DCA demand old debt without notice from creditor

[louloujs]

September 2009, the day my son went back to school for the new term but was kept in a room with 3 teachers guarding him. The school sent a letter asking for a sum to be paid before the start of term but, lax admin, the secretary hadn't posted it. I tried very hard over the following days to make an arrangement, but they wouldn't talk to us, despite visits, emails, phone calls. The relationship broke down, no apology for letter not being sent...

[AndyOrch]

Ok Lou

 

Just wanted to clarify that it wasn't SB. Thats fine as per your last post

 

Andy

[louloujs]

So sorry Andy, do you mean 'alleged debt' or 'ongoing school fees account'? Just want to be crystal ;-)

[AndyOrch]

Just state school fees (ongoing sounds like a rolling agreement) dont state alleged it gets up the DJ nose.

Its not alleged its a debt (wrong amount though) and you need to settle it (amicably for your own peace of mind).

 

Andy

[louloujs]

Excellent and thank you.

[AndyOrch]

One to the Court and a copy to them Lou (unsigned) and see what transpires.Keep your thread updated.

 

 

Regards

 

Andy

[louloujs]

Will update as soon as I hear anything. AQ is filed.

[louloujs]

Update time. I've received an Order that 'The Judge has considered your case is suitable for mediation with the Court mediator.... The case is stayed until 5 September...contact the mediation service within 7 days of receipt'.

 

I've rung the Mediation Service and left my details as instructed. We'll see what happens next. I still haven't received any response to any of the official requests for further information.

 

Keep you posted.

 

LL

[AndyOrch]

Ok Lou

 

Enter into mediation and present your case.Its their claim and they have to justify even in mediation.

 

Regards

 

Andy

[louloujs]

Update: This case was stayed until 5th September to allow both parties to seek mediation. I sought mediation, but the claimant did not, neither did he write to the court with his reasons for not trying mediation within 7 days as requested by the DJ. I have spoken to the court; no letter has been received and the Mediation Service has gone as far as writing to the Claimant's representative (the DCA) to elicit a response, but received no reply.

 

Is it worth me seeking directions that, in view of the Claimant's continual failure to respond to any requests for information, SAR, CPR etc and now mediation, despite saying they would on their AQ, the case should now be struck out? Or should I wait to see what the DJ does next?

 

LL

[AndyOrch]

Hi Lou

 

On the Order you posted 16th August informing of stay look at the order closely, are there any further directions and failure to comply options?

 

The Solicitors’ Code of Conduct 2007 provides in Rule 2.02(1)(b) (Client Care) an obligation on solicitors to “give the client a clear explanation of the issues involved and the options available to the client”. Guidance is given in the notes to Rule 2 at paragraph 15

The Civil Procedure Rules repeat the obligation to consider ADR. Part of the courts management of the case includes “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.” (Part 1.4 (2)(e)). Failure to even consider mediation can be penalised with an adverse costs order under the courts powers in Part 44.5 (3) which states that when deciding the amount of costs to be awarded the court must consider the conduct of all the parties.

Regards

Andy

[louloujs]

I'll post up exact wording in a moment, however, have today received a letter from a firm of solicitors who now appear to have taken over from the DCA. They have enclosed a copy of the Notice of Change that they 'have been instructed to act on behalf of the claimant in this claim (in place of *DCA*)' 'We have served notice of this change on every party to claim (and on the former solicitor).'

 

The attached copy letter to the court states:

 

'We write to advise you that we have been instructed by the Claimant in place of *DCA*. We enclose herewith for filing Notice of Change. We have advised the Claimant that, in our view, this matter is not yet appropriate for mediation. We believe there was some suggestion that perhaps a small claims mediation service could be used. Given the sums involved, this is inappropriate and there are substantial issues between the parties which have yet to be clarified. With that in mind, we would be grateful if this matter could be listed for a Directions appointment so that procedural matters can be put back on track and a timetable agreed. Unfortunately, we have not had sight of the original Claim Form filed at Court by DCA and perhaps you could let us have a copy.'

