**urgent Help Please To Build A Defence**

[joski34]

Does it go to the solicitors where I sent the CPR request to? I am happy to get this off to them no problem, if I dont hear back from the date they signed + 7 days I will post back up for the next steps. So I will send 2 copies one by special the other to the court, Thanks emandcole

[joski34]

Bumping

[joski34]

Morning..bump

[emandcole]

Yes, send to the solicitors. They'll know exactly what it means and the significance of it. Let us know what you get back

[pt2537]

Hang on a sec

 

Have they not replied to a formal request pursuant to cpr 31.14?

 

If they have mentioned a document which you want in their pleadings then you are entitled to it

 

A more aggressive letter is needed,

 

You need to make clear

 

If i do not receive the documents which i am entitled to under Rule 31.14 by 4pm on (give them 3 or 4 days MAX) then i will apply on notice for an order compelling compliance.

 

I will also seek to recover costs from your client as i view this as unreasonable conduct and you have offered no reasonable grounds for failing to disclose.

 

I reserve the right to refer to the contents of this letter if an application becomes necessary in respect of conduct and costs

[emandcole]

Hang on a sec

 

Have they not replied to a formal request pursuant to cpr 31.14?

 

If they have mentioned a document which you want in their pleadings then you are entitled to it

 

A more aggressive letter is needed,

 

You need to make clear

 

If i do not receive the documents which i am entitled to under Rule 31.14 by 4pm on (give them 3 or 4 days MAX) then i will apply on notice for an order compelling compliance.

 

I will also seek to recover costs from your client as i view this as unreasonable conduct and you have offered no reasonable grounds for failing to disclose.

 

I reserve the right to refer to the contents of this letter if an application becomes necessary in respect of conduct and costs

 

Hi PT, have ignored requests completely according to joski. Given their choice to ignore didn't know if a stern letter would cut it...as solicitors they know what's required of them. Should joski go gently and send the chase up first?

[joski34]

I have amended the letter:

 

CPR 31.15 Request

 

I write in relation to the above. Despite a previous CPR request on the 28th April 2010 for copies of documentation related to your particulars of claim I am unhappy with the response issued. The copy of the agreement the claimant relies upon is illegible and I am prevented from determining the true nature and conditions contained. As such I deem these as being unacceptable for the purposes of submitting my defence

If I do not receive the documents which i am entitled to under Rule 31.14 by 4pm on Thursday 20th May, then I will apply on notice for an order compelling compliance.

 

I will also seek to recover costs from your client as I view this as unreasonable conduct and you have offered no reasonable grounds for failing to disclose.

 

I reserve the right to refer to the contents of this letter if an application becomes necessary in respect of conduct and costs.[/font]

 

Is this better??

Edited May 15, 2010 by joski34
grammar

[joski34]

I have not recieved anything apart from a letter stating that they have gone to the original creditor and will pass them on when they get them.

[emandcole]

I have not recieved anything apart from a letter stating that they have gone to the original creditor and will pass them on when they get them.

 

It's this lack of urgency that bothers me, not even given you any indication of time scales. When you possibly have a defence to build (subject to them providing anything) it's pretty off to leave you dangling.

 

See what PT thinks and go with that joski.

[joski34]

Im going to send the more abrupt version I have posted up and give them unitl Thursay then apply to the court on your advice..I need to get something off today..should I take out the CPR 31.,15 request and just demanded what I am entitled to under the original request...see what comes back?

[emandcole]

Im going to send the more abrupt version I have posted up and give them unitl Thursay then apply to the court on your advice..I need to get something off today..should I take out the CPR 31.,15 request and just demanded what I am entitled to under the original request...see what comes back?

 

As advised before when I mentioned the 31.15 it is a powerful tool and needs to be used correctly. Give them another opportunity to provide clearly stating a date you'd like them to reply by and asking for an update with a confirmation of their timescales. It is entirely fair that you know what to expect from them, it is them and not you delaying matters.

 

As PT suggested state that if you are forced to issue the 31.15 request you will apply for the costs of having to do this as they are being completely unreasonable.

