Jump to content


Registered Users

Change your profile picture
  • Posts

  • Joined

  • Last visited

  • Days Won


Everything posted by surfaceagentx20

  1. I don't think that a witness statement in opposition to an aplication for summary judgment with the very specific points made by the opposition is something that can be ripped from a template. Instead, address each sentence or point in the opposition's witness statement one by one and put that in your own draft statement. x20
  2. An appeal is not necessary where the decision to be reviewed was a decision made in the absence of one of the parties. It is also incorrect for the court office to say that you have to make an application on N244 to change your address for service. For a start, you had never given an address for service until you lodged your N244 to set aside the judgment. That form gave your Scottish address as your address for service.. Even if you had, you can change that by simply filing a notice. There is no need to ask the court for permission to change your address for service. This is a proper pickle and I'm struggling to think of a way around all this when the hearing is at 10:30 tomorrow morning and you're in Scotland! The only thing I can suggest is if you can send a fax or email to the court in which you ask the court to excuse your absence and explain your absence is not out of disrespect but owing to geography and that the court office had not paid attention to the address for service given in your N244 so you only found out about the hearing recently. Ask the court to set aside the judgment on grounds of non-service and direct re-service of the Claim Form to you at your Scottish address. You will need to head up the message with the case number, the parties to the case and the date and time of the hearing, marking it URGENT. You also ought to throw some stuff in about what your defence to the claim might be. So far I've seen nothing which touches on this very important aspect. x20
  3. Today is 20 August and the hearing is on 27 August in one week's time. CPR 24.5(1) says: If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must (a) file the written evidence; and (b) serve copies on every other party to the application, at least 7 days before the summary judgment hearing. You don't even have time to get your evidence in opposition ready filed and served in accordance with the ruel. I think the court staff were unhelpful. It was after all their cock up which resulted in you not receiving the amount of time to get ready which the rules provide. Try contacting the other side. Tell them the hearing has been listed without providing sufficient time in accordance with the rules. Tell them that if they do not agree to the hearing being adjourned you will attend the court on 27 August, seek an adjournment and ask the court to award the costs of the wasted hearing to you. Tell them you require an answer by 12 noon Monday latest. In the meantime, start putting together a witness statement in opposition to the one served upon you and let us have a look at your draft when it's ready. x20
  4. CPR 13.4 says what it says. The transfer would be automatic, that is, you wouldn't have to ask for transfer and the court would cause a transfer to the Defendant's home court as a routine part of the procedure. The thing is, because you do not live in England or Wales, there is no home court within the jurisdiction of England and Wales to which the case may be transferred. For the case to be transferred to your local court would require the case to be transferred out of the jurisdiction of England and Wales and into the jurisdiction of the Scottish courts. A transfer of that kind is not provided for by CPR 13. But it does highlight the injustice in that the new rules permit service of a claim form in Scotland without the claimant first obtaining permission (that is service of documents in a territory over which the English courts have no jurisdiction) and at the same time deny our Scottish neighbours the benefit of having the case decided at a place local to them. Rather the case will be decided at a place convenient to the Scotsman's English oponent. Such injustice would not be tolerated where the individual Defendant was a person living in England. To my way of thinking that the Scottish Defendant who had no control over the comencement of legal proceedings but is at a serious geographical disadvantage to his English oponent, defeats the overriding objective found at CPR 1.1(2). Since the overriding objective must find its way into all things where civil procedure is concerned, I would be tempted to invest some time in conceiving of a way in which the court might fairly strike out the claim because of the inbalance. If you could show you had a convincing and complete defence to the claim you might have a chance. If however there's no way you can get out of being ordered to pay the money under the guarantee, I reckon the court would allow the case to continue in England and award your oponent judgment. After all, that is the ultimate issue a court will have to decide, whether it is sitting north or south of the border. x20
  5. Yes, CPR 13 deals with applications to set aside a default judgment. CPR stands for Civil Procedure Rules and is the set of rules which deals with civil proceedings in the courts of England and Wales. Have a look at CPR 13 here. See what CPR 13.4 says? x20