 

Imagine that will override any letter to the Court that I'd like to write now. However, fyi, this is the wording on the Order:

 

'Before DJ X, sitting at... The Court has made this order on its own initiative pursuant to Rule 3.3. of the CPR 1998. Any party affected by this order has a right to apply to set it aside, vary it or stay it, by application made not more than 7 days after this order was served on the party making the application.

 

'It is ordered that:

 

1. The DJ has considered your case is suitable for mediation with the court mediator and you are therefore directed to use the free small claims mediation service. The case swill be stayed until 5 September in order for mediation to be arranged. Both parties are therefore directed to contact the mediation service within 7 days of receipt of this order by... (contact details)

 

'If you do not wish to try mediation you should write to the court outlining your reasons within 7 days of receipt of this order. The Judge will then consider further directions in the case.'

 

Is it worthwhile writing to reaffirm the fact that no correspondence/compliance with the various requests for information has been received or should I wait for the DJ to respond to the solicitor's request?

 

I don't suppose there'll be an opportunity to try and talk to/negotiate with the new solicitor in view of the fact I didn't get the opportunity to do so with the DCA or, bizarrely, the claimant who started the action having done nothing at all for a couple of years.

 

Thank you for your advice.

 

LL

[AndyOrch]

Mmmmmm substantial Issues yet they haven't even seen the Particulars of Claim.I can see this getting up the DJ nose Lou

so I would let it ride between them and see if in fact any further directions are offered.

 

Andy

 

( if you could pm the old Sol and new Sol Companies Lou )

[louloujs]

Hi Andy

 

To recap the last few days. I received an order the hearing be listed for an Allocation Hearing last week ('The Court expects to refer the parties to the Nat mediation Helpline and the parties should either seek adjournment if mediation is pursued or attend Court to explain why mediation may or may not be appropriate.')

 

However, I rang the court as the Order only gave us 24 hours notice of the hearing. The woman was completely sympathetic and explained heavy workload etc had caused delays and that the hearing would be rescheduled a week or so hence.

 

I have today received a Notice of Allocation Hearing for next Monday.

 

Since my ex husband and I have never had the opportunity to discuss this claim with either the school or the litigation-happy DCA, it seems unreasonable we shouldn't be able to do so now with the solicitor. In the worst case, shouldn't we be able to negotiate a settlement without going through this process? We are still keen to pursue mediation, not least because now solicitors are involved, the case could become a costly affair. I fear, given the solicitor's line that mediation is 'inappropriate' (see above post), we might not have this opportunity.

 

I'm wary of entering a courtroom with a solicitor on the other side. I appreciate we need to see what documents they hold to support the claim, but I'm not keen to be put on the spot by a solicitor.

 

Any ideas?

 

I've just noted your comment to PM the solicitor details. Will do.

 

Many thanks, LL

[AndyOrch]

The Allocation Hearing is a good opportunity to raise this Lou,the hearing as been called because they the Claimant are not willing to mediate and the DJ cant decide on which Track.Raise your concerns at the hearing and state the Claimant is unwilling.

 

" 'We write to advise you that we have been instructed by the Claimant in place of *DCA*. We enclose herewith for filing Notice of Change. We have advised the Claimant that, in our view, this matter is not yet appropriate for mediation. We believe there was some suggestion that perhaps a small claims mediation service could be used. Given the sums involved, this is inappropriate and there are substantial issues between the parties which have yet to be clarified. With that in mind, we would be grateful if this matter could be listed for a Directions appointment so that procedural matters can be put back on track and a timetable agreed. Unfortunately, we have not had sight of the original Claim Form filed at Court by DCA and perhaps you could let us have a copy.'

 

If they have completed their AQ with the same manner the DJ will have some strong directions:wink:

 

Regards

 

Andy

[louloujs]

Hi Andy

 

I think I'm prepared for tomorrow's hearing, I have a file filled with all correspondence and labelled appropriately for easy reference etc. A couple of last minute thoughts have gone through my head:

 

1. I will refer to the fact that none of my correspondence has been responded to, including SAR, CPR and Section 18 requests. If the Claimant hasn't agreed to any of my requests for documents, why aren't they being penalised for this? I don't know how they could be?

