Claimant threatening summary judgement on stayed ccj claim. Should I reply?

[jaguarsuk]

Okay, I have sorted the formatting out here and also add/cleaned up some bits.

1. I <<YOU>> of <<YOUR ADDRESSS>> am the defendant in these proceedings as Litigant in Person.
2. On <<DATE>> the claimant issued a claim through money claim online and the particulars of claim were insufficient to allow me to properly asses my position.
3. I made a request under CPR 31.14 to inspect the documents mentioned in the Particulars of Claim served as a well as a request for documentation under the Consumer Credit Act 1974.
4. The claimant failed comply with either request and I filed a defence as such within the deadline of the court.
5. The claim was subsequently stayed.
6. On filing of this application the claimant has now served some documentation, but in my opinion this falls far short of their requirement in these proceedings.
7. I disagree with multiple points in the claimants witness statement and will now address those individual points using their numbered paragraphs from their witness statement.
8. Paragraph 4 is denied,
   1. The claimant claims issue of a letter on 10/09/2014 entitled "0013 COLLTRS" marked NY02 to be issue of the default notice, but without a copy of "0013 COLLTRS" we only have the word of claimants counsel it was a default notice.
   2. For the avoidance of doubt it is denied the letter in NY02 is for a default notice, but if it were the case the screenshot showed the issue date of a default notice it does not show the default notice was compliant with the Consumer Credit Act 1974.
   3. If a default notice was issued, it should have been issued by New Day Limited ('New Day'), however the illegibility of NY02 makes it impossible to determine whom sent "0013 COLLTRS."
   4. I assert that the issue of "0013 COLLTRS" is in fact the issue of a debt collector's letter by Idem Capital Securities Limited ('Idem') and not a default notice by New Day. And in any event the claimant is unable to evidence any default notice compliant with the Consumer Credit Act 1974 was served.
9. Paragraph 5 is denied,
   1. I do not recall receiving any such letters as those marked NY03 or any other notice of assignment.
   2. The claimant has failed to evidence a notice of assignment from New Day of the alleged debt being assigned to Idem.
   3. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them.
   4. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them.
   5. The Law of Property Act 1925 s.136 specifically talks about the assignor's obligations and the claimant has failed to provide any evidence from either assignor. Producing a notice of assignment as final assignee in a chain does not alone satisfy that assignment was lawful as the claimant's counsel asserts and counsel has failed evidence the assignment from New Day as an assignor to Idem, and then further with Idem as an assignor to the claimant.
   6. It is for these reasons I believe the claimant has no right to bring a claim as they cannot prove themselves to be the lawful owners of the alleged debt.
10. Paragraph 13 is denied for the reasons set out in this Witness Statement in point 4 and had the claimant provided documentation at that time I would have been in a position to raise the points 8 and 9 of this witness statement in my defence.
11. Paragraph 15 is denied, Pursuant to CPR 7E 5.2 (2) the claimant had every opportunity to avail me of a detailed Particulars of Claim and in failing to, along with failing to evidence their claim for two years I believe their conduct to have been unreasonable pursuant to CPR 27.14.
12. Paragraph 16 is denied for the reasons set out in paragraph 9 of this Witness Statement and I challenge counsel for the claimant to evidence that Notice of Assignment was "left at the last-known place of abode or business in the United Kingdom" pursuant to the Law of Property Act s.196(3).
13. Paragraph 17 is denied for the reasons set out in paragraph 8 of this Witness Statement.
14. Paragraph 18 is neither admitted or denied, but shows the deliberately unreasonable conduct of the claimant in this claim.
15. Paragraph 19 is fervently denied, for the reasons set out in paragraphs 8 and 9 of this witness statement the claimant has failed to evidence a default notice compliant with the Consumer Credit Act 1974 was ever issued and to provide sufficient evidence to the court of the chain of assignment between New Day, Idem and the Claimant.
16. I respectfully request that the stay on the claim be lifted, that the claim is dismissed and that an order be made that the claimant pay me costs due to their unreasonable conduct in the claim pursuant to CPR 27.14.
17. In the event the stay on the claim is lifted and the court adjudges the matter be heard at trial I respectfully request leave to amend my defence and that the claimant bear the cost of the amendment given their deliberately obstructive stance as highlighted in paragraphs 11 and 14 of this Witness Statement.

