Lowells/BW got default ccj, 3 days after 5yrs SB date - scotland - setting aside hearing

[payno69]

Hi all

 

I'm new to this forum and i'm looking for help.

 

I have recently became an owner of a ccj on the 29th july 2014.

 

 

The debt is with shop direct for a total of £4009.

 

 

The ccj was issued at my old address which i havent lived at for 4 years and 9 months in england.

 

 

I now live in scotland.

 

 

I contacted the court to get the judgement set aside on the grounds it should have gone through the scottish court

and if it did then my defence would be its statute barred.

 

 

The default date of the debt on my credit report is 23/05/2009.

 

 

The date the claim started with the court was 26/05/2014.

 

 

It just comes under the statute barred by 3 days according to the credit report.

 

 

I can see bw legal search my report numerous times before the ccj at my new address in scotland.

 

 

I have the hearing on 10th september 2014 can anyone offer any advise?

 

 

I have sent a letter to bw legal for my credit file using a template also i have sent the statute barred letter.

 

 

Do you think bw legal will turn up to the hearing?

 

 

I will be travelling from scotland in the morning and i am nervous.

 

 

Can they adjourn the hearing on the day?

 

 

Thanking you all in advance

[dx100uk]

so this was lowells and BW not shop direct?

 

 

dx

[payno69]

Yes this is lowell and bw. I think shop direct sold the debt to them

[AndyOrch]

Did you inform Shop Direct of your change of Address payno?

 

Regards

 

Andy

[payno69]

No i didnt the reason for this was i bought the items for a customer.

 

 

Shop direct was informed at the time when then items where purchased and they where delivered to the customers address.

 

 

I informed shop direct when my customer stopped paying and they told me over the phone they will chase the customer for the debt.

 

 

I have not received any debt collectors letter.

 

 

I have just got the ccj and

 

 

i only found out about that via my credit file.

 

 

As soon as i saw the ccj i started to investigate with the courts.

[AndyOrch]

Appreciate that but its your account.....not your customers...and your responsibility to advise of a CoA.You purchased the goods under English Law whilst residing in England...therefore the statute of limitations does not apply.

 

With regards to the set a side your application relies on bad service...yes you can prove that they searched you at your new address but as already stated you should have informed Shop Direct of CoA..then the assignee would have no excuse.

[payno69]

So i cant use the statute barred at all?

[AndyOrch]

No because its not...6 years for England and Wales.To successfully set a side a claim you need to offer a credible defence...otherwise its a waste of the fee.

 

Sorry

[payno69]

I live in scotland do i not come under scottish law of 5 years?

[unclebulgaria67]

I live in scotland do i not come under scottish law of 5 years?

 

It is an interesting question, of which I am not sure of the answer.

 

If Lowells/BW Legal noted a scottish address and decided to send a court claim to an old English address of nearly 5 years ago, this must surely be a breach of process. Mistake or a deliberate action ?

[Old Cogger]

If you live in Scotland and enter into a consumer contract in England can you be sued in England? The definition of a 'consumer contract' is set out in paragraph 3(1) below.

 

For example, you take out a loan or HP agreement that says it's governed by the laws of England, or you run up credit with a catalogue company which says it's governed by the laws of England. You default on payments and receive a summons which says you are being sued in an English county court. Is this lawful?

 

If you're domiciled in Scotland (e.g. Scotland is your usual home) and entered into the contract as a consumer then the action will be incompetent, upon the grounds that the County Court does not have legal jurisdiction to hear the case.

 

You can only be sued in the Scottish Sheriff Court where you live. The authority for this statement is paragraph 3(4) of schedule 8 to the Civil Jurisdiction & Judgments Act 1982. Paragraph 3 is set forth below.

 

Even if you have contractually agreed to allow the English courts to decide your dispute (known as 'prorogation of jurisdiction') it is clear that paragraph 3 is not subject to the 'prororgation' rule as set out in paragraph 6 of schedule 8. In other words the paragrpah 3 rule is a primary rule which takes precedence over all other rules in schedule 8 - it cannot be contracted out of (except in accordance with para 3(6) which is unlikely to apply).

