Hilesden securities court papers received ** Discontinued ***

[john]

Theres the problem. I am doing this for my partner (John) and although he is 99.9% sure he has made no contact I would not personally be 100% sure. TBH I would be very surprised if he had contacted them but hes so useless with correspondence etc, hence I'm left to sort out this now. Is it worth sending the statute barred letters now or I guess its too late.

 

I'm not sure what an unless order is? I know for a fact nothing has been paid but cannot say 100% on correspondence.

 

I do not mind paying a court fee if this is the best route, I am aware that the AQ will have to be taken in person to get it in for the 4th but surely I will not get a copy of the claimants AQ before that date anyway?

Edited December 29, 2010 by john

[john]

Apparantly a letter was sent to a DCA asking them to take the details of his elderly parents from his file as they had been calling them at all hours. Unfortunately this was about 5 years ago.

[john]

After 4 hours trawling and a banging headache I have come to the conclusion that whatever route is to be taken I have until next wednesday to decide. I would still gratefully welcome further input from anyone with any further advice/ideas. I'm leaning towards sending the AQ back, if anyone can tell me what happens then? When will Hillesdens need to come up with the requested paperwork?

Edited December 30, 2010 by john

[dx100uk]

unless your partner sent a signed letter, specifically stating 'i owe this debt' or word relating to the same and signed it.

then i would not be worried about anything sent or spoken about on the phone.

 

the above words about please remove parents name slighly worry me

but as its more than 5yrs [exact date would be great!] i wonder if thats statute barred or very close anyhow?

 

dx

[the_shadow]

Theres the problem. I am doing this for my partner (John) and although he is 99.9% sure he has made no contact I would not personally be 100% sure. TBH I would be very surprised if he had contacted them but hes so useless with correspondence etc, hence I'm left to sort out this now. Is it worth sending the statute barred letters now or I guess its too late.

 

Its something you would need to put in the defence now

 

I'm not sure what an unless order is? I know for a fact nothing has been paid but cannot say 100% on correspondence.

 

Its basically an application for an order of disclosure which has a caveat that unless they give the requested documents the case will be struck out, they used to be used a lot on the bank charges claims and could be included in with the AQ, some judges accepted them this way, others didnt.

 

S.

[Dotty50]

Hi John (or partner)

 

You are aware that I am in a similar position with one of those extremely vague POC's!

 

Like you, I have read and read through relevent threads and think I have just about got my head round what to do and of course, getting lots of help and advice from others.

 

Just wanted to query something on yours, going back to post 7, where postggj advised to send out CPR 31.16 in view of poor POC. You then questioned this in post 45, wondering whether it had been done and postggj responded in post 46 to say that it was covered in CPR 31.14 which had been done.

 

I may just be interpreting this incorrectly but was either 31.14 or 31.16 sent?

 

31.14 is for documents mentioned in the POC so if nothing mentioned I thought you used 31.12 or am I confusing this with 31.16?

[gh2008]

Ok, you need to make up your mind PDQ

 

I wasn't aware of the SB possibility - throws a whole new light on the matter and would also go some way to explaining the POC

 

I would apply for a Strike Out due to it

1. No cause of action - no details to identify the account etc

2. being Statute Barred (this will have to be worded carefully as the POC does not identify any account)

 

with an 'in the alternative' of a 'Unless Order' for a fully particularised POC together with full disclosure of all the documents relating to the claim (this would be similar to the Order Gazbo got

 

You need to decide soon though, if you are going to submit an N244 then it should really go in on or before the 4th (your AQ due date)

[gh2008]

 

31.14 is for documents mentioned in the POC so if nothing mentioned I thought you used 31.12 or am I confusing this with 31.16?

 

You are right, 31.14 for doc already disclosed (mentioned), 31.16 before action starts and 31.12 which imho is the most powerful of all but caggers seem to avoid is for specific disclosure i.e. something relevant that may (or may not exist) but not already disclosed.

 

I have advised the use of 31.12 many times (against dodgy POCs where there has been enough info to id an account but little else) and I think it has worked every time

 

If there is not enough info in the POC to positively id an account then imho N244 is the way to go (as per Gazbo's thread although that was a bit later)

[john]

Hi John (or partner)

 

You are aware that I am in a similar position with one of those extremely vague POC's!

 

Like you, I have read and read through relevent threads and think I have just about got my head round what to do and of course, getting lots of help and advice from others.

 

Just wanted to query something on yours, going back to post 7, where postggj advised to send out CPR 31.16 in view of poor POC. You then questioned this in post 45, wondering whether it had been done and postggj responded in post 46 to say that it was covered in CPR 31.14 which had been done.

 

I may just be interpreting this incorrectly but was either 31.14 or 31.16 sent?

 

31.14 is for documents mentioned in the POC so if nothing mentioned I thought you used 31.12 or am I confusing this with 31.16?

 

Hi Dotty I have only sent the defence in my early post kindly drafted by postggj. Nothing else has been submitted yet.

