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it was do do with h1 tags within the site. They are connected to the url within the code and I could not force the first letter of the h tag to be a capital when the urls were lower case.
Make sure all internal linking uses the correct case.
Make sure that all incorrect URLs return 404 or redirect to the correct URL. Use Xenu Linksleuth or similar to be sure.
Google will eventually figure it all out. Make sure that no incorrect URLs invoke any sort of multiple-step redirection chain.
This may be a side issue now, but you can use a CSS text-transform rule to change an all lower-case H tag (in the source code) to display in all upper-case, or with capitalized words. There's no need to have the URLs tied to the capitalization schema of the element in the source code, even if the CMS does seem to link the two.
G was finding new upper case pages and no longer had a linking struture to the old urls, that needed to be found to be removed from the index.
Once you completed 1, stop using redirects or 404s on old mixed case link requests. Use either the server or application scripts to convert requests of the old mixed case links to the new link format then output 200 OK in these cases.
If you are changing the request, you are redirecting. If you handle it as a rewrite, you have not helped the problem.