Lloyds TSB Credit Card - Claim form received

[car2403]

When you do an amended defence, you literally have to "amend" the original document you used, striking out (highlight text in, say, Word, Format, Font, then tick "strikethrough") anything you are removing and underline anything you are adding.

 

You might have already known this already, because the formatting on the forum doesn't show it properly, but just in case.

[mcuth]

When you do an amended defence, you literally have to "amend" the original document you used, striking out (highlight text in, say, Word, Format, Font, then tick "strikethrough") anything you are removing and underline anything you are adding.

 

You might have already known this already, because the formatting on the forum doesn't show it properly, but just in case.

 

Oh blimey - I didn't know that, thanks. Do you have a link to the CPR that describes that? Mind, LTSB haven't done it on their Amended PoC.....

 

Doesn't the statement at paragraph #1 suffice?

 

Cheers

Michael

[pt2537]

only if the court considers it desirable to strike through or highlight any amendments would this apply and hte court would give its directions too

 

part 17 and practice direction 17 covers this CPR - Parts and Practice Directions

[car2403]

only if the court considers it desirable to strike through or highlight any amendments would this apply and hte court would give its directions too

 

part 17 and practice direction 17 covers this CPR - Parts and Practice Directions

 

I've recently had a claim allocated to the small claims track where I needed to amend my claim - the Judge specifically mentioned this method of amending the claim, but that hasn't been included in the order.

 

It seems they assume we know what we are doing, even though we a LIP's.

 

Having said that, if your Judge hasn't mentioned it...

[mcuth]

Paul - thanks for that clarification

 

Chris - thanks for bringing it up in the first place

 

The DJ didn't mention it at all, and it didn't make it into the order - so, I think, after having read CPR 17 PD 17, that I'll leave it as is. The content is substantially altered from the original Defence, and IMHO it wouldn't serve much usefulness leaving the original in.

 

I think the fact that LTSB haven't used their original PoC actually helps if the DJ brings it up.....

 

In fact, I'm going to quote CPR17 PD17 at LTSB, given that they haven't used the correct format for the titling of their Amended PoC

 

Hope to put up a new copy of the Amended Defence later this weekend....

 

Cheers

Michael

[mcuth]

Ok, here's my final version of the Amended Defence - any comments/amendments/deletions folks?

 

AMENDED DEFENCE

by Order of District Judge xxxxxx dated 18th March 2008

1. The Defendant’s original Defence, filed and served on 4th December 2007, is withdrawn and replaced in its entirety by the Amended Defence below.

2. Save as is otherwise pled by the Defendant hereafter, the Defendant denies all allegations made in the Claimant’s Amended Particulars of Claim in their entirety.

The Amended Particulars of Claim

3. At paragraph 5 iv) of the Amended Particulars of Claim, the Claimant avers that a copy of the Formal Demand is not available, yet has filed and served a copy of the “Formal Demand” with their Amended Particulars of Claim.

4. At paragraph 7 of the Amended Particulars of Claim, the Claimant avers a claim in the sum of £5,872.72, but the actual claim amount on the N1 submitted on 19th November 2007 is in the sum of £5,872.74.

5. In addition to the discrepancy between the claim amount in the Amended Particulars of Claim and the N1, there is a discrepancy between the amount of the Default Notice and the Formal Demand as annexed to the Amended Particulars of Claim (and detailed in 5 iv) of the Amended Particulars of Claim) – the Default Notice is in the sum of £5868.72 and the Formal Demand is in the sum of £5879.72

6. In the Amended Particulars of Claim, the Claimant makes no reference to fulfilling their obligations under s64 Consumer Credit Act (1974) and is put to strict proof thereof.

7. The Claimant’s Amended Particulars of Claim do not comply with CPR 17 PD 17 2.1(1), and the Defendant respectfully requests that the Court gives due consideration to striking out the Claim on this basis.

The Agreement

8. The Claimant has filed and served a copy of the Agreement being relied on in these proceedings, which is annexed to their Amended Particulars of Claim dated 20th March 2008. The Defendant admits that this was an application form, signed by the Defendant on 29th September 2003.