[john]

Ok, you need to make up your mind PDQ

 

I wasn't aware of the SB possibility - throws a whole new light on the matter and would also go some way to explaining the POC

 

I would apply for a Strike Out due to it

1. No cause of action - no details to identify the account etc

2. being Statute Barred (this will have to be worded carefully as the POC does not identify any account)

 

with an 'in the alternative' of a 'Unless Order' for a fully particularised POC together with full disclosure of all the documents relating to the claim (this would be similar to the Order Gazbo got

 

You need to decide soon though, if you are going to submit an N244 then it should really go in on or before the 4th (your AQ due date)

 

So ideally the N244 needs to go in tomorrow as the court will not be open until the 4th after that. I think that would be the best course of action. Am I right in thinking that if by any slim chance they can prove it isn't statute barred they would still have to produce the original agreement ( is this the 31.12 you have suggested?)

 

Would the wording for your point 2 need to be along the lines of

 

"the poc are so vague that no debt can be identified from it. As the defendant had to his knowledge made no payment or sent any correspondence it is alleged that if any debt did exist it would be statute barred."

 

If I download the N244 form and post a draft could someone check that I've used the correct points please? Thanks.

[gh2008]

point 1. is no cause of action, so no account or debt has been identified, no details of any agreement, breach of pre-action protocol practice direction + breach of CPR16 + loads of others much along the lines of Gazbo's

 

Point 2. maybe more along the lines of I have made neither any payment nor acknowledged any debt to Hillesden's Securities in the last 6yrs and therefore this debt must be statute barred.

DO NOT use that wording as it is rubbish, but that is my thinking.

 

If you can get to the Court and hand deliver the papers by 4pm on the 4th then that would be fine - do not mess this step up as it could cost you .....

have you tried pming foolishgirl and emandcole & the others helping on Gazbo's thread?? if not, that would be a very good idea ....

[john]

Thanks for that suggestion, have pm'd them all. Downloaded the N244 and just reading the guidance notes. Will post my draft when I've done it and look forward to everyones opinion. Thanks for posting.

[john]

Does this go in N244 Q3. What order are you asking the court to make and why?

 

The defendant seeks an order to strike out the claimants action on the following grounds:-

 

1. I recieved a claim form from Hillesden Securities issued by Aplins. As the particulars of claim did not include any information to identify the account or debt, and disclosed no course of action it failed to comply with the Civil Procedure Rules 16.2(1) (a) (cc), 16.4(1) (a) and 16.4(2) (b)

 

2. No payment or acknowledgement of debt has ever been made to Hillesden Securities, therefore under the Limitation Act 1980 Section 5 this debt must be statute barred. (do I need to add "unless the claimant can prove otherwise?)

 

3. (not sure how to word this) 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 31.12 and the defendant produce true copies of the original signed credit agreement and all documents relating to the account.

 

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

 

 

All advice and comments gratefully received. As gh2008 says I really dont want to mess up at this stage!!!!

Edited December 30, 2010 by john

[gh2008]

1st line goes in Q3 the rest would go in a Witness Statement in support of your application

 

you don't need the last para as you will be enclosing a draft order (copy the one gazbo got from Court)

 

there's some info here http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso-Appeal-in-process/page6 that may help

 

Don't need the red bit in para 2

[john]

Thanks for the link. Is this right?

 

Q3:- The defendant seeks an order to strike out the claimants action

 

Q4:- yes

 

Q5:- without a hearing

 

Q6:- blank

 

Q7:- blank

 

Q8:- District Judge

 

Q9:- Claimant

 

Q10:- I attach a witness statement saying:-

1. I recieved a claim form from Hillesden Securities issued by Aplins. As the particulars of claim did not include any information to identify the account or debt, and disclosed no course of action it failed to comply with the Civil Procedureicon Rules 16.2(1) (a) (cc), 16.4(1) (a) and 16.4(2) (b)

 

2. No payment or acknowledgement of debt has ever been made to Hillesden Securities, therefore under the limitation act 1980 Section 5 this debt must be statute barred.

 

3. (not sure how to word this) 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 31.12 and the defendant produce true copies of the original signed credit agreement and all documents relating to the account as set out in the attached draft order.

 

statement of truth

 

Is the statement of case the same as the draft order?

 

What do I put, if anything, in the box at Q10?

 

Is this the draft order you suggested? Not sure of the bits in red, and do I need the additional information?

 

Draft Order For Directions

1. The claimant shall not later than 16:00 on the (DATE 2010) (What date is the case management date?) file and serve a true copy of each of the documents relied upon in support of this action.

2. As the defendant is entirely unaware of the nature of the claim, its origin and how the amount was derived the claimant shall re-plead their Particulars of Claim fully. The original Particulars of Claim are wholly inappropriate and do not explain the nature of any claim.

3. The defendant would request that as a minimum the following is provided.

a) A true copy of the agreement the defendant is alleged to have completed.

b) Inception terms and conditions as well as all other terms and conditions as varied.

c) A full statement of account detailing the history of any debt to enable the defendant to audit and verify the sum claimed.

d) Any Default Notices or Termination Notices applicable to the running of the account, preferably with proof of service.

e) Any assignment documentation where appropriate, the claimant annexing both Notice of Assignment and the Deed of Assignment. Where the claimant does not wish to provide any Deed of Assignment to the defendant the claimant should instead provide a statement of intent confirming it will allow the court to inspect this Deed.

f) In the event that this claim is the result of an overdraft the defendant expects to receive copies of all facility letters as an overdraft is regulated in part by the Consumer Credit Act 1974.

