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

[citizenB]

Hi There

 

I'm going to start a thread on my new case but one question I have is what is an embarrased defence?

 

I have just received a claim form from Northampton CC and the particulars of claim are as follows:

 

the claimants claim is in respect of monies due pursuant to an account maintained with the claimant

 

and the claimant claims:

1. 8139.98

2. costs

 

I find this pathetic.

 

It is pathetic, will pop along and see what you have on your thread

 

An embarrassed defence is just that.. you can only respond to the claim they have made and as they havent actually made one then all you can say .. is go away and tell me what you are claiming for.

 

Will pop one on your thread for you.

[angel_1]

hiya

 

and hiya citizenb - you have just beat me lol

 

but since you have helped me on my thread i will pop my link where i used an embarrassed defence and i have news from the court today too, so wil lupdate my hsbc thread too;)

 

of course will need a bit more assistance now cheers as always

 

angel x - am back see link below

http://www.consumeractiongroup.co.uk/forum/legal-issues/214191-hsbc-solicitors-northampton-claim.html

Edited March 3, 2010 by angel_1
added link for an example of what i used

[babble]

Thanks, have created a thread and would appreciate any help.

 

I've had a quick look around but my head is spinning from all the various information streams.

 

Time for a coffee and a clear mind.

 

Will acknowledge the claim online and then send CPR 18 to incasso (by email and post). Will submit embarrased defence to start with then see what they return with the CPR 18.

 

Or do I ask the court to strike it out? If so how do I do this?

 

David

[emandcole]

Thanks, have created a thread and would appreciate any help.

 

I've had a quick look around but my head is spinning from all the various information streams.

 

Time for a coffee and a clear mind.

 

Will acknowledge the claim online and then send CPR 18 to incasso (by email and post). Will submit embarrased defence to start with then see what they return with the CPR 18.

 

Or do I ask the court to strike it out? If so how do I do this?

 

David

 

A judge will not strike this out at this stage and to make a request would reveal a level of desperation to the claiamant, you don't want that.

 

One thing you need to know as you go into this is that claimants of this type get to enjoy a level of 'slack' that you as a litigant in person will not be given. Yes, it is unfair but so is a great deal of the system we have.

 

The claimant for example can miss court deadlines, make a mess of paperwork, sleep with the judges wife/husband, rely on too many judges for a level of bias in their favour 'as we're a bank and we can do what we want'...you get the idea.

 

If you on the other hand put a foot wrong the judge is more likely to come down on you like the proverbial tonne of bricks whilst the claimant works the strings.

 

As such it is important you don't put a foot wrong and remain very sharp as this progresses. Would strongly advise lots of reading and to make sure you know your arguments inside out.

 

That's your best chance of coming out of this with the best result

[pt2537]

A judge will not strike this out at this stage and to make a request would reveal a level of desperation to the claiamant, you don't want that. WHAT????????????????????

 

One thing you need to know as you go into this is that claimants of this type get to enjoy a level of 'slack' that you as a litigant in person will not be given. Yes, it is unfair but so is a great deal of the system we have.

 

The claimant for example can miss court deadlines, make a mess of paperwork, sleep with the judges wife/husband, rely on too many judges for a level of bias in their favour 'as we're a bank and we can do what we want'...you get the idea.

 

If you on the other hand put a foot wrong the judge is more likely to come down on you like the proverbial tonne of bricks whilst the claimant works the strings.

 

As such it is important you don't put a foot wrong and remain very sharp as this progresses. Would strongly advise lots of reading and to make sure you know your arguments inside out.

 

That's your best chance of coming out of this with the best result

and on what basis so you make such assumptions?

 

i find the suggestion that you cannot get the case struck out as completely abhorrent

 

 

how can you defend when the pleadings are so poor you cant understand the claim?

 

to file a defence suggests you can understand the claim thus negating the ability to file the so called embarrassed defence!!!!!

