AQ's - Stays & Strike Out Request
There has been a very large increase in one month stay's being ordered by the courts of late in claims involving Lloyds. This is highly likely to be becouse SC&M have started requesting a stay "for settlement" on the AQ again - probably hence the reason they don't send a copy to the claimant any more!!
This tactic is quite clearly another abuse of process, as they never make any contact during the period of the stay whatsoever, and almost never respond to any contact you may try to make with them. Here are some suggestions on how best to combat this tactic;
Preventing a stay being ordered in the first place
You could respectfully ask in section G (or H if N150) of your allocation questionnaire that any request for a stay by the defendent is rejected. You should also briefly explain why. Here's a suggested passage for inclusion on the AQ;
The Claimant is aware that the defendant is now routinely requesting a stay in proceedings in claims of this nature, by indicating an intention to negotiate a settlement in section A of their allocation questionnaire.
The claimant is strongly opposed to such a stay, upon the basis that the defendant, both during and prior to this litigation, has rebutted or ignored all prior attempts by the claimant to narrow the issues in dispute, or otherwise engage in meaningful dialogue which may have facilitated an amicable settlement to these matters.
It is submitted that the request by the defendant is highly likely to be an attempt to further frustrate and delay proceedings, and the pattern of settled cases so far would strongly suggest that the defendant does not intend to settle these matters until a hearing date is imminent.
Accordingly, the claimant respectfully requests that any such request by the defendant is turned aside.
You can add the above to section G (or H) following on from the request for standard disclosure/draft directions. Use a seperate sheet if required, making sure its nice and neat with your name and claim number on top and each seperate issue or request is seperately numbered.
If you specifically state that you oppose a months stay, as above, the court is highly unlikely to order one.
How to deal with it if a stay has already been ordered
If it is a 1 month stay, there is very little point in making a formal application on an N244 for its removal - a) it costs £35 which you can't get back, b) by the time its processed the stay will probably almost have expired anyway, and c) you could well get called to an application hearing.
My personal suggestion if a one month/6 week stay was ordered would be to put pressure on Lloyds to settle within the month, rather than seeking to remove the stay.
First, you should write to the bank' solicitors to try to 'narrow the issues' in dispute. Nine times out of ten this will be one of the clauses of the staying order anyway. Suggested letter is as follows, which you should send as soon as you are notified of the stay. This is based upon a letter (by BF originally, I think) which is here. As ever, you should copy the court with it as well.
You -v- Lloyds TSB Bank Plc
Claim Number: *******
I write in relation to the matters as detailed above, and specifically the order of a stay in proceedings made by district judge XXXXX on **/**/**. One of the clauses of the order was that the parties negotiate to attempt to narrow the issues in dispute.
I consider that the object of a negotiation is to avoid litigation by having a sensible discussion in order to try and achieve a solution which would anticipate the decision of a court if the matter was actually heard. This means that we need to clarify the issues and then see if we can reconcile our areas of disagreement.
As you know, I object to the charges which the bank makes because I say they are penalties and that they exceed actual costs, and as such are contrary to well established principles in common law and statute.
Your position is that they are not penalties, but they are merely fees which are levied for a contractual service and because of this you are entitled to profit.
My position is that I do not accept that the charges are for a contractual service. However I have already signalled to you and to the court that in the event they were to be accepted as such then you should only be entitled to charge a reasonable fee for this service.
On the matter of penalties, let me say that I accept without reservation the Bank’s right to recover its actual losses caused by my contractual breaches. As you know, it is only that I do not believe that the level of penalty charges levied by the bank is only sufficient to cover those losses. It goes without saying that your defence that the charges are not penalties is tantamount to an admission that they are profit-making.
However, if you will provide evidence to show that the charge's levied exactly equal your losses incurred by my breaches then I will be happy to give up my action or to amend it so that my claim is only for a figure which is above that which is required by the bank to cover its costs.
