Bryan Carter Solicitors, CCJ paperwork!

[ScabHunter]

Christ! How low can Carter sink!

 

If you have posted in good time, it shouldn't be difficult to see this [EDIT] off.

 

Have you acknowledged service yet?

 

SH

[ScabHunter]

Forget about the stress - let's give some to Carter instead.

 

The first step is to go on to the Moneyclaim site and acknowledge service, stating that you will be defending all of the claim. This gives you 33 days from the date of the claim form to submit a defence.

 

The next step is to get some letters ready to send to Carter demanding information under the Civil Procedure Rules.

 

Back in a minute.

 

SH

[ScabHunter]

The most powerful of the Civil Procedure Rules under which you can demand information is CPR 31.14. Have a look here -

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

As you will see from the following rule, CPR 31.15, the claimant has to provide the requested document within 7 days.

 

The limit of CPR 31.14 is that you can only include documents mentioned in the Statement of Case. In this case, you are limited to the agreement. Even that isn't specifically mentioned, but an account number is. Without some form of contract being entered into, there cannot be an account number.

 

The biggest difficulty here is that we do not even know what the account number relates to, as it doesn't even seem to be the defendant's account. It could be a loan, credit card, or bank account overdraft.

 

Nevertheless, we have to go with what we have, so I would send the following letter by Special Delivery -

 

"Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the following document mentioned in your Particulars of Claim:

 

The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

(NAME - print, don't sign)"

 

 

SH

[ScabHunter]

The other important rule is CPR 18.

 

PART 18 - FURTHER INFORMATION - Ministry of Justice

 

This is more versatile, in that you can request information whether or not it is contained in a Statement of Case. It is less powerful, however, because it relies on the court to enforce it. You can't make an application using N244 if this rule is not complied with, as you can with CPR 31.14.

 

With pitiful PoC such as Carter's, it is important to make use of this.

 

Also by Special Delivery, I would send this -

 

"In the Northampton County Court

xxxxxxxxxxx -v- xxxxxxxxxxxx

Claim Number: xxxxxxxxxxxx

 

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION - CPR PART 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Barclaycard.

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

(NAME - print, don't sign)"

 

 

SH

[ScabHunter]

Other considerations -

 

1. Carter never complies with CPR requests. Don't expect to receive any information in response to these requests. They are made so that you can include Carter's non-compliance in your defence, and then challenge him again at the Allocation Questionnaire stage. Eventually, if he wants to continue, he will need to produce some paperwork.

 

2. Carter usually bottles out at the AQ stage if people stand up to him. There are no guarantees, of course, but this character likes easy fights. That is why we are making it as difficult as possible for him right from the start. You will then be able to issue an order for your costs. Have a look at this typical case -

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170673-bryan-carter-ccj-can.html

 

3. Earlier in the thread you were advised to send a CCA request to Arrow Global. The problem in this case is that the nature of the account is unknown, as it doesn't even seem to belong to the defendant. Do you make a request under Section 77(1) [fixed sum credit] or 78(1) [running account credit]?

 

With a quoted account number, it would still be possible to make a request, but you wouldn't be able to use the template letter. You would have to make it clear that you have an account number but that you don't know what it relates to. Therefore you are making a request pursuant to Section 77(1) if the account number relates to fixed sum credit, or Section 78(1) if the account number relates to running account credit.

 

Also include a paragraph stating that if there is no account with this number relating to , please confirm this in writing. If they did, of course, they would be admitting that their claim has no basis.

 

It is a pound to a penny that your request will be ignored, which will just strengthen your case as the claimant will be in default of it when the matter goes to court.

 

4. Another possibility is to send a Subject Access Request to Arrow Global requesting all information they hold on you relating to . If you have never held this account, they will not, of course, be able to produce anything.

 

The disadvantage of this is that it wastes £10. It really is your choice. With Carter, I wouldn't send it. I would just challenge him at the AQ stage.

 

5. This defence is going to need to be tailored to this case, as it is so dissimilar to any other that we have seen. Time to start working on it now, assuming that Carter will ignore your requests. He will.

 

SH

[ScabHunter]

What is the timescale on this? If you don't know when the defence has to be in by, make sure you find out.

