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

[samsmoot]

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.

The Council backed down due to a threat of a Claim for damages due to negligence. The Council may have been correct that a County Court wouldn't award compensation under those circumstances, but they also knew that they had done some wrong which they would eventually be made answerable for.

Companies, LAs, government departments: they sometimes win, sometimes lose. They can often be successfully challenged but you have to think outside the box and use whatever tactics seem appropriate. It's not easy for most people to be able to analyse a legal situation and make the right response to it. I've had plenty of practice but most people wouldn't know where to start. And that's why most have to rely on solicitors, advice agencies, regulators, forums etc. If you can forsake all of these resources and do it yourself you can avoid not thinking outside the box and using ineffective tactics.

Did I tell you the one about the solicitor who told me, "You can't make a Part 8 Claim for that!" - 30 seconds after me telling him that I'd just successfully done so? How arrogant and ill-informed was this highly paid 'professional'?

You can't rely on anyone but yourself to have your best interests at heart, and you can usually rock the boat more than any of them can and achieve better or quicker results.

[Kjun]

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

You need to get the contract part out of your head there is no contract, water charges are payable under statute, by benefiting from the supply as occupier of the property you are liable, simple as and The Water Industry Act 1991 (s) 142-144 will clarify this for you.

The cause of action is that you have failed to pay the bill or make an arrangement/defaulted on an arrangement hence the claim and I note you received an LBA from previous post so CPR has been followed.

Being honest now I have never heard of any claim being struck out as you propose to do and I am talking a lot being issued, at one point in the past close on 3000 a month.

I have no vested interest and would give you honest advice if I felt there was a chance of success or the water company had acted incorrectly but in this case if you don't settle before hearing you will incur a hearing fee and possibly attendance costs.

I get you are peeved but some battles are not worth it and this is one of those where settlement is the better part of valour.

[wales01man]

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

To end the Argument this needs to go to Court so we can see the outcome.

[samsmoot]

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

I appreciate that you mean well but I am compelled to respond to some of the points you raise in the interests of clarification of the specific issues.

You need to get the contract part out of your head there is no contract, water charges are payable under statute, by benefiting from the supply as occupier of the property you are liable, simple as and The Water Industry Act 1991 (s) 142-144 will clarify this for you.

I perceive that the legislation does not say water charges are 'payable' under statute. They are payable upon a successful civil claim. Water services can be charged for and they can be collected, for sure, but nowhere in the legislation does it say they must be paid, and neither does it state a method of recovery. This may sound like mere semantic nit-picking but from my experience the precise letter of the law can be quite important.

How, I would be interested to know, do you reconcile Irish Water being legally bound to recover unpaid water charges as a simple contract debt with the English method of recovery - if, as you say, it's not under contract? It seems odd that there should be this difference, given all the other similarities.

Yes, I might be liable as the occupier - but how am I liable to pay? Under what civil procedure is recovery made? If I obtain advice that the particulars of Claim above contain all of the necessary elements required to show a cause of action as required under the CPR - and that it shows a sufficient legal basis to show a right to obtain money - I will go away and reconsider. The Claim appears to state no legal wrong, as far as I can see. If it's not breach of contract, then it would be...what? As far as I can tell there is demonstrably insufficient information in the Claim to form a response - i.e. the legal basis on which the Claim is denied.

The cause of action is that you have failed to pay the bill or make an arrangement/defaulted on an arrangement hence the claim and I note you received an LBA from previous post so CPR has been followed.

They have cited no specific legal wrong, and therefore have no cause of action - as far as I can see from the words they have used. CPR hasn't been followed, even if they did send an LBA. Too much to go into but they acted in bad faith and without attempting to settle the matter in the manner prescribed by OFWAT. That should count for something.

Being honest now I have never heard of any claim being struck out as you propose to do and I am talking a lot being issued, at one point in the past close on 3000 a month.

Fair enough. But as I say, there's little to lose - the Defendant can't pay anyway, so may as well give it a go.

I get you are peeved but some battles are not worth it and this is one of those where settlement is the better part of valour.

As stated, it's not my Claim - and settlement is practically impossible. The Defendant is more than happy to see this through and is fully aware of the potential consequences.


I can see where you are coming from but we should always remember that no matter the rights and wrongs of this or any other legal matter and the apparent legitimacy of this particular Claim, there may have been mistakes made by the Claimant which are capable of nullifying it. I think we all need to be more aware that quite frequently those in charge of writing things down on paper get it majestically wrong.

[samsmoot]

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

To end the Argument this needs to go to Court so we can see the outcome.

I will post the results, whatever the outcome.

[Kjun]

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

I have specified the legislation which makes these charges payable by statute and if you have read these I am not sure how you can perceive it differently but am with Wales01 Man that if you feel the claim is incorrect then the court is of course the correct forum to settle the matter and all I will say further is good luck.

