Thread: Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

THIS APPLIES PRIMARILY FOR CASES WHERE THE AGREEMENT WAS ENTERED INTO PRIOR TO THE 6TH APRIL 2007.

THAT SAID, THE RULES OF DISCLOSURE APPLY TO ALL LITIGATION


ITs become clear that simply placing a creditor to strict proof on a holding defence will not work. The Civil Procedure Rules are there to allow you to obtain information from the Claimant and to allow inspection of documents etc which the Claimant is going to rely upon, these provisions are there so that you are in possession of the documents before you have to file a defence.


this thread will provide assistance where you need to request the documents using CPR 31.14 http://www.consumeractiongroup.co.uk...eal-their.html


CPR 31.14 allows you the right to request documents mentioned in a statement of case. Most of us are aware of this, but CPR 31.15 provides that upon receipt of a written request, the Claimant must allow inspection within 7 days

31.15

Where a party has a right to inspect a document –
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

So, if the lender doesnt give you the docs after being served with a written letter requesting the documents upon which they rely and which are pleaded, then you should raise this matter with the court, not by writing to the court but by making a formal application for an order compelling disclosure.

This will most likely bring an order for costs against the claimant too, so will make them realise that you mean business too.

The other point to note is CPR 15.5 allows you to agree an extension of time for filing the defence. So you can get 28 days ontop of your 28 days to file.It is always advisable to file an acknowledgment of service this gives you the full 28 days, you can state an intention to defend for now, you can always change the view once disclosure takes place. you need an agreement from the Claimant to do this and you need to write to the court to advise that you have indeed agreed with the claimant to a 28 days extension, this is an obligation of the Defendant to notify the court so YOU MUST do it if you reach an agreement with the Claimant, do not rely on them doing it cos you will end up with a Default Judgment.

If the Claimant cannot disclose then you cannot plead and this is where an application to strike out the case should be used in my opinion, there is no point filing a verbose defence which deals with everything and the kitchen sink where you dont even have the agreement they are reliant upon.

The CPR is there to help you, to help the court effectively manage the case and to set out what is expected from a claimant. it is unlikely that the court will refuse to order the Claimant to disclose to you the docs upon which the claim is based and the court will also take into account the fact that you will need more time to file your defence too,providing you ask for it!!

By securing the documents, you are ensuring that you dont file a verbose and meaningless defence when based upon the documents you dont have a defence, as this simply adds to the legal bill that you will have to pay. If you dont have a defence then you need to accept it, dont waste time defending the indefendable. I know it sounds harsh but you are the person who foots the bill if the case is lost, now its better to admit defeat early than taking it all to trial and then losing. a solicitor will struggle to justify more than a few hundred pounds within 14 days of issue, but believe me, its easy to run up 10 -25k of costs going to trial.

Im not trying to put a downer on things, but just trying to be realistic.

I intend to add to this post as i get time, however if you are in need of legal advice the you should consult a qualified solicitor , this guidance is offered without prejudice .

Ok , another point to take, many of the courts i work in have started to become frustrated by litigants in person filing huge verbose and meaningless defences which cite near on whole cases without setting out the reasons or the points which are relevent.

Defences

1. Leave the case law out. it serves little purpose to start quoting huge sections of cases in your defence. you will draw the judge to the relevent points of case law in the skeleton argument. the main thing you want to do is keep the judge interested, when he reads your defence, you want him to read start to finish not get faced with half way through the defence having to read most of Wilson and First County trust. however, if there is legislation that has not been complied with then for sure you want to mention this. the key is keep it clear, concise, and to the point. if there has been a breach of the consumer credit act then plead the breach, if the court cannot enforce the agreement then plead this, but dont waffle about Lord Justice Tuckeys judgments unless it is 100000% relevent, and i can tell you it wont be!!!!!

2 if there is no agreement then there is no need to go through the subsections of the Consumer Credit Agreement Regulations 1983 citing the prescribed terms are missing etc. Quite simply, if you NEVER signed an agreement ( yes it does happen) then all you need to say is,

It is denied that a credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the court shall not make an enforcement order.

