Witness Statement dated 4th May 2009 do stand as her Defence.

3. Claimant to file and serve a reply to the Defence by 10th June 2009

4. Case Management Conference listed 2 weeks thereafter

5. No order as to costs.

 

 

Also, should I have a list of costs for the Hearing. If so how much?

 

 

The witness statement submitted with the N244 was just a skeleton defence, so I would need to elaborate on it. Furthermore, can I ask for the claim to be struck out at the Hearing as still no agreement and even if they produce it, it would be unenforceable because the sums claimed still include mis-sold PPI from original agreement.

 

They've obviously worked out that their application isn't going anywhere -

 

In terms of the suggested order:-

 

1. That's fine

2. I'm not sure about that - I think that you ought to be given permission to file an amended defence and counterclaim within 14 days - because I think that you should seek a declaration for an Order under S142 and that we ought to generally tidy the defence up

3. The Claimant file and serve a Reply and defence to counterclaim within 21 days of service of the defence/counterclaim

4. CMC sounds OK

5. Costs - I'm not wild on that - I'd suggest that they ought to pay your costs

 

Unless you've made your own application for the claim to be struck out the court won't deal with that.

 

I think that you need to write to the other side and say that you are prepared to agree to the hearing being turned into a directions hearing in the terms that I've suggested

[I've got no money]

Costs you need to begin by working out exactly how much time you've spent on it.

[I've got no money]

Thanks IGMN.

 

What is S.140 order?

 

Not sure about Case Management - I think I read somewhere on here that it's not a good idea.

They are not giving me much time to investigate. Perhaps I should submit Application to get the claim struck out or request a stay. I don't want to give them an advantage by allowing the SJ to be used for their benefit.

 

Regarding Costs, do I need to submit a claim for costs if the Hearing takes place. I have spent 100's of hours on CAG but they obviously will not agree to paying for all my time - any idea what is reasonable. Do I need to have that at time of Hearing or just request that I submit costs?

 

S142 - a declaration that the agreement is unenforceable

 

A CMC is a case management conference - I'm surprised that they want one as it increases the costs - in terms of a CMC - then you'd discuss allocation and further directions - I'm not sure why one would be a problem.

 

When is the hearing next week - I suspect that its' too late to issue your own N244 for hearing at the same time as the SJ application - so it would happen later...What I would do is get the directions on filing an amended defence and reply - file the new defence - get their reply and defence to CC and then make a strike out application.

 

I don't really understand how you think that the SJ is being used for their benefit - it isn't - its' their application that they are withdrawing - you need to file a properly amended defence - so its' in as much your interest as theirs.

 

Costs - you should calcualte all the time you've spent - you won't get all of it but you can get up to two thirds of what a lawyer would charge - so as an example if a lawyer would charge say £600 - you could charge £400. I have to say that at private client rates a lawyer would be likely to charge more than £600

 

You need to prepare a costs claim before the hearing and ask for that amount - I'd have thought that a realistic claim would be around £400 - don't forget that you charge at £9.25 per hour

[I've got no money]

Did you read the link I put up for you in post # 199. I dont think you have a choice as to whether to agree to Case Management, it is Court Protocol:)

 

On the CMC point you don't have to agree to a CMC - you can argue that the case doesn't need one and that what should happen is that:-

1. Amended Defence/Counterclaim - 14 days

2. Reply/Defence to Counterclaim - 21 days thereafter

3. AQ questionnaire 14 days after filing of reply/defence to CC

 

You argue that case is not so complex that it needs CMC and that all CMC will do is increase costs

 

Its' then up to the Judge whether he orders it or not

[I've got no money]

Case Management Conference - in the old days every case had a directions hearing where both sides attended and agreed what would happen next in the case. When the CPR came in it abolished directions hearing in every case and introduced case management conferences. A CMC is reserved for complex cases - all that happens at them is that directions are given for the future conduct of the case, they take the place of the AQ - they for example decide on allocation, disclosure etc

 

One of the reasons that they are expensive is the fact that a fee earner from the Solicitors with detailed knowledge of the case is supposed to attend

[I've got no money]

Thanks to all for your replies.

