1st Credit & LCS Battle - court papers received - help

[Undercover-Elsa]

Hi Newman,Just had a read through.

You really need to use the rules to help you here.

Pick up the phone. Ask their solicitors politely when you can expect compliance with your part 18 request. Ask them if they will agree to an extension of 28 days in order to allow time for their response, and any subsequent document requests under CPR 31.14 resulting from it. If they agree ask that they confirm this in writing without delay, for reference of the court. When you get it, you must inform the court and send them a copy...it's your responsibility to do this.

 

If, on the other hand they refuse, tell them that you therefore have no alternative but to apply to the court for an order compelling disclosure, and for the claim to be struck out if they do not comply. (You would do this on an N244 form)

 

Hope this helps,

 

Elsa

Edited July 18, 2011 by Undercover-Elsa

[Undercover-Elsa]

Hi Newman,

it's usually the solicitors you deal with re CPR requests. If their 14 days are up I don't think there's anything to stop you applying directly to the court on N244 for disclosure, this could also include a request for an order for them to replead properly as the POC's are too vague, for disclosure and for an extension of time.

 

Here's an example of how to complete an N244 from another thread in similar circs. http://www.consumeractiongroup.co.uk/forum/showthread.php?310373-I-think-i-just-got-issued-a-CCJ-i-could-really-use-advice-as-this-will-have-a-huge-impact./page6

 

Just need to change computers, but I'll paste up some info for you on poor POC's.

Just remind me, when is your deadline for defence? Did you not include a request for extension with your part 18 request?

 

Elsa x

[Undercover-Elsa]

From Pt2537:

POOR Particulars of claim

 

If I had a pound for every set of pleadings which I saw and which said "the claimant claims monies due" and very little else I’d be very rich indeed. In fact these forums are rife with them,

 

Now, the problem is when people receive a claim like this they answer it with some lengthy verbose defence which pleads that you can’t plead cos the POCs are vague.

 

Then what happens, is this plods along for 8, 9 or 10 months when you get to a trial

and you go in and say “but i didn’t know or understand what this case was about cos the pleadings were too vague”, then the judge looks at you and says " well you silly boy, why didn’t you do something about it earlier, you’ve let this go on for so long............" and either you get A) an order that the Claimant must replead and you have to pay their costs or B) you get told tough you should have made an application and then you have a trial on frankly a CRAP set of pleadings, doesn’t do you any good nor do you get justice!

 

If the Claimant’s claim is sooo damn vague that you honestly do not understand what its about, then you should ask the claimant to replead their case properly at the same time as you ask for disclosure. Put it clear, the pleadings are not good enough for a trail and therefore ask them to plead their claim properly or you will make an application to the court for an order compelling them to plead proper. After all, a judge will want a properly pleaded claim and defence and both cannot be achieved unless you have all the documents etc that you need and the case is properly put together,

 

Question: I have a poor POC from Restons, I have sent CPR31.14 on 20th Jan, Till now no reply from them. I got till 09 Feb to file my defence.

 

Now should I apply for stike out or file embarrassed defence?

Answer: Please check with Northampton Bulk Centre

But I can tell you that, when an application is received due to non compliance, then the claim will be barred from judgment till the outcome of that application

I would also question if it is an abuse of the process to bring a vague claim and fail to back it with documents which you are entitled to under 31.14??

This is what Blackstones says regarding abuse of the process and application on that point

 

 

The first half of CPR, r. 3.4(2)(b), gives the court power to strike out a statement of case which is an abuse of the court’s process. This is a power ‘. . . which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’ (per Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p. 536). Applications to strike out for abuse of process should be made shortly after service. Once the defendant has filed a defence and defended on the merits he is taken to have acquiesced, and it is too late to take the point (Johnson v Gore Wood and Co.[2002] 2 AC 1; Coca-Cola Co. v Ketteridge [2003] EWHC 2488 (Ch); LTL 4/11/2003).

 

 

[Undercover-Elsa]

I'm just an avid info gatherer. I think it is best to ring them first..that way if they refuse you have demonstrated that they are uncooperative when you have given them every chance to comply.

[Undercover-Elsa]

Quite right, you can't defend without disclosure, embarrassed defences prior to getting docs just leave you open to costs being added if you eventually get the docs and have to amend later.

Insist on disclosure, put them on the spot. They shouldn't issue these claims without having all their ducks in a row first, it's an abuse of process.

[Undercover-Elsa]

More from pt on that subject:

Question: Brilliant info as ever PT however I note the defended on the merits part... wouldn’t an embarrassed defence be exactly the opposite, you are defending on the claim having no merits at all?

 

Answer: Sadly this is a contradiction, how can you properly assess the merits of the claim without the documents you need?

Hence why you ask under 31.14 for the docs.