  6. Fretful's kinda right in that under CPR 13.4 (1) Where (a) the claim is for a specified amount of money; (b) the judgment was obtained in a court which is not the defendant’s home court; © the claim has not been transferred to another defendant’s home court under rule 14.12 (admission – determination of rate of payment by judge) or rule 26.2 (automatic transfer); and (d) the defendant is an individual the court will transfer an application by a defendant under this Part to set aside or vary judgment to the defendant’s home court CPR 2.3 says: ‘defendant's home court’ means (a) if the claim is proceeding in a county court, the county court for the district in which the defendant resides or carries on business; and (b) if the claim is proceeding in the High Court, the district registry for the district in which the defendant resides or carries on business or, where there is no such district registry, the Royal Courts of Justice; Trouble is, since The Ministry of Justice messed with the CPR concerning service of the claim form so as to permit service in the United Kingdom, there have been no corresponding changes to take account of the fact that a Defendant living in Scotland will not have a county court in the district in which he resides or carries on business and may therefore be compelled to attend a court 100s of miles to the south. I take it you gave a Scottish address in your application to set aside judgment? But if I understand you, when the proceedings were issued earlier this year, you were then living in England. In other words, it is only in the last few months say that you have moved to Scotland? When you call the court tomorrow, point the court office to the provisions of CPR 13.4 and insist the case be transferred to your home court (wherever that may be). Ask them to tell you what the name, address and telephone number of your home court is. Tell them all about the journey difficulties and ask the court officer to explain how the court dewals with such a situation justly. That should cause them to scratch their head a whilw why they ponder the grave injustice this situation is causing you. x20
  7. You need to get hold of Hull County Court the moment the clock strikes 10:00am tomorrow. You will need to be able to quote the case number. Ask them what has happened with your application notice because your oponent is suggesting your application is to be heard on 21 August and you've not had any official notice from the court. If they tell you there is to be a hearing find out what time of the day it will be heard. Tell them you've had no notice and (if the hearing is in the morning) that there is no way you could be there in time. All the same, be prepared to have to go to Hull on Friday. Am I right in thinking that the address to which the Claim Form was sent was an address in England or Wales but at the time it was sent, you were in fact living in Scotland? Did the landlord know you were living in Scotland? Did you tell him or did your solicitors tell him? Have you got documentary evidence that the landlord knew where you lived? Last, I figure your landlord is resisting your application to set aside. If so, and in a nutshell, how does he put his case? x20
  8. Northern Rock are applying for summary judgment against you, that is, they are applying for an order that you have no reasonable prospect of succeeding at trial and there is therefore no point in having one. They are also seeking an order for the forthwith payment of whatever it is they claim and give notice that by obtaining a forthwith order they will then immediately seek a charging order over your home. In brief, the grounds of the application are, they say, that there is nothing wrong with their DNs. However, the notice fixing 27 August as the day for the hearing of the application is dated 13 August and you say it arrived today, 19 August. I should immediately object by stating that pursuant to CPR 24.4(3) you are entitled to at least 14 days notice. CPR 24.4(3) says: (3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of (a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing. Telephone the court and have the fixture re-listed. You will then gain more time to properly prepare. If the court office refuses to remove the fixture from the list, let us know why the court refused and we'll re-think things. x20
  9. Probably. When allocating a case to the SCT bog standard directions are issued without regard to a litigant's plea to depart from them. Nonetheless you have an order from the court compelling the claimant to do something which he probably won't. Start complaining to the court office the moment the deadline runs out. x20
  10. The loss stays where it falls. If the debt was paid before proceedings commenced you may plead payment as a complete defence. In other words, there was no indebtebtedness at the moment the claim was issued. If there was indebtedness 5 minutes earlier but not at the moment of commencement, no liability for costs falls to you. If on the other hand you paid 5 minutes afterwards, the liability for costs will drop in your lap. Timing is everything. x20
  11. A judgment creditor may assign the benefit of the judgment to a third party as assignee. That third party assignee would then need leave to be substituted as judgment creditor. Invariably he'd get it. However, in this case it is not clear whether just the judgment or whether any additional rights were assigned. On balance I fall on the side which says the assignment of the judgment is tantamount to an assignment of the cause of action since the cause of action merged with the judgment on it being pronounced. In either case the assignee has not applied to be substituted as claimant or judgment creditor and my view favours the notion that by reason of assignment, CL have dropped out of the picture and no longer have any legal ground to pursue or seek an order of the court that the money should be paid to them. But heck, leave all this stuff to spring on them at the final hearing. x20
