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Re: Capital One - Lowells
| Today in North London a Claim was dismissed by a District Judge, it wasnt because of a breach of s78, or a defective default notice, but for a reason which should have been flagged up pre issue, it should have been noticed by those reviewing the file before even serving a letter of claim and it goes to show that it is important to comply with the pre action protocols or get your ass whooped if you dont. The problem faced by this claimant was as follows. The Claimant had sued Mrs and claimed that Mrs owed them money arising out of an agreement. On request for documentation there was a wall of silence, with the only response being "were taking instructions" accordingly the only defence the client could lodge was a simple "i have no idea what they are talking about" The Court clearly picked up that there was an issue or two, as it called a preliminary hearing (which took place today) In the run up to the hearing, the opponents provided limited disclosures, in the form of statements, the statements showed that the account was a joint account and therefore the claimants claim fell into real difficulties, why? well s141 (5) Consumer Credit Act 1974 requires all parties to a regulated agreement are party to any proceedings. The problem this claimant faced is that it sued Mrs but not Mr, furthermore, Mr's account had not been assigned to the Claimant, so it couldnt join Mr to proceedings ( see Pickthall v Hill Dickinson) and in addition, since proceedings had been issued, the Claimant could not go back and pursue Mr later , in short the claim was a mess and once proceedings had been issued the Claimant lost any chance of getting its house in order. Accordingly, at the CMC today the Judge dismissed the Claim on the basis that even though the claim may have had merit, the fact the Claimant did not get its house in order and make sure the assignment was carried out correctly to ensure it had a claim against both parties, meant that the claim could never succeed at trial. |
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