HSBC CCA going to court

[nick20045]

MCOL word count is 8000 so plenty of scope there. Also, when the defence is returned to the court via online then THE COURT will serve the defence on the claimant - no need for 3 copies.

 

M

Have you read the draft defence? Is 8000 enough to cover 7 pages? Can you attach exhibits to MCOL?

[MandM]

Have you read the draft defence? Is 8000 enough to cover 7 pages? Can you attach exhibits to MCOL?

 

Draft Def is only about 3500. Not sure about attaching exhibits. I'm sure others will comment.

 

M

[nick20045]

14/12/09: County Court Claim Form: on behalf of CL Finance Ltd

 

What do we do next?

28 days from 14/12/09 is really today. Check with the County Court. You do not have any time really to "play about".

 

Note: In a claim that I had issued the defendant was supposed to have replied by the 29th December but they replied by the 30th and the Court accepted it. BUT do not take this as a rule.

 

You will notice from the attached it says:

The defendant has 28 days from the date of service of the claim form with the particulars of claim, or of the particulars of claim, to file a defence.

 

Check the date it says on your claim form stating when the dates start.

 

[MandM]

Date on the claim form plus 5 days for service = 33 days. DON'T miss the date.

 

M

Edited January 12, 2010 by MandM
typo, fat fingers

[Gemz]

The information given is correct.

 

My father is phoning the local court this PM, as we are both at work currently.

I will ask the question and post reply from them ASAP - this will dictact how we proceed, I assume.

[Gemz]

Date on the claim form plus 5 dats for service = 33 days. DON'T miss the date.

 

M

 

The date was the 14th December, so that gives until 16th January - Saturday, if I've counted correctly.

[MandM]

So go for Friday! If your PC crashes or throws a wobbly on the last day then they may win by default through no fault of your own. Better safe than sorry (sound like my nan).

 

M

[Docman]

I believe the limit on filing with MCOL is 8000 CHARACTERS, not words. The draft defence is almost twice that size, partly because it includes the regulations and the judges words in the case law. Neither of these are required at this stage. The result is a defence document that is too long and quite often not relevant to the points at issue.

 

As to the procedure at Northampton, I doubt very much that any human being (let alone a judge) will get involved in the process. Even the insertion the name of the local court can be done electronically by reading the defendant's post code. It is far more likely that an automatic mailing of the defence is sent elecronically to the claimant's solicitor and the transfer papers issued.

 

There is an exemption to CPR 16 that applies to MCOL cases so that the exhibits do not have to be served with the claim form. If no documents are served separately by the claimant, IMO you should just file a short holding or 'embrassed' defence with Northamton and include a request to file an amended defence if and when the claimant supplies the documents.

[nick20045]

Date on the claim form plus 5 days for service = 33 days. DON'T miss the date.

 

M

Wrong: 4 days. Read the Practice of Directions and CPR rules. They are on the draft defence. Court posts unrecorded so can claim 2nd class post.

 

11: Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

12: Further to point "10" above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

[MandM]

I believe the limit on filing with MCOL is 8000 CHARACTERS, not words. The draft defence is almost twice that size, partly because it includes the regulations and the judges words in the case law. Neither of these are required at this stage. The result is a defence document that is too long and quite often not relevant to the points at issue.

 

As to the procedure at Northampton, I doubt very much that any human being (let alone a judge) will get involved in the process. Even the insertion the name of the local court can be done electronically by reading the defendant's post code. It is far more likely that an automatic mailing of the defence is sent elecronically to the claimant's solicitor and the transfer papers issued.

 

There is an exemption to CPR 16 that applies to MCOL cases so that the exhibits do not have to be served with the claim form. If no documents are served separately by the claimant, IMO you should just file a short holding or 'embrassed' defence with Northamton and include a request to file an amended defence if and when the claimant supplies the documents.

 

Thanks Docman. 8000 words/charachters!!! Slight difference lol.

 

Totally agree that ED is the most suitable way forward at this time and then turn the screw from now to AQ.

 

M

[nick20045]

The information given is correct.

 

My father is phoning the local court this PM, as we are both at work currently.

I will ask the question and post reply from them ASAP - this will dictact how we proceed, I assume.

Yes. The County Court staff are not allowed to give legal advise but they have to give advise regarding Court procedure. (Try and get the name of the person you talk to and make a note of it. Also take notes of what you are being told to make sure all is correct).

[nick20045]

I believe the limit on filing with MCOL is 8000 CHARACTERS, not words.

I thought so as well.

 

The draft defence is almost twice that size, partly because it includes the regulations and the judges words in the case law. Neither of these are required at this stage. The result is a defence document that is too long and quite often not relevant to the points at issue.

