Lloyds TSB Credit Card - Claim form received

[pt2537]

yep looks ok to me,

 

as chris suggests, the request to strike out is really not worth considering IMHO

 

the court does have wide ranging case management powers and if it orders the directions and they fail to comply then the court can strike out their case anyway

 

i also agree with the request for the case to be transfered to small claims as its not a complex matter and is simple to resolve, case law really makes that clear so i would ask

 

regards

paul

[mcuth]

Thanks Chris & Paul

 

That AQ and Draft Directions look very familiar, don't they Paul? Good to see they are being put to use...

 

Yeah as I acknowledged, the AQ & Draft have been gotten from other posts around the forums, it's not all my own work, though I have tweaked them a tiny bit Just wanted to make sure I'd got it right and it all looks proper

 

but I'd be requesting allocation to the small claims track (even though you may not get it) as it could limit your chances of having to pay their costs if (not when!) you lose.

 

i also agree with the request for the case to be transfered to small claims as its not a complex matter and is simple to resolve, case law really makes that clear so i would ask

 

Ok, know what both of you mean about going for the SCT - and I did consider that initially from the costs point of view. However, a few reasons that keep jarring at me: even taking the costs of £220 off the total claim brings it to £5942, which is a bit far off the £5k SCT limit even if it is a simple claim; I don't believe I'll lose the case; and going for SCT precludes me from claiming costs (well, I guess I can always ask...)

 

As for the Application to strike out, IMHO it would be a waste of time and money as the Court is unlikely to strike out the claim - applying now will probably result in a short stay, at the most, to allow them to particularise properly, which will only extend the time it takes to sort this out. Of course, not applying to the Court means they don't have the option of striking the claim out, so it's your call. If you have a spare £40 lying around (send it to me, please!) and aren't bothered about it dragging on for a few months more than it should, go for it I'd say!

 

Thanks Chris - pretty much what I thought - just wondered if it was worth having a bash

 

the court does have wide ranging case management powers and if it orders the directions and they fail to comply then the court can strike out their case anyway

 

Indeed

 

Cheers

Michael

[car2403]

Thanks Chris & Paul

 

Yeah as I acknowledged, the AQ & Draft have been gotten from other posts around the forums, it's not all my own work, though I have tweaked them a tiny bit Just wanted to make sure I'd got it right and it all looks proper

 

 

Oh, don't get me wrong, these were all posted up to use - it's just nice to see my (and others!) work being used correctly. Wasn't a jab at ya...

 

Ok, know what both of you mean about going for the SCT - and I did consider that initially from the costs point of view. However, a few reasons that keep jarring at me: even taking the costs of £220 off the total claim brings it to £5942, which is a bit far off the £5k SCT limit even if it is a simple claim; I don't believe I'll lose the case; and going for SCT precludes me from claiming costs (well, I guess I can always ask...)

 

It's your call really, but I'd want some protection from having to pay their costs at all - I feel you have less to lose (not saying you aren't going to win, BTW!) in the SCT. No right or wrong answers here.

 

BTW, Paul - on that Application to strike out issue - I have something similar going on with HFC where I've asked for exactly that! I've only requested strike out as they have requested Summary Judgment against me (which they have no chance of getting) and I felt it was a bit "tit-for-tat", so I'm glad I got my Application in first. Be interesting to see what the Judge reckons though...

[mcuth]

Oh, don't get me wrong, these were all posted up to use - it's just nice to see my (and others!) work being used correctly. Wasn't a jab at ya...

 

Wasn't taking it as a jab - just making sure that I'm not taking credit for something I'm not entitled to

 

It's your call really, but I'd want some protection from having to pay their costs at all - I feel you have less to lose (not saying you aren't going to win, BTW!) in the SCT. No right or wrong answers here.

