Court claim from Lloyds TSB - Advice needed please.

[joan_of_arc]

Hi. Back again.

 

Sechiari Clark & Mitchell want all my documents to put into the trial bundle. They say I have until Friday to send them copies and they will index or number it all. Doesn't seem right really, sending my stuff to THEM. They're the baddies!

 

Can someone tell me if I need to do anything else in terms of sending anything to the court? I don't think I do.

 

Also, I'm trying to write a skeleton argument. Should that go in with the stuff I send to SC&M? It wasn't on my disclosure list so is it something I can just keep to myself? I'm aware that skeleton arguments are to clarify the case for the judge but I'm not sure if I send it to the court or just pass it to the judge on the day.

 

I'm spending the rest of the day working on this.

[joan_of_arc]

Looking back at the early correspondence, I noticed that they quoted solicitors fees and court costs I'll be liable for once proceeding have been issued (see letter below). Their actual clain for costs is a heck of a lot more than those figures!

 

 

 

 

 

 

 

 

[pt2537]

Looking back at the early correspondence, I noticed that they quoted solicitors fees and court costs I'll be liable for once proceeding have been issued (see letter below). Their actual clain for costs is a heck of a lot more than those figures!

 

 

 

 

 

 

 

 

their costs of issuing the claim will be sooooo much lower than the costs incurred in the actual case

 

the costs they have quoted are just for the filing the claim at the court.

 

i would expect trial costs to be somewhere around 8-15K easily

[atwozee]

And you are limited to just under £10 an hour – although you could be cheeky and ask for costs of roughly one third of theirs – just to save you working things out.

I can’t remember the details of this thread but isn’t the alleged agreement illegible?

[joan_of_arc]

Hi Atwozee!

 

Yes this is it, the paper copy is just as muddy as this scan looks.

 

[atwozee]

Yep – just re read your thread – pants application – how can you check the prescribed terms are correct if you can’t read them?

[joan_of_arc]

their costs of issuing the claim will be sooooo much lower than the costs incurred in the actual case

OK I understand.

 

the costs they have quoted are just for the filing the claim at the court.

 

i would expect trial costs to be somewhere around 8-15K easily

Gulp! Could I end up being liable for payment of that?

[joan_of_arc]

Yep – just re read your thread – pants application – how can you check the prescribed terms are correct if you can’t read them?

Well, in their witness statement they included a set of readable T&C which they claim are identical to those which applied to my agreement. It's hearsay though as they destroyed the original. That means that they can't meet the requirement of CPR PD16 part 7.3, which says thay should produce the original in court.

[pt2537]

Gulp! Could I end up being liable for payment of that?

possibly yes

 

it depends on the outcome of the case as to what liability for costs you get, if any, the judge will deal with costs

 

 

we have just secured costs assessed at £18k for a CCA Case so its possible

 

I would say that you should check with your home insurance providers to see if they cover you for this kind of litigation. we use after the event legal expense insurance to cover our clients from costs, but we dont often lose to be truthful

[atwozee]

Well, in their witness statement they included a set of readable T&C which they claim are identical to those which applied to my agreement. It's hearsay though as they destroyed the original. That means that they can't meet the requirement of CPR PD16 part 7.3, which says thay should produce the original in court.

 

Yes – well I think the days of taking bankers at their word are well and truly over.

Have they provided copies of all statements showing how the alleged debt has been validated – you would certainly need to check the interest rate against the actual interest applied to any transactions on the account – you should certainly be putting this in your skeleton argument.

[joan_of_arc]

pt2537: I better not lose then! That's very scary. I will check our insurance but I know without looking it doesn't cover stuff like this.

 

atwozee, yes they provided copies of all my statements, or those they had on file anyway.

When you say validated, do you mean how they arrived at the sum I allegedly owe?

 

The interest rates on the statements are there, ie what was applied. What should I be comparing this to though? Their declared interest at the time?

 

Sorry for the questions but this particular issue is a new avenue for me. Lol! Just as I thought I had my head round it all.

 

And my skeleton argument; should that go in the trial bundle? Still need to know that.

