New strategy v Abbey - CPR Part 18 Requests

[GaryH]

PLEASE NOTE! ABBEY HAVE NOW STARTED TO ISSUE A NEW DEFENCE, WHICH LOOKS LIKE THIS. IF YOU HAVE RECEIVED THE NEW DEFENCE, DO NOT SEND THE PART 18 BELOW. IT IS NOT VALID.

 

(Please see this thread for a part 18 relevant to the new defence)

 

I WILL REMOVE THIS THREAD WHEN ALL THE OLD DEFENCES ARE THROUGH THE SYSTEM

__________________________________________________________

 

The following is preliminary request for information and clarification under Part 18 of the Civil Procedure Rules.

 

Ideal time to send this send this to Abbey is upon receipt of the defence - BUT NEVER BEFORE!

 

It is valid no matter what the value of your claim - so long as you make the request before allocation. The part 18 provisions are not available in small claims cases, so if your claim is already allocated to the small claims track then don't use it.

 

This will be a very effective weapon against Abbey but don't just send it without understanding what it is. Have a read of CPR part 18 -

 

PART 18 - FURTHER INFORMATION

 

And more importantly the practice directive -

 

PRACTICE DIRECTION – FURTHER INFORMATION - This Practice Direction supplements CPR Part 18

 

Also have a read of posts #2 and #3 below.

 

Send to Abbey by recorded delivery, giving them 2 weeks to respond.

 

CLAIM NUMBER: *******

 

In the XXXXXXX COUNTY COURT

 

Between:

 

 

[YOU]

Claimant

 

 

 

-And-

 

 

 

 

ABBEY PLC

Defendant

 

 

_______________________

 

REQUEST FOR INFORMATION AND

 

CLARIFICATION UNDER CPR PART 18

____________________________

 

 

DATE OF SERVICE: [date sent]

 

This request for information under CPR part 18 is served notwithstanding anticipated future track allocation. I believe that the court would consider this request as appropriate in the context of clarifying matters to which your defence directly refers. In the event you ignore or do not comply fully with this request a formal application may be submitted to the court for an order under part 18.

 

1. Please provide copies of the terms and conditions governing the account in question and which are referred to in Paragraph 3, 4 and 5 of the defence. The terms and conditions required are those that formed the contract between the Claimant and Defendant covering the entire period from when contract was first entered into until the present day, including amendments or alterations where appropriate.

 

2. In relation to each and every breach by the Claimant which resulted in a charge being levied as confirmed by the Defendant in its Defence, please provide full details (with all relevant supporting documentation) of any letters, telephone calls, or incidents of manual intervention into the account in respect of each and every charge claimed by the Claimant in the Particulars of Claim.

 

3. If the Defendant employs or operates any system, either automated or manually operated or otherwise, which is used to assess, audit, track or refine the costs or "administrative expenses" of dealing with current accounts incidents - in particular any delinquency incidents, such as refusal or otherwise of direct debits, referral of cheques for any reason, refusing or permitting any formally agreed overdraft limit to be exceeded or any other delinquency event, such a systems existence is required to be confirmed and named and full details given.

 

4. In respect of the Defendants reference to the "administrative expenses" to which the charges are averred to be proportionate, as referred to in paragraph 9 of its defence, please provide full details (with all relevant supporting documentation) of the justifiably objective principles upon which all such costs or expenses are calculated and result in the specific level of each charge levied by the bank in respect of each of the breaches which resulted in the charges now claimed by the Claimant.

 

 

A full response to each and every point of this request should be served within 14 days, by [date].

 

Please note that the response must be verified by a statement of truth.

If they don't reply or don't reply satisfactarily then you can seek an order from the court to force them to comply. Please discuss this below first.

 

The Part 18 request is based upon this one by rbrears -

 

http://www.consumeractiongroup.co.uk/forum/general/15172-reply-stock-defence-18-a.html#post116506

 

Any questions ask below.

[noobrider]

Question Gary. Is there any reason why we can't use a CPR Part 18 as part of a standard play toward the banks based on their standard defence? It would seem a good way to force the banks hand before allocation. In particular, my case has dispensed with the AQ and I am waiting a directions hearing. Could I use a CPR Part 18 to request the same information based on the fact that this would enable me to prepare for the directions hearing on the basis that this information may have a bearing on the directions I may want the judge to consider?

