New strategy for Allocation Questionnaires

[GaryH]

Pretty much, as good as for our purposes anyway. I would'nt have thought its necessary to ask for both.

[GaryH]

Well if it were my AQ, I'd attach the draft order to section F, with section H containing; a request for allocation to the small claims track, a time estimate, and a short paragraph/sentance such as "please find attached to section F a draft order containing proposed directions for the courts due consideration."

 

I don't think we'd need to actually explain why we're requesting them, but see what others think first.

[GaryH]

For c) Statement of evidance see post #55 on the next page of this thread.

[GaryH]

The statement of evidance is what you will need to submit WHEN/IF the judge decides to order the directions as proposed in the draft order.

[GaryH]

Right, from the start....

 

In section G (J if N150) of the AQ, you get the opportunity to add any other information you think may help the judge manage the claim, or make a request for specific orders that you want the judge to consider making.

 

Untill now, we have always requested an order of standard disclosure in this section, as per the AQ guide notes in the templates library.

 

A standard disclosure order, if it were ordered by the judge, would oblige the bank to fully substantiate exactly how its charges are made up and provide costings and documentary evidence, etc.

 

Trouble is, standard disclosure is not routinely availible in small claims cases - it is only usually ordered in the fast and multi-track. Judges do have the power to order it in small claims cases if they wish, but up untill now they have been very reluctant to do so. In fact I'm only aware of a handful of cases in which it has been ordered dispite it being requested in hundreds of AQ's.

 

So now, instead of requesting an order of standard disclosure in the AQ, there is the option of requesting the directions as per the draft order on the previous page.

 

If ordered, this would still oblige the bank to produce all the important documentation that a standard disclosure order would - but, in a form that is far more likely to be agreed by the judge.

 

These directions are already being routinely ordered by some courts in small claims track cases, and it is fairly likely that if proposed most judges would agree to them. There is certainly no obvious reason why they would'nt, as is the case with standard disclosure.

 

So, if you want to request the directions on the previous page rather than standard disclosure, you need to attach the draft order (as per BF's post #2) to the other info section of the AQ. If you have a N150, attach it to the 'proposed directions' section and see my post on the previous page (post #15) for a suggestion of what to put in 'other info'.

 

The AQ will then go off to be looked at by the judge to consider the AQ's and allocate your claim - set the date, issue directions, etc.

 

You will then in a couple of weeks receive your notice of allocation from the court, which will contain the track, the date and the directions the judge has ordered.

 

If the judge has aceeded to your request and ordered the directions as proposed, you will THEN have to submit the claimants documents as per a), b), c) and d) of the order.

 

It is VERY IMPORTANT that you then know exactly what you need to provide and submit it to the court and the other side within the date specified on the order.

 

If you don't submit it, or don't submit it on time, your claim will then be struck out!!!

 

Once you've filed and served your documents, the bank will then have to submit theirs within their specified timescale. Going on past evidance, it is highly unlikely (although not inconcevable) that the bank will comply. They will probably either settle before the deadline, or default and have their defence struck out.

 

As discussed previously on this thread, the other big advantage of these directions is that the defendants documents have to be submitted within 28 days of the order. Therefore, the claims timescale would be considerably shortened as opposed to the standard small claims track directions, which don't require document exchange to take place untill 14 days before the hearing - which obviously in some cases could be months!

 

Hope this helps clarfy it a bit!

[GaryH]

Yes.

[GaryH]

What do you think about when the statement of evidence and what not are sorted in a template format we include this in the library with step by steps ?

 

Yes, good idea Karne. Fine by me anyway.

[GaryH]

I know I would'nt have to send any info till asked by the judge but could I send it anyway along with AQ. Would this have any positive effect on the time scales or any other aspect.

 

No, definately don't do that. You should'nt pre-empt the judges order and besides, the AQ is only for the judge to decide on allocation. The issues regarding the legalities of the charges, etc are not relevant at that point.

[GaryH]

1. I'm claiming more than 5k therefore fast track AQ has been sent to me. Is there any advantage to using the directions template for the fastrack ? As I understand it the FT is subject to full disclosure anyway. Or is it good practice to spell it out as per the draft direction.

