Akiv Kapital Portfolio AS V Zaggacom

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

Thanks I have written to them asking for a formal reply in writing that they agree to extend the defence filing, for 14 after they have supplied me with their documents. I await their reply.

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

I have received a response, from the Solicitors, they advise they cannot give an exact date when they can supply the documents and the matter is with the original lender and their client (Aktiv Kapital).

They advise that "Until they are in a position to serve supporting documentation on you we will not enter judgement and we agree to extend the time for filing your defence accordingly. However, as explained above we cannot give you a date as to when this will be.

We think it would be best practice not to write to the Court until we are able to fix a date by which we are willing to extend the filing of your defence".

What do I do now, as i am worried that if I do not advise the court they can just go ahead and get a judgement if I do not put in a defence, regardless of what they are saying.

Is there anything I can do, as it seems they are just doing what they want, it could take months for them to get the documents, as there is no time limit on it, need some advice please.

[mystery1]

Re: Akiv Kapital Portfolio AS V Zaggacom

Well, assuming you have filed acknowledgement of service, the current date by which you are supposed to file a defence is 4/5/14. If you have not filed AoS then do it now.

I would get back to them 1 last time and explain the practicalities of the situation.

1. You have served a claim. The last date for me to serve a defence in response is 4/5/14.
2. CPR 31.14 allows me to ask for inspection of documents. Cpr 31.15 says you have 7 days to allow inspection. You have failed in your CPR duties.
3. I have asked you for an extension pursuant to cpr 15.5 which we are entitled to agree between us, the maximum we can extend to is 1/6/14 under the rules.
4. You have so far refused to agree this date because you have no idea when you can comply with 31.15. This has no relevance to an extension under CPR 15.5 as you have already exceeded the maximum permitted time for supplying the inspection as laid down in CPR 31.15. I am trying to be reasonable in seeking an extension for the time to file my defence with which i'd offer you extra time to comply with inspection even although CPR does not allow for this nor for what you propose.
5. Should you consider your unreasonable stance in refusing an extension of time until 1/6/14 i will have no choice but to apply to the court for compliance at a much earlier time than i would had you granted an extension, certainly 8/9 days before 4/5/14, in order to protect my position. I will, of course, bring your behaviour to the attention of the court in doing so.

M1

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

Thanks I will write to them now

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

I have emailed them as per your response and have now received a reply, they seem to be sticking with the "we dont have to comply with my cpr request because it will be going to the small claims court" tack. I have pasted their full reply below.

Thank you for your letter dated 14^th April 2014 and below email, the contents of both we have noted.

You state in your letter that you disagree with our statement that it is very likely the case will be allocated to the small claims track. We acknowledge that, at present, the case has not been allocated to the small claims track, but we would welcome your reasons as to why you feel it will not be allocated to the small claims track in the future.

We would refer you to CPR Part 26.6 (3) which states that subject to paragraph (1) “the small claims track is the normal track for any claim which has a value of not more than £10,000”. Furthermore, CPR 26.7 (1) states that in considering whether to allocate a claim to the normal track for that claim under Part 26.6, the Court will have regard to the matters mentioned in Part 26.8 (1). We would welcome you to peruse the matters mentioned in Part 26.8 (1). None of these are sufficiently relevant to this matter to suggest the case would need to be allocated to any track other than the small claims track.

In accordance with the overriding objective in CPR Part 1.1, both parties have a duty to deal with this matter expeditiously and fairly. In any simple small claims matter (which this one inevitably will be) the more demanding requirements for disclosure in CPR Part 31 are considered disproportionate. In a small claims matter it is sufficient for the documents on which a party intends to rely to be served at any time prior to a final hearing.

We would also make the point that your request for documents could have been made prior to these proceedings – you have had ample opportunity prior to the issue of our client’s claim to request documents, not least when our Letter Before Action was sent to you.

You have said that we are not complying with our obligations under CPR Part 31 but as we are attempting to explain to you, we have no such obligations due to the fact that we are confident that the case will be allocated to the small claims track.

We look forward to receiving your defence in due course. "

What should i do now, should I write to the Court to advise them, or do i wait till 1/6/14 them if they havent sent the docs, I can do something at the court, or do i write back to the sols with further argument?

[mystery1]

Re: Akiv Kapital Portfolio AS V Zaggacom

Dear Kermit & pals,

Thank you for your email of 16/4/14 the contents of which are noted.

For clarity i do not disagree with your view that this case will likely end up as a small claim. However at present it is not. I draw your attention to cpr 27.1 1 (a) which confirms that 27.2 exclusions do not apply until after allocation has taken place in line with cpr 26.

27.1
(1) This Part –
(a) sets out the special procedure for dealing with claims which have been allocated to the small claims track under Part 26


Therefore the exclusions in cpr 27.2 do not apply.

None of the factors that predetermine the allocation process have been met CPR 26.5.

CPR 1.1 is very much applicable. As you point out i could have asked for the documents under the pre action protocols but your letter before action was defective and i didn't know to do so. However if they would have been available as you imply then i do not see why you cannot provide them now as it is neither fair nor expeditious to withhold them from me so i can prepare for trial.

Given you are being obstructive to justice and will not allow an extension whilst you obtain documents which you say were available before the claim and you'll need them for trial i must contend that you are in default of your CPR 1.3 duties.

