Aqua/Cabot/Mortimer Clarke

**efpom** · 21st August 2019, 08:49:AM

You ask for any document mentioned in the particulars of claim. Here, it seems to be the agreement and the assignment.

**GEORDIE50** · 21st August 2019, 11:17:AM

Thank you … should I not ask for the default notice? … I don't think I ever received one … or would this be covered under the SAR request?

I've now read a few posts and looks like the way forward is not to offer any repayment until I've filed my defence …. is that right? I just want to check if I've understood it correctly..

many thanks

**efpom** · 21st August 2019, 11:50:AM

CPR 31.14 gives the right to inspect documents mentioned in a statement of case a.k.a Particulars of Claim 31.15 specifies how this is done.

It is common practice for CPR 31.5 to be construed as meaning that on receipt of a request for inspection of documents, together with an undertaking to pay the costs of copying those documents, the receiver of the request is obliged to copy and send those documents no later than 7 days after receipt of the request, and if he does not, the requester is entitled to bring an action footed on that, compelling compliance.

However, my view is that the right to inspect at 31.14 is precisely that, and that it is only after such inspection, and only after compliance with the prescriptions of 31.15 that the right to obtain copies crystalises. There is no practice direction or case law which supports the common practice and no authority for the proposition that a cause of action footed on that common practice exists.

Be that as it may, your second post poses different questions - sight of the default notice and offer of settlement.

On the first - Why would you need that?
On the second - You can make an offer to settle, in any amount, at any time, including during the trial.

Do you have an arguable defence?

**GEORDIE50** · 22nd August 2019, 05:47:AM

Thanks EFPOM.

I thought you had to be served a default notice under the credit agreement rules - I am pretty sure I never received one.

I had also made an offer of a repayment plan of £100 per month to Mortimer Clarke to which acknowledged, I said this was all I could afford at the moment given I am in the process of separating from my partner - they asked if I could send a financial expenditure/budget form through which I did. The next thing I received was the court claim. Haven't heard anything further from Mortimer Clarke re my offer..

**GEORDIE50** · 22nd August 2019, 05:52:AM

sorry hit "reply" too soon

So my defence is going to be the technical issue of not issuing a default notice and that I have tried to negotiate a repayment plan which have been ignored. I know not the firmest of defences but if I can try and negotiate a repayment plan out of court - that would be great.

**efpom** · 22nd August 2019, 07:25:AM

I assume you mean a Default notice served under section 87(1) Consumer Credit Act 1974’

If that is in play, there is no requirement for the creditor to prove you have received the notice.

But, if the the notice never existed, then it follows that the termination of the agreement failed. In consequence, the assignment of the debt fails and the claimant has, therefore no right of action against you.

So, your defence, in essence is to set the claimant to it's strict proof that the prescription at s. 87 was followed.

I would not advise you go searching for the notice - that's for the claimant to do.

**GEORDIE50** · 22nd August 2019, 11:13:AM

OK .. and thanks for your help, its really appreciated. Am now waiting responses to CPR31.14 to Mortimer Clarke and CCA request to Cabot.

Will keep you posted!

Aqua/Cabot/Mortimer Clarke