Barry v Swift (Court date 29/01/07) *Lost*

[Barry Paul]

Hi paulpb123, I'm still waiting on advice regarding an appeal, but will keep everyone informed. Thanks for the support.

 

Barry

[zootscoot]

Hi Barry,

 

There may be grounds for an appeal because of the last minute track re-allocation coupled with the fact that you had no directions from the court regarding the fast track hearing.

 

Disclosure orders are not generally allowed under small claims and therefore you were denied the opportunity to fully prepare your case for a fast track hearing.

 

Did the court mention your right to appeal?

[Barry Paul]

Hi Zoot

 

The judge did not mention the word appeal at all.

 

Barry

[kennyh]

It seems trite to offer condolences Barry, but at present there's not a lot else to do. I REALLY hope you have the opportunity to appeal and that Zoot's thoughts offer good grounds.

So far as the " official application for a disclosure order" is concerned does anyone know whether this is to be submitted at the time of the N1 (for Fast Track). I've already submitted this so can we submit a request as a supplementary or will it cost 'an arm....' to do so?

[biffa1965]

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

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

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

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

If the Defendant fails to comply with this order, the Defence will be struck out without further order

CAN ANYONE CONFIRM THAT THIS IS THE ORDER WE RE TALKING ABOUT HERE ?

[biffa1965]

This Is What I Enclosed In My Aq And The Judge Granted It, Infact The Defence Has Failed To Adhere To This And Ive Applied To Have Their Defence Struck Out Today..biffa

[kennyh]

Many thanks good folk!

[dolly]

Barry - am gutted for you. Can't offer advice but am shocked at their tactics. Have you seen the thread about emailing the BBC - a few people are doing it, might be worth joining in? They certainly used intimidation tactics with you.

[Charbydis]

Firstly, this reminds me of a case that was lost against Citi Cards (I think) because the judge allowed confidential evidence that he decided indicated the charges were fair. I believe it was won on appeal. Secondly, was this report they referred to included in their court bundle? If not they can't rely on it surely?

[mullingarman]

Sorry to hear you have had this setback, they really threw everything at you. Doesn't seem to me like the Court put you on an equal footing as Swift. The Court Procedure Rules don't seem to be operating very well.

[mrsfoot]

Hi Barry

 

First of all thanks for the call, was sorry to hear the bad news howevr i have been thinking about what we discussed.

 

I have to agree with Charbydis with the following. I think you can appeal on the grounds that they used a document that was not declared, therefore they cannot use it as evidence. Im understanding that they did not declare it otherwise you would of been able to see the figures.

However like we discussed, you really have to be the one to make the decison on whether to appeal or not.

[Barry Paul]

Hi all,

 

Thanks again for all the support. As far as an appeal goes I'm still looking at my options.

 

Please don't let my setback put anyone off starting or finishing their claim process against the banks.

 

I have already had 3 successess so far & I have another 4 claims with court dates. As I said before the lesson to learn is to make sure you send a CPR Part 18 Request to the bank asking them to show their actual costs & when they refuse follow that up with a application to the court for an order demanding they do so. Stating they have refused you Part 18 request & the information you requested is vital to your claim.

 

Then as the judge in my case said, even if that application had not been actioned at the time it was made. He would have ordered it then & I would not have lost.

 

I'm sure the banks are reading this thread & others like it & think they have us running scared. But don't be scared we are in the right & although we may lose the odd battle here & there we will win the war. After my defeat, I am not scared. If anything I am more confident of my position, as I know I had Swift squirming in the court that day & they know that had I known the law better, I would of won.

 

Full details of CPR Part 18 can be found by following the link that follows

 

CPR - Parts and Practice Directions

 

Good Luck & don't stop now.

 

Barry

[feelingfine]

Hello Barry-paul

really sorry to hear about the case mate!

But you and jamorgan are (or should be) an inspiration to EVERYONE that uses this site.

I am way behind you re:swift, but after reading your post it , i must admit ,did make me stop and think?

But im really pleased that you have had the chance to weigh your options up and decide to carry on..Good Luck to you mate!!!

 

There are many people in here with much better legal knowledge than i have (well in fact ive none) but im sure someone will at somepoint find a loophole for EVERYONE and then it wont matter how many Barristers they bring along, if a charge is wrong, then its wrong, its as simple as that, but like i say ive no legal knowledge.

 

Once again BP i wish you all the best in your fight!!!!

[mattfromnotts]

Hi Barry

 

Does the Part 18 CPR request apply to claims in the Small Claims Court as well, or is it only applicable to County Court?

 

Mattfromnotts

[rhianweir]

hi barry,

 

well done for keeping ur chin up. iam not sure what to do with my claim iam claim 3700 from woolwich (erc) not sure if to continue or quit. your advice would be great..

[ANNALH]

Hi all,

 

Thanks again for all the support. As far as an appeal goes I'm still looking at my options.

 

Please don't let my setback put anyone off starting or finishing their claim process against the banks.

 

I have already had 3 successess so far & I have another 4 claims with court dates. As I said before the lesson to learn is to make sure you send a CPR Part 18 Request to the bank asking them to show their actual costs & when they refuse follow that up with a application to the court for an order demanding they do so. Stating they have refused you Part 18 request & the information you requested is vital to your claim.

