Draft Direction Order

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Draft Directions Order

In the XXXXXX County Court

Claim number XXXXXX


XXXXXXXX - Claimant


XXXXX - Defendant

Draft Order for Directions

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

d) Copies of decided cases and other legal materials to be relied upon. If the Claimant fails to comply with this order, the claim will be struck out without further order.

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

b) Whether such charge is accepted to be a penalty, and if not why not;

c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

e) Any witness statements.

f) Copies of decided cases and other legal materials to be relied upon.

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

Guide to the new AQ strategy

In section G (H if N150) of the AQ, you get the opportunity to add any other information you think may help the judge manage the claim, or make a request for specific orders that you want the judge to consider making.

Until now, we have always requested an order of standard disclosure in this section, as per the AQ guide notes in the templates library.

A standard disclosure order, if it were ordered by the judge, would oblige the bank to fully substantiate exactly how its charges are made up and provide costings and documentary evidence, etc.

Trouble is, that standard disclosure is not availible in small claims cases - it is only usually ordered in the fast and multi-track. Judges do have the power to order it in small claims cases if they see fit, but up untill now they have been very reluctant to do so. In fact I'm only aware of a handful of cases in which it has been ordered dispite it being requested in hundreds of AQ's.

So now, instead of requesting an order of standard disclosure in the AQ, there is the option of requesting the directions as per the draft order above

If ordered, this would still oblige the bank to produce all the important documentation that a standard disclosure order would - but, in a form that is far more likely to be agreed by the judge.

These directions are already being routinely ordered by some courts in small claims track cases, and it is fairly likely that if proposed most judges would agree to them. There is certainly no obvious reason why they would'nt, as is the case with standard disclosure.

So, if you want to request the directions rather than standard disclosure, you need to attach the draft order to section G of the AQ. In the section G ('other info') itself, see below.

If you have a N150, attach it to the 'proposed directions' section and see below for a suggestion of what to put in 'other info'.

The AQ will then go off to be looked at by the judge to consider the case file and AQ's and to allocate your claim - set the date, issue directions, etc.

You will then in a couple of weeks receive your notice of allocation from the court, which will contain the track, the date and the directions the judge has ordered.

If the judge has aceeded to your request and ordered the directions as proposed, you will THEN have to submit the claimants documents as per a), b), c) and d) of the order.

It is VERY IMPORTANT that you then know exactly what you need to provide and submit it to the court and the other side within the date specified on the order.

If you don't submit it, or don't submit it on time, your claim will then be struck out!!!

Once you've filed and served your documents, the bank will then have to submit theirs within their specified timescale. Going on past evidance, it is highly unlikely (although not inconcevable) that the bank will comply. They will probably either settle before the deadline, or default and have their defence struck out.

Tthe other big advantage of these directions is that the defendants documents have to be submitted within 28 days of the order. Therefore, the claims timescale would be considerably shortened as opposed to the standard small claims track directions, which don't require document exchange to take place untill 14 days before the hearing - which obviously in some cases could be months!

Passage for section G/H - 'other information'

(you'll need a seperate sheet)

You -v- Bank Plc

Claim No:*******

N149/N150 Allocation Questionnaire

Section G/H - other information

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

I believe 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.

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend that it is incumbent upon it to disclose such information. Further, the proposed directions are now 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, I believe the outstanding issues to be of fact. Accordingly, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

Attach it to the AQ followed by the draft order. Then in the actual 'section G' box of the AQ, write this;

Please find the following attached to this allocation questionnaire;

1) Section G - other information

2) Draft order for directions

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

Then obviously send a copy of the AQ and attachments to the defendant as well as the court.

Related Pages

Allocation Questionnaire