 

4. In the event that the claimant fails to comply with paragraph 1 of this order the claim shall be struck out and the defendant will be at liberty without further order to apply to the court for judgment and costs on the standard basis, subject to further assessment if not agreed.

 

5. If the claimant does comply with Paragraph 1 then this case shall be allocated to the small claims track, the defendant to file and serve a full and detailed defence by 16:00 on the (DATE 2010) (Date being 6 weeks after the case management date to allow 4 weeks for provision of full defence)

 

Additional Information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as detailed in the attached draft order.

 

On the 7th November 2010 the defendant issued a request for information to the claimant in his defence statement.

 

This request was aimed at establishing the nature of the claim in order that the defendant could respond in the appropriate manner. The defendant has provided a copy of this request as attached.

 

The claimant has failed to respond or to detail any part of the claim and as such the defendant is unable to provide a fully particularised defence and is disadvantaged by the failure of the claimant.

 

Without these essential documents the defendant is unable to respond and the continued failure of the claimant will prevent the court from being able to ascertain the merit of the case. These documents are therefore vital and should be provided without further delay in order that the claim may proceed justly and expeditiously.

 

The defendant therefore looks to the court to approve the above order and awaits the claimant’s response in full.

 

There is a shorter draft order,

 

BetweenAplins/Hillesdens - Claimant

and

John - Defendant

 

Draft Order

 

UPON reading the Defendant’s application

IT IS ORDERED THAT:

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.

 

Are these the correct Attachments:- a copy of the poc?

a copy of the defence statement

Draft order

witness statement

 

As usual I am very grateful for suggestions/advice. Thanks to GH2008 for all the help and emandcole for the pm.

Edited December 31, 2010 by john

[john]

Happy New Year to all caggers, especially those giving me so much help and support.

[frettful38]

subbing

[gh2008]

I did reply to post #115 - but it seems to have not made it on here .......

I will do another one later

[john]

Thanks GH2008 look forward to reading it.

[gh2008]

Ok, This is a much simplified version, short and sweet

In Q3 you are asking the Court to either Strike out the claim using its powers under CPR3.4(2)(a) or to make an Order as per the attached draft

 

 

In the ************* county court

Claim number **********

 

 

Between

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

 

UPON reading the Defendant’s application

 

IT IS ORDERED THAT:

 

• The claimant shall by 4pm on ##/##/2011 file and serve a fully particularised amended particulars of claim.
   
  
• The defendant shall within 14 days of service of the same file and serve a fully particularised amended defence.
   
  
• The court will then send out further allocation questionnaires
  

 

 

For Q.10 attach the following 'witness statement':

 

In the ************* county court

Claim number **********

Between

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

 

 

 

WITNESS STATEMENT OF

#########

 

I, ####, of ##### will say as follows
 

1. On ##/##/2010, I received a claim form, issued by Aplins acting on behalf of Hillesden Securities. I am not aware of any account that I have either opened or run with the Claimant. No letter before Action was received prior to this claim. The Particulars of Claim were insufficiently particularised. They did not identitfy any account nor disclose any cause of action. They therefore failed to comply with the Civil Procedure Rules 16.2(1) (a) (cc), 16.4(1) (a) and 16.4(2) (b). (you must enclose a copy of the claim form)
    
   
2. I therefore respectfully request that the court uses its powers to either strike out the claim under CPR 3.4(2) (a) (b) as an abuse of process or the Court makes an Order as per the attached Draft Order and the Claimant be ordered to pay the costs of this application to be summarily assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.
   

 

STATEMENT OF TRUTH

I believe that the facts in this statement are true

 

Signed

Date

[john]

Thanks. So I don't mention the statute barred info or production af the original credit agreement at this stage? How long do I give the defendant to respond? Are all my other answers the correct ones to put on the form.

[gh2008]

That should all come out in the fully particularised claim (which I would be surprised if they comply with as per Gazbo's)

 

Sometimes I think we try and over complicate things and then lose sight of the real argument we are trying to put across - I know I'm just as guilty at times

[john]

how long do i have to give them to respond?

i pressume all my other answers are ok.

thanks again

[gh2008]

You take the form to the Court, hand over the fee £40 for no hearing £75 with (try for no hearing - they may get back to you saying it must be with hearing but they shouldn't do)

 

You then wait for a random amount of time (depending on how busy/efficient your local Court is) they you will receive something back.

 

let us know and we will advise

 

IF you are talking about how long to put in the order put a date about 14 days from the submission date - the Court will choose their own date anyway

[john]

Sorry, yes, I meant how long to give them to respond. I presume I'm OK with the rest of my answers. I'll fill it in online later and take it in Tuesday am. Thanks again for all the help.