If i had a £1.00 for each time a claim landed on my desk which failed to even set out the basics of the Claim which the Defendant is likely to meet at trial, i wouldn’t need to work ever again.
The problem arises out of the CCBC in Northampton, many debt purchasers use firms of solicitors to issue claims via the bulk centre for speed and cost effectiveness. What the bulk centre is being used for however is issuing dross that would embarrass a primary school student.
One of the main justifications for appalling pleadings and the failure to attach documents to the Claim form is this
(3A) The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the Centre, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.
And the fact that the bulk centre CCBC only allows around 1024 characters for the Claim form. However as can be seen above, there is a provision in the CPR for the particulars of claim to follow. CPR 7 PD 7C states
(1) Subject to the sub-paragraphs below, the claimant may serve and file particulars of claim separately from the claim form but the claimant must in the claim form –
(a) state that the particulars of claim will follow; and
(b) include a brief summary of the claim.
(2) Where the claimant serves the particulars of claim separately from the claim form pursuant to sub-paragraph (1), the claimant must –
(a) serve the particulars of claim in accordance with rule 7.4(1)(b); and
(b) file a certificate of service in form N215 at the Centre within 14 days of service of the particulars of claim on the defendant.
(3) The claimant must file the particulars of claim at the court to which the proceedings are sent under paragraph 1.3(2)(e)(iii) or (f) within 7 days of service of the notice that the proceedings have been sent.
So clearly it is permissible to plead PARTICULARS OF CLAIM TO FOLLOW, something which seems always to get overlooked by the debt purchase world.
So what am i complaining about? Well, we see claims which arise out of a regulated consumer credit agreement for a credit card for example. The debtor breaches the contract in some way or fails to pay the full payments. The account gets assigned to numerous creditors. So the chain of assignment becomes important as does service of the notice. Under the Consumer Credit Act there is the need for a Default notice where the creditor relies on breach or if he relies on an alternate provision for termination such as s98A CCA 1974 he should also plead that too.
What we often get however is this
The Claimant claims an overdue balance under a contract with the original creditor. The contract was assigned. And the Claimant claims
So, no date of contract, no details of who the contract was with, no details of whether the contract was regulated, no details of the term alleged to have been breached, no detail of the degree of breach, no detail of the last payment, no detail of the assignment? Equitable or Legal? Was notice served? Who knows, what about a Default notice? Was one served? Who by? The list goes on and on.
The leading commentary on Consumer Credit Law Goode Consumer Credit Law and Practice makes it clear that all of the above points must be pleaded if a claim is to comply with CPR 16.
Goode [46.48] makes this point very very clear. Yet here we are with claimants issuing claims through the CCBC and the Court allowing it!!.
What is more frustrating is when you ask for documents under CPR 31.14 the opponent lawyers take great delight in highlighting that they haven’t mentioned the documents in the pleadings so under CPR 31.14 you cant have them. This leaves the Defendant facing having to apply for an order and paying exorbitant fees for the application.
The CCBC clearly has a use but it is being abused badly, and this needs to stop. So hopefully the High Court will consider one of these cases and give some clear direction on the pleadings. After all, how can you answer a point that isnt pleaded? How can you know what the Claim is going to be at trial?
An application to strike out is obviously an option, but really the Claim should be pleaded properly in the first place and what’s more, often the Courts wont strike out and give the Claimant a second bite of the cherry. Plus having to apply to strike out leaves the client having to fund the Court fee for the application which isnt a small sum either, and lets not forget most of these clients are already in a financially distressed state so having to fork out more money clearly isnt right.
There is surprisingly very little case law on this, especially on the requirements of pleadings in cases involving consumer credit act regulated contracts, hence why it seems high time that the High Court should get the chance to properly consider these awfully pleaded claims and give some clear guidance to those debt purchasers and their lawyers who use the CCBC. Watch this space.