 

2. There is of course an option for small claims track (if both parties agree). Would it be wiser to to suggest small claims to the court and then attach the directions. Or better to just to stick with fast track ?

 

Well I'm no expert, but if it were me, I think I'd request allocation to the small claims track stating the reasons as outlined in the AQ guide notes, and requesting the directions as per the draft order.

 

You could then add in the other info that in the alternative, if the claim is allocated to the fast track then you request an order of standard disclosure.

 

I don't think that both parties would necessarily need to agree for the claim to be allocated to the small claims track. The judge has the power to allocate the claim as he see's fit.

[GaryH]

Vicmar,

 

So your at the AQ stage, yes?

 

Attach the draft order for directions - BF's post #2 - to the AQ.

 

Add this to the other info section (on a seperate sheet as there isn't room in the box) -

 

You -v- Bank Plc

Claim No:*******

 

 

 

N149/N150 Allocation Questionnaire

 

 

 

Section G/H - other information

 

If the court is in agreement, the Claimant respectfully requests that special directions may be given as per the attached draft order.

 

The Claimant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

- 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 incumbent upon it to disclose such information.

Additionally, the Claimant is aware that the proposed directions are now 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, Willesden 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.

Then send the AQ back to the court, and send a copy of it to the other side if you wish.

 

The judge will then look at your AQ's and allocate your claim and issue directions.

 

In a couple of weeks, you will then receive your allocation notice and directions.

 

IF the judge has ordered the directions you proposed, you will then need to provide a), b), c) and d)

 

a) = schedule

b) = account statements

c) = statement of evidance - see my post above

d) = cases and statutes - see the court bundle

 

All this has been covered previously on this thread, its probably a good idea to have a good read back through it. Particularly post #39

[GaryH]

sorry for being a pest

vicmar

 

Not at all. As you rightly say, its much better to make 100% sure you've got it right beforehand.

[GaryH]

If you wanted to request the directions as per the draft order, you should remove the bit that requests standard disclosure. See post #59 on the previous page for a suggestion of what to put in section G.

[GaryH]

Hi Anney,

 

Your claim is against Abbey is'nt it? I would think this new strategy will be especially useful against them.

 

You should get an N150. Are you going to try to get allocated to the small claims track? If so, I would suggest attaching the draft order (BF's post #2) to the AQ, and state in the 'proposed directions' section - "please see the attached draft order for directions".

 

For 'other information', use a seperate sheet and put;

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.

The claimant hereby gives notice that he wishes to be represented at the hearing by his mother, Ms *****

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 **/**/**.

 

Thats what I'd do if it were me anyway.

[GaryH]

No, tick small claims. You've nothing to lose by requesting it.

[GaryH]

Hi Tinkerbell2,

 

Which bank is it against?

 

If they have'nt mentioned anything about service charges, then use the second one - "pre-estimate"

 

EDIT: Thinking about it though, I think you should also perhaps cover it from the 'service charge' angle too. You could include, at the end or wherever you feel is appropriate, a section which states "In the event the defendant contends that its charges are ligitimate contractual services which are therefore are not required to be a pre-estimate of its loss, the defendant submits the following...."

 

Then you could add a couple of the important paragraphs regarding the 'service charge' arguement from the first statement.

[GaryH]

Anyway, my Query before I get too excited! Can I use this on my AQ N149 against Littlewoods catalogue??

 

I really can't think of any reason why not. The principles are exactly the same as if it were against a bank.

 

Yes, go for it.

[GaryH]

am I expected to actually reply to any of their points on my AQ

No. A reply to defence is'nt necessary in small claims track cases.

Also, should I send a copy of the completed AQ & draft order to Littlewoods also?

Its not essential, but it is a good idea too. It's considered courtious apparently, plus if nothing else, it shows you mean business!

should I send an updated schedule of charges to the court?

How do you mean updated? You can't add any new charges on which have been levied since the date of issue. No need to tot up the daily interest either, that will accrue automatically. By all means attach your schedule to the AQ (although again, this is'nt essential), but it should read exactly the same as the one you submitted when you filed your claim.

