Lloyds TSB Credit Card - Claim form received

[mcuth]

I'm back from hols - not quite tanned enough, but very relaxed Nothing waiting in the post from SC&M or the Court, so am presuming the application hearing is going ahead on the 29th. Now need to start thinking about phrasing my objections properly...

 

Cheers

Michael

[Truther]

I've ask Lloyds TSB twice to provide documents in a sworn affidavit.

Still nothing yet, and very much doubt they will.

 

Also their solicitors acting on there behalf, well no comment lol

I'll notify the law society regarding them.

 

 

 

The contents of this post should not be construed as being legal advice

 

Peace

 

 

Truther

[mcuth]

Received this supplemental witness statement from SC&M prior to the application hearing this Thursday:

 

 

 

 

Not quite sure what that's supposed to be in aid of???

Anyone any hints as to how I should approach the hearing?

 

Cheers

Michael

[car2403]

Are they saying that, because they are a major high street bank, that there is no way they could have gotten it wrong, making the notice inaccurate?

 

What tosh...

 

The fact they can't produce a true copy of the original, thereby showing that they've complied with the regulations they are so adamant that they have complied with, means that this whole process is unlawful under s.87/s.88 anyway?

 

I also wonder if Mr Matthew Bartle will attend the hearing, to give evidence in person?

[mcuth]

Are they saying that, because they are a major high street bank, that there is no way they could have gotten it wrong, making the notice inaccurate?

 

What tosh...

 

The fact they can't produce a true copy of the original, thereby showing that they've complied with the regulations they are so adamant that they have complied with, means that this whole process is unlawful under s.87/s.88 anyway?

 

I'm glad you came back with that Chris, 'cos that's the sort of idea I was forming - they seem to be saying "oh we do this all the time, and we're a major high street bank, so there's no way that we could be wrong". I actually think this, along with their failure to produce/mention their obligations re cancellation notices, could be the really massive turning points....

 

I also wonder if Mr Matthew Bartle will attend the hearing, to give evidence in person?

 

LOL - I really doubt it

 

Cheers

Michael

[pt2537]

Are they saying that, because they are a major high street bank, that there is no way they could have gotten it wrong, making the notice inaccurate?

 

wonder if that was First county trusts submissions in Wilson .v FCT

[car2403]

I'm glad you came back with that Chris, 'cos that's the sort of idea I was forming - they seem to be saying "oh we do this all the time, and we're a major high street bank, so there's no way that we could be wrong". I actually think this, along with their failure to produce/mention their obligations re cancellation notices, could be the really massive turning points....

 

It's all poppycock, IMHO - if they can't produce the documentation required as a pre-action protocol under the Act, (which a Default Notice is, according to s.88 CCA 1974) they shouldn't be taking the claim to Court.

 

Missing prescribed terms/cancellation rights is an oversight that will cost them dearly. Failing to follow the prescribed process for bringing the claim to Court just adds to the fury that the Judge will hopefully (maybe with a little encouragement from you) rain down on them.

[The GodMother]

I thought prescribed terms /cancellation rites were and important part of any case so they can prove the claim is legit?

 

I move for a stike out of the case.

[mcuth]

Ok, so I've put together some "key points" notes for my ref in the Application Hearing this afternoon @ 2pm. Know it's short notice, but would be grateful of any comments on them & suggestions...

 

Key Points:

1. Claimant’s counsel agreed to the “unless” order – this was requested due to Claimant’s failure to deal with s78 request since 6th February 2007, not simply because it was included in the Draft Order attached to the AQ as alleged in para 2 of the Claimant’s original witness statement

2. para 7g - The Defendant has been prejudiced by the whole claim as the Claimant was not at liberty to enforce the alleged agreement under s78(6) Consumer Credit Act (1974), which 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.

3. The request under s78(1) was made on 6th February 2007, and the Defendant objects to para 7c of the original witness statement –implication of “avoiding paying debts” and referring to compliance under s78(1) “in a rapid manner”

4. s78(1) 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.