9. At paragraph 3 of the Amended Particulars of Claim, the Claimant relies upon the supplied Agreement being regulated by the Consumer Credit Act (1974).

10. The Agreement is headed “Application form and Agreement” and the first paragraph commences with “If your Application is accepted by our signature above and we send you a copy, then this will form the agreement made between you, the Principal Cardholder and us, Lloyds TSB Bank plc”.

11. The Agreement is unsigned by Lloyds TSB Bank plc and is therefore unexecuted. The Defendant therefore respectfully submits that the Agreement cannot be relied upon as an executed Credit Agreement and it remains as an Application Form.

11.1 For the sake of ease and consistency, the document is still referred to as “the Agreement” in the remainder of this Amended Defence – however, this does not constitute any acknowledgement that the document is a valid, executed Agreement under the Consumer Credit Act (1974).

12. Without prejudice to the foregoing paragraphs, the Defendant avers that the Agreement does not contain the prescribed terms as required by the Consumer Credit (Agreements) Regulations SI 1983/1553.

13. The prescribed terms 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

14. Schedule 6 (Signing of agreement) of the Consumer Credit (Agreements) Regulations SI 1983/1553 also states that the prescribed terms must be contained within the signature document.

15. None of the above prescribed terms are contained within the signature document (the Terms & Conditions are dealt with separately at paragraphs 19-24 below)

16. In support of paragraphs 12-15 above, the Defendant cites the following from Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007). When reviewing the provision of Schedule 6 of the Consumer Credit (Agreements) Regulations SI 1983/1553, 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. The Defendant therefore respectfully submits that the Agreement relied upon is irrevocably unenforceable and the Court is precluded from making any enforcement order by virtue of s127(3) Consumer Credit Act (1974).

18. It is further denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that any enforceable Agreement between the parties exists.

The Terms & Conditions

19. The Claimant has filed and served a copy of the Terms & Conditions being relied on in these proceedings, which is annexed to their Amended Particulars of Claim dated 20th March 2008.

20. The first paragraph of the Agreement states: “…and the full conditions set out in the Brochure section headed Classic, Gold and Platinum Card Conditions – Customer Copy”, however the Terms & Conditions supplied do not contain any such heading.

21. The Defendant avers that the Terms & Conditions annexed to the Amended Particulars of Claim show no relation to the Agreement provided and there is no clear link between the Agreement and the Terms & Conditions.

22. The final page of the Terms & Conditions annexed to the Amended Particulars of Claim contains a reference “POFFTCS/0705”. In the absence of any other reference to applicable dates within the Terms & Conditions, the Defendant has good reason to believe that the /0705 part of this reference corresponds to the date that these Terms & Conditions were printed and that this date is in fact July 2005.

23. At paragraph 5 of the Amended Particulars of Claim, the Claimant relies upon Clauses 2.1, 2.2, 5.3, 14.1, 14.4 and 14.6 of the original Terms & Conditions as forming part of the original Agreement, yet the Defendant’s signature to the Agreement is dated 29th September 2003.

24. The Defendant therefore respectfully submits that the Terms & Conditions filed and served do not correspond to the Agreement and the Claimant is put to strict proof that the Terms & Conditions as annexed are the Terms & Conditions that were in force at the time of the Agreement.

The Default Notice

25. The Default Notice annexed to the Amended Particulars of Claim is in the sum of £5868.72

26. The Formal Demand annexed to the Amended Particulars of Claim is in the sum of £5879.72

27. The Defendant avers that these amounts include unlawful penalty charges in the sum of £75.00 and interest accruing thereon. These charges are detailed in the Statements submitted by the Claimant and are as below:

19/10/2004

Overlimit Charge

£20.00

17/02/2005

Overlimit Charge

£20.00

17/02/2005

Late Charges

£20.00

26/04/2005

Auto Letter Fees

£15.00

28. The Defendant brings to the Court’s attention the Office of Fair Trading’s statement of 5th April 2006 concerning default charges in credit card contracts and avers that these charges represent a penalty and are therefore unrecoverable at Common Law.

29. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

30. The Defendant further avers that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly

enrich the Defendant which exercises the contractual term in respect of such charges

with a view to profit.

b) Further to 30 (a), the charges debited are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable

c) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

d) Without prejudice to and in the alternative to 30 (a), (b) and ©, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

31. The Defendant respectfully submits that the Default Notice is, therefore, inaccurate.

32. 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

33. In lieu of submitting a counterclaim for damages, the Defendant would respectfully request the Court to consider awarding substantial damages to the Defendant as the Claimant has issued an inaccurate Default Notice. In kpohraror v woolwich building society [1996] C.L.C. 510 it was decided that the amount of the damages should be the amount of the cheque that was dishonoured (the amount of the default) plus substantial damage to reputation of £1,000.

Request under s78(1) Consumer Credit Act (1974)

34. Without prejudice to the above, on 6th February 2007, the Defendant made a formal request (“the request”) to the Claimant under section 78(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

35. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

36. Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

37. In responding to District Judge xxxxxx’s Orders of 18th March 2008, the Claimant was directed to supply documents as per the Draft Order for Directions attached to the Defendant’s Allocation Questionnaire of 2nd January 2008 – if supplied in full, the documents ordered would have the effect of satisfying the request made under s78(1) Consumer Credit Act (1974).

38. As has been explored above, the Agreement supplied is unexecuted, the Terms & Conditions supplied do not correspond to the Agreement supplied, and no statement signed by or on behalf of the creditor as detailed in paragraph 34 above has been supplied.

39. The Defendant therefore avers that the Claimant has still failed to fully comply with the request and continues to remain in default of its obligations under s78(1) Consumer Credit Act (1974).

40. It is further averred that the Claimant has no right of action until such time as this default is remedied.

41. The Defendant therefore respectfully requests that the Court gives due consideration to striking out the Claimant’s Claim by virtue of s78(6) Consumer Credit Act (1974).

Summary

42. For the avoidance of doubt, it is denied that the Defendant is liable to the Claimant in any manner and it is further denied that the Claimant is entitled to the sum of £5872.72 or £5872.74 claimed or any other relief thereon.

43. The Defendant respectfully submits that:

• The Claimant’s Amended Particulars of Claim do not comply with CPR 17 PD 17 2.1(1);
  
• The Agreement relied upon is irrevocably unenforceable;
  
• The Terms & Conditions relied upon as forming part of the Agreement do not correspond to the Agreement relied upon;
  
• The Default Notice is inaccurate; and
  
• The Claimant has not satisfied the Defendant’s request under s78(1) Consumer Credit Act (1974).

44. In view of the matters pleaded above, the Defendant respectfully requests that the Court:

• Makes an order that the Agreement relied upon is irrevocably unenforceable;
  
• Makes an order that the Claimant remove any and all credit reference data arising from the unenforceable Agreement and inaccurate Default Notice;
  
• Strikes out the Claimant’s Claim for the reasons detailed in the Amended Defence; and
  
• Awards substantial damages to the Defendant as per paragraph 33 above.

Statement of Truth

Dated this 7th April, 2008

I believe that the facts stated in this Amended Defence are true.

Signed:

{mcuth}

Defendant

 

 

Cheers

Michael

[pt2537]

well i think that just about covers everything:D

 

time to fillet their donkey

[mcuth]

well i think that just about covers everything:D

 

I tried to get everything covered

I'm thinking it all makes sense (the references/Acts quoted, etc..), and given that you've not pulled me up on anything, I reckon it'll be ok

 

time to fillet their donkey

 

ROTFLMFAO

Its going in the post today - think I'll make it Special Delivery so I can be sure its there by the 9th and signed for....

 

Cheers

Michael

[mcuth]

I've also added the following:

 

12. The Agreement has a section entitled “YOUR RIGHT TO CANCEL” which states: “Once you have signed this agreement you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by us.”

13. District Judge xxxxxx’s Orders of 18th March 2008 directed the Claimant to supply documents as per the Draft Order for Directions attached to the Defendant’s Allocation Questionnaire of 2nd January 2008 – this included “Copies of the Credit Agreement, and all documents referred to within it….”. As demonstrated in paragraph 12, within the Agreement there is clear reference to a separate document detailing cancellation rights – this document has not been supplied, nor, as per paragraph 6 above, do the Amended Particulars of Claim make any reference to the Claimant fulfilling their obligations under s64 Consumer Credit Act (1974).