[atwozee]

Regarding the interest rate – if you signed an alleged agreement that states interest rate is 1.254% (for example) and the actual rate they applied to your transaction was different (1.26% for example) then that would mean the prescribed term is misstated – I’m not saying it will be but it’s a basic detail that must be checked – you must now cross check the rate of interest they are trying to use with the rate on your statement – if it’s out then they have a big problem so well worth taking the time to check it.

[joan_of_arc]

OK with you now. I'll check that, if I can read the "agreement"!

[atwozee]

OK with you now. I'll check that, if I can read the "agreement"!

 

Cross check it with the other figures they gave you - that's probably more important as they are relying on these - well they are trying to!

[joan_of_arc]

OK. It gives 3 different rates depending what the card is used for.

 

This is on the "identical copy" of the alleged T&C which applied at the time, which their witness statement (a 1-page statement by a bank employee) has vouched for the authenticity of.

 

They do match what the T&C say, until the rates are dropped in 1999.

Edited February 15, 2009 by joan_of_arc

[joan_of_arc]

Can any of you suggest any guidance on skeleton arguments? I've had a go but it comes out looking like my witness statement.

 

Here is my skeleton argument so far btw. What do you think. My partner thinks it's a bit "tortuous":

 

 

In the xxxxxxxxxx County Court

Claim number: xxxxxxxx

Between: ` Lloyds TSB Bank PLC - Claimant

 

and

Joan of Arc - Defendant

 

Skeleton Argument

 

1. The Claimant (LTSB) alleges that The Defendant (JoA)held or holds a credit card account with them, commencing in or around March 1998, based on a written credit agreement which is/was regulated by the Consumer Credit Act 1974 (CCA 1974), and that JoA) defaulted by virtue of being in breach of that agreement, giving rise to this action.

 

2. LTSB served a Default Notice upon JoA on xx/xx/xx, in respect of the alleged breach of the agreement.

 

3. LTSB have admitted in writing that any original credit agreement has been destroyed. However, under CPR Practice Direction 16, paragraph 7.3, an original of the alleged agreement must be produced in court. There is no provision that an agreement containing the prescribed terms may have existed, or that the balance of probabilities are that such an agreement existed.

 

4. LTSB have produced a copy of a credit card application form, which is a poor copy and is largely illegible. This was accompanied by a copy of TSB Credit Card Conditions of Use, also a poor copy and almost completely illegible. LTSB allege that these represent a true copy of the executed credit agreement.

 

4.1 s2(1) of the Civil Evidence Act 1995 requires that, where copies of documents are to be relied upon in Court, LTSB must give formal notice of their intention to adduce hearsay evidence (ie. copies of documents). They have not done so and are thus in Breach of the Act. It is submitted in respect of this that the documents are disallowed as evidence.

 

4.2 s8(1)b of the Civil Evidence Act 1995 further requires that LTSB must produce proof of the authenticity of the copies, including but not limited to:-

 

a)a copy of the procedure(s) used for copying, storing and retrieving documents.

b)a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and the time and date of destruction of the original document(s).

c)copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

d)copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

LTSB have stated that no such proof exists and are, again, in Breach of the Act. The lack of proof casts into serious doubt the authenticity of the documentary evidence upon which LTSB base their claim.

 

5. It is well established that an alleged consumer credit agreement is only enforceable by court order in those cases where the creditor has complied with the strict requirements of the Consumer Credit Act 1974 (CCA 1974) and associated Regulations.

 

6. The aforementioned Default Notice refers to those parts of the alleged credit agreement which were allegedly breached.

 

7. s.88(1) of CCA 1974 states:-

Contents and effect of default notice

(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.

 

8. Because the documents submitted by LTSB are illegible, it is not possible to identify on the alleged agreement that part which LTSB states that JoA is in breach of. It is not possible to identify beyond doubt whether the parts of the agreement referred to in the Default Notice do in fact exist, of if they ever did. Therefore, the Default Notice can not be said to comply with the requirements of s88(1) CCA 1974.

 

9. There are inflexible conditions which must be complied with before an alleged agreement may be enforced by the courts.

