Clarification re Statute Barred

[supasnooper]

Do I have to list and supply copy of all the the case law, and the relevent sections of the consumer credit act that is pertinent to my defence and all the relevent documents that I will be refering to in my draft order/directions

 

Hi there,

 

Yes you do have to list and supply whatever case law and relevent sections of the CCA 1974.

[letitbeme]

OK I understand the Term: case management conference.

 

 

1.

Case management conferences form a fundamental part of the management of litigation in the UK. These conferences are used by courts to exercise their broad case management powers. These occasions will be used to make directions, if necessary, or review the litigants’ compliance with previous directions, with a view to making directions leading up to the trial. The parties may consent to directions that would otherwise be made at a CMC, however the court retains the power under the Civil Procedure Rules to require the parties to attend court at anytime for the purposes of managing litigation for the purposes of ensuring that the case is ready for trial at any time between allocation through to the pretrial review.

Ordinary business at a case management conference includes:

1. Ensuring previous directions made by the court have been complied with;
   
2. Review the steps taken by the parties in preparing the case for the final hearing;
   
3. Decide matters that should be addressed prior to the hearing, having regard for the overriding objective;
   
4. Make a record of agreements to progress the litigation.
   

In the course of managing the litigation, the court will identify the fundamental issues in dispute between the parties, with a view to ensuring that the case progresses in accordance with the directions issued in the proceedings. Legal representatives or a person familiar with the disputes being litigated (with litigation experience) should attend to properly assist the court manage the litigation. To this end, it may be appropriate for:

1. documents that the court may wish to see be available for inspection, including witness statements and experts’ reports,
   
2. parties should attend
   
3. preparation of a case summary (which is the responsibility of the claimant) be filed prior to the hearing
   
4. preparation of draft orders in advance for perusal by the court, after service of the same on the parties. The court may during the case management conference hear submissions relating to:
   
5. the details of the claim and sums sought by way of damages, so that the other party can understand the case it has to meet
   
6. amendment that may be required to the Particulars of Claim or the Defence in the litigation
   
7. the classes of documents that ought to be made the subject of disclosure
   
8. the expert evidence that may be required, and how and when that evidence should be obtained and disclosed, including questions to be put to experts
   
9. the factual evidence to be disclosed
   
10. the arrangements that should be made about the giving of further information or clarification;
    
11. whether a trial for liability on the claim and any counterclaims should be heard separately or together with an assessment of quantum of liability
    
12. whether the trial should be spilt, and how this might be arranged in terms of the issues to be heard
    
13. the need for a further case management conference and/or a pre-trial review
    
14. either fix a date for the hearing or a trial window, which will in all likelihood be as soon as practicable. Also dates for filing pre-trial checklists may also be set
    
15. Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.
    

Sanctions

The court maintains broad powers to sanction failure to comply with directions. A failure to comply with deadlines for filing disclosure lists, expert or lay evidence or any other direction often results in the court issuing an ‘unless order’. Such orders require a party to take stated steps in the proceedings by a specified time. In the event that the relevant litigant fails to comply with the unless order, some consequence will follow, as such adverse costs orders, striking out of a statement of case, summary judgment or some other named sanction, if the party is in default of the order.

 

Usage: The claimant's failure to comply with the directions case management conference led to an order being made by the court that the claim be be struck out unless the claimant complied with the directions within 21 days

[42man]

Just adding these for help - http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html

[letitbeme]

Hi there, Have read the thread but the isue of Statute Barred is not to clear.