 

 

the correct route is to apply for a strike out or an unless order where the Claimant fails to plead and disclose, do not forget the duty to disclose is an ongoing on from pre action stages and you only need to read paragraph 24 of Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 to see that

[basa48]

Agreed PT, I swear I would have suggested the strike out, but as I'm a legal noob I wasn't sure.

 

I even forgot the premise that to file a defence presupposes a belief there is something to defend against.

[diddydicky]

i entirely agree with PT

 

an application to strike out surely sends a message to the creditor that you believe yourself to be on solid ground- quite the opposite of what is suggested

[emandcole]

I think you are all perfectly correct but I still feel the court would provide the claimant with further opportunity to sort various issues out. How many threads are on here with examples of courts providing chance after chance for a claimant to sort themselves out?

 

I hope I'm wrong as it'd be great but from what I've learned and experienced, even right now on a personal level of how the court works (just my point of view then), the claimant typically enjoys a ridiculous amount of leeway, which is probably why they attempt to submit such sloppy claims in the first place. They know the court will let them run with it and make adjustments if and when the defendant has the knowledge and will to defend, which as we know many do not.

 

Let's be honest, if a litigant in person were to submit a claim that shoddily detailed the defendant would have it dismissed pretty quickly. How many cases are there on CAG alone of LiP's being ignored and run over with all manner of excuses thrown up by the claimant and in some cases the judge...we don't use the term 'judge lottery' for nothing.

 

I would love to be wrong on this, which doesn't mean I'm suggesting I'm right either, but the fact remains the court system is not a level playing ground and I feel the poster needs to be aware of this. I still don't believe an application to have this thrown out will quickly and easily result in a judge looking at it and just agreeing. That would be a perfect world and we've all seen that doesn't exist.

[pt2537]

I think you are all perfectly correct but I still feel the court would provide the claimant with further opportunity to sort various issues out. How many threads are on here with examples of courts providing chance after chance for a claimant to sort themselves out?

 

I hope I'm wrong as it'd be great but from what I've learned and experienced, even right now on a personal level of how the court works (just my point of view then), the claimant typically enjoys a ridiculous amount of leeway, which is probably why they attempt to submit such sloppy claims in the first place. They know the court will let them run with it and make adjustments if and when the defendant has the knowledge and will to defend, which as we know many do not.

 

Let's be honest, if a litigant in person were to submit a claim that shoddily detailed the defendant would have it dismissed pretty quickly. How many cases are there on CAG alone of LiP's being ignored and run over with all manner of excuses thrown up by the claimant and in some cases the judge...we don't use the term 'judge lottery' for nothing.

 

I would love to be wrong on this, which doesn't mean I'm suggesting I'm right either, but the fact remains the court system is not a level playing ground and I feel the poster needs to be aware of this. I still don't believe an application to have this thrown out will quickly and easily result in a judge looking at it and just agreeing. That would be a perfect world and we've all seen that doesn't exist.

 

 

oh my,

 

The judge lottery, is not what you suggest, in fact im sick of judges being labbled as such, the judge is there to deal with the matters YOU place before him or her, he is not there to research the law.

 

I would prefer to label it as the litigant in person lottery, as some seem prepared and some seem to be ill prepared, then they come here and moan because they ballsed it up, that its the judges fault

 

I have been before many judges, i have had many claims either struck out or the Claimants ordered to plead their case correctly. And have received costs against the Claimants, in non compliance with these orders the claims have been struck out

 

You risk a major problem by defending a claim that you dont understand, the reasons for this are under the CPR if you file a defence you are deemed to have accepted the claim as being clear and understood. the correct approach is where you are unable to adequatley defend , then you should apply , i prefer a dual application, in the first instance , apply to strike, if that fails have an unless order in place that requires disclosure and repleading

 

Read the case of Expandable Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008) para 24, then tell me im wrong

[emandcole]

Thanks for that, I'll have a read through. I do appreciate you have better experience and knowledge of this and perhaps my use of judge lottery was a poor term but time after time judges seem quite happy to be led in some cases by a barrister for the claimant when the judge appears to have insufficient knowledge of, as in this case, the Consumer Credit Act. Some of this may be due to poorly prepared Lip's but not in all cases and that's where my angle comes from.

