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    • Hi, despite saying you would post it up we have not seen the WS or EVRis WS. Please can you post them up.
    • Hi, Sorry its taken me so long to get round to this, i've been pretty busy today. Anyway, just a couple of things based on your observations.   Evri have not seen/read my WS (sent by post and by email) as they would have recognised the claim value is over £1000 as it includes court fees, trial fees, postage costs and interests, and there is a complete breakdown of the different costs and evidence. I'd say theres a 1% chance they read it , but in any case it won't change what they write. They refer to the claim amount that you claimed in your claim form originally, which will likely be in the same as the defence. They use a simple standard copy and paste format for WX and I've never seen it include any amount other than on the claim form but this is immaterial because it makes no difference to whether evri be liable and if so to what value which is the matter in dispute. However, I have a thinking that EVRi staff are under lots of pressure, they seem to be working up to and beyond 7pm even on fridays, and this is quite unusual so they likely save time by just copying and pasting certain lines of their defence to form their WX.   Evri accepts the parcel is lost after it entered their delivery network - again, this is in my WS and is not an issue in dispute. This is just one of their copy paste lines that they always use.   Evri mentions the £25 and £4.82 paid by Packlink - Again, had they read the WS, they would have realised this is not an issue in dispute. They probably haven't read your WS but did you account for this in your claim form?   Furthermore to the eBay Powered By Packlink T&Cs that Evri is referring to, Clauses 3b and c of the T&Cs states:  (b)   Packlink is a package dispatch search engine that acts as an intermediary between its Users and Transport Agencies. Through the Website, Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line. (c)  Each User shall then enter into its own contract with the chosen Transport Agency. Packlink does not have any control over, and disclaims all liability that may arise in contracts between a User and a Transport Agency This supports the view that once a user (i.e, myself) selects a transport agency (i.e Evri) that best suits the user's needs, the user (i.e, myself) enters into a contract with the chosen transport agency (i.e, myself). Therefore, under the T&Cs, there is a contract between myself and Evri.   This is correct but you have gone into this claim as trying to claim as a third party. I would say that you need to pick which fight you wan't to make. Either you pick the fight that you contracted directly with EVRi therefore you can apply the CRA OR you pick the fight that you are claiming as a third party contract to a contract between packlink and EVRi. Personally, I would go with the argument that you contracted directly with evri because the terms and conditions are pretty clear that the contract is formed with EVRi and so if the judge accepts this you are just applying your CR under CRA 2015, of which there has only been 2 judges I have seen who have failed to accept the argument of the CRA.   Evri cites their pre-existing agreement with Packlink and that I cannot enforce 3rd party rights under the 1999 Act. Evri has not provided a copy of this contract, and furthermore, my point above explains that the T&Cs clearly explains I have entered into a contract when i chose Evri to deliver my parcel.    This is fine, but again I would say that you should focus on claiming under the contract you have with EVRi as you entered into a direct contract with them according to packlink, as this gives less opportunites for the judge to get things wrong, also I think this is a much better legal position because you can apply your CR to it, if you dealt with a third party claim you would likely need to rely on business contract rights.   As explained in my WS, i am the non-gratuitous beneficiary as my payment for Evri's delivery service through Packlink is the sole reason for the principal contract coming into existence. I wouldn't focus this as your argument. I did think about this earlier and I think the sole focus of your claim should be that you contracted with evri and any term within their T&Cs that limits their liability is a breach of CRA. If you try to argue that the payment to packlink is the sole reason for the contract coming in between EVRI and packlink then you are essentially going against yourself since on one hand you are (And should be) arguing that you contracted directly with EVRi, but on the other hand by arguing about funding the contract between packlink and evri you are then saying that the contract is between packlink and evri not you and evri.  I think you should focus your argument that the contract is between you and evri as the packlink T&C's say.   Clearly Evri have not read by WS as the above is all clearly explained in there.   I doubt they have too, but I think their witness statement more than anything is an attempt to sort of confuse things. They reference various parts of the T&Cs within their WS and I've left some more general points on their WS below although I do think  point 3b as you have mentioned is very important because it says "Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line." which I would argue means that you contract directly with the agency. For points 9 and 10 focus on term 3c of the contract  points 15-18 are the same as points 18-21 of the defence if you look at it (as i said above its just a copy paste exercise) point 21 term 3c again point 23 is interesting - it says they are responsible for organising it but doesnt say anything about a contract  More generally for 24-29 it seems they are essentially saying you agreed to packlinks terms which means you can't have a contract with EVRI. This isnt true, you have simply agreed to the terms that expressly say your contract is formed with the ttransport agency (EVRi). They also reference that packlinks obligations are £25 but again this doesn't limit evris obligations, there is nothing that says that the transport agency isnt liable for more, it just says that packlinks limitation is set. for what its worth point 31 has no applicability because the contract hasn't been produced.   but overall I think its most important to focus on terms 3b and 3c of the contract and apply your rights as a consumer and not as a third party and use the third party as a backup   
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      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

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Winderbray/JCF PM/PCB Lawers Claimform - Service charge arrears - Refused Payment Plan - Now N244 for SJ+Strike Out.


