Lloyds v Me

[iOiO]

One hell of a lunch, indeed - wouldn't like to foot the bill for that one. Hope he leaves the waiting staff a suitable tip;)

 

Yeah, probably the old "dont eat yellow snow" one!

[Viano]

Hi team,

 

Can anyone point me towards an example of a (defence) witness statement please.

 

Thanks

 

V

[citizenB]

Viano, here is pt2537's guide to Witness statements. I will have a look for some completed WS for you.

 

 

 

Guidance Notes on Witness Statements

http://www.consumeractiongroup.co.uk/forum/show-post/post-2167282.html

 

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public and, at any other hearing, by their evidence in writing.

CPR r.32 and CPR PD 32 set out the formal requirements for written evidence, including witness statements. These are summarised below.

Format of the witness statement

The top right hand corner of the first page should contain:

The party on whose behalf the statement is made;

The initials and surname of the witness;

The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

The date the statement was made.

The witness statement should be headed with the title of the proceedings.

The witness statement should:

Be produced on good quality A4 paper with a 3.5cm margin;

Be fully legible and should normally be typed on one side of the paper only;

Be bound securely in a manner which would not hamper filing;

Have consecutively numbered pages;

Be divided into numbered paragraphs;

Have all numbers, including dates, expressed in figures; and

Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement, for example [at page14 “ABC1”]

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Content of the witness statement

The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;

The first paragraph generally sets out the “who, what and why” of the statement maker:

oWho the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)

oWhat the witness’s connection with the proceedings is

oWhy the witness is making the statement;

Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”.It is important to state the source of any matters or information or belief;

Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;

Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;

Witness statements must contain a statement that the witness believes the facts in it are true;

Witness statements should be signed and dated.

Please see outline precedent witness statement below.

Exhibits

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.

Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited.

The top right hand corner of the exhibit sheet should contain:

The party on whose behalf the statement is made;

The initials and surname of the witness;

The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

The date the statement was made.

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.

Edited August 25, 2009 by citizenB
reformatted

[citizenB]

You might want to have a read of the following post.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

BRB

[citizenB]

Here you go, this one drafted by pt for pompeyfaith.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1891351.html

 

 

 

 

On behalf of: Defendant

Witness: [initials and surname]

Number: [1st]

Exhibits: PF1, PF2,PF3

Date:

 

IN THE XXXXXXXXXXXXXXX COUNTY COURT Claim No:

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

 

 

WITNESS STATEMENT OF POMPEYFAITH

 

I, [NAME] of XXXXXXXXXXXXXXXXXX will state as follows:

 

1. I am a [state occupation or, if none, description, e.g. housewife, retired ...] defendant in these proceedings .I make this witness statement in opposition to the claimant's application for summary judgment.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked "PF1". The exhibit PF1 contains copies of the credit agreement and Default notice served by the claimant

 

4. There is now produced and shown to me a bundle of documents marked "PF2". The exhibit PF2 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

5. There is now produced and shown to me a bundle of documents marked "PF3". The exhibit PF3 contains copies of the section 87 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

6. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters

 

7. The applicant / claimant failed to supply the respondent/ defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicants case. The respondent asked for the documents, which were pleaded in the claim on XXXXX, but the applicant failed until XXX to supply these documents. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence

 

8. The applicant has now disclosed a copy of the agreement and the default notice (exhibit PF1), which its claim is based upon, from the brief time that I have had to digest this information I wish to raise an issue, which I would expect to expand upon at trial. The default notice is materially defective, the notice states that I have breached clause 8 of my agreement, however if we look at the agreement there is no clause 8.

 

9. The consumer credit act 1974 s87 & 88 (Exhibits PF3) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

10. At schedule 2 Para 3 of the regulations it states the following

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3 a specification of: --

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

11. Clearly the fact that the default notice does not comply with the requirements as underlined in Para 8 above. The provision of the agreement alleged to have been breached is clause 8 relating to repayments and clearly the agreement produced does not have a clause 8 therefore there is no way clause 8 could have been breached

 

12. This is not a de minimus issue and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit PF2) in the Court of Appeal, in this judgment Kennedy LJ states inter alia

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

13. Therefore, it would be the respondents position that the applicant / claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective

 

14. In addition, the document, which has been supplied, fails in its entirety to comply with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) (Exhibit PF3). Regulation 2 of these regulations states that

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

.

15. I would point out that the Claimant is seeking an order to enforce the agreement therefore the claimant is required to abide by these requirements and produce a copy of the agreement which is in an easily legible form as required by regulation 2 as set out above

 

16. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession any of the documents which the claimant has now disclosed, despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now

come to light in view of the claimants disclosure and therefore respectfully request that i be given the opportunity to defend this action.I make this request with the overriding objective in mind as set out with CPR 1

 

17. I therefore request that the court do dismiss the applicant's application for summary judgment.

 

 

I believe that the facts stated in this witness statement are true.

Signed ________________________

Dated ________________________

 

[Viano]

Thanks cB

 

V

[Viano]

Hi again team,

 

As ever I am getting short of time, but I have to file my Pre-Trial checklist by the 17/9/09. Now in the main it is self explanatory but Q 2 asks 'I believe that additional directions are necessary before the trail takes place' 'If yes, you should attach an application and a draft order'

 

I believe that the opposition have not compiled with either CPR pt 18 or CPR 31.14 Should I include these as 'any orders needed in in respect of directions still requiring action'

 

By the way I understand that their request for an extension -see above-was not received by the due date, and the first the court knew about it was when I wrote (including a copy of their letter) to the Court agreeing to the the extension!

