A certain water company makes a court claim....

[smouk]

Now, this is not actually a panic as such. However some prompt advice would be appreciated!

 

Some background. We're both self-employed and income can be sporadic. Last year was a poor trading year though this year is considerably better. Arrears from last year of approx 50% of bill carried over into this years bill.

 

Starting to make inroads into the balance at the beginning of the billing year and write to them in June setting out intention to reduce balance to less than £400 by end December then to £0 by March. Also emphasised that:

 

• Unpredictable income makes DDs or SOs for periodic set dates impracticable.
  
• Larger payments will be made when funds allow to reduce the balance faster.
  
• No correspondence will be entered into with any third parties.
  

No response. Payment made in July then a threatogram arrives from a DCA in August demanding full amount - ignored (see above). Further threatogram received from DCA, then silence. Still no acknowledgment of letter of June.

 

Large payment made on 23rd October, then Court Claim (CCBC) for full balance, plus solicitors and court costs, received on 24th October, issued on the 19th.

 

Now, this is not a panic because a further large payment can be made and we were on target to hit the zero balance before Christmas. However, I spoke to them yesterday and they say they have no record of my June letter and will not withdraw the claim unless the sums demanded are paid in full before the claim proceeds.

 

Firstly, I am well annoyed at the trigger happy use of the courts and the denial of my letter. It is conceivable they didn't receive it but more likely they have simply lost it. They wouldn't deliberately destroy it - would they? [Memo to self: if it's important, register it!]

 

Secondly, I'll be damned if I'm just going to shell out the solicitors and court charges just to kill the matter - I need to know if they are inevitable.

 

Thirdly, I'm a little suspicious of some advice they gave, namely "write it all down on the defence form and send it back to us - then maybe we can work something out". This to me sounds like "load up the gun and hand it to me".

 

And finally, I feel wronged! Do I have a defence here that could be filed to the court? I could pay off most off the balance next week and probably would have done so - very keen not to repeat last Christmas and the stress-fest it became - so could that show as further good intention?

 

Thoughts anyone?

[BRIGADIER2JCS]

It should not I think be a court issue as you have clearly made the effort to clear the account, the court would expect both parties to have exhausted all other means of of gaining a mutual settlement, however in this case the creditor is intransigent in their attitude which is a boon to your defence!!

 

I you can I would stuff clear the account ignore their stupid attempt to misuse the court system, your acknowledgment of service and defence should be sent to the issueing court.

 

Was the claim pack sent from Northampton CCBCC?

[smouk]

Was the claim pack sent from Northampton CCBCC?

Yup! Particulars of claim are brief and sketchy, along the lines of: invoices sent; installments not met.

 

So, assuming I clear the account except for the court and solicitors fees, you would suggest the defence being "account being settled, claimant being intransigent"? What risks might I be running here?

[Conniff]

I think the water companies use the courts in a similar way to the Councils over CT, they cannot enforce or stop the supply so the only way they have of ensuring collection is to get a ccj, that way it can't become statute barred and they have legitimate means of collection at their disposal.

[Ell-enn]

Severn Trent Water issue court claims like confetti - they have a special "department" for dealing with claims and the Claim Form always says to send your admission/defence back to them and they will decide whether it's acceptable or not. I know of at least one person who did this and the next thing they knew they had a court judgement to pay £200 a month. Apparently ST had informed the court that the offer wasn't acceptable and got judgement for a higher amount - unbelievable ! Seems like the offers of payment never get seen by the court.....

[smouk]

Thanks Ell-enn - my gun theory was right then!

 

So, I can file a defence to the court, pay down or pay off the outstanding balance and then hope that the court sees a certain water company as trigger-happy, intransigent chancers?

[BRIGADIER2JCS]

Yep:madgrin:

[citizenB]

Under no circumstances return the documents to the company.. you must submit to the court.

[smouk]

Claim acknowledged - defending all of claim - and now coming up to the deadline for defence submission to Northampton. If I post up some scratchings here would someone in-the-know mind giving them the once over?

[smouk]

Anyone? In particular I'm sure I have seen CPR reference (or similar) that requires an LBA be sent - which wasn't in this instance.

[citizenB]

It is in pre action protocols..

 

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol

 

I think it is the first link "practice directions - pre action conduct"

 

HTH

[Andyorch]

Hi smouk

 

Could you possibly type out (verbatim less any identifying data) or post a copy of the particulars of claim.

 

Regards

 

Andy

[smouk]

Thanks CitB and Andy

 

What I'm unsure of now is:

 

a. Counterclaiming. If I can claim my time @ 9.25ph plus expenses - is that my counterclaim?

b. Is it worth my emphasising the, er, "tricks" I mention at 14?

c. Should I add an aggrieved paragraph as a summary?

 

Anyway, so far....

 

1.

This claim should be dismissed on the grounds that this action is unnecessary. We have made a substantial effort to clear the account and the remaining balance outstanding is a relatively nominal sum. The claimant has ignored our communication are being intransigent.

2.

Aware of our arrears situation we wrote to A CERTAIN WATER CO. on 21/6/2012 [see appendix 1].

3.

The letter reiterated our ongoing problem with erratic income (both of us being self-employed), the poor trading year of 2011/12 and the significantly improved trading year in 2012/13.

4.

Accordingly we also set out a viable proposal for the reduction and elimination of the outstanding balance in stepped phases to culminate in a zero balance no later than March 2013 and, quite possibly, before end December 2012.

5.

We also advised A CERTAIN WATER CO. that we would not enter into any dialogue with any third party.

6.

No response was forthcoming from A CERTAIN WATER CO..

7.