PLEASE NOTE THE ABOVE ONLY STATEMENT IN BLUE IS ONLY APPLICABLE WHERE THE AGREEMENT WAS ENTERED INTO PRIOR TO 6TH APRIL 2007


that is all that would need to say. obviously you would need to pack it out a little, but if you cant do that then you need a solicitor!! cos you are outta your depth. you need to set out the entry into credit, for example if you went into the branch of your bank and they simply asked you " do you want a credit card" and then 3 weeks later it fell through your letter box, then thats what you say.

Witness statements

3. witness statements are exactly that, witness statements, they are not skeleton arguments and should not be coinfused with them. your witness statement is your evidence, what YOU are going to say at trial. are you going to stand there and quote 11 paragraphs of wilson and first county trust while in the witness box under cross examination??? ?HELL NO of course your not , your gonna say , what happened when you entered into the agreemnt, your gonna say you never signed the agreement ( if thats the truth) and your gonna say what YOU know from your own memories and experiences. so thats what you put in your witness statement.


For example

3. The claimant has produced at exhibit XXXX 1 a copy of a credit agreement, i do not recognise this as my agreement as the document i was presented in 1998 was a single piece opf paper which i receved in my local branch. it was printed before me and was handed to me by the clerk.

4. There were no terms and conditions presented to me at that time.

5. the card arrived attached to a single piece of paper , this was a a4 piece of paper and had ............

PLEASE REMEMBER> you do not lie, if you cant remember then you say you cant remember, do not lie as it will discredit you if the other side catch you out and any chance of success you had just went down the toilet.



Skeleton Arguments

The skeleton argument is where your legal arguments are set out. you should exchange skeleton arguments before the hearing, this normally takes place 2 days before the hearing but can take place on the day (although i would want to make sure the judge has a copy before i get there)

This is the place for your references to Lord Nicholls of Birkenheads judgment, or whatever else you wish to argue.

i will try and post up an example skele so you can see how to set it out


DEADLINES

Another point which seems to be missed, is that you can consent to extensions of time for defences, witnesstatements etc,

So, obviously you can seek under CPR 15.5 for an extension of time to file your defence of upto 28 days

you can also contact the other side and seek to agree to extend the time for filing your witness statement if you genuinely need it

DO NOT BE FRIGHTENED TO PICK UP THE PHONE and call your opponent,ask them to agree an extension of time, and then confirm your conversation in writing with them. i would be very surprised if they refused as the court would normally make an order to extend the time frame if asked so, they would be at risk of costs if they refused

POOR Particulars of claim

If i had a pound for every set of pleadings which i saw and which said "the claimant claims monies due" and very little else id be very rich ineed. In fact these forums are rife with them,

Now, the problem is when people recieve a claim like this they answer it with some lengthy verbose defence which pleads that you cant plead cos the POCs are vague

then what happens , is this plods along for 8 9 or 10 months when you get to a trial

and you go in and say but i didnt know or understand what this case was about cos the pleadings were too vague, then the judge looks at you and says " well you silly boy, why didnt you do something about it earlier, youve let this go on for so long............" and either you get A) an order that the Claimant must replead and you have to pay their costs or B) you get told tough you should have made an application and then you have a trial on frankly a CRAP set of pleadings, doesnt do you any good nor do you get justice

If the Claimants claim is sooo damn vague that you honestly do not understand what its about, then you should ask the claimant to replead their case properly at the same time as you ask for disclosure. put it clear, the pleadings are not good enough for a trail and therefore ask them to plead their claim properly or you will make an application to the court for an order compelling them to plead proper. After all, a judge will want a properly pleaded claim and defence and both cannot be achieved unless you have all the documents etc that you need and the case is properly put together,

So start using the rules to your advantage,

Originally Posted by angry cat

Agree with PT, many members appear to be way out of their depth.

Excellent thread!

Originally Posted by basa48

That would probably include me!!

So which is best when confronted with weak POC?

Application to strike or application to re plead?

Me too.

So initial advice remains the same then - Post up POC and details and ask for opinions?

M