As previously stated if you wish to take this stance i will have no choice to apply to the courts and will be seeking the costs of doing so.

Yours etc

M1

[ncf355]

Re: Akiv Kapital Portfolio AS V Zaggacom

Nice work there M1, hit 'em where it hurts!

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

I have received an email response, from the Sols, the contents are pasted below, not sure what to do now, do I just post a defence as they advise, or do I notify the court with an N244 form, any advise welcomed.


"Thank you for your email, the contents of which are noted.


Even if CPR Part 27.2 did not apply to this scenario, a request made pursuant to CPR Part 31.14 is limited to documents referred to in a statement of case. We have not referred to the documents you have requested in our statement of case and therefore we are not bound by CPR Part 31.14 to provide you with these documents.


As previously stated, we will endeavour to provide you with all the relevant documents relating to this case in due course.


Having considered the matter further, we feel there is nothing preventing you from filing a defence at present. We would suggest that you obtain your own independent legal advice with how to take this matter forward but we would suggest that a defence could be that you have not, as yet, been provided with certain documents. Of course, if you are provided with such documents at a later date and you still wished to contest the matter you would be entitled to apply to the Court to amend your defence.


WITHOUT PREJUDICE SAVE AS TO COSTS


We note that you have still not responded to our counter-offer of £4,000.00 in full and final settlement of this matter. We would ask that you give this offer some consideration and respond to us within the next 14 days on whether you are willing to accept this offer and resolve this matter without the need for further Court proceedings. "

[ncf355]

Re: Akiv Kapital Portfolio AS V Zaggacom

Think I'll leave this one to Mystery1 to reply

[mystery1]

Re: Akiv Kapital Portfolio AS V Zaggacom

Dear Knuckleheads,

I write in reply to your email of xxxx, the contents of which are noted.

The particulars of claim to which you refer stated " MBNA Platinum Plus 5,400.00 Account Number XXXXXXXXXXXXXXXX" this is pretty clearly "the agreement". However if you state that you have not referred to the agreement at all then what is your cause of action ? CPR 16 is pretty clear as to what is required to be included. I note that of the 1080 available characters in a statement of case you have ample remaining space in which you could have eluded to a more concise statement of the nature of the claim.

If you feel you have not disclosed "the agreement" then i ask you 2 questions. 1. On what is the foundation of your case ? 2. Will you write to me and tell me that you have not disclosed an agreement in your statement of case in a letter i can show a judge at a summary judgement hearing i.e. not a without prejudice basis ?


On a similar these you state in your statement of case "The Claimant is an Assignee" Either that is a mention of the assignment or once again you have not disclosed a right to sue within the claim. Again will you state this in a manner i can show the judge at a summary judgement hearing ?

I note that indeed there is no mention of a default notice or a contractual termination. Again this leads me to ask, what right to you have to sue for this amount ? Perhaps you ought to replead in a manner consistent with CPR 16 ?

I note that the without prejudice part only applies to the bottom part of your email but i can't exactly cut your email in half to show the judge.

I further note that you say i can apply to amend my defence at a later date but as you well know, or certainly should, this would add costs to the litigation.

I await you answers.

Yours etc

M1

[Streetwise]

Re: Akiv Kapital Portfolio AS V Zaggacom

Dear Knuckleheads,

I write in reply to your email of xxxx, the contents of which are noted.

The particulars of claim to which you refer stated " MBNA Platinum Plus 5,400.00 Account Number XXXXXXXXXXXXXXXX" this is pretty clearly "the agreement". However if you state that you have not referred to the agreement at all then what is your cause of action ? CPR 16 is pretty clear as to what is required to be included. I note that of the 1080 available characters in a statement of case you have ample remaining space in which you could have eluded to a more concise statement of the nature of the claim.

If you feel you have not disclosed "the agreement" then i ask you 2 questions. 1. On what is the foundation of your case ? 2. Will you write to me and tell me that you have not disclosed an agreement in your statement of case in a letter i can show a judge at a summary judgement hearing i.e. not a without prejudice basis ?


On a similar these you state in your statement of case "The Claimant is an Assignee" Either that is a mention of the assignment or once again you have not disclosed a right to sue within the claim. Again will you state this in a manner i can show the judge at a summary judgement hearing ?

I note that indeed there is no mention of a default notice or a contractual termination. Again this leads me to ask, what right to you have to sue for this amount ? Perhaps you ought to replead in a manner consistent with CPR 16 ?

I note that the without prejudice part only applies to the bottom part of your email but i can't exactly cut your email in half to show the judge.

I further note that you say i can apply to amend my defence at a later date but as you well know, or certainly should, this would add costs to the litigation.

I await you answers.

Yours etc

M1

Don't mince your words M1,do you.:tinysmile_grin_t:

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

Thanks for that, I will email them

[ncf355]

Re: Akiv Kapital Portfolio AS V Zaggacom

Hmmm

Certainly gives food for thought on my own case, I could use that pretty much verbatim

[zaggacom]

Re: Akiv Kapital Portfolio AS V Zaggacom

have you got a link to your thread, is it similar to mine?

[ncf355]

Re: Akiv Kapital Portfolio AS V Zaggacom

Not really as mines Overdraft related but in VIP

The bit I meant was the failure to properly particularise the claim