 

I've read threads on here where the defendant had a perfectly valid case, however the claimant rocks up with a barrister and the same question is pondered on cag after the defendant lost - 'Who is the judge more likely to believe, an Lip or a barrister who is of course a legal colleague?'

 

In many cases fair play is not awarded and the barrister runs rings around both the defendant and the judge. That may not be typical, but it happens too often, indeed the fact that a judge is allowed to hear cases when they appear to be slightly vague on the law relating to the claim is the subject of another thread somewhere on cag.

 

We know barristers are not permitted to accept a case they are not capable of assisting with but what about the judges? I for one have been in court and heard the judge reject an invalid default notice the claimant produced...full marks to the judge...but then heard him remind the representative for the claimant that the default (issued in 2009) needs to provide 7 days for remedy:eek:. I didn't feel the need at the time to remind him it is actually 14 clear days. Clearly that judge is working a case under CC law and is not up to speed. He is not alone.

 

I digress, as the issues here are of course more simple and quite correctly the CPR's should be followed to the letter and no judge should get confused by those. Yes, I hope a strike out or 'an unless' will be successful, and quite right to, but I still feel it isn't always as simple as that and there are too many times when seemingly straight forward avenues are closed. As for defendants being unprepared I agree entirely, too many rely on the opinion of others and never take ownership of their own cases. They are far more likely to lose and yes we read the aftermath on Cag.

 

Perhaps we should help the poster through this, following the advice to request the strike out and see where it goes. Hopefully all will be well and I hope to be proved wrong as that would be a positive affirmation that the creditors don't always get to 'do whatever they want'.

 

So, back to the poster, are they aware of how to request this? Perhaps you would be good enough to explain so this can be followed?

[basa48]

OK this is probably going to sound like I am up my own ass, but I feel too many people on CAG let others do the thinking then run off and launch some template letter, PoC, defence or whatever without really knowing what it is they are writing about. I know I did in the beginning!!

 

If the law were that simple we would all be lawyers.

 

You really have to research this; it could win or lose you the best part of a years salary for some of us.

 

Litigants should know as much as possible about the 1974 Act and its Regs, general contract law, the CPR, UTCCR etc. They should read and re-read cases (Wilson, McGuffick, Carey yes even Rankine) to understand how cases are built up, how judges think, the legal arguments.

 

You cannot rely on the CAG to do your work for you. Ask advice yes but at least know why you are asking. If you don't you have only yourself to blame, but in failing you drag us all down a little bit.

 

Sorry, rant over!

 

What was the question??

[cashins]

but I feel too many people on CAG let others do the thinking then run off and launch some template letter, PoC, defence or whatever without really knowing what it is they are writing about. I know I did in the beginning!!

 

 

Yep, done that and with hindsite, if they hadn't blinked first I would have been way out on a limb if I had to argue the point in court.

 

David

[DontPushMe]

Good morning Caggers. Sorry to crash in here but I haven't a clue where to start my Fred and would appreciate it if somebody could file it in the right place. I received a claim from Egg via Bryan Carter which I acknowledged and my extension to the original 14 days expires the week after next (i.e. 28 days since I was served). Circumstances meant that I have had little time or energy to work on the thing. The docs go back before April 2007 but as it was online I am having trouble locating anything.

 

Is there anything I can do with regard to filing a defence? The N1 POC is as follows:

 

The Claimant's claim is for the balance due under an agreement which is now all due and payable.

 

The Defendant agreed to pay monthly instalments under account number xxxxxxxxxxxx but has failed to do so.

 

and the Claimant claims the sum of £xx,xxx (>£10k)

 

The Claimant also claims interest thereon pursuant to S.69 County Court Act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to 0.00

 

Should I send accept defeat and take what's coming to me (got no money left, got no income to speak of, still got a roof over my head) or should I send a letter under 31.14? I haven't had time to read up on 31.14 but will do if it seems better than admitting defeat. All help gratefully appreciated. Again - apologies for crashing this thread.