5. The Claimant has still not fulfilled this request as no details of cancellation rights have been supplied and it is presumed that therefore the Claimant has not complied with s64 Consumer Credit Act (1974). The agreement is therefore unenforceable s127(4) Consumer Credit Act (1974) states:

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

6. Claimant’s counsel agreed to SCT – para 11 – not Defendant’s problem if Claimant cannot instruct counsel properly.

7. The issues to be dealt with are not complex as alleged by the Claimant – the issues are simple and thus:

7.1 Has the Claimant complied with the law?

7.2 Is there an executed enforceable agreement containing all the prescribed terms?

7.3 Can the original agreement be produced in accordance with CPR13.1?

7.4 Is the default notice valid?

7.5 Were cancellation rights served properly?

7.6 Does the amount outstanding & defaulted contain penalty charges?

8. Penalty charges – the Claimant’s argument at paras 11c/d is moot - 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.

9. No default notice – only a “reproduction” – Claimant seems to infer from their supplementary witness statement of 16th May 2008, that as they are a “major high street bank”, they could not possibly make inaccurate submissions or make a mistake. This isn’t true, as we have seen from their admissions regarding the terms & conditions, allocation, etc…

10. s87 states:

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

11. s88 Consumer Credit Act (1974) states:

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

12. Settled law regarding 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)

13. 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.

14. The Claimant can’t even substantiate the default notice as it is only a reproduction

 

Cheers

Michael

[nicklea]

 

7.3Can the original agreement be produced in accordance with CPR13.1?

Cheers

Michael

 

Just a small point but it's cpr31 not 13. This only applies to seeing a copy of the agreement. IF you want to see the actual agreement itself you need to request this under cpr 32.19, but you need to do this at the disclosure stage.

 

PART 32 - EVIDENCE

[mcuth]

Just a small point but it's cpr31 not 13. This only applies to seeing a copy of the agreement. IF you want to see the actual agreement itself you need to request this under cpr 32.19, but you need to do this at the disclosure stage.

 

PART 32 - EVIDENCE

 

Thanks for pointing that one out - it's actually CPR32 13.1 that I was meaning:

PRACTICE DIRECTION – type="start" timestamp="1122646426703" EVIDENCEtype="end" timestamp="1122646426703" - This Practice Direction supplements CPR Part 32

 

That doesn't seem to imply it being at disclosure stage though?

 

Cheers

Michael

[citizenB]

Good luck for this afternoon

[mcuth]

Good luck for this afternoon

 

Thanks CB - will post an update tonight when I'm home....

 

Cheers

Michael

[nicklea]

Thanks for pointing that one out - it's actually CPR32 13.1 that I was meaning:

 

That doesn't seem to imply it being at disclosure stage though?

 

Cheers

Michael

 

Sorry, you're right, I hadn't looked at the Practice Direction. If you're quoting it to the judge you might want to make it clear that it's part 32 practice direction.

 

As the others have said - good luck

[mcuth]

Sorry, you're right, I hadn't looked at the Practice Direction. If you're quoting it to the judge you might want to make it clear that it's part 32 practice direction.

 

As the others have said - good luck

 

Cool, thanks Nick

 

Cheers

Michael

[ukaviator]

Good luck Michael . .

[car2403]

Well???...

[mcuth]

Well.......

Firstly, thanks for the good luck wishes everyone

 

Taken me a little while to typing this as it wasn't the best result today, but I think I gave it the best shot I could. The DJ was really pretty reasonable and was quite supportive - plus, he didn't just insist that it was money lent & had to be repaid!

 

The upshot is that the case has been reinstated.

Whilst the DJ was most scornful of the Bank's errors in agreeing to the "unless" order and SCT allocation, then not complying with the order and now requesting reallocation, there's no real prejudice been caused to me (they've not even claimed interest, which could've been used as a prejudice argument) and no prevention of a fair trial. He did say that the interests of justice provide that the case should be reinstated. TBH, I couldn't really argue against that too much.

