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Thread: Received a court claim for non Cancellation of services.

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  1. #26
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by des8 View Post
    Thanks for the pointer @pt2537.
    I initially considered unfair terms as per CRA 2015, but the actual claim here is for payment of a service that was not given.

    If they change their claim to damages for cancellation of the contract, the op could then rely on the 2013 regulations

    Are we (am I) going the wrong way?
    Well the thing is, and i cannot express any view having not considered the facts of this case fully yet, but if the distance selling regs apply, then it may well kill the claim dead if the supplier hasnt complied with the regs.

    If thats the case, it may prove an easier route to killing this claim
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  2. #27
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    Default Re: Received a court claim for non Cancellation of services.

    https://www.taylorwessing.com/filead...tions-2013.pdf

    The above link may well explain the difficulties the trader faces, as it seems to me they may well have missed the cancellation form / rights information that they should have given to the consumer
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  3. #28
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    Default Re: Received a court claim for non Cancellation of services.

    After advice from PT (thanks!) I would suggest amending defence as below.
    If others disagree or would amend differently, please jump in, but remember defence has to be filed tomorrow (I think)

    After 1) replace with:

    2) The Defendant admits to requesting in a telephone call on dd/mm/yy that JG Pest Control (which I now understand is a trading name of the Claimant) to deal with a flea infestation problem.

    3)The Claimant failed to comply with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 in that he did not supply confirmation of the contract on paper or in durable form.

    4)The Claimant failed to supply the information referred to in Schedule 2 and Schedule 3 of the Act,and in particular information about the right to cancel.

    4) The Defendant cancelled the contract on dd/mm/yy

    5) The Defendant denies any Flea Chemical Treatment was ever undertaken by the Claimant at the premises as claimed.

    6) It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts.


    Statement of Truth:

    I believe that the facts stated in this defence are true.


    Dated this xx day of mm yyyysigned:Olivia Bowie

    OLIVIA BOWIE

  4. #29
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by pt2537 View Post
    https://www.taylorwessing.com/filead...tions-2013.pdf

    The above link may well explain the difficulties the trader faces, as it seems to me they may well have missed the cancellation form / rights information that they should have given to the consumer
    I think you are probably right there PT
    I am a solicitor who specialises in consumer credit and my firm is Joanna Connolly Solicitors. A leading case of mine Carey v HSBC Bank plc [2009] EWHC 3417 (QB) (High Court) set the legal precedents for creditors compliance with section 77 & 78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court.

    In the cases of Brookes v HSBC Bank plc and Jemitus v Bank of Scotland plc [2011] EWCA Civ 354, the Court of Appeal confirmed that under CPR 38.6, there is a general presumption that Claimants discontinuing claims will be liable for the Defendantsí costs.

    In March 2017 we were successful in the multi- track case of PRA Group (UK) Limited v Mayhew when Recorder Bellamy found that the 2 MBNA credit card agreements were irredeemably unenforceable and the assignment from PRA to MBNA was not proved.

    Another recent case is the Appeal of John Burns v Nationwide (HHJ Hodge QC where we were successful in appealing a possession order and money judgment for £250,000 made at a summary hearing on the basis that the lender's failure to provide consent for proposed leases over the secured property created an unfair relationship within the meaning of section 140A of the Consumer Credit Act 1974. The business premises were returned to our client.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email jo@joannaconnollysolicitors.co.uk. Our initial advice is always free.

    Any posts I make on Legal Beagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

  5. #30
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by Joanna C View Post
    I think you are probably right there PT
    Cheers Jo, its often overlooked by traders a bit like the 10A OFT statement in Default notices and a very dangerous thing to overlook
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.



    You can also follow my blog on consumer credit here.


  6. #31
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by pt2537 View Post
    Cheers Jo, its often overlooked by traders a bit like the 10A OFT statement in Default notices and a very dangerous thing to overlook
    Yes - in one of my case as you know LLoyds template default notices were found by the court for that period to be invalid
    I am a solicitor who specialises in consumer credit and my firm is Joanna Connolly Solicitors. A leading case of mine Carey v HSBC Bank plc [2009] EWHC 3417 (QB) (High Court) set the legal precedents for creditors compliance with section 77 & 78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court.

    In the cases of Brookes v HSBC Bank plc and Jemitus v Bank of Scotland plc [2011] EWCA Civ 354, the Court of Appeal confirmed that under CPR 38.6, there is a general presumption that Claimants discontinuing claims will be liable for the Defendantsí costs.

    In March 2017 we were successful in the multi- track case of PRA Group (UK) Limited v Mayhew when Recorder Bellamy found that the 2 MBNA credit card agreements were irredeemably unenforceable and the assignment from PRA to MBNA was not proved.

    Another recent case is the Appeal of John Burns v Nationwide (HHJ Hodge QC where we were successful in appealing a possession order and money judgment for £250,000 made at a summary hearing on the basis that the lender's failure to provide consent for proposed leases over the secured property created an unfair relationship within the meaning of section 140A of the Consumer Credit Act 1974. The business premises were returned to our client.

