damjef v FD

[monkey_uk]

have you tried calling the mcol helpdesk to see if they can tell you what has happened?

[damjef]

Hello, Just a quick update, they filed their defence at the very last minute! I have now received my Transfer of Proceedings paper work along with the banks defence which I don't understand at all. I will have to seek a superior mortal to help fill it in and make sense of their defence. I have a few days left to get the paperwork back to my local court so I'll keep you all posted,

Thanks...

[BigFatGreedyBanker]

Hi Damjef,

 

Did your claim get allocated to the fast track in the end?

[damjef]

Hello, not yet, As I understand it I have a choice on the AQ but have to give reasons why If I choose the small claims procedure over the natural Fast Track route. So if any one has any ideas I would gratefully receive them!

PS; can anybody advise me on how to fill out my AQ?

A/ yes or no?

B/ My local Court because of work commitments

C/What is a pre action Protocol? Is following the procedure of SAR,Prelim and LBA associated with this?

I presume I check Yes in part 2? (I have supplied the regulatory schedule of charges)

D/What amount of the claim is in dispute? is this the amount before costs and interest?

Applications? what does this mean?

Witnesses? do I just state myself?

Experts? do I check Yes and refer to collated evidence?

Do you consider the case suitable for a single joint expert...?

What does this mean?

Track

I intend to choose small claims even though I am over the £5000 threshold

I may use the reason that; before cost and interest the initial claim was under the threshold. Would this be a good enough reason?

E/Trial or Final Hearing, How do I know how long this will last?

F/Proposed Directions, What does this mean?

G/Costs, I will leave this blank as I intend to go for the small claims procedure?

H/I presume that I attach all my various sourced materials to this section?

What sort of other information would help the judge manage the claim?

Right I'm off to do some more searching, Thanks...

[BankFodder]

There is a template for filling in the AQ somewhere. Ask one of the mods.

 

Although you may express preferences for a particular track - at the end of the day it will be for the judge to decide and he well have his own views.

However, it will be transferred to your local court but certainly you should point out in the AQ that this is what you want because you are an individual and they are a business.

 

For the benefit of everyone who reads this, the information is all here on the forum. It takes some work but people should not start claiming until they understand the layout of the forum and what the various steps are.

 

There is no reason for anyone who is reasonably prepared to receive surprises to to get into a panic.

[GaryH]

Hello, not yet, As I understand it I have a choice on the AQ but have to give reasons why If I choose the small claims procedure over the natural Fast Track route. So if any one has any ideas I would gratefully receive them!

PS; can anybody advise me on how to fill out my AQ?

A/ yes or no?

B/ My local Court because of work commitments

C/What is a pre action Protocol? Is following the procedure of SAR,Prelim and LBA associated with this?

I presume I check Yes in part 2? (I have supplied the regulatory schedule of charges)

D/What amount of the claim is in dispute? is this the amount before costs and interest?

Applications? what does this mean?

Witnesses? do I just state myself?

Experts? do I check Yes and refer to collated evidence?

Do you consider the case suitable for a single joint expert...?

What does this mean?

Track

I intend to choose small claims even though I am over the £5000 threshold

I may use the reason that; before cost and interest the initial claim was under the threshold. Would this be a good enough reason?

E/Trial or Final Hearing, How do I know how long this will last?

F/Proposed Directions, What does this mean?

G/Costs, I will leave this blank as I intend to go for the small claims procedure?

H/I presume that I attach all my various sourced materials to this section?

What sort of other information would help the judge manage the claim?

Right I'm off to do some more searching, Thanks...

 

Have a read of the AQ guide notes, they should answer 90% of your questions - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

You also have the option of proposing directions on the AQ, as per this thread - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html. This is the favourable route to take, but only if you understand its requirements and are confident that you can fulfill them when the need arises.

 

If in doubt, don't use the new strategy and request standard disclosure in section H as per the guide notes.

 

If your charges are below 5k, you should stay in small claims anyway - interest and costs are disregarded when assessing a claim for track allocation. As BF said though, value is not the only factor, in fact last week I saw a £400 claim allocated to the fast track! Simularly, I've seen 8k claims allocated to small claims.

