Next & Howard Cohen

[Kitten1]

Hi all,

 

today I have recieved a poc from Howard Cohen regarding my next directory account. I want to defend the claim if I can.

 

Firstly, they responded to a cca request in feb with the usual copies of blank aggreements and t&cs.

 

Secondly, I have not recieved a letter before action and hence no oppourtunity to sort this before court action.

 

I will post up the poc details shortly but if anyone has any suggestions for me I would be grateful!!

[Kitten1]

Poc details -

 

dated 14/3/2011

 

the claimants claim is for the sum of £ being the balance outstanding on the defendants account in respect of the price of goods supplied and delivered by the claimant to the order of the defendant through it's mail order catalogue service together with any charges applied to the account in accordance with the terms and conditions of use.

 

Full details of the cost of all purchases made and details of agreed payment arrangements have been given to the defenndant. The defendant has defaulted in payment.

 

The claimant claims £

[Kitten1]

The are no further details other than this. I don't actually remember even recieving a dn, to be honest!!

 

If anyone could point me in the right direction I would be grateful. This acc was opened after 2007.

[Kitten1]

Anyone?!?!

 

I've been sending myself bonkers (and crosseyed!!) trying to work it all out. I'm pretty sure that Cohen's haven't complied with the pre-action protocol as I've had no letter before action from either Next or Cohens. The last letter I recieved from anyone about this was the reponse to my CCA request in February!!

 

I'm thinking that my best course of action so far is to acknowledge the claim online and state I will be defending it. (Can always change my mind later!!) I intend to then send a CPR (unsure which one exactly as have read about so many!!) requesting copies of any paperwork they are intending to rely on in court. They haven't mentioned any specific ones on the POC but I'm going to assume the CCA, DN and LBA for the time being. At least then I would actually have something to form a defence with!! At the moment, I have nothing so possibly an embarrassed defence??

 

Does this sound about right? I've been sued before but just paid the default judgement before the 28 days were up!!

[debbbbsy]

Hi,

 

You need to send HC a CPR 31.14 request.

 

This is an official request by you, for all documents that they refer to in the POC's.

 

Now then, the POC are "Vague" and don't actually refer to any documents or cause of action.

 

But nonetheless, the CPR is also used, not only for documents they refer to, but also documents they rely upon to Enforce the claim.

 

1. The Default Notice Issued by Next.

2. If the claimant is not Next, but a DCA. The Deed of Assignment & Notice of Assignment.

3. A True & verified copy of the credit agreement ( The original of which will need to be brought to court) in the prescribed form.

4. Statements to substantiate the amount being claimed.

 

You must acknowledge the claim, this can be done online. You then have a few weeks (not sure of the exact time) to file a defence. Once you do this, the case is automatically transferred to your local court & you'll receive an Allocation Questionaire.

 

How things proceed, depends entirely on the response you get from HC.

[Kitten1]

Thanks hun,

 

I know for a fact that HC will not have a signed agreement as I never signed one!! Do they have to state whether or not they do physically hold the original?

 

How about the fact that HC has not complied with pre-action protocols? Surely this has put me at a disadvantage? Won't the DJ look at this as a possibly vexatious claim? Or am I just over-complicating things now?

[Kitten1]

I have found a template letter for the 31.14 request and have amended it. Please could somebody just check I've done this right please?

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On 17th March 2011, I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement. This elicited a response from your client in which they provided me with a copy of a blank agreement and some terms and conditions.

As the Particulars of claim are very vague and do not state which documents you will be relying on in court, please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents which you intend to rely on.

 

1 - the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 - any default notices served

 

3 – any termination of account documents

 

4 - a copy of the Letter before Action. This is part of the pre-action protocol and, as at the date of writing, I have yet to receive.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[debbbbsy]

I know for a fact that HC will not have a signed agreement as I never signed one!! Do they have to state whether or not they do physically hold the original?

 

At some stage, if they proceed to an actual court hearing they will have to provide the ORIGINAL.

 

Won't the DJ look at this as a possibly vexatious claim? Or am I just over-complicating things now?

 

What you must understand is, that a judge will not even look at your defence until it is transferred to your local court. When you respond to the claim with a defence, it will automatically be transferred. You'll receive an Allocation Questionaire, with that you submit a "Draft Order Directions". All the docs you requested in your CPR, that they didn't provide, you request at this stage, the judge then requests they provide them.

[Kitten1]

AoS done this morning so Ive got til 15 April to serve defence.

 

Got very confused doing it as it asked if I wanted to contest jurisdiction!! I played it safe and left that bit blank!!

[Kitten1]

CPR 31.14 sent today. Howard Cohen only had a po box address on their letter recieved today so one copy sent to that and another copy sent to head office!! Let's see what happens now....

[Kitten1]

Ok, it is now 8 days since I posted the CPR request. No response in any way. I will give them until Thursday at the latest to respond to allow for postage.

 

If I haven't heard anything by then, what is my next step? Reissue the request? I didn't use recorded delivery as the address given was a po box. Will that go against me?

[Kitten1]

Ok, no response from HC at all. Tomorrow, I will send s reminder, and try to find an address other than a po box so I can do recorded del.