On the other hand, if the charges are contractual as you say they are, then as you know, my position is that the charges may only be levied at a reasonable rate. Section 15 of the Supply of Goods and Services Act 1982 makes this clear.
If I were convinced that you were correct as to the status of the charges then I would agree that I should be obliged to pay you a fee. However, the fee would have to be reasonable.
I consider that the test for reasonableness in this circumstance would be to measure the reasonable mark-up of a reasonably successful high street business. This is because the bank is a UK high street business. The present normal mark-up for high street businesses is about 100%. If I did accept your position as to the status of the charges then I would require you merely once again to provide evidence of the actual costs to you of supplying your "service" and I would be happy to pay you the reasonable mark-up. (However as you know, I do not accept that your charges are contractual fees).
I am sure that you are aware that ever since the law relating to penalties was established in the late 1800s that contractual parties have regularly attempted to disguise their penalties as contractual services of some type. The relevant Cases are full of discussions about this, and the courts are fully aware of this technique of avoiding the Common Law. Even the Office of Fair Trading report earlier this year referred to this and stated that institutions should not attempt to disguise their penalties. In this regard I would draw your attention to Section 4.21.
It seems to me this whole case can be easily settled if you simply provide evidence of your actual costs. It is very clear that this is the absolutely fundamental crux upon which the matters in these proceedings involving bank charges rest.
I have a sample list of 40 claims which have been started against Lloyds TSB bank PLC, including their claim numbers, all of which have been settled in full by the bank, shortly in advance of the scheduled hearing date.
In fact I have a list of nearly 500 claims, including claim numbers, which have been brought against UK high street banks this year and which have all been settled by the banks. Every bank refuses to disclose its costs information. There were even difficulties in disclosing this information under conditions of confidentiality to the Office of Fair Trading when they were investigating charges over the previous couple of years.
It goes without saying that the current flood of litigation is putting a heavy burden on private individuals but also on the Courts Service which is a scarce public resource. A reasonable inference is that the banks are not serious about their litigation and that they are merely attempting to wear out claimants. I am sure that if the banks were not Defendants, that they would by now have been judged Vexatious.
Please provide the evidence of your clients costs and I think that the remaining issue can be dealt with very swiftly. I believe that a court would require no less than this, and should this matter proceed to allocation without a suitable resolution having been reached amicably, rest assured that I will seek an order of disclosure, notwithstanding probable allocation to the small claims track.
I look forward to your prompt response.
XXXXXX County Court
Going on previous evidence, it is almost inconceivable that they would respond to this, so after 2 weeks send them this (again, with a copy to the court);
You -v- Lloyds TSB Bank Plc
Claim Number: *******
Two weeks have now elapsed since I wrote to you with regards to the claim as detailed above, specifically in an attempt to comply with the order of **/**/** by attempting to narrow the issues in these matters.
To date, you or your client have made no attempt whatsoever to engage in dialogue, and my last letter to you of **/**/** has not even been afforded the courtesy of an acknowledgement.
As it were you who requested this stay, by indicating an intention to negotiate in section A of the allocation questionnaire, I must say I find your intransigent attitude both surprising and wholly unacceptable.
I am writing on the assumption that your request to the court was made in good faith and with the genuine intention of resolving the matter in hand, rather than merely an attempt to further delay proceedings in this case. I trust that as the representative of a reputable and esteemed organisation, you would not hold the honourable court in such contempt as to abuse court process in the manner to which a false indication such as this would equate.
I will again await your proposals for the resolution of this matter, or alternatively other such attempt to negotiate or narrow the issues, and I trust this will come in advance of the expiry of the stay on **/**/**.
XXXXX County Court
Its possible that they will offer to settle at this point. If they do, as soon as the money is paid you MUST inform the court - Claim settled letter
However, if they do not respond and the stay expires, you must inform the court that no settlement has been reached and therefore you wish the claim to proceed to allocation forthwith.