 

There's also case law that says that an "unless" order, without previous order breaches, is a disproportionate sanction (I'll dig out the case from my notes tomorrow) - I pointed out the Bank's failure to comply with my s78 request actually prevented them from commencing this enforecement action, but as that wasn't a breach of a court order, it couldn't be taken into account at the application hearing and was a matter for trial.

 

The case has also been reallocated to Fast Track, entirely down to the arguments to be presented and the length of trial time it'll require (it took us well over an hour just to present arguments just for this application, and an hour was allocated to this hearing) - the DJ did point out that it could almost be a multi-track case! However, costs to date are to be ruled by the SCT, so that's a bit of a bonus....(and the DJ was quite happy to let counsel know that they weren't in a position to object due to their previous errors, etc...)

 

The DJ was keen to get everything "compartmentalised" into major issues for the trial, so we went through those - he seemed to enjoy the penalty charges argument, and said that the argument about the penalty charges invalidating the default notice (which, I interjected, couldn't be produced!) was an interesting one. Counsel said that as it was only £75 involved, it was likely a "de minimis" (sp?) issue - can't wait to get my teeth into that.

 

Anyhoo, the Draft Order submitted by the Bank has been amended somewhat (that went a little too quickly for my notetaking), the re-amended PoCs will be served again with their amendment for the default notice - my re-amended defence has to be served by the end of June. We agreed further timelines for various aspects, and the case will be listed for a November-ish date. I'll post all that up if I can read my notes, or the actual order when it comes.

 

I think their counsel knows that this isn't going to be an easy ride for him, and was most impressed at the arguments & paperwork supplied so far At one point, the DJ noted to the Bank's counsel (who will most likely be their representative at trial) that I was a Litigant in Person (not sure why, I'd sort of lost track at that moment), and counsel replied with "A very able one too, sir"

 

Oh, whilst we were outside the courtroom waiting for the DJ to consider his order, counsel did let it slip that he didn't think the original agreement would be able to be produced - we had a quick chat about CPR32 13.1 and he said that the Civil Evidence rules allowed a photocopy if the original couldn't be produced. Of course, I'll make a big fuss that with the Bank's errors to date, the original must be produced to determine that the correct Ts&Cs are referred to - a point I made several times during the hearing, just to emphasise it

 

We also had quite an intersting chat about the consumer revolution and how the banks just aren't used to the consumers fighting back

 

All in all, not too bad an experience - even if it wasn't the result I wanted and it went on for nearly 2hours in total. I think I've left a good impression on both the DJ and counsel

 

Cheers

Michael

[citizenB]

Some good and some not so good news then Mcuth..

 

A real nuisance it has been scheduled for so late in the year though. It is frustrating that Lloyds have been allowed so many attempts at getting their paperwork correct. Had it been an LIP make that kind of screw up they would have well lost.

[mcuth]

Some good and some not so good news then Mcuth..

 

Indeed

 

A real nuisance it has been scheduled for so late in the year though.

 

Oh I dunno, it sort of takes the pressure off me a little - after all, I don't have a hearing to prepare for in 2 weeks now - though there will be several deadlines to meet throughout the next 6 months.

 

It is frustrating that Lloyds have been allowed so many attempts at getting their paperwork correct. Had it been an LIP make that kind of screw up they would have well lost.

 

Absolutely - I did keep on with that point in the hearing, but it didn't really get acknowledged (apart from counsel admitting that the Bank were in the wrong, etc.. etc..). I did manage to get a few comments in with counsel when we were outside though

 

Cheers

Michael

[mcuth]

There's also case law that says that an "unless" order, without previous order breaches, is a disproportionate sanction (I'll dig out the case from my notes tomorrow)

 

It's Marcan Shipping (London) Ltd v Kefalas and another [2007] EWCA Civ 463. See paras 34-36 - I'm thinking that while it may be a good idea, there's always a defence to strike out under an unless order, if it's the first breach. Also, it's worth noting that it's apparently not appropriate for the party relying on the unless order to seek that it is activated (see 34A).....