We were however contacted on several occasions by XXX, a third party collection agency.

8.

In accordance with our payment proposal, payment of £000 was made to A CERTAIN WATER CO. on 23/10/2012.

9.

Nonetheless, this claim was issued by A CERTAIN WATER CO. on 19/10/2012 and was received by ourselves on 24/10/2012.

10.

No forewarning of the claimwas received from A CERTAIN WATER CO., in contravention of items 6, 7 and 8 of the PRACTICE DIRECTION – PRE-ACTION CONDUCT.

11.

Contacting A CERTAIN WATER CO. by telephone on 25/10/2012, we were told that:

12.

Only a payment of the full amount of the claim - including court costs and solicitor's fees, and already an incorrect amount following the payment of 23/10/2012 - would prevent the matter proceeding to court.

13

No record was available of our letter of 21/6/2012.

14.

Our proposed repayment plan might possibly be acceptable to A CERTAIN WATER CO. - but only if it were to include the court costs and solicitor's fees. Furthermore, the plan would have to be returned to A CERTAIN WATER CO. as a component of the completed Court response pack.

15.

The member of staff concerned was unable to answer any of our questions directly and had to repeatedly refer to a "colleague".

16.

In accordance with our payment proposal, payment of £000 was made on 30/10/2012.

17.

Further payment of £000 was made on 2/11/2012. The current outstanding balance is £00.00 and that balance should be eliminated before end November 2012 - far in advance of our original proposal and probably most other A CERTAIN WATER CO. customers.

 

The Appendix

 

Re: Customer Ref. 0000000000000 Dear Sirs

Further to your Instalment Reminder of 14th June I should like to draw your attention our current circumstances and how we propose to settle the account over the coming months to the end of this billing year (March 2013).

As you should be aware from my earlier discussions with your offices we are both self-employed. Unfortunately, 2011 and 2012 have been difficult trading years, resulting in a reduced income arriving in sporadic “bursts”. However, we now have a more healthy “order book” and income should be sufficient to settle the outstanding sums before March 2012.

At the time of writing I calculate the outstanding balance to be £000.00. Therefore, I propose that payments will be made to A CERTAIN WATER CO as frequently as possible - allowing for the intermittent nature of our finances which precludes the use of Direct Debit or Standing Order - and that those payments will allow the balance to be reduced to a sum no greater than £000 by December 31st 2012 and subsequently a zero balance by March 2013.

Please note that we take this situation seriously and are resolved to settle the outstanding balances as soon as possible so, should funds allow, then larger payments will be made. As such, I trust you will favour this proposal.

As per my previous communications with A CERTAIN WATER CO, please be advised that we will not enter into any dialogue with any third parties concerning our this account.

Yours sincerely

Edited November 20, 2012 by smouk
Brain Fade

[Andyorch]

Hi smouk

 

Could you possibly type out (verbatim less any identifying data) or post a copy of the particulars of claim.

 

Regards

 

Andy

 

Particulars of claim (N1 Northampton) blue summons please smouk.

 

Regards

 

Andy

[smouk]

[Andyorch]

Posting for information :- http://www.legislation.gov.uk/ukpga/1991/56/contents

 

In particular 150A :- http://www.legislation.gov.uk/ukpga/1991/56/section/150A

 

In particular 150A (8) :-

 

8)No relevant undertaker may commence proceedings before any court in respect of any charge in connection with the supply of water for domestic purposes or (as the case may be) the provision of sewerage services other than by the carrying out of trade effluent functions unless, not less than 28 days before doing so, the customer concerned was informed by it, in such form and manner as may be prescribed, of—

(a)its intention to commence proceedings;

(b)the customer’s rights by virtue of this section; and

©such other matters (if any) as may be prescribed.

[citizenB]

BTW, litigant in person time now is £18.00 per hour.

[smouk]

Thanks Andy - incorporated at 10.

 

Thanks CitB - so, my counterclaim could be 6 hours @ £18 (= £108), plus court costs, plus any expenses?

[Andyorch]

What date is your defence due smouk?

[smouk]

Thursday at 4pm is the DL but I need to shift it tonight if poss - too many things going on.

[Andyorch]

Ok there is no specific PAP in relation to utility debts but section III of the-link posted above by CB Practice Direction Annex A (2)

 

Sanctions for non-compliance

4.5

The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

4.6

If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –

(1) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;

(2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

(3) an order that the party at fault pays those costs on an indemnity basis (rule 44.4(3) sets out the definition of the assessment of costs on an indemnity basis);

(4) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;

(5) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

 

 

Any defence should contain reference to the above to counter their pleadings of Sec 143 The water industry Act 1991 and in particular sec 142.Costs in the case follow the result so providing this can be successfully defended then your costs will be granted at fixed rate in particular because of the failure to follow Pre Action Protocol (see above Sanctions).

 

Smouk did you state that the initial debt would be settled pre submission of defence?.

 

Andy

[smouk]

Thanks Andy - I think I'm beginning to get my head round this.

 

As of now there is a sub-£100 sum O/S and that can be paid off at the end of this week - erratic income!

[Andyorch]

Excellent so by the time the defence is submitted the debt will be clear...the question of court costs and sol fees will remain in abeyance which the defence will refute by use of the none compliance of PaP

and the sanction enforced by the court.

 

I can draft you defence but it wont be until later this evening.

 

Regards

 

Andy

[smouk]

That would be fantastic! I can fire it off tomorrow before lunch.

[smouk]

From the website of a Certain Water co...

 

If we make an error or omission which causes a Court Claim to be issued against you incorrectly for non-payment of charges, we will pay you £100 and withdraw associated fees and costs.