Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

[pt2537]

THIS APPLIES PRIMARILY FOR CASES WHERE THE AGREEMENT WAS ENTERED INTO PRIOR TO THE 6TH APRIL 2007.

 

THAT SAID, THE RULES OF DISCLOSURE APPLY TO ALL LITIGATION

 

 

ITs become clear that simply placing a creditor to strict proof on a holding defence will not work. The Civil Procedure Rules are there to allow you to obtain information from the Claimant and to allow inspection of documents etc which the Claimant is going to rely upon, these provisions are there so that you are in possession of the documents before you have to file a defence.

 

 

this thread will provide assistance where you need to request the documents using CPR 31.14 http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

 

CPR 31.14 allows you the right to request documents mentioned in a statement of case. Most of us are aware of this, but CPR 31.15 provides that upon receipt of a written request, the Claimant must allow inspection within 7 days

 

31.15

 

Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

 

So, if the lender doesnt give you the docs after being served with a written letter requesting the documents upon which they rely and which are pleaded, then you should raise this matter with the court, not by writing to the court but by making a formal application for an order compelling disclosure.

 

This will most likely bring an order for costs against the claimant too, so will make them realise that you mean business too.

 

The other point to note is CPR 15.5 allows you to agree an extension of time for filing the defence. So you can get 28 days ontop of your 28 days to file.It is always advisable to file an acknowledgment of service this gives you the full 28 days, you can state an intention to defend for now, you can always change the view once disclosure takes place. you need an agreement from the Claimant to do this and you need to write to the court to advise that you have indeed agreed with the claimant to a 28 days extension, this is an obligation of the Defendant to notify the court so YOU MUST do it if you reach an agreement with the Claimant, do not rely on them doing it cos you will end up with a Default Judgment.

 

If the Claimant cannot disclose then you cannot plead and this is where an application to strike out the case should be used in my opinion, there is no point filing a verbose defence which deals with everything and the kitchen sink where you dont even have the agreement they are reliant upon.

 

The CPR is there to help you, to help the court effectively manage the case and to set out what is expected from a claimant. it is unlikely that the court will refuse to order the Claimant to disclose to you the docs upon which the claim is based and the court will also take into account the fact that you will need more time to file your defence too,providing you ask for it!!

 

By securing the documents, you are ensuring that you dont file a verbose and meaningless defence when based upon the documents you dont have a defence, as this simply adds to the legal bill that you will have to pay. If you dont have a defence then you need to accept it, dont waste time defending the indefendable. I know it sounds harsh but you are the person who foots the bill if the case is lost, now its better to admit defeat early than taking it all to trial and then losing. a solicitor will struggle to justify more than a few hundred pounds within 14 days of issue, but believe me, its easy to run up 10 -25k of costs going to trial.

 

Im not trying to put a downer on things, but just trying to be realistic.

 

I intend to add to this post as i get time, however if you are in need of legal advice the you should consult a qualified solicitor , this guidance is offered without prejudice .

Edited January 13, 2010 by pt2537

[pt2537]

Ok , another point to take, many of the courts i work in have started to become frustrated by litigants in person filing huge verbose and meaningless defences which cite near on whole cases without setting out the reasons or the points which are relevent.

 

Defences

 

1. Leave the case law out. it serves little purpose to start quoting huge sections of cases in your defence. you will draw the judge to the relevent points of case law in the skeleton argument. the main thing you want to do is keep the judge interested, when he reads your defence, you want him to read start to finish not get faced with half way through the defence having to read most of Wilson and First County trust. however, if there is legislation that has not been complied with then for sure you want to mention this. the key is keep it clear, concise, and to the point. if there has been a breach of the consumer credit act then plead the breach, if the court cannot enforce the agreement then plead this, but dont waffle about Lord Justice Tuckeys judgments unless it is 100000% relevent, and i can tell you it wont be!!!!!

 

2 if there is no agreement then there is no need to go through the subsections of the Consumer Credit Agreement Regulations 1983 citing the prescribed terms are missing etc. Quite simply, if you NEVER signed an agreement ( yes it does happen) then all you need to say is,

 

It is denied that a credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the court shall not make an enforcement order.

 

PLEASE NOTE THE ABOVE ONLY STATEMENT IN BLUE IS ONLY APPLICABLE WHERE THE AGREEMENT WAS ENTERED INTO PRIOR TO 6TH APRIL 2007

 

 

that is all that would need to say. obviously you would need to pack it out a little, but if you cant do that then you need a solicitor!! cos you are outta your depth. you need to set out the entry into credit, for example if you went into the branch of your bank and they simply asked you " do you want a credit card" and then 3 weeks later it fell through your letter box, then thats what you say.