 

Now the lender fails to comply, you have a claim that effectively amounts to an abuse of the process as the pleadings are vague, fail to state the account number, fail to set out the nature of the contract in most cases, therefore, how can you defend this?

 

If you do, then It’s really going to be 2 or 3 lines

:

The Defendant is unable to plead due to the Claimants failure to comply with its CPR 31.14 duties in disclosing requested documents

 

The Defendant is embarrassed at the lack of detail within the claimants claim and therefore cannot plead due to the Claimants ongoing failures.

 

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

To clarify, how can you defend when the pleadings are so poor you can’t understand the claim?

 

To do so suggests you can understand the claim, thus negating the ability to file the so called embarrassed defence!!!!!

The correct route is to apply for a strike out or an unless order where the Claimant fails to plead and disclose, do not forget the duty to disclose is an ongoing on from pre action stages and you only need to read paragraph 24 of Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 to see that.

[Undercover-Elsa]

Hmmm interesting. So they managed to inform him on the 11th, it's now the 18th and they haven't informed you. Nice of them. I'd wait a bit, see if they contact you then send in the N244 near the end of the deadline..I'd plan to get it there at least the day before. You can then include their lack of communication in your notes.

[Undercover-Elsa]

[Undercover-Elsa]

Sound like a set of shysters. Wonder if they've bothered sending the court notification of the change of contact details for notices/documents.

Newman - might be an idea to phone the court, tell them what he said and ask if they've been informed of the new details, as you now have no contact details for who is dealing with your case. Obviously you'd need this to complete the N244. At the same time you can check with the court what the fee is for submitting the N244 for disclosure/set aside.

The N244 will need to be posted by special delivery, as you need to enclose copies of any correspondence (don't forget you need to send everything in duplicate, plus save a copy for yourself...1 lot for the court and 1 lot for their solicitors/pet hamster or whoever is [mis]handling it now. Plus you either need to enclose the fee or an application for fee concession.

You can fill in the form online, and then print it out (it won't save)

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

[Undercover-Elsa]

Worse than getting a Drs appointment!

 

Couple of things jump out...I understand you haven't sent a 31.14 request yet (due to nothing being mentioned in POC) so you'd have to do that after they either mentioned docs (ie agreement,default notice etc) or if they repleaded. Plenty of time to perfect it.

 

I'll be back later to see what the court said

Elsa x

[Undercover-Elsa]

The order is worded as "from receipt of thgis notice" so regardless how long the court took to process it, it would run from when the claimants sols received it, afaik.Meanwhile the important thing is that the court immediately puts a stop on further action, so no sneaky defaults, deliberate or automatic can happen.

 

I'll have a ponder on the wording of the order, hopefully there'll be input from others too...I'll see if I can get someone else in to help as it's important to get it right.

Don't worry, we'll sort it between us

[Undercover-Elsa]

In the meantime it might be an idea to email or fax the claimants and state that you were concerned to learn from a phone call that they have changed solicitors and that you have not been informed. You would therefore be most grateful if they would confirm the new address for notices to be sent regarding the case. (You'll need it for the N244)

[Undercover-Elsa]

Morning Newman,

OK we're getting there, but it needs more thought.

Can you post up exactly what you sent in your part 18 request?

 

Also, for easy reference of anyone else who may come in to help, here again are the POC's:

 

The claimant claims the sum of 8,898.97 for debt and

The defendant was indebted to Citifinancial Europe PLC for credit advanced. The debt was assigned to the claimant. Notice of assignement was given to the defendant.

AND THE CLAIMANT CLAIMS

1 The sum of 6.727.12

2 Statutory interest pursuant to section 69 of the county court Act 1984 at a rate of 8.00% per annum from 08/06/07 to 20/6/11 2,171.85 & thereafter at a daily rate of 1.47 until judgment or sooner payment

 

 

 

With reference to the above, the daft beggars cannot charge Statutory Interest on a CCA regulated debt. the only interest that can be claimed is that specified in the T&C's of the agreement. So the amount they are claiming is wrong, and they have really shown up their lack of knowledge.

However, we are not going to tell them that yet are we? That's for later..if there is a later.

 

And the relevant legislation:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

The general rule

 

2.—(1) Subject to the following provisions of this Order, every judgmentdebt under a relevant judgment shall, to the extent that it remainsunsatisfied, carry interest under this Order from the date on which therelevant judgment was given.

(2) In the case of a judgment or order for the payment of a judgmentdebt, other than costs, the amount of which has to be determined at alater date, the judgment debt shall carry interest from that later date.

(3) Interest shall not be payable under this Order where the relevant judgment—

(a)is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974(1);

[Undercover-Elsa]

Hi Newman,

 

Just concentrating on the court process at the moment, the part 18 request covers everything. Once they comply with that and mention the Agreement & Default Notice etc then you can do your 31.14 request, as you know.

