Possibly statute barred! DISCONTINUED!!!

[christinez]

Re: Possibly statute barred!

Celestine, I totally think they started a claim to reset the clock as it was only a month or two away from being statute barred. So should I put the additional 15,16,17 in that R0b has suggested or what you have written? Bit confused, doesn't take much lol!

Thanks all for your help

[nemesis45]

Re: Possibly statute barred!

Celestine, I totally think they started a claim to reset the clock as it was only a month or two away from being statute barred. So should I put the additional 15,16,17 in that R0b has suggested or what you have written? Bit confused, doesn't take much lol!

Thanks all for your help

Celestine has quoted the "law" in full so personally I would go with that.

A great answer from Des.

nem

[Celestine]

Re: Possibly statute barred!

15. In the circumstances, the claimant cannot be held to have formulated the claim without such documents and amounts to an abuse of proceeds. As per Cooke J in Normura International v Granada Group [2007] EWHC 642(Comm), if a claimant cannot properly formulate the basis of a claim, then the claimant has no business to bring a claim in the hope that something would turn up (see paragraph 37,38 & 49). Cooke J further went on to state that if there is insufficient knowledge to begin the process of putting the particular of claims together, without the need for something to turn up, there is no know valid basis for a claim to be made.

"39. In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all "in the hope that something may turn up". The effect of issuing a Writ or Claim Form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.

38.The concept, as exemplified by this line of authority, is further reinforced by the terms of CPR 16.2(1) which provides that "the Claim Form must (a) contain a concise statement of the nature of the claim". CPR 22.1(4) provides that the Claim Form must be verified by a statement of truth being "a statement that..the party putting forward the document..believes the facts stated in the document are true."

49. The point is exemplified by the ethos which underlies the requirements for pre-action protocols to be observed. Where there is no specific protocol in relation to the type of proceedings in question, what is envisaged is an exchange of correspondence between the parties on the merits of the claim in order to ascertain whether or not there is room for negotiation. If a Claim Form has to be issued for limitation reasons, the claimant should then apply for a stay so that these exchanges of correspondence can take place with a view to avoiding litigation. This was not possible in the circumstances because there was no possibility of formulating the necessary claim for discussion. Everything was being done with a view to protecting the limitation position as is plain from the request for a Standstill Agreement and the issue of proceedings which have always been referred to as "protective". The inability to formulate a claim is revealed therefore in all the materials leading up to the issue of the Claim Form, the Claim Form itself and the history thereafter, right up to the service of West's Particulars of Claim."



16. The Defendant will submit that, at the time of issuing the claim, the Claimant was not, and is still not, in receipt of the said agreement that it relies upon in its particulars of claim.

17. The Defendant submits that the claim should be struck out as an abuse of process.

[christinez]

Re: Possibly statute barred!

Thank you very much. I have added that onto the bottom of my defence.

Is it right I have to submit it to the court and the claimant with copies of all the exhibits?
Thanks
Christine

[christinez]

Re: Possibly statute barred!

Should those paragraphs read 37, 38 & 49 @Celesine?

[Celestine]

Re: Possibly statute barred!

Yes, those are the useful paragraphs from the Normura High Court judgment.

Higher Court case law carries weight so is useful for the Judge to have it quoted to him/her rather than looking it up.

http://www.bailii.org/ew/cases/EWHC/Comm/2007/642.html

(if you fancy a read)

[christinez]

Re: Possibly statute barred!

So this is how it looks now!


1: I received the Claim No. B2AL2M0M on December 17 2015


2. The Claimant alleges that I am indebted in the sum of £1378.67 being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”).


3: The Claimant has not provided me with a copy of the original credit agreement despite my having sent a formal request under s.78(1) of the CCA, with the statutory payment of £1, to the Claimants, who are defined as the Creditor by virtue of s.189 CCA 1974. Exhibit 1 CCA request letter dated December 18 2015.


4. The Claimant's have sent me a letter dated January 4 2016 stating they are in the process of retrieving the documents requested. The Claimant have so far failed to properly comply with the request made under s.78 (1) and no agreement has been supplied.


5: Therefore by virtue of s.78(6) the Claimant is unable to enforce the agreement whilst their default continues.


