Next/cohen claimform - hearing despite no signed cca **VACATED**

[The GodMother]

try not to be nervous. You have a good case to have this struck out and a good case to makethem look like very big idiots in court.

 

From a lot of ppl threads on here they are not impressed with next either. I would assume that if a servey of consumer confidence was done with a lot of there clients, especially the ones who are having problems with them, they will be a vote of no confidence and that would make them look stupid.

 

I count my self lucky that the only dealings i have had with next is mostly junk mail and a letter from them earlier this year asking if the account that i applied for was actually gonna be used buy me. I know nothing about the account and it turns out they have got me and my sister mixed up.

[shane5408]

hehe Next are next on my hitlist, looking forward to it!

[The GodMother]

Maybe we should do a comsumer confidence servay for them. You know set up a company and charge them about £5000.00 for the rite of use doing a consumer confidence servay for them.

 

It would be brill because all we do is get all the ppl with next issues on here to give us the details of there accounts and send them a servay and collect the results. Obviously we would need to servay ppl who have not had problems with them and we would just say that ppl have no confidence in them.

 

A great money spinner i think.

[tomterm8]

Brilliant guidance, thanks Godmother and Shane,

 

I do feel really strongly that I should request the case be struck out on many counts - no signed cca, failure to respond to CPR request in time, and when they finally did respond insufficient info provided..grr..

 

I'll hang on a little while longer though before completing the form and see if Tom is able to give some advice too as I think the wording of section G needs to be spot on so as to give me my best chance of having it struck out.

 

Although I'm nervous I'm certainly prepared to have to take this right through to a hearing as I'm really not impressed with Next!

 

Hi Nas,

 

personally, although I understand your desire to attempt to strike out their case, I would not go for such a motion. The result of a strike out is that they can have another bite of the cherry. If they have proved they have no case (by admitting no credit agreement), i would personally wish the case to go to a trial.

 

Once a judge rules, that's pretty much it.

 

Instead, i would include a line saying that you have asked for the informattion in the attached letter, but that they have failed to provide it and say they have no credit agreement.

[The GodMother]

Just a stupid question,

 

Would, if next lose, they be able to appeal the ruling. I am thinking they could re start procdeings if the case is stayed but what about if htey lose the case completly.

 

Chrissi

[pt2537]

No, If they lose, they could conceivably appeal. however they couldn't restart a claim on the same material facts

[tomterm8]

No, If they lose, they could conceivably appeal. however they couldn't restart a claim on the same material facts

 

the appeal would have to be on law, and not facts. They couldn't win such an appeal.

[The GodMother]

so a material fact would be that they do have a cca for the account and they never got the CPR request?

 

Sorry if l sound blonde but l am new to this sort of thing.

[pt2537]

Hi Chrissi

basically they couldnt bring the same case again, it would need to be substantially different

 

totally tom , they would have very limited grounds for appeal, it would have to be as suggested on a point of law

 

basically if they lose its game over

[nas2211]

Wow, it's a great support to have all this input on the thread - all greatly appreciated.

 

Tom, I understand now why its best not to ask for it to be struck out. With the defence I'm using it seems best to take it to trial and (hopefully) the Judge will go in my favour.

 

I'm completing the form at the mo and have a couple of queries:

 

Section A) Settlement - Do I wish any action on claim to be postponed for one month to allow possible settlement? I'm guessing I tick no?

 

Section G) Other info - This is how I'm thinking of wording it:

 

"In response to a request from me dated 23 June 2007, I have written confirmation from Next dated 5 July 2007 that they do not hold a signed Consumer Credit Agreement for the account. Despite acknowledging the account is therefore unenforceable, Next commenced court proceedings regarding the account.

 

I made a disclosure request for information under Civil Procedure Rules, sent by guaranteed next day delivery on 26 September 2007, to allow me to prepare a defence and counter claim. Next failed to respond to this until 29 October 2007, and have also failed to provide the information I requested."

