Capquest Statutory demand help Urgent **WON + COSTS**

[surfaceagentx20]

Once your application to set aside the statutory demand (SD) has been received by the court, a Judge will look at it to decide if there is any merit in it. Believe me, yours has.

 

After deciding it has merit, the court will then list the application for a hearing and issue a notice to be delivered to the creditor to come to court on such and such a day when the application will be heard. You will note that at this stage the court has not decided to set the SD aside. It has only decided to allow you to progress with your application. It will not grant your application without giving the creditor an opportunity to state its case. The creditor's opportunity is at the hearing.

 

The reality will be almost certainly, that the creditor either [1] writes to the court saying it does not challenge the application or [2] doesn't attend the hearing.

 

Either way, attend the hearing of your application yourself in any case, to make sure the order setting aside the SD goes through. It is on the making of the setting aside order that you then have your opportunity to ask for costs.

 

What to do about Costs

Your right to costs is contained in The Litigants (Costs and Expenses) Act 1975. The Act gives the court power to award you money for the time you spend in dealing with the case at the rate of £9.25 per hour.

 

The costs in your case will be assessed by the court by a process known as summary assessment. Summary assessment involves the court in deciding what should be allowed there and then, without adjourning that question for a decision later. So to enable the court to make an assessment there and then you need to provide the court with information on paper.

 

A few days before the hearing work out how much time you have spent in research, case preparation, drafting documents and so on. Write that up on a MS Excel spreadsheet or similar with each column looking something like this:

 

(1)Date (2)Work Done (3)Time Spent (4)Rate (£9.25) (5)Amount

 

At the end include the time you haven't yet spent (even though the hearing hasn't yet taken place), add

 

[1] say 30 minutes for the hearing (it won't last that long)

[2] however long it will take you to travel to the court and back,

[3] another 30 minutes for hanging around waiting and

[4] any travel expenses / car park fees.

 

Finally,

 

[5] add say another hour for working out your costs calculation.

 

If my time estimates are light, add even more time.

 

Then, send the calculation off to the creditor in the post or fax. The calculation should reach the creditor not less than 24 hours before the hearing. By doing this, the creditor can not complain that it had no idea you were asking for costs and how much.

 

Take a copy of your calculation with you to court and present it to the judge once he has dismissed the SD and ask to be allowed the amount of costs in your calculation. Also take along a copy of your lettr sending your calculation to the creditor. Ask him to make an order that the costs are to be paid to you within 14 days.

 

The judge should make an order allowing you a sum for whatever costs he determines is reasonable and direct the creditor to pay that to you in 14 days.

 

If the sum ordered to be paid is not paid ... well you know the rest!

 

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[surfaceagentx20]

Golly, thanks ODC!

[surfaceagentx20]

Here's a draft supporting affidavit I just knocked out. You will need to complete the application notice as well obviously, but that is fairly straightforward.

 

The material in this draft shows all you need to show that the demand should be set aside. It places the debt in dispute on two substantial grounds (lack of notice of assignment and right of action barred).

 

You must exhibit the SD. There is no need to exhibit any other document.

 

Having shown the existence of a case, your application will be delivered to the Respondent. If they wish to challenge your case they will have to produce evidence to rebut your assertions. As and when and if they do, we can deal with whatever they use by way of challenge. Just deal with the basics for now. Don't try and second guess them.

 

Here's that draft:

 

IN THE (NAME) COUNTY COURT

SD No of 2008

IN THE MATTER OF THE INSOLVENCY ACT 1986

AND IN THE MATTER OF A STATUTORY DEMAND DATED (DATE)

 

BETWEEN

 

(Your Name)

Applicant

and

(Opponent's Name)

Respondent

 

AFFIDAVIT OF (NAME)

 

I (NAME) of (address)

MAKE OATH AND SAY AS FOLLOWS

 

1 That on (date) the statutory demand exhibited hereto and marked “A” came into my hands.

 

2 That I do not admit the debt set out in the statutory demand because the Respondent claims to have acquired the benefit of the alleged debt from (name) in or about 2006 by way of assignment. I deny having received at any time prior to the receipt of the statutory demand a notice of assignment or other information in writing informing me that the benefit of the debt had been assigned to the Respondent.

 

3 In any event the debt is not a judgment debt but a simple debt which to the best of my recollection and belief gave rise to a cause of action accruing not later than in or about 1997. To the best of my recollection and belief, no legal proceedings upon the cause have ever been issued or served upon me in consequence whereof, the right is now barred and has been so barred since in or about 2003 by reason of the provisions of The Limitation Act 1980 section 5.

 

4 In the circumstance I seek an order of the court that the statutory demand be set aside and that the Respondent be ordered to pay my costs of and occasioned by this application.

 

SWORN BEFORE ME

this day of 2008

 

Officer of the court appiointed to take affidavits.

 

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[surfaceagentx20]

The affidavit was drawn up without actually seeing the main body of the SD. If the claim is by way of an assignment the SD should say so in Part C. What does it say in Part C? Does the SD refer to assignment in the Particulars of Debt?

 

If neither, delete paragraph 2 of my draft and replace with:

 

I do not admit the debt because I did not enter into the contract with the Respondent as alleged and the subject of the demand.

 

If notice of assignment is given properly the notice will tell you that the benefit of the debt now belongs to 'A' and that discharge of the debt may only be made by paying the debt to 'A'. Simply telling you 'we've bought it' doesn't meet the requirements.

 

If notice of assignment was properly given delete my paragraph 2 and don't use new paragraph 2 either. Just go straight for the limitation point.

