Lowell - Taking me to Court and i do not reside in the UK

[ITmanrichard]

Dear CAG members

 

 

During early 2015 Lowell were chasing me for an old debt and I pointed out by post that I now lived near Spain - but I still own my house in the UK where they were sending mail to. This carried on and I rang them and told them to stop harassing my tenants.

 

 

This still carried on until a CC Claim came through - which was forwarded to me, correctly or not if I had not of responded I would of received a default CCJ - so I responded with my defence as Out Of Jurisdiction - I am not even living in an EU member state.

 

 

It went to mediation and I was explained that they didn't believe that I lived abroad as there was "active" credit at my UK address in my name. Yes of course there is as I have 15 years left on my mortgage, and my mobile phone contract renewed there in August 2015 as my UK contract has FREE calls abroad, here I cannot get a Foreign mobile with free UK calls.

 

 

The Court has just sent a letter on 6th jan to my UK address and I was sent it and received it yesterday abroad, giving me only until 14th jan to justify my defence as the court believe that "it has been served at my last known address and therefore can see nothing wrong with service". If I don't respond they are going to strike out my defence.

 

 

The Court was notified on the AQ that I was not back in the country until JUNE.

 

 

I'm back in the UK today for 3 days, but that's not the point, surely the Court has firstly missed the point that I am NOT in the country let alone able to respond to their letter in 6 days?

 

 

Also as I informed the Claimant of my foreign address they are being vexatious in continuing to serve at my UK address knowing that I could not reply and would therefore be liable to a default judgement?

 

 

Its only by chance that I have a family member renting my house so I really get the mail by default.

 

 

I can probably just get this done and include a utility bill etc from my address abroad, I'm not even on the electoral roll for gods sake and have paid my last tax to HMRC for year ending April 2016.

 

 

Its a case of damned if I didn't reply and damned if I did !!

 

 

But why should I be doing this??? By my understanding I cant even put in a counter claim as I am OUT OF JURISTICTION ! And any help what to put would be grateful.

[BankFodder]

You need to check up the rules on service – CPR 6 – but so far as I can make out, service can be affected either in the UK or anywhere else within the EEA. The whole idea of service is to make sure that you have notice of an action. You have an asset within the jurisdiction and so they can proceed against that.

 

I think eventually it is a technicality as to where you are and where you are being served. You are in Spain and I don't really see that that defeats the service – either now or eventually. What could happen is that there could be an application to the court at the end of the matter to add the expenses which are incurred in trying to effect service upon you, to be added to the judgement sum.

 

I think you might be better off spending your time talking about the alleged debt and whether or not you have a defence.

 

What is the value of the claim?

[ITmanrichard]

Many thanks for your reply

 

 

However I am not within the EEA or a non-EU Microstate I live near to Spain not actually in it - I am aware of the fact that the forum is public to view so I chose to restrict this information, sorry. around £2,000.00

[ITmanrichard]

Sorry to explain better - I do live in a Micro State but in a very unique one - that is not part of the EU, EFTA or the Euro zone.

[BankFodder]

In that case, I think I understand where you live. However that also means that I don't especially know the answer to your question. Once again, the whole idea is to make sure that you know of the pending action against you and that you have an opportunity to defend. You clearly have an address in the UK to which you are linked in one might even say that you have a UK domicile. The important thing is that you have already demonstrated that you get to know of the various communications which are being sent to you and also you have an asset which can be proceeded against in the event of a judgement against you.

 

Of course, it's up to you how you handle it but if you have a commitment to tenants in the UK – and presumably those tenants want a quiet life (which is what they pay you for after all) then I would have thought that at the very least it would be in their interests that you deal with the matter and either defend it successfully or else sort it out so that there is no eventual risk to your tenants and as a consequence to your business interests in the UK.

 

If you'd like to talk about the basis on which you feel that you don't owe the money then we would be pleased to help you.

[BazzaS]

Are there not 2 (interacting,but distinct!) issues here?

 

1. Jurisdiction of the court

2. If service was effected or not.

 

As a MAJOR caveat though : was there a clause in the OP's original agreement under which the alleged debt arose, regarding one or both of

a) applicable law (which court's "rules & rulings" are used), and

b) jurisdiction (which court the case should be heard in)

The later of which being key, if the OP intends to dispute jurisdiction.

 

 

A CC Claim came through - which was forwarded to me, correctly or not if I had not of responded I would of received a default CCJ - so I responded with my defence as Out Of Jurisdiction - I am not even living in an EU member state.

