Letter of claim and warrant of entry

[efpom]

Hello
At 16:47 by email I received a letter before claim - at 21:15 I received an email, "we shall be applying for a warrant to switch your meter to a Pre-payment meter." attaching a letter "We’re now applying for a Rights of Entry Warrant at court to switch your Billing mode to a pre -payment meter"

My proposed response

The reason why this is now a contract dispute is because earlier that day, at 16:47, you sent me a letter before claim. The County Court is the place to deal with the matter.

An unresolved dispute is not a legitimate reason upon which to apply for an entry warrant. It is an abuse of process to do so. It is also harassment.

TAKE NOTICE THAT UNLESS I receive a formal undertaking from you within 7 days of the date of this letter that you will make NO application for a Warrant of Entry, until the dispute in your letter of claim has been resolved, I will apply for injunctive relief to prevent you from doing so.

Be that as it may, your email at 21:15 attached a letter which opened with the following – "“Despite lack of response to our previous correspondence..."…”

That statement is not true - I refer you to my correspondence dated 9^th October 2020 and dated 8^th February 2021 both of which you made no response to. Given your letter of claim, it is now too late for you to do so.

That letter states under the sub heading "“What to do”"

"“Our application for Warrant of Entry will be heard at court. You can go to the hearing and make representations against our application in accordance with Article 6 of the Human Rights Act. If you'd like to do this, you have the right to ask for the hearing to take place at a court in your local area and can select one from the list at the end of this letter. If you wish to do this, please call XXZXXXX within 21 days from the date of this letter. Alternatively, you can ask for a hearing by completing the enclosed form and sending this to us at the postal or email address shown at the bottom of the form. The form must be returned to us within 21 days from the date of this letter. A local court hearing will be arranged."”

However, no list is present at the end of the letter nor was any form attached to that letter.

Nevertheless, for good order I put you on notice that I require that your application be heard at:
I then give the magistrate's court Name and address

All comments welcome

[efpom]

This is the letter before claim and below is my proposed response:
---------------------
This letter is a formal notification of a claim within the meaning of the Pre-Action Protocol (‘the Protocol’).

Practice Direction on Pre-Action Conduct

1.1
In addition this letter is being sent to you in accordance with the Practice Direction on Pre-action Conduct (the @PDPC’) contained in the Civil Procedure Rules (‘CPR’). A copy is available online if required https://www.justice.gov.uk/courts/pr...civil/protocol.

1.2
In particular, we refer you to paragraph 4 of the PDPC concerning the court’s powers to impose sanctions for failing to comply with its provisions. Ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for costs.

1.3
If you believe that this letter is in any way not compliant with the PDPC then please let us know immediately.

1.4
Please note that any failure to follow the steps as set out in the PDPC or ignoring this letter could potentially increase your liability for costs.

1.5
Please note that this letter contains important and time sensitive information. You should read the contents of this letter and take the action required of you by the deadlines.

1.6
Given the seriousness of this matter you are advised to take independent legal advice.

Please note that unless the outstanding sum of 496.27 is paid within 14 days from the date of this letter, court proceedings for the recovery of the above amount will commence.

Please note that if you fail to acknowledge and/or respond as requested above we will start court proceedings against you without further notification. The court proceedings will include a claim to recover the above outstanding amount as detailed in this letter, and any legal costs incurred as a result. According to Section 69 of the County Court Act 1984 you will also be asked for the interest from the date the amount was due up to the date of the judgment. You can make the payment by a bank transfer. Please quote your customer reference number, bank details are below :-
---------------------------
My proposed response
-------------------------
I note that your letter before claim, although making mention of the applicable Protocol, makes no attempt to comply with it. One consequence of that failure is that you are in no position to threaten an adverse costs order as you do at 1.2, 14. and 1.6.
As the Protocol speaks for itself and the Practice Direction speaks for itself, it was for you to be satisfied that your letter before claim complied with both, before sending it. I will not, therefore engage in any correspondence with you regarding compliance and certainly not with 1.3 of your letter which I set out below out, for good order.
1.3
If you believe that this letter is in any way not compliant with the PDPC then please let us know immediately.
Our relationship is contractual. The asserted debt can only arise if there has been a breach of contract by me. Notably absent from your letter is any assertion that there has been any breach of contract by me.
For want of particularity in your letter before claim and particularly because of your wholesale failure to abide the prescription in the protocol, I am simply not placed to comply with 4 of the protocol or with 6(b) of the applicable Practice Direction.
I put you on notice that, if this matter proceeds to trail, I intend to make an application for costs on the grounds of your unreasonable conduct, your wholly un-particularised letter before claim being but one documented example of that.

[efpom]

I attach the final version of my response - I would welcome any comments on it.

[islandgirl]

leaving the comments on the letter to someone who knows more, if in doubt turn up at the Magistrates court on the day if it is already local to you. At the very least ring / email (or both) and explain the situation. Otherwise the entry will be granted as part of a bundle.

[efpom]

Hello Island Girl - thanks for your comment - I will turn up at a hearing, if I know about it -but I am certain that the Utility Company will try to prevent me from having any knowledge of it!

