county court claim defence

[candle30]

Hi,
I am new to this site and I am looking for some advice on what to write in a county court claim form defence . Can anyone help please?
I have completed the acknowledgement of claim and sent a CCA request to the claimant and a CPR request to the solicitor.
No response from the CCA request from claimant.
Solicitor only responded to the CPR request by letter to say they were in the process of retrieving the documents however I have not received anything yet and need to do the defence before my time runs out.
Would be grateful for advice please.
Thank you

[jaguarsuk]

If you close to your deadline of 33 days from the date of issue compile one using the Example Defence.

[candle30]

Thank you for your reply.

The solicitor letter talks of a general extension of time but I am unsure what this means and what I need to do next.

It reads;

We acknowledge receipt of your letter dated made under C.P.R. 31.14 for documentation mentioned in our particulars claim.

We are currently in the progress of retrieving the documents requested.

Therefore please accept this letter as our agreement to a general extension of time. Once we have provided you with the documents requested we will grant a further 14 days for you to respond to the Claim Form as you feel appropriate.

That letter was dated 19.7.18 and I still have not received any documentation from them. Do I now need to submit my defence?

[R0b]

That is not really a valid extension of time. The Civil Procedure Rules state that you can grant an extension of time for a further 28 days (Rule 3.8(4) of the CPR) on top of the current deadline but in theory their grant of an extension could run for months if they don't show up with the documents.

So unless you can agree an extension (assuming you are still within time because you've not told us any details of the claim form) then you need to comply with the court's deadlines otherwise they could obtain a default judgment against you. If you want to extend the time you need the consent of the other side and then you write to the court and attach that consent as evidence and then you have the extra buffer of the additional time to file a defence.

[candle30]

Hi Rob
Thanks for replying.
Yes that is what I thought. Their letter isn't specific enough with the dates. i don't want to extend, it is them who have asked for extension and that was 2 weeks ago and i have still not received any documents so i'm going to put in my defence on that basis.
claim form issue was 5/7/18 so court deadline is nearly up.
Thank you.

[R0b]

Well your deadline is in fact tomorrow as that is the 28 day period for filing a defence.

You might get away with a few extra days because you have a letter from Lowell saying that they are agreeing to an extension of time so you could argue that if they were to apply for default judgment, you could set it aside as they could not then renege on what they previously agreed. However, there is a risk to that in that the extension of time does not comply with the CPR - by the way I should point out that the correct rule is 15.5 not 3.8 as I mentioned above.

You could respond to Lowell tomorrow by email (mark subject line as urgent followed by the claim and case number) and then follow up with a phone call to confirm if they consent, and to reply by email. I've attached an example letter of what you might say to them. As for filing a defence based on them not providing you with the documents, solely relying on that is a risk because if they do comply and then pursue the claim, you have no other defence and you will lose.

------------------------------------------------

Dear Sir or Madam,

I am writing further to your letter of [date] in which you agreed an extension of time for a further 14 days once you have provided me with the requested documents. Unfortunately, this extension of time is not compliant with the Civil Procedure Rules and I am instead writing to you pursuant to rule 15.5 with a request to extend the time for filing a defence for a further 28 days, which would mean that the deadline for filing my defence would now be 4pm on 30 August. This extension of time benefits both parties as I have previously made a statutory request for a copy of my agreement, which you have failed to provide. As that deadline has now lapsed, you are not entitled to enforce the agreement and any attempt to do so will be considered an abuse of process.

As proceedings have recently commenced, I do not consider that an extension of time will impede upon any hearing date or otherwise disrupt proceedings. Should you refuse to consent to an extension of time, good reasons should be put provided as to why such an extension of time is not appropriate.

Finally, I would remind you that, where a court later considers that it would have been reasonable to grant an extension of time, an adverse costs order may be awarded against your client.

I would appreciate if you could let me know whether you agree to the above extension of time as a matter of urgency, otherwise I shall be forced to file my defence on the basis of, amongst other things, non-compliance under the Consumer Credit Act 1974, namely the failure to provide a copy of the credit agreement.

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P.s. never ever wait for the other side to provide you with documents. You must always comply with the Court's deadline or risk having a default judgment against you - your duty is owed to the court.

[jaguarsuk]

As you acknowledged service you have 28 days plus 5 for service (33 days) to file the defence from the date of issue, so your deadline is 7th August 2018 at 4pm.

