Urgently need to know the difference between a CPR18, CPR 31.14 and CPR31.16

[stone-broke]

Bear with me me, this is very confusing, with all the comments being mixed in to the thread.

We need to get this into some sort of chronological order.

First of all, lets try to understand what you are being sued for here, and by whom?

 

Normally people post up the front page of the actual county court claim form, minus their personal details, you have not done so.

 

So from the beginning, WHO is the claimant? Who is the solicitor acting?, What is the date on the claim form? what is the claim for, i.e. a loan, a credit card, if for any of these, had you previously formally requested a copy of the agreement?What date was the alleged agreement taken out?

 

You say the matter is now in your local county court, how were you informed of this...it should have been in the form of a letter, accompanied with a "allocation questionnaire", you say you have not received this, in this case you must contact your local court to ask why not/seek guidance

 

Yes it is very confusing......I agree!

The information you are questioning is infact all here within the thread. I will have to go back over the whole thread and source the posts in order to answer. The front page of the CC claim was posted on here near the beginning also. I cannot recall what you are asking from the top of my head, so you will have to give me some time and I will get back to you when I can. Sorry.......SB

[stone-broke]

I hadn't heard from my local court since last posting, so I have called them again today. I was informed that the papers re a hearing are in the post so I should receive them either tomorrow or Wednesday. The person I spoke to didn't seem to know what was what with this case- although managed to get up my details on the PC. I now know the hearing will be mid December and that's about it for now!

[stone-broke]

I have received the Notice of Hearing of Application from my local court to strike out my defence. In with the above is the claimants solicitors Application Notice (N244) and a copy of their Witness Statement. I will call the court tomorrow. SB

[stone-broke]

Does anyone know how to address the judge when writing? I have to write to ask if I can add to my witness statement as the hearing is to have the stay lifted and not the actual hearing for the claim. The solicitor has sent a witness statement with the bank's application to have the stay lifted. I have to add that I have been making payment every four weeks as this would need to be taken into account. I still have not received any further documentation from the bank as requested several times in the past. I believe what was sent is all I am going to get! Therefore, I have no default notices or termination of account notices from them. I do need to write to the judge asap as time is moving on.

Any help on this would be very much appreciated.......SB

[bazaar]

Stone, Ive just answered your PM , please dont worry about what theyve put on their WS, You really need to post it up, Minus your personals and then you'll get a lot more help.

If its later decided that among us, we can go underground with your situation, then we will do so, but IMHO, I feel you need to get the info, youve told me out there, so we can collectively get you up to speed on what you need to do.

 

 

Again, Please do not worry about the little childish statement they make about using a web forum, its a common tactic, that can be quickly dispensed with OK

[bustthematrix]

....do not worry about the little childish statement they make about using a web forum, its a common tactic, that can be quickly dispensed with OK

It's also stupid, silly, condescending and quite unneccessary. People can get info and help from absolutely anywhere they can find it. It's the quality of that help that is important.

 

They are bothered by it and it is creating massive problems for them hence why they are making a target of it. Tough!!!

More power to the peeps!!!

[stone-broke]

Thank you Bazaar. I didn't get your reply to the PM as my inbox was full! I have now deleted some messages but still no sign of the reply. Perhaps you might want to resend? SB

[bazaar]

SB, I suggested that you post up their WS minus all the personal stuff, you'll get far more help if all can see this.

In your response to their comments you will highlight how childish they are and unreasonable.

BUT, you got to get the info out to the forum, sometimes its possible that people are not online for a while, then you'll be waiting for an answer you may not receive in time. Dont worry about them reading this forum, it shows how worried they are about

[stone-broke]

Here is an outline of the Witness Statement sent to court from the solicitor of the claimant:-

I make this Witness Statement in support of the Claimant’s application to strike out the defendant’s Defence dated XXXXXX (the Defence)

The Claim

5. Proceedings were issued in the County court Bulk centre under Claim Number XXXXXXXX on XXXXXX in the sum of £XXXX plus costs in respect of the accounts listed below:

XXXXXXX

XXXXXXX

XXXXXXX

6. The Court will note that the account XXX has a nil balance

7. The Defendant filed an Acknowledgement of service dated XXXXX copy etc

8. The defendant made a Part 18 Request for further information (‘the Request’) by way of letter dated XXXXXXX copy at pages X to X