[islandgirl]

I would agree! I know the legal advisor always asks if anyone has turned up before the person making the application for warrants of entry is sworn in. They will be listed in court so perhaps if you know which court you could ring them and find out when the utility warrants are heard? I am unsure if they have a duty to notify you when it will be but if you are allowed to turn up then presumably they do...May be worth an email or letter to the court to say if your name comes up you wish to know and attend

[R0b]

Out of curiosity, what basis would you be seeking an injunction?

Also, isn't this covered by the pre-action protocols for debt claims rather than the PDPC?

[efpom]

Injunction grounds - Something along the lines of "Supplier has issued LOC therefore it believes there is a live issue to be tried. Proper venue County Court. If pre payment meter fitted will cause damage and inconvenience to Applicant. Injunctive relief to last until trial of the issue or settlement.

Also, if warrant issues appeal is by way of case stated -s111 MCA 1980

Q "Also, isn't this covered by the pre-action protocols for debt claims rather than the PDPC?"

I Agree, but it's not my LOC it's the Supplier's. I cover that in my attachment at post 3

[R0b]

hmm, would probably expand on that and go as far as suggesting that the warrant of entry is vulnerable to abuse (and clearly in this case here) because there is a genuine contractual dispute and the correct forum for that is of course the County Court. Unless the court has a power to restrain large corporates such as the claimant company, warrants of entry can be used as a means to put pressure on n individual into paying an alleged debt despite there being a genuine dispute and reasonable grounds to defend the allegations.

May also be worth mentioning that there could be added costs if the claim is not successful and you have to then get it converted to a credit meter, through no fault of your own, which should be another good reason why any warrant of entry should be stayed pending a court determination of the dispute.

Not sure an inconvenience is sufficient but may be worth throwing it in anyway.

[efpom]

Rob - your comments are much appreciated. Do you have any comment on my proposed reply - Post 3

[R0b]

Personally, it comes across in an aggressive tone and whilst there is no problem in going down that route, it might be better to address the issues in a less aggressive but more assertive tone.

Para. 3 - Don't think is necessary or adds anything other than an opinion about your conduct so I would remove.

Para. 4 - Do you have any authority to back up what you've said? I have never seen a court debar a party from bringing a claim simply because they didn't follow the correct pre-action protocols, especially if the claimant has reasonable grounds for pursuing it. If PAPs aren't complied with then the usual rule is sanctions either through costs or the claim is stayed pending compliance. Prohibiting a valid claim on this basis would be a draconian step akin to a strike out or summary judgment and one which I think would be very easy to appeal.

* Sidenote, if their PAP letter is as yu have written it in post 2, then it's not compliant anyway because it doesn't give sufficient information around the basis of the alleged debt other than saying you owe this money.

Para. 5 - It's common for costs warnings to be included in a letter before claim, not sure what your response adds to it other than you object or don't agree but that's a matter for the court to decide on costs, not you.

Para. 7 - Is it relevant?

Para. 8 - could be beefed up based on what I suggested in last post.

Para. 9 - Looks poncy to me, you could just say that in a sentence instead of having to set it out in the way you have. For example, "In the circumstances, I must make you aware that if [you/your client] insists on making an application for warranty of entry, it is my intention to make representations to the Magistrates' Court as to why a warrant should not be granted. However, if a warrant is granted, then I will take immediate steps to make an application to the County Court for an injunction to refrain [you/your client] from exercising the warrant until the outcome of any civil proceedings in respect of the alleged debt have been determined ..."

I mean overall, nothing in that responds really discusses why you object, disagree with their claim that the alleged debt is owed, or any reference to past history/correspondence etc. Certainly not how I would ago about it, but it's up to you.

[islandgirl]

"hmm, would probably expand on that and go as far as suggesting that the warrant of entry is vulnerable to abuse (and clearly in this case here) because there is a genuine contractual dispute and the correct forum for that is of course the County Court. Unless the court has a power to restrain large corporates such as the claimant company, warrants of entry can be used as a means to put pressure on n individual into paying an alleged debt despite there being a genuine dispute and reasonable grounds to defend the allegations."

As someone who grants these warrants I would disagree that that is usually the case. They are normally issued for non payment. There have to have been several visits where entry has been refused and numerous letters. We have to be sure that there is noone vulnerable in the property. I do not disagree that the system is being used wrongly in this case hence my advice - if the OP arrived in my court and told me what they have told the board there is no way the warrant would be granted. But the Magistrates cannot know any of this unless someone tells them.

[R0b]

Not suggesting that this is usually the case but I do believe it is open to abuse in as much the same way creditors openly abuse people's credit file to put pressure on them paying up a debt that is disputed. Whilst your court may be methodical in the way it approaches these applications, my personal and experience and from others I'm aware of means it isn't always the case.

In fact, I know a handful of cases with similar circumstances to this where despite the customer turning up and making representations of this kind, a warranty of entry has nevertheless been granted only for the customer to have go down the civil court route, obtain an injunction, then make an appeal which is successfully overturned.

I absolutely agree that if a customer is racking up a debt with no intention of paying and hasn't engaged the supplier as to why that person is not liable for the debt, then a warranty of entry in those circumstances would be reasonable.

[efpom]

It would seem that I am not alone!

https://uk.trustpilot.com/review/symbioenergy.co.uk