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Just before going statute barred court claims


vjohn82
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Say for instance you have a debt which was last paid on the 10th December and the court claim goes in approx. 2 weeks before this date.

 

Can you use the statute barred defence when it comes around to the time for filing your defence?

 

The question, essentially, is where the SB debt stands when it comes to the time when the creditor takes action. Is it the case that the SB debt is ripe for a court claim right up until the last day it is due to go SB? i.e. a creditor has until the last day of the SB time frame to take action and any such action taken after the fact is liable for the SB defence?

 

Any thoughts on this appreciated.

 

VJ

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Good point VJ i suppose the clock stops on the debt once litigation has commenced and if no payment or acknowledgment as been made up to the day of litigation then it qualifies for SB, irrespective of a payment being made after.Alternatively the payment may have been made in error or under duress?

 

Regards

 

Andy

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I believe that a claim made inside the SB limit will stand; however, there is case law I’m trying to dig out which prevents a claim being made simply to avoid the SB issue, ie. if CPR has not been complied with, or there is deadlock/dispute. I’ll keep looking.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Good point VJ i suppose the clock stops on the debt once litigation has commenced and if no payment or acknowledgment as been made up to the day of litigation then it qualifies for SB, irrespective of a payment being made after.Alternatively the payment may have been made in error or under duress?

 

Regards

 

Andy

 

Are we saying that the "day of litigation" is the day that both parties appear in court? The reason I used the example above is because one would have had to have filed a defence prior to the hearing date. This any opportunity to use the SB defence will have technically expired because you will have had to have filed some kind of defence...

 

UNLESS

 

You filed an embarrassed defence, awaited full disclosure etc... dragged it out a little etc.

 

I believe that a claim made inside the SB limit will stand; however, there is case law I’m trying to dig out which prevents a claim being made simply to avoid the SB issue, ie. if CPR has not been complied with, or there is deadlock/dispute. I’ll keep looking.

 

I'll have a look for that case law too but I think I looked before. I have access to WESTLAW so if you find the case reference but not the case then chances are I will be able to source it.

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Are we saying that the "day of litigation" is the day that both parties appear in court?

No the date the summons is issued is the start of litigation.

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That’s what this case law I’m looking for is about – someone issued a claim to try and halt the SB, but had used it purely for that reason, which was ruled out of order in the Lords.

 

I think the implication would be that if a case was brought when the claimant knew he couldn’t yet prove his case, that would be an abuse of process.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Are we saying that the "day of litigation" is the day that both parties appear in court?

 

 

No the date the summons is issued is the start of litigation.

 

Sorry Andy, just re-read your post and the question I asked shouldn't have even been raised.

 

If I could slap myself I would but I'm saving my strength for every DCA boss out there ;-)

 

That’s what this case law I’m looking for is about – someone issued a claim to try and halt the SB, but had used it purely for that reason, which was ruled out of order in the Lords.

 

I think the implication would be that if a case was brought when the claimant knew he couldn’t yet prove his case, that would be an abuse of process.

 

I think there's mileage in something like that... of course the pre-litigation stage is becoming more and more important these days, especially where costs are concerned.

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But VJ, hou have raised an interesting point by accident... we know of certain debt buyers who have a lot of cases that are about to be SB, who are rapidly pressing the litigation button!

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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But VJ, hou have raised an interesting point by accident... we know of certain debt buyers who have a lot of cases that are about to be SB, who are rapidly pressing the litigation button!

 

Alice Pettifogger?

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I think there's mileage in something like that... of course the pre-litigation stage is becoming more and more important these days, especially where costs are concerned.

 

Absolutely PAP is becoming as strong as CPR after changes made on the 6th April 2009.

 

Andy

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This is the one I was thinking of.

 

Elmes v Hygrade Foods [2001].

 

This was about the court saying that a claim could not be filed simply to comply with the pressing SB, then later altered to fit what they really needed (ie. change the PoC or claimant/defendant, etc), because they would effectively be seeking an extension of time, which is not allowed.

 

Attached.

Elmes v Hygrade.rtf

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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