Reston/Arrow/MBNA V 1vinnie.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Thank you ROb and Amethyst.
I think i will just go for the defence statement and not a counterclaim.
ROb that defence statement look great.
Par:5 i think is correct as i only askesd Restons for contract and assignment as that was what is mentioned in the POC.
ROb you have numbered them 1 - 10 but they are not in sequence and there is 2 X No.7 so that a number mistake?
In Par:6 the date i sent for CCA was 16/08/2016 but i can put that in myself.
Thank you both for this.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

@Amethyst,

Sorry maybe not made myself clear on the last post. I completely agree with you a strike out is based on several notions and one of those being no reasonable grounds or what we might know as a "without merit claim". However, I am not saying that a strike out is required here but merely two causes of action, (1) the tort of an abuse of process and (2) malicious prosecution as an alternative.

The reason behind is obviously follows the Supreme Court case this year about malicious prosecution but more to put the Claimants on the back foot in having to respond to the counterclaim for some damages and defend the argument that the claim is an abuse of court proceedings and/or is done maliciously given their lack of documentation they have in possession and using it as a motive to obtain a collateral advantage e.g. extorting money.

I've seen on here on a few occasions where the claim does not always get discontinued, it may in fact become stayed and lie dormant giving the claimant however long they wish to get what they need and then proceed on that basis, others may discontinue the claim. So why not, for a small fee if someone is prepared to challenge their claims on the grounds above? If it's bound to be heading to court why not have a pop at it and try win the judge over in not only dismissing their claim but also some compensation as a result of it.

Like they always say, if you don't ask then you don't get This is obviously one for discussion and it may not apply to certain people but I think it is always worth considering. A strike out on the basis of the claim being without merit or an abuse of process is a separate cause of action to the tort of abuse of process (though rarely used and perhaps not well known of) and malicious prosecution. If the Defendant is willing to go to court and defend it, then I can't see a harm in trying if it is affordable, or perhaps I am just being overambitious here

The Normura case is very helpful in that there is authority on the point of abuse of process albeit that was done in an application to strike out but nonetheless confirms lack of documents or investigation as to the merit of the claim is an abuse all.


@V1vinnie

Yes sorry, I was jigging the paragraphs around so they will need to be sequential.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Sorry maybe not made myself clear on the last post. I completely agree with you a strike out is based on several notions and one of those being no reasonable grounds or what we might know as a "without merit claim". However, I am not saying that a strike out is required here but merely two causes of action, (1) the tort of an abuse of process and (2) malicious prosecution as an alternative.

The reason behind is obviously follows the Supreme Court case this year about malicious prosecution but more to put the Claimants on the back foot in having to respond to the counterclaim for some damages and defend the argument that the claim is an abuse of court proceedings and/or is done maliciously given their lack of documentation they have in possession and using it as a motive to obtain a collateral advantage e.g. extorting money.

I've seen on here on a few occasions where the claim does not always get discontinued, it may in fact become stayed and lie dormant giving the claimant however long they wish to get what they need and then proceed on that basis, others may discontinue the claim. So why not, for a small fee if someone is prepared to challenge their claims on the grounds above? If it's bound to be heading to court why not have a pop at it and try win the judge over in not only dismissing their claim but also some compensation as a result of it.

Like they always say, if you don't ask then you don't get This is obviously one for discussion and it may not apply to certain people but I think it is always worth considering. A strike out on the basis of the claim being without merit or an abuse of process is a separate cause of action to the tort of abuse of process and malicious prosecution.

You made yourself clear, it's me that all muddled up. Been at a pc screen for hours.
I think i will go for a counterclaim. Will that defence statement do if ii sort out the numbers?.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

Just to be clear though vinnie, if you do produce a counterclaim, there is no guarantee in being successful on it, court is all about who puts the best argument forward so don't feel like you have to because you don't. As Amethyst has said, you can simply plead a defence instead.

Judging from what Amethyst has said about restricted lines, emailing the court is probably the only other option to get it in on time for Monday. This means if you do want to counterclaim, then this will be added to the end of your defence.

If the defence does fit into MCOL, [MENTION=6]Amethyst[/MENTION] do you know how one would go about a counterclaim online, is there an option to?

[Amethyst]

Re: Reston/Arrow/MBNA V 1vinnie.

