Bryan Carter embarrassed defence help

[Sarah007]

Hi,

 

I'm currently in dispute with BC and am at the point where I am about to submit an embarrassed defence. I have already requested CCA and CPR documents and despite BC having a 28 day extension they have failed to respond. I've cobbled together a defence by browsing the posts on this forum and hoped someone can tell me if it is OK as I'm slightly nervous of getting it wrong. Anything I should add or leave out?

 

Thanks

Sarah

 

In the NORTHAMPTON county court

Claim number XXXXXX

Between

Bryan Carter Solicitors - Claimant

and

XXXXXXXX – Defendant

 

DEFENCE

1. I XXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by Bryan Carter Solicitors.

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. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedure Rules.

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request despite having a 28 day extension to do so.

6. It is denied that I have entered into an agreement with the Claimant Bryan Carter Solicitors.

7. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

8. It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

9. It is denied that I am in breach of the alleged agreement in that I allegedly failed to make payments to the claimant.

10. It is averred that if the alleged agreement is subject to the Act, before proceedings may be commenced the Claimant must have served myself with a valid Default Notice complying with the provisions of Sections 87 and 88 of the Act and the Regulations made subsequent to that Act. It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof.

11. It is denied that I have failed to respond to demands for payment sent by the claimant and/or its agents. The Claimant is put to strict proof that any such demands have sent to me by the claimant.

12 Further and in the alternative if, which is not admitted, an enforceable agreement is in existence, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how the sum claimed is lawfully owing.

13 Further, it is denied that any alleged contractual account charges and any interest applied thereon which make up any part of the sum claimed are lawfully owing in that it is averred that these sums would have been claimed pursuant to an unfair contract term and in addition are in breach of the general law.

14 It is averred that any account charges that are claimed are in breach of the common law in that they are a penalty and that they do not reflect any actual loss or the true extent of any costs incurred by the Claimant and are therefore void.

15 Further and in any event it is averred that any clause of the alleged agreement under which the account charges are claimed is an Unfair Term contrary to The Unfair Terms in Consumer Contracts Regulations 1999 and, by virtue of Regulation 8(2), "shall not be binding on the consumer". Any such contractual terms are therefore void.

16 Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

17 Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

AND the Defendant

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

Statement of Truth

I believe that the facts stated in this defence are true.

 

Signed

 

XXXXXXXX

Defendant

[wycombe]

Not bad:). Welcome to CAG and us fellow sufferers.

 

I cannot see any major problems with what you have drafted. But, wait as long as reasonable, to see if you get any further comments.

 

I suspect you should be able to go for a strike out in respect of no supporting documentation being supplied particularly as the Claimant has had an extra 28 days to do so. They are not supposed to issue proceedings unless they have supporting documentation - so, surely, this is an abuse of process?

 

I am no expert so I am sure someone with more expertise than me will comment and advise.

 

Good luck.

[wycombe]

If you have not done so a SAR may be in order to the original creditor.

 

This will reveal everything they hold on you - so if an agreement exists this should then surface. A SAR will cost you £10 and IMHO is always worth it as it can prevent nasty surprises further down the line or give you invaluable ammunition against the crew who are suing you.

[supasnooper]

Hi there,

 

Welcome to CAG.

 

Your defence should oppose what the Claimant has plead in their Particulars of Claim together with their documents they have to support their claim.

 

Please can you type up the Particulars of Claim ( be vague with the amounts etc).

[Sarah007]

Thanks for your replies. Here's the POC:

 

"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 XXX but has failed to do so.

 

And the claimant claims the sum of YYY.

 

The claimant also claims interest thereon pursuant to S.69 country court act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to ZZZ."

 

It's also worth mentioning that they've also sent a letter in response to the CCA/CPR requests stating the usual, "We do not consider that your request, in it's entirely, to be reasonable as we believe this matter should most properly be allocated to the small claims track. It was out Client's policy to issue agreements on or around the date of contract and statements throughout the duration of the agreement." Not sure if this needs referring to in the defence?

[sillygirl1]

A Subject Access rrequest is TOTALLY the wrong thing to do at this stage, as it has got to the defence stage you need to invoke the CPR disclosure rules. I would ring your local court and ask them which one is applicable, then get Mr Carter to disclose every scrap of information he has or you will ask for a strike out and claim costs - don't forget to get an interim costs order ready and attach this to the defence, Mr Carter has a habit of shouting that you cant claim costs from him if he discontinues if you don't state it in your defence....

which is another abuse of process.

