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

[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.

[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

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

[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

[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

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

[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?

[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

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

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

here is my amended witness statement, hope its okay.

WITNESS STATEMENT OF

ME



1. I ME of xxxxx being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my application for an n244 order that the Claimant do provide me with documents mentioned within the statement of case pursuant to CPR 31.14.

3. On the 4^th November 2013 I sent a request under CPR 31.14 (Exhibit 1), via Royal Mail Recorded Delivery. The letter was recorded as signed for on the 5^th November 2013.

4. I contacted the Claimant by telephone on 21^st November to enquire why they had not complied with my requests under CPR 31.14 and request their agreement to a time extension under CPR 15.5; I have attached their email confirmation of the contents of this telephone call (Exhibit 2).

5. I contacted the Claimant again by telephone on the 22^nd November requesting a specific date for my extension under CPR 15.5 as their previous email was not sufficient, I have attached their email confirmation of the contents of this telephone call which confirms they do not have the documents (Exhibit 3). I then wondered how Sarah Lambert 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.

6. I contacted the Claimant again by telephone on the 25^th November 2013; I have attached their email confirmation of the contents of this telephone call now agreeing to a specific extension date (Exhibit 4).

7. The Claimant has shown clear disregard of CPR 31.14 which clearly states that;
Where a party has a right to inspect a document –
(a) That party must give the party who disclosed the document written notice of his wish to inspect it;
(b) The party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) That party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

8. I also refer to the ruling of Rix LJ in Expandable v Rubin [2008] EWCA Civ 59 (at paragraph 24) “The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.”

9. Suffice to say that without the availability of relevant documents as stated in the particulars of claim for my inspection within the timescales set out in the aforementioned requests, I am unable to defend the claim brought against me by the Claimant in an honest an accurate way.


12. Statement of Truth:

I, ME, the Defendant, believe the facts stated within this Witness Statement to be true.

[mysticphoenix666]

Re: Need help with a court claim please

order of directions:
okay thanks, wasn't sure which bits to take off as i had borrowed it.

the last bullet point i think should actually be two so should i get rid of the first part prior to Notice of assignment.

[mystery1]

Re: Need help with a court claim please

Seems much better to me.

Could do with names if you have them, who you spoke to for the claimant.

M1

[mystery1]

Re: Need help with a court claim please

order of directions:
okay thanks, wasn't sure which bits to take off as i had borrowed it.

the last bullet point i think should actually be two so should i get rid of the first part prior to Notice of assignment.

I would.

M1

[mysticphoenix666]

Re: Need help with a court claim please

yep i have names but unfortunately only first names as they would not give their surnames apparently due to data protection and confidentiality.