 

If you are sued in England, but normally live in Scotland, here is a style defence:

 

example defence in HTM or PDF.

 

Guidance on cross-border jurisdiction from the Department of Trade & Industry.

 

 

 

CIVIL JURISDICTION & JUDGMENTS ACT 1982

 

SCHEDULE 8

 

Jurisdiction over consumer contraact .

 

 

go to Govin Law site:-

[Ganymede]

Civil Jurisdiction and Judgments Act 1982

 

Schedule 8

 

Jurisdiction over consumer contracts

 

F43(1)In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, subject to rule 5, jurisdiction shall be determined by this rule if—

 

(a)it is a contract for the sale of goods on instalment credit terms; or

 

(b)it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

 

©in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in Scotland or, by any means, directs such activities to Scotland or to several places including Scotland, and the contract falls within the scope of such activities.

 

(2)This rule shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

 

(3)A consumer may bring proceedings against the other party to a contract only in—

 

(a)the courts for the place in which that party is domiciled;

 

(b)the courts for the place in which he is himself domiciled; or

 

©any court having jurisdiction by virtue of rule 2(f) or (i).

 

(4)Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i).

 

(5)The provisions of this rule shall not affect the right to bring a counterclaim in the court in which, in accordance with this rule, the original claim is pending.

 

(6)The provisions of this rule may be departed from only by an agreement—

 

(a)which is entered into after the dispute has arisen; or

 

(b)which allows the consumer to bring proceedings in courts other than those indicated in this rule; or

 

©which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Regulation State, and which confers jurisdiction on the courts of that Regulation State, provided that such an agreement is not contrary to the law of that Regulation State.

 

 

Prorogation of jurisdiction

 

F76(1)If the parties have agreed that a court is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court shall have jurisdiction.

 

(2)Such an agreement conferring jurisdiction shall be either—

 

(a)in writing or evidenced in writing; or

 

(b)in a form which accords with practices which the parties have established between themselves; or

 

©in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

 

(3)Any communication by electronic means which provides a durable record of the agreement shall be equivalent to “writing”.

 

(4)The court on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

 

(5)Where an agreement or a trust instrument confers jurisdiction on the courts of the United Kingdom or of Scotland, proceedings to which paragraph (1) or, as the case may be, (4) above applies may be brought in any court in Scotland.

 

(6)Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of rule 5 or where rule 5(2) applies.

 

http://www.legislation.gov.uk/ukpga/1982/27/schedule/8

 

 

 

 

CPR PART 6

 

Service of the claim form where the permission of the court is not required – Scotland and Northern Ireland

 

6.32

(1) The claimant may serve the claim form on a defendant in Scotland or Northern Ireland where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under the 1982 Act and –

 

(a) no proceedings between the parties concerning the same claim are pending in the courts of any other part of the United Kingdom; and

 

(b)

 

(i) the defendant is domiciled in the United Kingdom;

 

(ii) the proceedings are within paragraph 11 of Schedule 4 to the 1982 Act; or

 

(iii) the defendant is a party to an agreement conferring jurisdiction, within paragraph 12 of Schedule 4 to the 1982 Act.

 

(2) The claimant may serve the claim form on a defendant in Scotland or Northern Ireland where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under any enactment other than the 1982 Act notwithstanding that –

 

(a) the person against whom the claim is made is not within the jurisdiction; or

 

(b) the facts giving rise to the claim did not occur within the jurisdiction.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.32

[maroondevo52]

I had a Credit Card claim from Cope's solicitors thrown out because of jurisdiction, claim was sent from Northampton, this was my defence......

 

Denied that this court has jurisdiction. I reside at xx xxxxxxx xx Edinburgh. This is my principal or main home and I am domiciled here for the purpose of section 41 of the Civil Jurisdiction & Judgments Act 1982 ('the 1982 Act').

 

I allegedly, entered into a contractual agreement with the plaintiff as a consumer. Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property which has been arrested and is not applicable. Paragraph 3(6) does not apply. Accordingly, this action is incompetent for want of jurisdiction and should be dismissed with expenses in favour of the defendant.

 

Cope's reply was.........

 

We write further to the above matter and confirm that we act for the Claimant in this matter.