Get a draft of a defence together and then post it here (with personal info removed to protect your identity) for review.

[R0b]

Jaguar is right, I forgot to add the 5 days for service - if you send the above template you'll need to amend it to reflect an additional 5 days so that would make it 4 September by for filing a defence.

[candle30]

Please help! I would be very grateful for some further advice on this matter please.
Thank you for all the replies so far.

A quick update-
I submitted my defence (using the example defence template on this site) on the 1st August as neither claimant nor their solicitors had provided any documentation following the CCA and CPR request.
The court sent me a letter on 2nd August stating that they had received my defence and that the claimant had 28 days to respond or a 'stay' would be put in place.
On 30th August I received a large envelope (dated 29th August) from claimant solicitors which contained a large number of documents.

Their covering letter said -

We acknowledge receipt of your letter and your defence.
As per your request under section 31.14 of the civil procedure rules for documentation please find enclosed copies of the following documents in our possession:
1. reconstituted credit agreement
2. statements of account
3. default notice
4. notice of assignment
We therefore contend that we have complied with the requirements of your application for disclosure pursuant to CPR 31.14 and duly invite you to withdraw your application. If you fail to do so , we will seek our wasted costs in opposing your application accordingly.
Further, we invite you to withdraw your defence and invite reasonable proposals to discharge the sums claimed in this matter. if you wish to discuss this further, please contact our office.
A copy of this letter has been filed at the court accordingly.
We trust this clarifies your position and look forward to hearing from you.

The documents enclosed were as follows-
- letter from robinson way with request to agree a payment plan dated Aug 2017 (addressed to previous address)
- notice of assignment dated Aug 2017 (addressed to previous address)
- default notice mercers dated 2007 (previous address)
- Bcard conditions not sure if this is a credit agreement but there is no signature just name and address at top of one of the sheets.
- copy statements (pages and pages of them) dating from 2007 to 2013

On 6th September i received a letter from the county court business centre - 'notice of proposed allocation to the small claims track' asking me to complete a small claims directions questionnaire form N180.

Where do I go from here? Any advice would be gratefully received.
Thank you

[Amethyst]

Did you make an application for disclosure under 31.14 or simply enter your defence ? I'm guessing just the defence and they have worded the letter very poorly but best to check and migh need to respond to them accordingly.

So they have provided the documents you asked for in the cpr request - any specific response to the cca request ?

Are the recon terms those from when the account was opened ?

When did you move address and were BC aware of the move ? ( ie was it before default )

Do you recognise the content of the statements ? They seem only to be statements after default ? What happened between 2007 default and assignment in 2013 ? We're you making payments at all ? And when was the original account opened ?
Has this fallen off your credit file already ?

How much approx is the claim ?

[Ruth90]

Is it a debt collection agent who is bringing the claim against you?

[candle30]

COURT date is next week!

A huge thank you to all who have responded so far it is much appreciated. I would be very grateful for any further help and advice with this matter.

Since my last post I made an appointment with a local solicitor who advised me to agree to mediation. Time has not been on my side and after a short period of illness I now find myself in this horrid situation.

Here are a few answers to questions asked previously - Claim is for 4k which includes some costs. Default 2007 was whilst I was at previous address and some payments were being made after that time. Assignment was dated 2017 but move was in 2014 so i didn't receive it. I don't think the recon terms are dated? i don't know if still on credit file. Unsure when account opened.

A quick update of what has happened so far. I completed the directions form agreeing to mediation. I was then offered a mediation appointment date so i called to arrange however the only one hour time slot that they had left that day was one i could not be available for. I was told that no other appointments were available and that it would be referred back to the court and that a notice had been put on to inform them that i did want to mediate but that the appointment offered was unsuitable. I was assured that the court would re refer it back to mediation and another appointment would be offered so I waited. The next letter I received was from the court informing me of the court date. i telephoned the court to ask about mediation they told me to call the mediation team which i did and they said i had to wait for court to refer. Then i received a letter from claimant solicitor informing me that they would be attending court and asking for judgement for amount claimed plus costs. Along with the covering letter there were duplicate copies of the documents sent previously and witness statement from solicitor that will be used in court. They asked me to send my documents that I intend to rely on in court but I do not have any other documents other than the defence that has already been submitted. My defence was based on the fact that they had not sent any documentation from CCA and CPR requests but obviously since i submitted my defence they sent a whole range of paperwork (please see my previous post # 9 for details) CCA seems to be BC terms and conditions with my name and previous address at the beginning but no signature.

