Court papers and CPR 31.14 non compliance

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

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Take out inability and change to with a hearing. It's £80 with a hearing and you wish to present your case as i have seen an application refused without a hearing which i gather is pretty rare in the circumstances.

I'm still going over it. You also need a witness statement explaining the steps you have taken etc.

M1

[miliitant]

Re: Court papers and CPR 31.14 non comppliance

is the witness statement not included within the N244 application. point 10

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

is the witness statement not included within the N244 application. point 10

I guess it could be but it hasn't been. No mention of all the efforts made to get the disclosure such as phone calls, emails.

M1

[miliitant]

Re: Court papers and CPR 31.14 non comppliance

I see your point for future reference, a separate witness statement can be sent to the court but also I take it these things can also be brought up at the application hearing as well to inform the judge. I would have thought that the mere fact a request under the civil procedure rules would be enough on its own for compliance and it is not up to the defendant to chase up the claimant on their tardiness

[ruthles112]

Re: Court papers and CPR 31.14 non comppliance

whew - short break for dinner and it all happens! I can attach (and refer?) to email exchange re their request to client for copy documents and agreement (eventually) to additional 28 days to 5 Dec. Also chasing/threatening email on Tuesday evening giving them a deadline of Monday 19th post for receipt of docs and notes on 4 telephone calls chasing up wich have resulted in nothing in writing and no further info when to expect docs.

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

Sounds good to me. Add to box 3 after what you have written :-

which is contrary to LJ Rix in Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008) who said at para 24 "The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman's second point, that the mention of a document within CPR 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?



M1

[ruthles112]

Re: Court papers and CPR 31.14 non comppliance

Thanks - I'll make the amendments tomorrow. What was the answer to my question about Allocation Questionnaire (see #58). Is the difference between N244 application and AQ that you have submitted a defence before the AQ but no defence with N244 - just hoping to get case thrown out by a technicality.
Re the draft order, do we have to give them 14 days since by Monday 19 Nov they'll already have had 28 days since they received my request. Also in the draft order why do we put specific dates when as I understand from elsewhere the timescale on the claim stops until the Judge has ruled on it. Can they 'stay' the case at any time ie might they have done that today before we get our N244 application in? Lastly if we get the case struck out can Arrow Global assign the debt to someone else and we possibly start all over again.

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

1. Yes to get to AQ stage you need to defend. If you put in a defence you are taken to understand the claim and may incur costs if you need to amend. The unless order you are doing doesn't have this issue but it costs you £80 for the hearing unless you don't have to pay court fees.

2. The court won't hear this in time for your dates to take effect and will put in their own dates. They will get at least 14 days imo.

3. If the claim is based on the same facts then "res judicata" would come in to play. You could in theory, if the claim is struck out/discontinued, strike a deal with them to write it off but they'd want you gagged and/or no costs in return. I wouldn't do this but if it helps you sleep.

4. Once a court has an application it's clear you are participating so it would be wrong of a judge to allow a default judgement whilst your application is in progress.

5. They may comply with disclosure.

M1

[ruthles112]

Re: Court papers and CPR 31.14 non comppliance

good afternoon. Thanks for info.
I've revised the N244 form boxes 3 and 10 as attached. Anything further to add?
Can't seem to find any info about whether I can submit it and accompanying docs online so assume I'll have to post on Monday (Special delivery). How many copies do I need to send? Do I ring the Court on Monday and pay by debit card. Thanks again.
Also I have further questions:
after submission of N244 will hearing be called ONLY if they don't comply and produce docs in time?
As I'm not submitting a defence yet what sort of questions will I have to answer at requested hearing. My secretary has been doing most of the work/research on this forum. Can I prepare a written statement so I have all the correct answers to give?

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

Seems fine to me.

M1

[Nikolai]

Re: Court papers and CPR 31.14 non comppliance

Seems fine to me too. In fact it's better than some of the stuff I've seen from professional lawyers. Let us know how you get on.
To answer your queries, a hearing will be fixed when the court receives your N244 application. You will be attending as it's your application. Whether the opponent attends is up to them. I think you only have to send one copy to the court, but if you're feeling generous send two because the court sends one to the opponent and you might gain brownie points from the court by supplying them with sufficient copies.
If I think of anything else I'll post again.