 

Witness statements

 

3. witness statements are exactly that, witness statements, they are not skeleton arguments and should not be coinfused with them. your witness statement is your evidence, what YOU are going to say at trial. are you going to stand there and quote 11 paragraphs of wilson and first county trust while in the witness box under cross examination??? ?HELL NO of course your not , your gonna say , what happened when you entered into the agreemnt, your gonna say you never signed the agreement ( if thats the truth) and your gonna say what YOU know from your own memories and experiences. so thats what you put in your witness statement.

 

 

For example

 

3. The claimant has produced at exhibit XXXX 1 a copy of a credit agreement, i do not recognise this as my agreement as the document i was presented in 1998 was a single piece opf paper which i receved in my local branch. it was printed before me and was handed to me by the clerk.

 

4. There were no terms and conditions presented to me at that time.

 

5. the card arrived attached to a single piece of paper , this was a a4 piece of paper and had ............

PLEASE REMEMBER> you do not lie, if you cant remember then you say you cant remember, do not lie as it will discredit you if the other side catch you out and any chance of success you had just went down the toilet.

 

 

 

Skeleton Arguments

 

The skeleton argument is where your legal arguments are set out. you should exchange skeleton arguments before the hearing, this normally takes place 2 days before the hearing but can take place on the day (although i would want to make sure the judge has a copy before i get there)

 

This is the place for your references to Lord Nicholls of Birkenheads judgment, or whatever else you wish to argue.

 

i will try and post up an example skele so you can see how to set it out

 

 

DEADLINES

 

Another point which seems to be missed, is that you can consent to extensions of time for defences, witnesstatements etc,

 

So, obviously you can seek under CPR 15.5 for an extension of time to file your defence of upto 28 days

 

you can also contact the other side and seek to agree to extend the time for filing your witness statement if you genuinely need it

 

DO NOT BE FRIGHTENED TO PICK UP THE PHONE and call your opponent,ask them to agree an extension of time, and then confirm your conversation in writing with them. i would be very surprised if they refused as the court would normally make an order to extend the time frame if asked so, they would be at risk of costs if they refused

Edited May 13, 2010 by pt2537

[Ruprecht]

If you managed to get a copy of the agreement and it was clearly unenforceable do you think you should go for summary judgment or leave it for the trial?

[pt2537]

If you managed to get a copy of the agreement and it was clearly unenforceable do you think you should go for summary judgment or leave it for the trial?

The test for summary judgment is the sticking point.

 

If there is no agreement cos you never signed one then yes SJ would be appropriate in the same way as if the amount of credit on a fixed sum agreement is misstated then SJ is the way forward.

 

However if there is a argument over the construction of the CCA 1974 then it is most likely that trial will be the correct arena and that moreover you risk adverse costs seeking SJ

 

each case of course is different

[pt2537]

POOR Particulars of claim

 

If i had a pound for every set of pleadings which i saw and which said "the claimant claims monies due" and very little else id be very rich ineed. In fact these forums are rife with them,

 

Now, the problem is when people recieve a claim like this they answer it with some lengthy verbose defence which pleads that you cant plead cos the POCs are vague

 

then what happens , is this plods along for 8 9 or 10 months when you get to a trial

 

and you go in and say but i didnt know or understand what this case was about cos the pleadings were too vague, then the judge looks at you and says " well you silly boy, why didnt you do something about it earlier, youve let this go on for so long............" and either you get A) an order that the Claimant must replead and you have to pay their costs or B) you get told tough you should have made an application and then you have a trial on frankly a CRAP set of pleadings, doesnt do you any good nor do you get justice

 

If the Claimants claim is sooo damn vague that you honestly do not understand what its about, then you should ask the claimant to replead their case properly at the same time as you ask for disclosure. put it clear, the pleadings are not good enough for a trail and therefore ask them to plead their claim properly or you will make an application to the court for an order compelling them to plead proper. After all, a judge will want a properly pleaded claim and defence and both cannot be achieved unless you have all the documents etc that you need and the case is properly put together,

 

So start using the rules to your advantage,

Edited January 14, 2010 by pt2537

[NoJusticeJustUs]

Ok then,

 

so if a claim is brought and it has poor/non existent POC - not properly pleaded and the claimant say in their allocation questionnaire that they do not have to comply with pre-action protocols..having not contacted you prior to submitting this to the court,

 

and you put in a great deal of supporting info to yours including this fact and request either a strike out or disclosure, having already served a notice for disclosure under CPR 18 and 31.14 etc on the claimant (no response within prescribed time limit, so no docs to base amended defence upon and original defence could be said to be embarrassed)

 

and then you get...