 

Having read/thought through this again, I'm of the opinion that the time to request a repleading would have been as soon as you received the claim and prior to making the part 18 request.

As you've already done this, and thankfully it covers everything you will need to proceed to the 31.14 request, then I personally now think it best in terms of protocol and clarity to leave repleading off the order. At the moment it's over complex. It needs to be straight forward and state if they don't comply with part 18 by xxxx date then strike out. If they do comply then an order for further time sufficient for you to request under 31.14 documents mentioned in their response which are crucial to the defence.

 

With regard to the stated times, I've looked into this more and it is a little confusing. I think it's safer to state actual dates, for clarity and to prevent possible disputes. I believe one can only use "within 14 days" if the order is being served directly on the recipient.

As, once you send the N244 to the court you will not know when the claimant will receive it, I think you may need to ring the court and seek clarification, stating that you wish to issue an unless order giving them a specific date 14 days from receipt to comply, therefore you need an indication of how long it will take the court to process the application and the claimant to receive it.

 

What do others think?

 

Elsa x

[Undercover-Elsa]

Hi Newman,

 

Just concentrating on the court process at the moment, the part 18 request covers everything Well thats reassuring to know.. Once they comply with that and mention the Agreement & Default Notice etc then you can do your 31.14 request, as you know.I am really hoping they dont reply within the 14 days as I want to get this N244 off:) make them really work for their money

 

Having read/thought through this again, I'm of the opinion that the time to request a repleading would have been as soon as you received the claim and prior to making the part 18 request.

As you've already done this, and thankfully it covers everything you will need to proceed to the 31.14 request, then I personally now think it best in terms of protocol and clarity to leave repleading off the order. OK thats fine its one less thing to put in the box 3 and it seems you are very limited there in the amount of text you can put in

 

At the moment it's over complex. It needs to be straight forward and state if they don't comply with part 18 by xxxx date then strike out. If they do comply then an order for further time sufficient for you to request under 31.14 documents mentioned in their response which are crucial to the defence. Thats absolutely fine with me - i did think it was getting a bit OTT when I was writing it but this is my first time doing this so apologies for this. I am very happy with KISS

 

With regard to the stated times, I've looked into this more and it is a little confusing. I think it's safer to state actual dates, for clarity and to prevent possible disputes. I believe one can only use "within 14 days" if the order is being served directly on the recipient. Can I not do this or does it have to be done through the court? The court sends it to them after you've sent your application to the Court.

 

As, once you send the N244 to the court you will not know when the claimant will receive it, I think you may need to ring the court and seek clarification, stating that you wish to issue an unless order giving them a specific date 14 days from receipt to comply, therefore you need an indication of how long it will take the court to process the application and the claimant to receive it. I will do that right now and feedback

 

What do others think?

 

Elsa x

It's basically what you've already done, less the repleading and made more concise.

I think we can word the order to include time for you to act upon their response to the part 18 request, ie submitting a 31.14 plus time for their response and for your defence prep.

Leave it with me..we have till..Friday?

I'm a bit stuck today as OH is day off and we're busy, but I'll redraft it for you tomorrow if you wish, then we can tweak it/get other opinions before it goes off. Meanwhile see what the court says about how to do the dates.

[Undercover-Elsa]

I get the impression that J&P aren't too impressed with them either, LOL. Wouldn't it be fun to get them to act on your behalf?

[Undercover-Elsa]

We'll go over it tomorrow...you need to get your blood sugar up..the novacaine will have made you hypo. Warm sweet tea (not too hot) but you might need a straw, LOL.

[Undercover-Elsa]

Hmmmm. Got stuff to do, I'll be back a bit later...was just working on the N244 but looks like the goalposts have moved again.

 

Elsa

[Undercover-Elsa]

Yep you need to get your name off pronto. Are you there Newman? I've asked the site team to unapprove it for now.

 

Can you post up what they say they say is the agreement, supplied in 2010.

[Undercover-Elsa]

Edit post > advanced > scroll down > manage attachements

 

Was the agreement a recon in response to a CCA request?

[Undercover-Elsa]

Thanks Maroondevo

[Undercover-Elsa]

Hang on, if it's a recon just the front page, the page with the interest rates on and the page with anything about post judgement interest will do. Plus the letter they sent with it.

[Undercover-Elsa]

Please don't send anything back to them without getting other opinions first..you need to tread carefully now.

Elsa xx

 

PS: Cheeky devils, even if they'd sent a signed copy in 2010, you have a right to ask for a copy whenever you wish providing a month has elapsed since your last request, under s77-79.

Once proceedings start they should produce the original.

Edited July 20, 2011 by Undercover-Elsa

[Undercover-Elsa]

Re your coloured text..what browser are you using? If in Explorer 8 you might need to set it to compatability view (tools > compatability view)

[Undercover-Elsa]

5 guests! Good morning