14. District Judge xxxxxx’s Orders of 18th March 2008 are “unless” orders and the Defendant therefore respectfully requests that the Court gives due consideration to striking out the Claimant's Claim by virtue of the Claimant’s non-compliance with said Orders.

 

 

Cheers

Michael

[mcuth]

The docs sent to the Court are yet to arrive (though are out for delivery), but the Claimant's copy.....

 

Your item with reference XXXXXXXXXXXXX was delivered from our BRIGHTON Delivery Office on 09/04/08 . Thank you for using this service.

We can confirm that this item was delivered before the guaranteed time.

Let battle commence

 

Cheers

Michael

[mcuth]

Well, well, well - got home tonight and there's a massive pack from SC&M.... the claim must've been thrown out for non-compliance with the DJ's orders as they're making an application for it to be reinstated (I've not received a copy of the order yet though)!

 

They've included a witness statement in support of the application, a further amended PoC, another copy of the "agreement" and the original Ts&Cs (properly this time, I think).

 

It's a hell of a load of typing to do, but I shall get it done a bit later on this evening......think I'll need a lot of help responding to it all (ready Paul? )

 

Cheers

Michael

[N.P]

Hi Michael,

 

Just to let you know I`m watching this one with great interest as I`m expecting some trouble from these knob jockeys too sometime in the near future.

 

Keep fighting!

 

Regards

 

 

N.P

[car2403]

FYI - Paul isn't around, as he has some work to do for Uni, but you have other "volunteers" that are willing to help out, when you need it...

[The GodMother]

paul is about just not as much as he use to be due to uni stuff.

 

Other ppl may be able to help u with the basics but more techinal legal matters paul would be best.

 

we non legally minded ppl will help were we can.

[mcuth]

Thanks folks

Well, here we go......

 

Covering letter

We enclose a copy of our Client's unsealed application sent to the Court for your information. You will receive a sealed copy from the Court in due course together with notice of the hearing date.

 

For the avoidance of doubt and in the interim we also enclose the following documents for your perusal:-

 

i) copy credit card agreement numbered XXXX XXXX XXXX XXXX {mcuth note: This is the same "agreement" as sent before, and viewable here}

 

ii) the Bank's copy of the terms & conditions on the reverse of the agreement at time of opening {mcuth note: This is the same photocopy of the reverse as they sent previously, viewable here}

 

iii) copy of the brochure incorporating the Customer Copy Conditions applicable to this account at the time of opening

 

iv) copy most recent varied terms & conditions

 

We also enclose a signed statement from our Client pursuant to section 78 of the Consumer Credit Act 1974.

Application Notice:

Part A:

I xxxxxxx xxxxxx on behalf of the claimant intend to apply for an order (a draft of which is attached) that in the terms of the draft order attached because (see attached)

 

Part B:

I (We) wish to rely on:

the attached (witness statement)(affidavit) {mcuth note: neither are crossed out & the box for evidence at Part C is not ticked}

 

Part C:

I wish to rely on the following evidence in support of this application:

1. I wish to rely on the attached Witness Statement appended to my application.

 

{mcuth note: yup, that's really what Part C says!}

Witness statement:

I, xxxxxxx xxxxx, of Lloyds TSB Bank plc, Consumer Debt Recovery, 1-5 Queens Road Quadrant, Brighton, East Sussex, BN1 3XJ, WILL SAY AS FOLLOWS:-

 

1. I respectfully apply to the Court for an order in the terms of the draft order attached to my application.

 

Reinstatement

2. At a hearing before District Judge XXXXXX {mcuth note: It wasn't the DJ they quote - that was the DJ that made the orders, the one we saw was different} on 12 March 2008 the Claim was allocated to the Small Claims Track, and certain directions given, including directions for disclosure of particular documents which were accompanied by an "unless" sanction providing for automatic strike out in the event of non-compliance. The sanction was included because the Defendant had included such a sanction in his draft order, and the Claimant did not by counsel object to the terms of the draft. There was, it is submitted, no real justification for the attachment of a strike out sanction in this case, but it remained by agreement.