 

You want to allow plenty of time, but it would be helpful if Carter was in default of both CPR requests before defence was filed.

 

SH

[ScabHunter]

Carter will never reply to anyone's CPR requests. They are submitted solely to allow you to report his non-compliance to the court.

 

It should be 33 days from the date on the form, because there are days allowed for postage and delivery. You can submit a defence online provided it is short enough. In this case, it certainly will be. Next Tuesday is the 1st and the one after is the 8th. I would prepare a defence to submit on the 8th when the time runs out.

 

You can assume that Carter will not comply with your CPR requests, because I have yet to see one single instance where he has.

 

You have plenty of time to craft your defence, but you may as well get it ready now.

 

SH

[ScabHunter]

Have you got anything drafted yet, or are we starting from scratch?

 

SH

[ScabHunter]

I was all set to help out with this defence when I got home today, but I see that the excellent vjohn82 has already supplied what will be a satisfactory and complete defence in itself.

 

I will just make a couple of suggestions, which you are free to take or leave as you see fit.

 

Firstly, I would split the paragraph containing the reference to CPR 31.14 and CPR 18, because non-compliance with each has different potential consequences. CPR 18, the wider-reaching rule, is at the discretion of the court, whereas CPR 31.14 is defined as an absolute right under the CPR (see CPR 31.15).

 

I would put something like this -

 

4. On xx/xx/2009 the Defendant made a request to the Claimant for the necessary documentation to support the Particulars of Claim, pursuant to Part 31.14 of the Civil Procedure Rules. The Defendant notes that Part 31.15© of the Civil Procedure Rules states that a party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. This legitimate request has been ignored.

 

5. Also on xx/xx/2009, the Defendant made a request to the Claimant for further necessary documentation pursuant to Part 18 of the Civil Procedure Rules. This legitimate request has also been ignored.

 

6. The Claimant's failure to comply with the Civil Procedure Rules Parts 31.14 and 18 leaves the Defendant at a disadvantage and unable to plead effectively or at all. The Defendant is embarrassed in pleading to the Claim as it stands.

 

Secondly, you seem to be saying that the account number quoted in the Particulars of Claim is not one you even recognise. If that is true, then I would deny ever having such an account number, instead of just denying that you owe £282.64.

 

So, before the paragraph numbered 5 in post #22, I would add another paragraph -

5. The Defendant denies ever holding any account with the number xxxxxx, and puts the Claimant to strict proof of this.

 

SH

[ScabHunter]

Those are good points and I would go along with them; especially the part about the account number. I would leave in the part about the value of the debt aswell... so summing up you want to say you do not recognise the account number and you do not recognise the value of the debt.

 

The reason for this is because you are putting them to proof of how the balance was made up (i.e. unlawful charges, non-contractual interest etc).

 

Great points Scab

 

Sorry, yes, just in case there is any confusion - I would add the paragraph I have numbered as 5 before the one numbered 5 in the original defence, and definitely not instead of it.

 

I would leave in the part about the value of the debt aswell...

 

Totally agree.

 

SH

[ScabHunter]

Chez63,

 

Hi and welcome to the CAG. You will get the help you need on this forum, but please start your own thread as this one needs to be kept clear for the needs of the original poster, who is the subject of court action.

 

SH

[ScabHunter]

Yes, DEFINITELY include Carter's non-compliance.

 

Have a read of this thread by pt2537 which covers this situation -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

and then this one, which is a live case featuring Carter where he bottled out at the AQ stage. Your AQ will not be identical, but it will be similar, and this thread will show you how to complete it.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170673-bryan-carter-ccj-can.html

 

Any questions, just shout.

 

SH

[ScabHunter]

What does the fact that I have recieved an AQ mean?

 

It is simply routine. The court needs to allocate the case to a track, so it sends out a questionnaire to both parties.

 

Is receipt of the AQ automatic, or does it mean that BC intend to carry on the CCJ process?

 

The receipt of the AQ is automatic. There will only be a sign that Carter intends to continue the case if and when he submits his AQ and pays the fee (the claimant has to pay a fee to continue, you, as the defendant, don't).

 

SH