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Ok many thanks, really appreciate your help. I will send today before I go to work and will advise my partner to send too.

1Penny

 

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I think your response to their paragraph 1 is a little sparse and allows the court to believe the claimants pleadings and that you are simply avoiding paying and by using the holding defence are simply complicating the claim.

Quote

Due to Covid (my partner lost his job) and the cost of living crisis we have been unable to pay in full. We were speaking to the managing agent and trying to pay as much as we could afford and explained our circumstances. I also lost a parent suddenly during covid and couldn't have a funeral. This is still hurting me now. The managing agent then appointed solicitors who again we tried to reach an affordable payment plan with but they refused. We still continued to make payments. We had almost reduced the arrears down to 50pct in the past year, which has been a struggle.

You could have included parts of the above to show the court that there is more to this claim than meets the eye. That the claimant has been unreasonable and by issuing the claims as a means to secure its investment /debt against the property mortgagee. 

I appreciate that you can expand on this if the claim proceeds but from the outset if your response had more detail/mitigation, it may discourage the claimant to review its position and possibly discontinue its claim.

Don't worry if you have already submitted the defence or do not have time to amend.

Lolerz ?

Andy

 

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Hello Andyorch

Many thanks for your response. I was just in the process of submitting the defence but haven't done so yet.

How would you suggest that I reword the response to their paragraph 1.

I really appreaciate the help. I am feeling so anxious.

1Penny

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You could mention that a reasonable and costed payment plan was refused but I would add that as a separate paragraph.

It might also go against querying whether the charges are lawful as you've already made payment. This removes any protection you have under Section 27A of the Landlord and Tennant Act 1985. Also offering a payment plan for the rest may admit to the charges being due and payable (we don't know this until we see the Section 20 notices for the major works).

I've been trying to position this in a way that we get a Tomlin Order in mediation for the principle amount (not their interest or costs) at an affordable level (around that £400/month you offered) and then suggest you get a payment plan going with the managing agent directly for the current Service Charge.

Problem there is that if they haven't done Section 20 correctly, you could be paying thousands of pounds you don't legally owe. Which is why we're questioning it in the defence. I was actually shocked that the solicitor came back and said "we're not providing this because you've already had it." and it threw up red flags in my eyes.

If you do want to add re the payment plan, I would go along with:

"The defendant tried to agree to a costed Payment plan, to clear the arrears and cover the current Service Charge, with both the claimant and their solicitors on *insert dates*, which was denied."

See if @Andyorch is happy with that Paragraph and if so add it between Paragraph 2 and 3.

We could do with some help from you.

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On 03/03/2024 at 18:11, 1penny said:

1. The defendants owe the claimants the sum of £12,630 for arrears of service charge part of which has been outstanding and demanded since 1st April 2019 pursuant to a lease dated 4th September 1998.

The Defendant contends that the particulars of claim are extremely vague and generic in nature.

The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.


1. The claimant has not complied with paragraph 3 of the PAPDC (Pre Action protocol) and failed to serve a letter of claim pre-claim pursuant to PAPDC changes of the 1st October 2017. It Is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

2.  Paragraph 1 is noted. The defendant is the leaseholder for *insert property address*

2. Paragraph 1 is noted. The defendant/s are the leaseholders of xxxxxxxx. It denied that the alleged amount claimed is simply down to arrears and none payment. Having dealt with the Managing agents in trying to resolve this matter and arrange an affordable payment plan to which they refused. The managing agent then appointed solicitors who again we tried to reach an affordable payment plan with but they refused. Not withstanding the above and with no admittance of liability we still continued to make payments and almost reduced the arrears down to 50% in the past year.

We could do with some help from you.

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Hello Lolerz

Many thanks. So it sounds like we might be better to keep the defence as is ?

Is it interesting that the solicitor will not provide a copy of the lease as part of the CPR31:14 ?

1Penny

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Thanks Lolerz

I am just concerned this claim will be Fast Track and the claimants will no doubt milk the costs. I see your points re the technical legislative points which can be expanded on further into the process

But from a judges perspective its a matter of getting his interest and not him simply viewing as a debtor or avoidance. 

We could do with some help from you.

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Hello Andyorch

Many thanks also.Sry our responses crossed.

The amount in the POC of the claim form is also wrong as the solicitors failed to include the last payment made.But I guess we use this later during the process ?