9. The Claimant sent the Defendant a letter dated XXXX to acknowledge receipt of the Request, copy page XXX. I asked the Court to note that the letter pointed out to the Defendant that such requests should be concise and strictly confined to the matters which are reasonably necessary and proportionate. The letter also confirmed that the claimant was happy to extend the time for the Defendant to file a defence to this claim to 14 days after the Claimant has responded to the request (‘The extension’)

10. Despite the Extension, the defendant filed a defence, copy attached at pages X to X of XXX

11. The claimant responded to the request by way of letter dated XXXXX at pages x to x of XXX

12. The Court will note that the Response provided the defendant with copies of the following:

Copy of loan agreement dated XXX

Personal loan duty of care checklist

Statements for account XXXX

Terms and conditions for account XXX

Statements for account XXX

13. The response also sought to deal with points in the defence, in particular paragraphs and 4 of the dfence, and explained to the Defendant that the claim was issued via the County Court Bulk centre and ‘draw your attention to Practice Direction 7E of the Civil Procedure Rules at paragraph 5.3 which states that paragraph 7.3 of the Practice direction supplementing Part 16 (Statement of case), which requires documents to be filed with the Particulars of Claim in contract claims, does not apply to claims started using online claim form’

14. The Response confirmed that it was the claimant’s response to the Request and invited the Defendant to forward proposals in relation to this debt.

15. Save where the context otherwise requires, reference hereafter relate to paragraphs in the defence

16. Save where expressly admitted, the Claimant joins issue with the Defendant on its defence.

The Claimant’s Position

17. I will now deal with each of these issues raised by the defendant in turn

18. I note that the Defence appears to be a ‘precedent defence’ which I understand is most likely obtained from an online forum

19. At paragraph x and X the Defendant states that the Particular of Claim are ‘insufficiently particularised and does not comply.....with CPR Part 16.’ The XCourt will be aware that Practice Direction 7 E of the CPR at para 5.3 which states that para 7.3 of the Practice direction supplementing Part 16 (Statement of Case), which requires documents to be filed with the Particulars of Claim in contract claims, does not apply to claims started using an online claim form. The Claimant has drawn this to the Defendant’s attention in para 4 of the Response. The Claimant submits that this is not therefore a ground for defending the claim.

20. At para 4(e), the Defendant states that a Request was sent and that no information has been received. I draw the Courts attention to the letter dated XXXX which acknowledged receipt of Request and granted the extension. The defendant opted to file the Defence despite the Extension.

21. At para X, X and X the defendant states that the sums are not owing and puts the Claimant to strict proof that the sums are owing. The Claimant refers the Court to the response and submits that the Defendant has ample information in which to file a proper defence claim.

22. At para x, the Defendant states that the Claimant has failed to fully particularise its claim. I respectfully draw the courts attention to para 19 above which deals with this.

23. At para X, the defendant states that a request was sent and that no information has been received. I respectfully draw the Courts attention to the Response.

24. The Claimant draws the Court’s attention to the documents provided to the Defendant in the response.

25. The Court will note that the Claimant has provided the Defendant with a copy loan agreement dated XXXX, Personal loan duty of care checklist (pages blah blah) and statements of account (pages....) the Court is asked to note that the loan agreement is clearly signed by the Defendant, as is the Personal loan duty of care checklist. Statements of account for account XXX (pages XXXXX) clearly evidence the balance that is due and owing.

26. I also respectfully draw the Courts attention to the Terms and Conditions for account XXX (pages xxx)

27. At clause 6 of the Terms and Conditions, copy at page XXX it states under the heading ‘Terms and Conditions’ for Credit Zone on Current Plus Account’ that... ‘The bank has the right to demand repayment at any time of the full amount of the outstanding borrowing together with all accrued interest and unpaid charges.’

28. A screen print of the relevant part is below:

The Bank has the right to demand repayment at any time of the full amount of the outstanding borrowing together with all accrued interest and unpaid charges.

29. The claimant confirms that it has made demand for the Accounts by way of letter dated XXX

30. The claimant fails to see how the defendant can continue to dispute the claim and submits that the Defendant is merely seeking to avoid liability to the Claimant.

31. I received a letter from the Defendant dated XXX copy pages XXX. In this letter, the Defendant states that the Request was not sufficient and further requests ‘transcripts of telephone conversations with your client.’ The Defendant then refers to previous offers the Defendant made to settle the claim by way of monthly instalments.

