defence help after set aside

[Sjyfm]

Hi there, I have had a judgement set aside. The claimant has an order to produce proof of claim.
In a nutshell it's a current account the poc state contract, the date was when I was a 10 year old child. I have had an account with this bank but don't know if the sort code and account number belongs to me. I tried to call but cannot pass security.
The claim is for an overdraft in excess of 10k although this isn't written in the poc it states contract - they won't produce this under crp rules (I know I've never gotten myself into this overdraft) although there may have been an overdraft facility on this account. in the witness statement they talk about it being an overdraft taken out in 2011 - they say there is no contract they won't send me anything under cpr rules and they don't need to provide me with the contract as it's not regulated by cca. (Although this alleged contract was taken out after Feb 2011)
I'm ready to write my defence and needed a little help of where to look for a draft for overdraft?
I have sent a sar to the bank but they may take the full 40 days.
Can I write a defence based on the fact I don't know if the account belongs to me and amend it once I receive details from the bank if it shows it once did ? Because even then I can show that I don't owe the debt ? I am 100% certain I didn't have this overdraft and if it miraculously was accumulated then it's down to charges from who knows where.

[Diana M]

Re: defence help after set aside

Well Done You for getting a set aside

What was the reason for that - claim form served on an incorrect address etc?

What does the Order say about timescales. You say the Claimant has to "produce proof of claim" but what is the exact wording of that Order and by what date must the Claimant comply with those Directions?

Is there a deadline for you to file your Defence following the Claimant's new "proof" typically 14/21 days?

Does it also give the Claimant permission to amend their Particulars of Claim?

Post/type up the original POC to see what they are claiming and why they think they have the right to claim it. Remove anything which could identify you.

Who is the Claimant and who are their solicitors and who was the original creditor/bank (if the debt has been sold on)?

Di

[Sjyfm]

Re: defence help after set aside

Hi di, thank you for getting back to me so quickly. Claim form sent to old address and there is no evidence linking me to it. The poc are vague too.
The order states the claimant shall file and serve any documentary evidence relating to the alleged debt.
I have 21 days for my defence.
They are not allowing them to change their poc.

Their poc states this

The claimant claims payment of the overdue balance due from the defendant under a contract between defendant and HSBC dated on or about xxx 1997 and assigned to the claimant on xxx PARTICULARS account number xxx sort code xxx date item value xxx default balance £10xxx post refrl Cr nil total xxx

The claimant is arrow global and their solicitor is restons.

Thanks di

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The amount is over 10k and has gone to fast track

[Diana M]

Re: defence help after set aside

Is that 21 days (to file your Defence) from the date of the Order, or 21 days after the Claimant produces their "proof", or is it date specific?

It's good to know they don't have permission to amend their POC, did they ask for permission?

If I've understood you correctly the POC state an account opening date when you would have been 10 years old

The Fast Track is a slow process which takes on average 30 weeks from allocation to Trial. During that time they'll have to comply with full disclosure.

I need to ask you loads more questions but a Part 18 question springs to mind.

Thanks for confirming this is Arrow as the Claimant. What precisely are they called on the Claim Form? I have a reason for being pedantic.

Your SAR to HSBC should be useful. How long ago did you send it?

Di

[Sjyfm]

Re: defence help after set aside

Yes the order states I have 21 days after their date to produce their proof and there are dates on them which are 28 days for the claimant after the hearing then my defence is 21 days after their date.
Yes the judge did say if they wish to bring a claim like this then that can leave it as it is, a pile of rubbish. They didn't ask to amend them at the hearing.
Yes that's correct I was 10 when the account opened as stated in the poc.
I have been asking for disclosure for months and I hoped the judge would order so I'm pleased with that.
I don't think part 18 has been discussed I sent cpr 30.14 and they did not cooperate
Their response was no credit agreement was entered into yet the poc state contract. I think this is why the judge made the order.
On the claim form it is arrow global limited.
I sent the sar last week 😀 Thank you di I appreciate your time

[Sjyfm]

Re: defence help after set aside

Just wanted to add their representative did ask the judge if they could specify what proof they wanted and she said I'm not here to do your job for you, I presume the defendant wants something with her signature on it, but she reiterated its for the claimant to prove their case so whatever you bring must be proof.
So I'm presuming they will need to show exactly how it got the this balance too ?

[Diana M]

Re: defence help after set aside

Is there any sanction written into the Order such as their claim be struck out if they don't serve the documents by a particular date?

I was assuming that you hadn't already filed a Defence but if this claim was issued months ago then you may have in which case you're looking at filing an Amended Defence.

I ask because if you haven't already filed a Defence then the Claimant may Discontinue their claim and re-issue with a better POC. If you've already filed a Defence then they would need to make an application to the court for permission to issue a new claim which they're unlikely to get if it's going to be based on the same facts or substantially the same facts including any legal arguments which you raise in your Defence even if they're not in the POC.

Can you clarify what stage these proceedings have reached i.e. what has already taken place and where you are at now.

Di

[Diana M]

Re: defence help after set aside

Just wanted to add their representative did ask the judge if they could specify what proof they wanted and she said I'm not here to do your job for you, I presume the defendant wants something with her signature on it, but she reiterated its for the claimant to prove their case so whatever you bring must be proof.
So I'm presuming they will need to show exactly how it got the this balance too ?

It would be nice if that DJ reserved the case to her . Did she do that?

What was the hearing? Was it a CMC?

In the Fast Track costs become an issue meaning the loser pays the winner's legal costs. So start keeping a diary of the time you've spent dealing with this claim because a LIP can charge £19 per hour if the court allows.

Di

[Sjyfm]

Re: defence help after set aside

No it doesn't show that about it being struck out, but the judge did say if they don't produce the proof I can make an application to strike out the claim based on them not following a court order?
Oh no I haven't submitted any defence yet, this was just from the hearing for the set aside. I wrote in what my defence would be as part of my witness statement so the judge could understand what I had done to try and solve the mystery.
They have just over a week left to disclose the contract so almost 3 weeks has passed and they still haven't sent anything.
If they discontinue and re do poc surely that's not a level playing field as I will have already given them a heads up with the holes in their claim ?

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So we're at the stage where we're waiting for the proof, then I can submit my defence.
That hearing was for the set aside, there is another hearing scheduled case management one after defence is sent.
I have been keeping check on the time already and have written in the correspondence to advise im going to be asking for 19 ph too.
It has taken up so much of my time already.
Been a real headache

[Diana M]

Re: defence help after set aside

Okay, so they've got one week left to comply with that court Order.

Then depending on what they come up with you have a further 21 days to file your Defence from that date even if they don't disclose a bean.

The DJ helpfully told you that if they don't comply with that Order you have the option to make an application to the court to strike out their claim, but she stopped short of including a sanction for non compliance in her Order.

Have I understood that right?

Di

[Sjyfm]

Re: defence help after set aside

And no the dj didn't allocate it to herself, she did say it may or may not be myself so I really don't know

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Yes that sounds exactly right