 

3. In compliance with this Order the Claimant has supplied an Amended Particulars of Claim, accompanied by a copy of the Application Form signed by the Defendant which became, on execution by the Claimant Bank, the Agreement, and which the Claimant contends complies with the 1974 Act and associated regulations. However, annexed tot he Amended Particulars of Claim was a set of Terms and Conditions which were attached in error, since they were not the terms and conditions which formed the original agreement between the parties, but a varied version. As a result of this error the Amended Particulars of Claim included reference to the incorrect terms.

 

4. With those documents were a Reproduction Default Notice, supplied because no true copy can be produced by the Bank's systems, but which has been produced using the same system on the basis of the information logged in the Bank's records at the time, a similarly produced Formal Demand, and statements for the Account covering the period 16 October 2003 to 20 March 2007.

 

5.It is therefore submitted by the Claimant that a copy of the Agreement has been disclosed, that sufficient copy of the Default Notice has been disclosed, and that the account statements are sufficient to amount to a transcript of all transactions (including the items requested by the Defendant) along with a breakdown of how the sum claimed has been calculated (since it is readily apparent that the sum is the outstanding balance of the Account).

 

6. It is accepted by the Claimant that no signed statement of account showing the matters requested by the Defendant (in essence the matters required under s.78(1) of the 1974 Act) has been disclosed, and that therefore the Claimant is in technical breach of the Order with the resulting sanction being imposed automatically. Furthermore, the full Agreement has not been disclosed due to the error in relation to the varied rather than the original Terms and Conditions.

 

7. It is respectfully submitted that the strike out sanction imposed as a result of these failings should be lifted, and the Claim be re-instated, for the following reasons (in accordance with CPR3.9):

a. It is wholly in the interest of justice for relief to be granted. There is no real dispute that a significant sum of money was advanced by the Claimant to the Defendant. The Defendant seeks to avoid repaying that sum by way of technical objections. He is of course entitled to hold the Claimant to the letter of the law, but the interests of justice would not be met by preventing a trial on the merits and denying the Claimant the opportunity to seek repayment of the amount it is owed as a result of a strike out for non-compliance which does not in fact prejudice the Defendant;

 

b. The application for relief has been made as promptly as circumstances allow, and there is no risk of jeopardising the trial date (unless that is required as a result of further orders to be considered below);

 

c. The Claimant has by solicitors attempted to comply with the order made, and has supplied sufficient documents for the Defendant to be fully aware of the case he has to meet, and the manner in which the balance has accrued. Of the items not supplied, one was simply an error which is easily rectified without prejudice to the Defendant (the correct terms) whilst the other (signed statement in compliance with s.78 of the 1974 Act) was not in truth required for the fair disposal of the case. There is, and can be, no dispute between the parties that the state of the account is that it is in arrears, the current amount payable is the full amount outstanding as per this Claim, and that the full amount is payable now. No further amounts will become payable under the Agreement. For the avoidance of doubt, however, the Claimant has now supplied a full signed statement containing this information. It is, however, submitted that the purpose of s.78 is not to provide debtors with a tactical tool to avoid paying the debts they owe, but rather to enable those who do not know what their situation is to obtain the relevant information from the creditor in an inexpensive and rapid manner {mcuth note: How dare they: a) presume such, and b) "rapid manner"? Really? I made my CCA request on 06/02/07!}. The supply of this information in this form now rather than on 26 March 2008 has not prejudiced the Defendant in any way whatsoever and a fair trial remains entirely possible.

 

d. There is no suggestion that the Claimant has failed to comply with any previous directions made. The "Unless" sanction should most probably not have been attached to what was a perfectly routine order for directions. It is admitted that the Claimant's legal representatives should have objected at the time the order was made, but it is submitted that the absence of any real need for a sanction is relevant in removing this case from the normal situation where an "unless" order is made, namely where there has been a previous order which has been disobeyed {mcuth note: Does non-compliance with s78 count? } and a party is unable to properly prepare its case in the absence of those items. This is not that case and strike out is unjustifiably draconian;

 

e. The failure is one of the solicitors rather than the Bank itself, and the Bank should not be penalised for their failure;

 

f. The trial date can still be met, so long as further orders do not prevent it;

 

g. The failure to comply has not prejudiced the Defendant in any way. However, failure to grant relief will prevent the Claimant from being able to pursue a claim for funds it has undoubtedly lent to the Defendant and which the Defendant has failed to repay.