 

DPM

Edited March 6, 2010 by DontPushMe

[pt2537]

DPM,

 

you are entitled to ask pursuant to CPR 31.14 for the documents pleaded within the claim form

 

The Claimant is duty bound to disclose them pursuant to CPR 31.15

 

You are also allowed to seek from the Claimant an extension of upto an extra 28 days to file the defence pursuant to CPR 15.5. this is to allow for the Claimant to disclose.

 

So no its not a lost cause

 

no its not something you should fgive up on

[MandM]

Good morning Caggers. Sorry to crash in here but I haven't a clue where to start my Fred and would appreciate it if somebody could file it in the right place. I received a claim from Egg via Bryan Carter which I acknowledged and my extension to the original 14 days expires the week after next (i.e. 28 days since I was served). Circumstances meant that I ahve had little time or energy to work on the thing. Is there anything I can do with regard to filing a defence? The N1 POC is as follows:

 

The Claimant's claim is for the balance due under an agreement which is now all due and payable.

 

The Defendant agreed to pay monthly instalments under account number xxxxxxxxxxxx but has failed to do so.

 

and the Claimant claims the sum of £xx,xxx (>£10k)

 

The Claimant also claims interest thereon pursuant to S.69 County Court Act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to 0.00

 

Should I send accept defeat and take what's coming to me (got no money left, got no income to speak of, still got a roof over my head) or should I send a letter under 31.14? I haven't had time to read up on 31.14 but will do if it seems better than admitting defeat. All help gratefully appreciated. Again - apologies for crashing this thread.

 

DPM

 

Hi DPM.

 

Click the link below to start a new thread in Legal Issues and you should get some pointers from others.

 

M

 

http://www.consumeractiongroup.co.uk/forum/newthread.php?do=newthread&f=170

[MandM]

And make sure you put Mr Carters name in the heading - he has a growing fan club

 

M

[DontPushMe]

Thanks Guys!

 

New thread on its way.

 

DPM

[mightneverhappen]

Been following this and other threads with great interest. But as a bit of a noobie (and slow learner) I hope this question is not too stupid... Am I right in saying that PT's advice to make 'a dual application, in the first instance , apply to strike, if that fails have an unless order in place that requires disclosure and repleading' is made on (the same) N244? And does the 'unless' part mean that you ask for the first (strike out) and in the event that is refused, request the disclosure etc?

[citizenB]

DontPushMe's new thread can be found in the following link.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/250497-carter-egg-me.html

 

[diddydicky]

Been following this and other threads with great interest. But as a bit of a noobie (and slow learner) I hope this question is not too stupid... Am I right in saying that PT's advice to make 'a dual application, in the first instance , apply to strike, if that fails have an unless order in place that requires disclosure and repleading' is made on (the same) N244? And does the 'unless' part mean that you ask for the first (strike out) and in the event that is refused, request the disclosure etc?

 

yes the order you are seeking is to strike out but if the judge does not agree to do that then in the alternative you ask him to order disclosure of docs failing which etc ...............

 

in other words two bites at the cherry

 

not sure if you are doing this with your aq's or before

[mightneverhappen]

Thanks DD

[diddydicky]

Thanks DD

 

it will cost you 70 quid to make an application if you apply prior to aq's being issued but it incorporated into the Aq's nothing ( i beleive)

[mightneverhappen]

Sorry, forgot to address the aq question. I am at the stage where the CPR 34.15 request has resulted in the (what seems farily common having read these threads) barely legible application form, no document at all with the supposed presciribed terms - so I was thinking N244?

[mightneverhappen]

You just answered a question before I asked it!! Incredible. I didn't know you could use the aq for this. Thanks again.

[diddydicky]

You just answered a question before I asked it!! Incredible. I didn't know you could use the aq for this. Thanks again.

 

i'm pretty sure you can include it with the aq in a proposed order for directions- no doubt one of the legal bods will confirm