Cabot Financial - Defending a court claim

[Brent-London]

 

4) It is therefore averred that the document Cabot submitted is not enforceable (ie: "a point of law (including the construction of a document)") and their case MUST fail and it should be struck out without a trial.

 

You need to take this bit out unless you are applying for their case to be struck out?

 

Im assuming you are just lodging a defence at this stage?

 

This was part of my application to strike out which is why I worded it that way.

[Brent-London]

Furthermore, it is with the permission of the judge that the claim (where it is shown to be unenforceable) be struck out under CPR Rule 3.4, section 1.7:

 

1.7

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

 

Yours Faithfully,

 

If you are making a strikeout application you will need to use the correct form - an application notice, N244 - and pay the fee (£75) unless you are requesting that the court strike it out of their own volition, which is a different part of the CPR.

 

A letter is not the most appropriate way to do this as it will not be actioned unless its in the right form, and certainly not without payment of the fee.

[Brent-London]

OK Brent, thats why your posts are invaluable, even at 3am

 

I would rather not go to hearing if at all possible, but seems I may have to.

 

I'm assuming the former part of the note is acceptable?

 

I think I will proceed with the strike out when I have to put my defence papers in. The 1st agreement sent to me 1 year ago did not show supposed 'bar code' application stamp shown on subsequent 2nd agreement, alongside not containing the prescribed terms.

 

I'm hoping to go with the 'constructed document' as defined in yr own thread.

 

Thanks again, Sherlock

 

The rest of the note is acceptable but it should form part of your AQ, rather than a separate letter. I assume you have made reference to the "attached letter" in your AQ answers? if not you should.

 

As for the strikeout - you are free to make that application at any time. There WILL however, be a hearing for the application where the law will be argued. So either way if Cabot push it you will have to go to hearing. Its nothing to worry about.

 

But he main thing is they are being VERY cheeky requesting that its not dealt with on the small claims track.

 

You need to point out to the Court in your AQ the provisions of the CPR, especially part 26.6 with deals with the Small Claims Track:

 

Scope of each track

 

26.6

 

(1) The small claims track is the normal track for –

 

 

......

 

(3) ...... the small claims track is the normal track for any claim which has a value of not more than £5,000.

 

 

and more importantly:

 

 

26.6

 

(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that –

(a) the trial is likely to last for no longer than one day; and

 

(b) oral expert evidence at trial will be limited to –

(i) one expert per party in relation to any expert field; and

 

(ii) expert evidence in two expert fields.

 

 

 

So point out the the Court that Cabot THEMSELVES admit that:

 

1. The value is less than £5000 AND

2. The trial would only last four hours

 

So the FAST TRACK is NOT appropriate.

 

They are only trying to get it on the fast track so they can claim costs! You have to stop that happening.

[Brent-London]

 

Brent, read the strike-out info (n244), there is provision for application of strike-out without hearing, I'm assuming CABOT would be allowed to challenge this??

 

Yes - they certainly will not let it go without a hearing, so its pretty unavoidable I think.