 

.......

 

It went to mediation

 

.........

 

 

The Court has just sent a letter on 6th jan to my UK address and I was sent it and received it yesterday abroad, giving me only until 14th jan to justify my defence as the court believe that "it has been served at my last known address and therefore can see nothing wrong with service". If I don't respond they are going to strike out my defence.

 

But why should I be doing this??? By my understanding I cant even put in a counter claim as I am OUT OF JURISTICTION ! And any help what to put would be grateful.

 

Technically speaking you can't both dispute jurisdiction AND issue a defence, but more importantly you can't both acknowledge service and dispute jurisdiction ..... did you ONLY dispute jurisdiction and not complete either the AofS or any other defence?

 

My concern is that this has gone to mediation : has the court ruled regarding the issue of jurisdiction? (If you completed an AofS you may have submitted to the jurisdiction of the court!)

 

 

 

You clearly have an address in the UK to which you are linked in one might even say that you have a UK domicile.

 

Using the words "UK domicile" (instead of "UK house", or even "residence" ) might create confusion regarding the key issue : domicile (in the sense of COUNTRY of domicile, not 'house')

 

The OP could own any number of houses in any number of countries.

However, the OP has only one country in which they are "domiciled".

Domicile is also distinct to "country of residence",

 

The default is that domicile is the country in which their father resided when they were born, unless (as in the OP's likely situation), they have chosen to change their domicile by moving to another country (and NOT intending to return to their original country of domicile).

 

https://www.gov.uk/tax-foreign-income/non-domiciled-residents

 

In more detail (particularly the flowchart on p.33, and on p.24 where it says (at 5.6)

"5.6 Your domicile status is decided under general law, which means it must be interpreted according to previous rulings of the courts. There are many things which affect your domicile. Some of the main points are:" (My point here being that although this is a tax document, it relies on & sets out the general law)

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/528018/RDR1-residence-domicile-remittance.pdf

 

So, if the OP is disputing the UK court's jurisdiction to hear the case they shouldn't allow issues to be clouded by if they own a house in the U.K. , (or even if they happened to be resident in the UK for a particular year, although it is clearer they aren't domiciled in the U.K. If they aren't resident and have a permanent home outside the UK!)

 

The OP should keep focusing the court's attention on the OP's country of domicile, and the fact it isn't in the EU, if they are disputing the court's jurisdiction, AND provided they haven't already submitted to the jurisdiction of the court.

 

The Supreme Court has ruled regarding domicile (in particular, domicile of choice......)

http://www.bailii.org/ew/cases/EWCA/Civ/2008/577.html

 

If the OP has submitted to the jurisdiction of the court, then it is time to look at if there has been effective service ......

[BazzaS]

The Supreme Court has ruled regarding domicile (in particular, domicile of choice......)

http://www.bailii.org/ew/cases/EWCA/Civ/2008/577.html

 

Correction: That is a Court of Appeal judgment.

[AndyOrch]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part11

 

Procedure for disputing the court’s jurisdiction

11

(1) A defendant who wishes to –

 

(a) dispute the court’s jurisdiction to try the claim; or

(b) argue that the court should not exercise its jurisdiction

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

 

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

 

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

(b) be supported by evidence.

 

(5) If the defendant –

(a) files an acknowledgment of service; and

(b) does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim.

 

(6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –

(a) setting aside the claim form;

(b) setting aside service of the claim form;

© discharging any order made before the claim was commenced or before the claim form was served; and

(d) staying(GL) the proceedings.

 

(7) If on an application under this rule the court does not make a declaration –

(a) the acknowledgment of service shall cease to have effect;

(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and

© the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

(8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.

(9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file –

(a) in a Part 7 claim, a defence; or

(b) in a Part 8 claim, any other written evidence.

 

Regards

 

Andy

[BazzaS]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part11

 

 

 

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

 

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

(b) be supported by evidence.

 

(5) If the defendant –

(a) files an acknowledgment of service; and

(b) does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim.

 

 

Regards

 

Andy

 

Thankyou for the correction, Andy.

 

You are correct. So, submitting an AoS doesn't prevent contesting jurisdiction (and must be done as part of contesting it). It is filing the defence that you mustn't do.

 

OP, did you take the further steps (the application for the order that the court has no jurisdiction, or won't exercise its jurisdcition)?

[AndyOrch]

Correct Bazz...but also the application that is vital...hence why it went to allocation.

 

Andy