 

Hello sequenci,

 

And thanks for clarifying that point for me – I am going to use your comment from post 4 (outlined below) as part of my defence in reference to the claimant’s response paragraph 9

Page 2 Reply to Defence

http://i292.photobucket.com/albums/mm30/corcoj/linkdef2.jpg

 

 

 

This is a draft of my response to the claimant’s response (paragraph 9)

 

In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the (cause of action) default notice issue date ( ) and the date on which the claimant issued proceedings ( ), the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct and Nov 2000, and thus the limitation period had expired six years later in Oct and Nov 2006. Accordingly the proceedings issued in Mar 2007 had been commenced four months too late

 

 

As a matter of public policy Statute Barred provides certain limitations of time within which claims must be brought. Where the action is commenced in relation to a breach of a credit card agreement, the limitation period will be six years and will start from the date that the plaintiff acquired knowledge of the relevant breech of the credit card agreement.

 

What do you think sequenci , is this a firm nail in the coffin

 

Regards LIBM

[letitbeme]

OK, this may get a bit confusing so I will outline my current predicament.

 

The following is my argument in support of my request for the case to be struck out on the grounds that the debt is STATUTE BARRED as outlined.

 

LIMITATION ACT 1980

 

 

Actions founded on simple contract

 

5 Time limit for actions founded on simple contract

 

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

I quote from the claiments letter dated 4th June 2008 “In so far as your claim that the account is statute barred we refute the allegation. The cause of action arose on 20.08.01 when the account went into default and we issued our proceedings on 19.03.07 which is within the 6 year time limit as set out in the Limitation Act 1981”.

 

In there explanation as to the starting point for cause of action, I note that there starting point for the time frame of the Limitations Act is the issue of the Default Notice by MBNA on the 20th August 2001. (Allegedly! as there is no documentary proof that such a Default Notice was ever served). May I draw the courts attention to the following Case Law 1 and Case Law 2: -

 

Case Law 1

 

 

ICLR: King's/Queen's Bench Division/1891/Volume 2/REEVES v. BUTCHER. - [1891] 2 Q.B. 509

 

The following is a quote from page 1.

 

[COURT OF APPEAL]

REEVES v. BUTCHER.

1891 July 10.

 

LINDLEY, FRY and LOPES, L.JJ.

 

Limitations, Statute of (21 Jac. 1, c. 16, s. 3) - Cause of Action.

 

The plaintiff lent money to the defendant under a written agreement, which recited an agreement for a loan for five years, "subject to the power to call in the same at an earlier period in the events hereinafter mentioned." The defendant agreed to pay interest quarterly, and the plaintiff agreed not to call in the money for five years if the defendant should regularly pay the interest. And it was provided that if the defendant should make default in payment of any quarterly payment of interest for twenty-one days the plaintiff might call in the principal. No interest was ever paid. The plaintiff commenced his action to recover the principal and interest within six years from the end of the term of five years: -

 

Held (affirming the decision of Day and Lawrance, JJ.), that the statute of Limitations was a good defense, for that the time began to run from the earliest time at which the plaintiff could have brought her action - i.e., twenty-one days after the first installment of interest be came due.

 

Case Law 2

 

 

All England Law Reports/1992/Volume 2 /Swansea City Council v Glass. - [1992] 2 All ER 680

[1992] 2 All ER 680

 

The following is a quote from page 1.

 

Swansea City Council v Glass.

 

COURT OF APPEAL, CIVIL DIVISION

PURCHAS, RALPH GIBSON AND TAYLOR LJJ

20 NOVEMBER, 11 DECEMBER 1991

 

Limitation of action - Accrual of cause of action - Action to recover sums recoverable by virtue of statute - Recovery of expenses incurred by local authority in carrying out works under housing legislation - Council carrying out repairs to house in defendant's control - Council seeking recovery of expenses incurred by it in carrying out repairs – Summons for recovery of expenses issued more than six years after completion of works but less than six years from service of demand for payment - Whether cause of action accruing when works completed or when demand for payment served on defendant - Whether action time-barred - Housing Act 1957, s 10(3) - Limitation Act 1980, s 9.

