CLAIM STRUCK OUT !!!! Need help with a court claim please

[mystery1]

Re: Need help with a court claim please

Ok thanks M1 I shall do that.


okay so here is a copy of my draft order for directions, could someone please check it is k as i have borrowed someone elses and edited to suit my particular claim.

6^th December 2013

In the Northampton County Court
Claim number: XXXX

MKDP LLP (Claimant) V’s ME (Defendant)

Draft Order for Directions

The Claimant shall within 7/14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
• Copies of any statement or other document relied upon · Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularized in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

Draft Order for Directions

The Claimant shall within 7/14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which the claimant seeks to rely upon
• Default Notice
• Copies of any statement or other document relied upon · Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularized in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order and the claimant will pay the defendant costs.




For 31.14 requests it matters not whether a document complies with the consumer credit act. If it doesn't they are in trouble when you defend but not for the stage you are at.

M1

[mysticphoenix666]

Re: Need help with a court claim please

Ok thanks M1 I shall do that.


okay so here is a copy of my draft order for directions, could someone please check it is k as i have borrowed someone elses and edited to suit my particular claim.

6^th December 2013

In the Northampton County Court
Claim number: XXXX

MKDP LLP (Claimant) V’s ME (Defendant)

Draft Order for Directions

The Claimant shall within 7/14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
• Copies of any statement or other document relied upon · Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularized in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[mystery1]

Re: Need help with a court claim please

"On each of my telephone calls i have asked when the documents i have requested would arrive and the Claimant's representative stated that they did not have the documents and they would need to wait until the original creditor sends them through and then they would pass them onto myself, which could take 6-8 weeks. This in itself is a disregard of claim procedures as they clearly did not have sight of any documents mentioned in the particulars of claim to be able to bring this claim in the first instance."


For a witness statement you need to log every call individually.

To make the point you are trying to make regarding no sight of the documents you should tag this on to the call where they said it would take 6-8 weeks.

Something like - i then wondered how xxx could sign a statement of truth on the particulars of claim, clearly without sight of the documents including the agreement, with an honest belief in their truth.

M1

[mysticphoenix666]

Re: Need help with a court claim please

any thoughts on my last post or should i just forget that bit all together and go with what i have?

[mysticphoenix666]

Re: Need help with a court claim please

okay thank you M1 and Amethyst.

so back to my witness statement in regards to the non compliance should i put in a separate point that says:

"On each of my telephone calls i have asked when the documents i have requested would arrive and the Claimant's representative stated that they did not have the documents and they would need to wait until the original creditor sends them through and then they would pass them onto myself, which could take 6-8 weeks. This in itself is a disregard of claim procedures as they clearly did not have sight of any documents mentioned in the particulars of claim to be able to bring this claim in the first instance."

thank you for your assistance so far

[mystery1]

Re: Need help with a court claim please

So basically just cause they stated it in an email does not mean anything as i have not written to them and said i agree to it and i have definately not signed anything to say i agree to it as i didn't know what it was until now.

so just ignore it

I would.

M1

[mysticphoenix666]

Re: Need help with a court claim please

So basically just cause they stated it in an email does not mean anything as i have not written to them and said i agree to it and i have definately not signed anything to say i agree to it as i didn't know what it was until now.

so just ignore it

[Amethyst]

Re: Need help with a court claim please

Ok. Just found this regarding 2.11 which is good.

The Court of Appeal has decided this means that such extensions of time must be agreed either in a single document, signed by both parties, or in an exchange of letters. They explicitly stated that it is not sufficient simply for one party to confirm in writing what was agreed in an earlier conversation.


Written agreement

They then considered what was required for a "written agreement of the parties" under r.2.11 and decided that this meant either:

• a single document signed by both parties; or

• an exchange of letters in which the extension of time is agreed.

It did not include:

• an oral agreement recorded in writing in the respective solicitors' files; or

• a letter by only one party to the other confirming an oral agreement.


- See more at: http://www.osborneclarke.com/connect....XE7MMb3Y.dpuf

[mystery1]

Re: Need help with a court claim please

Just wondering if the application for the order is successful whether we'll have another application for relief from sanctions as per Wally's case, particularly as they have informed in advance as there will be a delay, and if so would that have any cost applications ?

I don';t think in Wally's case he was pre notified of the delay ?