 

Aye, point taken - I might just go for SCT and see what happens

 

Cheers

Michael

[car2403]

Wasn't taking it as a jab - just making sure that I'm not taking credit for something I'm not entitled to

 

 

 

Aye, point taken - I might just go for SCT and see what happens

 

Cheers

Michael

 

Don't forget there is always the possibility (albeit a small one) that the Judge will award costs against them if they have vexatiously litigated - this could be as simple as not responding to CPR requests within the timescales, not replying to DPA SAR's in time, etc. Heck, you could even argue that Acknowledging or Defending the claim on the very last day is vexatious - it all adds up in the end!

 

Sorry, I haven't read the thread in depth, but I'm sure there's something there that is firing some thought patterns off...

[mcuth]

Don't forget there is always the possibility (albeit a small one) that the Judge will award costs against them if they have vexatiously litigated - this could be as simple as not responding to CPR requests within the timescales, not replying to Data Protection Act S.A.R - (Subject Access Request)'s in time, etc. Heck, you could even argue that Acknowledging or Defending the claim on the very last day is vexatious - it all adds up in the end!

 

Sorry, I haven't read the thread in depth, but I'm sure there's something there that is firing some thought patterns off...

 

Oh yeah - I'm thinking much along the lines of the "wasted costs" order that we use for bank charges claims :D

 

Cheers

Michael

[mcuth]

Ok then, have made a decision about SCT and this is what I'm submitting:

Section A

No

 

Section B

Yes

"The Defendant respectfully requests that the case is heard at his local County Court (Swindon County Court) as he is a Litigant in Person."

 

Section C

Part 2 - No

 

Additional page to Section C

"The Defendant has not exchanged information and/or documents (evidence) with the Claimant, because:

• The Claimant has been in default of a formal & legitimate request made under s.78(1) Consumer Credit Act (1974) since 23rd March 2007;
  
• The Defendant has no information to supply;
  
• The burden of proof is on the Claimant to supply documents supporting their claim as per CPR part 16, which to date the Claimant has not done."

Section D

Whole claim (£6162.74)

Applications - No

Witnesses - Me, "All facts"

Experts - No, No, No, No

Track - Small Claims Track

"Whilst the value of this claim exceeds the traditional value limits, it is respectfully requested that this case be allocated to the Small Claims Track - it is a straight forward case and should be easily resolved on production of the required documentation by the Claimant. "

 

Section E

Time estimate: 1hr

Unavailable dates: Yes (listed)

 

Section F

Attached directions - Yes

Agreed - No

 

Section G

Left blank

 

Section H

No, No, No

"If the Court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached Draft Order. The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, the Defendant is at a disadvantage and is unable to serve a complete Defence in response to the documents requested (further to that filed on 5th December 2007). Failure of the Claimant to supply the requested documentation will inhibit the Court's ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Should the Claimant not have the documentation required to progress this case, the Defendant would respectfully suggest that there is no case to answer. Therefore, it stands to reason that this documentation must be disclosed before the case can progress any further."

 

Plus, the Draft Order:

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement, and all documents referred to within it, which complies with Consumer Credit Act (1974) and all subsequent regulations;
  
• A copy of any Default Notice issued, compliant with s.87(1) Consumer Credit Act (1974) and Consumer Credit (Enforcement, Default and Termination Notices) Regulations (1983) (SI 1983/1561) as amended;
  
• Any document, contract or deed of assignment (if applicable);
  
• Any notice of assignment (if applicable), with proof of service of the same compliant with s.196 of the Law of Property Act (1925);
  
• A statement of account, signed by or on behalf of the Claimant showing:

- the state of the account, and

- the amount, if any, currently payable under the agreement by the Defendant to the Claimant, and

- the amounts and due dates of any payments which, if the Defendant does not draw further on the account, will later become payable under the agreement by the Defendant to the Claimant;

• A transcript of all transactions, including charges, fees, interest and alleged repayments;
  
• A full breakdown of how the sum claimed has been calculated;
  
• Copies of any statement or other document that the Claimant seeks to rely upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

2. The Defendant shall within 14 days of service thereafter file and serve the following:

• An amended Defence sufficiently particularised in response to the documents supplied by the Claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

Thanks for your help guys - let's see what happens next

 

Cheers

Michael

[spiritgirl59]

Hiya Michael

 

Subbing to your thread as I am in a similar position to you.

