cupcake68 Vs Virgin **DISCONTINUED**

[cupcake68]

AH!

 

Thanks CAR

 

So I should send the AQ along with a request for strike out?

 

Cupcake

[car2403]

The Court has ordered an AQ completed, so best comply with that or face the wrath at a later date. Adding the SO is just a bonus

[cupcake68]

Thanks again guys!!

 

Cupcake

[cupcake68]

Should I have made an order to disclose first?

 

I am reading so many threads at the moment my head is spinning!!

 

Cupcake

[car2403]

Should I have made an order to disclose first?

 

I am reading so many threads at the moment my head is spinning!!

 

Cupcake

 

Ha ha. That will happen.

 

So, the order (pattern of things we want to happen, not on order of the Court) is to request strike out for non-disclosure, first, then, 'in the alternative' where they don't strike out that they are ordered to disclose X, Y and Z unless their statement of claim is struck out and you win

[Gallahad]

That seems eminantly sensible to me

G

[cupcake68]

Thank you again!

 

I get it now!! LOL

 

Cupcake

[cupcake68]

Just read on another thread that there is no cost for SO if applied for at time of AQ.

 

Is this correct?

 

Cupcake

[car2403]

Just read on another thread that there is no cost for SO if applied for at time of AQ.

 

Is this correct?

 

Cupcake

 

No

[cupcake68]

Shame!

 

Cupcake

[diddydicky]

i may be wrong but i am sure that you can attach draft directions to an AQ (which can include a strike out application) with no fee involved

[car2403]

Which thread was that, Cupcake?

[car2403]

i may be wrong but i am sure that you can attach draft directions to an AQ (which can include a strike out application) with no fee involved

 

Guess it depends what the OP wants, really - submitting draft directions along with the AQ may work, but it's more a suggestion to the Court, than a request, IMHO. If you submit an application notice, you're asking them to order the SO, rather than suggesting that as a course of action. There's probably little difference in effect.

 

Thinking about it, though, the AQ asks if you have, or will submit any other application notices, so I can't see how the two tie together, really.

[cupcake68]

So I have to submit the application seperately but at the same time?

 

Sorry but this is all new to me

 

Cupcake

[cupcake68]

Maybe I should "suggest " a SO in the AQ and if the judge doesn't pick it up then I could send the application and pay the £75?

 

Is that a good idea?

 

Cupcake

[Gallahad]

bump

[cupcake68]

Sorry to be a pain but I am still struggling with my AQ!

 

I have filled in what I can and plan to send a covering letter to the judge expleining why I feel I cannot answer some of the questions when I have no idea of what the claim is for.

 

There are a couple of questions I am not sure on though.

 

Track - This claim is for just under £15k with costs. Should I state the track?

 

Proposed Directions - What directions can I possibly send? Is this where I request SO and if so how do I word it?

 

Costs - Should I be claiming costs for my time at this stage?

 

Fee - Do I have to send a fee?

 

Sorry guys but I am no good at this!!! I have read so many threads but they don't seem to have made it clearer!!!

 

Cupcake

[car2403]

Track - This claim is for just under £15k with costs. Should I state the track?

 

It'll be fast track - I take it this is a N150 AQ?

 

Proposed Directions - What directions can I possibly send? Is this where I request SO and if so how do I word it?

 

Yes

 

Costs - Should I be claiming costs for my time at this stage?

 

I'm not sure you've incurred any yet, other than basic disbursements - letter writing, stationary, etc? I think the form asks for an estimate of costs for the trial, and LiP's can claim £9.25 x the number of hours preparing and any travel needed to the Court, plus there'll be a day's salary on attending, I guess.

 

Fee - Do I have to send a fee?

 

No, the Claimant pays the fee

[cupcake68]

Thanks so much Car

 

It is an N150 - so do I put fast track or leave it blank?

 

Is there a certain way I should word the proposed directions?

 

Thanks again

 

Cupcake

 

So should I leave cost blank?

