Received Count Court Claim Today / Capquest/CAP ONE

[james141]

Sorry I must correct myself I did send them this at the same time as the CPR:

 

 

Dear HL LEGAL & COLLECTIONS

 

CC: Capital One

 

Agreement Number – xxxx

 

You have contacted us regarding the account with the above reference number, which you claim is owed by ourselves.

 

We would point out that under the Limitation Act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

We would also point out that the OFT say under their debt collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

 

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, we suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970”.

 

We await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

We look forward to your reply.

 

Yours faithfully

[citizenB]

Excellent, well you should have received a response either to the CPR or that letter. They cant plead that they hadnt been made aware.

[emandcole]

Looks like they're just trying it on. You've made the position perfectly clear, asked them for evidence to the contrary that appears to have been ignored...suspect the court will order the claimant to provide proof it is not subject to limitation but worth a shot at getting it thrown out from the off. As long as it is indeed SB you should be fine.

 

Make sure you get your costs sent off to the court and the claimant in good time though, will leave them in no doubt as to your intentions. If they indeed have nothing with any luck they'll back down and discontinue allowing you to claim costs due to their actions. Just to check, presuming you're in the UK and not Scotland where limitation is 5 years.

 

As for point 9 believe the answer is the claimant as opposed to the creditor or previous owner, as the case may be.

[james141]

Right need to sort this out now, here is what I am going to put on the N244, any pointers/comments appreciated.

 

 

N244 Form

 

2. defendant

 

3. An order that this claim be struck out under CPR 3.4 (2a, 2b) as the Particulars of Claim

have not been sufficiently particularised to enable the defendant to understand what charges he has to answer & the Claimant has not responded to requests made by the Defendant that they submit an amended Particulars of Claim nor have they responded to the Defendant's multiple requests made under CPR31.14.

The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the Claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

4.

Yes

 

5.

Without a hearing

 

6/7/ Left Blank

 

 

8.

District Judge

 

9

HL Legal

 

10 blank

11 Sign etc

 

 

 

Draft Order

 

1. This claim is struck out under CPR 3.4(2) by order of the court

 

2. The Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

[emandcole]

Regarding your costs you might be interested in the case of Wulfsohn v Legal Service Commission. It's easily found on the web but supports the notion that as litigant in person you are actually entitled to sums that are more than the normal £9.25 hour.

 

Quick explanation is that as LIP you can only secure up to two thirds of the time it would have taken had you been represented. So, if a solicitor would have taken 30 hours on your case you're entitled to claim for up to 20 hours @ LIP rate of £9.25 hour.

 

Wulfsohn however took this a step further and claimed that as LIP he should be entitled to claim up to two thirds not of the time, but of the total cost a solicitor would have charged. Wulfsohn claimed he had spent around 1200 hours on his case, a considerable amount of time for most matters.

 

Lord Justices Rix and Schiemann agreed that in principle Dr. Wulfsohn was entitled to recover money for his time. Importantly however Dr. Wulfsohn had requested the opinion of a claims costs advisor who responded that as a 'rough and ready approximation' this matter would have cost in the region of £15,000 to £20,000 plus VAT had representation been engaged.

 

LLJ Rix and Schiemann accepted this 'rough and ready' approximation and used the lower guess of £15,000 as a starting point. This meant that technically Dr. Wulfson was entitled to two thirds, that amount being up to £10,000.

 

The 1200 hours Dr. Wulfsohn maintained he had used in the matter, which was not doubted by the judges, would have resulted in the sum of around £11,400, clearly some £1400.00 above the £10,000 cap already agreed upon.

 

Disbursements however are not subject to this two thirds cap and as a result it is possible that disbursements for an LIP will be higher than those of the represented party. Dr. Wulfsohn had submitted around £460 I think it was as disbursements.

 

The result was that Dr. Wulfsohn was awarded the sum of £10,460 in costs. I am currently using this case to support my costs in a case the claimant subsequently discontinued on - rendering them liable for my costs. I contacted four solicitors detailing the nature of the original claim and my counterclaim and three of them responded with hourly rates between £130 and £300 depending on the fee earner required.

