TBI Claimform - old HFC Credit card Debt - **WON** - default notice fee but NO default produced

[Canaan]

Thanks B3rty.

I have read it a few times and just need to check that it is 100% relevant to my situation. I am being sued for a loan which I never had with the bank (a POC error on the solicitors part). They will of course not be able to come up with a credit agreement for a loan as there never was one but do you think there should be mention of this?? I am not sure this will get to court as the solicitors will not want to stand infront of a judge and say they made a mistake and there was never a loan, they will no doubt stop this case and start again with the right paperwork, or then again they may decide that they will not be able to produce a CCA for anything else they try to sue me for so will just go away:D

I can live in hope

Canaan

[Canaan]

irrevelant post

Edited January 6, 2009 by Canaan

[surfaceagentx20]

The court will not strike out the case of one party unilaterally for such things as failing to comply with a PD. Neither in an ordinary case will it make an order for specific disclosure of documents after the close of pleadings and immediately prior to directing standard disclosure. Less so will it attach 'unless' conditions.

 

If after disclosure the Defendant wishes to amend the Defence because of something revealed in the disclosure, the Defendant can reach an agreement with the Claimant about amending or make an application for permission to amend.

 

I've seen this draft set of directions floating around in a number of threads. It is dangerous and I believe pt has now amended the original. It's dangerous because as a rle of general application the Defendant ought not to suggest a form of order which compels him to amend his pleading which is dependant upon an event to occur in the future, particularly so within a limited period of time where he has no idea whether 14 days will be sufficient, worse where the Defendant suggests his own case be struck out should he fail to comply within that limited period of time.

 

Specifically on canaan's thread, the Claimant has intimated a wish to amend the Claim. There is therefore no need to seek permission to amend the Defence if the Claimant is going to amend the claim. If the Claimant doesn't amend canaan is home and dry on the basis an agreement of the kind pleaded was not made.

 

I would not propose any directions in this case. It will get allocated to the small claims track and standard small claims track directions will be made.

 

x20

[pt2537]

No directions save for basic small claims directions???

 

Hmm,not my way of working but ...........

[surfaceagentx20]

... you were going to say something?

[pt2537]

... you were going to say something?

nope not at all, only that standard SCT directions are not sufficient for disclosure in this matter IMHO

 

but you are clearly knowledgable in legal matters so i bow to your judgment:)

[Canaan]

Soooooooo what do I send with the Allocation questionaire if anything??

 

Thanks

Canaan

[AndyOrch]

Hi Canaan

 

A copy of anything relevent that you have made reference to in your AQ ie CPR request,CCA request etc

 

Andy

[Canaan]

Hi Canaan

A copy of anything relevent that you have made reference to in your AQ ie CPR request,CCA request etc

Andy

 

I've not made any reference to anything in my AQ as I've not started filling it in yet so could do with some guidance..here is what is planned for the form so far

 

A: Mediation = NO

B: Location = NO

C: Track = YES

D: Witnesses = 0

E: Experts = NO

F: Hearing dates etc

G: Other information sticking point, watching comments with interest.

H: Fee = NO I am assuming I don't have to pay anything:???: if so can someone let me know

I: Signature = Can manage this bit on my own

 

Thanks in advance

Canaan:)

[AndyOrch]

I've not made any reference to anything in my AQ as I've not started filling it in yet so could do with some guidance..here is what is planned for the form so far

 

A: Mediation = NO

B: Location = NO

C: Track = YES

D: Witnesses = 0

E: Experts = NO

F: Hearing dates etc

G: Other information sticking point, watching comments with interest.

H: Fee = NO I am assuming I don't have to pay anything:???: if so can someone let me know

I: Signature = Can manage this bit on my own Dont sign the Sols Copy

 

Thanks in advance

Canaan:)

 

 

With reference to G I understand surface Agent is assisting but this is where you make reference to your dispute/Claimants behaviour/failure to furnish requested etc.

 

SCT N149 is very restricted re disclosures/directions and very much reliant on SCT direction from the Court.

 

 

I trust the above is of help

 

Regards

 

Andy:cool:

[surfaceagentx20]

On Part G and the draft directions, first pt and andy, thanks for flagging up the shortcomings in standard directions on the SCT. I hadn't appreciated they'd gotten so narrow. Standard disclosure is no more on the SCT and instead we have a requirement for simply the disclosure of those documents to be relied upon rather than any wider requirement to include disclosure of documents which have an adverse affect on the disclosing party's case. What's more instead of disclosing early on, the modern approach is to direct disclosure as late as just 14 days from the final hearing.

