how to take legal action against hsbc?

[Mike_hawk]

'If' the judge applies the rules you're left with the following [absent any application from the other side]:

 

(2) Where a party files an allocation questionnaire but another party does not, the file will be referred to a judge for his directions and the court may:

 

(a) allocate the claim to a track if it considers that it has enough information to do so, or

 

Assuming the court now has ample information from you and you've persisted in all comms that the case is straightforward it should progress to allocation without further interference

 

(b) order that an allocation hearing is listed and that all or any parties must attend.

 

This is the sticking point, if the court feels it needs to consider more information or for parties to agree key points for trial prior to allocation it will order a hearing to decide. Thats your opportunity to focus on keeping the case simple & capable of straightforward argument and remedy, be wary of any argument attempting to expand on DPA or defamation [it will try] or any applications from the other side which could push this into a disposal hearing as it will be it's last opportunity pre allocation to seek sizeable costs. Once its on the sct it has very limited tools left available to it and will at some stage need to make a commercial decision whether to continue.

 

I would guess it never intended to file an AQ and is relying on an allocation hearing in an attempt to derail your argument for sct. If it fails it will bear the brunt of its own costs as they wouldn't be fully recoverable even in the event of it winning at trial......... hence the deep pockets comment.

[AndyOrch]

Failure by a party to file an allocation questionnaire

 

(2) Practice Direction 26 is modified by substituting for paragraph 2.5 the following –

 

‘2.5 (1) Where a party does not file an allocation questionnaire within the time specified by Form N152, the court will serve a notice on that party requiring the allocation questionnaire to be filed within 7 days from service of the notice.

2.5 (2) Where a party does not file the allocation questionnaire within the period specified in the notice served pursuant to paragraph (1) then that party’s claim, defence or counter claim (as appropriate) will automatically be struck out without further order of the court.’

[Mike_hawk]

Thought the pilot scheme was automatically revoked on the 1st October?

[AndyOrch]

Why is it still in the CPR then?

[noddy997]

Thought the pilot scheme was automatically revoked on the 1st October?

 

Which pilot scheme? I hope their defence is struck out they havent even bothered to amend it as I ammended my particulars I have added that "damage to creditworthiness" by not ammending their defence accordingly shows their guilt.

[Mike_hawk]

Why is it still in the CPR then?

 

Dunno, post the full text of the doc or the latest update link you're looking at...... maybe I'm viewing an old version?

[Mike_hawk]

Which pilot scheme? I hope their defence is struck out they havent even bothered to amend it as I ammended my particulars I have added that "damage to creditworthiness" by not ammending their defence accordingly shows their guilt.

 

Hi Noddy

 

Don't worry,may just be a bit of confusion about the effective dates of the part 51 pilot scheme order. I understood the changes to part 26 were effective to 30 Sept 2012 only during the pilot scheme rollout. If Andy has other info it would be in your favour if the rule persists.

[AndyOrch]

Dunno, post the full text of the doc or the latest update link you're looking at...... maybe I'm viewing an old version?

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/_old/pd_part51b

 

General

1.1

This Practice Direction is made under rule 51.2. It provides for a pilot scheme (‘the Automatic Orders Pilot Scheme’) to operate in two stages.

1.1A

The first stage will –

(1) operate from 1st October 2008 to 30th September 2009 in the county courts at Chelmsford, Newcastle, Teesside, Watford and York; and

(2) apply to claims started on or after 1st October 2008.

1.1B

The second stage will –

(1) operate for a further period from 1st October 2009 to 31st March 2011 in all county courts and the High Court; and

(2) apply to all claims started on or after 1st October 2009.

 

Regards

 

Andy

Edited November 20, 2012 by Andyorch
REgards

[Mike_hawk]

Different dates to the April 2012 version

 

http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/practice_directions/pd_part51b.pdf

 

Which do you read as the effective date?

 

1.1B

 

The second stage will –

(1) operate for a further period from 1st October 2009 to 31st March 2012 in all county courts and the High Court; and

 

(2) apply to all claims started on or after 1st October 2009.