32. The Claimant responded to the Defendant’s letter dated XXXX by way of letter dated XXXX a copy is at page XX. The letter informed the Defendant that the Response was the defendant’s response to the Request and draw the Defendant’s attention to the contents of our letter dated XXXX, which stated that such requests for documentation should be confined to the matters which are reasonably necessary and proportionate to enable the party to understand the case he/she has to meet. The letter further stated that the Claimant did not feel that a number of the Defendant’s requests, such as transcripts of telephone conversations, were relevant to the the issues and are disproportionate at this stage.

33. The letter dated XXX also invited the defendant to, in the interest of costs and proportionality, contact instructing Solicitors with her payment proposals.

34. I did not receive a response to the letter dated XXXX

35. I further sent a letter to the Defendant dated XXXX, copy XXX, which again drew the Defendant’s attention to the contents of the response and stated that theClaimant was ‘reluctant to incur unnecessary costs in this matter and further reluctant to waste the Court’s time. In the absence of a suitable response to this letter we shall be making an application to the court to strike out your defence and be claiming our client’s full costs occasioned by the same. We reserve the right to show this letter to the Court on the basis of costs and conduct.’

36. The Defendant responded with a letter dated XXXX which stated that she still required further documentation including transcripts of telephone conversations. I have not enclosed a copy of this letter as the Defendant refers to correspondence that was marked ‘without prejudice.’

37. I responded to the Defendant’s letter dated XXXX by way of letter dated XXXX, copy at ..... The letter dated XXXXXX by way of letter dated XXXX stated that the Claimantmaintains that it has ‘provided you with sufficient documentation to enable you to answer the claim against you. We feel that a number of your requests, such as transcripts of telephone conversations, are disproportionate and confirm that we shall not be providing the same at this stage.’

38. The letter dated XXXX also points out to the Defendant that the defendant’s ‘letter of XXX refers to our letter dated XXXX marked ‘without prejudice’ in respect of the Tomlin Order.’ In the Defendant’s letter dated XXX, the defendant refers to payments that she has already made towards the debt and so the Claimant’s letter dated XXX also asked the Defendant that... ‘in the interest of costs and proportionality, to put forward your payment proposals for our client’s consideration within the next 14 days.’

39. I confirm that the Defendant did not respond to the letter dated XXXX and has not submitted any further proposals in this matter.

40. The Defendant fails to disclose any grounds upon which the Claim can be defended and the Claimant asks that the Defence is struck out under CPR Part 3.4.

41. I therefore respectfully ask the court to strike out the defence and enter Judgement for the Claimant in the sum of XXXXXXX, payable forthwith, and make an Order for the Claimant’s costs.

[bustthematrix]

SB, seems like they've put quite a bit of effort into this. Looks like it means a lot to them and they obviously think they can win if you blink.

How you respond to this will depend on what you have said in your earlier letters/statements. Do you have a thread for this case? If so, post the link. If not, you really should start one and link to it from here.

[bustthematrix]

The important is to not get hoodwinked into attacking each and every one of their statements if you don't have to and focus on the big arguments. It seems to me that where they are lacking substance in documentation, they are trying to use the number and force of their arguments to swing the judge. Fair enough - that's what they're supposed to do (when they can be bothered to do their job properly). You must stick to your key points highlighting all the flaws in their position and what the law says about it!

What's the claim amount btw?

[bustthematrix]

Some key ideas?

 

1) A recon is not admissible as proof of execution unless you agree

2) A non-compliant agreement is not enforceable - it must be properly executed

3) A WS is subject to verification and your cross-examining the witness from the claimant

4) A photocopy, even if stated as a copy of the original must be verified as a true copy of that original by someone with standing to do so. You must agree that the photocopy is what you signed and not something else.

5) Was a valid default notice served?

6) How have they responded to S78, SARN and CPR requests to date?

7) Are there any clear contradictions, important errors, omissions or even outright lies from any correspondence that you can highlight? If you can discredit their 'testimony' on one point, it affects everything else.

8) Is the balance claimed disputed for any number of reasons? Have any costs and charges been explained and do you consent?

[stone-broke]

SB, seems like they've put quite a bit of effort into this. Looks like it means a lot to them and they obviously think they can win if you blink.

How you respond to this will depend on what you have said in your earlier letters/statements. Do you have a thread for this case? If so, post the link. If not, you really should start one and link to it from here.

 

This is the thread for the case. Also, I have continued to make payments every 4 weeks and I have never had a termination notice or default notices. These have been requested although they have refused to send. Thanks.....SB

Edited November 8, 2010 by stone-broke
Additional info after reading further posts!

[Jim Pike]

Hi Stone,

Just read through your thread, you have come a long way from begining.