 

Re-amendment of the Claim

8. If the Claimant is permitted to reinstate its Claim, it is apparent from the above that the Particulars of Claim must be re-amended to refer to the terms and conditions which formed the original agreement. The Amended Particulars of Claim recently served were prepared by the solicitors in error. A draft Re-Amended Particulars of Claim settled by counsel is appended to this application and the Claimant seeks permission to rely on the Re-Amended document with further service and filing dispensed with in the interests of saving costs and time. It is submitted that permitting the amendment is in the interests of justice because it ensures that the real issues between the parties are properly before the Court {mcuth note: You mean, you got it wrong twice and you want a 3rd attempt at the PoC with the benefit of having seen the Defence? }

 

9. If permission is granted to the Claimant it is accepted that permission would have to be granted to the Defendant to re-amend the Defence, if required.

 

10. Given the content of the present Amended Defence, the Claimant seeks leave to reply to that Defence, particularly in relation to the complex issues raised in respect of the alleged penalty charges and their inclusion in the account balance, and in relation to the contention that damages are payable in the event that there is any inaccuracy (which is not accepted).

Re-allocation

11. The case was allocated to the Small Claims Track on the last occasion. The value of the Claim is £5,872.74 and it could therefore only be allocated to the Small Claims Track with the consent of both parties. The Allocation Questionnaire filed on behalf of the Claimant stated that the case should be allocated to the Fast Track, and it is not clear why the case came to be allocated exceptionally to the Small Claims Track, although it may be that counsel agreed on behalf of the Bank that that could be done. So far as can be ascertained, that agreement seems to have been given in the absence of instructions to do so. The Bank therefore applies for re-allocation of the Claim to the appropriate track. In any event, it is submitted that re-allocation is appropriate for the following additional reasons (which represent a change of circumstances from the original allocation hearing):

 

a. The Amended Defence suggests that the Agreement was not properly executed, and is therefore not enforceable, due to the absence of a signature on behalf of the Bank. The Bank will contend that the endorsement at the top of the Application Form represents the Bank's assent to the offer made by the Defendant, and that it is sufficient to amount to a signature in this context. This will inevitably be the subject of legal argument;

 

b. Without prejudice to the Claimant's contention that the document was properly signed and executed, in the event that the Court concludes that there is no signature on behalf of the Bank on the executed Agreement, such that it is not properly executed, the Court would have to consider the exercise of its discretion to permit enforcement pursuant to ss127(1) and (3) of the 1974 Act. This additional issue alone would result in the hearing occupying more time than that normally allotted to small claims;

 

c. The Defendant suggests that the inclusion of alleged "penalty" charges in the balance of the account invalidates the Default Notice served with the result that the debt is unenforceable. The issue of penalty charges (in relation to current accounts {mcuth note: Ummm yeah, this is a credit card remember? And let us also remember that in Dec '06 you settled a claim of mine on this account, 2 weeks after issuing the default! Oh, and when did the OFT release their findings on CC charges again?}) is one which has notoriously occupied the attention of a Judge sitting in the Queen's Bench Division Commercial Court for several months. This is some indication of the complexity of the arguments involved;

 

d. Even if the charges are regarded as penal or otherwise unenforceable, there remains the issue of whether the imposition of a charge pursuant to a contractual term which is only subsequently adjudged unfair or unenforceable retrospectively invalidates a default notice which was correct at the time of issue but for that later assessment by the Court. This too is a complex legal argument;