[noddy997]

The clerk did say to me "we dont have the defendants aq on the system yet, and the system doesnt give their deadline. It might be here and not processed yet, however, if they fail to submit the aq this will be refered to the Judge who might give them extra time, and if it hasn't still been submitted then the Judge will give them a 7 day period, after which their defence will be struck out". She also said "if this is the case, then you might not here anything and it will be a good few weeks until you do".

[Mike_hawk]

Not that I'd trust everything a court clerk says but it would seem to indicate that 2.5 is effective again. Wait to see what Andy can come up with

[Durkin]

The clerk did say to me "we dont have the defendants aq on the system yet, and the system doesnt give their deadline. It might be here and not processed yet, however, if they fail to submit the aq this will be refered to the Judge who might give them extra time, and if it hasn't still been submitted then the Judge will give them a 7 day period, after which their defence will be struck out". She also said "if this is the case, then you might not here anything and it will be a good few weeks until you do".

 

Judge has already granted extra time. In Scotland you're allowed to object to that.

 

It seems that their original AQ will stand 7 days from whenever the judge gets to consider things, which ideally would have been yesterday and so a hearing should be set sometime next week. Not "a good few weeks"

 

Personally, I don't see the point in the extra 7 days. They've had long enough. This drawn out process serves only to prolong the victims misery.

 

I'd be checking in at the court every week.

 

Did you ever try contacting CAB by e-mail?

 

Cheers,

 

Richard.

[AndyOrch]

Not that I'd trust everything a court clerk says but it would seem to indicate that 2.5 is effective again. Wait to see what Andy can come up with

 

 

 

Part 26 Case Management – preliminary stage

 

The pilot scheme set out in PD51B Automatic Orders Pilot Scheme has concluded. Part 26 is modified to provide that the court may make orders it considers appropriate including an order for directions, an order striking out the claim, an order striking out the defence and entering judgment, or listing the case for a case management conference in proceedings where one or more parties fail to file an allocation questionnaire. Further modifications allow the court to transfer out designated money claims to the preferred or home court where appropriate. Where parties fail to file the allocation questionnaire and an order is made as above the party in default will not normally be entitled to an order for costs of any application to set aside or vary the order, or for attending a case management conference.

PD51B is omitted.

 

So as it stands now:-

 

(8) Where a party does not file an allocation questionnaire by the date specified, the court will make such order as it considers appropriate, including –

(a) an order for directions;

(b) an order striking out the claim;

© an order striking out the defence and entering judgment; or

(d) listing the case for a case management conference.

(9) Where a claim is a designated money claim issued in Northampton County Court, the claim will be transferred to the claimant’s preferred court or the defendant’s home court as appropriate and the court to which it is transferred will make an order pursuant to rule 26.3(8).

(10) Where an order has been made under rule 26.3(8), a party who was in default will not normally be entitled to an order for the costs of any application to set aside or vary that order nor of attending any case management conference and will, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any party who was not in default.

 

Regards

 

Andy

[noddy997]

Andy I see you highlighted (b) an order out the claim.

 

Will that be possible? I mean it can strike out the defence, not the particulars or the whole claim?!

 

Cheers Nod.

[Mike_hawk]

Hi Noddy

 

Think the wrong line was hi-lited, but then he posts on a hell of a lot more threads than me and its very easy to miss something - try the one below....

 

© an order striking out the defence and entering judgment;

 

Bear in mind its not a must its a may so don't get your hopes up for an early conclusion just yet

[noddy997]

Hi Noddy

 

Think the wrong line was hi-lited, but then he posts on a hell of a lot more threads than me and its very easy to miss something - try the one below....

