Banks offer to discontinue claim against me.

[ThankTuesday]

Hello!

 

Can anybody offer some advice?

 

I've been going through the court process regarding a bank loan - alleged default of payments. This dispute started in 2009.

 

I have defended the claim giving an embarrassed defence for the last 9 months and requested the default notices/termination notices etc - to date I haven't received these.

 

Last year, I requested that the court strike out the claim and make an order as to my costs. Late last year the courts requested that the claimant provide directions by a certain date - if they failed to do so the claim would be struck out. I have had no further correspondence from the court since November 2010.

 

Now the claimant’s solicitors are asking me to sign a consent order to discontinue the claim with no allocation to costs. If I don't sign it they will continue litigation and make an application to strike out my defence.

 

I'm aware of the CPR rules, however as the particulars of the claim make no reference to any account in particular (they just state an amount) I'm wondering if I sign the consent order it will reemerge in the future, as the claimants solicitors made reference to a current account and then back tracked and said the claim had nothing to do with my current account.

 

I'm very confident that they don't have a claim, and that I will win - If signing the consent order will make it go away forever - I will sign it - however if it is just a mask for them to change their claim (which I'm sure they also could not win), I would like the opportunity to apply for compensation.

 

This dispute has dominated my life for over a year. They have given me a 4th deadline to sign the consent order...

 

Does anybody have any comments... they would be much appreciated!

 

Many thanks from somebody who can wait to get a life back!!

[rebel11]

Hi Thank

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[nometer]

You need to phone the court to see if the claim has already been struck out and to find out the timw frames available.

[The Mould]

Hello!

 

Can anybody offer some advice?

 

I've been going through the court process regarding a bank loan - alleged default of payments. This dispute started in 2009.

 

I have defended the claim giving an embarrassed defence for the last 9 months and requested the default notices/termination notices etc - to date I haven't received these.

 

Last year, I requested that the court strike out the claim and make an order as to my costs. Late last year the courts requested that the claimant provide directions by a certain date - if they failed to do so the claim would be struck out. I have had no further correspondence from the court since November 2010.

 

Now the claimant’s solicitors are asking me to sign a consent order to discontinue the claim with no allocation to costs. If I don't sign it they will continue litigation and make an application to strike out my defence.

 

I'm aware of the CPR rules, however as the particulars of the claim make no reference to any account in particular (they just state an amount) I'm wondering if I sign the consent order it will reemerge in the future, as the claimants solicitors made reference to a current account and then back tracked and said the claim had nothing to do with my current account.

 

I'm very confident that they don't have a claim, and that I will win - If signing the consent order will make it go away forever - I will sign it - however if it is just a mask for them to change their claim (which I'm sure they also could not win), I would like the opportunity to apply for compensation.

 

This dispute has dominated my life for over a year. They have given me a 4th deadline to sign the consent order...

 

Does anybody have any comments... they would be much appreciated!

 

Many thanks from somebody who can wait to get a life back!!

 

 

Good afternoon ThankTuesday and welcome to CAG

 

Get your post count up to 20 in number and then please scan in and post up that letter for consent from the claimant's Solicitors.

 

The claimant in any proceedings can serve a Notice of Discontinuance into the court without any requirement of the defendant's consent agreeing to discontinue with proceedings.

 

The claimant clearly does not desire to pay any costs to you, hence the consent request, he wants to discontinue on the understanding that each party bears their own costs.

 

Scan said document in as soon as your are able to please.

 

Kind Regards

 

The Mould

[Endymion]

As nometer has already said, you need to find out what is going on. The order for the strike out suggests that it was an automatic strikeout if the Claimant failed to comply. As such, their offer to discontinue on a 'drop hands' basis is a nonesense as they have already had their claim struck out. Any attempt to re litigate would be an abuse of process and if they now try and appeal they would have to explain their delay and they would be unlikely to succeed.

 

Find out from the Court if the claim has been struck out. If not, ask why not and confirm no driections served etc and ask for it to be referred to the Judge for him to confirm strikeout.

[ThankTuesday]

Hey, Thank you for the responses!

I called the courts last month - they said they were running 3 weeks behind. This was 4 weeks after the deadline for strike out. The court said that they had not received any further directions from the Claimant. However the claimant did send me ridiculous directions before the deadline for strike out and asked me to sign them. Which I refused to do - as they were ridiculous! The claimant has since told me that they sent these to the court. But the court confirmed that they had not received them.

I then mentioned to the court that I had received a letter from the claimant’s solicitors suggesting they wanted to discontinue the claim to save costs and for commercial reasons.

 

I will call the court again now.

Many Thanks

[ThankTuesday]

Missed a bit off the end....

....I then mentioned to the court that I had received a letter from the claimant’s solicitors suggesting they wanted to discontinue the claim to save costs and for commercial reasons.

 

....The court administrator then said, that I needed to make up my mind what I wanted to do?? Discontinue or have the claim struck out or continue...??

[ThankTuesday]

I’ve just called the court again.

They’ve received no directions from the claimant; they did not meet the deadline and have not contacted the court in the last 2 months. So, as you have said above, the claim would have been struck out. I would not receive notice - it is just automatic.

[ThankTuesday]

The court administrator (guy who answered the phone) suggested I should refer the claimant to the courts.