 

2. I want to mention the appalling manner of my son's ejection from the school. Would it be inappropriate to do so? I could get emotional, but the school's terrible admin (letters threatening withdrawal weren't posted by mistake, etc) and behaviour should not go unnoticed. The school is a Christian charity with a USP of high quality pastoral care.

 

3. I want to reinforce our request for this to go to mediation. Indeed the DCA (the former rep) agreed to this on the AQ. I have never had the benefit of a conversation to talk to anyone about this. There are also some inaccuracies in the account statements from the school, which need to be addressed.

 

4. At the start of the legal process, I sent a F&F offer, Without Prejudice. I know I can't produce it in court, but should I allude/refer to it? I don't want to weaken my case by suggesting I'd made an offer or would it look bad they didn't even reply to it?

 

5. Should I refer to the Terms & Conditions, which are pivotal to the claim and a copy of which I have never received? Unsure if they have one or not, doubt it. In many ways, this is the crux of my case isn't it?

 

6. Finally, what am I asking for? Obviously I want it struck out on the grounds that the Claimant failed to conduct/prove (?) their case with first choice of representative so why should they have another go with another? Or on the grounds they haven't responded to my repeated requests for information and been misleading with their conduct?

 

If you can answer these before my case tomorrow at 2pm that would be great. I think you've already given me enough amo to state my case, just thinking too much possibly!

 

Thanks Andy,

 

LL x

[AndyOrch]

Hi Andy

 

I think I'm prepared for tomorrow's hearing, I have a file filled with all correspondence and labelled appropriately for easy reference etc. A couple of last minute thoughts have gone through my head:

 

1. I will refer to the fact that none of my correspondence has been responded to, including SAR, CPR and Section 18 requests. If the Claimant hasn't agreed to any of my requests for documents, why aren't they being penalised for this? I don't know how they could be? If you had made application to force disclosure and they failed it could be struke out on a unless order but thats more costs.You have made further requests in your AQ the DJ will enforce for you.

 

2. I want to mention the appalling manner of my son's ejection from the school. Would it be inappropriate to do so? Absolutely I could get emotional, but the school's terrible admin (letters threatening withdrawal weren't posted by mistake, etc) and behavior should not go unnoticed. The school is a Christian charity with a USP of high quality pastoral care. Lay it on thick possible damages if they lose.

 

3. I want to reinforce our request for this to go to mediation. Indeed the DCA (the former rep) agreed to this on the AQ. I have never had the benefit of a conversation to talk to anyone about this. There are also some inaccuracies in the account statements from the school, which need to be addressed. Hence disclosure

4. At the start of the legal process, I sent a F&F offer, Without Prejudice. I know I can't produce it in court, but should I allude/refer to it? Yes I don't want to weaken my case by suggesting I'd made an offer or would it look bad they didn't even reply to it? They would look vexatious (use that phrase) for not even considering or replying

5. Should I refer to the Terms & Conditions, which are pivotal to the claim and a copy of which I have never received? Unsure if they have one or not, doubt it. In many ways, this is the crux of my case isn't it? Correct

 

6. Finally, what am I asking for? Obviously I want it struck out on the grounds that the Claimant failed to conduct/prove (?) their case with first choice of representative so why should they have another go with another? Or on the grounds they haven't responded to my repeated requests for information and been misleading with their conduct? Check the Court as been informed of the change and been given permission

 

If you can answer these before my case tomorrow at 2pm that would be great. I think you've already given me enough amo to state my case, just thinking too much possibly!

 

Thanks Andy,

 

LL x

 

Hope that helps Lou and lastly best of luck tomorrow I will await your update.