 

e. The Defendant now seeks to bring a claim for damages in relation to the default notice and its alledged invalidity. In the absence of clear evidence it will not be straightforward to assess the level of damages in such a case, and the damages are at present unliquidated. Notwithstanding the Defendant's claim for damages has not been properly pleaded as a Part 20 Counterclaim, that permission to bring such a counterclaim has not been granted, and the fee for such a counterclaim has not been paid, if such counterclaim is to proceed this alone would justify the consideration of re-allocation and would remove the Claim from the "straight forward" [sic] category the Defendant originally submitted that it occupied; {mcuth note: well, if you don't substantiate your claim in the first place, this is what happens!}

 

f. In all the circumstances the Defendant has, in his Amended Defence, significantly widened the scope of his arguments and it cannot be said that this is a straightforward case which can properly remain on the Small Claims Track, a fortiori given that it seems that it was allocated that way contrary to the usual rule as a result of an error on the part of counsel representing the Bank on the last occasion.

 

12. The additon of these further issues also justifies the provision of further directions for the hearing, including the filing of skeleton arguments and copy authorities, which should be included in any trial bundle.

 

13. Whilst the trial date may be lost, it is apparent that the case should be listed with a time estimate of at least one day to accommodate the various issues. The present 90 minute time estimate is likely to fall far short of what is required for the fair disposal of the case.

 

14. The loss of the June trial date may have an ancillary benefit for the just disposal of the case, since it is presently anticipated that the Bank Charges judgment will be release by the Commercial Court in July 2008. Whilst that judgment would not be binding authority since it relates to current account charges rather than credit card charges, it will have covered much of the same ground and may helpfully illuminate the issues.

 

15. As a result of the above submissions, the Court is respectfully asked to make an order in the terms of the draft order appended hereto.

 

{statement of truth....}

Draft order:

Upon hearing Counsel for the Claimant and upon hearing the Defendant in person

 

It is Ordered THAT:

 

1. The Claim be reinstated.

 

2. By reason of the legal arguments to be made by both parties, this claim be re-allocated to the Fast Track.

 

3. The Claimants have permission to re-amend the Particulars of Claim in the form supplied to the Defendant and the Court prior to the application hearing. Further service and filing be dispensed with.

 

4. The Defendant shall file and serve any re-amended Defence by 4pm on [date left blank] 2008.

 

5. The Claimants shall file and serve any Reply, if so advised, by 4pm on [date left blank] 2008.

 

6. Both parties shall give standard disclosure to the other by way of list supported by disclosure statement by 4pm on [date left blank] 2008. Any request for the provision of copy documents shall be made to the other party by 4pm on [date left blank] 2008, and such copies as may be requested shall be supplied by 4pm on [date left blank] 2008.

 

7. Any request for further information pursuant to CPR Part 18 shall be made by [date left blank] 2008 and shall be responded to by [date left blank] 2008.

 

8. The parties shall exchange witness statements of witnesses of fact exhibiting any other documents which are relied upon by 4pm on [date left blank] 2008.

 

9. The Defendant shall serve on the solicitors for the Claimants a skeleton argument identifying the legal points and/or arguments on which he relies, including a copy of any authorities or provisions relied upon, by 4pm on [date left blank] 2008.

 

10. The Claimants shall serve any skeleton argument in reply, including copy authorities or provisions, by 4pm on [date left blank] 2008.

 

11. Pre-trial checklists/listing questionnaires shall be sent to the parties by the Court by [date left blank] 2008 and shall be returned completed to the Court by [date left blank] 2008.

 

12. The parties shall make reasonable efforts to agree the contents of a trial bundle, to include all materials relied upon including a Case Summary and the skeleton arguments and authorities supplied pursuant to this Order, and the solicitors for the Claimants shall produce such a paginated bundle and serve it on the Defendant by 4pm on [date left blank] 2008. The trial bundle shall be filed with the Court with sufficient copies for the Judge and any witness by 4pm on [date left blank] 2008.

 

13. The claim shall be listed for final hearing with a time estimate of one day in the trial window between [date left blank] 2008 and [date left blank] 2008.

 

14. Costs in the case.

Phew..............after all that typing, I'm done in and off to bed!

 

I'll be back tomorrow with the re-amended PoC and the s.78 statement (if y'all want to see them?)

