Application to strike out Dismissed almost!!!!! PPI Claim Help please

[james4rd]

I hope someone can help.

I have been to court as the Irwin Mitchell are trying to getmy claim struck out due to being time barred, (Agreement started in January2005 ended January 2009).

I wasn't aware of the PPI until i go to the end of the loanand my husband noticed i had PPI and advised that it wasn't compulsory as i wastold at the time i took out the loan.

The court has sent me a letter saying;

1: the application to strike out is dismissed.

2: Unless the claimant files and serves better particularsof the claim and in particular pleads in detail their arguments under s32limitations act 1980 the claim will be struck out.

3: the claim is allocated to the small claims track(theywere trying to claim around £2-3,000 in costs, i guess they can't now?????)

4: the claim is suitable for mediation.

I am trying to put together better particulars, the judge onthe day did ask and suggested i should use the mistake route of the s32 LArather than concealment or fraud, i am guessing this is easier to claim thanfraud.

also the judge highlighted that nowhere on the documentationdoes it say the insurance was optional as the defendant claimed, they justbasically said that me saying that 'the sales agent told me that' isn't goodenough and should be dismissed!! Judge said that they cannot just dismiss someone’sclaims!!!


seems quite positive but need help if anyone can getting theparticulars right.

Many thanks in advance.

[Kafka]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

"the judge on the day did ask and suggested i should use the mistake route of the s32 LA rather than concealment or fraud, i am guessing this is easier to claim thanfraud."

Can you shed any more light on what was said about this? s32 covers concealment and fraud and this looks like a classic case of concealment, because you were mis-sold the PPI, and presumably in the mistaken belief that it would be claimable?

Do you have a clear admission of mis-selling from the firm or are you still trying to establish that?

[james4rd]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Thanks for posting,

the judge implied to me that it would be easier to claimmistake rather than fraud as i initially told them that they told me theinsurances were compulsory for the loan to proceed.

I think this was due to the company trying to get the casestruck out being time barred rather than defending the claim, they didn't admitto mis-selling and try stating that i ticked a box saying that the insuranceswere optional. They did have a handover checklist, but the dates were wrong onthis document and obviously completed incorrectly, the only other document thathad tick boxes had no reference to it being optional (which the judge spottednot me).

I think if the strike out claim is dismissed the companywould have difficulty proving that the insurances were not mis-sold hence whythey want to get it stuck out!

They submitted a 100 odd page defence to strike out, and thejudge used the term 'using a sledgehammer to crack a nut'. I think they weretrying to intimidate me by trying to claim thousands in costs if i pursued!!!

I agree that it was more concealment or fraud, but easier toclaim my mistake element of s32 LA to eliminate the time barred argument.
But I may be wrong??

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

I thought time barring was 6 years England, 5 in Scotland.
For those more expert than me, where do you live?

Don't panic.
They're not being given strike-out.
That's a strong/drastic action. The judge wants you to work things out more carefully with them, that's all.
The judge is giving you a choice of bringing a legal case, or mediation.
To bring a case, you either need to do a bit of hard work (as you know), or find a solicitor.
(I'm sorry if that offends, I don't know if you can obtain legal assistance).

Mediation is a legally binding process.
You need only decide what you want, then try and get it.
You don't need a lot of waffly arguments, strange forms and people called judges (he he).
The mediator should be an expert in the area of law.

Point 2 is very kind of the judge.
He or she is telling you your best method to use, because they think you may have a case.
My feeling is you can't just state the law.
You must clearly lay out the argument, based on the facts of your case.
You must clearly spell out for the judge which part(s) of the law are exactly relevant to which exact parts of your argument.
If necessary, spell out why it's relevant.
I don't think they have time to do this! - and it's not part of their job.
(I laugh because I think this is the mistake I made, recently).