 

So with the benefit of your flags, I withdraw the suggestion that canaan should seek nothing in particular. In fact, as I look deeper into the thread, I see I was suggesting to B3rty that at the AQ stage canaan would be applying for a special direction.

 

I see the AQs aren't due in until 27 October. I suggest canaan resists the temptation to file something early and wait until the last moment so that, if something does come in from the other side, like an application to amend or a copy of an agreement the other side intend to rely upon, she can react to it in her AQ. The Judge will not make directions until the time for filing AQs has gone.

 

If nothing should come in between now and 27 October that wouuld suggest once more that the Claimant is in difficulties in locating the agreement it wishes to rely upon. That being the case, special directions should be centred upon demanding the prompt disclosure by the Claimant of the agreement they can't find, the better to bring the central issue and the Claimant's difficulties to a head.

 

x20

[Canaan]

Ok so I will go away for a while and try to translate X20's last post into Canaan english and then come back a few days before the AQ is due for further advice.

Many thanks all

Canaan:)

[AndyOrch]

Its quiet simple Canaan not rocket science just post when you require help submitting your AQ

 

 

 

 

Regards

 

Andy;)

[Canaan]

Hello All.

Time is getting close to the deadline for getting my AQ in, I need to post it on Friday to be with the court on the 27th, soooooooooo I would appreciate some guidance. I was left a bit confused by the last few posts regarding what I should and shouldnt include with the form. To refresh memories this is the one where the DCA is taking me to court for a personal loan which never existed, so they will not be able to produce an agreement, they are likely to stop proceedings soon and retry with an amended POC but inthe mean time I need to get this AQ in

Thanks in advance

Canaan

 

Just a little bump I need this form filled in tonight

[AndyOrch]

HI Canaan

 

Ok lets move on to the AQ

 

A Settlement Tick yes (I will explain later)

 

B Location Tick no

 

C Track Tick yes

 

D Witnesses 0 =yourself and husband/partner =1

 

E Experts Tick no

 

F Hearing Yes or No check your Calander to any dates unavailable

 

G Other Info Leave this blank for now until I tell you what to write

 

H Fee Tick no (you are the Defendent)

[AndyOrch]

With regards to A Settlement I am sure you would agree that this Claim should never have happened and that the Claimants behaviour is averred as both UNLAWFUL and VEXATIOUS,hence the need to appear to be amicable and seek settlement in all efforts.

 

With regards to G other Information I will draft a short reference to how you consider the Claimants have behaved in bringing this claim and also you need to amend with anything relevent that should have prevented it.

 

 

I will also prepare a Draft Direction to enclose with your AQ requesting a Stay in proceeding to alow settlement to be reached.

 

You will need to attach everything relevent to the case ie CCA request CPR18 request.

 

Finally dont sign the Claimants copy print name but sign the Courts Copy

Edited October 23, 2008 by Andyorch

[AndyOrch]

Ok heres yours Draft Direction

 

 

Case No. XXXXXXX

In the XXXXXXXX Court

 

 

 

Between

 

 

Claimant

and –

 

Defendant

 

DRAFT ORDER

Proposed directions:

 

[1. The case to be stayed for one month while the parties attempt to settle the case.

 

[1] [2] If settlement is not achieved standard disclosure by list by 25th November 2008.

[2] [3] Inspection by 1st December 2008.

[3] [4] Witness statements of fact to be exchanged by 2nd January 2009.

[4] [5] To be listed for trial with trial window of 2nd Feb 2009 to 2nd March 2009.

 

 

 

Dated the day of XX October 2008

 

 

Regards

 

Andy

[Canaan]

Thanks Andyorch.

Just so I understand what I will be sending, what sort of settlement am I aiming for here? I am assuming it is to give the other side a chance to back off without going to court?

