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

[1penny]

Here is my draft (a copy will be sent from each defendant as this is a joit claim)  :

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 1: The contract. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 2: Section 20 notice(s)

 3: Year end accounts 2019 - 2023

 4: Demand letters

 5: Statement of Account

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are disclosed at your earliest convenience. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 In accordance with CPR 31.15 I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 If you are unable to comply with this request and believe that you will never be able to comply with this request please confirm this in your response.

Yours Faithfully

print name

 

[lolerz]

seems fine but let others check also before sending it out

 

[AndyOrch]

[1penny]

Much appreciated Andyorch & Lolerz.

Will get it sent off.

Spending the next few evenings reading up on defences and will try to get a 1st draft completed by Sunday evening.

Really appreciate your help and guidance.

1Penny

[1penny]

I have been reading some holding/no paperwork defenses to assist with drafting our defense.

So far I have mentioned that the poc are vague and generic in nature.

I have mentioned that the Defendant confirms that they are the Leaseholder.

I have mentioned that the claimant hasn't complied with paragragh 3 of the PAPDC etc.

Just struggling to find an example similar to my claim to word how to put them to strict proof on what basis the Service Charge is due and payable, how the arrears are made up etc.

I guess I need to keep the defense brief at this stage.

Appreciate any pointers in the right direction.I still have 2 weeks.

Thanks

1Penny

 

[lolerz]

post up what you've got and we'll have a look

 

[1penny]

So far I have made the below notes :

Particulars of Claim( For reference drafting response only)

 

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 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*

3. 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 respond to his request.

 

4. 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.
 

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

6. The Particulars of Claim is denied in its entirety.  It is denied that the Claimant is entitled to the relief claimed.

Appreciate any help to structure better and add any points

Thanks

 

1Penny

Edited March 4 by lolerz
Correct Law quoted for S20 notices

[AndyOrch]

19 hours ago, 1penny said:

I have been reading some holding/no paperwork defences to assist with drafting our defence.

I think in this type of claim its going to require a little more than a simple holding defence type

 

Andy

[1penny]

Hello Andyorch

 

Would you be able to point me in the right direction with regards to the defence structure for this type if claim.

I have looked for similar cases but not finding much whrn searching.

I believe that my defence is due by 18th March, so I have time to work on this.

Thanks

1Penny

 

 

[lolerz]

Please see my edits in red to your defence.

 

 

.

[AndyOrch]

I've added the particulars for easy reference which helps when drafting a response. You must either admit deny or question every paragraph in the claimants particulars. No response is taken as an admittance by the court.

 

[1penny]

Hello Lolerz

Many thanks for your edits, really appreciated.I will take a look.

@Andyorch - many thanks for your input too.

Just to clarify our defence needs to be submitted by 18th March,so I guess that we wait until closer to that date before submitting the defence ?

I will advise if any response to CPR 31:14.

Many thanks for your help and guidance so far, it is really appreciated.

Have work committments over the next few days so might not be online so often.

1Penny

[AndyOrch]

The only advantage of waiting is in hope that they may respond to the CPR 31.14...which I very much doubt therefore no real advantage but lets gets it tight first..plenty of time.

[1penny]

Hello

I returned last night to a letter from the solicitors in relation to our CPR 31:14 request.

They ask us to serve our defence.

In relation to the CPR 31:14 that was sent they have responded as follows :

please note that item 1 you refer is your lease.

Entirely without prejudice to our clients position we will voluntarily supply items 2-5 referred to in your letter thereafter.The cost will be 25p plus vay per A4 sheetof paper,however you will already have been in receipt of all of the documentsyou refer to at 2-5 of your letteras these would have been supplied by the managing agents, and you have correspondence from us relating to the arrears also.

They also refer to an e-mail last year in which I conceded that service charges were payable by the leaseholders, but I never admitted to the amount due which the solicitors were pressurising me to do.

My point is that the lessor is in breach of its covenant to repair the common parts and fabric of the building regularly which has increased the lessees’ bills. We just received advanced notice of the coming service charge which is nearly £4,500.

Not feeling well today, I think because I am anxious and feeling depressed about things. I don't want to lose our family home where we have been living for 19 years.

I know I need to file my defence by next Monday latest.

Thanks

1Penny

 

 

[lolerz]

Think this is the first time I've ever seen someone charge for a CPR 31.14 request. Saying that, they do have a right to request you cover reasonable costs under CPR 31.15. It probably won't cost more than £20 or so. So I would take them up on the offer because we need to see the documents no matter what.

Personally I think they're trying to string you along and hope you forget to file a defence. Until you've got the documents in your hand they haven't complied with CPR 31.14 imo.

Defence due on the 18th but we should be aiming for Friday at the latest.

[1penny]

Hello Lolerz

Many thanks, I was aiming to send the defence by this Friday. Many thanks for your draft.

I will give another couple of days for documents to arrive if they do...

After the defence is sent how long does the next process take.Will both parties be able to communicate with each other ? 

I just cannot afford to get a CCJ otherwise my job will be finished.

 

Really appreciate your help and support.

[lolerz]

once defence is filed they have 30 days to proceed otherwise the claim is auto stayed.

Next step will be direction questionnaires. Obviously parties can communicate with each other but come here first if you receive anything.

Remember that if the documents come back and they are all legit then we can always position for a Tomlin Order in mediation. 

[1penny]

Ok understood. 

Many thanks.

[1penny]

Another thing I noticed is that the figure in the poc is slightly different to the balance on the statement of account by £100 as it looks like they didn't include the last payment that was made.

Also they claim interest of just over £1000 going back to 2019 and then they repeat themselves and want to claim interest on the arrears plus the interest going back to 2019 ?

Have they badly worded their poc re the amount that they are claiming re the interest  ?

Regards

1Penny

[lolerz]

These are all excellent points to pick up in Mediation and Witness statement stage.

This legal firm seems like an absolute mess really, so many errors that we're going to exploit in Mediation / if this goes to Court.

[1penny]

Ok sounds good 

[1penny]

Hi Lolerz

No further post regarding CPR request so will submit the proposed defence in post 83 tomorrow.

1Penny

[lolerz]

just make sure you fill in the blanks etc.

 

Submit before 4PM tomorrow 

[1penny]

Regarding point 3 :

3. 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 respond to his request.

Should I amend to read "To date, the claimant has failed to fulfill this request" Since they did provide a response ?

[lolerz]

Leave as is imo. Until documents are in your hand they haven't provided a satisfactory response