On the staying order, does it request that you submit an AQ upon expirey of the stay? If not, send a letter such as this;
You -v- Lloyds TSB Bank Plc
Claim Number: *******
Pursuant to the order made by District Judge ***** on **/**/**, I, the claimant, hereby confirm that no settlement has been reached with regard to the claim as detailed above, and as such I respectfully request that it proceed to allocation in accordance with the overriding objective.
Despite the Defendant making a request for the stay by indicating an intention to negotiate a settlement on its allocation questionnaire, with regret I must inform the court that the Defendant has attempted no contact whatsoever during the period of the stay.
Further, I contacted the defendant by way of a letter on **/**/**, and then a further letter on **/**/**, in attempt to initiate the dialogue for which the stay was intended. Unfortunately, this correspondence was not afforded the courtesy of a response. Please find copies of these letters attached.
If the court is in agreement, the Claimant respectfully suggests that directions may be made as per the attached draft order, with document exchange taking place 28 days after the issuing of the order.
Attach the correspondance during the stay period, and if you wish to propose the draft order for directions then leave the last paragraph in and attach the draft - Draft Direction Order
If you are not comfortable with the new strategy, or otherwise don't want to use it then just leave the last paragraph out.
If it does state that you should submit a further AQ, which it does on most of the staying orders that I've seen, then obviously you need to do as the order says.
Download and print off 3 copies of the AQ in PDF format - N149 or N150 (use whichever you were sent previously). Attach all your correspondance (and also theirs if there was any) during the period of the stay.
You should also propose directions as per the new AQ strategy - as long as your comfortable with the requirements should the draft be ordered Draft Direction Order
The file will then go back before the judge who hopefully will not be very impressed with Lloyds for requesting a stay then completely ignoring your attempts at dialogue. Resultingly, the judge may be more inclined to make a disclosure order as per the draft, or perhaps if your lucky even strike out the defence as an abuse of process!
Aggressive strategy for AQ's
Here’s an alternative and more aggressive approach for section G of the AQ, which I submitted recently on a mates AQ. It requests primarily that the defence is struck out as an abuse of process, or alternatively that a disclosure order is made as per the draft.
This may be especially effective to use on a second AQ in the situation as per the post above, where they’ve had a stay granted for settlement and then ignored all communication, because the judge would have clear evidence in front of him of an abuse of process in your own particular case.
If you want to give it a go, set out section G as below, then attach it to the AQ along with the attachments as indicated. The attachments are linked below.
— You -v- Lloyds TSB Bank Plc
In the ****** 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.
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 1B).
The Claimant believes that the Defendant is using court process as an intimidatory tool in order to dissuade its customers from pursuing legitimate complaints. It is strongly suggested from the pattern of hundreds of settled cases that the chances of the Defendant contesting this claim at trial are infinitesimal.
I believe this strategy to be abusive, directly contrary to almost all of the Overriding Objectives, and to the detriment and financial cost of the public resource, as well as myself, the Claimant. It is respectfully submitted that the Defendant will continue to conduct litigation in this manner for as long as it is allowed to do so with impunity.
Please find attached a copy of an order made by Lincoln County court (attachment 1C) 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. If this honourable court also considers this authority relevant, I would respectfully request that the court applies its special knowledge of the defendant’s established conduct in similar cases when considering order in the present case. Please find attached the case to which I refer (attachment 1D)
2. In the alternative, should the 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 and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.
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.
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.
Lincoln 'abuse' order
Hackney -v- Mullen -
Draft order for directions
In the actual section G box, you should put this;
Clearly this is quite aggressive, so use it at your own risk.
Be aware too, that IF the draft directions as per point 2 (attach. 2A) are actually ordered by the court, you will need to provide - a) schedule of charges, b) your statements, c) a statement of evidence and d) cases and statutes. Everything you need can be found in or linked from this thread - here
I should also say that in my mates case it was actually all completely ignored and standard SCT directions were ordered!
Draft Direction Order