Court Papers arrived - Lowell Portfolio

[AngieB123]

Hi Guys,

 

This is my first post, so if I've done it wrong, I apologise.

 

This morning I received court papers from Northhampton CCBC regarding a debt that is apparently now owned by Lowells. This originally was a NatWest overdraft of £500 that escalated due to constant bank charges. The bank account itself is well over 6 years old, so I haven't bothered trying to claim the bank charges. At some point I think NatWest coverted the debt into a loan that I was paying back, but I'm not sure when or why the payments stopped. I do know it was a long time ago (at least 4 years) and due to having a flood at my house, I no longer have any of the paperwork.

 

The thing that concerns me is that on the court claim form, there is a sentence that reads,

 

'The benefits of the agreement were assigned to the claiment. Debt assigned on??/??/?? by Royal Bank of Scotland'

 

Firstly, why are there questionmarks in the date bit and are they allowed to do this?

 

Secondly, I have never had any dealings with the Royal Bank of Scotland. Could this be a mistake or is this who the NatWest had taken the loan with? (Not sure how it works)

 

And finally, should I admit to the debt in the hope that I can avoid a CCJ, or should I only admit to part of it (the original £500) or should I completely disagree and defend it seeing as the details seem to be incorrect and Lowells seem to have a reputation for being a bunch of cowboys.

 

The amount they are claiming for is £1725 + court costs.

 

I think that just about covers it. If you need any more details, please just ask.

 

I'd be grateful of any advice. Thanks.

[42man]

Hi Angie and welcome to the forums......you've got to acknowledge the claim within 14 days of the date on the claim form, and if you wish to defend all (which if you want to avoid any sort of CCJ is the thing to do) as partially defending will get you a CCJ. Then you state that you will be defending all, then you get a further 14+3 days in which to submit your defence.....the next stage is usually to issue a CPR31.14 letter but it would be useful to know what the POC's are ? (Particulars Of Claim) if you can state what these are (but don't be specific with the numbers)....that would help....and have a read round these forums and have a look at this one too - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[AngieB123]

Hi, and thanks for the quick response.

 

Ok, the POC reads:

 

'The defendant entered into an agreement with the Assignor, regulated by the Consumer Credit Act 1974. The Defendant failed to comply with the terms and the agreement was terminated in accordance with the statutory notice of default. The benefits of the agreement were assigned to the Claimant. Debt assigned on ??/??/?? by Royal Bank of Scotland

 

and the Claimant claims:

 

1. £xxxxx

2. Statutory interest pursuant to Section 69 of the County Courts Act (1984) at a rate of 8.000% per annum from xxxxx to xxxxx £0.00, and thereafter at a daily rate of £0.00 to date of judgement or sooner payment.

 

Agreement xxxxx: xxxxx

Ref: xxxxxx

Edited April 9, 2009 by 42man
Edited due to possible recognition of the cagger

[postggj]

have you had any contact with scowells before court action

[AngieB123]

No, They've sent me the usual threatening letters and countless phone calls but I haven't actually spoken or written to them.

[palomino]

A tactical thought : do not admit to part of the debt. You may have a default judgment awarded against you for the part you admit to.

[AngieB123]

Good point. The thing that's niggling at me is the 'Royal Bank of Scotland' bit. Like I said earlier, I've never had any dealings with them at all.

[Alphageek]

I think RBS own Nat West now.

[42man]

OK have a good read of this letter (you will need to EDIT it).....and send recorded delivery to the opposing solicitors - and have a good read here - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

4 the termination notice

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

[creditcardmug]

Hi, follow the advice of 42man for now, bump the thread over the weekend, i will be able to help you more with this.

 

Make sure when you acknowledge that you intend to defend all, but dont enter a defence yet

[AngieB123]

Thanks for your help guys. The letter is printed and ready to post, along with my acknowledgment and intention to defend.

 

My only problem now is that I am going on holiday next week. Typical! My first holiday in 7 years and all this comes along to spoil it.

 

Will be back on 22nd April though, so as long as these letters are sent before I go, hopefully it won't cause too much of a problem.

[creditcardmug]

If you file the acknowledgement, you the have a total of 33 days from the date on the claim form to file your defence...nothing of any significance will happen in the meantime!