[GaryH]

Statement of evidance is on page 3 of this thread - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires-3.html#post450746

 

All the cases and statutes are contained within the court bundle - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

[GaryH]

Cobbetts ( NatWest solicitor ) have sent me copy of their defence and request for more info (which they submitted to court)and have asked for a reply by 12th Jan. - DO i just send them a copy of the Aq plus info i send the court? Or do i have to reply seperately?:-?

Natwest's CPR part 18 requests and the action to be taken in response is discussed in a sticky thread at the top of the Natwest forum. This thread is for issues relating to the new draft order for directions which can be attached to the AQ. I haven't any specific knowledge of Natwest's stratagy, so I don't really feel I can answer your question.

One thing i know i've done wrong is the very first schedule of charges i sent Nat West included a charge that was an error. I deleted it when i sent the schedule again with my LBA but i wonder if this will go against me at any stage? :-?

No, this won't be a problem at all. So long as it was right when you filed your claim it'll be fine.

Anyway some people seem to have had offers from Cobbetts at this stage before sending off the Aq but nothing has arrived for me! Cobbetts have asked for a letter of aknoweldgement of receipt of their defence and request for further info. Does anyone have a good reply that will maybe show them i mean business and encourage an offer at this stage?

Again, this is a question that would be best asked in the Natwest forum. Have you got a thread there that you can ask it on?

 

Sorry I can't be more help. Good luck with your claim:)

[GaryH]

Heres a suggestion for other info (use 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 **/**/**.

It really would be a good idea for you to start a thread of your own in the NatWest forum - you'll then create your own timeline which people can follow and offer you help at every stage. Any questions you have can then be asked there.

[GaryH]

If you want to follow the conventional route, see this - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

If you're considering using the new stratagy, read the explaination on post #39 - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires-2.html#post448100.

 

If you want to go ahead, print off Bankfodder's draft order from post #2 - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html#post441556 and attach it to your AQ.

 

Then see post #93 (a couple of posts above) for what to put in section G.

 

Good luck with your claim:)

[GaryH]

Its only recently come into being, but its most definately preferable yes. The chances of a judge ordering the directions as per the draft order are far higher than of ordering standard disclosure, as per the conventional method. Also, it could potentially reduce the timescale of a claim by months.

 

The most important thing is, that if the judge does order the directions as proposed, you know exactly what documents you need to provide - and that you submit them on time. Everything you need to know in this regard is previously discussed on this thread.

 

As long as you understand what your part of the bargin is should the judge order the directions, then yes, go for it.

[GaryH]

You need to respond to the CPR p.18 request - sharpish.

 

Why are you asking on this thread though? You'll get far more help in the NatWest forum. Off the top of my head, I think there was a part 18 response posted in Orfosters thread.

[GaryH]

I'm a way off the point were I will be dealing with n AQ, however I do wish to be prepared so a couple of questions.

My claim is with contractual interest. According to the CPR rules interest is NOT included in allocation considerations.........BUT does this only refer to statutory or to contractual also? Without contractual my claim would be below the £5k small claims ceiling, but with it, it is above.

There's been some debate about this, but CPR 26.8 (2) (b) says that any claim for interest is NOT relevant to track allocation. PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE Having said that, I think the court does have the power to allocate as it see's fit, and in your case there are complicating factors - such as the challange of the SOLA, as well as the size of the interest claim - which would surely almost certainly mean it would be multi-tracked?

Secondly, and more pertinantly to this thread. If you think your claim is very likeley to be allocated to Fast or Multi anyhow, is it worth still including the draft directions requesting disclosure on this thread?

If the claim is going to be allocated to a higher track, then disclosure would be ordered to be complied with at a later date closer to the hearing date anyhow.

In short what I am asking is, would this still speed matters up, rather than giving them the 28 days before trial date (which could be allocated months away)to disclose

Well it would make them show their hand quicker. As I understand it, standard disclosure requires lists to be submitted 14 days before trial, although I'm not sure if this could vary in some cases, or perhaps by request.

[GaryH]

do I send to Littlewoods or their solicitor???

Their solicitor.