Directions for N150 or N149 Allocation questionnaire

[pt2537]

I am often asked for help with allocation questionnaires where users are involved in cases which the other side has failed to supply copies of the credit agreement etc, in some cases they have even failed to comply with a part 18 Civil Procedure Rules request

 

 

to make life easier, i thought it would be easier to put my suggestions for directions and other information on here to keep them all in one place.

 

It is becoming very apparent that many DCAs are entering litigation without the correct credit agreement etc and that is why they fail to supply this information when requested under the CPR. it is my personal belief that they enter litigation in the hope that you wont defend and they will win by default

 

if you get to the Allocation Questionnaire stage the the claimant hasnt provided a copy of the credit agreeemnt and has ignored your CCA and/or CPR request then these Directions may come in handy.

 

if they are used and the judge agrees, then the claimant MUST supply the requested info and if they dont their case could be finished as you may be able to ask for the case to be struck out

 

if you are unsure about anything contained within then please ASK FOR HELP

 

 

 

 

In the ************* County Court

Claim number **********

 

 

 

 

Between

 

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

 

 

 

 

 

 

Now the Draft order for directions above is applicable to both the N149 and N150

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 / 150 **Allocation Questionnaire

 

Section G / H **- other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

**Edit as needed

 

now on the form in either Box G or H depending on the type of AQ you have, write the following.

 

Please find the following attached to this allocation questionnaire;

 

1) Section G / H ** - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

i always send a photo copy of the AQ to the claimant as a matter of decency,hence why i suggest the above comment

 

If you need any help at all with any documents then please please please ask for assistance . getting it wrong at this stage can cause you problems

Edited October 1, 2008 by pt2537

[citizenB]

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