CapQuest - Default Judgement CCJ - going for set aside***Discontinued by Consent***

[dx100uk]

correct

 

they thought they could get it by an old address

they found you

 

go nail 'em

 

get even with them not us

 

dx

[Asbestross]

Well i'm gonna fight it all the way and really do appreciate advice and reassurance from you all, slightly confused however as to the latest correspondence from the court received today:

 

Allocation to Small Claims Track

 

I havent submitted my defence yet as waiting on the CPR31.14 compliance and no allocation questionnaire has been completed, so why its been allocated already I'm not sure. The great part though is that the DJ ordered originals to be filed by the claimant. I'd be amazed if after all these months they suddenly manage to locate (fabricate) them.

 

Cheers

[AndyOrch]

I would await General Order and direction before completing the AQ.Is there no Notice of Allocation with the AQ?

 

Andy

[Mike_hawk]

Well i'm gonna fight it all the way and really do appreciate advice and reassurance from you all, slightly confused however as to the latest correspondence from the court received today:

 

Allocation to Small Claims Track

 

I havent submitted my defence yet as waiting on the CPR31.14 compliance and no allocation questionnaire has been completed, so why its been allocated already I'm not sure. The great part though is that the DJ ordered originals to be filed by the claimant. I'd be amazed if after all these months they suddenly manage to locate (fabricate) them.

 

Cheers

 

Believe Andy may have missed the Notice you attached.

 

PD 26 allows for disposal of AQ reguirement at a hearing, seems sensible enough...... the dj probably had enough information on the day to decide on track and any necessary disclosures.

 

Added the link below for info [2.4 is the relevent section]

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part26

 

Costs in the case, deferred to judgment - you will still have the opportunity to present your costs should you win the case. Theirs [deferred] would then become redundant.

 

I think if it were me I'd start applying a little pressure now for disclosure and inspection

[AndyOrch]

" Believe Andy may have missed the Notice you attached."

 

Thanks Mike

[Asbestross]

Costs in the case, deferred to judgment - you will still have the opportunity to present your costs should you win the case. Theirs [deferred] would then become redundant.

 

I think if it were me I'd start applying a little pressure now for disclosure and inspection

 

I'd thought that their costs for Tuesday's hearing would be redundant should I win so appreciate your clarity on this point.

 

They signed for my CPR31.14 request Wednesday, which allowed for 7 days to produce. Considering the next hearing date has been set now, can I still apply for strike out in the event of non-compliance to CPR? The last thing I want is for them to fail to comply, fail to provide originals at the hearing and then the DJ give an extension, thus further delaying

 

Thanks again

[Mike_hawk]

I think I'd ask the court to strike out at trial, the order states 'The original documents must be brought to the hearing'

 

Tbh its such a limited quantum I can't see that its in either parties [or the courts] interest to protract the case if the other side fail to allow inspection. I could be wrong but I just can't imagine the original contract will be available.

 

You can quote 3.4 in your defence and w/s so the dj knows what you are asking and why http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#IDAMLWKC

 

The more I think about it, perhaps also consider inviting the other side to withdraw by consent. There can't be any commercial value for it in pursuing the case in the sct

[Asbestross]

Ok will wait until next friday and (obviously if they fail to disclose) file defence also highlighting non-compliance to CPR so that its formalised, and a letter to claimant offering to withdraw by consent; at the end of the day it's going to cost them more money to take it to trial. I seriously doubt they have a contract....else they would have provided it long ago and also brought it to the hearing on Tuesday. Not sure if it applies to other cases here but the DJ also made strict point that a bill does not constitute a legally binding contract which can be relied on in court?

 

Was also thinking, considering that they were aware of my current address and filed claim in a previous address to deny defence, do you think that I would be able to argue in defence that pre-action conduct also has not been complied with too? Just a thought

 

Thanks again

[Mike_hawk]

 

Was also thinking, considering that they were aware of my current address and filed claim in a previous address to deny defence, do you think that I would be able to argue in defence that pre-action conduct also has not been complied with too? Just a thought

 

Thanks again

 

I'd include it, doesn't really add any weight to your position per se but it will invite the court to look a little more closely at the claimants conduct when it falls to costs. Assume you know its sections III & IV and understand the relevant sanctions the court can apply.

[Asbestross]

I'd include it, doesn't really add any weight to your position per se but it will invite the court to look a little more closely at the claimants conduct when it falls to costs. Assume you know its sections III & IV and understand the relevant sanctions the court can apply.

 

I do know now and will have a good read through the Practice directions.

Really appreciate your help

[Mike_hawk]

Excellent....... just try to keep everything in perspective. It's a circa £300.00 case, the court won't be granting much relief to either party [hence the 30 minute slot] so if the opportunity arises to bin the case with honours even I'd take it.

 

Shout if you get stuck with drafting an e-mail to the plums re: consent, or maybe even a Tomlin if there's any damaging data on your CRA files.

[Mike_hawk]

" Believe Andy may have missed the Notice you attached."

 

Thanks Mike

 

Ur welcome, lol........... like I'd admit I read it 3 times before I realised the blue text was a link to the notice

Edited January 18, 2013 by Mike_hawk

[Asbestross]

Morning all,

 

Little update to this thread. I had a response from CQ following on from my CPR request, in which they state that:

 

...within our witness statement issued to the court, we made clear that we are unable to provide a valid contract, however our witness statement contains a statement of truth that this account is valid.

 

Ahhh... they're unable to prove the account to be valid ... but its ok cause they can swear an oath that it is. I think they missed the part of the application judgment that says 'Originals must be brought'.

