** DISCONTINUED ** Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

[pt2537]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

It just pisses me off that they're trying to make it look like the only possible course is the one they lay out. They're trying to play "God".

Quite, but the thing is youre stuck between the devil and the deep blue sea, if you lodge your defence then seek permission to amend the rules start with you paying the oppos costs, unless you have a good reason to oust that rule. Heres where it gets tricky.

Soo, you lodge your defence instead of applying, the judge then says well did you ask for the docs? Yes, you say, the Judge then says well what did they say? No, you say, so the Judge says did you make an application? No you say, well why the hell not says the Judge!!!!! wheres your good reason? you are a LIP? nope sorry senior courts have held thats not a good reason to expect better treatment than a legally represented party.

So without a good reason you may be ordered to pay the costs of the amendments, so you may end up with £500-£1000 in costs, remember they will be represented so will be asking for lawyers costs not Lip costs

Now the Court may also say No to costs, but its a risk. If i were advising a client id advise on all risks and would urge caution if they decided this approach.

The rules are there for all to follow, we cant just choose what we follow when we like.

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

IN THE NORTHAMPTON COUNTY COURT
CASE NO.:XOXOXOX
BETWEEN:
LOWELL PORTFOLIO I LTD


- AND –


MS STONELAUGHTER




DEFENCE






1: I received the claim OXOXOXOX from the NORTHAMPTON County Court on or around 27th March 2015.


2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.


3: This claim appears to be for a Catalogue Account agreement with J D Williams regulated under the Consumer Credit Act 1974.


4: The Claimant’s statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.


5. The particulars of claim fail to state when the agreement was entered into.


6. The Claimant’s statement of case states that the account was assigned to Lowell Portfolio I Ltd on 27th March 2015. The Defendant does not recall receiving notice of this assignment.


7. It is denied that J D Williams served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.


8: On the 2nd April 2015 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Brian Carter Solicitors LLP. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.


9. Bryan Carter Solicitors LLP has not sent any of these documents to me.


10. On the 2nd April 2015 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to sections 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.


11. The Claimant has failed to comply with Sections 78 of the Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.


13. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.


14. I request the court orders the Claimant to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.


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


Statement of Truth


The Defendant believes that the facts stated in this Defence are true.

- - - Updated - - -

Will send tonight in the absence of any comments...

- - - Updated - - -

Quite, but the thing is youre stuck between the devil and the deep blue sea, if you lodge your defence then seek permission to amend the rules start with you paying the oppos costs, unless you have a good reason to oust that rule. Heres where it gets tricky.

Soo, you lodge your defence instead of applying, the judge then says well did you ask for the docs? Yes, you say, the Judge then says well what did they say? No, you say, so the Judge says did you make an application? No you say, well why the hell not says the Judge!!!!! wheres your good reason? you are a LIP? nope sorry senior courts have held thats not a good reason to expect better treatment than a legally represented party.

So without a good reason you may be ordered to pay the costs of the amendments, so you may end up with £500-£1000 in costs, remember they will be represented so will be asking for lawyers costs not Lip costs

Now the Court may also say No to costs, but its a risk. If i were advising a client id advise on all risks and would urge caution if they decided this approach.

The rules are there for all to follow, we cant just choose what we follow when we like.

How would I go about making an application for an extension then? Amethyst has said above it was better to file a defence... so now I'm worried I'm choosing the wrong course.

[pt2537]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

IN THE NORTHAMPTON COUNTY COURT
CASE NO.:XOXOXOX
BETWEEN:
LOWELL PORTFOLIO I LTD


- AND –


MS STONELAUGHTER




DEFENCE






1: I received the claim OXOXOXOX from the NORTHAMPTON County Court on or around 27th March 2015.


2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.


3: This claim appears to be for a Catalogue Account agreement with J D Williams regulated under the Consumer Credit Act 1974.


4: The Claimant’s statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.


5. The particulars of claim fail to state when the agreement was entered into.


6. The Claimant’s statement of case states that the account was assigned to Lowell Portfolio I Ltd on 27th March 2015. The Defendant does not recall receiving notice of this assignment.


7. It is denied that J D Williams served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.


8: On the 2nd April 2015 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Brian Carter Solicitors LLP. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.


9. Bryan Carter Solicitors LLP has not sent any of these documents to me.


10. On the 2nd April 2015 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to sections 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.


11. The Claimant has failed to comply with Sections 78 of the Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.


13. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.


14. I request the court orders the Claimant to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.


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


Statement of Truth


The Defendant believes that the facts stated in this Defence are true.

- - - Updated - - -

Will send tonight in the absence of any comments...

- - - Updated - - -



How would I go about making an application for an extension then? Amethyst has said above it was better to file a defence... so now I'm worried I'm choosing the wrong course.

Dont be worried, just be pro active, thats the key, the minute you get any disclosures whatsoever you need to review and consider amendning the defence if this is how youre going forward. im just reading the defence now bear with me

- - - Updated - - -

6. The Claimant’s statement of case states that the account was assigned to Lowell Portfolio I Ltd on 27th March 2015. The Defendant does not recall receiving notice of this assignment.

27th March? thats when you say the Claim was issued? are the dates right?

If they are you could have a pickthall v hill dickinson llp point here of a claim issued before the party held a legal assignment and as such claim falls on its arse. Please confirm.