 

The respondent failed to comply with two notices served on him under the Housing Act 1957 by the appellant council requiring him to carry out repairs to a house in his control and the council carried out the necessary works itself. The repairs required by the first notice were completed on 7 September 1983 and those required by the second notice in March or April 1984. On 31 May 1984 and 25 April 1985 the council served on the respondent written demands for the expenses incurred pursuant to s 10(3)a of the 1957 Act. The respondent failed to pay and on 30 May 1990, which was more than six years after completion of the works but less than six years from the service of the demands, the council issued a summons seeking payment of both amounts. On the trial of a preliminary issue as to when the council's cause of action accrued the judge held that the council's cause of action accrued when the work required by the notices had been completed and that accordingly the action was statute-barred by virtue of s 9b of the Limitation Act 1980. The council appealed, contending that the cause of action to recover the expenses incurred by it accrued when the demands for payment were served or when they became operative. a Section 10, so far as material, is set out at p 682 c, post b Section 9, so far as material, is set out at p 682 d, post

 

Held - The council's cause of action to recover the expenses incurred by it accrued when the works were completed and not when the demands for payment were served since on the true construction of s 10 of the 1957 Act the requirement to serve a demand was a procedural condition precedent to the bringing of proceedings and was not an inherent element in the cause of the action. It followed that the council's cause of action arose in September 1983 and March or April 1984 and was statute-barred when the summons seeking payment was issued. The appeal would therefore be dismissed.

 

I have underlined the relevant points in Case1 and Case 2 and draw your attention to them.

 

As you can see, there are legal arguments in support of my defence of Statute Barred and the causes of action as lade down by Case 1 and Case 2. I have for your benefit included a copy of the both cases attached to this letter.

 

May I also point out that a Default Notice is a procedural bar and has nothing to do with limitation periods ” A cause of action can still accrue, i.e. time start to run, even though a claimant is prevented from suing by a statutory procedural bar which precludes the issue of proceedings “

 

“If the claimant issues a default notice 3 or 6 months after the breach of contract, then that is there prerogative. It will not deter from the fact that the earliest time that they could issue legal proceedings would be the date of the breach of contract (missed payment + 14 days for a Default Notice if issued after 2006 or 7 days if issued before.”

 

The following paragraph is a quote taken from my Holding Defence. “In relation to the claimants defence paragraph 9 as to whether the limitation period had expired in relation to the cause of action default notice issue date 20th August 2001 and the date on which the claimant issued proceedings 19th March 2007, the courts attention is drawn to the following point – the cause of action occurred when the credit agreements terms and conditions where breeched by the non payment on the account which occurred in Oct 2000, and thus the limitation period had expired six years later in Oct 2006. Accordingly the proceedings issued in Mar 2007 had been commenced 5 months outside of the limitation period ”.

 

The following case Law are all relevant in supporting the cause of action rueling in the above mentioned (REEVES v. BUTCHER.) case Law and will be used in support of my defense: -

 

Coburn V Colledge [1897] 1 QB 702

Swansea City Council V Glass [1992] 2 All ER 680, CA

Royal Borough of Kensington and Chelsea V Khan [2002] EWCA Civ 279

 

Let me also quote para 35 from the Royal Borough of Kensington and Chelsea V Khan .

 

Lindley L.J. put the matter powerfully thus at page 9: “Who ever heard, with reference to any Statute of Limitations, that a creditor could enlarge the time for suing indefinitely by omitting to do that which it is his duty by statute or common law to do? It appears to me that we ought not to adopt a construction of the statute that leads to such a result, unless we are driven to it.”

 

Well that’s my first line of defence.

 

The following is an outline of what has transpired form day one (Receiving a CCJ)

 

On or around the 12th Oct 2000 I applied for and received an MBNA credit card intending to do a balance transfer and take advantage of the lower interest rate.

 

At the time (12th Oct 2000) I had a friend living at my address up until April 2001.

 

At the end of Oct 2000 my mother was taken into hospital for a quadruple hart bypass operation, unfortunately she developed complications and was in and out of hospital over the next six months and this took up most of my time and thoughts. I forgot about doing the balance transfare to the MBNA credit card and to this day I have never used it (MBNA credit card). I also have never received any statements for this card.