 

Does that sound ok? Also, I was wondering whether I should mention the lack of account number in the poc, and the fact the Default Notice is inadequate, or should I leave that as it's already mentioned in my defence?

 

Finally, and sorry if it sounds daft!, but is it ok to attach a copy of my letter I sent Next to the AQ? It says in Section G that there's no need to provide evidence at this stage, and I don't want to look as though I'm ignoring their guidelines.

 

Thanks guys,

[tomterm8]

Wow, it's a great support to have all this input on the thread - all greatly appreciated.

 

Tom, I understand now why its best not to ask for it to be struck out. With the defence I'm using it seems best to take it to trial and (hopefully) the Judge will go in my favour.

 

I'm completing the form at the mo and have a couple of queries:

 

Section A) Settlement - Do I wish any action on claim to be postponed for one month to allow possible settlement? I'm guessing I tick no?

 

Section G) Other info - This is how I'm thinking of wording it:

 

"In response to a request from me dated 23 June 2007, I have written confirmation from Next dated 5 July 2007 that they do not hold a signed Consumer Credit Agreement for the account. Despite acknowledging the account is therefore unenforceable, Next commenced court proceedings regarding the account.

 

I made a disclosure request for information under Civil Procedure Rules, sent by guaranteed next day delivery on 26 September 2007, to allow me to prepare a defence and counter claim. Next failed to respond to this until 29 October 2007, and have also failed to provide the information I requested."

 

Seems fine to me

 

Does that sound ok? Also, I was wondering whether I should mention the lack of account number in the poc, and the fact the Default Notice is inadequate, or should I leave that as it's already mentioned in my defence?

 

Finally, and sorry if it sounds daft!, but is it ok to attach a copy of my letter I sent Next to the AQ? It says in Section G that there's no need to provide evidence at this stage, and I don't want to look as though I'm ignoring their guidelines.

If it says no need to provide evidence, that's fine... IIRC, I thought it said you could include stuff if you want to... if it says that, attach the letters, otherwise not.

 

Thanks guys,

..

[nas2211]

Thanks Tom, you're right I've re read the guidance notes and it says "referring to any attached documents as necessary" so I'll attach my CPR letter and their late (and unhelpful) response.

 

Two more brief queries - do I need to provide the proof of postage (of my CPR request letter) at this stage? And am I expected to send a copy of the completed form to Next's solicitors as well?

[The GodMother]

You only need to send the form to the courts as far as i am aware as that is all i have every had to do. I have not been told any different ever. Just looked at sum court papers and they say for the AQ to be filed back to the courts but this might just be were I live.

 

I would not provide proof of postage at this stage unless the courts as for it but you will need to provide a copy of it when you are compiling your case fo the courts. You will need to photocopy it twice and have a copy for the court file and a copy for Next.

 

If you do need to provide a copy of it now i would suggest that you also go to www.royalmail.com and print of a copy of the track and trace referance with the signature of the person who signed for it so they judge can see it was recieved.

[nas2211]

Thanks TGM, I'm feeling much clearer about it now

[The GodMother]

your welcome nas.

 

I hope you are looking forward to the day the courts throw the case out of courts as l would love to be a fly on the wall just to see there face when the judge says. Judgement is being awarded to nas ad next have admitted they have no cca so they have no case.

 

Chrissi

[nas2211]

I'm keeping my fingers crossed it goes that way!

[The GodMother]

Well let us no what happens.

[nas2211]

I received in the post today a Notice of Trial Date and Order from my local County Court informing me that the trial regarding this claim will take place on 12th March 2008.

 

The Order reads as follows:

 

It is ordered that:

 

1) This claim is allocated to the Small Claims Track and the parties are referred to Part 27 of the Civil Procedure Rules and the Practice Direction of that Part for guidance on how the hearing of the claim will be conducted.

 

2) The claim will be heard at Brighton County Court on a date and at a time which is set out on a notice attached to this Order, or will be sent to you later. The Court reserves the right to change the place and/or time of the hearing.