If you're going down the particulars of claim, you'll need the civil procedural rules - here
You must follow the special procedures for dealing with small claims - here
Costs on the small claim track are on that last page, part 27.14.
Take it easy

[Kafka]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Just a quick note on Mediation. I went through this some years ago with a London law firm hired by GE Money. It was well handled and interesting, though ultimately it was no help. Eventually they settled just before court to my great advantage (£2500 for a £350 claim!). The important thing is that it shows willing and the courts like you to try it, so if they suggested this do accept the offer or it won't look good for you perhaps.

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Look at this rule - here:
9.1

(1) This Part sets out how a defendant may respond to particulars of claim.

(2) Where the defendant receives a claim form which states that particulars of claim are to follow, he need not respond to the claim until the particulars of claim have been served on him.

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Just a quick note on Mediation...if they suggested this do accept the offer or it won't look good for you perhaps.

I disagree.
I believe the judge has given the OP the choice.

[james4rd]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Thanks for the advice,

I am happy to the mediation route, saves a daunting visit tothe court(although the Judge was helpful and very pleasant).

But to get to mediation stage I think I need to serve betterparticulars to why the claim shouldn’t be struck out because of being timebarred.

Does that make sense?? I think once the application tostrike out is dismissed, it goes to the small claims court that is when we goto mediation.

Is that right??

Many thanks

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

I agree that it was more concealment or fraud, but easier toclaim my mistake element of s32 LA to eliminate the time barred argument.
But I may be wrong??

Well, this is pretty simple.
Of course it's easier to say someone made a mistake than to prove concealment or fraud.
You can't easily prove what was is someone's mind!!!

You need to work your way carefully and methodically through every part of s32, which is here

UPDATE: You may need to go through 32a, also

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

But to get to mediation stage I think I need to serve betterparticulars to why the claim shouldn’t be struck out because of being timebarred.

I think you've simply been given the choice.
You could try calling the court to ask.
However, if you fight with s32 (which has a good chance I'd estimate), you may get more out of the other side.

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Here's the essence of s32:

"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it"

Oh lovely.
You had a really great judge.
But careful about the reasonable diligence bit.
If you think you may fail on reasonable diligence, maybe go for mediation.
Have a great day - my own case to handle.

[Guest]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

(1) and (2)

Judge said that they cannot just dismiss someone’s claims!!!

Regarding the title of your thread: 'Application to strike out Dismissed almost!!!!!'
I would be very careful about how you're wording things.
The application to strike out HAS been dismissed (1)

If you don't work through s32, your claim will be dismissed (2).
------------------------------------------------------------------------------------------------------------------
You both need proper legal argument, carefully worded, to get anywhere.
Nothing can be 'just dismissed'.

[james4rd]

Re: Application to strike out Dismissed almost!!!!! PPI Claim Help please

Thanks all for the comments advice.

I was also concerned about the due diligence, when in court Iwas asked how I discovered I was mis-sold and why it took me until March 2012to make the claim.

I did explain that it was my husband that pointed it outwhen I was getting to the end of the loan, he worked in the finance industry sohe knew I didn’t need these insurances, I didn’t? should I have? Should have I investigatedmore before taking out the loan? Defiantly!!! Can I just say I thought what I wastold by the sales agent was correct, I wasn’t aware that it was optional untilmy husband spotted it. At this time i sent letter to yes Car Credit, they toldme that they were not regulated by the FSA and therefore falls outside the FOS jurisdictionat the time the loan was taken, again I presumed I had no case, by the time I gotto submitting a case to the small claims court it was March 2012.

I am not sure how to word my particulars of the claim, I wantto refer to LA 32 (a)-Fraud by sales agent telling me I needed to take the insurancesto get the loan, (b) Concealment - sending me a letter saying it falls outsideFOS jurisdiction (don’t think I can use this one) and (c) Mistake – I didn’trealise the errors of my ways until 2009, no one with any knowledge looked or reviewedthe agreement I had signed.

I fear (c) is a case of my own fault, I should have knownmyself? How much knowledge are we supposed to have when we sign up to theseagreements? Yes I should have checked but I had no reason to believe it wasn’trequired. it was my first loan!!!!