 

None the less, I called the court to clarify as the DJ in our hearing made mention of submitting a defence by the 29th Jan. Yet the document from the court said nothing of the sort; thankfully I did as it was on file that if I hadnt, the set-aside would be revoked. So, my defence was submitted as follows:

 

1. I, Asbestross, am the defendant in this action and make the following statement as my defence to the claim made by CQ.

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. It is denied that I entered into a contract with T-Mobile under the reference xxxx

4. It is denied that I have ever been indebted to T-Mobile under the reference xxxx

5. It is denied that credit or services have been provided to me by T-Mobile under the reference xxxx

6. In respect of that which is denied, on xx october 2012, pursuant to S7(1) Data Protection Act 1998, a Subject Access Request was served on the claimant, requesting documentary evidence to support their claim.

6.1 It is drawn to the courts attention that the claimant failed to provide documentary evidence as was requested.

7. In respect of that which is denied, on xx January 2013, pursuant to Practice Direct 21.14 Civil Procedure Rules, a request for inspection of documentation relied upon within their claim was served upon the Claimant, specifically the executed contract.

7.1 It is drawn to the courts attention that the claimant is unable to provide such a contract as per their own admission xx/01/2013. Furthermore that the claimants Particulars of Claim explicitly refer to such contract which cannot be provided.

8. The Claimant made claim that benefit was assigned to the Claimant on xx/09/2011. It is denied that Notice of Assignment was received in this respect, prior to their claim. Pursuant to S136 Law of Property Act 1925, the Claimant is put to strict proof of Notice of such assignment and strict proof of service of such notice.

9. The Claimants claim to relief of any sum is denied.

Have also sent a letter to CQ clarifying the situation, and reminding that the DJ stated within the hearing, that a copy of a call transcript or bill does not constitute a lawfully binding contract. Assured that should they proceed, their own admission of being unable to produce a contract which is clearly referred to within their POC's will be used against them, and that for these reasons I anticipate their claim will fail.

 

I've invited them to withdraw via consent order, and that I am make such suggestion to avoid further costs for both parties via the court process.

 

Thanks for your help again all, is and will continue to be greatly appreciated.

I'll let you know when I have further progress.

 

Asbestross

[Mike_hawk]

All seems very sensible to me, not sure if you noticed you'd made a typo using 6 and 7 twice and a reference to 21.14 instead of 31.14.

 

If the other side start to get picky ask the dj if he'll amend under the slip rule

[Asbestross]

Ah my bad, it was only a typo copying onto the forum, the actual defence has 31.14

6 & 7 twice was 6 then 6.1 to show statement related to 6 etc.

 

Sometimes I type too fast for my own good lol.

 

Thanks again

[Asbestross]

SUCCESS!!!

CQ Accepted to withdraw via consent order, write off all sums claimed outstanding, remove the defaults from my file and close the account on the condition that I dont pursue for costs. Considering the value of the CCJ and that its only been on my file for some 6 months i'm happy to accept this.

 

A big thankyou for all who helped and offered advice, very much appreciated.

[AndyOrch]

Well done Asbestross.

 

I will amend your thread title to reflect the result.

 

Delighted for you

 

Regards

 

Andy

[Mike_hawk]

Excellent news, Capquest making a sensible commercial decision........... maybe Santa does exist after all

 

Very pleased for you asbestross

[Asbestross]

Thanks Andy / Mike,

 

Again really appreciate your help over past few weeks. To be honest I was expecting more of a fight from them, but I guess they knew that to continue would prove costly and they had only a slim chance of success; makes a change for a DCA to think logically

 

Anyhow, this was the last 'negative mark' on my credit file. The public registry entry was removed last week following on from the hearing, just waiting on the Default being removed as agreed then my file is squeeky clean. Have to admit its been a long hard slog since september, have had 6 defaults and this ccj removed all thanks to the advice and assistance from everyone at CAG.

 

My last hurdle is my Welcome PPI claim which should be settled within the next few weeks (its been with the FCSC for around 4 weeks), once that clears i'll be definately making a donation to the site.

 

[huggy41]

congratulations ,BUT it starts off like a realey good book you get right into it and then thats it wham bam thankyou man no blood no guts it's just not cricket

[AndyOrch]

Not all the threads in Legal can become best sellers huggy... some have an abrupt conclusion (hopefully favourable)

 

Regards

 

Andy

[Asbestross]

I do agree huggy, I did come out guns blazing but never had the intention of taking them for every penny... i had goal of getting the judgment set-aside and wiped off my file, fair enough it cost me £80 for the court app, but in comparison to 6 years of bad credit history I'm content.

 

It's not the end of the story though, once I have confirmation from the court that the case has been abandoned and confirmation that they've removed the defaults i'll be raising another complaint to the OFT for their conduct. Doing what they did, and just waving the white flag when its challenged shows that they're clearly using the courts as a debt collection tactic instead of for the enforcement that it allows, and for that I'm sure the OFT would appreciate the feedback.

 

I also had to be realistic, the claim was only for an amount up to £400 and was never going to pay me massive amounts in damages should I have pursued it further though?

 

Cheers

[Mike_hawk]

FWIW Asbestross, I believe it was a sensible decision.

 

£80.00 down the pan vs months of dialogue, preparation of bundle, skel, witness evidence, securing disclosure, possible counter claim, filing & app fees etc etc ........... the list is endless with no guarantee of seeing a penny ordered in costs if successful on the sct.

 

If there's satisfaction to be gained by consent it's an opportunity that shouldn't be ignored.

[huggy41]

If there's satisfaction to be gained by consent it's an opportunity that shouldn't be ignored.

 

very wise words