 

A Notice of Allocation from the court stating that:

 

*A strike out has not been granted but any application for one should be made properly and on reciept of notice

 

*Disclosure should be made of copy documents and statement (- but no list of what should be disclosed altough an order for disclosure was also put forward in the AQ)

 

*Pre-trial checklist to be filed

 

What would you make of this? If you have gone through all the recommended steps... what would you do next?

[pt2537]

Ok then,

 

so if a claim is brought and it has poor/non existent POC - not properly pleaded and the claimant say in their allocation questionnaire that they do not have to comply with pre-action protocols..having not contacted you prior to submitting this to the court,

 

and you put in a great deal of supporting info to yours including this fact and request either a strike out or disclosure, having already served a notice for disclosure under CPR 18 and 31.14 etc on the claimant (no response within prescribed time limit, so no docs to base amended defence upon and original defence could be said to be embarrassed)

 

and then you get...

 

A Notice of Allocation from the court stating that:

 

*A strike out has not been granted but any application for one should be made properly and on reciept of notice

 

*Disclosure should be made of copy documents and statement (- but no list of what should be disclosed altough an order for disclosure was also put forward in the AQ)

 

*Pre-trial checklist to be filed

 

What would you make of this? If you have gone through all the recommended steps... what would you do next?

 

well id say that the court was correct.

 

You should apply using a N244, if you do not get disclosure, it would seem you have filed a defence which goes against what i set out above. if the lender refuses or resists a request under CPR 31.14 ( not part 18 as they are made via different procedure) then the only route is to seek an order at a hearing for disclosure and an extension of time for pleading

[NoJusticeJustUs]

The defence was very short - 2 paragraphs. Straight to the pojt - no case law.

 

The allocation questonnaire spporting info was long - as advised by the court officers.

[pt2537]

The defence was very short - 2 paragraphs. Straight to the pojt - no case law.

 

The allocation questonnaire spporting info was long - as advised by the court officers.

Court staff are not insured, allowed or qualified to give that advice, if the defence was to the point and the claim actually lacked merit, was an abuse of the process etc then a strike out application should have been filed.this is the problem which people face, sit back and wait for things to happen and thats when you get stung

 

proactive rather than reactive is the way.

[NoJusticeJustUs]

Just to clarify, maybe advised is a bit strong then -they said to include as much info as possible.

 

Anyway, is all resolved now, so no strike out will be necessary.

 

The court staff couldn't have been more helpful - and also thanks to CAG - invaluable!

 

People do need to be careful as it is easy to get tripped up when you are going it alone!

[Ruprecht]

Let's say it gets to allocation stage and the amount is under £5000.00.

 

Would it always be best to tick for the small claims track?

 

(1) In a case where they haven't come up with an original agreement (yet);

 

(2) In a case where they admit there is no original agreement available anymore;

 

(3) In a case where the agreement they have come up with is unenforceable.

[pt2537]

i wouldnt let it get to allocation without the agreement, cos that implies youve filed a defence, which should not have happened without the agreement cos how can you defend a claim when you dont have the key principle document which the claim is based upon?

[Ruprecht]

i wouldnt let it get to allocation without the agreement, cos that implies youve filed a defence, which should not have happened without the agreement cos how can you defend a claim when you dont have the key principle document which the claim is based upon?

 

There are cases were they will send the AQ anyway, even when there is a holding defence and applications waiting to be heard. I suppose you could return it not selecting a track and stating you cannot decide until the application is heard.

 

Also, one of the problems coming up nowdays is that the creditors are saying an Agreement *was* signed even though they don't have it. They will use hearsay evidence at trial to (try to) prove an agreement *was* signed on the basis that the credit facilities wouldn't be granted if they didn't and it was their normal procedure yadda yadda. Including a WS from Marge from the application processing department etc.

 

Do you think you could get a strike out on that? From some of the posts it seems to go to trial... Is a positively pleaded WS from the defendant that they didn't sign an agreement with the prescribed terms enough to get it kicked out at summary on a hearsay from the claimant?

 

I am guessing fastrack would be best in such cases but even then if you end up at trial the LiP isn't taken seriously about 50% of the time and they cannot afford £10,000 to appeal it.

[NoJusticeJustUs]

Hi again,

 

pt 2537,

 

when you say you could or would not file a defence because of no agreement - would you say that on the acknowledgement? Cos obviously if you filed nothing, then they would win by default.

