New strategy for Allocation Questionnaires

[Guest bong]

hi all, just to let you know my court (Edmonton - District Judge Cohen) ignored my draft order for directions and issued his standard order - ie bundle in 14 days before hearing.

[Delboy01]

Boooo!!!!!!!! to him

[Guest bong]

yeah BOOO!!! s'pose it gives me a taste of what to expect at the hearing.

[photoman]

Just had an idea, based upon Kazzaw's AQ ruling at Lincoln.

 

How about AQ proposed directions along these lines ?

Copying from the Lincoln court judges proposal, so other judges may be more amenable to it, (and and only slightly modifying it to allow for fact that it is your proposal rather than theirs).

 

Something along lines of:

 

"That the Court of its own motion consider striking the Defence out as an abuse of process on the basis that the Defendent has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled".

 

Any ideas/ suggestions anyone ?

[joneshousehold]

I am trying to prepare my response to the order which went pretty much along the lines of the draft on this thread. I am trying to understand the exact form the order requires me to submit documents etc. Is this effectively my version of the bundle or will that be required later as a separate submission.

 

I am OK with parts a, b & c. I just have a question about d. It says

Copies of decided cases and other legal materials to be relied upon.

The basic court bundle seems to include a summary of the decided cases and then goes on the print out the whole of the legislation. It seems a tremendous waste of paper to have to print all that out for the court who already have it. If the order is effectively for the bundle than I will go ahead and prepare it as such. If it is in fact a summary of the case, a taster of what is likely to be in the bundle then that will be in a slightly different format.

 

Can someone clarify this for me please?

[Falcom]

Yeah it does seem like a huge waste of paper but it is whats needed. Remember if Barcalys do respond to directions and it does go to court (which it probably / all most certainly wont) these are the documents you will need in court so you have to submit them.

 

Happy printing!

 

Peter

[photoman]

BUMP

 

Just had an idea, based upon Kazzaw's AQ ruling at Lincoln.

 

How about AQ proposed directions along these lines ?

Copying from the Lincoln court judges proposal, so other judges may be more amenable to it, (and and only slightly modifying it to allow for fact that it is your proposal rather than theirs).

 

Something along lines of:

 

"That the Court of its own motion consider striking the Defence out as an abuse of process on the basis that the Defendent has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled".

 

Any ideas/ suggestions anyone ?

[TANZARELLI]

I am trying to prepare my response to the order which went pretty much along the lines of the draft on this thread. I am trying to understand the exact form the order requires me to submit documents etc. Is this effectively my version of the bundle or will that be required later as a separate submission.

 

I am OK with parts a, b & c. I just have a question about d. It says

 

The basic court bundle seems to include a summary of the decided cases and then goes on the print out the whole of the legislation. It seems a tremendous waste of paper to have to print all that out for the court who already have it. If the order is effectively for the bundle than I will go ahead and prepare it as such. If it is in fact a summary of the case, a taster of what is likely to be in the bundle then that will be in a slightly different format.

 

Can someone clarify this for me please?

 

I'll pm you something in regards to this query.

 

Tanz

[joneshousehold]

Ah, I see now. I read your pm first! Silly me.

 

Thanks very much

[TANZARELLI]

Ah, I see now. I read your pm first! Silly me.

 

Thanks very much

 

Its been sent its a spreaddie list of cases. Should be of help/use in some way.

[joneshousehold]

Not received it yet Tanz and when I checked my pm again I noticed an unwelcome space! The address should end with .com - has your email been bounced back to you?

[TANZARELLI]

Not received it yet Tanz and when I checked my pm again I noticed an unwelcome space! The address should end with .com - has your email been bounced back to you?

 

Ill check

[TANZARELLI]

Just sent it again. If you dont recieve it after a couple of hours let me know. I removed to gap from address but if you dont get it pm me your email address again.

 

Tanz

[Robhughes]

Hi

 

I received my Court order last night after following this new strategy. The date set for the hearing is 28th Feb and on my Notice of Hearing it says that 10 MINUTES has been allowed for the duration of the hearing.It looks like the judge has chosen not to follow the draft directions as the Order states this under "The Following Directions Apply To this Claim":

 

Both parties shall give to each other standard disclosure by list, the lists to be served by 4pm on 14th Feb

 

Am i right in thinking that a) as the hearing is just over a month away, the 14 day deadline I suggested in the Draft order has in effect been taken over by the judge ordering standard disclosure within the same timeframe

and b) is the !) minute hearing allocation a cause for concern or quiet optimism?