 

In my bill of costs I detailed the 200 hours I had used as LIP getting up to speed on all matters of the appropriate law, collating details, case law, CPR's, etc etc and then divided it by three to recognise the efficiency of a solicitor. This left around 67 hours or so (200 divided by 3) that I deemed was a fair amount of time for a solicitor to have taken in the entire matter.

 

I multiplied this by the hourly rate provided which gave some pretty scary costs resulkts and added VAT on top. In short I was able to demonstrate (with the backing of the Wulfsohn case) that had I appointed representation the cost to the claimant would have been substantially higher.

 

My actual costs claim therefore for 200 hours at the LIP rate of £9.25 plus my disbursements was actually then something of a bargain. I am claiming a touch over £2,200.00 costs, details of which have just been sent to them.

 

We'll see how it goes down but I have nothing to lose and the case law supports my claim entirely. I've documented the work done, have supported alternative costs from three seperate solicitors and used the Wulsohn case to demonstrate that as far as the HIgh Court is concerned LIP's are indeed entitled to sums for the work they have done that can actually result in quite a sum of money being awarded.

 

You may therefore wish to look into this yourself. An excerpt from the findings of this case follows.

 

Para 21 onwards is particularly useful:

 

21. There have been a considerable number of hearings. The matter is of importance and complexity, as is shown by the fact that the Legal Services Commission, which must know its own regulations backwards, one would have thought, thought that a bill for £1,200 was appropriate merely for a hearing in relation to an order for disclosure.

 

The hearing in front of Collins J was clearly a longer one. The applicant had to get all the documents in order (which he did) and produced a long bundle for them. He must have done a lot of research, and he has told us on evidence (which I have no reason to disbelieve) that he spent well in excess of 1200 hours altogether on this exercise so far.

 

It seems to me that the right course in these circumstances is to start with the cap, if you like, as to what this exercise would have cost if it had gone to lawyers in the first place. Doing the best I can on the information in front of us, and being extremely rough-and-ready about it, I would put that figure at £15,000, which means that there would be a cap in relation to Dr Wulfsohn of £10,000. On top of that he does claim one or two things which are not caught by the cap in his schedule. I regard Dr Wulfsohn as having spent an amount of hours on this exercise which, at a rate of £9.25 per hour, would take him above the cap. I regard him as being entitled in principle to the figure of £10,000, to which I would add the charges for photocopying, postage and travel which, between them, come to £460.

22. I would allow the appeal, and I would award him costs of £10,460 in total.

23. I ought to say that there is a hint in the correspondence that it was arguable that Dr Wulfsohn had agreed to the figure of £120 settled on by the judge but, in my judgment, that is not a fair reading of what happened at the end of the day in front of Collins J.

24. LORD JUSTICE RIX: I agree.

(Appeal allowed; Applicant awarded £10,460).

[james141]

Wow thanks emandcole I will have a read.

 

I had thought about this, I am self employed and I was considering sending them an invoice for my time at the rate I charge my customers as this has taken me away from "paid work" but wasn't sure if it was possible.

[emandcole]

Good isn't it? Vitally though you need to ensure that you are actually entitled to request costs, sure you've checked that out already.

[james141]

Well that's the other thing, the case hasn't got very far. They have stalled before even the allocation q's.

 

But still I have had to put a fair few hours in to reading, researching and form filling.

[emandcole]

As long as you've submitted a defence if they eventually discontinue that'd be a good start.

[james141]

The plot thickens, I knew this hadnt gone away!

 

I received this today! personally I think they are just trying it on, if they had a strong case they would have continued earlier.

 

What does everyone think?

 

letter.pdf

[citizenB]

James, I will try and get some advice for you on this. I would say that you could possibly request sight of the proof of the payment they say was made in 2004 via CPR. But not sure how you would go about it.

 

IMHO, CQ are talking a lot of rubbish.

 

Apart from anything else, they would need the permission of the court and a good reason for the stay to be lifted.. which incidentally has been made by the COURT, not CQ.

[james141]

Ok thanks citizenb

[Docman]

How convenient that CQ started the legal process a couple of months before the six year limitation period kicked in and even more convenient that the one document CQ have been able to supply shows a payment just within that six year period. Watch out for the porkers aerial display tonight!!