I have received letters from the claimant stating that they sent directions to the court, and that I should sign the consent order prior to the forthcoming court deadline...

All lies - there is no directions, no forthcoming court date…

As it is – as you suggest above ‘abuse of the court process’.

[DonkeyB]

Were those letters from the claimant or the claimant’s solicitor? For a solicitor to deliberately mislead you as to the true legal position is a very serious offence... especially as an LiP. They must not take advantage of your status or lack of knowledge.

 

You would be in a better position if they simply discontinued. If no track has been allocated and you have defended, then yes, they are liable for your costs.

 

However, I get the impression you think they are using the muddled consent order to get over the problem that their particulars of claim were a shambles, and you think they might then come back with another claim, yes?

 

It may be worth pressing the court for absolute confirmation that the case actually has been struck out.

[ThankTuesday]

They were from the claimant’s solicitor...

[ThankTuesday]

 

However, I get the impression you think they are using the muddled consent order to get over the problem that their particulars of claim were a shambles, and you think they might then come back with another claim, yes?

 

My concern is that this has gone on for so long and it's so time consuming. I just want to get it right and clear in my head and over. The particulars of the claim were shocking.

The consent order was 2 clauses. (from memory - don't have it on me)

1. to discontine claim

2. No order as to costs

[DonkeyB]

I understand your desire to have it all done with.

 

BUT... if the claim’s PoC are ambiguous – and from your comments it sounds like they have an agenda with a mix up of the accounts – then you should require a clause in the order that states clearly which accounts the order refers to. This should flush out their intentions. Do not trust them at all.

[ThankTuesday]

The claimant’s solicitors are now stating in writing that, if I don’t sign the consent order and return it by a certain date (mid February) – they will deal with my strike out application by filing a counter-application to strike out my defence.

[Ruprecht]

You shouldn't have to file an application for a strike out. If the court hasn't received directions as requested they should have struck it out as per the order.

 

Maybe send the court a diary (cheeky) with your letter when requesting they strike it out.

Edited February 8, 2011 by Ruprecht
spelling

[alangee]

TT

 

Was the offer made "Without prejudice", or was it an open offer?

 

One thing you should be aware of is if it was an open offer and you refuse to discontinue, even if you win your case, the Judge could award costs against you. So you could be facing a larger bill for costs than the debt itself.

 

Alan

[ThankTuesday]

It may be worth pressing the court for absolute confirmation that the case actually has been struck out.

I did make suggestion to confirmation of the strike out and the court administrator suggested that the judges deal with thousands of issues and can’t send confirmations to all. I asked 3 times and told him about the letters I’d still been receiving from the claimant’s solicitors. He did clearly state that it would be an automatic strike out.

 

Do you think I should send a letter and attach the recent communications from the claimant's solicitors and ask for written strike out confirmation from the judge?

[ThankTuesday]

TT

 

Was the offer made "Without prejudice", or was it an open offer?

 

One thing you should be aware of is if it was an open offer and you refuse to discontinue, even if you win your case, the Judge could award costs against you. So you could be facing a larger bill for costs than the debt itself.

 

Alan

 

On the cover letter it states - Without prejudice save as to costs

[DonkeyB]

In which case they can only bring it to the judge’s attention if you lose, which may be unlikely.

[hammyhound]

Can I ask who the bank are, something tells me it is similar to one of my threads

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?276677-Reissue-of-court-proceedings&highlight=

 

HH

[The Mould]

The claimant’s solicitors are now stating in writing that, if I don’t sign the consent order and return it by a certain date (mid February) – they will deal with my strike out application by filing a counter-application to strike out my defence.

 

If the claimant's Solicitors believed that your defence was fanciful and unrealistic with no real prospect of success, then they would of made an application for Summary Judgment many months ago.

 

The claimant simply does not wish to pay your costs, he is asking you to agree to no costs awarded.

 

In any event, from what you have posted here, the claim has either been struck out or stayed, if struck out, the claimant would need to commence with proceedings against you with service of a new claim arrising out of the same facts - abuse of the process. If claim is stayed, claimant would need to make an application to lift the stay and state the grounds of his application, give his valid reasons as to why he didn't proceed with his claim from the point in time of you filing your defence.

 

What amount do your costs add up to?

 

Kind Regards

 

The Mould

[Endymion]

To clarify, there is no claim. It is struck out. It is a dead claim. It is pining for the fjords. It has ceased to be. It is an ex-claim etc...

 

Ignore the solicitors and now all you have to do is worry about how much in costs you can claim from them. Whta was there claim for and was it ever allocated to a track?

[DonkeyB]

To clarify, there is no claim. It is struck out. It is a dead claim. It is pining for the fjords. It has ceased to be. It is an ex-claim etc...

 

Ignore the solicitors and now all you have to do is worry about how much in costs you can claim from them. Whta was there claim for and was it ever allocated to a track?

 

Courts make mistakes. They have backlogs. This would be a dangerous assumption. Claimants get massive leeway when such errors are made. Better safe than sorry – confirmation of the SO is needed, then a claim for costs can go in.

[Endymion]

The OP just needs to file a request for Judgment under Part 3.5.

[DonkeyB]

Great one, Endymion. There’s your answer – look it up!