 

3) From the available papers, it is estimated that the hearing will take one and a half hours. If a party is aware of a reason why this estimate might be substantially inaccurate, that party must notify the court immediately.

 

4) The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled.

 

5) The following paragraphs set out the Judge's directions for preparation for the hearing.

 

The following Directions apply to this Claim:

 

6) Each party must deliver to every other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.

 

7) The original documents must be brought to the hearing.

 

8 The Judge may refuse to consider a document or take it into account if a copy of it has not been sent to all parties as required by this Order.

 

9) The documents to be sent to the parties and the court must include the statements of all witnesses (including the parties themselves).

 

10) Witness statements must:

a) Start with the name of the case and the claim number;

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs;

d) End with this paragraph: 'I believe that the facts stated in this witness statement are true.'; and

e) be signed by the witness and dated.

 

11) The Judge may refuse to hear the evidence, or consider any statement, of any witness whose statement has not been prepared and copied to all parties and the court in accordance with the paragraphs above.

 

12) Neither party may rely on any report from an expert at the hearing unless permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

 

13) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order.

 

My first reaction was :o :o !!!

 

So would be hugely grateful for some guidance as to what my best next move is....

 

Paragraph 13 states that I can apply for the Order to be set aside which I'm wondering if I have the basis to do so seeing as how Next have brought the case knowing there is no signed cca and have failed to provide documents requested in my CPR request to them??

[2Grumpy]

No reason to be worried - this is the usual response.

 

It means that Next have to provide a copy of the actual CCA!

 

I think items 6 & 7 are the important ones

 

Gumpy

[pt2537]

Yes i agree with you Grumpy

 

points 6&7 are relevent and Nas, you should be looking to get your documents and witness statements and Statutes and case law docs ready and filed to court and to the other party within the 14days

 

Regards

paul

[nas2211]

Ok thanks guys, I''ve kept and filed away every letter I've been sent by Next and their solicitors and I guess I need to collate it with the relevant case law (which I'll spend the next few days finding :-? ) and Index it like a basic court bundle?

 

I was just going to collate the copies and file them in ring binders or should I get it bound?

 

Points 6 & 7 I feel confident in meeting. It was point 13 that got me thinking whether I've got any grounds to apply for it to be set aside.

 

All the information and evidence I laid out in the Allocation Questionnaire for the Judge to consider doesn't seem to have been noticed!

 

Based on the claim so far is it feasable for me to apply for a set aside/stay or any other motion?

[nas2211]

Also....can Next get away with miraculously producing a signed cca in court after ignoring all my previous requests? am anxious about falling flat on my face in court if they do that!

[pt2537]

Hi Nas,

 

if next did produce the document in court, then you would ask the judge to refuse to allow it as it is a serious breach of the Civil Procedure rules

 

it amounts to ambushing you in court and that is a HUGE no no

 

if you applied for a stay, all that would mean is that the case would be on hold for a month, then t his would start again

 

Next have to provide you and the court with all the documents they are going to rely on as ordered by the judge. if they fail, then they should not be permitted to rely upon any documents they haven't disclosed in court

 

Regards

paul

[nas2211]

Thanks Paul,

 

What I can't understand is why Next are continuing to push ahead with this claim. If they had a signed cca they could have provided it ages ago and that would have been the end of it. I wonder if they're trying to intimidate me into giving in...unfortunately for them I'm very stubborn and am prepared to take this as far as necessary rather than be bullied by them anymore.

 

Thanks again for the clarification. If you don't mind, when I've collated the case law I'm going to rely on I'll post details of it up here so if there's anything I've missed that would be relevant you might point me in the right direction. I'm going to tackle it over the weekend when work hasn't left me feeling quite so frazzled!

[pt2537]

No problems Nas

 

i have access to legal databases so should you need a particular case of statute let me know and ill get it

 

i can relate to being frazzled, im out on my feet at the mo

 

Regards

 

paul