Allocation Qestionnaire: Stays & Strike Out Requests
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;
|
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.
|
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);
|
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;
|
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.
Quote: 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.
Attachment 1B; Settled claims Attachment 1C; Lincoln 'abuse' order Attachment 1D; Hackney -v- Mullen - See PDF attachment below Attachment 2A; Draft order for directions
In the actual section G box, you should put this;
Quote: Please find the following documents attached to this allocation questionnaire;
1A) Section G - other information 1B) List of settled cases 1C) Text of order made by Lincoln County Court 1D) Mullen -v- Hackney BC (1997)2 A11ER 906 2A) Draft Order for directions
This allocation questionnaire and its attachments were sent to the defendant on **/**/**
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 - http://www.consumeractiongroup.c o....tionaires.html
I should also say that in my mates case it was actually all completely ignored and standard SCT directions were ordered!