Bakadan vs Barclays! here I go!

[bakadan]

Hey guys, its been a while.

 

thought I'd update you on where things stand for me and ask for some more advice

 

Have filed AQ and put in a n application to strike out. I have a hearing re STRIKE OUT on 2nd October.

 

I am a bit concerned that all that will happen is that the barclays team will hide behind the OFT case in court.

 

Any suggestions as to what I should bring and what my argument structure should be?

 

 

Again this is regarding the STRIKE OUT of case as an abuse of courts resources.

[slick132]

Hi Bakadan,

 

Is the Hearing on 2/10 maybe a Direction or Preliminary Hearing.

 

The Court hasn't yet issued Directions has it, so there's no question of any Strike Out at this stage.

 

What does the Hearing Notice re 2/10 say.

 

Slick

[GaryH]

I take it you filed a formal application on an N244?

 

If so it'll be an application hearing. You'll have to state your case as to why the defence is an abuse of process and satisfy the judge that it can and should be struck out.

 

You'll have to present evidence of abuse of process in your own case if possible - I.e. Did they respond to your pre-lit correspondance? have they been uncommunicative? did they request a stay for settlement and then ignore you?.. etc, etc... anything you can think of which presents them as unreasonable or uncooperative. Obviously the more you can substantiate it with evidence or documentation the higher your chances of success.

 

The main point to make though is that they have defended, then filed an AQ, then waited for the claimant to comply with directions, then breached theirs, then finally settled at the last minute in hundreds of claims of identical nature. Evidence this with the spreadsheet of settled claims from the litigation section. Take Mullen-v-Hackney London Borough Council [1997] 2 A11ER 906 and explain to the judge why you think it is relevant.

 

Also gather as many "abuse" strike out orders as you can to show the judge. PM me your e-mail and I'll send you some.

 

Here's a few relevant parts of a judgment set aside objection which you can use. Amend it to suit!

 

Defendant's Conduct in the Present Case

xxxxxxxxxx...................................

Defendant’s Conduct in Other Cases

21. At least 300 claims have been brought against the defendant this year involving the same or similar issues. This is evidenced by a sample list of settled claims, which is attached. Despite flatly denying its customers complaint in the preliminary stages then subsequently always indicating an intention to defend, the defendant has compromised each and every such claim in advance of the hearing, usually following unnecessary and protracted litigation. The defendant purports to settle these claims without liability for ‘costs’ or ‘commercial’ reasons, yet on many occasions previously it has gone to the expense of setting aside default judgments only to settle the claim shortly after. The defendant continues to spuriously defend claims only to subsequently settle them, flagrantly breaching multiple court orders and provisions of the CPR as it does so.

22. It is submitted that the defendant’s conduct is notorious and that the court can and should consider its knowledge of the defendant’s conduct in other cases when considering the application in the present case. It is settled that not only is the court entitled to take notice of such matters, but also that it is fulfilling a constitutional function by doing so. This position was stated by Otton LJ in the case of Mullen v Hackney LBC [1997] 1 WLR 1103;

“The central question is whether the court, when considering the penalty, was entitled to take into consideration other previous breaches in other cases? In order to answer that question it is necessary to look at the nature and scope of judicial notice. It is well established that courts may take judicial notice of various matters when they are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary….. Moreover, a judge may rely on his own local knowledge where he does so "properly and within reasonable limits". This judicial function appears to be acceptable where "the type of knowledge is of a quite general character and is not liable to be varied by specific individual characteristics of the individual case". This test allows a judge to use what might be called "special (or local) general knowledge". County courts fall within the scope of the rule relating to courts which have been held to be local courts, and thus courts whose members are not merely permitted to use their local knowledge, but who are regarded as fulfilling a constitutional function if they do so.”

23. Furthermore, many County Courts now consider the litigation tactics employed by banks in these cases as an abuse of court process and are regularly striking out their defences as a result. A number of examples by way of strike out orders are attached to this statement [WJG12].

Overriding Objectives

29. The claimant respectfully submits that to accede to the defendant’s application to set aside this judgment would not accord with the overriding objectives. To allow the defendant to set aside the judgment in a case such as the present after its wilful refusal to comply with court orders and the litigation process in general is not just, nor is it expeditious, nor is it proportionate to the amount of money involved. To accede to the defendants application would be a waste of expense and would allow a disproportionate share of resources to be given to the case, resources which would be more appropriately allotted elsewhere.

30. Referring to the courts powers to dispose of a claim or defence if it considers that it has no realistic prospect of success or there is no other compelling reason why it should go to trial, in the case of Swain v Hillman [2001] 1 All ER 91 Lord Woolf stated;

“It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice.”

31. The Claimant therefore asserts that upon the facts and circumstances of this case, as set out in the proceeding paragraphs, it is just and appropriate for the court to give effect to the overriding objectives and dismiss the defendant’s application.

This will probably help as well -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/65921-application-costs.html#post563326

 

You'll also have to deal with the issue of a stay so be prepared for that to be argued for.