 

Reasons for requesting small claims are;

 

a) Claim value. Minus interest and court fees, and in view of CPR 26.8 (2), your claims value for the purpose of track allocation is under the 5k threshold. (incidentally, the rules on track allocation are here)

 

b) The claim is a consumer dispute, for which the small claims track was specifically designed

 

c) Overriding objective's require both parties to be on an even footing - the small claims track can provide for this whereas the fast track would mean costs exposure which would be a heavy burden for you but insignificant to the defendant

 

d) The law relating to contractual penalties is long established in both common law and statute - therefore the issues are of fact, not of law.

[GaryH]

Also, I should just add that fast track allocation would'nt exactly be the end of the world. In fact it does have definate advantages. In either event, if you prepare properly, do your research and make no careless mistakes then the chances of your claim seeing the inside of a court are remote.

[damjef]

Thanks GaryH & BF for the input, Advice.

I have read and read now my eyes are sore! I'm going to bed. I will report bk l8r. Thanks again..

 

PS; BF sounds like my Dad

[damjef]

Hello Everybody,

I have read different threads with regards to filling out the Allocation Questionnaire but I am confused over one part;

Section D

what amount of the claim is in dispute? is this total cost of charges or charges plus interest at 8% as per original MCOL claim?

WITNESS

this is obviously me but what goes under witness to which facts?

thanks...

[GaryH]

Hi damjef,

 

The amount in dispute is the amount in charges only, minus any part payments if they've made any.

 

You are a witness to - "all facts and matters relevant to this claim"

[damjef]

Hello, Thanks for the info GaryH,

I,ve just finished the questionnaire and I'm off to take it down the court right now so I'll keep everyone updated.

Thanks...

[damjef]

Hello everyone,

Just to keep the post updated because i've been a way for a while. Had no correspondence from court yet regarding allocation questionaire (filed 23/03/07), have phoned several times but get the same answer! "We have a very large backlog and it may be a couple of weeks before you receive a reply". Bit of a blow because I tried the alternative AQ route and prepared everything ready thinking it may well go through the process quicker but if thats the way it is I'll bide my time...

Thanks,

[GaryH]

Yep, I'm afraid you'll have to. The courts are snowed under and its not unheard of to be waiting a couple of months for allocation, although its usually about 4 weeks. Which court is it?

[damjef]

Hello, It's the County Court in Coventry and I've been told that there absolutely inundated with claims. I can't imagine how long it might have taken if I would have chose the normal route with the AQ. I shall phone again at the end of the week to see if there is any progress. I'll update as and when.

It's pleasing to see that FD are settling quite a few claims of recent and I hope it stays this way until everyone is paid in full!

Bye for now...

[GaryH]

Coventry are one of the courts who seem to have adopted the draft order, so be prepared that when the order arrives you will have 14 days to prepare and send off everything you need.

[damjef]

Thanks GaryH,

I know nothings set in concrete but thats good news!

I'll be ready and waiting eagerly!! (prepared this time;-) )

Thanks..

[damjef]

Alright!

Received my notice of allocation yesterday and my claim has been allocated to the small claims track.

If I understand the wording correctly I don't think they accepted the draft, however I have a hearing date for july and all the relevant documents are requested to be delivered to the court 14 days before the hearing.

Can somebody just verify the following please...

 

NOTICE OF ALLOCATION

1. The claimant by such a date file and serve detailed particulars of claim setting out in itemised form all charges, interest in respect of which he claims and the basis of such claim.

(schedule of charges with interest at 8%)

2. The defendant by such a date (4 weeks later) file and serve a detailed defence setting out in itemised form all charges they dispute or claim are validly levied.

3. -

4. Each party shall deliver to every other party and to the court copies of all documents on which he intends to rely at the hearing.

(Would this be A,B,C,D as outlined in the draft?)

5. All copies of relevant documents to be delivered fourteen days before the hearing.

(Would this be B,C as outlined in the draft?)

6. Bring original documents to hearing

7. Signed statements setting out the evidence of all witnesses on whom each party intends to rely shall be prepared and copies included in the documents in Para 4. This includes the evidence of the parties themselves and of any other witnesses whether or not the witnesses are going to come to court to give evidence.

(Would this be D as outlined in the draft or is it something totally different?)

8.-

 

Thanks all...

[dubliner10]

HI Damjef,

 

I'm at a very similar stage to you and have a date on the Small Claims Track at Nuneaton CC in late June.

My order reads very similar to yours - I have Judge Sanghera.