 

Cheers

Michael

[mcuth]

Okey dokey, good morning everbody

 

I can't be arsed retyping everything, so I've scanned in the re-amended PoC and the s78 statement....:

 

raPoC p1

raPoC p2

raPoC p3

raPoC p4

raPoC p5

raPoC p6

raPoC p7

 

s78 statement

 

Cheers

Michael

[mcuth]

Have now received the order from the court that the above application is in response to:

 

Before Deputy District Judge.........

 

Upon reading a letter from the Defendant dated 4th April 2008

 

On the Court's own motion

 

IT IS ORDERED THAT

 

1. The claim be struck out.

 

2. This order has been made without a hearing under the Court's management powers in Part 3 of The Civil Procedure Rules. You may within 7 days of the service of this order apply to the Court to set aside or to vary the order under Part 23 rule 10. You must file with the Court and serve on the other parties an applciation that sets out your reasons for objecting to the order. The original application [if any] will be listed for hearing with your application unless you ask the Court to vary the order without a hearing.

 

Date Order Made: 18th April 2008

 

Cheers

Michael

 

Cheers

Michael

[pt2537]

WHOOOOOOO HOOOOOOOO

 

Congrats mate

 

so the judge threw their ass out of court, Cool

 

i will change the thread title to reflect

[mcuth]

WHOOOOOOO HOOOOOOOO

 

Congrats mate

 

so the judge threw their ass out of court, Cool

 

i will change the thread title to reflect

 

Hi Paul

 

Thanks - but unfortunately, they've applied to have the claim reinstated - the order's come after their application in response to the order. See the 2 posts prior to this morning (here & here) which I could really do with your help on please

 

Can you change the title back too please?

 

Ta

 

Cheers

Michael

[pt2537]

ARGHHHH

 

Bugger

 

ok missed that, still the judges order stands til its set aside i guess

[mcuth]

ARGHHHH

 

Bugger

 

ok missed that, still the judges order stands til its set aside i guess

 

True - a temporary victory

 

Cheers

Michael

[citizenB]

Have you used this mcuth.

 

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

[mcuth]

Have you used this mcuth.

 

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

 

Aye, have seen it before thanks - that one's tucked away in my armoury for later

 

I'm wondering if I should respond to their application in some way? I've got lots of thoughts going round my head on what I want to say..... Paul, is there a proper procedure for that, or do I have to wait til the Court orders a hearing for their application and do it in person?

 

Cheers

Michael

[car2403]

If you want to make submissions, it's best off doing that prior to the hearing, in writing. Actually, CPR doesn't require it for an application hearing, unless specifically requested by a party, but you are best off complying with the "usual" disclosure before the hearing, IMO.

 

What arguments do you have against the set aside of the order, then?

[mcuth]

Sorry I've not replied for a bit - been sooo busy at work, had a laptop failure at home, and then preparing for my holiday starting today! I've now received the Court's sealed copy of the Application, with a hearing due for 29th May.

 

If you want to make submissions, it's best off doing that prior to the hearing, in writing. Actually, CPR doesn't require it for an application hearing, unless specifically requested by a party, but you are best off complying with the "usual" disclosure before the hearing, IMO.

 

Ok, thanks for that.

 

What arguments do you have against the set aside of the order, then?

 

Well, mainly these:

1. Their counsel agreed to the "unless" order, saying that there was no problem producing all the docs - whether that was their instruction or not isn't my concern, and they have been in default of a s.78 request for over a year.

2. Their counsel agreed to SCT without problem

3. Their argument about the OFT Test Case holds no water as this is a credit card and the OFT ruled on the charges issue well before they issued the default notice (1st December 2006)

4. They allude to errors made by them - not my problem, that's theirs - they are the supposed "professionals" here...

5. They shouldn't have permission to keep re-amending their PoC when I submit a defence that rips it to pieces

6. I am prejudiced by the whole issue - they have been in default of my s.78 request since Feb 07, and shouldn't have brought the case in the first place. I shouldn't have the threat of a CCJ hanging over me now because they've finally complied under order from a court under a claim they've brought!

 

I'm back on 15th May - now off for some well deserved sun & relaxation

 

Cheers

Michael