 

Have a look on my thread http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/81224-spiritgirl-various-dcas-29.html

 

Good luck, I will be watching with interest xx

 

Love SG x

[mcuth]

Hiya Michael

 

Subbing to your thread as I am in a similar position to you.

 

Have a look on my thread http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/81224-spiritgirl-various-dcas-29.html

 

Good luck, I will be watching with interest xx

 

Love SG x

 

Hi SG

 

Yeah, I'd actually subbed to your thread this weekend meself, and am just waiting for SC&M to try that one on

 

Good luck to you too - am sure we'll 'ave 'em

 

Cheers

Michael

[mcuth]

Apparently both AQs were received on 3rd January, but they haven't been put before the DJ for review as yet. That's going to be done today, so I should get an update from the court in the next week or so.... at least they're not trying the same trick in applying for judgement!

 

Meanwhile, I asked if I could have a copy of SC&M's AQ and that's now winging it's way to me

 

Ok, been a while since an update....sorry

I received a copy of SC&M's N150 AQ (they ticked "no" to the "have you sent a copy to the other party) - there are no proposed directions, no additional info in part H, they don't want experts and they reckon the trial is 1/2 day - fast track. Costs incurred so far of £500 (why, they've done nowt!) and an estimate of £1500 in total:

- Settlement: they've ticked "no" to a one month stay

- Location: they've ticked "no" to a particular court

- Pre-action protocols: they've ticked "no" to Part 2, but not attached a sheet explaining why...

 

Still no acknowledgement from SC&M that they received mine (asked nicely too, lol), but don't really care as the court have confirmed that they've got it.

 

After that, I received a notice of directions hearing from the court:

 

TAKE NOTICE that the DIRECTIONS HEARING will take place on

 

12 March 2008 at 12:00 PM

 

at Swindon County Court, The Law Courts, Islington Street, Swindon, SN1 2HG

 

When you should attend

 

30 MINUTES has been allowed for the DIRECTIONS HEARING

 

Please Note: This case may be released to another Judge, possibly at a different Court

 

Exciting stuff - I've not had a directions hearing before

Anyone know what I've got to do to prepare for it?

 

Cheers

Michael

[pt2537]

Hello Michael

 

directions hearing is exactley that matey, the judge will give his orders as to who has to do what, if that makes sense. its for case management if you like.

 

 

the main thing that i have done in the past, is to have my arguement prepared as to why they should disclose the docs etc ie s127(3) ,wilson v fct ,dimond & lovell ,basically no document no enforcement.

 

i have noticed lately that certain sols are trying to convince the judges that the CCA 2006 is now effective and therefore the agreement cannot be unenforceable

 

if they try that, refer them to this

 

Schedule 3, s11 Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

that should shut that argument up

regards

paul

[mcuth]

Hello Michael

 

directions hearing is exactley that matey, the judge will give his orders as to who has to do what, if that makes sense. its for case management if you like.

 

 

the main thing that i have done in the past, is to have my arguement prepared as to why they should disclose the docs etc ie s127(3) ,wilson v fct ,dimond & lovell ,basically no document no enforcement.