 

This all changed on the 18th of July 2007 when I received a County Court Judgment in Default issued by LINK FINANCIAL LTD. This came as a shock as I have never used this card and was totally mystified. I telephoned the court and asked how this could have happened and was informed that the defence part of the court action had been returned by Royal Mail as not deliverable due to the property being boarded up. The court official then instructed me on how to have the CCJ Set Aside.

 

On the 24th July 2007 I sent a letter to LINK FINANCIAL LTD. Requesting a copy of my credit agreement and a full breakdown of the account. On the 2nd Aug 2007 I received a reply to my letter telling me that they had requested the relevant information from MBNA and that they would forward it as soon as they received it.

 

On the 14th August 2007 I sent a letter to (MBNA) requesting a copy of my credit agreement and a full breakdown of the account. On the 7th Sep 2007 I received a reply to my letter stating “ please find enclosed copy of CCA and Terms and Conditions. We are unable to supply a copy statement as your account was sold to LINK FINANCIAL LTD on the 19th May 2004”. ( The agreement they have provided, the box on the right hand side of page 2, clearly the terms are not legible so it is arguably non compliant)

 

Throughout the months of OCT, NOV, DEC, 2007 written correspondence continued between my self and LINK FINANCIAL LTD requesting that they supply me with the following documents,

 

Default Notice – I have never been sent one. (Link state that MBNA issued it on 20th Aug 2001)

 

Letter of Assignment – I have never been sent one.

Account Statements for the account – I have never received any statements for this account in its entirety.

 

On the 28th of Feb 2008 I telephoned MBNA and spoke to a Customer Care Assistant in regards to account No xxxxxxxxxxx., I asked him why I had not received a copy of the statements that I had requested for this account (requested on the 14th August 2007). I was told that the account history was no longer available due to it being routinely removed. I then asked why I have never received statements for this account prior to 14th August 2007 and was informed that all statements where sent to (an address that has nothing to do with me). I informed the Customer Care Assistant that I have never lived at that address and have never requested that they should be sent there, his response was that I should contact the credit card theft department and that I should also contact the police.

 

On the 3rd March 2008 I requested a copy of my credit file from Checkmyfile.com and found that my address (xxxxxxxxxxx.) was linked to the address that MBNA had been sending the account statements to, Listed as living at this address was a MRxxxxxxxxx, this person is known to me and has stayed at my house on a number of occasions. There where two mail-order accounts in my name listed at xxxxxxxxxxxxxxxxx .

 

On the 4th March 2008 I went to Crosby Police Station and reported the theft of my credit card and that my identity and personal information had been used to open two mail-order accounts without my consent. I have made a full report to the police and was issued a Crime Reference No.xxxxxxxxx.

 

On the 9th March 2008 I telephoned MBNA credit card theft department and informed them of the situation and gave them The Crime Reference No.xxxxxxxx. I was informed that they would investigate and get back to me.

 

On the 2nd April 2008 I went to xxxxxxxx County Court and had the County Court Judgment set aside. The Judge ordered that my defence and statement of truth be submitted to the Court and the Creditor on or before the 30th April 2008.

 

 

On the 8th April 2008 I sent a SUBJECT ACCES REQUEST letter to LINK FINANCIAL LTD. I received a letter from LINK FINANCIAL LTD on the 14th April 2008. In the letter they state “ The information you require is held by MBNA and confirm that we have sent a request to there offices for the information that you have requested. We can confirm that we have provided you with a copy of the application form for the account. The copy statements for the account are not available after 6 years from the date of default.” (Please not that I first requested account statements on 24th July 2007 – well within the 6 years from the date of default.)

 

There are other issues that I need to address.