Okay. I'm really not sure that a vague POC should/could be dealt with by bringing a counterclaim for malicious prosecution. Possibly it would be appropriate in cases such as the Veg Box or Passport guy who were simply bringing claims with no grounds purely with the intention of intimidation, but only vaguely possibly in my view so far. I think it is something worth discussing ( probably start a discussion thread on it) but I don't think it would be appropriate in this case. The claim in the SCJ involved harassment, damage to reputation and all sorts of stuff and as far as I recall had been brought to intimidate Willers into not pushing for his costs on a previous action, but discontinued - it was, basically, malicious, intentionally brought to cause distress and harm. This case is just a rubbish DCA claim - it doesn't make any accusations really, just very vague about the contract. I'd be much more comfortable with a strike app but I'm pretty happy with a 'embarassed' defence - it could include an additional paragraph requesting a strike if you wanted although usually an app would be necessary. Also not sure how much the claim would be for, a counterclaim does require a court fee paying at the time it is submitted, and it would need to be done on paper ( MCOL doesn't handle anything other than bog standard claim & defence/admission). Basically I'd like to see a lot more discussion on it before a 'normal' LIP tries it out ( costs risk / vexatious etc - I know we disagree about costs risk in small claims at times but it is a real risk - particularly if a claim is seen as unfounded)

If a claim is stayed then the defendant does have the option of applying to have it struck out ( and the costs of such application ) rather than leaving it to fester and potentially started up again once documents are found - but it's an outlay, personal choice and of course the possibility that the app would encourage the finding of documents - which is why not many people do it IMO.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

Just to point out, the Willers case did indeed have a number of issues with it but without going into great detail, the SCJ suggested that malicious prosecution is the institution of proceedings maliciously (malice can be knowledge or recklessness) without probable cause which in turn causes loss/damage to the Defendant. Whether it is the examples cited in Willers or here, the case being that the loss/damage to be caused is a CCJ which will affect the credit report and also the loss of money being claimed. All about balance of probabilities and comes back to the point of, if you don't have the documents in your possession, why are you bringing a claim in the first place?

The claim is extremely vague about the contract including references to assignment and default notice being served etc. and then you couple that with the request for the CCA, the documents they refer to in the POC which is being ignored and then you have your grounds for arguing without any probably cause.

Sure strike outs can be done at a later stage, albeit with a higher cost, some of which people may not always be able to afford at the time or may not qualify for an fee reduction. Anyway, i'll stop suggesting this route until a proper discussion is had on it, if you fire up a thread and I will kickstart it off

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Sorry to mess you all about but i will just file a defence for now.
Is that defence statement ROb done for me ready for me to send to MCOL or if too big email to the court. Will i need to put the strike out part in?
If going by MCOL can i just attatch the file to them and what file format will is use .doc .txt as i am using LibreOffice writter.
If i send by email again what attatchment to use please and what els do i put in the subject line.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

No worries, I think Amethyst agrees the defence is fine. You don't need the strike out part in the defence, I have also stated the claim should be dismissed at the end.

So the judge should hopefully review the defence and give directions from there.

If sending by email, attach the defence andput in the parties names in the header: A v B (Claim No. XXXX)

In the body just say attached is your defence in relation to the above matter.

The defence will need to be set out properly though set out like the below with the heading

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Sorry to mess you all about but i will just file a defence for now.
Is that defence statement ROb done for me ready for me to send to MCOL or if too big email to the court. Will i need to put the strike out part in?
If going by MCOL can i just attatch the file to them and what file format will is use .doc .txt as i am using LibreOffice writter.
If i send by email again what attatchment to use please and what els do i put in the subject line.

I have been on MCOL and i put in my defence copy&paste and went to save at came back "this field has an invalid character,you can not use < > but i cant seem to find that character in the letter.
Also do i put all the statement in MCOL including the defdant v claiment and all the rest like in the template?

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

If its going in MCOL, only put the paragraphs but if you are emailing it then you need the heading.

try copying it into word first then format it and then copy and paste it again from there.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

I managed to get it sent by MCOL.
It took me nearly an hour as that site doesn't accept " only letters.
I had to copy and paste each paragraph one at a time and hit save to see what worked and what did not. As for the paragraph with the quote in i had to put quote/unquote arround it as it was the only way to work. It went in at !7:01 .
Thank you all for great help/advice in getting me this far and i will keep you updated as things accur as no doubt they will.

1vinnie

[Amethyst]

Re: Reston/Arrow/MBNA V 1vinnie.

Ah well done Best of luck - the Claimant has 28 days from when the court sends it to them to respond as to whether they want to continue or not, and then you will receive an allocation/directions questionnaire - just post up if you hear anything from the claimant or the court ( or anyone else for that matter )

[MENTION=71570]R0b[/MENTION] - I'll pop a thread up later, as I think it is worth a discussion - I'm not opposed to trying new angles at all - just rather be completely au fait with what we're actually asking for before chucking a LIP in the deep end xxx

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Thank you for that.
I have question about the defence statement i sent by MCOL.
Do i have to send a printed copy to Arrow and Restons or will the defence statement done through MCOL be enough?

1vinnie.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

I have question about the defence statement i sent by MCOL.
Do i have to send a printed copy to Arrow and Restons or will the defence statement done through MCOL be enough?

I was bumping up my above post just to make sure.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

Hi Vinnie, I belive for MCOL you only need to submit your defence online and it will be issued out by the court, that is correct isn't it [MENTION=6]Amethyst[/MENTION]?