To answer your questions...

the case is in court in two weeks time and I dont expect the claimant to have a representative present. But if they do, what should I expect?

I'd be surprised once reading your witness statement that they don't attend. The judge will open with a statement and ask them to explain why they should get summary judgement and then ask you to respond, which is when you rebut their arguments using the points made in this witness statement.

You'll also have the opportunity to bring up points you wish to make, so that's where you bring up para 11, 12 and 14 to try to dent their credibility.

Generally in court address the judge as sir, madam or judge, do not speak until who ever is speaking has finished speaking and whether or not they turn up you will still have to make your points. If they don't turn up it just means they can't argue against them.

As opposed from trying to read from the witness statement it's better to have bullet pointed notes of what the points are:

Default Notice

• Assert letter is not a default notice
• Screenshot does not show who issued the letter
• Assert letter is debt collectors letter from the title
• Screenshot showing issue of letter doesn't mean notice was compliant with CCA 1974 in any event.

Notice of Assignment

• No NOA from New Day as assignor
• No NOA from Idem as assignee
• No NOA from Idem as assignor
• ONLY IF THEY ARE REP: How was the NOA "left" at the last known address? What service was used?
  • (if she says posted she quoted Law of Property Act 1925 section 196 para 3 relating to leaving notice and not paragraph 4 relating to posting, is she sure it was posted?)
• Claimant has failed to evidence they own the alleged debt and are entitled to bring this claim

Issues in Proceedings

• CPR 7E 5.2 (2) allowed them to send detailed particulars of claim
• They could have complied with the CPR31.14 and CCA 1974 requests if they had wanted
• The reason they did not is because they did not have the evidence required to bring and win this claim
• respectfully request consideration of cost for unreasonable conduct relating to CPR 27.14.

Also should I use their relevant documents as also my exhibits?

No, you just reference them by the labels they have given them as I have in the witness statement .

[peterfranks]

....

[peterfranks]

ooops sorry I posted without seeing your earlier post. I will re do it.

thanks again for all your help. I intend to send it to court and claimant tomorrow.

[peterfranks]

One last thought Jaguarsuk,

is claiming considerable cost for unreasonable conduct really necessary? How much should it be? Surely that threat would force the claimant to send a rep where they otherwise might not have bothered?

[jaguarsuk]

One last thought Jaguarsuk,

is claiming considerable cost for unreasonable conduct really necessary? How much should it be? Surely that threat would force the claimant to send a rep where they otherwise might not have bothered?

Costs are very limited, so you won't get considerable costs. £19/hr for any work you have done on it, plus costs for postage, parking at court and if you have to take a day off work unpaid your days pay.

Chances of the judge awarding costs are very slim, but it allows you in your letter serving them to invite them to file a Notice of discontinuance and should they, offer that you will not pursue their client for costs. Essentially you're making them think about how much they actually want to go ahead with this now.

If they do not discontinue compile a table of costs incurred, 3 days before the hearing send it to them and to the court.

Send the witness statement to the court now if you like, but don't send it to them until the last day before you are required, turn the screws as much as possible at this stage. It's due to them 7 days before the hearing, so post it and get a proof of postage 9 days before. Why arm them with more time to try to source documents and/or come up with arguments against what you have raised?

If you have to file a costs schedule it's just you following up on the threat in the letter and giving them something to think about, it keeps the pressure on them right up to the day of the hearing.

Of course this is you claim and if you do not feel comfortable with asking for costs you can edit it out, you have to proceed how you feel is best to give you the best chance of victory not how I would approach it.

[peterfranks]

thanks again Jaguarsuk...... i will give it some thought tonight. Is that 7 working days?

[jaguarsuk]

thanks again Jaguarsuk...... i will give it some thought tonight. Is that 7 working days?

No, Calendar days.

24.5

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgement hearing.

[jaguarsuk]

Sorry more tweaking...