 

Also lodge a complaint with the Solicitors Regulatory Authority for him going for court without appropriate documentation.

[wycombe]

A Subject Access rrequest is TOTALLY the wrong thing to do at this stage, as it has got to the defence stage you need to invoke the CPR disclosure rules. I would ring your local court and ask them which one is applicable, then get Mr Carter to disclose every scrap of information he has or you will ask for a strike out and claim costs - don't forget to get an interim costs order ready and attach this to the defence, Mr Carter has a habit of shouting that you cant claim costs from him if he discontinues if you don't state it in your defence....

which is another abuse of process.

 

Also lodge a complaint with the Solicitors Regulatory Authority for him going for court without appropriate documentation.

 

Agree with most of SG's points. However the SAR is going to take 40 days as most do not provide this information until the last possible moment. Who knows where you will be 40 days down the line! With any luck this will be done and dusted by then - but if not you will expect everything the original creditor has on you through the SAR.

[NGEddie]

 

The claimant also claims interest thereon pursuant to S.69 country court act 1984 limited to one year to the date hereof at the rate of 8% per annum amounting to ZZZ."

 

quote]

 

Hello and welcome...to CAG

 

I take it your agreement is a regulated one? Possibly dont give this away yet in the embarrsed defence but they cannot claim interest on a regulated agreement.

 

[Sarah007]

I take it your agreement is a regulated one? Possibly dont give this away yet in the embarrsed defence but they cannot claim interest on a regulated agreement.

Unfortunately I have no idea as I have never seen the alleged agreement

[Sarah007]

*UPDATE* Just thought it would be polite to update everyone who helped me. After submitting my defence and then completing the allocation questionnaire (again with the excellent templates on this forum) I have just received a Discontinuation Notice from BC.

Many thanks to all who helped. The drinks are on me!

[lord_tiger_putin]

*UPDATE* Just thought it would be polite to update everyone who helped me. After submitting my defence and then completing the allocation questionnaire (again with the excellent templates on this forum) I have just received a Discontinuation Notice from BC.

Many thanks to all who helped. The drinks are on me!

 

What do you meanby a Discontinuation Notice from BC? A two sentence letter from Brainf@rt? If so, don't take it on face value!!

[bazaar]

check with the court that this has actually been submitted with them, BC is a slimey git. THEN, hit him with costs. also report him to SRA

[lord_tiger_putin]

check with the court that this has actually been submitted with them, BC is a slimey git. THEN, hit him with costs. also report him to SRA

 

I received a dicontinuation letter from him, when I phoned the court the case was still active an alive! It seems to be standard procedure with this slime ball!!

[bazaar]

I received a dicontinuation letter from him, when I phoned the court the case was still active an alive! It seems to be standard procedure with this slime ball!!

 

Yep par for the course Im afraid, so report his sorry ar**. also maybe write to the court with a copy of the letter, asking for costs.

[Sarah007]

They sent me a cover letter saying, "Please find attached for your information, a copy of the Notice of Discontinuance forwarded to the **** County Court" and attached is a N279-Notice of Discontinuance of Proceedings or withdrawal of Part of Claim. Order 18. Rule 1.

 

I think I'll give it a day or two to get processed by the courts and then call them to see where I currently stand. I'm also definitely going to complain to the Solicitors Regulation Authority.

[bazaar]

dont forget that costs order

[Sarah007]

Ah yes, costs. I'll claim costs and donate whatever BC offer to CAG. By the way, is a discontinuance the same as being struck out? i.e. Presuming the discontinuance is genuine do I need to take any further steps to make sure the claim doesn't try to haunt me in the future?

[intree]

well done !! BC is a complete To44er

[bazaar]

Put it this way, Ole BC will put a claim in against anyone, then he will see what the reaction is. If its one like yours, he heads back under the rock he came from. but youve incurred costs dealing with this imbecile, so you should be compensated.

 

Now on the other hand, if he told you he was discontinueing, but didnt inform the court, then you may not follow up and end up with a default judgement.

 

Either way, you should always complain to SRA, ( they'll get fed up if enough people complain).

And to kick him in those rather baggy pants, you should always apply to court for your costs.