So here we are again, Lowells issue a claim but fail to plead it correctly, they fail to mention a document which the Court of Appeal confirmed was central to the cause of action.
So what can you do when a creditor fails to plead their case correctly? well there are a number of options, you could simply file a defence, you could let the claim plod on to trial. You may win, or you may get a judge who decides to adjourn to let Lowells go away and put their house in order, afterall HHJ Charles Harris allowed 6 adjournments in Hillesden Securities v Harry Moore, a case which was reported in the Telegraph.
Another option is to make an application for Summary Judgment, it has risks attached but then again so does going to the shops. If the Claimant hasnt pleaded their claim correctly you can apply for strike out under CPR 3 or for Summary Judgment under CPR 24.
I had exactly this issue once again, Lowells issued a claim that required a Default notice but didnt mention one in the pleadings. I advised the client on their options and it was agreed we would apply to strike out.
Lowells rather than strike out decided to throw a curve ball, and sought to amend their claim. The pleaded some 5 pages and annexed a load of exhibits, clearly in response to the summary judgment application. Lowells sought to argue that they should in some way be allowed to amend their claim and that we should not be able to recover any costs, this was the most absurd position to adopt. Plainly the rules state a party seeking to amend is normally liable for the costs of the amendments, second if our application was to be withdrawn it was only because of the volte face performed by Lowells in putting a completely new claim on the table, thus they would be exposed on costs.
We offered them the chance to withdraw the application if they paid the costs, at that point they could have saved themselves a tonne of money if only they had accepted…………..but they didnt.
They decided to play silly games, so i placed all my letters before the Court, instructed Counsel (Thanks to Mr Conor Mullan of Pump Court) and we attended the hearing today, they lost, their amended particulars of claim were accepted by the Court, we now have to file a defence, and they have to pay the costs, which effectively mean their claim is not likely to produce any profit for them if they were to win at trial.
As for their hopes of winning this claim with the amended pleadings, i think they may want to consider their case, their agreement as they call it has no terms at all, it cannot be a contract, pure and simple, it has no obligations no terms no conditions , secondly their default notice, well i hate to tell them but it is still defective, badly defective.