 

If they don't disclose then you can't respond to their claim so it really is up to them. The court will see very quickly that it is the claimant who is frustrating affairs and all of this will go in your favour to some extent. Send recorded, print off delivery proof as always.

[joski34]

Fantastic..I understand there may be costs involved. I will send the letter but take out the CPR 31.15 header and give them until Thursday to comply...I will keep you in the loop :0)...thanks again for your continued help.

[pt2537]

its important that you dont dilly dally here

 

you are entitled to view the documents that they have pleaded, so if they refuse to disclose you can apply for an order and you should in my opinion, otherwise you are in the position where you are simply left having to file a defence which you cant do if you dont have the documents, how can you plead the agreement mis states the rate of interest for example if you dont have the agreement? i submit that you cannot plead and therefore are at a disadvantage if you file a defence without the agreement in your possession first

[joski34]

Thanks PT2537. I have special deliveried the letter I posted above but taken out the CPR 31.15 statement..I have given them until Thursday the 20th to comply at the latest (copying in the court). Should I not hear anything back by then I will apply for an order to the court to disclose...I can do that first thing Friday morning, will I still have to submit a defence by the 26th May (embarrassed) if I apply for that order??

[joski34]

So the post has been and nothing has arrived so far..I gave them until 4pm tomorrow to produce the CCA, Default notice etc etc..I will post back up when the postman has been tomorrow for the next steps 9 (if there is nothing there)

 

Will that be to send the CPR 31.15 or apply to the court for an order?

[joski34]

Bump

[joski34]

Bumping for PT and emancole ??

[emandcole]

Hi, yes if that's what you wish to do you can now send the 31.15. Boldly entitle the letter 31.15 Request so they cannot 'mistake' what it is you've sent.

 

State you now wish to inspect the documents they rely on and if they refuse or fail to comply you will be making an application to the court ordering these are provided. Recorded deliv as always, print proof of receipt.

[joski34]

Hi, well the post man has been and nothing..I am now in panic mode!! I need to submit the defence by the 26th (next wednesday) I am away on Tuesday so want to get it done by Monday probably.

 

So I know send the CPR 31.15 and that gives them 7 days which means that they will miss the date I have to submit my defence or does that matter.

 

I have put together a defence containing SB and Emabarrassed just in case.

[emandcole]

Hi, well the post man has been and nothing..I am now in panic mode!! I need to submit the defence by the 26th (next wednesday) I am away on Tuesday so want to get it done by Monday probably.

 

So I know send the CPR 31.15 and that gives them 7 days which means that they will miss the date I have to submit my defence or does that matter.

 

I have put together a defence containing SB and Emabarrassed just in case.

 

This is where you need to look at the practicalities of what you're asking. If you do send the 31.15 it's extra work and chances are they won't respond anyway, you could ask the claimant to agree to give you more time and then you'd both have to inform the court that you've both agreed to this. Link will probably then change their mind after telling you something different and attempt to get one over on you. Yes, they're that low.

 

If you submit a response to the court (not embarrassed as you can't actually plead properly) the court will have no option but to ensure the claimant supplies you with the documents you need. If you take this option you won't have to fork out for the application to the court for an order (when) they fail to respond to the 31.15, which I'm certain they would. Ok, it takes longer but does that really matter?

 

Given the fact it's Link, and secondly that they're highly likely to ignore you I'd just submit the 'I can't plead as the claimant hasn't responded' type letter. Up to you really

[joski34]

Thanks for your help with this.

 

So Im not going to ask them for more time in case they change their mind as you say.

 

I am getting confused about the embarrassed defence...after reading numerous posts on here..I thought I had read that you submit an embarrassed defence when they dont supply you with the documents that are requested..so your sort of saying I cant plead because Im embarrassed...as an example:

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974.

 

Or am I just reading this wrong?

 

Thanks again for your help.[/font]

[emandcole]

Thanks for your help with this.

 

So Im not going to ask them for more time in case they change their mind as you say.