  12. I don't know enough about the case, the background and most likely many other important features. However, I would draw your attention to Civil Evidence Act 1995 section 9 and all its oddity which says: Proof of records of business or public authority. (1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof. (2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose (a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and (b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature. (3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong. (4) In this section “records” means records in whatever form; “business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual; “officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and “public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty. (5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records. The Claimant may be intending to rely on this section (though if so why not a simple certificate as opposed to a witness statement when CPR 33 requirements may have been overcome?). Whether the documents may be admitted under section 9 depends upon the responsibility of the person making the certificate (or witness statement if the statement is to double as a certificate which I suppose it might). Of course, the certificate / witness statement only relates to the discovery of the record. That is not the same as evidence of the truth of the record or that it is a faithful and true replica of the orginal document of which the record is said to be a copy. Nor the truth of the circumstances leading to the destruction of the original. Did the claimants explain why the witness would not be called? In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissable when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissable* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made. * Subject to compliance with CPR 33 I suggest and the considerations set out in Civil Evidence Act 1995 section 2(4). Without more I am in difficulty in guessing the claimant's intentions. All the same, saying the claimant's one and only witness will not attend trial late in the day and then turning up with that witness is sharp practice and most likely will be condemned, especially if the claimant gave no explanation for the fact the witness would not be attending. Turning up without a single witness is dangerous in the extreme regardles of what steps have been taken to comply with the CPR and the Civil Evidence Act. The creditor can not be sure the trial judge will attach sufficient weight to the witness statement and any weight is likely to diminish as the defendant has his say. x20
  13. So the witness evidence relates to a case to be tried on the fast track this coming Friday, just a few days away. Am I right in thinking this is the Claimant's one and only witness? Yet the Claimant has decided not to call this witness to give evidence. As you have rightly concluded, the evidence the claimant proposes to adduce is hearsay evidence. Hearsay evidence is covered by statute and rules of court. Civil Evidence Act 1995 section 2 says: Notice of proposal to adduce hearsay evidence. (1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings (a) such notice (if any) of that fact, and (b) on request, such particulars of or relating to the evidence, as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay. (2) Provision may be made by rules of court (a) specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and (b) as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply. CPR 33.2 says: (1) Where a party intends to rely on hearsay evidence at trial and either (a) that evidence is to be given by a witness giving oral evidence; or (b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence; that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order. (2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement (a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why the witness will not be called. (3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which (a) identifies the hearsay evidence; (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and © gives the reason why the witness will not be called. (4) The party proposing to rely on the hearsay evidence must (a) serve the notice no later than the latest date for serving witness statements; and (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so. By all accounts the earliest the claimant gave notice that the witness named in the witness statement would not attend court to give evidence was the day the trial bundle was served. That would be quite recently. I assume the witness statement itself was served weeks or months earlier. If so, the claimant failed to comply with CPR 33.2(2). The claimant may still have failed to comply with CPR 33.2(2) if the letter does not specify the reason why the witness will not be called. With such little time remaining you are prejudiced in making arrangements to have the witness brought to court for the purpose of cross examination. Ultimately trial management is for the trial judge who exercies his discretion on what he determines to be just considerations. It seems to me however that the claimant will have to explain its failure to comply with CPR 33. If the claimant can make a good explanation the trial may be adjourned at their expense in order that the case might be dealt with justly at some later date. Frankly though I can't think of a good reason unless we're talking about a situation where the witness died recently and unexpectedly.In which case an adjournment wouldn't achieve much. If the claimant cannot offer a good reason it seems to me the claimant could not complain if the court refused to admit the witness statement, in which event and with no evidence from the claimant, I would have thought the likelihood is the claim will decided in your favour. x20
  14. Your Section G says this: ALLOCATION QUESTIONNAIRE – SECTION G. 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; 1) Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money. Therefore, as CL Finance are no longer the legal owner of the account, they should no longer be the Claimant to these proceedings. Aktiv Kapital should be the new Claimant in the proceedings but I suggest that this isn’t carried out, due to: a) As 4 months have passed since the Claim Form was issued and as CL Finance, or Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5; Service of a claim form 7.5 (1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons: Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974; 78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,— Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier. Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557); 2 Legibility of notices and copy documents and wording of prescribed Forms (1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the . 