CCJ - defence due - please help!

[gh2008]

Ok, as they sent their particularised POC separately they are clearly in breach of Part 16.

PART 16 - STATEMENTS OF CASE - Ministry of Justice

PRACTICE DIRECTION 16 – STATEMENTS OF CASE - Ministry of Justice

 

I also expect they did not send a proper letter before claim either PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice

 

Your Part 31 request is totally appropriate, in fact you could ask for physical inspection of those documents with 7 days.

 

Write to the Court, enclosing a copy of their letter to explain that the claimant has agreed to an extension for your Defence.

 

IMHO if you do not receive at least the 2 agreements and the 2 DNs then I would make an N244 application for their disclosure and costs and/or a strike out (you won't get a strike out though)

 

IMHO you should not submit a defence until you have at least those.

 

Once you have those you can construct a proper defence and then put them to strict proof that the amount claimed is correct.

 

Read up on *exactly* what they should be sending in response to your s.78 request - it is not *just* a copy of the agreement

 

As to your reply - depends how aggressive you want to be, you could just state that if they do not comply with your request you will make an application for disclosure (of the docs they should have served with the POC anyway!!! - Part 16)

If you want to be aggressive make a Part 31 request to them for inspection within 7 days 31.15 check the Practice Direction for further info

 

The documents have already been disclosed by them mentioning them in their POC. Disclosure is not sending copies it is mentioning them.

You are not asking for disclosure, you are asking for copies of documents they have already disclosed themselves and therefore should have to hand.....

[gh2008]

C

They have brought these proceedings without providing the information required.. regardless of the limitiations of issuing a claim out of the Bulk Processing centre,

 

They sent the POC separately so the 'online waiver' allowing them not to serve the docs with the POC does not apply

[gh2008]

Just for information, Optima have now defaulted on the deadline they set themselves for complying with my section 78 request. Unbelievable.

 

Whether you like the S78 angle or not, whilst they are in default of an S78 request they cannot get a judgement against you - end of.

 

BUT the problem with that is that it may be redeemable therefore you need more than just that (unless you know that they will never be able to comply, in which case that's all you will need)

[gh2008]

Is the POC on the thread?

[gh2008]

Ok, part of your N244 will also include their breaches of CPR16.

 

As they sent the POC separately from the MCOL system they should have included all the documents.

 

Have you checked with the Pre-Action Conduct PD and made sure they have in fact done what they have said?

 

IMHO there is no issue with bundling the 2 into the same claim as long as the details are clear.

Same as issuing a claim against a client for non-payment of several invoices - as long as the details are clear then it will be fine.

 

Obviously in this case it is not clear as they have not complied with the Pre-Action Conduct PD nor Part 16

[gh2008]

If you feel bolshy then ring them and demand to know why they have not complied and then make it very clear that you will seek an order against them together with costs.

 

Redeemable would mean that even on the day, they could turn up with a perfect response for each of the accounts.

If you knew they couldn't e.g. there never was a signed agreement then obviously that changes things.

 

You will not get a Strike Out with your app, if that's what you were thinking of. You *may* get an unless order

 

Unless the Claimant do lots of things by a set date their claim will be struck out without further order

 

Or a similar order without the unless, i.e. just a The claimant must .....

 

There is no reason whatsoever that the Court will refuse the application -

1. they should have been submitted with the POC

2. without the docs the claimant cannot prove their case and the Court cannot make a 'fair' judgement.

[gh2008]

Just a suggestion (& I don't know whether FG agrees)

 

I would try and keep the Order looking 'reasonable' with literally what you need for your defence.

i.e. the agreement, T&Cs & DN

 

All teh rest of the stuff would normally follow under the normal disclosure rules at an appropriate time.

 

You do not want the DJ to think you are trying to obstruct the claimant by making un realistic demands.

What might happen is that the DJ will look at it and think that you are trying to get the court to do your 'dirty work'

 

With a 'proper' POC you would have had served upon you the docs mentioned above + a statement showing how amount claimed was calculated.

From these docs you would be expected top be able to file a full defence (or admission).

 

That is the stage you are at - not the 'prove these docs' stage (that could form part of your defence - i.e. that you do not recognise these as the originals etc)

 

JMHO

[gh2008]

Ok, ignore that post you've already done it

 

actually I would add in at least the DNs into the app form

They need a valid DN to have a cause of action

Edited July 28, 2010 by gh2008
added a bit

[gh2008]

Thinking about it, both of these applications were made at football grounds, and as I recall, the forms I completed were on a clip board. At no point do I remember removing the form from the clipboard and looking at the back, or indeed being prompted to do so! Should this also go into my defence?

 

Yes it's pretty important if the Prescribed Terms were on the back, but are not referenced from teh front or as you say you were not given the opportunity to read them properly given that you were dealing with someone on commision trying to sign up as many peeps as poss in the shortest possible time.

[gh2008]

Hi Chip - I would squeeze the words 'improperly executed' and 'irredeemably unenforceable' into 4

 

Have they sent a copy of the DN - even if you have one they should be submitting a copy to prove their case - if not pop that on the list

 

I wouldn't use their reply wording, just deny the DN was compliant with the Act and put them to strict proof that it was compliant and of the date of service.

c) at the end isn't strictly true - I think proper records must be kept as opposed to the original document.

 

jmho

[gh2008]

Hi Foolishgirl

Quick question on DN's and charges. Are you saying that if there have been any charges to the account (£12 ones for late payment or dd returned) that they shouldn't be included in the amount in the DN that needs to be paid to correct the breach, or that they should?

R

 

No, unrecoverable (unlawful) charges do not invalidate a DN. This was very clearly ruled on in the Rankine case (the Mrs one) where she argued that exact point and the Judge threw it out.

 

However, if there were any charges that the OC would/should have known were unrecoverable that that is different. (i.e. ones not in the T&Cs etc)

[gh2008]

Optima have to comply with the Order - so check that they have sent everything contained in that Order.

 

now everything's in I would make the most of the time and really study your case. And read up on the Waksman, Carey & Rankine cases as, if it goes to trial they *will* be brought up. BUT most of the time they are brought up they are out of context and unless you can challenge that you will get steamrollered.

 

re. proof of posting - what normally happens is that there is a WS from the bank that explains the 'general procedure' for issuing DNs - without evidence to the contrary this is taken as true on the 'balance of probabilities'

[gh2008]

Technically it is in default the day you miss a payment .... i.e. being 'in default' is = being in breach of contract

 

However if you are talking about reporting to CRAs etc then the creditors would have MASSIVE problems, if you complied with the default notice, of 'pretending it didn't happen' which is what is supposed to happen.

 

IMHO they should not report until past the remedy date, but the default date could be any date from the missed payment onwards

 

jmho

[gh2008]

Instructions for pursuing Chipmeister:

 

Step 1. Place foot firmly on floor

Step 2. Read Brandon and whoop for joy

Step 3. Load gun ready to fire off @ debtor in Court

Step 4. Write a reply to debtor

Step 5. relax arm with gun with smug grin on face

Step 6. realise quite what you have just written

Step 7. release trigger ......

 

Cost of litigation up to that point £2000

Cost of the reply £25

To be a fly on the wall when the "You wrote WHAT!!!" question is asked ......

...... PRICELESS!!!