 

Really feel the need to phone them and shout but I won't lol!!

 

I'll give them another week to comply and then go for a strike out, I think. Can't really afford £75 but needs must!

[pt2537]

Kitten1 did you read my thread on Next Directory?

 

It tells you what you need to deal with them

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?200443-Tactics-for-dealing-with-Next-Directory-out-of-date-in-light-of-recent-judgements&p=2180544#post2180544

 

someone has closed it and said it is no longer relevent, however, who ever did, is seriously wrong

 

The law has not changed at all

 

If you never signed a credit agreement with next, and the account was opened before 2007 6th April, then you can raise the arguments that i have set out within

 

Many next customers were given credit accounts without their request, many were given them by simply sending them a catalogue and nearly all the time Next failed to get a signed credit agreement

 

So as a consequence the agreements are irredeemably unenforceable

 

I have a number of orders from these cases, Next Retail Limited T/A Next Directory vs Newton , in the Conwy and Colwyn County Court, to name one

 

Also, Next Retail vs Star, Next vs Hynett, Next vs Duckworth, all cases which were won and which are publicly recorded as wins on the court lists.

 

So, there we go

[Kitten1]

Thanks for your reply pt. I have been reading some of your wonderful threads but have gotten myself a little confused. My account was opened online in approx October 2009. I had placed an order that I was going to use vouchers to pay for and needed to register my details to get it delivered. Next thing I knew, a message popped up on screen saying I had a credit limit of £300!

 

Next did then send me two ccas to sign - one for me and one for them - but I simply forgot to send it back. And was never asked for it again. Then got into problems last year as I forgot to make a payment as I gave birth etc. Then they started demanding more and more money off me. I never exceeded my limit or had problems until then.

 

I'm happy to pay the bill, but don't want a ccj andcertainly not in the circumstances they have gone for it!

 

Does the date of opening the account make any difference to how I deal with them from here?

[Kitten1]

Ok,

 

I've reissued the CPR request on Saturday just gone. But, no sign still of any paperwork. I'm going to check moneyclaimonline tomorrow and start my defence. Even if I just save it to my computer for now. I intend to file my defence on the 15th - this is actually a couple of days early - just to be sure I don't end up with a default judgement!!

 

As this has all happened so soon after my cca request, it seems as if they have taken my request as a declaration of war lol!!

[Kitten1]

Still no response to CPR 31.14 request or the reminder sent.

 

I managed to find the response to my cca request tho - the 'copy' aggreement sent talks about a next card, not a catalogue account. Do they even know what kind of account I even had with them?!?!?

 

Need to start writing my defence this week...

 

I'm thinking of going down the route of not denying I had the goods as that would be pointless but more about the enforcability of the agreement due to one not being in existance. I am willing to pay the account in installments (got no job ATM) but don't want them to gain a ccj against me!

 

Anyone have any ideas of wording it for me? A little bit of help would be great!!

[Kitten1]

Ok,

 

After doing some reading, I have found this and amended it to suit. As they have failed to respond to my cpr request, it kinda makes things a bit difficult to draft a defence. Hopefully this is a good start?

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due,or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts.

 

d) A copy of any termination notice served under section 76 and/or section 98 of the CCA, on the alleged account.

 

e) The defendant requested information referred in the claim under CPR 31.14 from the claimant. Compliance with the requests has now expired. The defendant wishes to make the court aware that the claimant is trying to frustrate proceedings and denying the defendant an opportunity to file a defence.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

 

I respectfully request that the court consider striking out the claim under cpr 3.4.2(a) because it is not fully particularized nor offers any legal cause of action.

 

I respectfully request that the court consider striking out the claim under cpr 3.4.2© because, in light of the failure to respond to cpr 31.14 request, the Claimant is unable to substantiate their claim with documentary evidence.

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

Anyone got any pointers for me? Be grateful for any help atm. Starting to get stressed out by it now.............

[Kitten1]

Polite bump on this as I have to file my defence tomorrow xx

[Kitten1]

Looks like I'm flying solo then............

 

Ok, I'm going to file a defence based on:

 

1) No signed CCA - Next cannot even confirm that they do hold the original. (They'd have a job seeing as I never signed on!!)

2) Poor particulars of claim

3) Non-compliance with pre-action protocols

4) Non-compliance with CPR request.

 

And off I go to add this into my defence posted above xx

[Guest]

Bump

[Kitten1]

Just recieved a letter from nbcc confirming reciept of my defence. The claimants now have 28 days to either mediate or carry on. If nothing happens, the claim will be stayed.

 

So the waiting game begins properly!!

[minmoo]

With regards to the lack of a signed cca, if you opened this account in 2009 was it online? From my limited knowledge a tick from an online application would suffice after sometime in 2007.

[Kitten1]

There is also the lack of dn and tn with this x

[Guest]

There is also the lack of dn and tn with this x

 

no dn? if not already, see also for eg the recent Harrison v Link HC case!

Edited May 4, 2011 by Ford
typo

[Kitten1]

Hi,

 

I've had a look but can't find it.

 

Any chance of a link please?