How do you defend against pitiful Particulars of Claim?

[ScabHunter]

How do you defend against pitiful Particulars of Claim?

 

Vitally important question. When you receive a claim form with Particulars of Claim such as these -

 

The Claimant is part of the Cabot Financial Group and has purchased the debt scheduled below. Despite requests for payment the defendant has failed to pay the sum of (4 figures) in relation to the defendants XXXXXX XXXX Ltd credit card account number **********

and the claimant claims the sum of **** together with interest under section 69 of the County Courts Act 1984 and costs.

 

- how on Earth do you defend against them?

 

I have seen it advised that we should be submitting a short "embarrassed" defence which does nothing more than refute what is in the PoC. An example is here -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188838-gktp-embarassed-5.html#post2356056

 

This type of defence has been successful in getting the PoC struck out in one recent case I have seen, but in another the results are quite different. The defendant sent requests for information under the Civil Procedure Rules, but was totally ignored. When it came to the Allocation Questionnaire stage, he then used the Draft Order for Directions contained here -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html#post1382499

 

- but the judge took no notice. Now, he has to deal with a situation where there has been no disclosure of documents, and no opportunity to submit an amended defence. He will now have to face the hearing without the opportunity to submit a proper particularised defence.

 

Questions -

 

1) How should someone defend against such pitiful PoC?

 

and

 

2) IF the answer is to submit an embarrassed defence, what do you do when the court doesn't back up your request for disclosure?

 

We are being flooded with cases featuring these same PoC, so these questions need to be answered.

 

All input is welcome.

 

SH

[foolishgirl]

In the case you quote SH, where no directions were given, IMO the way to get a result would have been to send a CPR31.14 as soon as the POC arrived. If it wasn't complied with & directions were also not forthcoming, it would then have been possible to put in an application for disclosure based on the CPR not being fulfilled. Failure to then comply would put the claimant in an invidious position when it came to a hearing. At the very least, the DJ would have to order an adjournment for docs. to be produced although if it were me, I would object to that & request an immediate strike out.

 

You don't say under which CPR the request was made. If the hearing has not taken place & CPR31 has not been complied with, it's not too late to make an application. There is a fee but should be recoverable by the victor as part of the costs.

[lilly white]

have a read.

 

1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:-

 

 

a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a xxxxxxxxx card- the only matters pleaded.

 

 

No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not).

 

 

 

b) Neither the Claimant being Cabot Financial Group can give rise - on its own - in English Law to a liability to the Claimant to pay sums which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due

 

 

c) In any event, it is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant.

 

3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by " xxxxxxxx (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between xxxxxxxxx and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement

[ScabHunter]

Thank you foolishgirl and lilly white for this extremely useful input.

 

Foolishgirl,

 

As far as I know the only request made was under CPR 18. I have been thinking for a long time that x20's CPR 31.14 letter is pretty much an essential. The problem is that it only covers documents mentioned in the statement of case, and this is presumably why Cabot and their like keep issuing claim forms which mention virtually nothing.

 

The CPR don't even seem to be clear on what "mentioned" actually means. Does it mean a specific mention, or mention by implication? Even the agreement is not directly mentioned in these ridiculous PoC, although it mentioned by implication due to the allegation that the defendant had a credit card account with XXXX XXXX bank.

 

There is clearly no hope of getting the default notice using CPR 31.14, and couldn't Cabot (or whoever) even allege that the agreement isn't even mentioned in the statement of case?

 

Lilly White,

 

That is a very interesting defence, and quite different from most I have seen on here. Is it your own composition?

 

I can see that it directly refutes the Particulars of Claim.

 

Is it not important to mention the need for a valid default notice somewhere in the initial defence, just in case you don't get the chance to submit an amended one?

 

Should you not also mention the fact that the interest being claimed under section 69 of the County Courts Act 1984 is not applicable in cases regulated by the Consumer Credit Act 1974, and that therefore the claimant's entitlement to this relief is denied?

 

Now that the CCA 1974 has been updated, are we on dodgy ground with point No.3 - there is nothing to suggest that the agreement is not post-2006, and therefore regulated by the CCA 2006?

 

Shouldn't the word "original" in point 3 be "origin"?

 

Just playing devil's advocate, you understand - not trying to undermine your extremely valuable contribution.

 

SH

[lilly white]

I have seen and used defences however

 

 

I now used the one posted.

 

We approach our defence because we are worried we try to put things in there that give hope.

 

 

Why do that.

 

They have made the claim so they must prove it in law

 

 

. Without the agreement

 

without the deed of assignment

 

without the default notice, without statements and no termination notice .

 

WE ARE IN COURT THE LAW IS THE LAW

 

 

The above defences is the work of someone else and i will give a link however i have used somthing like this and it does work.

[lilly white]

http://www.consumeractiongroup.co.uk/forum/general/204926-just-back-court-3.html#post2325124

[angel_1]

hello scabhunter

 

ive come across this thread of yours and have subbed if i may pls as ive found it very helpful with many points id not thought of

 

catch up over the weekend sometime take care

 

have a sunny day laters angel x