Drysden v Me; NCC claim form received

[daddy2cool]

Hi all,

I recently received a NCC claim form raised by Drysden Fairfax on behalf of Lowell Financial regarding an O2 mobile contract. I've sent a CPR 31.14 which I received a response to, but it didn't mention an extension.

Brief timescale:

04/03/13 - Claim form issue date
06/03/13 - Received claim, N1CPC showing POC (attached)
06/03/13 - I filed my AoS online
07/03/13 - I sent a CPR 31.14 Request be recorded delivery (text of letter in post #2)
13/03/13 - I received a text message from them asking me to call
15/03/13 - I called out of curiosity. They asked if I had responded to the claim and I advised I had filed the AoS and sent a request for documents. They said ok and ended the call.
16/03/13 - I received a letter acknowledging receipt of CPR, advising they would revert to client for documents and forward. (attached)

--end--

Given that the CPR requested documents did not arrive within 7 days and no extension was mentioned, would the next step be to send an N244?

I noticed the POC mentions a CCA but I didn't think a mobile phone contract was covered under the CCA? I also noticed the POC was signed by a company rather than a person which I read is not the best thing they could have done (but I don't know why.)

Thanks, Kristian

[daddy2cool]

Re: Drysden v Me; NCC claim form received

cpr response

drydens fairfax solicitors
fairfax house
merrion street
leeds
ls2 8bx


dear sir,

re: Lowell financial ltd v me case no:

Cpr 31.14 request

on 6th march 2013 i received the claim form in this case issued by you out of the nottingham county court.

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 document(s) mentioned in your particulars of claim:

1 the agreement. 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 or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 the assignment.

3 the default notice.

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time i have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of cpr 27(2) are of no effect and you should not seek to avoid compliance with your cpr 31 duties by claiming otherwise.

You should ensure compliance with your cpr 31 duties and ensure that the document(s) i have requested are copied to and received by me within 7 days of receiving this letter. 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(c) i undertake to be responsible for your reasonable copying costs incurred in complying with this cpr 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, i will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

[pt2537]

Re: Drysden v Me; NCC claim form received

cpr response

I would send a letter first placing them on notice of your intention to apply.

Something along the lines of

Dear Sirs

Further to my letter dated ............ i note that you have failed to confirm an agreed extension of time for me to file my Defence.

I need to inspect the documents mentioned in your clients statement of case and i am clearly entitled to do so by virtue of CPR rule 31.14. As you will be aware, rule 31.15 requires documents to be provided within 7 days of the service of such a request.

I understand you cannot provide these documents currently, therefore i am unable to settle my Defence. Unless i receive confirmation by 4pm on 29th March 2013 that an extension of a further 28 days is agreed, and for the avoidance of doubt this would mean my Defence will be due by 4pm on................... then i shall file an N244 application for an order allowing an extension with costs ordered against you client

Regards

[daddy2cool]

Re: Drysden v Me; NCC claim form received

Hi, I have an extension (attached) will I'll forward to the courts.

Regarding their mention of a CCA, what would be the scenario if they turned up at court with a service agreement- could the judge still rule against me?

[Kafka]

Re: Drysden v Me; NCC claim form received

I wonder what they're playing at by saying this is a regulated loan, when its clearly a service agreement? Perhaps its just office incompetence?

Can you describe the processes used for default and assignment (they refer to).

[FlamingParrot]

Re: Drysden v Me; NCC claim form received

There is another thread where Dryden, acting on behalf of Lowell, have also made reference to an agreement regulated under the CCA for a mobile contract on their PoC: http://www.legalbeagles.info/forums/...ht=#post327627

...maybe Dryden have their work experience kid issuing PoCs... :noidea:

[daddy2cool]

Re: Drysden v Me; NCC claim form received

I'm halfway through the 28 day extension and no sign of the documents. What card should I play now? I know the CPR was meant to take 7 days, can I push this?

[daddy2cool]

Re: Drysden v Me; NCC claim form received

this is interesting:
http://www.legalbeagles.info/forums/...583#post294583

[daddy2cool]

Re: Drysden v Me; NCC claim form received

i called this morning and the documents haven't been received. i have 7 days to file. they are going to send me a letter confirming they wont ask for judgement until 2 weeks after the files have been supplied. the files cant be supplied, because there is no cca agreement. i think its time to ask for an order to strike out and/or compelling disclosure. which should i go for and this is the right course of action?

[daddy2cool]

Re: Drysden v Me; NCC claim form received

had a quick read on striking out. found these:

An application for strike out on the ground of non-compliance with or breach of a rule, practice direction or court order will not be granted if other remedies are available, such as costs penalties, payments into court and interest at a penalty rate or conversely, loss of interest. Only in the most serious cases of non-compliance will strike out be suitable.
i guess the other remedy is the claimant can produce the service/hire agreement?

Strike out applications should be made as soon as possible but preferably after commencement of proceedings (PD 23A.2.7)
assuming a strike out, do i make a strike out now or after filing a defence (based on the fact i can't defend due to lack of documents)

[mystery1]

Re: Drysden v Me; NCC claim form received

Make it now. They are trying to take advantage of you.

M1

[daddy2cool]

Re: Drysden v Me; NCC claim form received

strike out or compelling disclosure?

[mystery1]

Re: Drysden v Me; NCC claim form received

If they don't disclose by xx/xx/xxxx then the claim is struck out.

M1

[daddy2cool]

Re: Drysden v Me; NCC claim form received

is the below ok for part 4 the order?
do i need to attach a draft of the order?
do i need a hearing?

thanks!

1 Unless by 4:00pm on 29 April 2013 the Claimant complies with a request made by the Defendant on 7 March 2013 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely, [1] the agreement [2] the default notice [3] the assignment

the claim shall be struck out without further order of the court, and

[ii] the Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve an amended Defence by 4:00pm on 20 May 2013
[i] and
[ii] the Claimant shall pay the Defendant his costs of this application in any event

[daddy2cool]

Re: Drysden v Me; NCC claim form received

i researched other threads to get this, but it looks there's a 1 [i] missing