Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

[samsmoot]

Hi all.

I'm wondering if someone would be interested in looking into civil procedure and how it relates to water debt. There is a specific court claim at hand and I mainly want to concentrate on how the claim was issued and whether or not it was issued correctly. I'll just throw a few things out to start with, to see if there is any interest, and I can elaborate as we go along.

Unfortunately I do not at the moment have a copy of the Claim, so not sure what the 'Brief Details of Claim' say, but here's the Particulars:

***.** IS DUE FROM THE DEFENDANT TO THE CLAIMANT FOR WATER SERVICE CHARGES AND ANY OTHER CHARGES INCURRED RELATING TO SUCH, AT: ***** FOR PERIOD TO 31/03/2015, FULL PARTICULARS OF WHICH HAVE BEEN SUPPLIED TO THE DEFENDANT.

I suppose it would be easier if I list a few questions I have regarding these Particulars:

1. Does there need to be a sufficient Cause of Action?

2. Does the Claim contain such?

3. Should the Claim not state that there was a 'legal wrong'?

4. Does it?

5. Would such a Claim need to fall under either a breach of contract claim or a damages claim (tort)? Would 'Unjust Enrichment' be applicable?

6. Assuming it's not a contract issue, then does there need to be stated on the Claim a 'Head of Claim'?

7. Has such been stated?

8. Assuming that financial loss has to be shown, has the water company actually lost any money? (If, as is apparently the case, the water company's profits are set at a certain amount, will not any failure by an individual to pay their water charges result in no alteration in the amount of money in the pocket of the water company?)

I'm just wondering if all of the elements required to prove a legal claim are there. There are a number of other issues involved, so it's not as if the Defendant is relying on this form of argument for their Defence, but an application to strike out the claim may be made if it's not legally sound - so is it?

[Amethyst]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

''FULL PARTICULARS OF WHICH HAVE BEEN SUPPLIED TO THE DEFENDANT.''

Have full particulars been supplied to the Defendant ?

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Hi Amethyst.

Yes, they have, as stated, supplied full particulars of the charges.

[Amethyst]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Okay, and do you agree with the claim? ie. has the water bill been charged correctly and remain unpaid ?

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Okay, and do you agree with the claim? ie. has the water bill been charged correctly and remain unpaid ?

Obviously don't agree with the claim, as they don't appear to give any reason why they think there is liability. The water bill has not been charged correctly as advance charges up to March 2015 are being sought - and the defendant correctly (in my opinion) refuses point blank to pay these charges.

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Bills for unmeasured water charges, which they will be in your case, are payable on demand, so for the whole billing year of 01 Apr to 31 Mar, with the right to make either monthly or 6 monthly payments a concession similar to council tax which is also payable in full upon the receipt of the bill.

Charges are raised pursuant to the Water Industry Act 1991 (s) 142, 143 and 144 which allows the water companies to raise a charges scheme and the right to demand full payment will be part of this.

Liability for the water charges lies with the occupier of the property so if you live there you are liable and benefitting from the service.

There is no contract as water charges are payable by statute again pursuant to the Act.

If you are defending a claim based on advance charges this will most certainly fail as the legislation supports the water companies position and cause of action if you have not paid in full or made/stuck to an arrangement to settle monthly/six monthly.

I would suggest you try and settle this before a hearing is listed where you will incur further costs, albeit limited ones, and end up with a judgment against you...

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Thanks for your input, Kjun.

It's not my Claim to settle, but that's not going to happen anyway. This is no way the fault of the Defendant and in every way the fault of the water company due to their failure to follow pre-action protocol (another basis for seeking to have the claim struck out), to adhere to OFWATS' guidelines and to tell the truth to those entitled to know it.

As stated, I am looking for clarification on whether or not all of the elements required to prove a Claim are contained in the Particulars of Claim. If they are not included, which I believe to be the case, then an Application can be made for striking out. This would be the most effective way to Defend the Claim at the moment, the point being that even if a Defence had no merit whatsoever the Claim Form must first state a Cause of Action sufficient to show a legal basis for that Claim, and if it doesn't it won't succeed.

As no hearing date has yet been set an Application for Striking Out will pre-empt or delay a hearing if it's sent off quickly enough. I'll probably start getting on with that tomorrow - should be straightforward enough.

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Well based on the advance payment there is no Defence and presumably the water company will be able to evidence the bills sent to you and the Letter Before Action so CPR will have been followed.

As for not paying not affecting profits of said company not sure where you have come up with that and by doing so you are in fact causing increases in the bills of people who actually do pay their bills.

As for getting the claim struck out I think you have 0% chance so good luck with that...

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

As for not paying not affecting profits of said company not sure where you have come up with that and by doing so you are in fact causing increases in the bills of people who actually do pay their bills.

If that is true (I think it is) then the water company can't show that they have lost money, and hence have no claim.

I have seen mentioned that profits are set - will investigate more if necessary.