 

Apologies to Spicester for hijacking this extremely informative thread.

[GaryH]

Yes, theoretically you could, there are caveats though.

 

Firstly, part 18 does not apply to small claims under normal circumstances. Abbey would almost certainly not respond to it on that basis, that the claim is anticipated to be allocated to the small claims track. You could then apply to the court for an order - the court have the power to order a part 18 even in small claims if the request is deemed "appropriate" - although you've got to ask yourself whether its worth the hassle. Under normal circumstances I would perhaps say not.

 

However, even in a claim which is likely to be allocated to the SCT, a part 18 request before allocation is valid as far as I'm aware. So no matter what the claims value sending a part 18 upon receipt of the defence is fine.

 

I suggested a part 18 for Spicester becouse only when Abbey supply the information requested would he be able to properly and accurately comply with the judges order. In view of this hopefully the judge will consider the request as "appropriate". I see no reason why he would'nt.

 

The second thing is that IMHO part 18 should not be confused with disclosure. The provisions of part 18 are intended to be used to clarify matters which are referred to in a statement of case and "reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet". In other words, IMHO you could'nt expect to just stick a part 18 heading on a full disclosure order and expect the court to order it.

 

However in terms of Abbey and their defence I think a well constructed part 18 is perfectly valid - they refer to the charges in para 9 as;

 

"proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.”

 

Therefore, personally I think its quite reasonable to request information and clarification as to the exact nature of the "administrative expenses", and how those expenses are incurred - I.e manually, by a specific system or otherwise. Its a request for clarification of a matter directly referred to in the defence, and is necessary to enable you to prepare your case.

 

I'll start a new thread on this I think and move these last 2 posts there if you don't mind Noob?

[noobrider]

Good idea Gary, and I think we may see some more varients of Spicesters order as the courts try to move through the system. I agree that Spicesters order actually required a Part 18 request. I do feel that in my case there may also be a good reason to use Part 18 particularly as the claim is for £9k and would assist with both the directions and possible allocation as the AQ was dispensed with and due to the value could potentially go fast track. The Abbeys defence wording does lend itself to further clarification.

 

It is my understanding that the defendant has to provide a very good reason for not complying with your initial request, after which you can then apply to the court for an order. I think I might have a go at using this to lever Abbey a bit further and gee them into some action seeing as they have managed to delay their case by 3 months already......any thoughts?

[GaryH]

Yes, if your claim is over the SCT threshold anyway then they've no excuse whatsoever not to comply. Its 100% valid. Go for it!

It is my understanding that the defendant has to provide a very good reason for not complying with your initial request, after which you can then apply to the court for an order

Correct. You specify a "reasonable" time for them to respond. I've suggested 14 days which is more than adequate, you can cut it if you wish its up to you. If they don't respond they have to state why not. Then at the end of the 14 days you can apply to the court for it to be made into an order.

 

If it got to that point, the response to clause c) of spicesters statement could form the majority of your part C for the application notice.

[noobrider]

excellent I will file a request tomorrow and let you know how I get on. I'll use my post to provide the updates

 

Once again thanks for your help Gary.

[Guest amethystdragon]

I'm currently in this position at the moment with both my Abbey claims - Having read this and understood the arguments - I'm happy to trial my claims against this - I'll get the requests written and sent off tonight

 

My claim thread: http://www.consumeractiongroup.co.uk/forum/abbey-bank/37391-amethystdragon-abbey.html

[Guest amethystdragon]

I've written to Abbey as well with this for the larger of my 2 claims - As it is now well over £6K and rising daily - It is possible it will be allocated to Fast Track and therefore clarification of the defence is acceptable especially as I initiated communication with Inga this week trying to reach a result and she was having none of it - It has been sent to BCT by e-mail and the hard copies are going off today

[GaryH]

Excellent. Let us know what response you get.

[noobrider]

small point to note. I initially sent my CPR part 18 to Inga and was fairly quickly advised to send it to the address for service, which is of course BCT. I await the results....

[Celicaman]

Hi Gary. I have a claim with Northern Rock, Re a few mortgage arrears, (only worth £300 including interest) i have filed MCOL and they defended. They have now asked for part 18 cpr.

My thread is http://www.consumeractiongroup.co.uk/forum/mortgage-companies/96972-celicaman-northern-rock.html?highlight=celicaman+vs+northern+rock

 

I have checked & double checked the letter & there is nothing to say that a copy has been sent to the court, nor anything to say the court has asked for it.

