mariejader v Abbey **DEFENCE STRUCK OUT!**WON**

[mariejader]

Limitations Act - period starts from date of court claim issue so in that repect abbey are corrrect

 

Thank you for the confirmation I did think it was from start of claim:oops:

[mariejader]

I think this is what you are refering to?

 

32.--

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).

 

 

Can I put all that in my AQ?

[Mad Nick]

Hi, the AQ is just for Track allocation - it's not for pursuing the rights & wrongs of the claim or defence. So, no, don't put it in your AQ. For the AQ concentrate on whether to propose draft Directions to the Judge. Shout if you need the link. You deal with the s.32 problem in your Court bundle (after the Judge's Directions). Regards, Mad Nick

[mariejader]

thanks for the reply Mad Nick.

 

I am just confused now as to what to do about the charges I have included for Jan 2001 which is only £60.00 do I need to change my claim?

 

in your AQ include a bit about the s.32 limitations act (full thing in the statutes library) just to cover it.

 

This is what I was refering to in my post 49

[Mad Nick]

Yeah, I saw what Karne had said, but I don't think it's correct. Always willing to eat humble pie, though !! Leave your claim how it is, submit the AQ as normal, and include a counter to Abbey's s.32 defence in your Bundle. It'll then come down to the pre-Court negotiation with Abbey - the extent to which they try to separate out the >6yr charge(s) and the extent to which you resist and hold out for Court to consider the totality of your claim. See GlennUK's thread to see their tactics - admittedly for more >6yrs than you're talking about. Regards, Mad Nick

[mariejader]

thanks again

[mariejader]

I am just about to post the gogw rejection letter. (recorded)

 

Has anyone also e-mailed a copy to Ms Kirkman?

 

Still not received a copy of the AQ or anything from the courts

[Villafan]

Hiya, I e-mailed mine to bct@abbey.com (bank charges team?!!) because I couldn't remember Inga's surname to e-mail her directly!!! I've also posted it to them today by 1st class recorded delivery. Just hanging on to see if I get an e-mail back before I post my AQ. Your Court must be bogged down by the sounds of it as I received my AQ as soon as Abbey had filed their defence.

 

Nice to know I've got company...have been following your thread & charleyfarley's.

 

Villafan

[mariejader]

Nice to know I've got company...have been following your thread & charleyfarley's.

 

 

I think there are a few of us at the same stage, Charleyfarley was about three days behind me, I know he had his copy of defence and also the AQ, so now I guess I am going to have to copy both of you

 

 

 

Don't know if this is any help to you inga.kirkman@abbey.com

 

I will send her an e-mail have posted original today

 

Thanks Villafan

[Villafan]

Thanks for that, I couldn't for the life of me remember her surname last night! I've just re-sent it...not holding my breath though as haven't really given them much time to reply! It's their turn to receive 3 copies of the same letter now!!!

 

Villafan

[mariejader]

I not able to use my main computer where all my letters are stored so until later I am unable to e-mail Ms Kirkman, do let me know if you get a response.

 

Still no AQ in the post

[Nattt]

Hi MJ

Been reading your thread with interest, as i just recieved defence from shabby yesterday. Their 28 days would have run out next tuesday, in keeping with their last minute tactics. Forgive my ignorance what is gogw? Good luck with your claim!!!

[mariejader]

Gesture of good will, did you not get one with your defence?

[mariejader]

Just seen the topic below I am getting a little excited now but need some help please with:-

 

This court is local to me so will I be able to ask the judge to look at it as it's local?

 

 

If I can where and how do I ask this question?

 

 

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/73352-defense-struck-out-judge-2.html

 

 

Quote:

Originally Posted by Magic Pockets

Hi there. Sound slike an awsome result!

 

Could you post (or pm) the case number so we can reference your case in our hearing when Natwest post their defence (probably the same one!)

 

Cheers and well done again!

 

You cannot refer to other Small Claims cases in your Claim. They have no Authority

 

No, you may not refer to them per se, but you can ask that the Judge take into account any "local knowledge" he may have

 

(2) A judge can rely on his own local knowledge, as long as he does so properly and within reasonable limits, and as long as that knowledge is general in character and not liable to be varied by the specific characteristics of the particular case. Judges using such knowledge were to be regarded as fulfilling a constitutional function.

 

(3) Applying these principles to the present case, the judge was entitled to take Judicial Notice of his special or local knowledge of how the appellant had conducted itself in relation to undertakings given in similar cases.

[GaryH]

This court is local to me so will I be able to ask the judge to look at it as it's local?

For our purposes, geographical location is not important. The significant implication from Mullen -v- Hackney for us, is that a judge may take into account any knowledge of a parties previous notorious or well established conduct in simular cases, and apply that 'special' knowledge to the instant case when considering appropriate penalties.