 

CCM - 'they' are the solicitors.

 

Should I write to the solicitors stating that I do not agree with their Draft Directions and suggest IHNM's directions instead?

 

You need to respond to their letter - if you don't you'll get to court - they'll withdraw the application and you'll then discuss directions at the end of the hearing when costs are discussed they'll produce the letter and you may well be ordered to pay their costs.

[I've got no money]

I agree a CMC serves no purpose, as all that is required is for them to come up with the relevant docs

 

having said all that, the only thing that will come out of the conference, is all the above, so the only purpose it would serve is to increase costs to the loser, how can that be Pursuant to the CPR?

 

Precisely - that's the argument against a CMC - if it was a complex case with experts etc then a CMC would be necessary BUT it isn't - at the end of the day it is a contract dispute with some statutory add ons

[I've got no money]

Many thanks IHNM.

 

Can you suggest what I should write to them. There isn't much time. If I send on Monday they won't receive it until Tuesday.

 

Can you email them - is there an email address on their letterhead...or can you fax it from somewhere

 

As far as the letter goes mark it Without Prejudice save as to costs:-

 

Dear Sirs,

 

Re: (case details)

 

I thank you for your letter dated (put date in) received on the 9th May 2009 the contents of which are noted.

 

I regret that I am unable to accept your proposed directions.

 

I would suggest the following alternative directions:-

1. The Claimants' Application for SJ is dismissed

2. The Defendant have permission to file an amended defence and counterclaim by 4pm (put the date 14 days after the date of the SJ hearing)

3. The Claimant shall within 21 days of service of amended defence and counterclaim file and serve a reply and defence to counterclaim

4. Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim

5. The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £XXX

 

I look forward to hearing from you ASAP.

 

Yours faithfully

[I've got no money]

I am slightly confused. It doesn't seem fair that they have asked for these Draft Directions just before the Hearing.

The solicitors want me to write to them acknowledging that I agree with the Draft Directions.

Should this be my course of action:

I write to solicitors stating that I disagree with the Draft Directions and state the Directions IHNM suggests.

At same time I write to Court objecting to the Draft Directions - however, I don't know if their Draft Directions have been filed at the Court.

 

You don't need to write to the court - all that's happening is that the Solrs are treating you as if you were another Solr. That is they are trying to agree directions before they get to the hearing. The Solrs won't have sent the draft directions to the court. If anything they're being reasonable - they're giving you advance notice of what they want. and giving you time to think about things - if this was dropped on you outside of court you'd have to make a decision on the spot

 

Ultimately if it can't be agreed by corresp or outside the doors of the court then the DJ will have to make a decision

[I've got no money]

Many thanks IHNM - that's great because I am feeling a bit lost here.

I can fax them.

Do I need to contact the Court? I have already filed an N244 for permission to amend my Defence to be tied with the SJ Hearing.

AQ was submitted some weeks ago - can you file another one?

 

No you don't need to contact the court

 

Can I ask did you pay a fee on your N244 or did you get remission. If you paid then there is the issue of the £75 fee...

 

Yes - you can have another AQ - has it been allocated to track

[I've got no money]

There is no reason why there can't be another AQ

[I've got no money]

Basically yes - they'll talk to you outside the court - if you can't agree it then you'll go in front of the DJ and argue it out in front of the Judge

 

- I suspect that their issue will be with your costs... they'll say that their application for SJ was because your defence was rubbish - your response is to say that their claim was so poor and consequently you couldn't do a better defence so its' their fault AND firstly their application has failed and your application to amend has proved sucessful...

[I've got no money]

Unless you have submitted a formal application on an N244 to strike them out it is unlikely that the DJ will allow you to apply to strike them out - it's worth trying because as an LIP you didn't know the rules AND you've told the claimant and the court in your witness statement that you want the court to strike them out - so they had advance warning - try that argument - if the Judge is in a good mood it might work

[I've got no money]

Directions - sorry I forgot - YES - you can and should submit your own draft directions

[I've got no money]

It's all contained in the letter that I drafted for you earlier in the thread

[I've got no money]

If. however, you've made your own application to strike out on an N244 already then your application will go ahead.