 

I have never received a Default Notice from MBNA, and a mere suggestion that MBNA sent a notice does not prove that the default notice was sent nor do they show that such notice was in the prescribed format, and it appears that MBNA are unable to provide any substantive proof that such a document was sent in the required form and giving the prescribed timescale to remedy any default or that the notice was compliant with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations in the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

I have never received a Notice of Assignment from MBNA and despite Links reply to my original Holding defence 20th April 2008, they have still failed to provide any proof of service of the Notice of Assignment from MBNA as required by section 196 Law of Property Act 1925. It is a procedural requirement of the Law of Property Act 1925 to serve a Notice of Assignment via registered post and until such time that good service is effected the assignment is not valid. Furthermore because the assignment is invalid Link Financial Ltd do not have the legal right to instigate legal proceedings through the courts.

 

 

The case was stayed on the 21st Aug 2008 for one year to allow FOS and Police to fully investigate.

 

The Financial Ombudsman Service has instructed MBNA to fully investigate the theft of my Credit Card.

 

MBNA has informed me that they are unable to investigating as there are no case notes or account history for them to fully investigate.

 

On the 15th June 2008 I spoke to the Police officer investigating the theft of the Credit Card and the fraudulent use of my identity. He has informed me that he requested the account history from MBNA and there is nothing further that he can do until he receives the documents.

 

Currently case stayed awaiting the outcome of Manchester Clarification cases on the 8th Oct and then my case be re listed for a case management telephone conference.

 

Any comments or advice welcome

 

I apologise for spelling and grammar mistakes

[citizenB]

Observations.

 

You are able to prove that you have made a complaint to the police in respect of identity fraud

 

MBNA have to prove that you have made use of the card.

 

To date, they havent provided statements, a default notice, assignment notice or an agreement with your signature.

 

I am surprised that they destroyed evidence in the form of statements if they were aware there was a problem.

 

 

y, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007 and The Civil Evidence Act 1995.

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

I would suggest that where a loan has been taken out to repay an earlier agreement, at the very least, a copy of the original agreement should be kept - although this is something that a court may need to rule on.

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

[citizenB]

When are you due in court ?

[letitbeme]

Hi there CB,

Thanks for the input. Yes I have a crime ref No. re the credit card theft.

MBNA are not interested in resolving my problem.

There are other glaring issues with this case that I haven’t referenced on this forum for obvious reasons (DCA’s prying eyes), but once the case is settled I will outline in detail, it has been a frustrating couple of years, but I can now see light at the end of the tunnel.

 

Matter be re-listed for a Case Management Conference on 19 November 2009 at 2.30pm

[citizenB]

Aha, thanks. Look forward to reading all about it:)

[Kwatz]

Hello,

 

I'm quite new to these forums but I have been so far extremely impressed with what I have seen so far and the work you chaps have been doing.

 

Now, I am in a situation where I had a bunch of debts, including student loans, which since I went down under for a year (seven years ago) I have not acknowledged in any way and all correspondence has been returned 'NOT KNOWN AT THIS ADDRESS'. I have also been using a spare bank account of my sister's which she was kind enough to give me on my return from Australia.

 

It has been 7 years since I stopped any kind of contact with any of my loans or banks and I have recently just tried to open an online bank account, which is pending countersigned documents.

 

Today I recieved in the post a letter demanding 600ish pounds from my old Lloyds loan. I have only just moved into this address so can only assume that my address has been grabbed when the online bank did a credit check.

 

So, would I be wise to continue down the road of ignore and carry on with my sister's account, which my new employer isnt keen on, or should I send the 'statue barred, 6years, now please leave me alone' letter? I'm very apprehensive about getting in contact with these people, my girlfriend is pregnant and we do not want idiots banging on the door etcetc.

 

Also is my student loan subject to the statue barred law? I have heard somewhere that it is not and I would be liable to direct deductions from my paycheck?

 

Another question, would getting all my old debts statue barred clear my credit record in any way or would I still be a nono for mortgages etc?