 

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Yes but you should add a line re sec69 interest is incorrect and be denied.

We could do with some help from you.

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So to save us referring back this is what we have so far...

 

1. The defendants owe the claimants the sum of £12,630 for arrears of service charge part of which has been outstanding and demanded since 1st April 2019 pursuant to a lease dated 4th September 1998.

2.The claimants claim interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from 1st April 2019 to 14th February 2024 on the said sum the interest being £1,009

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77.

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 01/04/2019 to 14/02/2024 on £13,632

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77

What is the total value of the claim? £14,414

Proposed Defence

The Defendant contends that the particulars of claim are extremely vague and generic and misleading in nature.

The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. The claimant has not complied with paragraph 3 of the PAPDC (Pre Action protocol) and failed to serve a letter of claim pre-claim pursuant to PAPDC changes of the 1st October 2017. It Is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

2.Paragraph 1 is noted. The defendant/s are the leaseholders of xxxxxxxx. It denied that the alleged amount claimed is simply down to arrears and none payment. Having dealt with the Managing agents in trying to resolve this matter and arrange an affordable payment plan to which they refused. The managing agent appointed solicitors who again we tried to reach an affordable payment plan with but they refused. Not withstanding the above and with no admittance of liability we still continued to make payments and almost reduced the arrears down to 50% in the past year. 

3. The claimants claim for section 69 interest be denied as its incorrectly calculated and duplicated.

4. The Defendant upon receipt of the Claim Form sent the Claimants Solicitor a CPR 31:14 request on 28th February 2024. To date, the claimant has failed to fulfil this request.

5. Therefore the claimant is put to strict proof to :

(a) show how the Claimant has reached the amount claimed for; and

(b) That the money for major works was legally demanded by way of Section 20 Notices as per the Landlord and Tenant Act 1985; and

(c) that Service Charge demands were correctly issued according to the terms of the lease and Section 21(B) of the Landlord and Tenant Act 1985.


6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

7. The Claim is denied.  It is denied that the Claimant is entitled to the relief claimed.

 

 

.

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I'd say we're getting there

We could do with some help from you.

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Feel free to tweak it further Lolerz but I think it now covers the main points and may give the claimant something to consider before continuing ?

Do they want a can of worms opening ?

We could do with some help from you.

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I think it's ready to send personally.

 

I don't think the judge will look too kindly on them refusing a payment plan then taking them to court, as well as double charging interest and forgetting PAPLOC on such a large value claim.

We could do with some help from you.

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Precisely that was the point I wished to convey and get across. 

We could do with some help from you.

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Hello Andyorch / Lolerz

I cannot thank you both enough for your time, effort and support so far. When I can I will be making a donation to this site.

The revised defence reads well and I better understand the angle that is being aimed.

Regarding the coming years service charge all residents of the block are meeting to discuss further as we are all unhappy with the continued high cost and lack of service provided.Hopefully we will come up with a plan as suggestions have already been made.

I think service charges for leaseholders are making the headlines a lot in the news recently.

I will arrange for both of us to proceed and submit the defence and will fill any missing gaps.

Thanks 

1Penny

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Please could I check this point

b) That the money for major works was legally demanded by way of Section 20 Notices as per the Landlord and Tenant Act 1985; 

should this be as per the Commonhold And Leashold Reform act 2002 ?

 

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 Section 20 of the Landlord and Tenant Act 1985 (amended by section 151 of the Commonhold and Leasehold Reform Act 2002).

Just name Landlord and Tenant Act 1985 as that's what we're actually querying. Whether the consultation in regards to qualifying works took place.

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We could do with some help from you.

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Many thanks, just wanted to check.

Preparing to send this afternoon.

..............

Defence has been successfully submitted by both of us.

I guess now a waiting game.

Hopefully we can find a middle ground amicably and reach agreement.

We have already demonstrated our willingness, despite various threats via e-mail last year including forfeiture of the lease.

Thanks for the help so far and will keep you updated.

Have a nice weekend

1Penny

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They can't forfeit the lease as they've accepted payments.

Amazing how many freeholders/managing agents make that mistake (for them, good for you).

 

We could do with some help from you.

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Today we have both received from Northampton a Notice of Proposed Allocation to the Fast Track.

Attached to it is a form N181 Directions questionnaire.

Is this for us to complete ?

 

1Penny

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Yes take a read of the following

 

We could do with some help from you.

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To a degree but failure to proceed would result in the claim being stayed.A few more hurdles yet before it reaches allocation.

Ask if you are unsure of anything on the n181

 

We could do with some help from you.

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Ok many thanks.

We will have a read over the next few days and look to fill it in over the weekend.

Will probably need some assistance but will look at examples on here.

Many thanks

1Penny

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