 

i have noticed lately that certain sols are trying to convince the judges that the CCA 2006 is now effective and therefore the agreement cannot be unenforceable

 

if they try that, refer them to this

 

Schedule 3, s11 Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

that should shut that argument up

regards

paul

 

Nice - thanks for that Paul

Seems weird that after all my bank claims and everything, I'm finally going to get some time in court

 

Cheers

Michael

[car2403]

http://www.consumeractiongroup.co.uk/forum/general/50356-directions-hearing-what-what.html#post424388

[mcuth]

http://www.consumeractiongroup.co.uk/forum/general/50356-directions-hearing-what-what.html#post424388

 

Thanks Chris

 

Cheers

Michael

[mcuth]

Well, I had my Directions Hearing today and all in all I think it went pretty well

 

Was kept waiting a little while, and the rep for LTSB didn't realise who I was (sitting right opposite her, lol), so no pre-hearing discussion. DJ was ok (Gary, if you're reading, it was C), but hadn't read the file - asked us to explain the case and what Directions were necessary. LTSB rep stated it was a credit card claim governed by the CCA and issued through the bulk issuing centre, therefore limited PoC. DJ commented that my Defence was thorough (& long, lol), asked why I was Defending - to which I replied that the claim wasn't particularised and there was no proof given. DJ asked if I was happy for LTSB to file amended PoC, to which I said yes. LTSB rep was happy for that to happen too and suggested 14 days as a time limit. So that was all agreed.

 

Then we went onto the subject of documents required . The LTSB rep had a copy of my AQ and the Draft Order attached (see this post) so was well briefed. She said that according to her instructions, LTSB's opinion was that some had already been sent, but she had no problem with sending the list (apart from Deed of Assignment as it hadn't been assigned) and saw no reason why LTSB couldn't comply within 14 days. I agreed to this too, and asked the DJ if I could have permission to file an amended Defence on receipt of the amended PoC & docs. DJ asked for a time estimate from me and I said 14 days after service - DJ kept asking if I was sure, and I said yes absolutely (could've gone for longer, but am quite confident that 14 days will be enough).

 

After this, we had a brief discussion about the track allocation and time for hearing - we all agreed that value-wise it was outside SCT, but LTSB rep & I were agreed that once correct docs & PoC were filed, it would be straightforward. So, we were all agreed that SCT would be fine for allocation, and a 1.5hr hearing

 

The DJ was noting the Directions down as we were talking, and I then requested that the Directions to the Claimant be "unless orders" (i.e. unless they comply, the claim is struck out). LTSB rep was happy for this to happen as she saw no problem supplying the amended PoC and docs, so DJ agreed.

 

In summary, here are the Directions (from my notes, so may not be exactly how the order reads when it's done!):

1. Case allocated to Small Claims Track
   
2. Claimant to serve amended Particulars of Claim on Defendant & file at Court, by 4.30pm on 26th March 2008. If this order is not complied with, the claim will be struck out without further order.
   
3. Claimant to serve copies of documents referred to in the Defendant's Draft Order for Directions attached to Defendant's Allocation Questionnaire on Defendant by 4.30pm on 26th March 2008. If this order is not complied with, the claim will be struck out without further order.
   
4. Defendant has permission to file & serve an amended Defence by 4.30pm 9th April 2008
   
5. Witness statements to be served by 4.30pm 23rd April 2008
   
6. Claimant to file a bundle of documents, to be agreed if possible, not less than 3 days before the hearing
   
7. Claim to be listed for hearing, estimated time of 1.5hrs, first open date after 7th May 2008 (with reference to Defendant's unavailable dates as listed in AQ)

I'm really happy that I've got everything I wanted out of today's hearing. It was a relaxed process - the DJ was accommodating & friendly, the LTSB rep was very reasonable and didn't object to anything. That said, I think it was definitely to my advantage that she was a local rep and probably not 100% up with the file - she doesn't know that all LTSB have is an application form without the prescribed terms!

 

Now just awaiting the docs....

 

Cheers

Michael

[mcuth]

BTW, could a mod move this to "general debt" please? It's not really a bank charges claim against LTSB (not sure why I posted it here, sorry!)

 

Hmmm, this reply on its own took the thread to page 3, there's a Directions Hearing update at the end of p2 in case you don't see it, dear reader

 

Cheers

Michael

[elsinore]

Thread moved, Michael.

 

I'll go back and read the interesting bit now.