 

9.1 Firstly, the agreement must contain certain terms, prescribed in Regulations made by the Secretary of State under s60(1) CCA 1974. The Regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

9.2 The prescribed terms referred to are contained in Schedule 6, column 2 of the Regulations and are:-

·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

 

10. The Regulations state that the prescribed terms must be contained within the body of the agreement for it to be compliant with section 60(1) CCA 1974.

 

11. It is submitted that the alleged credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), insofar that the prescribed terms are not contained within the agreement, and that the court is therefore precluded from enforcing the agreement.

 

12. The judgement of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be contained within the body of the agreement and not in a separate document:-

 

"[11] Schedule 1 to the 1983 [Consumer Credit (Agreements)] Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules, the Judge said:

 

"33. In my judgement 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 s61 [CCA 1974] 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."

 

13. The consequences of failure to comply with s60 CCA 1974 are that the alleged agreement is improperly executed and only enforceable by court order, under s65(1) CCA 1974.

 

14. Notwithstanding point 20, the agreement must also be signed in the prescribed manner to comply with s61(1) CCA 1974. If the agreement is not signed by debtor and creditor it is also improperly executed and again only enforceable by court order, under s65(1) CCA 1974.

 

15. The alleged to credit agreement bears a barely legible signature which, it is submitted is wholly inadequate to identify the mark as originating from JoA. It is thus submitted that it is not compliant with s61of CCA 1974.

 

16. LTSB must provide a copy of an agreement compliant with the regulations as laid out in points 9 to 14 to have any right of enforcement by the court.

 

17. As previously stated (point 3), under CPR Practice Direction 16 paragraph 7.3, an original of the alleged agreement must be produced in court.

 

18. LTSB have themselves stated that any original documentation purporting to be the alleged credit agreement was destroyed and that the poor copy supplied is the "best copy available".

 

19. The Defendant submits that this document fails to meet the requirements of S60(1) CCA 1974 and schedules 1 and 6 of the Consumer Credit (Agreements) Regulations 1983 because:

·it does not contain the required prescribed terms “within the four corners of the agreement, and;

·there is nothing to demonstrate that the documents representing the two parts of the alleged agreement are or were in fact part of a single document, something which is absolutely required (see Wilson and another v Hurstanger Ltd [2007] in point 12).

·the documents supplied, and in particular the alleged terms of use, are largely or wholly illegible

 

20. Furthermore, attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that, where a document does not contain the required terms under CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) then the agreement cannot be enforced.

 

21. With regards to the Authority cited in point 26, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):-

 

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential

changes in the agreement or security.”

 

22. The court's powers under section 127(1) of CCA 1974 are subject to significant qualification in two types of cases:-

 

22.1 The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, containing all the prescribed terms, was signed by the debtor: section 127(3) CCA 1974. Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.

 

22.2. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order. [ref. Document BB.7 and BB.8 – copies of s.62 and s.63 CCA 1974]

 

23. These restrictions on enforcement of a regulated agreement cannot be sidestepped, and furthermore, from LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):-

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated Agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.”

 

24. This judgement of Lord Nicholls of Birkenhead clearly sets out and reinforces that without a properly executed credit agreement LTSB’s case cannot succeed.

 

32. LTSB must produce the original signed agreement before the court to show the true form and content of it, that those parts of it referred to in the Default Notice are in fact contained therein, and that it complies with the CCA 1974 and with the Regulations referred to in this defence.

 

33. Should LTSB be unable to produce the original agreement signed by both debtor and creditor and containing the correct prescribed terms, JoA requests that the court uses its powers under section 142 Consumer Credit Act 1974 and declares the agreement as unenforceable.

 

 

 

Edited February 15, 2009 by joan_of_arc
updated document

[joan_of_arc]

Phew! Think I'll have a rest for now. Glass of wine perhaps called for.

[citizenB]

Crikey Joan, that glass of wine is well deserved.

 

I dont see anyone has replied to the question of your sending the documents to **** for them to produce a trial bundle.

 

Are they suggesting that you send everything to them only. Or are they requesting stuff off your disclosure list only.

