QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGSITRY
1 Bridge Street West
B e f o r e :
Sitting as a Judge of the High Court
| DYLAN ANDREW
|BARCLAYS BANK PLC
|EGG BANKING PLC
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Adam Walker (instructed by Wixted & Co., Solcitors) for the 2nd, 3rd and 4th Claimants
John Taylor (instructed by Simmons & Simmons LLP, Solicitors) for all Defendants
Crown Copyright ©
HHJ WAKSMAN QC:
The case for Guidance
The Overriding Objective
"Before starting proceedings, the parties shall make appropriate attempts to resolve the matter without starting proceedings and in particular consider the use of an appropriate form of ADR in order to do so."
"…parties and their advisers need to consider whether any of the following might be appropriate…. making a formal complaint to the organisation in question or at the next stage, a complaint to the Ombudsman."
At the post-issue stage, CPR 1.4(2)(e) states that:
"In furtherance of the overriding objective the court should actively manage cases by encouraging the parties to use an alternative dispute resolution procedure if the court thinks that appropriate and facilitating the use of such procedure."
Costs Sanctions and the case for a Stay
"Parties should make every effort to settle their case before the hearing. This could be by discussion or negotiation or by more formal processes such as mediation. The court will want to know what steps have been taken in settling the case early to save costs including court hearing fees."
"The legal representatives have to declare that they have explained to their client the need to settle if the option is available or if they have not."
(1) A person who has or considers he has a PPI mis-selling claim should obtain the standard complaints form and send it to the relevant institution and on the face of it, he will be entitled to expect a determination within eight weeks. If the complaint is not upheld within the Scheme, or if there has been no determination of it at all within the eight weeks, and no reasonable explanation for any delay is given and there is no reasonable request for a modest extension of time, it will usually be difficult to characterise as unreasonable that person's subsequent decision to litigate his claim;
(2) That is of course subject of course to then following the correct procedure for making of any such claim. In that regard, I have in mind in particular again the Practice Direction on pre-action conduct and in particular paragraph 7.1. What that paragraph requires any client to do before starting proceedings is that he should set out the details of the matter in writing by sending a letter before claim to the defendant. The defendant should give a full written response within a reasonable period. A reasonable period of time according to 7.2 will depend upon the circumstances. I, for my part, take the view that even if a complaint is rejected or has not been dealt with in time, it is still incumbent upon a claimant to write a letter before claim but obviously that may be in more succinct or summary form than would usually be the case because the bank is already in possession of the facts of the claim from the complaint form. The bank should not expect all of that to be regurgitated in the letter. Equally, in such circumstances, what is a reasonable period within which the bank should respond must be conditioned by the fact that it is already familiar with the claim. I am not going to attempt to lay down any particular time limit by reference to a number of days, save to say that in these circumstances the banks can expect a relatively short time within which to make their response;
(3) In my view the letter before claim procedure is still valuable because, particularly if the bank has not dealt with the complaint in time, this may serve as a wake-up call to it to deal with the complaint there and then so that litigation is avoided. The final chance offered by the letter before claim should not be dismissed simply because there has already been a complaint made under the Scheme;
(4) It must then follow in such a case, ie where the bank has dismissed a complaint or has failed to deal with it in time, that once proceedings have been started the bank is likely to face a significant burden if it nonetheless it comes to court and asks for a Scheme Stay because for obvious reasons, because the bank has already had opportunity to do just that;
(5) Of course, in individual cases, there may still be a good reason for a stay depending on the particular form of ADR offered, the timescale in which it is offered, the history of litigation and so on, but where a complaint has been tried and failed the court naturally would wish to be satisfied that a yet further stay at this point is a worthwhile course. If on the other hand a claimant does not make a complaint within the Scheme but proceeds immediately to litigation, even with a letter before claim, he will be at risk (a) of the imposition of a Scheme Stay shortly thereafter, and (b), as I have indicated, in paying the costs of that application for a stay. There may however, be particular circumstances where it is necessary to commence litigation and I have indicated that by reference to the example of limitation;
(6) Sometimes a claimant may have enunciated a claim against a financial institution, (certainly in the past, hopefully less so in the future), without using the standard complaint form, perhaps because he has already been represented by a claims management company, or a firm of solicitors have articulated the claim in a different way. If so and if a financial institution now wishes to avail itself of the guidance given above, it follow that it must respond to that claim and, however it perceives that claim to have been framed, should invite a complaint to be made under the Scheme and provide a copy of the form. Then the claimant knows what must be done and the bank has the comfort of knowing that the complaint will be made at least by using the standard form. Once invited to make a claim in that way, the claimant will have no excuse if he simply fails to engage with the Scheme.
The instant cases