 

Can you clarify whether you have?

[I've got no money]

Thanks for your help IHNM.

In the N244 I requested that I be allowed to amend my defence - that was because of the SJ Hearing and trying to cover all possibilities. In my AQ Draft Directions I asked for the Claimants to supply information and, if they did not comply, then a strike out.

I feel this case has progressed far enough without the agrrement as the law is quite clear.

The problem I have at present is that by rejecting their Draft Directions and suggesting alternatives, I will be agreeing to them. In effect, I would like my Draft Directions to ask for SJ on grounds that they have no chance of winning (turn the tables!) and get the case struck out.

How can I reconcile both - unless I suggest they ask for their case to be struck out.

The Claimants seem to be leading and prolonging matters. I feel a need to attack.

 

I don't think that you can ask for a direction to strike out.

 

Perhaps the way to deal with it is this:-

 

Do a letter to the other side - mark it without prejudice - tell them that you note their intention to withdraw the SJ application and that you don't agree with their draft directions and that you intend to pursue an application to strike out the claim, as referred to in your witness statement. If that is unsuccessful you propose the following directions

1. The Claimants' Application for SJ is dismissed

2. The Defendant have permission to file an amended defence and counterclaim by 4pm (put the date 14 days after the date of the SJ hearing)

3. The Claimant shall within 21 days of service of amended defence and counterclaim file and serve a reply and defence to counterclaim

4. Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim

5. The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £XXX

[I've got no money]

My post crossed with IGNM's - The blurb in teh request for draft directions in my post above is for a regular bank charge claim - it would have to be changed for your circumstances. IGNM has given some words.

 

He is right that you don't ask for a direction to strike out but you can ask for a strike out directly IMHO.

 

In terms of the AQ you're right but this isn't about directions on the AQ - here that we have a hearing coming up this week and the issue is whether we can raise the strike out at the hearing on Weds.

 

The hearing is the Claimants application to strike out and we are involved in discussions with the other side as to directions - as they have indicated that they are intending to withdraw their SJ - its' a different situation to an AQ

[I've got no money]

Dear Sir/Madam,

 

 

Claim No. xxx

 

 

I write in regard to your letter dated x May 2009.

 

As Solicitors, you must be fully aware that, without the agreement, this case should not have been brought before the Court.

 

Consequently, I cannot agree with your proposed Draft Directions and will be pursuing a strike out of your claim as requested in my Witness Statement.

 

If that should be unsuccessful, I propose the following Draft Directions:

 

1.The Claimants’ Application for Summary Judgement be dismissed.

2.The Defendant have persmission to file an amended Defence and Counterclaim by 4pm on 28th May 2009.

3.The Claimant shall within 14 days of service of amended Defence and Counterclaim, file and serve a reply and defence to defence and counterclaim.

4.Both Parties shall complete and file AQ's within 14 days from service of reply and defence to counterclaim.

5.The Claimant to pay the Defendants costs of and consequential to the application for summary judgment in the sum of £370.00

 

Yours faithfully,

 

I would put something in to say that you don't think a CMC is appropriate as it will merely seek to increase costs and be disproportionate to the claim and in any event in your view that directions can be dealt with by the AQ

[I've got no money]

Just to update:

 

I went to Court this week for the Draft Directions Hearing which took the place of the Summary Judgement Hearing. The Judge was very nice. He didn't award costs to either side.

 

He gave me permission to amend my Defence and for the Claimants to reply with their amended Defence. He virtually ignored their request for Case Management and said it would be best to get the Defences in before taking any further action. I asked for a strike out on the grounds that the Claimants had not supplied the agreement but, as I had not submitted an Application for a strike out, he said that he couldn't consider it at present. (was worth trying!).

 

I am beginning to think that I should have applied for a strike out as soon as the Claimants failed to supply the agreement. This might have stopped them issuing the Summary Judgement Application.

 

Thanks CCM and IHNM for all your help.

 

Excellent - when you get their amended defence let us know what it says - perhaps at that stage it might be worth thinking about an application to strike them out

[I've got no money]

They can't issue another DN

[I've got no money]

Congratulations - that is brilliant news...