 

So take your holiday, and dont worry, just come back here when you return, and we can sort out the defence...these things drag on for months, so go and enjoy yourself:)

[AngieB123]

Hey guys. Well I'm back now, so could do with a hand entering a defence?

 

I sent the CPR 31.14 request letter 10 days ago, but haven't heard anything back from them.

 

What do I do now?

[postggj]

angie

 

did you acknowledge the n1 claim

if not, you need to now to stop a judgement by default

[42man]

Have a read through these -

 

CL Finance Ltd. Recieved a court claim form**WON** Discontinued

 

Lloyds TSB Credit Card - Claim form received

 

Help! - AMEX No CCA and they've started court action.

 

Help - Mum being taken to court by Link Financial.

 

welcome fianance/Court case started.

 

Help! Court Claim from Howard Cohen on behalf of GE Money

 

1st Credit vs Animal

[creditcardmug]

Hi again, have a read of this let me know what you think,

 

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxxxx - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxxx

 

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.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) ) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

e) . It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

 

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

 

 

The Request for Disclosure

 

9. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

10. To date the claimant has not replied

 

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

16. The claimant is therefore put to strict proof that such a compliant document exists

 

 

17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

22. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxxxxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

[42man]

Good one above form CCM or possibly this one....

 

1 The Defendant denies ever having been indebted to (NAME OF BANK) and denies credit has ever been advanced to him/her by (NAME OF BANK).

 

2 The Defendant repeats paragraph 1 of his/her Defence and denies a debt was and/or was capable of assignment by (NAME OF BANK) to the Claimant.

 

3 The Claimant's claim to be entitled to £XXXXX for debt, to statutory interest or to any monetary or other relief of any kind is denied.

 

4 No documents supporting the claims in the particulars have been offered and despite a request to the Claimant for further information made under CPR 31.14, none has been forth coming

 

I BELIEVE THE FACTS SET OUT IN THIS DEFENCE ARE TRUE

 

Signed:

 

Dated:

[I've got no money]

I've had a quick look at the claim form.

 

I think that you need to do a CPR Part 18 request as well - you want to know when they say this assignment was actually signed.

 

I'll sort one out and post it late today

 

As far as the CPR 31.14 is concerned - you need to do a chasing letter to the other side - give them 7 days to provide the requested information or you will apply for an Order and for costs

 

So you got the summons on the 8th of April - you don't neeed to file a defence until early May

 

The way it works is that, providing you file your AoS, you have 28 days plus 3 days from the date of the summons - which would take you into May .

 

I think that you need to see what if anything your Part 18 and CPR 31.14 requests turn up. I wouldn't worry about a defence for another week or so.

[I've got no money]

IN THE CLAIM NO: XXXXX

NORTHAMPTON COUNTY COURT

 

 

BETWEEN

 

 

XXXXXXXXXX

 

CLAIMANT

 

 

 

AND

 

 

 

XXXXXXXXXXX

 

 

DEFENDANT

 

 

 

REQUEST FOR FURTHER INFORMATION OF THE CLAIM DATED 24th April 2009 PURSUANT TO CPR PART 18

 

 

 

 

Of “The benefits of the agreement were assigned to the claimant. ”

 

Request

 

The Claimant is requested to:-

 

(a) Identify the manner in which the aforesaid assignment was executed and to specify the names and occupations of any signatories thereto.

 

2. Of “Debt assigned on ??/??/??”

 

Request

 

The Claimant is requested to:-

 

(a) Identify the date of the aforesaid assignment.

 

 

The Claimant is requested to provide a reply to the above stated requests by the 9th May 2009

 

Dated

 

Signed------------------------------------

Defendant

(insert home address)

 

 

I'd suggest that rather than filing a masive defence as suggested that when you do file a defence that it is much shorter. I'll post a suggested version later

Edited April 24, 2009 by I've got no money

[I've got no money]

Assuming that they don't give proper disclosure what I would suggest in terms of a defence is something along these lines

 

 

IN THE

XXXXX COUNTY COURT CLAIM NO:

 

BETWEEN

 

 

xxxxxxx

 

 

CLAIMANT

 

 

And

 

 

 

 

 

XXXXXXXX

 

 

DEFENDANT

 

 

 

 

DEFENCE

 

 

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of anysuch agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

5. It is not admitted that the aforesaid agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

6. If, which is not admitted, an Assignment to the claimant did occur it is averred that for such an Assignment to be lawful that notice of it must be served in accordance with the terms of the Law of Property Act 1925.

