sainsbury bank/CCP claimform - old consumer credit agreement **WON Discontinued**

[rosierose]

I am being sued by a ccp that is in default of an s77 agreement request. There is little cause of action in their claim, just a statement saying "rosie owes us xxxx, details already provided."

 

Well, I sent a request for disclosure for a whole load of stuff, including the agreement, only to be told that they can't send me anything as "the court is dealing with it." Now, I'm no expert in CPR, but might this mean that in refusing to send me anything that any document listed in my request is inadmissible?

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

I would really appreciate any learned opinion on this. I have until Monday to file a defence and counter-claim.

 

Many Thanks

 

Rosie

[pt2537]

I would say my opening statement would be The Particulars of Claim are embarassing and donot disclose sufficient ground for the action"based on what you have said

 

also i would put them to strict proof.

 

the fact that they have failed to comply with your section 77 request should halt the action unless they produce a valid agreement. you should highlight to the court that you have issued a CPR request and that the claimant has failed to comply. judges tend to take a dim view on these things and would probably consider the claimant vexatious

 

i will do some more digging through my files and see what i can find out for you

 

Regards

paul

[AndyOrch]

What are the bases of your counterclaim? If any you dont have to submit this at this stage

 

 

Regards

[rosierose]

I would say my opening statement would be The Particulars of Claim are embarassing and donot disclose sufficient ground for the action"based on what you have said

 

also i would put them to strict proof.

 

the fact that they have failed to comply with your section 77 request should halt the action unless they produce a valid agreement. you should highlight to the court that you have issued a CPR request and that the claimant has failed to comply. judges tend to take a dim view on these things and would probably consider the claimant vexatious

 

i will do some more digging through my files and see what i can find out for you

 

Many thanks Paul. Out of interest, they actually did actually come up with an application form, but it was illegible, so according to the 83 reg's (1553?) they are still in default.

[pt2537]

Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed

agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety

under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed

agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act

without any alteration or addition, except that--

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed

by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced

in addition to any such Form.

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

 

 

So yes they would because this SI sets out the form and legibility a copy document must take, if its illegible its not complaint with the 74 act nor the regulations made by the secretary of state under the authority of the CCA 74

 

i hope this helps

 

Regards

paul

[shane5408]

Hi,

 

The CCP is acting entirely vexatiously, they have no grounds for enforcement through the courts i would submit a motion pursuant to CPR 3.4 to have their case thrown out

 

regards,

shane

[rosierose]

What are the bases of your counterclaim? If any you dont have to submit this at this stage

 

Hi Andy

 

Harassment - I asked for all the pertinent phone records to prove it.

 

Damage to reputation - They applied the default whilst they were in default themselves. Also the notice period was given as 24hrs.

[rosierose]

Hi,

 

The CCP is acting entirely vexatious, they have no grounds for enforcement through the courts i would submit a motion pursuant to CPR 3.4 to have their case thrown out

 

regards,

shane

 

As part of my defence? Or a separate application? Sorry, I'm a bit of a numbskull when it comes to court

[pt2537]

 

Power to strike out a statement of case 3.4 (1)In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)The court may strike out (GL) a statement of case if it appears to the court –

(a)that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

©that there has been a failure to comply with a rule, practice direction or court order.

(3)When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(4)Where –

(a)the court has struck out a claimant’s statement of case;

(b)the claimant has been ordered to pay costs to the defendant; and

©before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

 

the court may, on the application of the defendant, stay (GL) that other claim until the costs of the first claim have been paid.

(5)Paragraph (2) does not limit any other power of the court to strike out (GL) a statement of case.

(6)If the court strikes out a claimant's statement of case and it considers that the claim is totally without merit –

(a)the court's order must record that fact; and

(b)the court must at the same time consider whether it is appropriate to make a civil restraint order.

 

 

 

 

 

good one shane

 

i must admit i still have to go through the CPR as i can never remember what sections do what

 

Regards

paul

[pt2537]

Hi Andy

 

Harassment - I asked for all the pertinent phone records to prove it.

 

Damage to reputation - They applied the default whilst they were in default themselves. Also the notice period was given as 24hrs.

 

 

then the Default is itself invalid and not complaint with s87 &88 and the associated regs either

 

the authority for this copmes from Woodchester and Swain by the way

 

Regards

paul

[AndyOrch]

Hi Rosie

Well start to prepare your defence on your request of CPR and failure to provide and nore importantly which is key to your case Invalid Default Notice.Request the option to ammend your defence and C/C prudent to complience of CPR disclosure.

 

Regards

[rosierose]

then the Default is itself invalid and not complaint with s87 &88 and the associated regs either

 

the authority for this copmes from Woodchester and Swain by the way

 

Regards

paul

 

Exactly!

[shane5408]

As part of my defence? Or a separate application? Sorry, I'm a bit of a numbskull when it comes to court

 

 

Hi,

 

I think it would have to be as a seperate motion, I'll put some words together and post em up later on if you like

 

 

regards,

shane

 

ps did you file acknowledgement of service? gives you slightly more time

[rosierose]

Hi,

 

I think it would have to be as a seperate application, I'll put some words together and post em up later on if you like

 

regards,

shane

 

ps did you file acknowledgement of service? gives you slightly more time

 

That would be very much appreciated, thank you. I filed a week ago. I then wrote to the bank giving them seven days to supply the doc's.

[AndyOrch]

Rosie

You would request it as part of your defence

 

 

Regards

[rosierose]

Everyone, Thanks all for your help. It really is valued

 

Rosie

[AndyOrch]

Very rare you will get a respones to CPR request in time to file a Defence

Once their deadline has expired inform the court and copy their sols ie that they are frustrating your need to submit a defence /cc

[AndyOrch]

Keep the invalid D.N up your sleeve for now this will come in handy for your C/C

 

 

Regards

[pt2537]

IMHO, the invalid Default Notice is an excellent tool to get the case stopped in its tracks.

 

they should not have brought the claim before the court since the CCA 1974 clearly states that a default notice is required before action canbe taken.

 

this is confirmed by Lj Kennedy in Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255

it also gives the court grounds to strike out the claim

[AndyOrch]

Yes I appreciate that Paul but unfortunatly life dosent always cut like it should you would mention said default note in the defence but the purpose of the defence a this stage is to refute the claiments claim. Have they mentioned a default note in their P.O.C?

 

 

 

Regards

Andy

[pt2537]

sorry andy, youve lost me there

 

it doesnt take much:D

 

but are you saying not to disclose this default notice? why would you not do so? it seems rather strange not to use something which will solve the problem does it not

 

i cant see any merit in not disclosing but im happy to be corrected

 

regards

paul

[Curlyben]

Have a sift through this one of TomTerms as it my prove useful.

Holding defence.txt

[shane5408]

Andy,

 

you mentioned before the purpose of the defence is to refute the claimants claim, would an invalid DN not act to do that?

[AndyOrch]

Hi Paul

We dont know what as been stated in the poc for sure.We know the D.N its invalid

You dont tell the claiment in your defence it is, you are therefore giving him advanced warning of what will come.The purpose of a defence is to Refute the points raised by the Claiment in their claim.Advanced knowlege of what we are going to argue in our case serves no advantage at this stage in defending the claim. This will remain for the counter claim

 

 

Thanks Cb Ive seen that Holding claim many times.

 

 

Regards

Andy

[pt2537]

I think we should look at this from the view of the more points against them the more foolish they will look in court

 

defaulted CCA - 1

unlawful DN - 1

ignored CPR - 1

illegible CCA - 1

Application form - 1

 

the more silly points there are against them the better in my view

 

they are clearly vexatious and this should be brought before the judge