1. I <<YOU>> of <<YOUR ADDRESS>> am the defendant in these proceedings as Litigant in Person.
2. On <<DATE>> Restons Solicitors Limited acting for the claimant issued a claim through money claim online and the particulars of claim were insufficient to allow me to properly asses my position.
3. I made a request to the claimants solicitor under CPR 31.14 to inspect the documents mentioned in the limited Particulars of Claim as a well as a request for documentation under the Consumer Credit Act 1974 s.77-78 to the claimant.
4. The claimant and their solicitor failed comply with either request, so I filed a defence based on the limited information within the deadline of the court.
5. The claim was subsequently stayed and the claimant dispensed with the services of their solicitor.
6. My reasonable grounds for defending the claim were that the claimant had failed at that time to evidence their claim.
7. On filing of this application the claimant has now served some documentation, but have still failed to evidence their claim and pursuant to CPR 24.2(a)(i) the claimant has no real prospect of succeeding on the claim.
8. I will now address individual points in the claimants witness statement using their numbered paragraphs.
9. Paragraph 4 is denied,
   1. The claimant claims issue of a letter on 10/09/2014 entitled "0013 COLLTRS" marked NY02 to be issue of the default notice, but without a copy of "0013 COLLTRS" we only have the word of claimants counsel it was a default notice.
   2. For the avoidance of doubt it is denied the letter in NY02 is for a default notice, but if it were the case the screenshot showed the issue date of a default notice it does not show the default notice was compliant with the Consumer Credit Act 1974 s.88.
   3. If a default notice was issued, it should have been issued by New Day Limited ('New Day'), however the illegibility of NY02 makes it impossible to determine whom sent "0013 COLLTRS."
   4. I assert that the issue of "0013 COLLTRS" is in fact the issue of a debt collector's letter by Idem Capital Securities Limited ('Idem') and no default notice was issued by New Day under the Consumer Credit Act 1974 s.87.
   5. And the claimant is unable to evidence any default notice compliant with the Consumer Credit Act 1974 s.88 was ever served.
10. Paragraph 5 is denied,
    1. I do not recall receiving any such letters as those marked NY03 or any other notice of assignment.
    2. The claimant has failed to evidence a notice of assignment from New Day of the alleged debt being assigned to Idem.
    3. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them from New Day.
    4. The claimant has failed to evidence a notice of assignment from Idem of the alleged debt being assigned to them.
    5. The Law of Property Act 1925 s.136 specifically talks about the assignor's obligations and the claimant has failed to provide any evidence from either assignor. Producing a notice of assignment as final assignee in a chain does not alone satisfy that assignment was lawful as the claimant's counsel asserts and counsel has failed evidence the assignment from New Day as an assignor to Idem, and then further with Idem as an assignor to the claimant.
    6. It is for these reasons I believe the claimant has no right to bring a claim as they cannot prove themselves to be the lawful owners of the alleged debt.
11. Paragraph 13 is denied,
    1. As demonstrated in paragraphs 4 and 6, the lack of evidence to bring the claim was reasonable grounds to defend it.
    2. Had the claimant brought the claim to trial with no evidence to support it the defence had every prospect to succeed on the claim on that basis.
    3. In the light of evidence from the claimant with this application I believe I have demonstrated reasonable grounds to defend the claim and my prospect of success on the claim in paragraphs 9 and 10 of this witness statement.
12. Paragraph 15 is denied, pursuant to CPR 7E 5.2 (2) the claimant and their solicitor had every opportunity to avail me of a detailed Particulars of Claim and in failing to, along with failing to evidence their claim for two years, I believe their conduct to have been unreasonable pursuant to CPR 27.14.
13. Paragraph 16 is denied for the reasons set out in paragraph 10 of this witness statement and I challenge counsel for the claimant to evidence that Notice of Assignment was "left at the last-known place of abode or business in the United Kingdom" pursuant to the Law of Property Act 1925 s.196(3).
14. Paragraph 17 is denied for the reasons set out in paragraph 9 of this Witness Statement.
15. Paragraph 18 is neither admitted or denied, but shows the deliberately unreasonable conduct of the claimant in this claim,
    1. The claimant by admission of counsel was in receipt of a request under the Consumer Credit Act 1974 s.77-78, but chose only to treat it as a request under s.77 to prevent them having to evidence the claim prior to the defence deadline.
    2. It is not for the claimants former solicitor or current counsel to prejudge the case management directions of the court in regards to which track the court may or may not allocate a claim to circumvent Civil Procedure Rules and such behaviour is hardly compatible with CPR 1.3.
    3. In the absence of case management directions from the court there is no allocation to Small Claims Track in this or any other claim and CPR 27.2 (b) did not relieve the claimants solicitor of their Part 31 obligations at the time of the request under CPR 31.14.
16. Paragraph 19 is fervently denied, for the reasons set out in paragraphs 9 and 10 of this witness statement the claimant has failed to evidence a default notice compliant with the Consumer Credit Act 1974 s.88 was ever issued under s.87 and to provide sufficient evidence to the court of the chain of assignment between New Day, Idem and the Claimant under the Law of Property Act 1925 s.136.
17. I respectfully request that the stay on the claim be lifted, that given the time the claimant has had to evidence their claim that the it is dismissed pursuant to CPR 24.2(a)(i) and that an order be made that the claimant pay me costs due to their unreasonable conduct in the claim pursuant to CPR 27.14.
18. In the event the stay on the claim is lifted and the court adjudges the matter be heard at trial I respectfully request leave to amend my defence, that the claimant bear the cost of the amendment given their deliberately obstructive stance as highlighted in paragraphs 12 and 15 of this witness statement.