 

© an order striking out the defence and entering judgment;

 

Bear in mind its not a must its a may so don't get your hopes up for an early conclusion just yet

 

Cheers, yeah I know I learnt that from this life lol

 

Well you 2 are part of the Elite CAG Advisory Team

[AndyOrch]

This may be of interest to you Noddy:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?364090-Payday-UK-claim-form-received-***Claim-Struck-Out***/page6

 

Regards

 

Andy

[noddy997]

This may be of interest to you Noddy:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?364090-Payday-UK-claim-form-received-***Claim-Struck-Out***/page6

 

Regards

 

Andy

 

From reading that I can say 2.5(2) is effective, yes? :$

 

Andy, you are star for taking time out and posting in members' topics, thank you.

 

I will be going into court tommorow asking for an update and whats happend with my aq refund which I haven't received yet!

[noddy997]

Went to court and I have been told that:

 

Defendant has submitted their aq on 22/11/12. I wasnt told their deadline, however, when I said it was the 19th and why they were given until 22nd, the clerk said "if the defence is struck out, then it goes to the judge and he makes a decision and can take 3 months for this to happen".

 

Current status is that it is all to go infront of the judge and they will set a date usually within 3 months (this 3 months time seems robotic to me)

 

Anyone else think I am being fobbed here as the defence has been filed late?!

 

And my refund for the aq of £40 will take a few weeks yet...

 

Crikey!

[Durkin]

You should be present when the judge first considers the case. Small claims should be heard regularly every 2 to 4 weeks.

 

Find out when it goes "in front of the judge". That's when you need to be there to avoid the 3 month + wait. That's your chance to explain that your case is indefensible.

 

22nd seems to tie in with the courts dodgy 7 day rule.

 

You should have kept hold of £40. You'll probably get it back eventually but, as you are experiencing and as is the case with almost every claim, it's a ball ache.

 

Cheers,

 

Richard.

[noddy997]

Can I be present when the Judge considers the case? I didnt know this, I thought the files goes infront of the Judge and he/she makes the decision.

 

I received a cheque/order for the £40 refund today, so its not been that bad!

 

I hope it will be soon, as this time of the year sort of messes things up from 23/12 til about the 02/01!

[Durkin]

Can I be present when the Judge considers the case? I didnt know this, I thought the files goes infront of the Judge and he/she makes the decision.

 

All I can say is that that's what happens in Aberdeen and it would make sense that both parties are present when the judge considers the case in order that they can answer questions that the judge may have when considering whether or not it goes to trial.

 

It should be possible to get a judgement on the day without a trial in cases such as yours. You'll need to be there though to ensure it goes your way.

 

Things seem a little more complicated in England (although there are hopefully better judges) and someone else (shame there's no in court advisor) will be able to give you a more definite answer.

 

Cheers,

 

Richard.

[noddy997]

Went court today, stil waiting for the Judge to issue directions.

 

@ Durkin unfortunately I cannot be present when the above takes place. So you're lucky with the Scottish law!

 

Its been nearly 2 weeks since HSBC submitted their defence on 22/11/12 so hopefully it wont be much longer but then again xmas/new year delays things unfortunately despite it being festive!

[Durkin]

when the Claimant issued the amended particulars it wasn't put in the District Judges file/tray. After I wrote to the Judge he has ordered that:

 

1) The order of 11 October 2012 to be discharged (where HSBC was given til the end of Nov!)

2) Defendants to submited amended defence if needs be ny 16th Nov

3) Court to send out allocation questionnaires to both parties.

 

 

It seems the Englsih courts are inefficient and I still think this part was dodgy. By having both parties present at the first time of consideration, huge delays can be avoided, in turn lubricating the judicial process.

 

I wonder if you could somehow have lodged the claim in Scotland.

 

Good luck. I hope all these inefficiencies won't affect the festivities too much.

 

Richard.

[noddy997]

I doubt it, as most likely I would need to be a citizen in Scotland (registered on the electoral etc).

 

It was at Northamapton like all other small claims, only gets allocated to your local court when ordered.

 

I am going to go in again next week on Tuesday. Got a feeling it might be long winded but then again it might not be.

 

Also when I mentioned your case Durkin and those other cases supporting your cases, last month, I haven't absolutely anything from DG.

 

I think they will try to play dirty and make it come out of hand...