[car2403]

It is an N150 - so do I put fast track or leave it blank?

 

If it's over £5k it's going on fast track, most likely.

 

Is there a certain way I should word the proposed directions?

 

Try this; (WILL need amending to suit your claim)

 

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order. The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the Court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

- Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the Claimant to supply the requested documentation will make the case much harder for the Court to deal with this inhibits the Courts ability to deal with the case.

 

- The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 made it clear in paragraph 29 of

LORD NICHOLLS OF BIRKENHEAD judgment;

29. The courts powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1 )(a), regarding signing of agreements, is not complied with. In such cases the court shall not make an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor:

section 127(3). Thus, signature

of a document containing all the prescribed terms is an essential prerequisite to the courts power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62

and 63, section 127(4) precludes the court from making an enforcement order.

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the Claimant, should the Claimant not have the documentation required to progress this case I suggest that there will be no case to answer. Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

You'll need this on another sheet;

 

In the XXX county court

 

Case Number 7******

 

 

 

 

 

Between

 

Xxx

 

 

- Claimant

 

 

 

 

 

and

 

 

 

Xxx

 

 

- Defendant

 

 

 

 

 

Draft Order for Directions

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

1. Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations;
   
2. Copies of any original, signed and certified Default Notice and Termination Notice compliant with s87 and s98 Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, along with proof of service and all evidence to be adduced at trial to be available to the Court during trial hearing;
   
3. Copies of any original signed and certified document, contract or deed of assignment;
   
4. Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925;
   
5. A schedule setting out each charge applied under the agreement, showing the date, amount, and reason given (if any) for that charge being made and pursuant to which contractual provision such charge was made, producing a copy of the contractual document relied upon;
   
6. Whether such charge is accepted to be a penalty, and if not why not;
   
7. If such charge is alleged to be a pre-estimate of the Claimants loss incurred by the Defendants 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;
   
8. If such charge is not alleged to be a pre-estimate of the Claimants loss incurred by the Defendants 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;
   
9. Copies of any statement or other document relied upon as showing that each and every charge has been made;
   
10. A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;
    
11. Copies of decided cases and other legal materials to be relied upon;
    
12. Copies of any statement or other document relied upon.
    

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve the following;

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

So should I leave cost blank?

 

Hmmm. Can't remember what it says, now - I think it's costs to date and estimate of future costs? What have you spent so far? As an estimate, you can probably claim 20-30 hours at the £9.25 per hour LiP rate.

[car2403]

Oh, BTW, I figured you'd get special directions in an unless order, rather than actually being given a strike out at this stage - if that makes sense... I'm eating Pizza, so a little distracted...

[cupcake68]

Thanks so much Car.

 

I think I can manage now!! I'm really not very good at this! LOL

 

No doubt I will get it eventually!

 

Cupcake

[cupcake68]

Oh, BTW, I figured you'd get special directions in an unless order, rather than actually being given a strike out at this stage - if that makes sense... I'm eating Pizza, so a little distracted...

 

Do special directions mean they will be told they must supply docs?

 

Cupcake

 

PS enjoy the Pizza!

[car2403]

Do special directions mean they will be told they must supply docs?

 

Cupcake

 

PS enjoy the Pizza!

 

If the Judge agrees with them, then yes - if it's an unless order, and they don't comply, there should be a strike out.

 

In reality, you'll probably be invited to join a Case Management Conference (CMC) at the Court with the other side when you submit these - the Judge will want to know why you think they are necessary and will quiz the other side over why they haven't supplied what you've requested already, then decide what directions need to be issued from there. (Most likely)

[cupcake68]

Hi

 

I have one last question on this (sorry!)

 

The last page has Other Information section.

 

It asks "Do you intend to make any applications in the immediate future?"

 

Can I say Yes If the claim is not struck out I will be making an application for Strike Out?

 

Or would that be out of order?

 

Thanks for all your help.

 

Cupcake