Edited November 21, 2009 by Kwatz

[ODC]

Send off the Statute barred letter to them. They will not like it and may invent imaginary attempted payments to try to CON you into thinking its not Stat Barred. The onus of proof is on them NOT you.

 

As regards the Student Loan it depends on when you took it out.

[Kwatz]

Thank you for the reply.

 

I will be sending the statue barred letter to them by registered mail on Monday.

 

The student loans were taken out pre-1994 so they are the 'old-style' one which I believe, from doing some searches on these forums, are subject to the statue barring. But im a little unsure on that score.

[ODC]

As far as I know the new rules came in for Student Loans after 1998

[Josie8]

Can't your sister add you as a joint account holder - should be a simpler process.

[Kwatz]

She could, but i have full access as it stands and I carry a letter of consent to use in case of any officiousness at the till so there is no real problem using the account.

 

Its more a case of wanting to clear this up and go back on the record as it were.

[Josie8]

She could, but i have full access as it stands and I carry a letter of consent to use in case of any officiousness at the till so there is no real problem using the account.

 

Its more a case of wanting to clear this up and go back on the record as it were.

 

I was referring to the problem you have with the employer

[Josie8]

The problem with Limitation is that if the creditor can show the court that you deliberately disappeared from view then they may get the court to agree it is not statute barred.

 

Student loans from whenever are not provable in bankruptcy so doubt limitation will run either (just like taxes aren't statute barred)

[Kwatz]

Ah so perhaps remaining invisible may be a better plan after all.

 

Would the student loans be able to track me through the same process and if so would they be able to deduct direct from my paycheck?

 

Would they bother going to court to try to prove that I was avoiding them? And if so how would I be able to prove otherwise?

 

The thing with my employer is not really a big deal , he would prefer if I had my own account but will continue as is.

[rincewindrunnin]

wouldnt student loans go through your national insurance number and deduct at source from your pay (a la PAYE tax) ? Thats how they do it on post 1998 loans.

 

I don't know how pre 98 student loans work though, so not much help really.

[letitbeme]

Update

Edited January 5, 2010 by letitbeme

[avatari]

libm, just got all the way to the end of this thread to read the last post (it's been a pageturner;)) - to find...."update"....

 

what happened???? pllllllllllease!!

[letitbeme]

Sorry for not updating this post sooner, but was advised not to update till I had the courts final ruling.

 

Well I now have in my position a court order that states:

 

Case struck out and costs awarded to the defendant.

(Will be contributing to cag as soon as the cheque hit’s the mat)

 

I will be putting a full outline of what has transpired at a later date. I will just say this “the devil is in the detail” scrutinise and study and you will succeed.

[sequenci]

Superb news! Congrats

[SStevens]

[The great thing about the Limitation Act is that the burden of proof firmly lies with the creditor, if they cannot prove that a payment/acknowledgement has been made within the last six years they would be scuppered!

 

 

Sorry to jump in here - I'm new and wonder if someone can help re statute barred?

 

I'm coming up to the 6 year non-payment (non deferment of student loans - I forgot to defer initially due to seriously bad times I was going through - debt was at the bottom of a very dark pile of worries and depression - and things snowballed out of control from this point - if I had have applied to defer I would have been elgible). The student loans were Pre 98, old mortgage style so can be statute barred.

 

However, about 2/3 years ago they managed to track me down at work and telephoned my office. I was obviously caught off-guard and told them never to ring me at my place of work again (is this legal for them to do so?) I also panicked and fudged a diversion argument (mainly as I was so embarrassed as co-wrkers were earwigging in to conversation) by asking whether they had received my deferment to cover that year, she would not answer me (we both know she didn't) so I told her I am not answering anything until she tells me if they have received my deferment. As she was unwilling to be honest with me as she was trying to trap me, this concluded with her threatened me by saying "we'll catch you eventually" and slammed the phone down.

 

Just wanted to know if this will start the clock again or do they need acknowledgment of the debt in writing?

 

Thanks in advance

 

S

[Petejc21]

Good stuff!