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: 9. 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. 2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement and I have had to rely on the one that Aktiv Kapital provided me with, therefore CL Finance have failed to comply with my CPR 31.14 Request. 3) On the basis of the afore-mentioned, it is respectfully requested that this case is striked out as there is no case to answer by the Defendant and that the Defendant is awarded costs from the Claimant, which have been incurred in defending this case. My starting position in considering the AQ is the value of the claim. I believe it's less than £400.00. If so there can be no question that the case will be allocated to the small claims track and standard small claims track directions will be issued, unless the AQ can show alternative proportionate directions would be appropriate. Your Section G begins by referring the Judge (as reader of the AQ) to a draft order. It seems you haven't prepared one. That's not a good start if the contents of Section G are designed to persuade the Judge to depart from the usual order and direct special directions. What are these special directions? Instead your Section G deals in turn with the overriding objective why Aktic Kapital would be the proper claimant and why they shouldn't be CPR 7.5 and whether the Claim Form has been served Whether the agreement is enforceable whether the agreement is valid because of a failure to comply with section 78(1) Consumer Credit Act 1974 a quote from Lord Nicholls in Wilson v First County Trust the Claimant's failure to comply with CPR 31.14 a suggestion that the claim should be struck out as there is no case to answer a suggestion the Claimant should be order to pay your costs. The only direction you are seeking there is for strike out. The rest is argumentative and is of no assitance to a Judge required to deal with case managment decisions. If you want the claim struck out you must make an application for summary judgment, set out the grounds and supporting evidence and pay the fee. If you are not going to make such an application (and I do not recommend it) my advice to you is to leave section G blank. The issues in this case are simple. A fair disposal can be dealt with by making standard small claims track directions. That's what the Judge will do. His directions will be no different simply owing to what Lord Nicholls said. x20
  15. The absence of notice delivered by the assignor regretably is not a defence. The identity of the giver of notice of assignment is not crucial. It may be given by the assignee. I shouldn't pester CL. If you've put the question of the fact of assignment in issue it will be for the claimant to prove it the way they want the court to treat it. Besides is there really any issue that CL assigned the benefit of the agreement to Aktiv? Presumably CL maintain Aktiv acquired the debt and Aktiv say the same. An application for substitution in parties is required so as to substitute Aktiv for CL. I shouldn't be in a rush to persuade the opposition to apply to get their house in order. x20
  16. Yes interest may be claimed. In fact literally, 'anything' may be claimed. 'A' can claim a right to anything from 'B' or 'C' or 'Y' or 'Z' for anything he cares to dream of. Claiming is easy. It's all about whether it's allowed. That goes for DCAs claiming as assignees or however else they put their claim. It's all very well making an allegation (ie a claim to a right). The test is whether the claim can be shown to pass the legal threshold (ie the proof of the right). That's the hard part. x20
  17. On the claim for interest point, County Courts Act 1984 section 69 provides the court may award interest (stress may, ie the award of section 69 interest is in the discretion of the court). Further section 69(4) provides: Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs. If the contract provides for a right to recover interest on debt (and a regulated agreement invariably will) that is a reason why section 69 interest should not be awarded. If the creditor didn't bother claiming interest pursuant to contract in his claim form, too bad on the creditor. Lastly, the County Courts (Interest on Judgment Debts) Order 1991 has, as its title suggests, application in relation to the power to recover interest on judgments of the county court. Judgments and claims should be distinguished. The Order has no application to claims made for interest up to judgment. A man is not prohibited from claiming and recovering interest on a debt up to the moment he is awarded judgment simply because his judgment is of a type which is disqualified from attracting continuing interest post judgment under the 1991 Order. x20
  18. Sorry GK but I agree with Docman and janensteve. It's over wordy and a mish-mash of stuff which yells out layman. It will also get your judge's back up starting from the very beginning. He will look at paragraph 2, go 'eh?' and probably pay very little attention to what follows. Let's just take a closer look at paragraph 2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof. What exactly do you understand that to mean? Why are you at one and the same time both 'not admitting' an allegation and 'not denying' it? Why are you not plain denying things? Wouldn't it be be better to deny things and if so specify what it is you deny and the reasons for the denial? Moving on, paragraph 4(d) is almost certainly a false statement. I could'nt be bothered to read any more (sorry) but a scan of what followed proved what I feared. Even the final paragraph is daft with its submission the claim should be struck out. If you want the claim struck out make an application to the court and frame your application with facts to suit a strike out application. Besides, you've already entered a Defence. You're suposed to be producing a witness statement. A witness statement is a chronological statement of relevant facts from the point of view of the witness. Don't chuck in law, statute, quotes from Law Lords, legal opinion, submissions and anything of that kind. Do that and you've made your judge your enemy. Your witness statement could probably be done easy in 8 paragraphs or one and a half sheets of A4. x20