 

any update as it seems to have come to an abrubt end, as do a lot of threads.

 

I find myself with similar predicament now with notice from court on xmas eve, I will be starting a thread very soon but still reading and trying to absorb and understand some of it and hope some will stick in my scrambled brain.

regards

JIM

[stone-broke]

I am wondering if anyone knows how the law lies with default notices and in particular, one that was supposed to be sent to me but I didn't receive!

I was in court in December and Shoo's had a barrister to represent the bank. I felt quite sorry for him to be honest as the judge wasn't impressed. I had provided my witness statement and bundle but the other side had produced nothing. The barrister arrived red faced and late (he had been kept waiting for the other side's witness statement to be emailed over to him!) and he presented athe witness statement to me and the judge which was in response to mine re default notice (and other documentation) that they have never sent to me or copies when requested via CPR's etc. They stated on their ws that they could not produce a copy of the (alleged) default notice as their system does not allow that. Instead they provided the court with a 'screen print' of what was supposed to have been sent to me. The judge was not very happy and said it was not acceptable to produce such paperwork at the time of the hearing. She was also annoyed by the fact she had been kept waiting! I was told by the judge that the production of the screen shot put a different light on the case and I should go away and look at what had been given to me. The hearing was adjourned.

Should I now be asking for proof of postage? Do they have to prove they sent the default notice? Are screen prints valid? My thought is it could have been produced the day before the hearing! Any links to similar situations?

Any information would be appreciated. Thanks............ SB

[bustthematrix]

SB

Do you have the original Default Notice you were sent? Was it compliant or not? What was your defence based on?

 

You'll have to look through their Witness Statement and anything else they've dug up at this late stage and respond to it, blow by blow. Do you have your own thread for this? Imo, this has gone a bit too far for casual input from anyone. To really assist you, your fellow Caggers will need more info.

 

However you must keep putting them to strict proof on everything, especially when they've taken this long to come up with anything.

[stone-broke]

Hi Bustthematrix.....thank you for responding.

No sorry, there is no original default notice and after requesting such, along with other essential documents, up to the time I was in court in December, they ignored my requests for both a copy of the DN and the Termination notice. As mentioned above, at the time of the hearing, the barrister turned up late and embarrassed with a new witness statement and screen print of a DN and so the hearing was adjourned. It is now due to be heard in a few weeks from now. I am going back with the same witness statement I had previously but with some additional information, but still need to know where the law lies using a screen print in court as evidence that I have ever having 'received' one. There doesn't seem to be an awful lot on here (or any where for that matter) with cases were screen prints have been used as evidence to say the defendant had been sent a valid DN. However, they have stated that they will not be able to produce a copy of the original DN as their system does not allow it to reproduce such material. I will also have to put them to strict proof that it was posted. I am working on my ws this evening and tomorrow and want to get it to court before the end of the week.

As for whether or not the screen print DN is compliant; well I will let you know once I have scrutinised all that I have this evening. I now know what I am looking for after doing some reading on here. All the information you say caggers will need IS on this thread. At the moment, I haven't the time to sift through it and point out the location of individual pieces of information. I would just be happy if someone could provide me with info re screen prints and how they are looked upon in court, as it could be said that it is not a copy of the original DN.

Any info greatly appreciated.......thanks again :o)

[bustthematrix]

Hi SB

 

My apologies, looking at some of my old posts, I realise I keep asking you for your own thread when this IS IT! Sorry, you must have found that a bit irritating ...though you've not shown it8-). I think it's the Thread title and length of time between posts that has me thinking it's a generic type thread rather than a specific assistance thread!

 

Do you have any info on what excatly is on the screen print and what they are claiming it to be? Did the Judge give any indication as to why this particular item 'changes things'?

 

I've not encountered this before nor seen anything on it but I doubt you're the first one to face this. Hopefully there'll be more input on this soon. I'll see who I can point here too...

[stone-broke]

TY again!!!

They are claiming it to be the screen print of the DN that they say was sent to me. I have never received a DN and have been refused copies in CPR requests...........the screen print was emailed to court at the time of the last hearing, along with another witness statement to say they cannot print off a copy of the original DN that they had supposed to have sent out to me etc etc. The judge did not elaborate why this changed things.....I could either assume as they had now produced a screen print of what would have been sent then that might now put them at an advantage to say I have been sent one! However, I have not been presented with evidence of them having posted one out. That could mean I could say I hold them to proof of claim that a DN was posted...............