[ruthles112]

Re: Court papers and CPR 31.14 non comppliance

Hello again. As you can see from previous thread, I submitted a N244 application to Northampton CBBC on 19 November 2012 asking for an 'unless' order re. non disclosure of requested docs under CPR31.14. Northampton CCBC sent a notice of Transfer of Proceedings to local court on 20 Nov. I chased up the local court on 28 Nov who told me they were not sure the file had arrived and they'd phone back with an update. They didn't. I phoned again 4/12/12 and was told file was transferred electronically on 20/11 but no physical papers yet received. They suggested I chase up Northampton which I did and a note was put on file that local court had not yet received it. I was told that it should be transferred 'in a couple of days'. Checked again on 7/12. Still not received. They said they'd get on to courier for tracking number and chase up. Rang again on 11/12 who confirmed file had arrived and would be dealt with on following day (12/12). I heard nothing but assumed Christmas/New Year to blame. On Wednesday, 9 Jan I rang local court again to find out what was happening. They told me that although file was received in December it was not complete and further papers had to be requested. It was now received in full and would go up to the Judge that day (9 January) and I'd hear from court in next 7 days.
Magically, letter received yesterday (10 Jan) from Claimant's solicitor dated 8 January 2013 enclosing SOME but NOT ALL of the requested docs. Call me a synic but do they perhaps have a man on the inside?
Anyway, they've supplied
1) Statement of Account (copy of last MBNA statement dated 10 March 2010 - which was not requested)
2) a very small (A5) copy of the original signed application form
3) copy of Notice of Assignment from Arrow Global dated 15 Jan 2012. Solicitor's letter states "Our client can confirm that service of the Notice of assignment was by first class post. Furthermore, please note that our client is not at liberty to provide you with a copy of deed of assignment."
So what now??? They haven't complied fully with my CPR31.14 request and with all the delays by the court system the 'unless' order will not have been issued before they supplied some of the requested paperwork.
Urgent advice required!!
Thanks to you all for your help.

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

Don't worry about the time the court system takes. Just abide by any deadlines they give you. They have it now so that's the main thing.

As for the unless order, is it the deed of assignment and default notice that haven't appeared ? It might not be worth fighting for the deed although they should, but won't usually, suply it. The default notice is important.

The 31.14 application was to enable you to defend the claim or assess the situation. Do you think you have the information you need to do this ? If not proceed to the hearing for your unless order.

If yes then read this http://www.legalbeagles.info/forums/...756#post307756

M1

[ruthles112]

Re: Court papers and CPR 31.14 non comppliance

Thanks for prompt reply. What I asked for and they've supplied is as follows:
1) agreement (although only small copy of the application page - no terms & conditions)
2) deed of assignment NOT SUPPLIED
3) notice of assignment. This is merely a letter advising that MBNA has assigned 'all of its respective rights, title and interest in respect of the amounts due under the above referenced account (including the right to receive payment of the outstanding balance) to Arrow Global Guernsey Ltd. Two things here - first the account number the letter quotes is NOT the same MBNA account number that I was issued with and as shown on the monthly statements. Secondly their letter says 'client confirms Notice was by first class post'. After reading other stuff from miliitant (CL Finance trying to get CCJ without default notice #66) Law of Property Act says notice must be served in a registered letter and notice was therefore not sufficiently served!
4) Default notice NOT SUPPLIED
5) Termination notice NOT SUPPLIED (actually this is not mentioned in the Particulars of claim but my CPR31.14 requested it.
Why is the default notice so important?
Overall I would prefer to try to get the thing struck out by proving they haven't supplied required info and as a last resort put in a defence if there is no other way.
Should I just wait now for notice from the Court about what action the judge has decided? Should I advise the court that some of the paperwork has been received?
Thanks again.
Thanks

[mystery1]

Re: Court papers and CPR 31.14 non comppliance

If they have supplied a caa devoid of terms and conditions especially prescribed terms then this is good news. 1. They don't have them. 2. Even if they do any later production has cost implications for them.

Did you ever S78 them sending £1 for a copy ?

The deed is mentioned, IMO, and as such should be available to you. I'm not 100% a judge will agree but they should.

The notice of assignment, i believe, Militant is correct but i would need to double check. Have you ever admitted to or actually received it ?

The default notice is vital to them and you have asked and should get it or an admittance that they don't have it. This is where i'd push hardest on the unless order. The reason it is important is s87 -89 of the CCA http://www.legislation.gov.uk/ukpga/1974/39/part/VII

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html A good guide to why.

Also para 75 of Harrison

1. The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements.

http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html



As you want to proceed with the unless order then yes you'd want to inform the court of partial compliance. I would also contact the claimant and restate that they have not complied in full and that you have applied to the court and will be seeking the costs of such.

M1