Cabot/Restons claimform - LLoyds debt, stayed/lifted twice - now theyve appealed!!***Claim Discontinued***

[kafkabee]

Am I putting too much detail in the defence and answering points in their witness statement that I don't need to at this stage?

[kafkabee]

Particulars of Claim

 

1.The claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and Lloyds TSB dated on or about Apr 30 2007 and assigned to the claimant on Apr 13 2015 amended to Aug 3 2012

 

Particulars a/c no ***************

Date 16/6/2015

Post Refrl Cr NIL

TOTAL 26405.04

 

What is the value of the claim? £27693.27

 

 

Further to the defence dated 12 August 2015 submitted through CCBC and further to the Court’s Orders dated 19 June 2017 and 24 August 2017 in which the Claimant was ordered to file and serve further particularised particulars of claim. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. The Claimant’s statement regarding the original debt is noted. The Defendant has had financial dealings with Lloyds TSB in the past but does not recall the precise details or the agreement and has sought verification from the Claimant by way of a CCA section 77 request in November 2013 which has not been complied with.

 

2. The Claimant’s statement regarding an overdue balance is denied. The Defendant does not recall receiving any Default Notice pursuant to the CCA1974.

 

3. The Claimant’s statement regarding the assignation of the debt is denied. The Defendant is unaware of any legal assignment or Notice of Assignment allegedly served on the Defendant by Lloyds TSB on or around 3 August 2012.

 

 

4. It is therefore denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(i) show how the Defendant has entered into an agreement

(ii) show and evidence any cause of action and service of a Default Notice

(iii) show how the Defendant has reached the amount claimed for

(iv) show and evidence how the Claimant has the legal right, either under statute or equity to issue a claim

 

5. In accordance with Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Act 1974.

 

7. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

However can I say something about the Claimant being given permission to amend the POC regarding date of assignation?

 

Any help with this is welcome.

 

Thanks

[AndyOrch]

Am I putting too much detail in the defence and answering points in their witness statement that I don't need to at this stage?

 

You should just be responding to the particulars at this stage....have they submitted a witness statement also...already ?

[kafkabee]

Does anything need changing in the defence post number 102?

 

Also, no I haven’t submitted a witness statement yet but the Claimant filed one at court before the first hearing in June. I’m assuming they will submit another witness statement in November - maybe they’ll submit the same one again.

 

I understand disclosure by list but do I only supply the Claimant with actual copies of documents if they request them? Would my bank statements be classed as privileged documents?

 

Thank you.

[AndyOrch]

" I understand disclosure by list but do I only supply the Claimant with actual copies of documents if they request them? Yes Would my bank statements be classed as privileged documents? "

 

If they you have referred to them in your defence or intend referring to them in your WS and you are relying on them and are listed on your N265 ...they can request sight.

 

Dont complete the N265 until you have finished your WS

[kafkabee]

So the defence at post 102 is ok to submit by 6 October?

 

Disclosure by list by 20 October.

Disclosure by 27 October.

 

WS by 17 November.

 

Are you saying I should have the WS completed before sending the N265?

[AndyOrch]

So the defence at post 102 is ok to submit by 6 October? Looks okay...although I would now lose the " The Defendant contends that the particulars of claim are vague and generic in nature." It shouldn't be with a further particularised particulars ?

 

Disclosure by list by 20 October.

Disclosure by 27 October.

 

WS by 17 November.

 

Are you saying I should have the WS completed before sending the N265? Well yes...your N265 must list all documents relied upon and referred to in your defence and witness statement......if its on the N265 and you have not mentioned it in your Def or WS then its irrelevant and if you complete your N265 before drafting WS and refer to a document in that WS and its not on the N265 then it will be inadmissible ?[/QUOTE]

 

Andy

[kafkabee]

Ok thanks Andy.

 

At the moment the documents I would be relying on:

my heavily redacted bank statements; appropriate and relevant fos correspondence; letters from the Claimant, transaction log etc; redacted overview of my credit report.

 

I will be looking for other stuff that I can use before the submission deadline.

 

Thanks again for your help - I can't stress enough how helpful it is and how useful the resources on this site are.

 

Donation made.

[kafkabee]

Andy a quick question: although I sent a CCA request to Cabot pre-action, would it be a good idea at this stage to send a SAR to Restons?

[kafkabee]

Also, would it be worthwhile at this stage to SAR the original creditor Lloyds before the hearing?

[AndyOrch]

Andy a quick question: although I sent a CCA request to Cabot pre-action, would it be a good idea at this stage to send a SAR to Restons?

 

Restons are not a creditor or data controller....you cant DSAR them

Also, would it be worthwhile at this stage to SAR the original creditor Lloyds before the hearing?

 

If you think it will throw up anything useful...they have 40 days to reply though.

[kafkabee]

I sent a SAR to the original creditor - the resulting mass of documentation contained some useful correspondence.

 

The Claimant was in breach of the Order made on 24 August 2017 in that it did not comply with the direction to supply statements of account by 20 October 2017.

 

I filed and served my WS within the time limit (17 Nov) and have received by immediate return a letter from Restons:

 

"Our client has taken the decision to discontinue proceedings [...]" with a Notice of Discontinuance.

 

Thanks everyone for your help - in particular Andy and dx.

 

Am I correct in thinking I am entitled to make an application for costs?

[dx100uk]

You cant claim costs as a defendant in small claims Track

 

well done you won

 

please remember to donate if you can.

 

dx

[kafkabee]

Not small claims.

 

The trial was allocated to the Fast Track, 21 December.

[dx100uk]

yea I just saw that

andy will know

esp as this is their third bite..

[AndyOrch]

Hi kafkabee responding to your PM.

 

Excellent news on the Discontinuance...and yes you are entitled to Costs on the Discontinuance see CPR 38

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part38

 

Liability for costs

38.6

 

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.

(Rule 44.9 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)

 

Thread title amended to reflect the outcome......well done.

 

Andy

[kafkabee]

The Form N260 looks very detailed and quite overwhelming.

 

In this case where a Notice of Discontinuance has been filed by the Claimant after the filing of my WS and before the trial date (21 Dec) is it absolutely necessary?

 

If it is a requirement is there a template that would help me with the completion of this form?

 

Or would the court accept a more simple setting out of my costs on a blank sheet?

[AndyOrch]

Make an informal approach to the Claimants Solicitor first (they are liable for wasted costs not the claimant) with a bill of costs subject to CPR 38 and his discontinuance of the claim.

 

Try to be reasonable and proportional ...if they agree there shouldn't be any need for form N260 or summary assessment

[kafkabee]

Ok.

 

I spoke to someone at the court just now who said that I could send an invoice kind of letter to the Judge who may award costs without a formal application. Obviously I don't want to be filling in Form 244 and paying £255 for the privilege.

[AndyOrch]

You could try for a Wasted Costs Order...but be wary there is a difference between Costs on Discontinuance (Claimant) and Wasted Costs (Solicitor)

 

https://www.lawgazette.co.uk/law/costs-liability-on-discontinuing-a-claim/57893.article

 

http://www.paragoncosts.com/site/blog/paragon-blog/discontinuance-the-defendants-entitlement-to-costs

[BazzaS]

Wasted costs will be a much higher hurdle to show liability. Go for the more usual Costs, which the Claimant is liable for, and let the Claimant and their Solicitor battle between them who is ultimately liable......... "not your circus, not your monkeys".