 

You are responsible for preparing 3 bundles. One for the court, one for yourself and one for ****.

 

I am not sure whether you ahve to provide them with a a copy of your skeleton argument.

[citizenB]

Hi. Back again.

 

Sechiari Clark & Mitchell want all my documents to put into the trial bundle. They say I have until Friday to send them copies and they will index or number it all. Doesn't seem right really, sending my stuff to THEM. They're the baddies!

 

Can someone tell me if I need to do anything else in terms of sending anything to the court? I don't think I do.

 

Also, I'm trying to write a skeleton argument. Should that go in with the stuff I send to SC&M? It wasn't on my disclosure list so is it something I can just keep to myself? I'm aware that skeleton arguments are to clarify the case for the judge but I'm not sure if I send it to the court or just pass it to the judge on the day.

 

I'm spending the rest of the day working on this.

 

Joan, I have brought this post forward because I really think you need it clarified by someone with legal knowledge.

 

My opinion is as stated in the previous post.

[joan_of_arc]

Hi CB! Thanks for replying.

 

I don't know, maybe they are trying to take advantage of my inexperience?

 

SC&M's letter says:-

 

"We now enclose a copy of the Draft Trial Bundle Index for your review. Should you wish to have any additional documentation added to the bundle please provide us with copies of those documents by 4pm on the 20th February [ie. over a month before the trial]. We will number the pages once all the documents have been agreed."

 

It gives me the impression that they are putting together and submitting the bundle, including my documents.

 

The last direction from the court however (Notice of Trial Date) said:-

 

"The claimant shall lodge at the court at least 7 days before the hearing an indexed bundle of documents contained in a ring binder and with each page clearly numbered"

 

The trial is at the end of March by the way. I assumed that was just their documents. However , it goes on:-

 

"A case summary (which should not exceed 250 words) outlining the matters still in issue, and referring where appropriate to the relevant documents shall be included in the bundle for the assistance of the judge in reading the papers before the trial.

 

The parties shall seek to agree the contents of the trial bundle and the case summary."

 

So the court directions seem to back them up, in that THEY put together the entire trial bundle and case summary.

 

Not sure where my skeleton argument fits in, nor whether I should be putting together a bundle, as well as the other side. Sigh...

 

Anyway, enough. Food is ready so I'll try and get back on here tomorrow.

Edited February 16, 2009 by joan_of_arc

[citizenB]

Hopefully someone will look in and be able to give you a definitive answer Joan. BTW, I have just seen on another thread that YES you do have to let them have sight of your skeleton argument.

[joan_of_arc]

Morning!

 

Carrying on from yesterday, can anyone advise me re. my questions above, about the skkeleton argument and the court bundle?

 

I need to know:

 

1. How does my skeleton argument look?

 

2. Does it need to go in the trial bundle?

 

3. Is it right that SC&M prepare the only trial bundle, to include their and my documents, or should I do one (bearing in mind the court directions posted 2 posts up)?

 

4. What should go in the trial bundle (skeleton argument? Case Law? Extracts from Acts and Regulations?)

 

 

Edit: Just to clarify, bearing in mind CitizenB's comments - SC&M have already had what they wanted off my disclosure list. That was weeks ago. This is for the trial bundle, which it seems they are putting together, including all of their and my documents. The court directions don't say anything about me putting one together.

 

I have until this Friday, according to SC&M, though the bundle only has to be lodged at court 1 week before trial, at the end of March.

Edited February 16, 2009 by joan_of_arc

[joan_of_arc]

Anyone? Need to bottom this if I'm to meet the deadline SC&M have set (Friday). If I miss it, I'm assuming that they won't include my documents in the trial bundle.

[popeye1]

I believe you have your own bundle but have to let other side know what evidence/docs you are going to rely on ,as say the CCAct/other acts.

The skeleton i believe pass to judge and other side on the day at court

Right or wrong this will bump up

[joan_of_arc]

Thanks popeye!

 

They've already had Disclosure from me weeks ago and I gave them the documents they wanted frommy list, but now they say I need to provide them with documents for the trial bundle, which they are putting together. Post #170 explains.