[pt2537]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Ok, a tip on pleading the failings of the Claimant

23. The Claimant’s pleaded case fails to comply with the requirements of Civil Procedure Rule 16. Even taking into account the claim was issued by the County Court Business Centre the particulars of claim still lack the most basic facts required to support such a claim. Amongst others the particulars of claim lack
2.1 the date of execution of the agreement
2.2 the date of default
2.3 the degree of default. No details are offered about the sums claimed, the amount as it stood at default to name but 2 points.
2.4 the date of service of the default notice
2.5 the exact term of the agreement alleged to have been breached
2.6 the date of termination of the agreement
2.7 the method of termination of the agreement together with details of how such a termination was communicated to the Defendant.
2.8 the date of service of the notice of assignment together with details of how the notice of assignment was served on the Defendant
2.9 The Claimant has failed to particularise how the sums claimed have accrued. No details of how the Claimant arrives at the sum of £.......... have been provided.

Rather than just saying

5. The particulars of claim fail to state when the agreement was entered into

id hit them with the whole bloody lot

[pt2537]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Id also add,

The Defendant sought an extension of time for filing his defence pursuant to CPR rule 15.5. The Defendant considered such an extension in accrdance with the overriding objective and to allow the Defendant to obtain dislclosures necessary to allow the Defendant to answer the Claimants claim.

The Claimant refused to allow the Defendant the extension of time. The Defendant avers that such a refusal is contrary to the overriding objective and entirely unreasonable. The Defendant further avers that the Claimants solicitors have taken an unfair advantage of the Defendant contrary to the Law Society practice note on dealing with litigants in person

Id sling as much dirt at them as possible if it were me, this will assist when it comes time to consider amending your defence later

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

OK I got the dates wrong - assigned/purchased 27th March 2014! I'll amend - and I'll also include your suggested above.

[pt2537]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

OK I got the dates wrong - assigned/purchased 27th March 2014! I'll amend - and I'll also include your suggested above.

ahh i see

I would also add some weight to the last few paragraphs too, make a real song and dance about the fact that this is a claim founded on a written document that today has not been provided to you despite you being entitled t o see the same.

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

OK here's the amended Defence...:

1: Defendant received the claim XOXOXOX from the NORTHAMPTON County Court on or around 27th March 2015.

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.


3: This claim appears to be for a Catalogue Account agreement with J D Williams regulated under the Consumer Credit Act 1974.


4: The Claimant’s statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. 


5. The Claimant’s pleaded case fails to comply with the requirements of Civil Procedure Rule 16. Even taking into account the claim was issued by the County Court Business Centre the particulars of claim still lack the most basic facts required to support such a claim. Amongst others the particulars of claim lack


5.1 the date of execution of the agreement 
5.2 the date of default
5.3 the degree of default. No details are offered about the sums claimed, the amount as it stood at default to name but 2 points.
5.4 the date of service of the default notice
5.5 the exact term of the agreement alleged to have been breached
5.6 the date of termination of the agreement
5.7 the method of termination of the agreement together with details of how such a termination was communicated to the Defendant. 
5.8 the date of service of the notice of assignment together with details of how the notice of assignment was served on the Defendant
5.9 The Claimant has failed to particularise how the sums claimed have accrued. No details of how the Claimant arrives at the sum of £700.85 have been provided.


6. The Claimant’s statement of case states that the account was assigned to Lowell Portfolio I Ltd on 27th March 2014. The Defendant does not recall receiving notice of this assignment.


7. It is denied that J D Williams served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.


8: On the 2nd April 2015 Defendant sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Brian Carter Solicitors LLP. It was requested that the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.


9. Bryan Carter Solicitors LLP has not sent any of these documents to the Defendant.


10. On the 2nd April 2015 Defendant sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to sections 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.


11. The Claimant has failed to comply with Sections 78 of the Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


12: The Defendant sought an extension of time for filing his defence pursuant to CPR rule 15.5. The Defendant considered such an extension in accrdance with the overriding objective and to allow the Defendant to obtain dislclosures necessary to allow the Defendant to answer the Claimants claim. 


The Claimant refused to allow the Defendant the extension of time. The Defendant avers that such a refusal is contrary to the overriding objective and entirely unreasonable. The Defendant further avers that the Claimants solicitors have taken an unfair advantage of the Defendant contrary to the Law Society practice note on dealing with litigants in person.


13. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.


14. Defendant requests that the court orders the Claimant to provide the necessary documentation in order for Defendant to fully plead their case, else the Claim should stand struck out. This is a claim founded upon written documents which the Defendant has not been provided with despite a clear entitlement to them.


15. In the event that the relevant documents are received from the Claimants Defendant will then be in a position to amend this defence, and would ask that the Claimants bear the costs of the amendment.


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


Statement of Truth
The Defendant believes that the facts stated in this Defence are true.

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Hi folks!

Having sent the defence in on the day of my previous post, we have received nothing until today. Today we got a letter from Bryan Carter asking for the chance to negotiate; in spite of their previous adamant (and frankly rude) refusals. Letter attached...

What's the best course to take?

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

...anyone?

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Also, just perfectly timed, the allocation questionnaire has arrived.

[Amethyst]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

lol, it's a sign....

You should put yes to mediation on the AQ but if still no documents by the time to get to the mediation calls then they will just be ended as soon as you tell the mediator there's no evidence despite requests.

I would respond to the BC letter just to say 'I'm waiting for docs off your client etc etc'.

[MENTION=551]pt2537[/MENTION] (nudging as I'm sure he has more exciting input lol)

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

I really really want to say "no" to the offer of negotiation because we already offered that earlier on and they declined; and that their offer here is simply to give the appearance of conforming to best practice.... but I guess that would be peevish and seen as obstructive by the Court.

Thanks Ame... XXX

[StoneLaughter]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Is a "Directions Questionnaire" the same as an "Allocation Questionnaire"? Cos we've received the former... (It's been so long...)

[Amethyst]

Re: Court Claim - LOWELL / J D WILLIAMS - 25-3-2015

Yes, it has changed slightly but same difference really xx