  19. Let's see if I've got this right. You entered into a regulated agreement with GE Capital Bank sometime in or about 2003 it looks like. GE sold their interest in the agreement to CL Finance. Quite whewn I do not know. The Claimants in your case are C L Finance. If I understand correctly, they are represented by Howard Cohen. The proceedings were issued on 31 December 2007. The issue of proceedings resulted in a judgment, quite when I do not know, but that judgment was obtained without your knowledge because service of the proceedings was made at an old address. The judgment if achieved in default of acknowledgement of service probably goes back to January 2008. CL Finance then sold their interest onto Aktiv Kapital (AK). AK's solicitors are Appleton Massey and say their client issued a notice of assignment to you on 11 August 2008 and again on 6 January 2009. The default judgment was set aside on 24 June 2009. The Claim Form eventually came to your attention on 9 July 2009. First question, was the application to set aside opposed and if so, who represented CL Finance? Next, does the order direct re-service of the Claim Form / Particulars of Claim and if so by a certain date I wonder? It might be an idea to scan or write out the text of the order. My thinking follows these lines: Any setting aside of the default judgment on grounds of non-service will require re-service if the case is to be prosecuted. If the claim was issued on 31 December 2007 it had to be served within 4 months, ie by 30 April 2008. See CPR 7.5. Evidently it wasn't. To be able to serve again requires an order from the court extending the time available for service from 30 April 2008. See CPR 7.6. May be the set aside order gave this permission. May be not. Thirdly, whereas CL Finance had a right to bring proceedings on 31 December 2007, their interest in the proceedings came to an end on 11 August 2008. Have any directions been made for AK to be substituted in CL's place? Before we move on to completing the AQ (and what you've done so far is way too wordy) can you clear up the queries I've raised? x20
  20. Your Defence adequately deals with the situation by saying the claim fails to disclose a cause of action. That is, it fails to disclose a right to sue vesting in the named Claimant. This is where technically, the notion the creditor could 'start all over' is false. The creditor has not yet sued at all! If the creditor begun proceedings it may be possible to say the DN and TN were notices issued by the Claimant as agent for the creditor. How else, in the absence of assignment did the Claimant puport to have a right to send those notices out? You could run the Defence ignoring the lack of a cause of action and concentrating on the DN and TN, but you haven't pleaded anything like that. Not that that is a fatal bar, but even if accepted, it is not a complete defence. It is only a defence to claims over and above arrears and a couple or so CAGgers have come a cropper on a defence pleading the DN was defective and unlawfully terminated. You would most likely be refused permission to appeal against a finding of the court on an issue you had not raised. Don't let the issue about the right to sue slip through the net. It must be raised at the hearing next month and ideally, not before. The Claimants are free to discontinue or apply to the court for permission to substitute the creditor as Claimant. If the case is discontinued that's an end to it. If they apply to amend let's see what they say in the application notice. Whether this happens remains to be seen. They haven't clocked it yet, hence keep your cards close to your chest. Do not alert them. x20
  21. Yes it is beneficial to have the case on the small claims track. The strict rules of evidence are relaxed and above all, the power of a sucessful party to recover costs from the loser is severely restricted. x20
  22. I'd have a look at the element of interest included in the claim. Not just the bit they're adding on top but the entire element of interest. Interest is excluded when reckoning the value of a claim for the purpose of determining the appropriate track. See CPR 28.6(2). If you can show the amount in issue is less than £5,000.00 once interest is excluded, there would be justification for the case being allocated to the small claims track. Ultimately however, a judge decides which track the case is allocated to. x20
  23. As I understand it, the Defence was posted on 16 March 2009, pleading an 'embarrassed' defence which included a total denial of liability or cause of action or similar. I haven't actually been able to find the defence as filed on the thread. Is it here somewhere? The total denial of liability will suffice even though the denial lacks particularity. It puts the Claimant to proof of the claim. They have to prove every last bit of it. I suggested the OP let us know when the Claimant has given disclosure because what is disclosed by them will form the basis of the documentary evidence to be relied upon and an assessment of the position can be made in light of that disclosure. At present I am not expecting the Claimant to disclose evidence of assignment. Whether that is so will become clear in time. Assuming there is no evidence, the way to tackle the position is at the hearing by reference to the agreement and the absence of a plea to a right by assignment or evidence of assignment. The penny should drop pretty swiftly at that hearing. That 'penny' being of course that the Claimant has no legal interest in the subject matter of the proceedings or demonstrable right to sue. x20
  24. I wouldn't bother putting anything in 'Further Information', if what you put in is concerned with achieving something other than case management directions. The court wil not give consideration to striking out a claim or awarding you summary judgment unless you file an application notice, after which the court will give that consideration at the hearing of your application. x20
  • Create New...