 

Els

[pt2537]

I dont think you posted in the wrong place Michael, it may have been moved when the forum had those difficulties a few weeks ago.

 

also do you want this in the General Debt forum? its just that since this is a claim, it would be better served to be in the Legal Issues debt forum

 

Nice to see you got the directions you wanted, it kinda stuffs em all ends up:D

[elsinore]

A very nice day's work, Michael.

 

Looking forward to the next instalment.:grin:

 

Els

[mcuth]

Thread moved, Michael.

 

Thanks

 

I dont think you posted in the wrong place Michael, it may have been moved when the forum had those difficulties a few weeks ago.

 

also do you want this in the General Debt forum? its just that since this is a claim, it would be better served to be in the Legal Issues debt forum

 

There were difficulties? Hmmm, goes to show how much time I've been spending around here these days *blush*

I'm not particularly fussed about where it ends up to be honest - I'll leave that decision to TPTB - I was just aware that it wasn't a charges claim

 

Nice to see you got the directions you wanted, it kinda stuffs em all ends up:D

 

Thanks - I rather thought so, really turns the screw on them!

 

A very nice day's work, Michael.

 

Looking forward to the next instalment.:grin:

 

Thanks Els - me too

 

Cheers

Michael

[car2403]

Good work here Michael! Just be fully prepared for the final hearing - if you get there - in case you don't get the same DJ...

[mcuth]

Good work here Michael! Just be fully prepared for the final hearing - if you get there - in case you don't get the same DJ...

 

Thanks - am absolutely prepared already Can't wait actually!

 

Oh, one thing I forgot to mention - when the LTSB rep (I keep calling her that, cos I'm not sure just where she was from) said that they were happy to file an amended PoC, the DJ asked where the draft was! She was very flustered by that, as the DJ was quite insistent that they're normally prepared before a hearing when that's the agreed instruction

 

Cheers

Michael

[mcuth]

Received the official Notice of Allocation & Hearing in last night's post:

 

Deputy District Judge ****** (mcuth: not the one that ran the hearing!) has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

 

The hearing of the claim will take place at 14.15 on the 12 June 2008 at Swindon County Court, The Law Courts, Islington Street, Swindon, SN1 2HG and should take no longer than 1h 30min. A hearing fee of £300.00 is payable by 03 April 2008 by the claimant unless you make an application for a fee concession. Failure to pay the fee will result in the hearing being removed from the list.

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued.

 

Permission to the claimant to serve on the defendant and file with the court an amended Particulars of Claim by 4:00pm on 26th March 2008, the claim will be struck out if this order is not complied with.

 

The claimant is to serve upon the defendant copies of the documents referred to in the defendant's draft order for directions attached to the defendant's allocation questionnaire by 4:00pm on 26th March 2008, and the claimant's claim be struck out [sic] if this order is not complied with.

 

The defendant has permission to file and serve an amended defence by 4:00pm on 9th April 2008.

 

Witness statements are to be served and filed by 23rd April 2008.

 

The claimant is to file a bundle of documents (to be agreed if possible) not less than three days prior to the hearing.

 

The hearing of this case will take place on 12th June 2008 at 14:15 at the Swindon County Court, The Law Courts, Islington Street, Swindon, SN1 2HG allowing 1 1/2 hours.

 

Date: 18 March 2008

 

And as of last night, not a thing received from LTSB - must ring the court today....

 

Cheers

Michael

[pt2537]

ah yes, i do believe a chat with the court manager is in order;)

[mcuth]

ah yes, i do believe a chat with the court manager is in order;)

 

Hmmm, apparently LTSB filed an amended PoC with the court on Tuesday (25th) though I've not had my copy yet - it'll be interesting to see that! The document copies are only to be served on me - i.e. not filed with the court. Soooo, as I'm currently having my post diverted and they were due to serve on me by yesterday @ 4pm, I've decided to be nice and see if there's anything in my post tonight - if not, then I'll be on the phone to the court in the morning.

 

Cheers

Michael