I really wanted mediation so that all this could have been avoided. I am truly dreading next week.

Should I try to call them to make them an offer to settle out of court or is it too late as they have already paid the court fee? What is likely to happen at court?

Do you have any advice? Please help!

Thank you.

[Amethyst]

On the letter giving you the hearing date and date by which to pay the hearing fee there was a date by which to exchange documents and, importantly, witness statements- usually around 14 days before the hearing... I would assume the claimant has made that date but you've missed it which sadly won't go in your favour at court.

It does sound like your defence may have fallen away with their provision of documents. The debt isn't statute barred and they have provided the agreement, and statements, and basically you can now see what the debt is, how it was calculated and agree that it is a genuine debt.

Yes mediation would have been sensible, the court didn't manage to make it happen. But you can of course negotiate settlement with the claimant directly.

If you need to avoid the CCJ (and hearing costs) you should try get a settlement agreement under a consent order ( Tomlin order - which keeps the claim in hold in court with no judgment against you unless you breach the agreement ) - but whether they'll agree to that at this stage really depends on what you can offer ( thus on what your financial circumstances are) - they might be open to s full and final one off settlement (?likely to have to be over 70%) or installments over 24 months- otherwise they may prefer just to secure it with a ccj so they have the option of enforcement

Otherwise to proceed with defending the claim you'd need to apply to court for permission to amend your defence. You might have an argument with the default notice being from Mercers and the agreement possibly not being correct or complete ( this continued non compliance with the CCA Request) but not easy things to argue as they're technical arguments and evidentially they seem to have everything.

When did you open the account with Barclaycard originally ? Can you do a pic of the agreement they have sent ?

Do those statements show when your last payment was actually made ? Sounds like 2013 if that's when transactions lists run to in which case yes stat barred isn't open to argue.

Did your solicitor not say anything about what happened if mediation failed etc ?

[candle30]

Thank you for your reply Amethyst it is much appreciated.

The solicitor wasn't very helpful really but said to try for mediation and if not just wait till nearer the court date and see if they actually go ahead. Yes, you are right, stat barred isn't an option. I didn't send any witness statement and the claimant did. I obviously didn't read the letter properly. You are right the defence fell apart once they had sent the documents but I had already put in my defence to the court and didn't know what to do next, I was just hoping that mediation would sort it out, its a complete mess and very stressful.

Do i telepnone the claimant solicitor or the claimant themselves to ask for settlement agreement or propose a full and final settlement?
If they don't agree to a settlement and i go to court, if I am in a position to offer full payment on the day will they still give a CCJ?

Thank you

[Amethyst]

If you get into a position to be able to pay the claim in full before the court date you can just contact them to make the payment and the claim would be withdrawn. If you pay within 28 days of the judgment being made then you would have a CCJ but it wouldn't be registered for the 6 years. Only if you don't pay the full amount within 28 days from Judgment does it hit the register of judgments and your credit file for 6 years.

If you want to settle before court, maybe by an affordable installment arrangement, you would need to contact the claimant directly now, and ask to do that under a Tomlin/Consent order - which means the claim stays on hold while you stick to the arrangement....however if you miss a payment they could still ask the court for judgment. You could contact them to say you were disappointed that Mediation wasn't able to go ahead due to the court not having dates available, would it be possible to have a 'without prejudice conversation' with them about settlement now, as they appear to have provided the documents you required and you'd prefer to sort out payment than expend time and costs on going through the court process.

On the continuing with the defence and hearing side of things, I'm sure you know that a signature isn't required for compliance with the CCA request, so it would only be evidential purposes if you disputed the agreement ever was entered into ( eg in case it was an ID fraud or mistaken identity etc ) but you seem to accept the debt was incurred and is due for payment and your only defence, really, was technical, which seems to have been quashed by their provision of the documents. Just proceeding with the hearing now, because you might not be able to pay until then, could end up with further costs being added to the debt, so you really are better to sort out something now to avoid the amount going up and possibly avoid getting the CCJ awarded against you at all.