Thanks Canaan

[AndyOrch]

Correct meek and humble and show the Claimants behaviour is averred as both UNLAWFUL and VEXATIOUS, settlement should always be foremost throughout proceedings irrespective of these numpties bringing a pointless claim.I will finalise something for Section G shortly

 

Regards

 

Andy

[AndyOrch]

OK Canaan i would propose something along these lines but feel free to amend or add anthing to forward your case: -

 

Section G

 

If the Court decides not to use its powers to Strike out the claimants vexatious claim as detailed in the defence; then, if the court is in agreement, the defendant respectfully requests that directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgement

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. 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, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. 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 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

 

 

 

Regards

Andy

[Canaan]

Thanks Andyorch.

Just need to ask.....the other side have already asked for extra time, I did not agree to this and continued to this point, how will it go down if now i am asking for a months extra time??

 

Thanks Canaan

 

Sorry to be a complete pain but I am not going to be able to fit all that detail into the box in section G by hand writing. Do I attach it as a seperate sheet??

Also is the numbering supposed to be boxed exactly like below on the draft order? It just makes no sence to me so I am just checking that I am not just copying blindly and sticking it on a letter for the court

 

[1] [2] If settlement is not achieved standard disclosure by list by 25th November 2008.

[2] [3] Inspection by 1st December 2008.

[3] [4] Witness statements of fact to be exchanged by 2nd January 2009.

[4] [5] To be listed for trial with trial window of 2nd Feb 2009 to 2nd March 2009.

 

Thanks Canaan:)

 

Buuuuuuuump I only have a few hours to get this done:eek:

[AndyOrch]

Hi Cannan

 

Yes the lettering is in the event of failure 1 2345 come into play and yes its ok to attach a seperate Sheet as G.

 

Regards

 

Andy

[Canaan]

Thanks Andyorch

 

:oops:Sorry me again

 

Is sending a copy to the other side just being polite or a requirement? If it is just politeness that will have to wait till next week:-D

[AndyOrch]

AQs are expected to be exchanged as per Civil Procedure Rules.If you have not recieved theirs, request a copy from the Court handling the claim.The reason for wishing to view the Claimants AQ is logical it gives you insight to which way they are proceeding with their claim.They may have made a AN (which will probally contain a Witness Statemant) it may contain Directions / Disclosure requests all an insight to what they are doing and gives you the heads up in your reaction.It may state that they wish to settle and therefore give you a stay which enables you more breathing space in your next move.All the above must be taken into account for you to be able to proceed in your best interest.That is why its expected to exchange AQs it even says in the AQ itself have you forward a copy of this to the Claimant/defendent.

[AndyOrch]

The only reason i say to exchange is that on previous cases involved with if said AQ had not been exchanged I would have missed some very important points like witness statements etc which you are fully entitled to see and upon no seeing them would have lost the case.

The Claimants has a responsibility to serve on you a copy of their application (If any)and any supporting documents. Given that if they have not had the courtesy to do this, because they are trying to gain an unfair advantage in the case, you are entitled to a copy from the Court. Any documents filed at the Court should also be served on the other parties in the case. The Court staff clearly do not understand the concept of "filing and serving" and are acting in a way that is prejudicial to your case. Given that the Claimants have made an application, you are entitled to see it, so that you can decide if you want to submit one also, then the Judge can consider both applications and make an "informed" decision.

 

If they continue to refuse you a copy, all they are doing is creating additional work for themselves and the Judge! Lets assume the Judge decides they can have a Summary Hearing. This will be communicated to you via an Order sent in the post. The Order gives either party (usually) 7 days to apply to vary/object to the Order. So you would then file your app notice, explaining in your letter that you were denied the opportunity to also file an app notice at more or less the same time as the Claimants, as they conveniently did not send you a copy. Furthermore, the situation was compounded by unhelpful Court staff, who on two occasions refused to provide you with a copy of said application! How on earth can either the behaviour of the Claimant or Court staff be said to be working in conjunction with the Overriding Objective as the CPR requires? Both the Claimant and Court staff are frustrating the legal process, one deliberately, one probably out of ignorance, but nevertheless this impacts upon your case!

 

You can report this to the Civil Section Court Manager,If he/she acts unreasonably, take the details to make a formal complaint, as this is unacceptable. The bottom line is, it's not your fault that the Claimants did not serve the app notice on you and the 1st you knew about it was in the AQ!! You should not be at a disadvantage because of the Claimants dubious practices! hence the need file & serve.

 

 

Hope that makes sense.

Edited October 24, 2008 by Andyorch
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