Application for summary disposal

[Bicester1]

Hi

 

Wondered if anyone on this site has tried making an application for summary disposal of a case under CPR rule 24.2 this allows one party to obtain judgment "when the other sides case has no real prospect of success." The advantage is that an application can be made as soon as an acknowledgment has been filed so speeds things up. The disadvantage is that it costs £50 and there is a risk of strike out!

 

Given that as yet no bank has had its day in court and the mounting evidence that the Judiciary are getting fed up with having their time wasted by the banks, I wondered if this is a route anyone had tried. Given the Lincoln judgment it seems to me the judges might welcome an application for summary disposal! it is also possible then to claim for costs if the application is heard before allocation and the judge decides that the behavior of one party in contesting an issue is unreasonable - Rule 44.3[5]

 

I have two claims just issued thro MCOl and think I might go for it.

 

Any advice anyone??

 

Bicester1

[aqua2]

In my personal experience (not a bank charges claim), the fact that the defendant had entered a defence argument relative to the claim (even where the evidence showed that defence to be seriously flawed) meant the judge threw out my summary application and I ended up paying costs of the summary hearing. Aaagh.

 

As the banks are saying that the charges are not penalties, but merely a fee for a service, then a judgement has to be made, hence no summary.

 

Regrettably, I think the fact that they have chosen not to defend at trial, doesnt mean that they have no defence, just that they havent yet fully pursued it, which is not grounds enough for summary.

 

Hey, if you are happy to lose the application fee and possibly pay costs to the defendant, it could be worth a try, but for me, I am researching how soon an application (similar to the AQ directions) could be made for abuse of process.

 

Here is my thinking.....

 

We know the banks are going through the court procedures then settleing just before trial and can show that the judge.

 

If on these settled cases their defence has been a standard wording as well, then their intentions are clear, just waste the courts time in delaying matters.

 

That would surely be an abuse of process?

 

I think we could make an application for striking out as an abuse of process citing....

 

CPR Part 3.4 (2) - The court may strike out a statement of case if it appears to the court –

(b) - that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

Obviously pretending to defend and then continually settleing at the last minute is an abuse and fails to achieve the overriding objective as follows...

 

 

CPR Part 1 - Overriding Objective

 

1.1 (2) b - Saving Expense

 

They clearly aren't going to defend at trial and are just delaying which creates all the expense and costs of the court procedures, that ordinarily in the small claims we cant claim back.

 

1.1 (2) d - ensuring that it is dealt with expeditiously and fairly; and

 

It wont be dealt with expeditiously, if the banks know they wont go to trial, but run through the whole process anyway.

 

 

1.1 (2) e - Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

If they are not actually going to bother defending at trial, then an appropriate share of the courts resources is nil. The court can take into account the many other cases on their lists, where a judgement is actually required.

1.3 - The parties are required to help the court to further the overriding objective.

 

They are clearly not helping further the overriding objective by abusing the system to delay paying claims.

 

and then, further on in part 1.4 (Courts duty to manage cases)....

 

1.4 (1) - The court must further the overriding objective by actively managing cases.

 

1.4 (2) - Active case management includes –

(h) - considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) - giving directions to ensure that the trial of a case proceeds quickly and efficiently

 

I guess if they are not going to defend at trial, the best way to actively manage it is to give some directions right at the start, similar to those requested in the AQ's.

 

 

I think you have more chance with an application for abuse of process, than for summary..

 

 

OK, im no expert, they are my thoughts, im just coming up with ideas, but I cant help thinking if the application were worded properly right at the start, a judge could make the order.

[Bicester1]

Aqua

 

Hi. Good reasoning will wait. Another question tho;

 

Bicester1 v Barclaycard

 

Claim filed on line and issued 26th February 2007. Deemed served 3rd March 2007. Acknowledged 1st March 2007 @1529hrs.

 

My question is does the 28 days for admission, or submission of defence, run from the date of acknowledgment or the date deemed served; do they have until 1529hrs today, or until the 31st?

 

If today then I shall apply for default judgment. I will ask the court to use its case management powers to refuse any request for set aside as their is no realistic prospect of them defending, in view of their past conduct. If they dispute this, then I will ask the court to order them to list all cases defended and all those settled out of court at the last minute, as per previous directions. I will contend that their tactics are delaying and time wasting amounting to an abuse of process and are "unreasonable."

 

That should give them something to think about!

 

Bicester1

[aqua2]

Sorry for the delay, hadn't picked up on your last post...

 

28 days from service of claim form.

 

Good Luck.

[Bicester1]

Hi

 

Thanks for the reply. In fact they got their defence in at the last minute. The standard Barclay's defence.

 

The case has been transfered to Oxford but with an order that there should be no allocation questionnaire!

 

I have re read your post above and think I am going to try and put something together over the weekend.

 

What grounds did the Judge give for dismissing your application? Have you tried for abuse of process yet?

 

Bicester1

[Guest bong]

Hi,

 

firstly wanted to say that MCOL ordering that AQs be dispensed with, unless the judge at the new court deems otherwise, appears to be standard now, or at least in a lot of recent cases that I have seen.

 

secondly in response to the topic of this thread, I wanted to link you to my own case where I applied for the defence to be struck out, HSBC came up with an amended defence and then, when I responded with the threat of asking the court to strike on the grounds of abuse of process, amongst other things, the bank settled with me 2 days before the application hearing.

 

my initial application is here and my letter to the court (although not short!) is here. I hope these might give you some ideas.

 

[Bicester1]

Bong you are a star just what I need!

 

Guess that shows how this site should work!

 

Will cut and paste over the weekend and get my application off.

 

Many thanks will let you know how I get on.

 

Bicester1

[Bicester1]

Bong,

 

Hi me again, are you aware of any other successful applications under CPR24?

 

Bicester1

[Guest bong]

no I don't know of any others - Glenn UK made an application to strike out Abbey's defence but withdrew it.