Court Action - What Now?

[AndyOrch]

Not totally but there are different questions and of course you dont make Draft Directions in SCT.

 

N149 AQ

 

A

 

Tick 'Yes'

 

B

Tick 'No'

 

C

Tick 'Yes'

 

D

 

No

 

E

Tick 'No' and ignore the remainder of section E

 

F

If you are going to be unable to attend a hearing at any time between say 1 October and 31 January, tick 'Yes' and identify those dates in the box adjacent to 'Yourself', otherwise tick 'No'

 

Other (edit to suit or use parts from the above G)

 

The Particulars of Claim provided by the Claimant are inadequate in order to fully appreciate the case I have to meet, in particular the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, its alleged assignment and the Claimant's entitlement to interest. By a letter dated ( ) I asked the Claimant to provide proper particulars of the claim. A copy of the letter is attached. I have received no answer to my letter.

 

I propose the following to assist the Court to proceed justly and expeditiously:-

 

Unless the Claimant shall have filed and served upon the Defendant fully particularised Particulars of Claim comprising but not limited to particulars of the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, its alleged assignment and the Claimant's entitlement to interest.

 

Should the Claimant comply with the above this case shall be allocated to the small claims track and there shall be a stay of proceedings until (date) to enable the parties to settle using the small claims mediation service.

 

H

Tick 'No'

 

I

Sign, date and fill in your address at which you want documents about the case to be delivered.

 

Regards

 

Andy

[mcflipflop]

Great, thanks Andy. I'll have a go at amending this. Presumeably as they have sent a copy of the agreement but it's a very poor quality should I request the original be produced at court. Also, they only sent a template DN - not sure still if the template itself is compliant but again, should I say that they should produce a true copy of the letter at court?

 

Thanks again

[mcflipflop]

One other quick question, you said tick no to B - is this because it will be moved to a local court anyway? don't want a drive to Northampton!

[AndyOrch]

Yes as said you will have to amend to suit your particular case.Try not to use " other " as a further defence the AQ is purely for allocation but if points need to be raised that affect that allocation...state them.

 

If the agreement already disclosed is illegible state that and request a another.There is no such thing as a template or reconstituted copy of a DN...if they cant disclose then so be it but if there are discrepancies with the DN then point that fact out.

 

Regards

 

Andy

[mcflipflop]

Okay, this is what I intend to send. Wasn't sure how long to give for mediation, is 6 weeks about right?

 

The Particulars of Claim provided by the Claimant are inadequate in order to fully appreciate the case I have to meet, in particular the agreement relied upon, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated and the Claimant's entitlement to interest. By a letter dated 24th December 2012 I asked the Claimant to provide legible copies of the agreement and default notice. A copy of the letter is attached. The copy of the agreement sent was neither legible nor complete. They failed to supply a copy of the default notice and the information provided by them regarding the contents of this notice indicate that it would have been defective regarding no date to remedy and no confirmation of arrears balance.

 

I propose the following to assist the Court to proceed justly and expeditiously:-

 

The Claimant shall have filed and served upon the Defendant fully particularised Particulars of Claim comprising but not limited to particulars of the agreement relied upon, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, its alleged assignment and the Claimant's entitlement to interest.

 

Should the Claimant comply with the above this case shall be allocated to the small claims track and there shall be a stay of proceedings until 16th April to enable the parties to settle using the small claims mediation service.

[mcflipflop]

well, had to post off today anyway as needs to be back by 22nd. Should I send a copy of this to their sols? They did send me a copy of theirs.

 

Thanks

[AndyOrch]

well, had to post off today anyway as needs to be back by 22nd. Should I send a copy of this to their sols? They did send me a copy of theirs.

 

Thanks

 

 

Yes mc.

[mcflipflop]

OK will do

[AndyOrch]

Its considered civil to exchange information pre litigation and prior to trial mc (just wish the claimants would follow that guidance)

 

Regards

 

Andy

[mcflipflop]

We've now received a General Form of Judgment or Order from the local court which says :

 

IT IS ORDERED THAT

1. Unless the Claimant do by 4pm on 28th March file and serve full particulars of its claim, the existing claim shall be struck out.

2. If the Claimant complies with paragraph 1 of this order, the defendant shall file and serve her defence to the claim by 4pm 14 days after service of the particulars of claim upon her.

3. The Court has made this order on its own initiative pursuant to rule 3.3 of the Civil Procedures Rules 1998. Any party affected by this order has the right to apply to set it aside, vary, or stay it, by application made not more than 7 days after this order was served on the party making the application.

Dated 7 March 2013 (although the actual document is dated 14th March)

 

It looks like we just need to see what happens next, but wasn't sure if we should do anything? We haven't had any mention of mediation - is this further down the road?

Thanks

[AndyOrch]

Decent order there MC....just keep your eye on no1.

 

Regards

 

Andy

[mcflipflop]

Great, thanks Andy.

[mcflipflop]

Today we've received a further package of paperwork from Drydens. I have posted the reply re the Judges order and the rest of the paperwork is just a copy of what they sent before. The copy of the credit agreement is the same as before and therefore illegible, but not sure where we stand now. Presumeably as they've replied to the order we now have to file a defence? Or can we go back to the court and say they haven't complied because the credit agreement isn't legible?

 

Many thanks

 

[ATTACH=CONFIG]42640[/ATTACH][ATTACH=CONFIG]42638[/ATTACH]

[AndyOrch]

" Presumably as they've replied to the order we now have to file a defence? Or can we go back to the court and say they haven't complied because the credit agreement isn't legible? "

 

You now file a particularised defence 14 days from now...they have complied and served a full particulars of claim.The fact that there documents are illegible will be the basis of your new defence.

 

Regards

 

Andy

[mcflipflop]

Thanks Andy

[mcflipflop]

This is what I've come up with as our defence - mostly copied from various posts here.

 

DEFENCE

 

 

1. I xxxxxxxxxxxxxx the defendant in this action and contend my defence to the claim made by Santander Cards UK Limited as follows:-

 

2. The Defendant neither admits nor denies that she is liable to the Claimant as alleged in the Particulars of Claim, or at all.

 

 

3. It is admitted that I have held an account with the Claimant and that the Agreement was regulated under the terms of the Consumer Credit Act 1974. I make further submissions to the enforceability of that contract below but I put the claimant to strict proof that the said agreement is enforceable both as of the date of its inception and at all times thereafter.

 

4. If, which is not admitted, the agreement is enforceable I do not admit that I am indebted to the claimant in the sums claimed. I put the claimant to strict proof of all sums claimed.

 

5. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

 

6. The defendant respectfully requests the amendment of this defence if such paperwork is presented to the court..

 

7. Under the Act there are certain conditions laid down by parliament which must be complied with if such a consumer credit agreement is properly executed and subject to enforcement by the courts

 

8. Firstly, the agreement must contain certain Prescribed Terms under regulations made by the Secretary of State under section 60(1) of the Consumer Credit Act 1974; the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

9. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. .

 

10. It is respectfully requested that the court consider the precedent quoted above in making its judgement on the enforceability of the document the Claimant is reliant upon in bringing action. In particular, the copy supplied by the claimant is partly illegible to the extent that the prescribed terms cannot be identified within it.

 

 

11. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

 

12. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

13. It is averred that the default notice referred to in the particulars of claim does not allow the prescribed timeframe of 14 days after service to remedy any breach referred to in said default notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time). There is no date mentioned in the template default notice provided, nor any space where one could have been entered and indeed in the claimants further particulars of claim, section 8 they specifically fail to mention that any such date would have been entered..

14. A default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The amount detailed in the Claimant’s claim is not specified in the screenshot provided and I put them to strict proof that an accurate figure would have been provided in the default notice.

15. Without a valid default notice it could be inferred that the bringing about of a County Court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the CCA.

 

16. The Claimant’s claim to be entitled to £xxxxxxxx, or to any other sum, is denied

Does this sound ok? any thoughts much appreciated.

Thanks.