Failure to disclose - what do I do now???

[glasscake]

Hello

Capquest have failed to comply with an order to disclose the credit agreement and default notice stated in their claim and they should have complied by the 3rd of May but still nothing. I've emailed the court to tell them they haven't sent any of the documents but I'm not sure what to do next. Any help would be much appreciated!

Thank you

[PAWS]

Re: Failure to disclose - what do I do now???

Just giving this a bump.
I think this might be the same subject as your other threads but I am afraid I do not know how to link them- sorry!

[SPQR]

Re: Failure to disclose - what do I do now???

Your court option is to make an application to strike out the claim under CPR 3.4(2)(c) for a failure to comply with a court order. The application would have to be made on Form N244, and there is currently a fee of £155 for this (which may be recoverable from the claimant). The process is more fully described here: http://uk.practicallaw.com/1-204-3083?service=ld

The courts use their power to strike out sparingly. They will only strike out the claim if there has been a significant delay by the claimant and will usually give the claimant one last time to comply.


I would advise the following approach:
1. Two weeks after the claimant should have complied with the court order, write to the claimant telling them:
- that they are in breach of the court order; and
- that if they do not comply with the court order in the next 14 days that you will apply for an application to strike out.
Ensure that you keep a copy of any letter you send and that you send the letter recorded delivery or with proof of postage.
2. If after five weeks they have not complied with the court order, make the application to court applying for a strike out. You will need to attach a draft order in this application. I suggest an unless order (which basically gives the claimant one last chance to comply).

If you follow this approach, then you can demonstrate to the court that you have been more than reasonable and so the court is likely to accept your application, and award you your costs.

I can always come up with a drafts in required.

[glasscake]

Re: Failure to disclose - what do I do now???

That's great, thank you for your advice and offer of help (drafts)

[nemesis45]

Re: Failure to disclose - what do I do now???

Absolutely no point in waiting 2 weeks after the date for compliance has passed check asap
with the court to find out if the claim is stayed.
Capquest are well known for sneaky behaviour.
If the court confirms the non compliance with the order send
Capquest a letter of intention to apply for strike out in 7 days.

All the delays will only give Capquest more time to concoct some sort of recon a favourite trick.
Capquest already has had more than adequate time to comply don't play in to their hands.

nem.

If there is another thread on this I'll ask the site team to merge them. nudge for Kati+

nem

[SPQR]

Re: Failure to disclose - what do I do now???

Absolutely no point in waiting 2 weeks after the date for compliance has passed check asap
with the court to find out if the claim is stayed.

I personally would wait, to show the court that you are acting reasonably making it more likely to be successful in the strike out application and recovery of costs. I don't see that you gain anything by acting quickly, but you do stand to lose costs by acting too quickly.

[nemesis45]

Re: Failure to disclose - what do I do now???

DCA's and debt purchasers will Not wait and take any advantage available.
Small claims costs are limited anyway.
Many years of experience at the sharp end detailing with the debt collection industry
teaches that the companies concerned show little respect for legislation and regulation.

nem

[glasscake]

Re: Failure to disclose - what do I do now???

Hiya

I've spoken to the court. The claim isn't stayed and apparently the court wrote to Capquest on the 5th (2 days after compliance date) telling them that if a further 28 days to comply was needed they'd have to send off an N244 and they,ve heard nothing so far?? So I guess now I write to Capquest and give them another 7 days then.

[glasscake]

Re: Failure to disclose - what do I do now???

Hiya

I received a copy of an order form the court. Capquest had applied for a 56 day extension in order to provide the default notice but the court has refused the extension. Capquest also stated that they are not able to provide a copy of the credit agreement. As they can't provide the agreement does this mean it's unenforceable?? And should I now apply to strike out??

Thanks

[FlamingParrot]

Re: Failure to disclose - what do I do now???

Hiya

I received a copy of an order form the court. Capquest had applied for a 56 day extension in order to provide the default notice but the court has refused the extension. Capquest also stated that they are not able to provide a copy of the credit agreement. As they can't provide the agreement does this mean it's unenforceable?? And should I now apply to strike out??

Thanks

Would be an idea to write to the solicitors stating your intention to apply for a strike out, it may work as well as it did for seduraed as below, saves the N244 application fee: :thumb:

I was filling in the form and had informed the solicitors that i would be applying for a strike out got the discontinuance notice a few days later .

[nemesis45]

Re: Failure to disclose - what do I do now???

Hiya

I received a copy of an order form the court. Capquest had applied for a 56 day extension in order to provide the default notice but the court has refused the extension. Capquest also stated that they are not able to provide a copy of the credit agreement. As they can't provide the agreement does this mean it's unenforceable?? And should I now apply to strike out??

Thanks

Yes no agreement no enforcement, but please remember this situation is considered temporary and would immediately change IF the agreement was found/produced.

Give the claimant 7 days notice of intention to apply for strike out, plus a " suggestion" that the claimant should withdraw the claim to avoid further costs.

nem

[glasscake]

Re: Failure to disclose - what do I do now???

Hiya

I think my claim has been struck out but I just wanted to check I'm reading the order right. I sent in an Application Notice on the 20th of October requesting the claim be struck out if Capquest couldn't supply the CA. The court ordered on the 12th of Nov that Capquest had 7 days to comply or the case be struck out as they'd failed to comply with a previous order. I understand that bit and they haven't sent me the CA so I'm guessing it's struck out but on the first page, it says that the Application must be heard on notice to the claimant and that the claim has been transferred to my local court. Does this mean a judge looks at the order a again? I've emailed the court to confirm that they've not sent the CA so I'm hoping that's it as it's been a loooong 11 months!!!


Many thanks