    This forumís site rules donít allow me to give advice by PM but if you need to contact me please email jo@joannaconnollysolicitors.co.uk. Our initial advice is always free.

    Any posts I make on Legal Beagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

  7. #32
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    Default Re: Received a court claim for non Cancellation of services.

    First of all I just want to thank everybody here for helping me like this, I truly appreciate all the time you have taken to help me, it means so much.

    I have still not sent back the defence (I have until midnight) because I just wanted to post the final draft here for inspection :-D to get some feedback on it before I send it.

    1) I, the Defendant deny that I am liable to the Claimant as alleged in the Particulars of Claim, each and every allegation in the Particulars of Claim is denied.



    2) I, the Defendant admits to requesting in a telephone call in August 2016 that JG Pest Control (which I now understand is a trading name of the Claimant) to deal with a flea infestation problem.

    3)The Claimant failed to comply with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 in that he did not supply confirmation of the contract on paper or in durable form.

    4)The Claimant failed to supply the information referred to in Schedule 2 and Schedule 3 of the Act,and in particular information about the right to cancel.

    5) I, The Defendant cancelled the booking for the chemical flea treatment in August 2016



    6) I, The Defendant denies any Flea Chemical Treatment was ever undertaken by the Claimant at the premises as claimed.

    7) It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts.


    Statement of Truth:

    I believe that the facts stated in this defence are true.

    Dated 15/January/2017..

    My name.

    Is that ok?



  8. #33
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    Default Re: Received a court claim for non Cancellation of services.

    I'll leave it to others to comment!:tinysmile_twink_t2:

  9. #34
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    Default Re: Received a court claim for non Cancellation of services.

    If it were me I'd also include that para 19 in their own published T&C's (Discussed in earlier posts).
    & download or screenprint it for reference.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  10. #35
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by charitynjw View Post
    If it were me I'd also include that para 19 in their own published T&C's (Discussed in earlier posts).
    & download or screenprint it for reference.
    But those T&Cs only apply to contracts entered into on their premises.
    See para 22," We intend that these Terms and Conditions apply only to a Contract entered into by you as aConsumer where we, the Supplier and you the Customer, enter the Contract at any of the Supplier'sbusiness premises,....."

  11. #36
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by des8 View Post
    But those T&Cs only apply to contracts entered into on their premises.
    See para 22," We intend that these Terms and Conditions apply only to a Contract entered into by you as aConsumer where we, the Supplier and you the Customer, enter the Contract at any of the Supplier'sbusiness premises,....."
    Am I reading that para 22 properly?
    If the contract is not made in the business premises in the physical presence of both parties, the customer has to inform them?
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  12. #37
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by charitynjw View Post
    Am I reading that para 22 properly?
    If the contract is not made in the business premises in the physical presence of both parties, the customer has to inform them?
    To try and understand their T&Cs..... therein lies madness

  13. #38
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by des8 View Post
    To try and understand their T&Cs..... therein lies madness
    Lol!

    I should be right at home there, then.
    (They only allow me to use crayons in here)

    :wacko:
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  14. #39
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    Default Re: Received a court claim for non Cancellation of services.

    Hi Everyone.

    I have been off here for a while. I filed my defence and about a week ago I received a "Notice of proposed allocation to the small claims track" it arrived along with a questionnaire "directions questionnaire (small claims track) " it says I must complete the questionnaire by february 3rd and file it with the court office. So I have foolishly not given myself much time here.

    The first thing it mentions on the questionnaire is a settlement/mediation option, it asks whether or not I agree to it.

    The other questions are "Do I agree that the small claims track is appropriate"

    Which county court I would prefer the hearing to be at.

    Am I asking the courts permision to use written evidence of an expert

    how many witnesses including myself will give evidence on my behalf at the hearing

    are there any days within the next 6 months when me, any experts, or witnesses will not be able to attend court.

    I have absolutely no idea of what to do now, it's all a bit frightening to be honest. Should I opt for the mediation option perhaps?

    Any advice would be very much appreciated. Thank you.

  15. #40
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    Default Re: Received a court claim for non Cancellation of services.

    Quote Originally Posted by OliviaBowie View Post
    Hi Everyone.

    I have been off here for a while. I filed my defence and about a week ago I received a "Notice of proposed allocation to the small claims track" it arrived along with a questionnaire "directions questionnaire (small claims track) " it says I must complete the questionnaire by february 3rd and file it with the court office. So I have foolishly not given myself much time here.