The Defence is not based on advance charges, but on the factors mentioned in Post #7. The advance charges will be disputed if it goes to a hearing. I honestly see no legal basis for a claim for unused services.

Yes, they can charge, yes they can recover, but nowhere is there compulsion on the consumer - other than under what can be proven via civil procedure.

If you look at the Irish Water Services Act you will see that a method of recovery is specified - unpaid water charges shall be recoverable as a simple contract debt.

http://www.irishstatutebook.ie/2013/...int.html#sec21

This give rise to the question: how are unpaid water charges recoverable in an English court of law? It doesn't say. But the water company do have to say - i.e state the legal basis of their claim. They haven't, and this is why I believe the Application may succeed.

Doesn't matter anyway - costs nothing but time and effort and it's a way to win amongst many.

[wales01man]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

CT is payable in advance or with an agreed instalment plan if this is not keep they go to Court for the whole balance

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

CT is payable in advance or with an agreed instalment plan if this is not keep they go to Court for the whole balance

Hi wales.

What you say is true but there is a big difference between non-payment of CT and non-payment of water charges.

There are specific remedies and penalties which can be sought for non-payment of CT, and the Magistrates' Court may ultimately throw you in prison if you don' pay. There is apparently no specific legal remedy or penalty for non-payment of water rates - and no imprisonable offence committed if you still refuse to pay. Unlike having no TV licence or Road Tax - or CT. It's a civil matter with no criminal penalties involved.

On the recoverability of advance charges I have seen no evidence that they have been ordered by a County Court where they have been objected to, but I do have anecdotal evidence that they have been denied. On top of that, many years ago I objected to paying any advance charges so my water company sent me a letter before action for the outstanding amount. I simply paid up to the current date and denied liability for the rest - told them I'd be more than happy to fight it out in court. The reply I got was from a senior manager who explained that as I was confused about the situation I would be allowed to pay monthly. To my mind this is not the action of a person convinced that their employer had a reasonable prospect of succeeding in obtaining money from me in court for services not yet provided.

The fact of the matter is that you can either roll over and take a beating or you can stand up for yourself and turn it around. Thanks to the general fairness and ease of use of our County Court system this happens on a regular enough basis for it to be worth investing time in civil procedure, and the payoffs can be relatively major.

As an aside, and as CT was mentioned, I recently helped get a £310 CT Liability Order cancelled and the Council ended up paying compensation of £350 - even though the CT was actually owed. This was mainly due to sloppy handling of the situation by the Council, and this ties in with the above - the water company have been sloppy, not only in the words used on their Claim Form, but in their other actions also. Their various failures can and will be a basis for defending the Claim.

[wales01man]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

A court will decide if this is a legit claim seems to be the case that Utilities and councils win most of the time you have won agianst a Council most people don't when they challenge them in court.
hopefully the outcome is what you want but I must say the legal system seems to support the Companies and LAs nearly every time.

[nemesis45]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Just checked my water services bill.
I states that the unmetered supply charges become due in full when the account is raised at the start of the financial year (3rd April) and any payment scheme is discretionary and if the payments cease or are repeatedly late the whole balance becomes payable immediately.

[Kjun]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Profits for water companies are not set by anyone as these are private companies of varying sizes and if that was the case what happens if they make a loss do they then send all of us an amended bill to make up the shortfall (no is the answer to that)

I have over 10 years experience working in the legal services of a water company (which will remain un-named) and have attended many hearings where the Defence to the claim is the notion of advance charges and not one has been accepted by a DJ for the reasons in my earlier posts where legislation supports the water company.

Any hearing will be a short one and more costly for you as the water company will state its position, the legislation that supports it and that you are the occupier of the property then the judge will ask you if you occupy the property and when you confirm yes that will be about that.

Your argument regarding advance charges will be contained in the Charge Scheme which is supported by the legislation and that will be enough for the DJ so I really would suggest you settle this before it gets any where near that point and an offer of the outstanding charges plus the court issue fee would probably be accepted as trust me you will not win this at a hearing.

Have you either not made payment or defaulted on an arrangement as this would be the only reason a claim would be issued as this is the only recourse due to being unable to disconnect domestic premises or those with a domestic element.

Of course there is a loss for the company as they are supplying firstly a resource to you that you which is the water, using an infrastructure that costs a ton of money to maintain and secondly you do not remove your own wastewater....

You could have a septic tank fitted then ask to be disconnected and then of course you will have no more water bills....

[samsmoot]

Re: Has This Claim Been Correctly Issued? Are Water Charges Enforceable Anyway?

Thanks for your advice, Kjun, appreciate it.

Can you tell me the legal basis under which these claims have been heard? Did the water company allege breach of contract? If not, what exactly was the head of claim? There has to be one, as far as I can tell. Without a specific cause of action being stated on the Claim Form there is no legal claim, is that not correct?

Also, have you come across any Claim which has been subject to a striking out application due to an insufficient cause of action being stated? If so, how did it go?