[peterfranks]

I've decided to accept your advice and will go ahead with the unreasonable conduct costs. What the hell! I will drop off the letter at the court tomorrow, but again at your suggestion wait a few more days til I post it to the claimant so that they get it on the 7th day before the case.

Again I want to thank you for your sterling effort helping me put together my defence in a language that the court understands, and I will of course check back with you after the event with a full match report.

[jaguarsuk]

I've decided to accept your advice and will go ahead with the unreasonable conduct costs. What the hell! I will drop off the letter at the court tomorrow, but again at your suggestion wait a few more days til I post it to the claimant so that they get it on the 7th day before the case.

Again I want to thank you for your sterling effort helping me put together my defence in a language that the court understands, and I will of course check back with you after the event with a full match report.

Don't forget to format it as per the template on the witness statement guide I linked you, include a statement of truth and sign/date it.

As said above, I'm pretty sure you won't get costs awarded to you as they rarely are awarded in small claims, it's more a tactic to fire some shots back at the claimants counsel and wake her up a bit.

Please don't take this the wrong way, but her application is lazy based on the fact she can see you used a template defence so thinks you won't be able to argue back against it and she thinks with that witness statement she can gloss over the cracks in their case ans that the judge will see a pleading off counsel vs a template defence then side with his profession.

This will probably be a bit of a surprise to her.

Make sure you get a proof of postage at the post office, documents sent first class are deemed served two days after even if she tries to claim she didn't get it until the 3rd day after.

[peterfranks]

Yes, I noticed that. I guess it's another of their ways to try and belittle. It's pretty lame though since every letter they send to anyone is a template.

[jaguarsuk]

Yes, I noticed that. I guess it's another of their ways to try and belittle. It's pretty lame though since every letter they send to anyone is a template.

Yep, unfortunately the legal profession does have a tendency to attract people with superiority complexes, not everyone is like it, but some just can't help themselves when faced with Litigants in Person. It's almost like they think, how dare you represent yourself against me who spent all the time I did to qualify and have the audacity to try to defeat me.

[peterfranks]

Court was today and result was judge lifted the stay so its all back to square one.

Jaguarsuk was spot on.....the claimant had a rep present.

So now I wait for the court to send me details of what was decided and next steps. It was all quite confusing. The first 20 mins was all legal jargon about there being no order imposing stay...stay imposed by procedural error??

[jaguarsuk]

Court was today and result was judge lifted the stay so its all back to square one.

Jaguarsuk was spot on.....the claimant had a rep present.

So now I wait for the court to send me details of what was decided and next steps. It was all quite confusing. The first 20 mins was all legal jargon about there being no order imposing stay...stay imposed by procedural error??

The good news is that your defence was not struck out and that the claimant has no obtained a summary judgement against you.

You need to wait for the order from the court to see what that says and what is required of who, when.

We'll go form there when it arrives.

[peterfranks]

Yes, it was certainly not a negative decision...just one that prolongs the agony! Still I am lucky to have Legalbeagals and in particular Jaguarsuk to help me which is not insignificant and gives me - and i hope others - much needed confidence when in the Lions den