 

I'm getting all my stuff together in plenty of time, hampered slightly by the fact that home PC has decided to get a fault connecting to the internet just as I need it most. I am most definitely not taking this as a bad sign

[natwesttookmymoney]

Hi, Rob

 

Sounds like good news to me. Standard disclosure by list will cut down on your printing output anyway - but i doubt it will get that far. The bank will now have to produce details of its costs and how it justifies them, which we know it almost certainly will not do. Not surprising the judge has allocated only 10 minutes - it's unlikely to need 10 seconds, as the bank will try to settle beforehand.

 

Don't count your chickens precisely yet but I think you could glance in the hen house and make a rough estimate of how many eggs you've got!!

 

(If that makes any sense)

 

Westy

[Robhughes]

Thanks Westy, all encouragement gratefully received. One question about which I'm still unsure however, is what to put in the Statement of Evidence to support my claim for contractual interest i.e. the "implied mutuality and reciprocity". Anyone got any ideas?

[TANZARELLI]

Hi rob i have something at home but at work at moment so if you still need it later i will post, but i'm sure someone will offer this before you need me to.

 

Tanz

[Robhughes]

much obliged Tanz, that'd be great - I'd rather get it 100 times than not at all. Won't be able to access it at home though due to aforementioned PC problems unless I have a geek-brainwave on the commuter train! Cheers

[Michael Browne]

Implied and/or imposed contractual term regarding interest

 

Defendant charges interest to the Claimant, via the Account, at its published “unarranged overdraft rate” of XX.X%. The Defendant claims that it is entitled to charge this rate, by virtue of the Terms & Conditions.

 

The unarranged overdraft rate is charged to the Claimant, via the Account, when the Claimant draws money from the Account whilst he has not obtained permission from the Defendant for exceeding any overdraft limit that he has. It is in effect, a rate that the Defendant charges the Claimant when she draws funds from the Defendant when he has no right for doing so.

 

Using, that reasoning and maintaining the principal of equity, mutuality and reciprocity between the parties, the Claimant contends that he is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law, had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

 

If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself, in similar circumstances. If no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

[TANZARELLI]

Nice one Michael.

[photoman]

Was just wondering a bit more about mutuality & reciprocity.

Done a bit of a web search, and a bit of reading, and gather, that this principle stems from the fact that our contracts are considered bilateral, as opposed to unilateral.

This is because both parties to the contract have agreed to certain actions in consideration of the others also doing certain actions. This is opposed to a simple unilateral contract, ie, a simple agreement by one party to do something, without any obligation upon the other.

This bilateral standing also makes them mutual.

 

Could someone more in the know, or with a bit of background in the law please confirm this , and point the rest of us in right direction for case examples?

[natwesttookmymoney]

I'll leave to Tanz, if that's OK, Rob.

 

W

[natwesttookmymoney]

And then, as i was closing down windows, I came across this, which is exactly what you want. Find it at (http://www.consumeractiongroup.co.uk/forum/natwest-bank/56352-josa-natwest-6-years.html)

 

9. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest originally charged by the defendant, being 29.50%.

d) In the alternative to 9.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s authorised borrowing rate, being 16.99%.

 

e) In the alternative to 9.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Details of interest calculated & rates used are attached to these Particulars of Claim (Appendix 1) as follows:

Column1 – Compound interest calculated daily at an annual rate of 29.50%

Column 2 – Compound interest calculated daily at an annual rate of 16.99%

Column 3 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate

of 8.00%

 

There y'are!

 

W

[GaryH]

Still early days, but a 66% success rate so far on the new strategy. Dissapointing a couple of judges have ignored it though. I've re-done the suggested section G 'other information' passage to hopefully be a little more pursuasive;

 

You'll need a seperate sheet.

 

You -v- Bank Plc

Claim No:*******

 

 

 

 

N149/N150 Allocation Questionnaire

 

 

 

 

Section G/H - other information

 

The Claimant respectfully suggests that special directions may be made as per the attached draft order.

 

If ordered, the Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

- The crux upon which this claim rests is the actual loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.

 

- In the event that the Defendant's charges were accepted as being a fee for a contractual service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is imcumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

Attach it to the AQ followed by the draft order. Then in the actual 'section G' box of the AQ, write this;

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the defendant on **/**/**.

[photoman]

Natwesttookmymoney (spelt it right this time, phew) !!

 

Presume your post "I'll leave it to Tanz" means he'll be more able to answer my post?