Which parts are often not relevant to the points at issue? Dont forget it is a full defence.

 

The claim refers to:

a: CCA 1974

b: A default notice being served

c: Notice of assignment

 

They have all been taken apart, dismissed and relevant law referred to.

As to the procedure at Northampton, I doubt very much that any human being (let alone a judge) will get involved in the process. Even the insertion the name of the local court can be done electronically by reading the defendant's post code. It is far more likely that an automatic mailing of the defence is sent elecronically to the claimant's solicitor and the transfer papers issued.

Fair enough but:

a: The defence is on file. If it still gets transferred then the Judge at the local County Court has it on file.

b: The claimant will see that they have no chance of success and cancel the claim.

 

There is an exemption to CPR 16 that applies to MCOL cases so that the exhibits do not have to be served with the claim form. If no documents are served separately by the claimant, IMO you should just file a short holding or 'embrassed' defence with Northamton and include a request to file an amended defence if and when the claimant supplies the documents.

That can be a good idea to file a "Short holding statement". But to file an "embarassed defence" I dont really agree with it.

[Gemz]

Ringing the court now with the questions, will update when finished...

[gh2008]

Maybe I'm missing something here, but as the claimant is in default of a S78 request then surely the defence should at least mention that the claimant is not actually permitted to bring the case anyway. The claimant can bring it without an agreement or a DN (obviously if properly defended unlikely to win) but whilst in default of an S78 they can't.

 

Pretty straightforward holding defence & a strike out application to me.

[MandM]

 

Pretty straightforward holding defence & a strike out application to me.

 

Agree totally,

 

M

[Gemz]

They said to enter the defence and it will be transferred automatically.

[MandM]

They said to enter the defence and it will be transferred automatically.

 

Then crack on with your defence, put it up on here when you're happy with it and i'm sure we'll be happy to pick holes in it for you.

 

M

[Gemz]

Nick - On the draft statement, under 24 - what date should this be?

 

Should a holding defence be a different statement then?

[gh2008]

keep a careful check on your time spent as well £9.25 an hour

[Gemz]

Then crack on with your defence, put it up on here when you're happy with it and i'm sure we'll be happy to pick holes in it for you.

 

M

 

Isn't the defence the document Nick posted?

[MandM]

IMO not at this stage. As pointed out previously you're only submitting a holding defence as they've given you little to defend. Then you can start on them

 

M

Edited January 12, 2010 by MandM
typo

[MandM]

Have a look back in Post 35 and adapt to suit.

 

M

[gh2008]

IMHO I would go down the proven route of

 

1. holding defence

2. wait for local court transfer

3. apply for strike out (& costs) on abuse of process (default of S78) and of no reasonable grounds and/or no real prospect of success (the other bits)

[Gemz]

In the Northampton County Court

Claim number XXXXXXXX

 

Between

 

 

 

C L Finance Limited

 

and

 

 

XXXXXXXX - Defendant

 

 

 

 

 

 

 

Defence

 

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

 

2. Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

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 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 accounts, has not been served attached to the claim form.

 

d) A copy of any termination notice served under section 76 and/or section 98 of the CCA, on the alleged account, has not been served attached to the claim form.

 

e) A copy of any notice of assignment compliant with the provisions of the Law of Property Act 1925, on the alleged account and proof of original service of said assignment to the defendant, has not been served attached to the claim form.

 

f) The defendant requested information referred in the claim under CPR 31.14 from the claimant by Royal Mail Special Delivery. The request was received by the claimant on the 30th December 2009, compliance with the requests has now expired. The defendant wishes to make the court aware that the claimant is trying to frustrate proceedings and denying the defendant an opportunity to file a defence and counter claim.

 

5. 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.

 

6. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

7. I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim.

 

8. I respectfully request that the court consider striking out the claim under CPR 3.4.2(a) because it is not fully particularized nor offers any legal cause of action.

 

9. I respectfully request that the court consider striking out the claim under CPR 3.4.2© because, in light of the failure to respond to CPR 31.14 request, the Claimant is unable to substantiate their claim with documentary evidence.

 

Statement of Truth

 

 

I XXXXXXXX, believe the above statement to be true and factual

 

 

Signed

 

Date

 

 

 

Date was checked, happened to be the same as the other OP.

[Gemz]

IMHO I would go down the proven route of

 

1. holding defence

2. wait for local court transfer

3. apply for strike out (& costs) on abuse of process (default of S78) and of no reasonable grounds and/or no real prospect of success (the other bits)

 

Is holding defence what I've posted above?