MBNA - Link County Court Claim - ** CASE DISMISSED**

[AndyOrch]

14 days should be sufficient with regards to the £130 its when the costs have been assessed (its always greater) providing you have been successful

normal application fee being £75.

[manc1976]

Thanks Andy

[manc1976]

In box [3] of the N244 write:

 

Further to both parties agreement to extend time to submit a defence CPR 15.5, this having now expired, I now request an order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on 9 December 2101 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice [3] the deed of assignment [4] the notice of assignment and [5] the termination notice, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's failure to comply with the Defendant's CPR 31.14 request and to enable the proper preparation of a Defence.'

 

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

On 9 December 2010, following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.

 

Draft Order:

 

1 Unless by 4:00pm on 25 March 2011 the Claimant complies with a request made by the Defendant on 9 December 2010 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice [3] the deed of assignment [4] the notice of assignment and [5] the termination notice

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on 22 April 2011 and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

 

Last copy beofre printing out and sending in the post tomorrow, does this look ok

 

Thanks

[manc1976]

[in any event] [assessed in the sum of £130.00]

 

Do I actually put this bit with the square brackets or is it meant as something else like notes????

 

Thanks

[AndyOrch]

Just leave it as Application. No bracs no fig.

[manc1976]

Just leave it as Application. No bracs no fig.

 

lol, Good job I checked, thanks again.

 

Will be sending this bad boy out in the post tonight

[manc1976]

The court received the N244 yesterday, will this appear on MCOL under the same case ref as the summons from Link?

[AndyOrch]

Only the case summons remains on MCOL, until its transfered to your local CC, then any application /case notes will be transferred also

pertaining to your case.

 

Andy

[manc1976]

So how do I keep a track of what is going on, or is it a case of waiting to see if they provide the documents requested in time?

 

Thanks

[AndyOrch]

Well the claim remains in CCBC (MCOL) until a defence is submitted,therefore deal with them re applications etc

until AQ and its fed out to your CC.

 

 

Andy

[manc1976]

Ok Thanks Andy

[manc1976]

Spoke to the court this morning, and they have said that the DJ is looking at my application today.

 

They also said that I only needed to send them a £40 fee not £75 as it had not been transferred to a local CC and also because a hearing was not required. So they are sending me a cheque for £35

[AndyOrch]

Sorry Manc I should have stated without an hearing.

 

Andy

[manc1976]

Sorry Manc I should have stated without an hearing.

 

Andy

 

No, is not your mistake matey, I just checked my application, and I did tick without a hearing, it was I didnt realise that the fee was lower.

 

All is good though

[manc1976]

Spoke to the court to see what happened on Friday and they said that the DJ has set a date of 16th March to look at the application, but it may be after that date and upto a week afterwards before a decision is made.

 

So I guess I sit and wait to see what happens, and I assume that once the application is sent to Link, they will be given extra time compared to what I put on the draft order, as the court has been slower than I thought.

[manc1976]

Letter from Northampton today:

 

 

 

So, once it has been transferred and a date set, what do I need to do and do I need to attend?

 

Thanks

[citizenB]

I would imagine you will receive an order from the court where it has been transferred to. If you have the opportunity to attend, it might be worth doing so.

[manc1976]

Hi CB

 

The debt belongs to my wife, but would I be allowed to attend on her behalf, and would I be expected to say anything?

 

Am just trying to get an insight as to what the possible outcomes are and what happens in this instance.

 

Thanks

[pt2537]

There shouldnt be a problem with you attending, but the court may deny you the right of audience, as it is not your matter so technically unless you are the Defendant, a legal exec, Solicitor, Barrister or someone whom holds a right of audience in accordance with the Courts and Legal Services act 1990 then you could be denied the right to be heard.

 

In respect of your application i hope its supported by a witness statement of your wife setting out why the Court ought to strike out? the bar is very high in strike out cases, so i often include an alternative request for further directions to deal with the matter in the event a strike out is unsuccessful to avoid the costs implications of losing.

[manc1976]

In respect of your application i hope its supported by a witness statement of your wife setting out why the Court ought to strike out? the bar is very high in strike out cases, so i often include an alternative request for further directions to deal with the matter in the event a strike out is unsuccessful to avoid the costs implications of losing.

 

Before I sent the application off, no-one mentioned anything about a witness statement, however I did sent a draft order.

 

What do you advise?

 

Thanks

[pt2537]

A witness statement supporting the application often is the difference between win or lose imho.

 

Lawtel has a number of precedents that i use, they give you the detail which your application ought to address

 

[In chronological order, list the facts on which the witness relies in support of the application. In applications for strike out, the following facts need to be addressed:

a) If the application relates to striking out part of a statement of case, clearly identify the relevant parts (by quoting the relevant paragraph numbers).

b) State the ground for applying for strike out (see r.3.4 and section 2.1 and section 3 of the Procedural Guide “Application to Strike out a Statement of Case”).

c) If the application is being made pursuant to r.3.4(2(a) (the statement of case discloses no reasonable grounds for bringing or defending the claim) state why the applicant believes the statement of case has no prospect of succeeding (this may be based on the facts or on a point of law). Consider also applying for summary judgment pursuant to CPR Pt 24.

d) If the application is being made pursuant to r.3.4(2)(b) (the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings) explain why the applicant believes the claim is ill-founded, vexatious or scurrilous. If the applicant believes there has been an abuse of process, explain why by reference to the facts.

e) If the application is being made pursuant to r.3.4(2)© (the respondent has failed to comply with a rule, practice direction or court order), identify the relevant provision and the facts showing how the respondent has not complied with it as he should have. State the consequences of the respondent’s failure to comply.

 

The above is from the precedent itself, and should give you an idea on what your application ought to have addressed. If these points have been addressed in the app then you should be ok,

[manc1976]

Thanks PT

 

I have just checked over the application at section 10: "What information will you be relying on, in support of your application?" I checked the box that said "the evidence set out in the box below" as opposed to "the attached witness statement".

 

My head is a bit pickled atm as am not well, but I will read more into it tomorrow as I will have a clearer head. At a glance, I do however believe that we have addressed some of the points you posted about.

[AndyOrch]

Your application was with emphasis to disclose was it not Manc, not to strike out, strike out was the option if disclosure not complied with.

Therefore you are, in all intense and purposes forcing the DJ to make the " or less " order which in effect he will strike out.

 

Regards

 

Andy

[pt2537]

If it was for disclosure then that is likely what the Court will order, striking out is probably going to be a step too far really.

[manc1976]

Hi PT and Andy

 

Yes it is for disclosure but now I am confused as the General Directions Order states: "The application to strike out the claim must be heard on notice to the claimant"

 

I had issues with Northampton BCC at the start where they thought the N244 was for an extension of time !!