If the 6-8 weeks wasn't agreed with, didn't go to the court, and bearing in mind the court claim shouldn't have been bought without sight of the documents anyway, and there's no costs implications, then yes go with the appl.

Perhaps. The Jackson reforms could be a big hurdle for them though. I'm sure PT posted somewhere once about "parking" a claim and that Halsbury and/or the white book gave reference that this was an unacceptable practice.

Costs are always a risk. The application is made on the basis the claim is not allocated to small claims yet. If a judge rules 31.14 does not apply because the claim will be small claims he can't very well turn around and say but you owe full costs as well. Case law dictates disclosure should be made if 31.14 applies and with Mitchell etc there should be no relief from sanctions if the order is granted and not complied with.

M1

[Amethyst]

Re: Need help with a court claim please

Just wondering if the application for the order is successful whether we'll have another application for relief from sanctions as per Wally's case, particularly as they have informed in advance as there will be a delay, and if so would that have any cost applications ?

I don';t think in Wally's case he was pre notified of the delay ?

If the 6-8 weeks wasn't agreed with, didn't go to the court, and bearing in mind the court claim shouldnt have been bought without sight of the documents anyway, and there's no costs implications, then yes go with the appl.

[mysticphoenix666]

Re: Need help with a court claim please

'' "As this is likely to be beyond the 28 day extension referred to in CPR 15.5 we consent to you filing your defence 14 days after we have sent you the said documents pursuant to CPR 2.11."''

And you sent that to the court. Not entirely sure why you are applying for an order in that case as they have consented to not enter default judgment etc until 14 days after they have sent the documents. Or are you just trying to push them into supplying the documents. I think you would be wise waiting the 8 weeks from when they gave you that timescale before applying.

CPR 2.11

Time limits may be varied by parties
2.11

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

i didn't send that email to the court i sent the one where they had specified a 28 day extension and a date, i didn't know what that meant i just spotted it when i was checking my emails in regards to the witness statement.

[mystery1]

Re: Need help with a court claim please

Thank you for all the replies,

i am still not sure whether to include that part. as per the email from them pasted in post 54 they stated
"As this is likely to be beyond the 28 day extension referred to in CPR 15.5 we consent to you filing your defence 14 days after we have sent you the said documents pursuant to CPR 2.11."

what is CPR 2.11 that they are referring to?

and will the judge not see the fact that they are fobbing me off with no intention to supply in time from their reply?

sorry if i am being a nuisance

http://www.justice.gov.uk/courts/pro...es/part02#2.11

Time limits may be varied by parties
2.11
Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.


(Rules 3.8 (sanctions have effect unless defaulting party obtains relief), 28.4 (variation of case management timetable – fast track) and 29.5 (variation of case management timetable – multi-track), provide for time limits that cannot be varied by agreement between the parties)



The email didn't state a date so is pretty irrelevant as far as that goes and you didn't consent so that screws them too.

M1

[Amethyst]

Re: Need help with a court claim please

'' "As this is likely to be beyond the 28 day extension referred to in CPR 15.5 we consent to you filing your defence 14 days after we have sent you the said documents pursuant to CPR 2.11."''

And you sent that to the court. Not entirely sure why you are applying for an order in that case as they have consented to not enter default judgment etc until 14 days after they have sent the documents. Or are you just trying to push them into supplying the documents. I think you would be wise waiting the 8 weeks from when they gave you that timescale before applying.

CPR 2.11

Time limits may be varied by parties
2.11

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

[mysticphoenix666]

Re: Need help with a court claim please

Thank you for all the replies,

i am still not sure whether to include that part. as per the email from them pasted in post 54 they stated
"As this is likely to be beyond the 28 day extension referred to in CPR 15.5 we consent to you filing your defence 14 days after we have sent you the said documents pursuant to CPR 2.11."

what is CPR 2.11 that they are referring to?

and will the judge not see the fact that they are fobbing me off with no intention to supply in time from their reply?

sorry if i am being a nuisance

[mystery1]

Re: Need help with a court claim please

Why do i take out ref's to CCA as they have not complied with that either?

Because that is a request under the consumer credit act s78. Also you really don't want them to comply with it as then they cannot enforce the agreement.

This application is under the Civil Procedure Rules as was your 31.14 request.

M1