** DISCONTINUED ** Late defence.

[nukeproof]

Hi and greetings to all.

I received a claim form from Lowell relating to an unpaid o2 contract. This included airtime and provision of hardware covered by CCA 1974 as stated in their particulars of claim.
I acknowledged the claim and sent Lowell Solicitors a 3114 request along with a CCA request.
I received reply from Lowell Solicitors on the day I was due to file my defense even though it was dated 7 days prior. This put me off filing the defence as it seemed I was out of my depth and was unsure about the situation. However, I have filed it tonight on moneyclaim roughly one week late.
The letter Lowell solicitors sent to me stated the usual, telecommunications is not covered by CCA however this is in direct contrast to their first particular of claim which specifically states that the provision of hardware is. I have used this point in my defence and wish I'd noticed this particular earlier.
My question is what would be the consequence of late filing, is it automatically void and can I be defaulted? I checked the status on moneyclaim and there are no updates post my acknowledgement. Just wish I'd bit the bullet sooner but there we are.

Thanks a lot to all the posters here, without you I wouldn't have even got this far. Any insights appreciated.

Cheers.


***Discontinued***

I would like to note that I have received a letter from Lowell Solicitors this morning stating that, "Our client has instructed us to discontinue this claim".

I have been served with a notice of discontinuance, as have the courts.

I would like to thank this website and its members. Without which, I wouldn't have been able to refute the claim brought against me.

Best Regards,

Adam

***Discontinued***

[warwick65]

Hi
It will not be inadmissible because it is late however if Lowell were on the ball they could have asked for a default judgement in-between the time it was due and the time it was posted. Might be worth phoning the court in a few days and asking the status of the claim

[nukeproof]

Thank you Warwick, much appreciated.

[TR-lawyer]

Hi
It will not be inadmissible because it is late however if Lowell were on the ball they could have asked for a default judgement in-between the time it was due and the time it was posted. Might be worth phoning the court in a few days and asking the status of the claim

You should the note case of Billington -v- Davies [2016] EWHC 1919 (Ch). In particular, the Judgment at paragraph 12 which says:
"In my judgment, the reference to “a defence” in CPR 12.3(2)(a) must be a reference to a Defence which has either been served within the time permitted by the Rules or in respect of which an extension of time has been granted. Where a Defence is served late, unless and until an extension has been granted, a document purporting to be a Defence is not in fact a Defence for the purposes of CPR 12.3(2)(a). To this extent, the note at 15.4.2 of the 2016 edition of the White Book is, in my judgment, wrong."”

The case illustrates two principles:

1. A claimant that has applied for default judgment in default of defence is still entitled to default judgment even if the defence is filed between the date of the application and the date of the hearing.
2. An application for an extension of time for filing a defence is dealt with on the basis of CPR 3.9 and Denton principles.

[Amethyst]

Aye, but if they haven't applied for default judgment before the defence is filed then they can't file for default judgment as a barr is put in place ( remember this is done via MCOL in these cases 90% of the time ). Not sure what hearing as a standard default judgment request doesn't require a hearing, it's a tick box exercise.

nukeproof - have you checked with the court ?

[TR-lawyer]

Although MCOL may put a bar on requesting judgment in default online, the position is as stated in Billington -v- Davies [2016] EWHC 1919 (Ch). In such a situation, a Claimant could request judgment by sending a paper request, if necessary, to the court. However, the more important fact is that according to this decision, if a party does not file a defence in time then it will need the Court’s permission to rely upon it. That will require an application for relief from sanctions.

[nukeproof]

@AMETHYST.

I have received notice from the court that they have my defence and have now served it on Lowell so they have until the 22nd of February to file or it will be stayed.

Although I have received a letter from Lowell on the 24th claiming that they have now issued legal proceedings, the court has no record of this of this as of today.

Thanks

[warwick65]

Point is, we know of several cases
Where defences have been served late in one case several months late

[Amethyst]

@AMETHYST.

I have received notice from the court that they have my defence and have now served it on Lowell so they have until the 22nd of February to file or it will be stayed.

Although I have received a letter from Lowell on the 24th claiming that they have now issued legal proceedings, the court has no record of this of this as of today.

Thanks

Thats good news then

Not sure what you mean by what Lowell put in their letter - or did they say they had requested judgment ? Maybe type out what the letter said - and while you are typing can you type out the particulars of claim too pls

[nukeproof]

Thats good news then

Not sure what you mean by what Lowell put in their letter - or did they say they had requested judgment ? Maybe type out what the letter said - and while you are typing can you type out the particulars of claim too pls

The letter I receives reads as follows...


As you are aware, we represent Lowell Portfolio Ltd

We have now issued legal proceedings in the form of a county court claim which you will shortly receive directly from Northampton County Court as you have failed to make payment towards this debt or respond to our letter of claim.

There is then a list of the debts and charges.

I am assuming this is a standard mass produced letter although I could be wrong.

I have misplaced the first page of the claim form with the particulars and can't find it at the moment but I will try to find it and post them up when I get back from work this afternoon.

The first particular specifically states that the debt is for provision of airtime and provision of hardware which is regulated by the consumer credit act, this is recalled from memory so don't quote me on it exactly.

Cheers

[Amethyst]

Okay Weird. That would normally be sent the same day as the claim was issued, a bit late sending it a month after...maybe someone clicked the wrong template letter button and they meant to send the 'you haven't filed your defence, do it by x or we'll apply for default judgment' letter - nothing to worry about though, just add it to your file

[nukeproof]

Does anybody have any advice on what action should be taken after the deadline has passed for the claim to be stayed? What exactly does stayed mean? I have received no correspondence from Lowell or the court since filing my defence.

[warwick65]

Stayed means it is suspended until the claimant asks to lift the stay which sadly is usually granted. There may come a time where you decide to request the claim is struck out but that has risks associated with it , not just costs but also that the Judge may just issue directions the claimant needs to provide documents or some such like

So for now, I think its time to sit on your hands

[nukeproof]

Thanks Warwick, much help.

[pt2537]

Although MCOL may put a bar on requesting judgment in default online, the position is as stated in Billington -v- Davies [2016] EWHC 1919 (Ch). In such a situation, a Claimant could request judgment by sending a paper request, if necessary, to the court. However, the more important fact is that according to this decision, if a party does not file a defence in time then it will need the Court’s permission to rely upon it. That will require an application for relief from sanctions.

Its unlikely that an application for relief from sanctions would be refused however, and it is likely that if the Defendant liaises with the Claimants lawyers, a consent order could be agreed allowing the Defendant to rely on the Defence as long as it has merit of course.

Denton made it quite clear that lawyers should not try to take an unfair advantage, and refusing to consent could be argued to be doing exactly that.