 

Cheers

Michael

[mcuth]

Received the order from the court now:

 

IT IS ORDERED THAT:

 

1. The claim be reinstated.

 

2. By reason of the legal issues and complaxity [sic] of facts, this claim be re-allocated to the Fast Track.

 

3. The Claimant's [sic] 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. Costs of and occasioned as a result of the re-amendment be the Defendant's in any event.

 

4. The Defendant shall file and serve and [sic] re-amended Defence by 4pm on the 27th June 2008.

 

5. The Claimant's [sic] shall file and serve any reply, if so advise [sic], by 4pm on the 14th July 2008.

 

6. Both parties shall give standard disclosure to the other party by way of list supported by disclosure statement by 4pm on the 21st July 2008. Any request for the provision of copy documents shall be made to the other party by 4pm on the 28th July 2008 any such copies as my be requested shall be supplied by 4pm on the 4th August 2008.

 

7. Any request for further information pursuant to CPR Part 18 shall be made by the 11th August 2008 and shall be responded to by the 25th August 2008.

 

8. The parties shall exchange witness statements of witness of fact exhibiting any other documents which are relied upon by 4pm on the 22nd September 2008.

 

9. Pre-trial checklists/listing questionnaires shall be returned completed to the Court by the 28th octoebr [sic] 2008.

 

10. 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 Claiamnt's [sic] shall produce such a paginated bundle and serve it on the Defendant by 4pm on the 3rd November 2008. The trial bundle shall be filed with the Court with sufficient copies for the Judge and any witness by 4pm on the 10th November 2008.

 

11. The claim shall be listed for final hearing with a time estimate if one day in the trial window between the 10th November 2008 and the 28th November 2008.

 

12. The small claim hearing listed for the 12th June 2008 be and is hereby vacated.

 

13. Costs in the case.

 

Also enclosed was the N170 pre-trial checklist for completion & return by 28th October...

 

Hmmm, seems I've got a bit of work to do!

 

Cheers

Michael

[car2403]

I can't for the life of me see why this is a fast track case - it doesn't involve complex legal issues, from what I can see.

 

Not much you can do about this, but, a word of warning now, you are open to a claim of their costs if you do go on and lose. It's time to consider now what the impact of that would be on you personally, (I'd imagine it would amount to £2k/£3k, potentially) in case you get a Judge that totally disagrees with you.

 

I'm not saying you will lose, but considering "other options", such as a Consent Order saying you'll pay £x each month until the balance is cleared, may be the better way to go, if you don't think you can afford the risk.

 

Call me Devils' Advocate.

[mcuth]

Hi Chris

 

I can't for the life of me see why this is a fast track case - it doesn't involve complex legal issues, from what I can see.

 

Not much you can do about this, but, a word of warning now, you are open to a claim of their costs if you do go on and lose. It's time to consider now what the impact of that would be on you personally, (I'd imagine it would amount to £2k/£3k, potentially) in case you get a Judge that totally disagrees with you.

 

I'm not saying you will lose, but considering "other options", such as a Consent Order saying you'll pay £x each month until the balance is cleared, may be the better way to go, if you don't think you can afford the risk.

 

Call me Devils' Advocate.

 

Thanks for the warning, my Advocate friend

 

Both their Counsel and the DJ were convinced that the penalty charges/inaccurate default notice, s78 default and the executed by "signature" were the arguments that required the case to be Fast Track - the fact that the original Counsel at the Allocation Hearing had made an error in consenting to SCT didn't help.

 

I'm not spectacularly over-worried about their costs - in the first instance, if I get to thinking I'll lose, I'll be fighting for a consent/Tomlin order on this rather than a CCJ since they shouldn't have brought the case due to their s78 default. Secondly, if I lose, this case may be the one that makes a decision to go bankrupt more of a reality than it currently is (fighting a few other issues too!)...

 

Cheers

Michael

[mcuth]

Now received the clean copy of the re-amended PoC, along with all attachments..... lots of work to do.

 

Cheers

Michael