Regards

Andy

 

[Undercover-Elsa]

Good luck for today Loulou. I hope justice prevails for you

 

Elsa xxx

[louloujs]

Thank you Andy and Elsa for your continued support and advice. The more I think about their conduct over the past two years, the more I psychological ammunition (!) I'm gathering for this hearing. I'm actually hoping that someone from the school will be there as I have questions that I know they'll be ashamed to answer. We'll see. I'm as prepared as I can be. Will update this afternoon.

 

LL x

[louloujs]

Well, it all went very well under the circumstances. The DJ was a dream, not a dream enough to strike out, but directed a barrage of criticism at the newly appointed solicitor (a lady Legal Exec) and pretty much said everything I was going to. The solicitor apologised profusely for not even having a copy of the claim form (which I furnished her with). The DJ did remark that because the school had taken two years to do anything, the issue of being able to apply interest for that period was questionable.

 

In any event, he has stayed the case for 3 months so I can work with her to come to an arrangement. She will get all the information I need over to my ex and me so we can talk 'accurate' figures and start from scratch. I suggested the school even holding a copy of the contract/T&Cs because its admin was so dire and she assured me she can give me a copy of that document... So, it looks like an mutually acceptable agreement will have to be reached; the solicitor is no keener to take this through the Court than we are, not least when I made sure I made mention of my son's treatment at the school, which did not go unnoticed by the DJ.

 

BTW, it transpires the (former police DCA has disappeared into space. I can't begin to think how many people would like to put him there, but he's certainly weakened the school's case by being involved.

 

I'll keep this thread updated when I hear from the solicitor with their revised account. There is some tough negotiation ahead but at least we're away from the court and talking to normal people - for now...

 

Andy and Elsa, I can't tell you how much your support helped me in there today. I did have a very helpful DJ, but he said he was impressed with the way I had conducted my defence in the absence of any correspondence, let alone facts. He gave me time to state my case to the OP and agreed with my criticisms. I did politely ask if he could strike the claim out at one point and I think I might have had half a chance had the solicitor not resembled a very apologetic Mary Poppins...

 

I shall now wait to see what comes from the solicitor in terms of documents and keep you posted.

 

If you knew how grateful I was to have had the benefit of your advice throughout this process, you'd be smiling at this moment. Finger's crossed we're getting somewhere, but let's see.

 

Huge thank you,

 

LL x

[Undercover-Elsa]

Very very well done Loulou, pity it wasn't a strike out but you've now got the ear of the judge and it sounds as if even their solicitor was secretly sympathetic to you

 

I've done very little, it's Andy and yourself who have done all the hard work so far, and all credit to you both.

Let's hope their solicitor makes them realise it's not as cut and dried as they thought.

 

That damn DCA has a lot to answer for...he's pushed them into court as far as I can see, then done a runner when he realised it wasn't an easy win.

 

So, a well deserved glass or two of wine tonight, lady? then relax till it's time to regroup for the next stage....

 

All the very best,

 

Elsa xxx

[citizenB]

Yes, well done.

 

I agree, Elsa, that DCA definitely muddied the waters before disappearing. I wonder if a complaint could be made about him to the OFT?

[Undercover-Elsa]

He thinkshe's above the law as he's a retired police officer. I know people who worked with him. Can't say any more in public.

[louloujs]

The solicitor will be following up the DCA's activities; naturally, I've been more than happy to share what I know. He has certainly cost the school a fair amount of money, which just goes to show that if they'd sent a letter to me on Day One, we'd be where we are now - talking, but without the fees, wasted time and stress. He sold them a story, laced with years of interest and some juicy charges, which the DJ has today dismissed any hope of materialising for the school.

[AndyOrch]

Well done Lou, sounds like you enjoyed your first taste of litigation.A sympathetic and compassionate DJ makes all the difference in matters like these.

Sounds very much you had the upper hand on Mary Poppins and we will wait to see if they can disclose if anything.I suspect a bit of a u turn from her considering their initial response when taking over that this matter was not suitable for mediation.Big mistake and a sign of inexperience.

Knowledge is power something Mary didnt prepare for and thought it would be a formality.

 

Well done keep me updated.

 

Regards

 

Andy