 

I suggest you write back and ask them for copy statements for the months prior to August, as far back as when you recall you last made a payment. If the statements show a pattern of payments up to August 2004, then you would probably fail the Limitation Act test. On the other hand if the statements show (or CQ can't supply any others) no payments prior to 2004, then I would simply deny the August payment was made by me, especially if in my own mind I hadn't paid anything since 2002.

 

I take it they haven't come up with a credit agreement, default notice or Notice of Assignment yet?

 

BTW, is this in the Small Claims court?

[james141]

thanks Docman,

 

With that letter they sent some "statements" but they weren't copy statements or even screen dumps, looked like a photo copy of something knocked up in Word to me.

 

Nope no credit agreement or default notice. they (cap quest) have sent me a copy of a letter supposedly sent 03/05/07 that states they own the debt.

 

I wrote to Capital one seperatly and they have sent me a copy of the credit agreement + signature along with a snotty letter saying the account has been sold to Capquest and under section 78 they are not required to provide a copy of the default notice.

[gh2008]

Right need to sort this out now, here is what I am going to put on the N244, any pointers/comments appreciated.

 

 

N244 Form

 

2. defendant

 

3. An order that this claim be struck out under CPR 3.4 (2a, 2b) as the Particulars of Claim

have not been sufficiently particularised to enable the defendant to understand what charges he has to answer & the Claimant has not responded to requests made by the Defendant that they submit an amended Particulars of Claim nor have they responded to the Defendant's multiple requests made under CPR31.14.

The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the Claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

4.

Yes

 

5.

Without a hearing

 

6/7/ Left Blank

 

 

8.

District Judge

 

9

HL Legal

 

10 blank

11 Sign etc

 

 

 

Draft Order

 

1. This claim is struck out under CPR 3.4(2) by order of the court

 

2. The Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

Did you make this application? - what was the outcome?

[james141]

No I didnt make the application in the end.

[gh2008]

Ok, if you have the original statements and can show that the ones produced are not 'true copies' then I would go for a 'Strike Out' ASAP

If not then you can't do much other than wait for their next move - they will have to prove the claim isn't SB and a few cobbled together statements could well do that.

 

A SAR to Cap1 should prove it one way or the other

 

EDIT Actually if you can show that the statements are not true copies then IMHO the fact that the claim will be struck out will be the least of CQ's worries .....

Edited January 13, 2011 by gh2008

[james141]

Docs:

 

Snotty Letter 1.pdf

Snotty Letter 2.pdf

CCA.pdf

Edited January 13, 2011 by james141

[james141]

Ok, if you have the original statements and can show that the ones produced are not 'true copies' then I would go for a 'Strike Out' ASAP

If not then you can't do much other than wait for their next move - they will have to prove the claim isn't SB and a few cobbled together statements could well do that.

 

A SAR to Cap1 should prove it one way or the other

 

EDIT Actually if you can show that the statements are not true copies then IMHO the fact that the claim will be struck out will be the least of CQ's worries .....

 

Ok thanks, I don't have the original statements, seems like I will have to wait.

 

Am I right in thinking they will have to pay to restart the case? or even start over? is it even possible for them to restart it?

[gh2008]

Err depends on what stage it is at. They don't have to pay any extra to restart it as such, but if it has got to AQ stage then yes, there is a fee to pay

 

If it does go ahead then I would make an app to Strike Out or re-plead properly.

Also a Part 18 request to confirm the status of teh account live or terminated, if terminated then when and by whom

 

Getting as much info before any trial is vital imho as info is power in these cases, there are so many weird things that go on with these debt buyers that they can tie themselves in all sorts of knowts.

 

If it does look like it will kick off again - get a SAR off to Cap1 - they most often produce very interesting info

[james141]

thanks, it didnt get very far at all, they filed the case, i submitted a defence, they didnt do anything after that despite being given a deadline by the court, this was all about 6 months ago. It did not get to AQ's

[dx100uk]

looking at your old threads [2006]

you comment that you reclaimed charges from cap1 'some years back' from that

 

i bet this is the SAR £10 that you did then put on the A/C

 

dx

[james141]

good thinking but I don't think it is as the payment they are referring to is more than £10

[citizenB]

IMHO, they should be required to provide proof that you did actually pay this amount.

[AndyOrch]

Or simply deny it:roll: