Old Barclaycard / Small Claims Track

[1882ian]

Hi, I had court papers from Northampton CC as a companyin Milton Keynes had brought the debt, (old Barclaycard £2,000) be ignoringcall for three years. I had a look on the site and sent off a CPR 31.14 Request to their solicitors. Heard nothing backbut was worried about a defence and came across this defence and sent it off

 

Defence

 

1. The claim aspleaded does not contain sufficient particulars to permit the Defendant to filea properly particularised and pleaded defence. The Defendant has made a requestfor disclosure, pursuant to Part 31 of the civil procedure Rules, to the Claimant to allow him toproperly respond to the claim. The Claimant has failed to respond to the Part31 request.

 

2. It is Notadmitted that the Defendant signed an agreement with Barclaycard If, which is not admitted, such anagreement exists the precise terms and date of any such agreement are notadmitted. The Defendant does not have in his possession any such agreement andis not therefore able to comment thereon. The Claimant is put to strict proofas to the date and terms of such agreement.

3. It is averred that if any agreement existed that the aforesaid agreement wasa regulated agreement within the terms of the Consumer Credit Act 1974 (TheAct). It is not admitted that any such Agreement is enforceable within theterms of the Act. The Claimant is put to strict proof that the aforesaidagreement was properly executed and has been enforceable at all times sinceits' inception.

 

4. The Defendanthas no knowledge of the service of a default notice. The claimant is put tostrict proof as to the content and service of any such alleged default notice.

 

5. The Defendanthas on knowledge of the service of a termination notice. The claimant is put tostrict proof as to the content and service of any such alleged terminationnotice.

6. Further and in the alternative it is not admitted that the sums claimed arelawfully owing. The Claimant is put to strict proof as to how the sums claimedhave been calculated and as to how it is asserted that the sums claimed contractuallyowing.

7. Further and in any event in view of the failure to comply with the CPR Part31 request it is denied that the Claimant is entitled to costs as claimed or atall.

8. In view of the foregoing it is denied that the Defendant is indebted to theClaimant as alleged or at all.

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

signed and dated.

 

 

Received aletter telling me that they do not except my defence and the court have sentpapers to notice of proposed allocation to small claims track.

Should I of notsent off a defence? Do I agree to the small claims court? What should be mynext move? I only have till the 23rdMayto deal with this. Thanks in advance

[AndyOrch]

You defended the claim and your defence has been accepted by the court...the claim is proceeding in the the small claim track.

 

Regards

 

Andy

[1882ian]

Thanks Andy.

Agreed to the small claims track

[1882ian]

I have heard back from the Milton Keynes legal department theyhave paid their £40 and advise the courts will be in touch.

My local court saythe case is with the District Judge who will review the file and decide if thecase should be allocated to track or if alterative case directions are appropriate.

What happen next any advice? Thanks

[1882ian]

Received: Notice of Trial Date

September 2013 at my local county court.

Order

Points 1-4 I understand

Point 5. The following paragraphs set out the judge’sdirections for preparation for the hearing.

Failure to comply with the directions may result in thecase having to be adjourned and the party at fault having to pay costs.

The following Directions apply to this claim:

Point 14) Note to court staff: At least one of theparties has requested that the case be referred to the small claims mediator. Pleaserefer the case to the small claims mediator.

Do I now have to use this service as it’s in the judge’s directions?

[Desperate Daniella]

Hi,

 

Presumably they requested the mediator? You don't have to agree to this but Courts like you to settle by mediation if possible as it can save their time if there doesn't have to be a hearing.

 

When was the card taken out? When did you make the final payment?

 

Who exactly issued the proceedings?

 

Was this Barclaycard an original Barclaycard, or was it something else, for example, Goldfish or Egg, first?

 

DD

[1882ian]

DD

 

Yep, they requested mediator

 

The card was taken out in the 1990s. Final payment Sept 2010

 

Proceedings by MKDP LLP

 

Original Barclaycard

[citizenB]

Ok, well there should be details of the mediator. So you should telephone them they would be the ones that would organise this. Obviously if the opposition don't agree then that is their headache.

[Desperate Daniella]

Barclaycards vary a lot. Sometimes they do come up with an agreement, but other times have failed to.

 

I think you should have a read through some other Barclaycard threads and try and find some which tell you what was, or was not, provided in response to CCA requests for agreements made in the 90s.

 

I think it is interesting they want mediation. This may mean they know their case is not that strong and they don't in fact want to present it to the judge.

 

I don't know too much about this firm. It may be interesting to search them on the forum too and see if they usually go for mediation and what has happened.

[1882ian]

Update, Still a bit confused if judge has asked the courtstaff on point 14, to refer to mediation as one party has requested this. Whydo they keep telling me that mediation is voluntary (surely not voluntary asthe judge has asked for it) and now I have to wait 14 days as both parties needto consent? Why have they not filled in the form for mediation?

[1882ian]

Hi all, 14 day are up the mediation that was requested theydid not reply to. Do I have to notify the court to make them aware as the judgemade it a direction on point 14? Any help most appreciated

[citizenB]

I will ask andyorch to look in on you.

 

I am not quite sure if you need to let the court know that mediation wasn't taken up.

 

Can you just confirm that it was B/shark that ticked they were happy to go to mediation. The Judge put it in his directions. Did you contact the Mediator, or did anyone contact you, as it looks like the Judge's direction was for one of the clerks to refer this to the Mediator ?

 

Point 14) Note to court staff: At least one of the parties has requested that the case be referred to the small claims mediator. Please refer the case to the small claims mediator.

 

[1882ian]

Citizen Thanks,

Yesthey ticked the box. I contacted the Small Claims Mediation Clerk as the Courthad sent out a pamphlet with the court papers on how to start mediation. When Ispoke to them they sent out the paper work I filled it in, and then I was toldto wait 14 days for them to take up the offer of mediation as it is voluntary.

[batty69]

 

I think you should have a read through some other Barclaycard threads and try and find some which tell you what was, or was not, provided in response to CCA requests for agreements made in the 90s.

 

.

 

There's no CCA agreements for Barclaycard in the 90's, Just app forms with a tick box saying you agree with CCA 1974 if your app is successful, being an app form it fails the CCA 1974 on every critrea.

 

But they do still have the forms, only on microfiche as the originals were destroyed a long time ago

[citizenB]

Citizen Thanks,

 

Yesthey ticked the box. I contacted the Small Claims Mediation Clerk as the Courthad sent out a pamphlet with the court papers on how to start mediation. When Ispoke to them they sent out the paper work I filled it in, and then I was toldto wait 14 days for them to take up the offer of mediation as it is voluntary.

 

 

Hi I asked andyorch for his comments they are as follows :

 

 

Normally states within the Notice of Allocation what action is required should mediation fail. The usual is for either party to contact the court and advise that mediation failed / never happened and a further DQ is then submitted. It is unclear who requested mediation...I note 1882ian completed the forms to set the wheels in motion but if he didn't tick yes within the initial DQ and BC did why have they not complied and that should be brought to the courts attention within the next DQ and the courts attention when Costs are to be decided.

 

Did it advise on the Allocation Notice/ Judges order what you need to do next if mediation fails ?

[1882ian]

citizenB the compete court order nothing about ifwe fail in mediation

1. This claim is allocated to the small claims trackand the parties are referred to part 27 of the civil procedure rules and thedirections of that part for guidance on how the hearing of the claim will beconcluded

2. The claim will be heard at on a date and at atime which is set out on the notice attached to this order. The court reservesthe right to change the place and time.

3. From theavailable papers it is estimated that the hearing will take one and a halfhours. If a party is aware of a reason why this estimate might be substantiallyinaccurate that party must notify the court immediately.

4. The parties are encouraged always to try tosettle the case by negotiation. The partiesare encouraged to contact each other with a view to try to settle the case ornarrow the issues.

5. The following paragraph set out the judge’sdirections for preparation for the hearing. Failure to comply with thedirection may result in the case having to be adjourned and the party at faulthaving to pay cost. The following directions apply to this claim.

6. Each party must deliver to the other party andto the court office copies of all documentson which that party intends to relyat the hearing no later than fourteen days before the hearing

7. The original documents must be brought to thehearing

8. The judge may refuse to consider a document ortake it into account if a copy of it has not been sent to the other party asrequired by this order

9. The document to be sent to the other party andthe court must include the statement of all witnesses. (including the parties themselves)

10. Witness statements must:

a. Start with the name of the case

b. State full name and address

c. Set out the witness evidence

d. End with this paragraph. I BELIEVE THAT THEFACTS STATED IN THE WITNESS STATEMENT ARE TRUE

e. Be signed by the witness and dated 11

11. The judge mat refuse to hear the evidence or considerany statement of any witness whosestatement has not been prepared and copied to the other party and the court in accordancewith the paragraph above

12. If a witness is unable to read the statement inthe form produced to the court the statement must include a certificate that ithas been read or interpreted to the witness by a suitably qualified person.

13. Neither party may rely at the hearing on anyreport from an expert unless permission as been granted

14. Note to court staff: at least one of the partieshave requested that the case be referred to the small claims mediator. Please referthe case to the small claims mediator.

15. Because this order has been made without ahearing , the parties have the right to apply to have the order set aside,varied or stayed. A party making such an application must send or deliver theapplication to the court (with fee) to arrive within seven days of this order.

On the notice of trial date that is in September there is aline in bold at the bottom of the page pleaseensure that you read both notices and comply with any directions given.

[AndyOrch]

Just follow the Court directions now....you must at some stage raise the matter of their failure to enter mediation ...this will have an adverse effect on the costs...should they succeed.

 

Regards

 

Andy

[1882ian]

Hi all

I have the court case next week; I was expecting somedocuments from the other party. Should I ring the court to see if they have hadany?

As stated

6. Eachparty must deliver to the other party and to the court office copies of alldocuments on which that party intends to rely at the hearing no later thanfourteen days before the hearing.

Thanks in advance

[AndyOrch]

Hi all

I have the court case next week; I was expecting somedocuments from the other party. Should I ring the court to see if they have hadany?

As stated

6. Eachparty must deliver to the other party and to the court office copies of alldocuments on which that party intends to rely at the hearing no later thanfourteen days before the hearing.

Thanks in advance

 

 

Yes and if not ask the court to inpose sanctions for none compliance of court directions.

 

Regards

 

Andy

[1882ian]

Andy

Sent an email to the court today asking if the otherparty had put any documents into the court as I couldn’t get through on the phone.Got an acknowledgement back they will reply in time.

Persisted with the phoning, and just got through,

I asked if thecourt had received any documents from the other party, no was the reply butthey had paid £165.00.

Should you not of received the documents no later than 14days before the hearing.

The reply was they have an initial 10 days. (Didn’t understandthat)

 

Are they in breach of the order, I cannot answer that.

They didn’t think there was a problem well that it howthey made it sound.

 

Should I email the court again to ask the court to impose sanctions for none compliance of court directions

 

Many Thanks

[AndyOrch]

How many days are they late now?

[1882ian]

9 days on Thursday, court date 25th

[AndyOrch]

Ok an email will not cut it with the court if you want anything actioned it must be by way of an N244 application Notice with a draft direction.

 

Read CPR 3 with regards to the PD you wish to rely on to strike out.

 

Regards

 

Andy

[batty69]

Ok an email will not cut it with the court if you want anything actioned it must be by way of an N244 application Notice with a draft direction.

 

Read CPR 3 with regards to the PD you wish to rely on to strike out.

 

Regards

 

Andy

 

My recent experience of this, is that I was told that a letter to the court would be better than an application as the judge was unlikely to make any ruling until the hearing.

[AndyOrch]

Was that the thread I advised you on Batty which you won ?