6: The Claimants state that the debt was assigned to the Claimant, notice of which has been provided to the defendant. However, they do not state the date that the alleged debt was assigned to them


7. The Claimants are put to strict proof that the alleged debt has been properly assigned. I have not, so far as I recall, received any notice of assignment to the Claimant from Santander Cards Ltd. I have requested a copy of the assignment notice under CPR 31.14 but to date have not received a copy. Exhibit 2 CPR request letter dated December 18 2015.


8. The Claimants state that a default notice has been served pursuant to the Consumer Credit Act 1974


9: The Claimant is also put to strict proof that a compliant Default Notice was served in relation to the alleged agreement pursuant to CCA s. 87 & 88 (1) thus giving right to demand immediate repayment of the sums claimed. I have requested a copy of the default notice under CPR 31.14 but to date have not received a copy.


10. A letter was received from the claimant on January 4 2016. This acknowledged receipt of my letter requesting documents and also informed me that they are in the process of retrieving the documents. Up to now I have not received any documents. Exhibit 3 Letter off claimant dated January 4 2016


11. Mediation was scheduled for March 23rd 2016 but was unable to take place due to the fact I was unable to meet the requirements for mediation as the claimant had not provided the evidence to substantiate their claim. Exhibit 4 Email correspondence. Exhibit 5 claimants direction questionnaire.


12. The case has now been allocated to the Small Claims Track and a hearing scheduled for May 5 2016. However, I have still not received the requested documents from the claimant.


13: I ask, the Court asks the Claimants to provide me with the documents required to enable me to properly assess and plead my defence, and should the documents be provided allow me to amend my defence and ask the claimants to pay the costs of that amendment.


14. It is denied the Claimant is entitled to the relief as claimed or at all.


15. In the circumstances, the claimant cannot be held to have formulated the claim without such documents and amounts to an abuse of proceeds. As per Cooke J in Normura International v Granada Group [2007] EWHC 642(Comm), if a claimant cannot properly formulate the basis of a claim, then the claimant has no business to bring a claim in the hope that something would turn up (see paragraph 37,38 & 49). Cooke J further went on to state that if there is insufficient knowledge to begin the process of putting the particular of claims together, without the need for something to turn up, there is no know valid basis for a claim to be made.


"37. In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all "in the hope that something may turn up". The effect of issuing a Writ or Claim Form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.


38.The concept, as exemplified by this line of authority, is further reinforced by the terms of CPR 16.2(1) which provides that "the Claim Form must (a) contain a concise statement of the nature of the claim". CPR 22.1(4) provides that the Claim Form must be verified by a statement of truth being "a statement that..the party putting forward the document..believes the facts stated in the document are true."


49. The point is exemplified by the ethos which underlies the requirements for pre-action protocols to be observed. Where there is no specific protocol in relation to the type of proceedings in question, what is envisaged is an exchange of correspondence between the parties on the merits of the claim in order to ascertain whether or not there is room for negotiation. If a Claim Form has to be issued for limitation reasons, the claimant should then apply for a stay so that these exchanges of correspondence can take place with a view to avoiding litigation. This was not possible in the circumstances because there was no possibility of formulating the necessary claim for discussion. Everything was being done with a view to protecting the limitation position as is plain from the request for a Standstill Agreement and the issue of proceedings which have always been referred to as "protective". The inability to formulate a claim is revealed therefore in all the materials leading up to the issue of the Claim Form, the Claim Form itself and the history thereafter, right up to the service of West's Particulars of Claim."






16. The Defendant will submit that, at the time of issuing the claim, the Claimant was not, and is still not, in receipt of the said agreement that it relies upon in its particulars of claim.


17. The Defendant submits that the claim should be struck out as an abuse of process.




Statement of Truth:


The statements above are true to the best of my knowledge and belief.


Does that all look good?

[Celestine]

Re: Possibly statute barred!

Looks great xxx

[christinez]

Re: Possibly statute barred!

Thank you Celestine for your help. I'll keep my fingers crossed now and hope they drop it!

[christinez]

Re: Possibly statute barred!

I am pleased to say that my case has been discontinued by the claimant. I would like to thank everyone for their help.
Regards
Christine

[Celestine]

Re: Possibly statute barred!

Fantastic News!!! Well done Christine, very proud of your efforts here xxx

[nemesis45]

Re: Possibly statute barred!

I am pleased to say that my case has been discontinued by the claimant. I would like to thank everyone for their help.
Regards
Christine

Excellent Christenez,

Well done.

nem