I'm currently compiling my court bundle using the information in the template library - but also GaryH has a very useful thread with lots more info @ http://www.consumeractiongroup.co.uk/forum/lloyds-bank/82148-got-court-date-important.html

Hope this helps

Must admit there are some parts of the bundle I'm confused about - for example the part of the bundle 'Statements' does it refer to witness statement or bank statements.

Good luck mate, I'll be watching you thread

 

Dub

[GaryH]

Hmmm... strange order. In red is what you need to provide.....

 

NOTICE OF ALLOCATION

1. The claimant by such a date file and serve detailed particulars of claim setting out in itemised form all charges, interest in respect of which he claims and the basis of such claim.

File the N1 POC from the templates library, along with a full schedule of charges

(schedule of charges with interest at 8%)

2. The defendant by such a date (4 weeks later) file and serve a detailed defence setting out in itemised form all charges they dispute or claim are validly levied.

3. -

4. Each party shall deliver to every other party and to the court copies of all documents on which he intends to rely at the hearing.

Court bundle from the templates library

5. All copies of relevant documents to be delivered fourteen days before the hearing.

6. Bring original documents to hearing

7. Signed statements setting out the evidence of all witnesses on whom each party intends to rely shall be prepared and copies included in the documents in Para 4. This includes the evidence of the parties themselves and of any other witnesses whether or not the witnesses are going to come to court to give evidence.

A witness statement - there is one in post #2 of the thread dubliner10 linked for you. Amend to suit.

8.-

 

Thanks all...

Take note of the dates each part has to be submitted by and ensure you get in in in plenty of time.

[GaryH]

Must admit there are some parts of the bundle I'm confused about - for example the part of the bundle 'Statements' does it refer to witness statement or bank statements.

Bank statements.

[damjef]

Hello and thanks for the advice,

I had already prepared a POC as outlined in the templates library, Does it have to be copied into the N1 form? It is also more detailed than the original POC that I submitted through MCOL, does this matter?

With regards to the witness statement I have used the one outlined by dubliner10 (thanks!) and have removed paragraph 17 as it is not relevant to FD or my claim, I have also omitted part of paragraph 20 as this is directed at lloyds, was this the right thing to do?

Can anybody suggest any further information I may be able to incorporate into my statement for FD.

Also should I refer to the documents in the court bundle as Exhibits when refered to in the statement and number them suchlike?

ie; Exib2 1of2 pages etc or just leave it referencing the relevant paragraphs in the bundle.

thanks again....

PS; Did anybody see the lloyds case publicised in the paper? A Judge in Birmingham awarded in their favour! can you Adam & Eve it?

PPS; Does anyone have First Direct T&C from around 2000?

[dubliner10]

Hi again mate.... I may have some good news - thanks to livelylad I have T&Cs from 2003 from FD...

first direct legals - principal terms and conditions

 

and the magic line

 

5.1.3 You should not exceed any overdraft limit unless you get our agreement first....

 

I hope this will do the job because it's going into my court bundle right the hell now....

[damjef]

Nice one dubliner10,

It's printed!

Thanks very much...

[damjef]

Just preparing my witness statement, (Please read post 46)I have used the template available from the forum, I have worded paragraph 13 as...

 

13. I understand the definition of a breach of contract to be the failure of a party, without legal excuse, to perform an agreed obligation pursuant to any or all of the terms agreed within that contract. I have an overdraft with the defendant. This overdraft has a contractually agreed limit, which is a term of the bank account contract between myself and the Defendant. When I exceeded this contractually agreed overdraft limit, therefore breaching a term of the contract between myself and the Defendant, I was consequentially penalised for each such breach by way of a charge ranging from £30.00 to £37.50.

 

I have then removed paragraph 17 and reworded slightly the next paragraph...(restructured the numbering)

 

17. I believe the charges levied to my account to be disproportionate contractual penalties, arising from clear and demonstrable express and/or implied breaches of terms of the account contract between myself and the Defendant. I will vehemently refute the Defence's contention that they are legitimate contractual service charges.

 

I then reworded part of paragraph 20 (now 19)

 

20. The cost of First Directs charges have changed during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.

 

To anybody's knowledge is this going to be acceptable or should I make further changes in relation to their defence or T&C's?

Thanks...

[damjef]

Hello,

Can anyone please advise on the details from my previous post?

I'm just trying to finalise a few particulars for my bundle and want to be well prepared/rehearsed,

Thanks....