 

Then as the judge in my case said, even if that application had not been actioned at the time it was made. He would have ordered it then & I would not have lost.

 

I'm sure the banks are reading this thread & others like it & think they have us running scared. But don't be scared we are in the right & although we may lose the odd battle here & there we will win the war. After my defeat, I am not scared. If anything I am more confident of my position, as I know I had Swift squirming in the court that day & they know that had I known the law better, I would of won.

 

Full details of CPR Part 18 can be found by following the link that follows

 

CPR - Parts and Practice Directions

 

Good Luck & don't stop now.

 

Barry

 

Barry,

 

I didnt do a CRP Part 18 request, I just sent a letter to the court requesting ann order for disclosure. I sent a copy to the mortgage co too so they know I am serious. Is this ok or do i need to do a CPR Part 18 now?

 

Many thanks

[mrsfoot]

Hi re part 18 request it is only applicable in fast or multi.

 

In my opinion Barry Paul has a good chance of appeal on the case that Swift relied on evidence not disclosed

[Glenn UK]

CPR 18 requests can be used prior to allocation, this means that it doesn't matter what the claim value is.

 

TO be valid a CPR 18 request has to be specifically for that and headed 'CPR 18 Request for further information and clarification'. Edit if i get a minute ill check the title, if some else has the time to check it out then post below.

 

It should only contain matters related to the CPR 18 request and give a time frame for compliance, usually 14 or 28 days is normal i understand.

[mrsfoot]

I stand corrected. It was my honest opinion that it was only accepted once the track had been decided and it was placed on fast / multi.

 

Thanks Glen for the update

[Glenn UK]

Mrs foot i could be wrong but like you i honestly believe it i used it in my claim against b/card prior to allocation, whenthey paid me out they alos had to pay all my costs since it was pre allocation.

 

HTH

 

Glenn

[zootscoot]

I know Natwest used to send them out as standard as standard practise with allocation questionaire. When people objected to them and refused to fill themin because they were small claims. They argued that the claim had not been allocated and therefore the claimants were obliged to comply. The claimants then started doing CPR requests themselves which kind of speeded the process up somewhat!

[kennyh]

I've issued N1 and Nationwide have notified 'intention' to defend (their deadline to do so is today). Assuming (still hate the word) that they do defend then I can submit a CPR18 at the time of the AQ; or should I do it earlier?

[Glenn UK]

Kenny

 

if you are going to submit one do it now

(edit make sure they have submitted their defence, this is what you are asking for further details or clarification of) there is no point in waiting. i don't know if Zootscoot or anyone else has prepared one but if you check out my threads http://www.consumeractiongroup.co.uk/forum/abbey-bank/20095-glenn-abbey.html#post157009 and http://www.consumeractiongroup.co.uk/forum/barclaycard/22292-glenn-barclaycard.htmlyou will find the ones i prepared.

 

The form has to be broadly similar to that i used and cannot include other matters.

 

HTH

 

Glenn

[Barry Paul]

Hi all, following my own advice & learning the lesson. I've now sent my requests under CPR Part 18 for my remaining claims.

For those who are interested I have sent the following letter to accompany the official request as stated below.

Feel free to copy my versions remembering to change the red text for your own details.

 

__________________________________________________________________________________

My Name

My Address

My Town

My County

My Postcode

 

 

Legal Department

Took My Money Bank

Bank Address

Bank Town

Bank Postcode

 

1st February 2007

 

REQUEST MADE UNDER CIVIL PROCEDURE RULES PART 18

 

Ref. Claim No ********

 

Dear Sir,

 

Please find enclosed a request made under CPR Part 18 for further information.

 

I believe the 14 days for a compliance period specified is sufficient under law.

 

However, if you fail to respond, or fail to provide the requested information, within the 14 days. I will then make an application to the court requesting an order be made under Part 18 and stating that you have failed to comply with my request.

 

I look forward to your reply.

 

Yours faithfully,

 

 

 

 

 

 

 

Me

_________________________________________________________________________________

 

_________________________________________________________________________________

In the Liverpool Civil & Family Court

Claim number: ********

 

 

Between

 

 

xxxxxxxxxxxx - Claimant

 

 

 

and

 

 

 

Took My Money Bank – Defendant

 

 

 

 

REQUEST FOR FURTHER INFORMATION MADE UNDER CPR PART 18

 

 

Note - IMPORTANT

 

1. This request is served pursuit to CPR Part 18

 

 

The Request

On Thursday 1st February 2007

1. The Claimant requests that the Defendant deliver to the Claimant a full and detailed list of all charges applied to the Claimant’s account in relation to the Claimants contractual breaches, whilst the account was open. Including full explanations for the charges.
   
2. The Claimant requests that the Defendant deliver to the Claimant a full and detailed list of all manual intervention by any member of the Defendant’s staff, or any other person and any other evidence of that manual intervention.
   
3. The Claimant requests that the Defendant deliver to the Claimant a full and detailed breakdown of the Defendant’s actual costs incurred by the contractual breaches of the Claimant. Including full explanations for the costs.
   
4. The Claimant requires the requested information to be delivered to the Claimant within 14 days from the date of this request.

____________________________________________________________________________________

I hope this helps those who might need it.

[Glenn UK]

Barry

 

you seem to be having a bad font day there my friend!!