    The first thing it mentions on the questionnaire is a settlement/mediation option, it asks whether or not I agree to it.YES

    The other questions are "Do I agree that the small claims track is appropriate"YES

    Which county court I would prefer the hearing to be at.Your nearest local CC which is; xxx

    Am I asking the courts permision to use written evidence of an expert NO

    how many witnesses including myself will give evidence on my behalf at the hearing one (yourself only I assume)

    are there any days within the next 6 months when me, any experts, or witnesses will not be able to attend court. Unless you know there are certain dates when you will not be availableyour answer will be NO

    I have absolutely no idea of what to do now, it's all a bit frightening to be honest. Should I opt for the mediation option perhaps?

    Any advice would be very much appreciated. Thank you.

    Yes, it is a hit daunting, the first time anyway!
    Mediation will be offered and is carried out by telephone.
    You will not speak to the other party, and if agreement is made the terms will be confirmed in writing and are enforceable

    You might find this guide informative:
    https://www.judiciary.gov.uk/wp-cont...+web+FINAL.pdf

  16. #41
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    Default Re: Received a court claim for non Cancellation of services.

    Des, that is fantastically helpful thank you.

    I know it probably sounds ridiculous, but to me it is all so overwhelming and confusing. I am going to put it in the post tomorrow next day delivery.

    And thank you for the link I will be reading through it this evening.

  17. #42
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    Default Re: Received a court claim for non Cancellation of services.

    I posted it next day delivery, so they would have got it in time.

    I suppose all i can do now is wait and see what happens.

  18. #43
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    Default Re: Received a court claim for non Cancellation of services.

    Now to do until you receive the next set of papers, when of course you can come back here.
    Because it is out of your normal experience, you will find it stressful as you don't quite know what to expect.
    After it is over and you have won (must remain positive!) you'll realise it isn't too scary, and the greatest down is the amount of time spent on dealing with the matter!

  19. #44
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    Default Re: Received a court claim for non Cancellation of services.

    Hi everyone

    I am back. This has taken an unexpected turn.

    Yesterday I receive a large envelope of paperwork from JG pest control. Included in it is a "job report" this has the name of the technician that they are claiming undertook the work in my home and it has a worksheet of things that this technician apparently did at my home. It says the the technician treated my whole house, and that he witnessed the infestation at home. This did not happen as nobody from JG pest control was ever at my home. So they are actually completely lying and making fraudulent documents now.

    I rang the court today and found out that my court date is June 8th (They said that they had sent me notification of this a few weeks back but I didn't receive anything)

    Any ideas on what I do at this point? Nobody was in my home and they have made a document to make it appear as though they have. They don't have my signature though as obviously nothing happened.

    Do I have the right to request that the technician named on the document is present at court, because I would very much like to ask him to describe my house because he won't be able to do it. I've never met this person, so I would like to opportunity to confront him in court, but I am not sure if it works like this?

    Also, I would like to file a counter claim. I didn't do this initially so is it now too late to do that?


    Thanks everyone :-)

  20. #45
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    Default Re: Received a court claim for non Cancellation of services.

    Are the court resending the documentation?

    What are you wanting to counterclaim for?

    Has the technician submitted his own witness statement?
    I believe you can request he court issue a witness summons (form N20) but whether or not it is a good idea I couldn't say.
    As it was nearly a year ago that the treatment was not carried out, he may well claim that as he sees so many properties he cannot recall the details of individual houses.

  21. #46
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    Default Re: Received a court claim for non Cancellation of services.

    Hi Des,

    Yes the court say they are resending the documents. Too be honest I think I will forget about the counterclaim, I said that out of frustration because they are lying about me.

    I haven't seen anything like a witness statement from the technician. I strongly suspect he hasn't done one or wouldn't it have been included in the paperwork they sent me?

    They don't have my signature anywhere, will that go against them?

    Also on the paperwork they have sent, at the bottom of the pages it has the name of two organisations NPTA (National Pest Technicians Association) and BPCA (British Pest Control Association) Should I make contact with those organisations and ask if they require 'members' to acquire a signature?

    If I could request the technician to do a witness statement I will do that, as surely he wouldn't forget absolutely everything about my home? He would remember something about it?

    I just need to prove this didn't happen but that does seem very tricky at this point.

    EDIT: I just looked into the witness summons and seen that it means this guy will have to turn up at court. I will definitely do that :-)
    Last edited by OliviaBowie; 22nd May 2017 at 10:49:AM.

  22. #47
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    Default Re: Received a court claim for non Cancellation of services.

    Am I right in thinking that in order to get the court to issue a witness summons, I send this form https://www.justice.gov.uk/courts/pr...m-aug-2011.pdf to the court I am attending? (Canterbury crown court).

    I can get that sent off next day delivery tomorrow if that's right.

  23. #48
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    Default Re: Received a court claim for non Cancellation of services.

    Wrong form! That is for a summons in acriminal trial.
    You need to use N20 (https://formfinder.hmctsformfinder.j...k/n020-eng.pdf)
    Directions for completing it can be found here: http://www.inbrief.co.uk/court-proce...tness-summons/

    Please bear in mind that you are calling a potentially hostile witness.


    Nothing else to do until you receive court directions.

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