 

That the Respondent did not effect service in accordance with the rules is of no consequence on an application to set aside a SD where clearly a prerequisite of the making of the application to set aside is that the SD has come into the hands of the applicant for a setting aside order. That said, the Judge's eyebrow will cock to one side were he to read about the method of service and you will get a browny point for it. So on reflection, in paragraph 1 after 'my hands' add:

 

.. by second class postal delivery.'

 

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[surfaceagentx20]

OK, then may be notice of assignment was properly given. Not having seen what was sent in 2006, I wouldn't know for sure.

 

If the Particular of Debt refer to the assignment of the debt in summer of 2006, they ought also to specify when the debt was incurred. Do they give any information about that or do they keep mum?

 

As for the interest, they should include a calculation. Do they and if so from what date does the claim for interest run?

 

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[surfaceagentx20]

Just give me what you call the original date when the original agreement was taken out.

 

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[surfaceagentx20]

OK, where I say in para 3

 

'..gave rise to a cause of action accruing not later than in or about 1997'

 

substitute '1997' with '1999' on the basis of your statement that nothing had been paid for 9 years, appearing in post no1 in this thread.

 

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[surfaceagentx20]

Oh, and er change 2003 to 2005, right!

[surfaceagentx20]

Looks pretty ticketyboo to me

 

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[surfaceagentx20]

I just noticed your draft affidavit does not include an express denial as I had intended with the original drafting.

 

I suggest it should read as follows:

 

1 That on (date) the statutory demand exhibited hereto and marked “A” came into my hands.

 

2 That I do not admit the debt set out in the statutory demand because the debt is not a judgment debt but a simple debt which to the best of my recollection and belief gave rise to a cause of action accruing not later than in or about 1999. To the best of my recollection and belief, no legal proceedings upon the cause have ever been issued or served upon me in consequence whereof, the right is now barred and has been so barred since in or about 2005 by reason of the provisions of The Limitation Act 1980 section 5.

 

3 In the circumstance I seek an order of the court that the statutory demand be set aside and that the Respondent be ordered to pay my costs of and occasioned by this application.

 

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[surfaceagentx20]

Later.

 

First get the application in and a date for the hearing. You should get a date for hearing. Then let us know when the hearing is to take place. I'll guide you through the costs aspects in due course and at the right time.

 

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[surfaceagentx20]

Ok thanks m8 will do just thought it was to earlier a stage to put in a cost claim now. should i still put in this on the form (that the Respondent be ordered to pay my costs of and occasioned by this application.).Or is this basicaly letting the court know i want to be compensated for my time when that time comes.

 

Submit the affidavit as appears in the latest draft. The final paragraph records what you want the court to do at the hearing of your application. It also informs the opposition that you're gunning for them.

 

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[surfaceagentx20]

Any time stu, any time.

[surfaceagentx20]

If your bank's records go back 6 years and that has drawn a blank, that, coupled with your view that in reality you haven't paid them a bean in 8 years, suggests you're home and dry on the limitation defence.

 

I would say there is nothing further to do at this time and a SAR is not going to place you in a better position and would be a waste of a tenner. It will be for the DCA to produce evidence that the grounds on which you have applied to set aside the SD are misconceived. Pretty much then what you would be looking for with a SAR. That evidence will be in writing and delivered to you before the hearing. Unless they can produce unarguable evidence that the limitation defence is hopeless, we are in a dispute situation and the court will strike out the SD.

 

As and when and if the DCA serves evidence, let us know what they say. In all likelihood the next time you hear from them it will be to say their SD is withdrawn. Then beat them up for costs.

 

I would not expect the DJ to ask you any awkward questions unless something comes out in the DCA's evidence.

 

If you have nothing at all from them by say a few days to go to the hearing, post here again and I'll help you with a crib sheet and the procedure to ask for costs.

 

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[surfaceagentx20]

42 man is right. You should attend court to ensure the SD is set aside. You may also seek a costs order. To achieve a costs order you should draw up a bill of your costs for summary assessment and deliver it to the other side not less than 24 hours prior to the hearing. Use the name and address given in the SD for communication as the name and address to send your bill.

 

Use Form N260 to produce the bill. Enter the case particulars in the heading and leave the name of the Judge blank. The form is drawn for the use of lawyers but you may modify it as follows:

 

At description of fee earners write at (a) 'Litigant in Person'.

 

At 'work done on documents' insert at (a) a number as the number of hours you say you have spent on dealing with this matter. The hourly rate will be £9.25.

 

Then at 'Attendance at hearing', at the first (a) put the number 0.5 at £9.25 at at the second (a) (Travel and Waiting) put a number for the time it will take you to travel to and from the court pus 0.5 for the time you are likely to hang around waiting.

 

Then on page 2 insert a price for your travel, parking etc expenses.

The form will compute the values and spit out a total.

 

Incidentally I supped with Gary Husband in around 1983. I just wandered in to this boozer in Headingley, Leeds and there he was, on his todd propping the bar, totally off his face. At the time he was touring with Allan Holdsworth and Gordon Beck and I'd been to a couple of shows. Funny ol' world eh?

 

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[surfaceagentx20]

I advise that any person intending to claim a document or process in insolvency proceedings is invalid owing to some irregularity should first satisfy himself that he will be able to demonstrate to the court that substantial injustice has been caused owing to that irregularity.

IR 7.55 explains why:

 

No insolvency proceedings shall be invalidated by any formal defect or by any irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.

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[surfaceagentx20]

Can you see a court seal on the document / order?

 

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[surfaceagentx20]

The jist is this. It means just because the SD contains errors it does not follow like night follows day, that the SD will be set aside because of those errors.

 

Per Nicholls LJ:

'There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.'

 

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[surfaceagentx20]

If a debtor presents an application to set aside a SD and his only ground for having it set aside is that it was served by post, he is guaranteed having his application thrown out.

 

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