Any help appreciated

 

CM

[cosworthcarter]

Hello gary,

 

I've received abbeys defence, and northampton court have transferred it to southampton cc, and have dispensed of the aq.

 

My claim is for £4800 (incl court fee) and has not been allocated any track.

 

I used a letter sent by icy as a template for a letter (by recorded post & email) to abbey to try and come to a settlement but i've had no response within the timescale i set out. Should i now try CPR Part 18 request.

 

I've got one all ready to send, but wondered firstly if i need to send a copy to the court, and secondly if they don't respond can anything be done to make them?

 

Thank you

[GaryH]

Yes, you can send a part 18. By all means copy it to the court but your not obliged to - the preliminary request is between you and the defendant.

 

If they don't comply you can apply to the court for an order enforcing their compliance - if it gets to that stage then come back here and I'll help you with the application.

[FoxyFiona]

Hi Gary,

 

Their two weeks is up and nothing from Inga

 

Fiona

[GaryH]

Give her a quick e-mail reminding her of the deadline and asking if they intend to comply. Tell her if she doesn't respond within a week you'll seek a court order under p18.

 

If no response I'll help you with the application.

[FoxyFiona]

Hi Gary, Thanks have just sent her this now:

 

Please be aware that I issued you with a CPR Part 18 request on the 5th June and that the 2 weeks given has now expired. I would be grateful if you could inform me whether you intend to comply with this request. Should I not hear from you by the 26 June 2007 I will seek a court order under p18.

 

Kind Regards

 

FF

[noobrider]

I sent a reminder on Monday advising that they only had 7days left with which to comply. Looks like they are really really abusing the court system with these part 18 refusals.

[FoxyFiona]

Hi can I ask how this or will this affect my claim in any way. Present situation of this is stay over and have informed the court (copy to Abbey) that settlement hasnt been achhieved. Awaiting court date.

 

Thanks FFx

[noobrider]

OK I need a bit of assistance from someone. How do you go about asking for a CPR part 18 to be made into a court order? Abbey have had 2 weeks and despite numerous reminders have failed to comply with my initial request. I'm confident that a court order will bring about a quick finish to the saga

[GaryH]

Use form N244 - the pdf is linked from the templates library. Request without a hearing.

 

In part C concisely state;

 

1. The reason for your request. This would include the fact that you need the information to properly prepare your case, to clarify para 5 of the defence, anything else you can think of to support your application, etc...

 

2. That you made the preliminary request to the Defendant on [date], and sent a reminder letter on [date]

 

3. That the Defendant has failed to respond - at all.

 

4. That accordingly you are applying for the request as attached to be made into an order in accordance with CPR PD18 5, and wish that the application is dealt with without a hearing.

 

Then attach the preliminary request, re-titled as a draft order, and get rid of the 'date served' bit as well as the preliminary paragraph and the bottom bit in ittalics.

 

Post it back here if you like and I'll have a look.

[Celicaman]

Just a thought here as not had chance to check noobriders thread, what if claim is small claims, do they have to comply with his request. they may be ignoring it for that reason.

CM

[miamia51]

can someone advise me please i asked for £870 to abbey national was offered £316 i refused sent in leter to say i will take them to small claims cort 2 days later they put £170 into my account without my permission i did not sign nothing and took the rest as pending bank charges what can i do?

[FoxyFiona]

Just a thought here as not had chance to check noobriders thread, what if claim is small claims, do they have to comply with his request. they may be ignoring it for that reason.

CM

 

 

Hi mine has been allocated to fast track and they have had two weeks then another week in a reminder.

 

Noobrider, I think if memory serves me correct, his claim is £7000 so again will be fast track.

 

Suspect they are just hoping we go away.

 

FFx

[FoxyFiona]

can someone advise me please i asked for £870 to abbey national was offered £316 i refused sent in leter to say i will take them to small claims cort 2 days later they put £170 into my account without my permission i did not sign nothing and took the rest as pending bank charges what can i do?

 

 

Hi you are on the wrong thread for this matter, but just carry on and take what they have paid you already as a part payment and deduct it off your total claim, it will be fine.

[FoxyFiona]

Hi Noobrider,

 

Just rang the court and it costs £65 to request the order.

 

FFx