 

I am getting confused about the embarrassed defence...after reading numerous posts on here..I thought I had read that you submit an embarrassed defence when they dont supply you with the documents that are requested..so your sort of saying I cant plead because Im embarrassed...as an example:

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974.

 

Or am I just reading this wrong?

 

Thanks again for your help.[/font]

 

Apologies if I've confused you. How about the following as an example, edit it as needed, make sure it's numbered correctly and all spell checked. Basically it tells the court that you can't plead either way as the claimant has not substantiated their claim against you with X documents needed.

 

 

 

 

In the INSERT county court

Claim number INSERT NUMBER

 

 

Between

INSERT NAME OF CLAIMANT - Claimant

 

and

 

INSERT YOUR NAME - Defendant

 

 

 

Response to Claimant

1. I INSERT NAME of INSERT FULL ADDRESS WITHOUT POST CODE am the defendant in this action and make the following statement as my defence to the claim made by INSERT CLAIMANT.

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am unable to plead to the particulars as they fail to comply with Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the original document under CPR request which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

 

5. The claimant has failed to provide a true copy of any regulated agreement and any applicable terms and conditions. The defendant also requires copies of any varied terms and conditions in the event of any unilateral variation in such terms throughout the life of any agreement. The claimant should also declare without delay any intention to rely upon a reconstituted agreement.

 

In the event that a reconstitution is relied upon because the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

6. The claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer Credit Act 1974. The claimant should also provide proof of postage given the importance of this legal document. I put the claimant to strict proof that any default notice sent to me was valid.

 

I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

7. The claimant has failed to produce any applicable Termination Notice.

 

8. The claimant has failed to produce a comprehensive set of statements detailing the history of any debt. As such I have been prevented from auditing such statements and am in no position to comment on their accuracy or otherwise.

9. The claimant has failed to supply any Notice of Assignment, a copy of which the defendant would request in order to ascertain their legal standing along with proof of posting under Section 196 of the Law of Property Act 1925. The defendant would note that such a notice should have been issued by the original creditor and should accurately describe the assignment (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

10. The claimant has failed to supply a copy of the true Deed of Assignment or to make any effort to allow inspection of the same. Consequently, I require the claimant produces the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925.

 

It is further averred that I am entitled, in any event, to view the Deed of Assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). The claimant should therefore make immediate preperations to disclose this document and make it available for inspection.

 

11. Consequently due to the claimants failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularize the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

12. I respectfully ask the court to use its case management powers to order the claimant to disclose all of the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

 

I am happy to travel to a reasonable location given by the claimant in order to examine such documentation at my own cost. It is anticipated that the defendant will then have an opportunity to determine the credibility and right of this action and to plead accordingly.

 

13. Alternatively, I respectfully request a stay in proceedings with a deadline for their production. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

14. In the meantime I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that very little documentation in support of the claim has been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly. Clearly the defendant is having his right to defend needlessly prejudiced.

 

15. In addition, if the claimant cannot produce an original credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly.

 

16. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

17. The defendant will consider any counter claim and provide details of this with permission from the court in my amended and fully particularised defence once the claimant has produced the currently missing documentation they intend to rely upon.

 

18. For purposes of total clarity the defendant is unable to respond to this claim and awaits a full response from the claimant.

Statement of Truth

 

I, INSERT NAME, believe the above statement to be true and factual.

 

 

 

 

Signed

 

 

 

Date – INSERT.

[joski34]

Thanks so much for this...I will get this updated now.

 

emandcole your help is again truly appreciated!!

[joski34]

me again...just for clarification on the document it states the following:

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

Should that read (e) ?

 

Also I have read on here that you should not include previous points of law or is that just preference?

[emandcole]

me again...just for clarification on the document it states the following:

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

Should that read (e) ?

 

Also I have read on here that you should not include previous points of law or is that just preference?

 

I see...sure, change it over, good catch.

 

As you're LIP adding the above won't hurt...it just shows the claimant what you'll be expecting of them from the off. The judge will quickly ignore anything they don't like, it is a valid point and I didn't have any problems when I included it in mine so I can only presume it's ok