 

Please find enclosed by way of service on you as the Defendant, a copy of the Claimant's Notice of Discontinuance

[Ganymede]

I had a Credit Card claim from Cope's solicitors thrown out because of jurisdiction, claim was sent from Northampton, this was my defence......

 

Denied that this court has jurisdiction. I reside at xx xxxxxxx xx Edinburgh. This is my principal or main home and I am domiciled here for the purpose of section 41 of the Civil Jurisdiction & Judgments Act 1982 ('the 1982 Act').

 

I allegedly, entered into a contractual agreement with the plaintiff as a consumer. Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property which has been arrested and is not applicable. Paragraph 3(6) does not apply. Accordingly, this action is incompetent for want of jurisdiction and should be dismissed with expenses in favour of the defendant.

 

Cope's reply was.........

 

We write further to the above matter and confirm that we act for the Claimant in this matter.

 

Please find enclosed by way of service on you as the Defendant, a copy of the Claimant's Notice of Discontinuance

Did you live in Scotland when you entered into the agreement? I think if you were in England it would be different.

[maroondevo52]

Did you live in Scotland when you entered into the agreement? I think if you were in England it would be different.

 

I did.

[Ganymede]

I did.

Therein lies the difference I think.

 

The Claimant may still yet give up though if they think it's not commercially worth pursuing.

[payno69]

thank you al. you have been helpful

[AndyOrch]

It is an interesting question, of which I am not sure of the answer.

 

If Lowells/BW Legal noted a scottish address and decided to send a court claim to an old English address of nearly 5 years ago, this must surely be a breach of process. Mistake or a deliberate action ?

 

Payno resided in England when he purchased the goods...the agreement was made in England...you cant jump country to get around the statute of limitations.Northampton served the claim on his last known address (ShopDirect were not advised of a CoA) therefore the claim is deemed good service and valid.

 

Regards

 

Andy

[dx100uk]

whilst we are on this Scottish theme.........

 

 

a claimant issues a claimform in England on a debt that was taken out in England

the claimform was sent to the English address

 

 

the defendant has now been resident in Scotland for 5 1/2yrs since last ack.

they have never updated any creditor they had moved

 

the claimant or one their 'group' or an assigned dca on behalf of the claimant

has written several times previously to the Scottish address

but the defendant never acknowledged they had been 'found'

 

 

is the debt statute barred?

 

 

being that they the claimant 'knew' the Scottish address

but chose to file to this English one?

 

 

dx

[AndyOrch]

See above DX you cant up and leave a jurisdiction to bend the rules of Statute of Limitations...the agreement was made in England.

[unclebulgaria67]

See above DX you cant up and leave a jurisdiction to bend the rules of Statute of Limitations...the agreement was made in England.

 

Realise this is about Statute of Limitations and the OP did not inform creditors they had moved, so it was correc to issue a court claim to the last known English address.

 

But lets say for sake of argument, that the OP did inform creditors of an address in a different jurisdiction. This would mean that creditors would have to issue the court claim in the jurisdiction where the debtor was resident. In this case it would have been Scotland and Lowells/BW legal could have issued the court claim in Scotland and the courts there would have applied the English law that applied.

 

Should the lesson here be that if you leave a jurisdiction with a debt left behind, that you should always advise creditors of a foreign address by recorded delivery. Get the creditor to confirm that they have noted the foreign address.

 

I take interest in this subject, as a relative of mine moved abroad with debt and creditors pretty much refused to note the foreign address. They did so with the excuse that they could not correspond with a foreign address due to the cost etc and insisted on a UK address being given to them, even if this were only a relatives/friends address. Of course the reason for this is that they don't want to acknowledge that a debtor is out of jurisdiction because it makes it more difficult, if they ever wanted to enforce the debt.

[Ganymede]

Depends where they've moved to.

 

Moving aboard doesn't always help as the Claimant can, if it's worth it, issue in England and apply for service out of jurisdiction and have the claim heard in England and then apply for enforcement abroad.

 

Unless the debt is large it's unlikely to be commercially viable though.

[sequenci]

Whilst the judgment is likely to stand, it could be more of a challenge to enforce.