On the subject of the Defendant, if they are experiencing difficulties paying the charges most water companies have dedicated debt advice sections and schemes specifically to help persons who require assistance as well as independently operated Trust Funds who can award grants to write off arrears in some cases.

Once this is all done and dusted would be worth her looking into this with the water company.

[samsmoot]

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

I have specified the legislation which makes these charges payable by statute and if you have read these I am not sure how you can perceive it differently but am with Wales01 Man that if you feel the claim is incorrect then the court is of course the correct forum to settle the matter and all I will say further is good luck.

On the subject of the Defendant, if they are experiencing difficulties paying the charges most water companies have dedicated debt advice sections and schemes specifically to help persons who require assistance as well as independently operated Trust Funds who can award grants to write off arrears in some cases.

Once this is all done and dusted would be worth her looking into this with the water company.

Yes, thanks - we are aware of the charitable help available and it has been applied for, along with another scheme. Thanks for mentioning it though - always worth letting people know about this particular form of assistance.

Cheers.

[samsmoot]

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

I have had the green light to apply for the strike out so thought I'd put up the draft. I am well aware that the application is unlikely to succeed, but it's worth having a bash because a) It might and b) It shows an intention to deny the Claim to the bitter end which may result in the water company backing down. It should be obvious that they will be in for no easy ride should they continue their Claim, and given their lack of good faith a retreat might be thought preferable. That's the idea, anyway.

I think the main thrust of any future Defence will surround the failure to mitigate loss. There was and is no guarantee that their alleged losses would be made up for by an application to the Charitable Trust but they were unreasonable in not allowing for their losses to be mitigated in this way, it could be argued - especially as they tried to put off the Defendant from applying by telling them they would get no help until they started paying the charges. In other words, they knew they might be able to obtain the outstanding amount via an application to their water charity but instead chose not to mitigate their losses in this way, which is their fault.

'The Defendant seeks an Order that the Claimant's Particulars of Claim be struck out for the following reasons:

1. The Claim discloses no cause of action or any legal ground by which the Claimant is entitled to recover money from the Defendant. The Defendant denies that they are required to pay any money to the Claimant and submits that the Claimant has failed to state a head of claim under which they believe they are entitled to recover the sum demanded.

2. The Claimant has negligently failed to mitigate any alleged damage or loss. The Defendant neither admits nor denies liability for water service charges but submits that they are not personally required or legally obliged under any statute or general law to pay such charges to the Claimant and that the Claimant has shown no such requirement or legal obligation. Any money that the Claimant believes is owed for water charges are payable by United Utilities Charitable Trust upon a successful application for help in paying those charges. The Claimant negligently failed in its duty to await the outcome of such an application; wrongly failed to adhere to OFWAT (the water regulator) guidelines which state that court should be 'a last resort for those who will not pay', as opposed to those, such as the Defendant, who cannot pay, and has made a fraudulent misrepresentation (evidence attached) in stating that any application to the Charitable Trust would fail unless the Defendant started to make payments to the Claimant.

3. The Claimant has no reasonable grounds for bringing this claim. They should not seek to recover money from the Defendant in respect of water charges whilst the sum in question can be obtained by an appropriate alternative method, and thereby see discharged any liability the Claimant might have without the need to initiate and continue a claim in this court.

4. In any event the Claimant is fully aware that the Defendant is completely reliant on state benefit, and that this state benefit includes no provision or allowance for or towards water charges, and that therefore the Defendant does not receive any money with which to pay water charges. The money provided by the state is to pay for essentials, and water charges are not stated as being amongst them. The Defendant has informed the Claimant that if they can identify the amount, if any, included in state benefit to pay for water charges, then they would pay that amount to the Claimant, but the Claimant has failed to do this.

5. The Defendant has in fact made an application to [Water Company] Charitable Trust (please see evidence attached) in respect of the water charges being applied for, and, in view of this and the matters referred to above, respectfully asks the court to strike out the Claimant's Claim under CPR 3.4(2) and/or under the court's inherent jurisdiction.'

Number 4 may seem irrelevant - and possibly be seen by the court as a frivolous defence. The point is that if the Defendant is ordered to pay the charges they can (I would have thought) ask the court to put a stay on judgement until such a time as the Defendant can pay those charges. The fact of the Defendant's benefit being restricted by the Secretary of State to give an allowance only for specified essentials means that the Defendant has no money left over to pay for water charges. That, I know, may not stop a judge making an order for immediate payment, but it could be argued that it would be unfair and unjust to do so, especially if an offer of payment in the future is promised.

[Kjun]

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

Personally think you will get nowhere with this application but good luck anyway and I would really like to know the outcome if you don't mind sharing it?

I am guessing that the Defendant does not pay the application costs due to being on benefits and out of curiosity would like to know if you would have made the application had there been a fee?

