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    • love the extra £1000 charge for confidentialy there BF   Also OP even if they don't offer OOC it doesn't mean your claim isn't good. I had 3 against EVRi that were heard over the last 3 weeks. They sent me emails asking me to discontinue as I wouldn't win. Went infront of a judge and won all 3.    Just remember the law is on your side. The judges will be aware of this.   Where you can its important to try to point out at the hearing the specific part of the contract they breached. I found this was very helpful and the Judge made reference to it when they gave their judgements and it seemed this was pretty important as once you have identified a specific breach the matter turns straight to liability. From there its a case of pointing out the unlawfullness of their insurance and then that should be it.
    • I know dx and thanks again for yours and others help. I was 99.999% certain last payment was over six years ago if not longer.  👍
    • Paragraph 23 – "standard industry practice" – put this in bold type. They are stupid to rely on this and we might as well carry on emphasising how stupid they are. I wonder why they could even have begun to think some kind of compelling argument – "the other boys do it so I do it as well…" Same with paragraph 26   Paragraph 45 – The Defendants have so far been unable to produce any judgements at any level which disagree with the three judgements…  …court, but I would respectfully request…   Just the few amendments above – and I think it's fine. I think you should stick to the format that you are using. This has been used lots of times and has even been applauded by judges for being meticulous and clear. You aren't a professional. Nobody is expecting professional standards and although it's important that you understand exactly what you are doing – you don't really want to come over to the judge that you have done this kind of thing before. As a litigant in person you get a certain licence/leeway from judges and that is helpful to you – especially if you are facing a professional advocate. The way this is laid out is far clearer than the mess that you will get from EVRi. Quite frankly they undermine their own credibility by trying to say that they should win simply because it is "standard industry practice". It wouldn't at all surprise me if EVRi make you a last moment offer of the entire value of your claim partly to avoid judgement and also partly to avoid the embarrassment of having this kind of rubbish exposed in court. If they do happen to do that, then you should make sure that they pay everything. If they suddenly make you an out-of-court offer and this means that they are worried that they are going to lose and so you must make sure that you get every penny – interest, costs – everything you claimed. Finally, if they do make you an out-of-court offer they will try to sign you up to a confidentiality agreement. The answer to that is absolutely – No. It's not part of the claim and if they want to settle then they settle the claim as it stands and don't try add anything on. If they want confidentiality then that will cost an extra £1000. If they don't like it then they can go do the other thing. Once you have made the amendments suggested above – it should be the final version. court,. I don't think we are going to make any more changes. Your next job good to make sure that you are completely familiar with it all. That you understand the arguments. Have you made a court familiarisation visit?
    • just type no need to keep hitting quote... as has already been said, they use their own criteria. if a person is not stated as linked to you on your file then no cant hurt you. not all creditors use every CRA provider, there are only 3 main credit file providers mind, the rest are just 3rd party data sharers. if you already have revolving credit on your file there is no need to apply for anything just 'because' you need to show you can handle money. if you have bank account(s) and a mortgage which you are servicing (paying) then nothing more can improve your score, despite what these 'scam' sites claiml  its all a CON!!  
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Barclaycard/Lewis/CL Finance/Cohen Court Claim Help Please **WON**


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Hi all, thought i'd start a new thread on this one.

A brief history first.

I stopped paying minimum payments september 07, and began paying pro-rata payments on the advice of CCCS, Barclaycard have continued adding late payment fees and interest ever since and the balance has gone up considerably because of this.

I CCAd them and got an application form with no prescribed terms, and some T&Cs not linked to the app form, i complained, but they have always maintained what they have sent complies with the CCA.

I then got phone calls and a letter out of the blue from Lewis Debt Recovery, with a notice of assignment on the letter to CL Finance, i.e. saying CL have bought the debt.however nothing from Barclaycard to that effect.

On advice on here i CCAd Lewis but heard nothing.

Next thing i get is a court claim from northampton court with Cohens acting for CL.

 

I will post up the POC, and the other docs i have in the next post.

All help and advice will be very welcome

Cheers

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Here is the POC, claim dated 14 july 08

 

The claimants claim is for the sum of £5093.33 being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and Barclays Bank Plc T/a Barclaycard under reference xxxxxxxxxxx and assigned to the claimant on 12th june 2008.

 

The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the defendant persuant to section 87(1) of the Consumer Credit Act 1974

The claimant claims the sum of 5093.33

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi, CCM,

 

I got a similar claim recently, with the CL, Cohens & Barclays mob claiming I owed £xxx when they clearly had no enforceable agreement.

 

I put in a standard defence, ie, no enforceable agreement, default notice consisting of cherges etc, and they got struck out at the AQ stage , (their lawyers failed to submit the AQ on time).

 

I wonder if this mob just test the waters with an initial claim, then scarper once they know you are willing to defend!

 

Here's hoping you get a similar result!