7. It is not admitted that the notice required by the Law of Property Act 1925 was served upon the Defendant. The Defendant has not seen any such notice and does not admitting being served with a copy thereof. The Claimant is put to strict proof as to the content and the manner of service of the alleged notice.

8. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

9. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all.

10. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

 

Signed XXXXX

Date

 

 

All you are actually doing is doing a temporary defence that, if you get disclosure, will be amended later anyway. If you don't get disclosure then hopefully you will have had them struck out so it won't matter anyway.

BUT - you don't need (and indeed you shouldn't actually include all that law). If the case ever gets to trial - not only is it a nightmare to amend but also it doesn't actually help - all of those the chunks of law should actually be dealt with separately in a skeleton argument

Edited April 24, 2009 by I've got no money

[creditcardmug]

The reason i favour the long defence is that they sometimes apply for summary judgement after the defence has been filed, should this happen, at least you have got your ammo in first.

As far as disclosure goes, i believe its better to have the court order it in the directions following the AQs.

 

Thats why i dont agree with you, but we are all entitled to our opinions

[I've got no money]

The reason i favour the long defence is that they sometimes apply for summary judgement after the defence has been filed, should this happen, at least you have got your ammo in first.

As far as disclosure goes, i believe its better to have the court order it in the directions following the AQs.

 

Thats why i dont agree with you, but we are all entitled to our opinions

 

In my experience if you file a holding defence saying that you haven't had sufficient information to answer the claim they invariably send you a wad of docs - give it a week and then apply for SJ.

 

The realiity is that you haven't got your argument in first - the Judge hears both sides at the SJ hearing - you can (and should) get all the law in via skeleton argument. the other thing of course is that if you've got an oiutstanding 31.14 request - they're a lot less likely to get anywhere with an SJ

 

The problem with waiting for disclosure until AQ is that - if its' an SCT claim the disclosure obligations are much more restricted and in all cases more importantly you are then in a position of having to amend at a very late stage (when you do get disclosure). You're also in the position that post AQ you have other directions to comply with and people sometimes end up filing witness statements before they've had disclosure because they don't understand the process.

 

If you get your CPR 31.14 in quickly - you aim to get your order either before allocation - as a pre-requisite to anything else. You have more time to get unless orders to avoid trial. The idea is to get the other side struck out before you have to draft witness statements

 

Don't forget that in Rankine the court criticised long rambling pleadings - which is exactly what the "embarrassed" pleadings are...

 

I think it's interesting that most of the successes on CAG seem to be on interlocutory points - where the other side get struck out for not doing something -the impression that I get is that its' much harder to succeed at full trial.

 

I personally would not want to fight a case on the basis of the embarrassed pleadings - and I have more litigation experience than almost anyone else on CAG.

Edited April 27, 2009 by I've got no money

[I've got no money]

I accept that drafting pleadings for an LIP is a bit of a compromise.

 

If I were in practice what I would be doing in most of these cases would not be filing defences at all. I'd be filing AoS's - making 31.14 requests and getting the time for filing the defence extended until the other side provided the information. If it wasn't provided I'd be having them struck out without a defence being filed. Incidentally they wouldn't be able to apply for SJ until they'd provided proper information and until a proper defence had been filed.

 

That approach is a bit more complex and is more difficult where people are anxious about a defence being submitted so my compromise is to suggest a holding defence and 31.14.

[AngieB123]

Wow. I'm feeling a bit thick here. It all seems rather complicated to me and I'm struggling to understand it.

 

Should I wait til the end of the week and see if I've heard anything back from Lowells before I submit a defence?

[I've got no money]

Can I check - have you done a chasing letter to your CPR 31.14 request.

 

If you haven't do it now and give them another 7 days to reply. If they haven't responded in 8 days, or you have chased and you haven't had a reply, you need to make an application on an N244 for an Order that they comply

 

- when is your defence due...If you received the claim on the 8th of April (the most important day of the year - cos its' my birthday" - you still have plenty of time - providing that you have already returned the AoS saying that you're going to defend you don't need to worry about the defence for another week or so.