Of course the water company are likely to send a representative as this application won't be dealt without a hearing so don't be surprised if they request attendance costs if you are unsuccessful as I would in their position.

Reason for that would be that you have a chance to Defend the claim which will proceed to a hearing in due course and be heard by the DJ so this application in my opinion does nothing to mitigate costs and in fact adds to them...

[samsmoot]

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

Personally think you will get nowhere with this application but good luck anyway and I would really like to know the outcome if you don't mind sharing it?

Will do. There was a 'mediation' call today but still awaiting details of what happened. The Defendant hinted that there was something said which may go against the water company. There was no actual mediation, apparently.

I am guessing that the Defendant does not pay the application costs due to being on benefits and out of curiosity would like to know if you would have made the application had there been a fee?

Correct - no costs for the application. If it were me defending it, then yes, I would in this claim pay out of my own pocket. If the Defendant were not on benefit I'd probably advise that they do it differently to save costs.

I have a question for you, Kjun: Have you ever witnessed a successful claim for advance charges alone? Since most claims would include advance charges, and as by the time the claim gets to a hearing most of those charges would by then be current charges, I can see how judgement for advance charges might be seen as expedient and apt. What I would like to know is has there been to your knowledge a successful claim made for only advance charges - i.e. all current charges (as a proportion of the yearly amount) have been paid up to the date of the claim or hearing and there was still a judgement made in favour of the water company?

[Kjun]

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

Hey Sam,

I can honestly say that every Defence using the advance charges argument has been unsuccessful at each hearing I have attended solely due to the Act which allows the charges to be raised in this way.

It's exactly the same as council tax if you miss a few payments then the whole year becomes due and I am not aware of any Defence challenging that premise either presumably because of whatever Act governs that.

If all payments were up to date then I can't see why a claim would be issued as clearly then this would be incorrect and most certainly would have a very strong Defence but if payments were brought up to date prior to hearing it probably would not stop the claim as costs have been incurred and the water company would look to recover these (or at least the claim issue fee if it was me).

Honest opinion is settle this at mediation if you can in the form of Tomlin Order where no judgment issued or offer this prior to mediation and try to get the solicitors costs part of the claim waived (again I would do this in order to obtain settlement) as this is probably the best outcome you can hope for as if it progresses to hearing there will be the hearing fee and possible attendance costs that are likely to be awarded also if you are not successful, and unless we are missing any further details of the case, this will be the likely outcome.

[samsmoot]

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

The 'mediation' consisted of the water company saying they wanted a payment plan @ around £10 P.W. set up or otherwise they will continue the Claim. The mediator seems to have advised the Defendant to pay up. So that's that.

[Kjun]

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

That's not a bad outcome and I would hope you have (or will) advise them to accept this and then ask to be referred to their debt advice section and also continue with the Trust Fund application as the fact their will be no judgment will help with that also (some Trust Funds will not award grants for debts subject to court judgment).

I get it's difficult for people on low incomes to pay bills but you have to remember water is as vital as gas or electric and the only reason it is sometimes (wrongly in my opinion) classed as non priority debt is solely due to the fact it can't be cut off for domestic customers however if water stress and non payment levels continue this will not be sustainable in the future as the income will not cover the work needed to maintain the infrastructure.

[samsmoot]

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

That's not a bad outcome and I would hope you have (or will) advise them to accept this

Not a bad outcome? I cannot repeat in print what my advice was due to the profanity involved.

[samsmoot]

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

Hey Sam,

I can honestly say that every Defence using the advance charges argument has been unsuccessful at each hearing I have attended solely due to the Act which allows the charges to be raised in this way.

It's exactly the same as council tax if you miss a few payments then the whole year becomes due and I am not aware of any Defence challenging that premise either presumably because of whatever Act governs that.

If all payments were up to date then I can't see why a claim would be issued as clearly then this would be incorrect and most certainly would have a very strong Defence but if payments were brought up to date prior to hearing it probably would not stop the claim as costs have been incurred and the water company would look to recover these (or at least the claim issue fee if it was me).

Honest opinion is settle this at mediation if you can in the form of Tomlin Order where no judgment issued or offer this prior to mediation and try to get the solicitors costs part of the claim waived (again I would do this in order to obtain settlement) as this is probably the best outcome you can hope for as if it progresses to hearing there will be the hearing fee and possible attendance costs that are likely to be awarded also if you are not successful, and unless we are missing any further details of the case, this will be the likely outcome.

OK, thanks for the feedback on advance charges - much appreciated.

The one main point not to be overlooked, and the bottom line, is that the Defendant cannot pay any money for water charges or any other associated costs - whether or not there is a judgement against them. They have thought it through, are aware of the possible consequences and prepared for a fight. Added costs are an irrelevancy.