It will be good if you can point some others here..............the more the merrier :o)

[stone-broke]

Apart from the screenprint of the DN information being extremely difficult to read (as it is a poor copy), the date of issue states XX/11/2010. Keep that date in mind. The WS the other side produced on the day of the last hearing stated that they issued a DN XX/11/2009. The screenprint date is out by a year and so many days! To me, this print out was produced a year after they had said they had issued it. Also keep in mind that the date of notice from CCBC was January 2010. So........what does that say???????

Appreciate some comments caggers!

[diddydicky]

I am wondering if anyone knows how the law lies with default notices and in particular, one that was supposed to be sent to me but I didn't receive!

I was in court in December and Shoo's had a barrister to represent the bank. I felt quite sorry for him to be honest as the judge wasn't impressed. I had provided my witness statement and bundle but the other side had produced nothing. The barrister arrived red faced and late (he had been kept waiting for the other side's witness statement to be emailed over to him!) and he presented athe witness statement to me and the judge which was in response to mine re default notice (and other documentation) that they have never sent to me or copies when requested via CPR's etc. They stated on their ws that they could not produce a copy of the (alleged) default notice as their system does not allow that. Instead they provided the court with a 'screen print' of what was supposed to have been sent to me. The judge was not very happy and said it was not acceptable to produce such paperwork at the time of the hearing. She was also annoyed by the fact she had been kept waiting! I was told by the judge that the production of the screen shot put a different light on the case and I should go away and look at what had been given to me. The hearing was adjourned.

Should I now be asking for proof of postage? Do they have to prove they sent the default notice? Are screen prints valid? My thought is it could have been produced the day before the hearing! Any links to similar situations?

Any information would be appreciated. Thanks............ SB

 

to be honest (IMO) although the judge might have been "miffed" at their antics- the odds are that she will accept their screen print as evidence that the DN was sent

 

few, if any creditors keep a hard copy of a DN- and rely on the screen print out to show that one was produce (the judge will inevitably say that on the balance of probabilities- this oh so efficient and trustworthy national institution would hardly print off a document and not then post it)

 

of ALl the DN defences- the fact that one was not received is the weakest for the defendant

 

i would say that the DN defence will fail on the grounds of you not having received it UNLESS you can PROVE that other documents- alleged to have been sent- were also not received- but proving non receipt is always an uphill struggle

 

sorry to be the bearer of bad vibes on the DN front but that is the reality (IMO) i am afraid

[bustthematrix]

Thanks for dropping in DD.

SB - it appears you'll just have to bolster the other aspects of your defence.

 

Had you actually received a defective DN, and they'd terminated on the back of it and you'd accepted that unlawful repudiation of contract, things would be different...

[bazaar]

Hi SB, As diddy says, the argument for proof of postage etc, probably wont get you far, however, the date might. So that is 1 item to put as an addition on your WS, do you have any other arguments to put to the court? You need to go through their WS to see what is truth and what is smoke and mirrors.

can you scan it ( Minus all the personals) to give people an idea of what youre now up against

[stone-broke]

Surely, if DN's are relied upon in court as evidence on a daily basis, then it would be in the interest of the creditor to keep hard copies of such. That way, they could send a copy when requested legally through a CPR 18 and CPR31.14........plenty of others on here alone have had copies sent to them! If the creditor has nothing to hide, why didn't they say from the onset that they didn't have the information to give to me? Why did they not send a screenprint with the other documents I had requested? They ignorned my requests for a default notice, termination notice and transcripts of telephone conversations, stating that this wasn't an oppurtunity for a fishing exercise and that they would only provide documents 'they deemed necessary for the case'. Obviously, the documents they didn't send they deemed unnecessary! That includes the DN and termination notice. The screenprint I have doesnt even state it is a DN. There is no date of issue; although there is a date on it which is over 12 months after they say a DN was served! The termination notice screenprint.....well that isn't even a sreeenprint, but template letters with a different company name on them (which I have no dealing with and never had!).

As you say DD, the judge might still take the screenprint as evidence of one being sent, but where is the evidence I received it! Surely they have to proove that it was also sent?

[diddydicky]

Thanks for dropping in DD.

SB - it appears you'll just have to bolster the other aspects of your defence.

 

Had you actually received a defective DN, and they'd terminated on the back of it and you'd accepted that unlawful repudiation of contract, things would be different...

 

at the moment event acceptance of UR seems to be a non starter

 

it is only now advisable IMO for someone who is prepared mentally and financially to take the argument through to an appeal- where i beleive the UR argument could be won- but sadly not in the county court in the first instance