 

BAE:)

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Hi blossom and thanks for your reply, if there going to back out they usually do it at the AQ stage because they have to pay quite a bit of money to file it, and if their case looks thin and youre defence looks good they discontinue

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi blossom and thanks for your reply, if there going to back out they usually do it at the AQ stage because they have to pay quite a bit of money to file it, and if their case looks thin and youre defence looks good they discontinue

 

You seem to have them sussed. :)

 

Good luck with the defence - once you've posted it I'll see if there's anything that I included that you could also use (although you will probably produce a better defence than the one I cobbled together!).

 

BAE :)

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Sent this CPR to CL and copy to Cohens by special D

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Barclaycard.

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi CCM

 

Sounds good. As you know I am close to this situation, i will be referring back to this thread when I sort my defense.

 

If only ALL credit card customers knew about this forum. A lot of less worried citizens I think!

 

Spread the word!

 

 

Thanks again.

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Update, letter from C L Finance, Cohens have advised they are not obliged to provide any information re my CPR request, and that the Particulars of Claim are sufficient to allow me to respond.

 

Any thoughts?

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Update, letter from C L Finance, Cohens have advised they are not obliged to provide any information re my CPR request, and that the Particulars of Claim are sufficient to allow me to respond.

 

Any thoughts?

 

Should i be writing to the court outlining their refusal to comply with my CPR request?

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi CCM

 

I should save it and hit them with your defence at a the appropiate time.Nothing new after all is it non complience to CPR 18 request!

 

 

 

Regards

Andy;)

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

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Update just to say still nothing regards my CPR request, although im not expecting anything as they have said they don't have to comply with the CPR.

Anyone else with any thoughts?

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi, yes we are, im going to be working on it this week, its due sometime in august, i'm going to do an embarrased defence based on the fact that the other side have been uncooperative re the CPR etc, ill keep posting up what ive got and we can compare notes as we go along if thats alright

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Here is the letter from C L Finance dated 17th July and following my CPR request.

 

Dear...

We refer to your recent letter in which you have made a request for information under the Civil Procedure Rules.

We have been in contact with our solicitors, Howard Cohen & Co who have advised that we are not obliged to provide this information, and would advise that the Particulars of Claim detailed in the County Court Claim Form should be sufficient to allow you to respond accordingly.

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment. Failure to do so will result in a judgement being entered without reference to you.

Please be advised that all contact must be with Howard Cohen & Co Solicitors who have authority to discuss this matter with you.

We trust this clarifies our position on this matter

 

Now just before i file my defence im thinking of sending them a letter saying i will be presenting this letter to the judge on the day of trial

 

Any thoughts on this, im just trying to pile on a bit more pressure?

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Yes and thats fine, they are NOT cooperating with the court process, thats why im thinking of piling on a bit more pressure just before the defence gets filed.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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I will keep a close eye on your thread as we are heading the same way with BC/CL/HC.

 

requested CPR18 on 9/07 but nothing back not even an acknowledgment!!!!

 

Trying to work out a defence now, got to be in on 8/08

 

Sytra

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Hi all, i have started drafting a defence and thought i would put up what i have so far, its all using bits of pauls defences, any thoughts or ideas are welcome at this stage, as i know several others are in the same boat here with CL

 

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

C L Finance Ltd - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by C L Finance Ltd

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

5. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the 08/01/2008 I wrote to Barclaycard requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . Barclaycard replied to my request on the 23/01/2008 supplying an Application Form without any prescribed terms.

 

10. I wrote to Barclaycard setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents. Barclaycard wrote back claiming the Application Form was a valid Consumer Credit Agreement under the 1974 Act.

 

11. Ultimately Barclaycard passed the account over to Mercers Debt Collection

Agency, then it was transferred to Lewis Debt Recovery. On 18/06/2008 Lewis wrote to me to say that C.L.Finance were now the owners of the alleged debt, On 30/06/08 I wrote to Lewis requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974, ( letter attached marked Exhibit A) and to date I have received nothing from them. Shortly afterwards I received the court claim form.

 

 

 

The Request for Disclosure

 

12. Further to the case, on 16/07/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules (letter attached marked Exhibit B), which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

13. To Date the claimant has refused my request under the CPR (letter from CL Finance attached marked Exhibit C) and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially as I am a Litigant in Person.

 

14. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

15. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

16. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

17. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

18. Notwithstanding points 14 and 15, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

19. The claimant is therefore put to strict proof that such a compliant document exists

 

 

20. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

21. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

22. Notwithstanding point 21, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

23. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

24. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

25. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

26. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxxxxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

 

 

Updated to latest version 0730 today

Edited by creditcardmug
updated doc

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Hi, just bumping this for anyone to check my defence before i file it

cheers

 

Should i inlcude something re not receiving a letter before action?

Edited by creditcardmug

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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