 

V

[citizenB]

Hi again team,

 

As ever I am getting short of time, but I have to file my Pre-Trial checklist by the 17/9/09. Now in the main it is self explanatory but Q 2 asks 'I believe that additional directions are necessary before the trail takes place' 'If yes, you should attach an application and a draft order'

 

I believe that the opposition have not compiled with either CPR pt 18 or CPR 31.14 Should I include these as 'any orders needed in in respect of directions still requiring action'

 

By the way I understand that their request for an extension -see above-was not received by the due date, and the first the court knew about it was when I wrote (including a copy of their letter) to the Court agreeing to the the extension!

 

V

 

 

I would say, yes.. you do need to mention/ask for any items that you still need.. are you ok with the "Draft Order"? If not, just yell and I will see if someone can help with that.

 

Hmm, I wonder if the court hadnt received your letter agreeing to an extension whether they would have allowed it. I guess Lloyds would only have said it was due to the post strike.. although I think they fax most of their stuff dont they ?

[car2403]

What were the directions given by the Court?

[Viano]

Hi Car,

 

Sorry for the delay.

 

When you say directions? The Order states Pre-trial Checklist/Listings Questionnaire shall be sent by the parties.... completed and returned by xx Sept 09.

 

What I am referring to is Q2 in form N170 Listing Questionnaire.

 

V

[car2403]

Yes, what does the rest of the Order say?

 

What I'm thinking is that Disclosure has been ordered already, in which case they should have sent you a list of documents that you can ask for inspection on?

[Viano]

It is ordered that

 

1. The Claim is allocated to the Fast Track.

 

2. Both parties shall give standard disclosure to the other by way of list supported by disclosure statement by xx xxx xxxx.

 

3. The parties shall exchange witness statements of witness of fact exhibiting any other documents which are relied upon by xx xxx xxxx.

 

4. The Defendant shall serve on the solicitors for the Claimant a skeleton argument identifying the legal points and / on which he relies, including a copy of any authorities or provisions relied upon no later than 4 weeks before the trial date.

 

5. The claimants shall serve any skeleton argument in reply, including a copy of any authorities or provisions by not later than 2 weeks before the trial date.

 

6. Pre-trial Checlists/Listings Questionnaires shall be sent to parties by the Court by xx xxx xxxx and shall be returned completed to the Court by xx xxx xxxx.

 

7. 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 Skeleton arguments and authorities supplied pursuant to this order, and the solicitors for the Claimant's shall produce such a paginated bundle and serve it on the Defendant by 4pm not later than 3 and not earlier than 7 days before the xx xxx xxxx at 10 am. The Trial Bundle shall be filed with the Court with sufficient copies for the Judge and any witness by 4pm on not latter tha 3 and not earlier than 7 days before the trial.

 

8. The Claim shall be listed for the Final Hearing with a time estimate of xx days on the xx xxx xxxx.

 

9. Costs in the case.

 

Dated xx xxx xxxx.

 

Car, that is it in full.

 

As noted earlier I have requested information under both CPR Part 18 and CPR 31.14, neither which I believe have been answered fully.

 

V

[car2403]

Ok, so they usually include allowing pre-trial disclosure of documents by inspection.

 

As it doesn't and you've made requests and had no reply, you can apply to the Court to order their disclosure of the documents you require inspection of before the trial.

 

You'd do that on a Application Notice N244, asking the Court to order their compliance witth your Part 18 and Part 31.14 requests.

[Viano]

Tanks for that Car.

 

I'll get that sorted and sent.

 

V

[Viano]

Hi Car, cB and others,

 

Before I apply for a Court Order I re-read their List of documents standard disclosure and apart from what I assume, are standard objections 'The Claimant objects to you inspecting these documents because they are by their nature privileged from production' bit they say:

 

I have had the documents numbered and listed below, but they are no longer in my control

1. Documents formerly in the possession, custody or power of the Claimant.

2. Original of Application form/Agreement which has been copied onto microfiche and subsequently destroyed.

3. Originals of all letters from the Claimant or its agents to Defendant and any third parties and any other documents which by reason of effluxion of time have been lost or destroyed, misplaced or cannot now be traced and/or re-produced.

 

The question: Should I continue and apply for the order?

 

And

 

When should I ask for strict proof of posting the DN (s)

 

V

Edited September 15, 2009 by Viano
Added sentance

[car2403]

I think you're wasting your time and money applying for disclosure of documents they've already said that don't have.

 

The fact they don't have them leads to you having a complete defence to their claim.

 

A more appropriate response would be to apply for summary judgment against them, as they have no realistic prospect of succeeding with their claim because of the missing documentation.

[Viano]

So, I file my Pre-trial checklist.

 

When should I apply for a Summary Judgment, and would that be on an N244.

 

Sorry to be vague, but this is new territory for me.

 

V

[car2403]

Yes, file it, but you should really go for SJ ASAP if that's what you want to do

[Viano]

I have to have the checklist in by Thursday, so to keep on the right side of the Court that shall be done.

 

Should I, do you think, go for a SJ or go to the wire?

 

V

Edited September 15, 2009 by Viano
Addition

[Viano]

OK, so now they are taking the pee!!!

 

From their Listing Questionnaire:

 

' Upon return to work I understand that the Claimant's Witness would be on annual leave until the 21st September 2009 which does not leave sufficient time in which to serve the Witness Statement by xx xxx xxxx. I respectfully request a further extension for exchange of evidence to 4pm on xx xxx xxxx'

 

Comments and advice please.

 

V

[citizenB]

What ??? havent they already requested an extension on this ?

 

I have alerted the site team for you. sheesh..............

[Viano]

Tahnks cB.

 

Yes this is the second time!

 

V

[car2403]

Shocking! They must have known about this leave when the directions were issued?

 

Unfortunately, if the Court gives them this time, there's not much you can do about it.

[Viano]

Should I continue with mine and file on the current due date?

 

V

[car2403]

Yes, because the request for extension hasn't been granted