 

So, if the POC were inadequate and did not comly with the CPR - part 16 - I think it is - could you not just go for a strike out straight away based upon this fact - i.e this is based upon the fact that the case might for instance rely on a written contract and they have not supplied one attached to the POC?

 

How does this square with Ruprecht's comment that claimants are pleading that they do not have an agreement?

 

So, this would mean that everyone who receives a claim form would need to scrutinise them first to make sure that the POC is compliant - before doing anything else?

 

I thought that the CPR was meant to ensure active case management by the judges? Would they not pick up on such blatant abuse of process?

 

So, are you saying that you must be pro-active and take every opportunity - i.e apply for strike outs etc whenever it appears possible? - at every stage?

[pt2537]

I take your point on the judges not picking up things, but let me use the poor food scenario at a restaurant.

 

You go for a meal, get fed and the food is crap

 

But you dont complain about it, now how is anyone to know that you are not happy unless you speak up? the court is no different. A badly pleaded case, if it alleges you owe money can stil get through and succeed if it is not properly opposed

 

you cant blame the judge, hes not there to baby sit you. as ive said before, there are plenty of no win no fee lawyers out there, if you dont know what you are doing then you should get professional help

[angry cat]

Agree with PT, many members appear to be way out of their depth.

 

Excellent thread!

[basa48]

Agree with PT, many members appear to be way out of their depth.

 

Excellent thread!

 

That would probably include me!!

 

So which is best when confronted with weak PoC?

 

Application to strike or application to re plead?

[pt2537]

That would probably include me!!

 

So which is best when confronted with weak PoC?

 

Application to strike or application to re plead?

that depends upon the situation, as always, you need to assess the facts before you and make a decision

[MandM]

Agree with PT, many members appear to be way out of their depth.

 

Excellent thread!

 

That would probably include me!!

 

So which is best when confronted with weak PoC?

 

Application to strike or application to re plead?

 

Me too.

 

So initial advice remains the same then - Post up POC and details and ask for opinions?

 

M

[pt2537]

Me too.

 

So initial advice remains the same then - Post up POC and details and ask for opinions?

 

M

yes

 

and NO

 

the thing not to do is file a huge verbose defence dealing with stuff that is irrelevent if you havent even seen the agreement the claims based on and the pleadings are sooo unclear that quite frankly it could be you, me or my neighbour from no 52s case. thats the key point im trying to convey

 

 

USE THE RULES,

 

GET THE DOCS

 

DEFEND PROPERLY

 

if you dont have docs you cant defend full stop

[MandM]

So, if you don't have the Docs then Emb. Def. still stands as the 1st line of defence. Then work it out from there??

 

M

[pt2537]

So, if you don't have the Docs then Emb. Def. still stands as the 1st line of defence. Then work it out from there??

 

M

no docs with the claim

 

ASK for them in writing (CPR 31.14)

 

then the claimant has 7 days to facilitate the request (CPR 31.15)

 

Also when asking for docs, ask also for an extension of time (CPR 15.5) as the Claimant and yourself can agree up to an extra 28 days for filing a defence

 

this should put you in a stronger position

 

If the Claimant refuses then i always make an application for an order to disclose and in breach the claim is struck out and 99.9% of the time you will get it

[cymruambyth]

Hi following on from this, if you plead embarrassed defence due to eg illegible application form and t &cs, then as a result of CPR 31.14 receive same illegible application form and copy written t&cs, should you then amend your defence even if you do not consider that they have supplied correct documentation?

[MandM]

no docs with the claim

 

ASK for them in writing (CPR 31.14)

 

then the claimant has 7 days to facilitate the request (CPR 31.15)

 

Also when asking for docs, ask also for an extension of time (CPR 15.5) as the Claimant and yourself can agree up to an extra 28 days for filing a defence

 

this should put you in a stronger position

 

If the Claimant refuses then i always make an application for an order to disclose and in breach the claim is struck out and 99.9% of the time you will get it

 

thanks PT, appreciated,

 

M

[pt2537]

Hi following on from this, if you plead embarrassed defence due to eg illegible application form and t &cs, then as a result of CPR 31.14 receive same illegible application form and copy written t&cs, should you then amend your defence even if you do not consider that they have supplied correct documentation?

thankfully HHJ Wakeman QC handed down his judgment.

 

IF the agreement is illegible then it is foul of the Cancelation notices regs and then the court cannot enforce it, so , you would plead that the documents are illegible and you cannot plead as to the enforceability of the agreement at this stage