 

This could be relevant to bank charge claims becouse it means the judge, if he chooses, has the authority to take punitive action against a bank on the grounds of his knowledge of their abusive conduct in the hundreds of other simular claims that have been brought against them.

 

I would'nt get to excited by all this though. Its only two courts that have made orders of this type and there are no real signs as yet that its going to become widespread, although I sincerely hope I'm wrong!

 

If its wording for the AQ your after, I handed in an AQ with this attached a few weeks ago now, which you can use if you want to;

–v- Lloyds TSB Bank Plc

In the Swindon County Court

Claim No:

 

 

 

N149 ALLOCATION QUESTIONNAIRE

 

 

 

 

Section G – Other Information

 

The Claimant respectfully requests that an order may be made as follows;

 

1. That the Defence is struck out as an abuse of process, pursuant to rule 3.4(2)(b) of the Civil Procedure Rules

 

On the basis that the Defendant has filed a template defence then subsequently settled each and every other claim of this nature. Please find attached a copy of an order made by Lincoln County court (attachment 1A) in at least 6 cases similar to my own, in which Lloyds TSB Bank Plc was also the Defendant. The court considered the authority of Mullen-v-Hackney London Borough Council (1997)2 A11ER 906 to be relevant, and I would respectfully request that the court gives consideration to its relevance in respect of my own claim. Please find a copy of this case attached (attachment 1B).

 

Since May 2006, the Claimant is aware of over 100 claims of this nature in which the Defendant has filed an acknowledgement of service, then a Defence, then an allocation questionnaire, then has breached the order for pre-hearing directions, then has finally settled shortly in advance of the hearing. A sample list of these claims, including their claim numbers, is attached (attachment 1C).

 

The Claimant believes that the Defendent is using court process and procedure as an intimidatory tool in order to dissuade its customers from pursuing legitimate complaints. It is clear from the pattern of hundreds of settled cases that the chance of the Defendent contesting this claim at trial is infinitesimal.

 

I believe this strategy to be abusive, and to the detriment and financial cost of both the publically funded court resource as well as myself, the Claimant. It is respectfully submitted that the Defendant will continue to conduct its litigation in this manner for as long as it is allowed to do so with impunity.

2. In the alternative, should the honourable court consider such order not to be appropriate in respect of this claim, and if the claim is to proceed to allocation, the Claimant respectfully suggests that special directions may be made as per the attached draft order (attachment 2A).

 

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 true cost incurred 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 UTCCR 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 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. 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. Additionally, they were ordered previously in a similar claim involving the same Defendant at Swindon County Court. Please find attached a copy of the order to which I refer (attachment 2B).

 

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 the claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.

Oh, and it was completely ignored by the way!

[mariejader]

Thanks so much Gary for taking the time to reply to my topic, I am hoping that my AQ will be in today's post so I can get it back to the courts and hopefully they will do what they have to do before the Easter bank holidays.

[GaryH]

You're welcome. Let me know what response you get, and if you need help locating any of the attachments then let me know. Also you'll have to amend to suit, and if there are any parts you don't like the look of, leave them out.

[mariejader]

Finally my AQ has arrived in today's post it needs to be completed by the 13th April.

 

 

and if you need help locating any of the attachments then let me know

 

Which attachments are you refering to Gary

 

As I have most of the AQ alread printed out I am going to try and do the final adjustments this am and take it back to court today, will this speed things up? and do Abbey have to compelte one also and send it back to the court in which case there is no point me rushing

[GaryH]

The attachments referred to in the section G above, such as the copy of the Lincoln order, Mullen v Hackney, etc.

 

No rush whatsoever. The file won't go before the judge again untill after the AQ return date, no matter whether you hand it in today or at the last available hour (although obviously I would'nt advise leaving it quite that late!). Yes, Abbey also have to file one, by the same date as you.

[mariejader]

Would you mind:D that would be good Gary I have searched and cannot find the link

[GaryH]

Here you go, heres the full text judgement of Mullen -v- Hackney;

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=294&d=1174744321

Lincoln abuse order;

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/32952-sean-lloyds-2.html#post512565

Settled claims;

http://www.consumeractiongroup.co.uk/forum/general/64871-spreadsheet-claims.html?highlight=settled

Draft order;

http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html#post482191

[mariejader]

thanks once again

[Villafan]

Hi, thought I'd just let you know Inga DIDN'T reply to my e-mail or letter so my AQ has now been filed at Court.

 

Villafan

[Villafan]

sorry duplicated post!!

[mariejader]

Hi, thought I'd just let you know Inga DIDN'T reply to my e-mail or letter so my AQ has now been filed at Court

 

What did you end up e-mailing her, just the rejection of GOGW?

 

Glad you got your AQ filed with the court I am going to do mine this week, it's practicallly done, just have to make a few amendments as in the above posts and then print it again.