court papers and filing a defence - help please

[AndyOrch]

Always wait for the Claimant to lead you,you may find it useful to see their list first and then amend /tailor your own to counter theirs.

What date was given for inspection/request each others disclosure BTW?not the exchange date

 

Regards

 

Andy

[Perdita]

Disclosure lists to be served by 4pm on monday 22nd june

any request for copy or inspection of any document shall be complied with by 4pm Monday 29th June

Witness statements to be served on each other by monday 20th july

 

P

[AndyOrch]

Ok Perdita that fine.Wait until Monday if nothing recieved send yours to the Court by say Wednesday and hold theirs until you recieved theirs.Inform the Court if nothing recieved.

We can tackle the WS later down the line.

 

Regards

 

Andy

[Perdita]

Sorry to sound stupid but i thought the list had to go to SCM and not the court or is that a tactic when they dont disclose?

P

[AndyOrch]

Sorry to sound stupid but i thought the list had to go to SCM and not the court or is that a tactic when they dont disclose?

P

Exactly Perdita

[Perdita]

Their disclosure list was received today so i got mine in the post so as not to miss the deadline. Nothing surprising in the list but the have refused to let me inspect any documents as is their privelege!!

 

P

[Perdita]

Bump - any suggestions as to what i can do to their refusal for me to inspect docs?

 

P

[AndyOrch]

Hi Perdita

 

They did leave it late didnt they, what exactly have they listed that they will not allow inspection of?

 

Ok for the record

 

CLAIMS TO WITHHOLD DISCLOSURE OR INSPECTION OF A DOCUMENT

6.1

 

A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court (see rule 31.19(5)).

 

6.2

 

Rule 31.19(1) and (6) provide a procedure enabling a party to apply for an order permitting disclosure of the existence of a document to be withheld.

 

Regards

 

Andy

[Perdita]

Hi Andy

 

Ive scanned the last page so you can see for yourself - im not quite sure what to do

 

http://i605.photobucket.com/albums/tt133/maverick97/TSBdisclosurelist.jpg

 

Many thanks

P

PS if you have the time could i ask you to cast a quick glance at my defence in my thread "Me v Restons" as I need to get it off today but i havent had any joy from any caggers as yet

Thanks

[AndyOrch]

Ok P

 

Thats standard the ones they object to you inspecting so I wouldnt worry about that.What I will bring to your attention is the third section which quotes the docs they no longer have ,namely a valid CCA. They have been lost/Destroyed or misplaced and cannot now be traced:D

 

Going to be an uphill struggle then me thinks.

 

Regards

 

Andy:rolleyes:

 

Ps will take a look at your defence shortly you inputting this via MCOL?

[Perdita]

No Andy - got to post it as its too long for MCOL - if its ok anyway

[Perdita]

Right now Ive got to prepare the witness statement for this one - can anyone advise the format, what needs to be in it etc as i dont have much clue - sorry

Its got to be done by 20th july

Many thanks

 

P

[Perdita]

Bump - anyone advise onthe witness statement pleease

 

P

[AndyOrch]

Hi Perdita

 

Heres a thread that I have just advised on content and layout.It will give you an idea of what is required;)

 

Tonka99 V...

 

Regards

 

Andy

[Perdita]

Thanks Andy , i will have a look, Im getting a bit nervous now and i really dont know what im doing so am trying not to do anything to damage the case especially as it is the same DJ that Nottsdave had inhis capquest thread

 

P

[AndyOrch]

Thanks Andy , i will have a look, Im getting a bit nervous now and i really dont know what im doing so am trying not to do anything to damage the case especially as it is the same DJ that Nottsdave had inhis capquest thread

 

P

oh dear lets hope he judges every case on its own merits then Perdita.

 

 

Regards

 

Andy

[Perdita]

Hi everyone,

Right below is my first draft of my WS. I have looked at the ones pointed to on here and also used Patricia Pearls book for guidance. Bearing in mind that it looks like I have the sdame DJ as Nottsdave and he basically told him to go away and come back with legal representation I am trying to keep it as simple and in laymans terms. I think the basic issues are the validity of the agreement, the fact that what they have sent is illegible, they state in their disclosure that the original has been destroyed and the absence of a default notice ( i genuinely dont remember seeing one but i was going through a bad time at the time they allege it was sent)

Hope someone can look at the WS and advise what else needs to be in there and also when i refer to a letter should i give it an exhibit number or use the letter it was allocated in the disclosure list??

Thanks

P

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

3.. On 25th August 2008 I requested a copy of the credit agreement from the claimant – I had no response to this request and I sent another letter on 6th October 2008 advising that the account was in dispute.

On the 22nd October 2008 I received a letter from the claimant’s solicitor requesting full payment of the alleged balance within 7 days. I replied on the 23rd October 2008 by letter advising that the account was in dispute with the claimant and enclosed a copy of a letter from the claimant advising they were investigating.

On the 7th November 2008 I received a small blurred and therefore illegible copy of the alleged agreement. As the document reproduction was so poor I was unable to verify if the agreement conformed to the regulations and contained the necessary prescribed terms and conditions.

On the 15th November 2008 I received the county court claim form dated 14th November 2008. The particulars of claim state that a default notice was issued.

 

4. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

5. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

The claimant has already admitted in a letter dated 4th June 2009 that they are unable to produce a copy of the default notice.

I put the claimant to strict proof that a default notice was issued, the method of service and proof of postage.

Moreover I put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. On 18th November 2009 in response to the county court claim papers received I sent a request under CPR 31.14 to the claimant for a valid copy of the agreement, the default notice and a full set of statements. This request was not responded to.

On 28th May 2009 I sent a letter to the claimant’s solicitor giving 7 days to comply with CPR 31.14 and received the same small, illegible copy of the alleged agreement and a few statements dating back to July 2007 and not the full set from the start of the agreement. As the total claimed contains unlawful penalty charges the full set of statements is required in order for me to ascertain the proportion of the penalty charges in the claim. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

7. . The claimants disclosure list states that the original signed copy of the agreement no longer exists

8. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

Signiture

[AndyOrch]

Hi everyone,

Right below is my first draft of my WS. I have looked at the ones pointed to on here and also used Patricia Pearls book for guidance. Bearing in mind that it looks like I have the sdame DJ as Nottsdave and he basically told him to go away and come back with legal representation I am trying to keep it as simple and in laymans terms. I think the basic issues are the validity of the agreement, the fact that what they have sent is illegible, they state in their disclosure that the original has been destroyed and the absence of a default notice ( i genuinely dont remember seeing one but i was going through a bad time at the time they allege it was sent)

Hope someone can look at the WS and advise what else needs to be in there and also when i refer to a letter should i give it an exhibit number or use the letter it was allocated in the disclosure list?? Yes mark as appendix A 1,2 etc

Thanks

P

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

 

3.. On 25th August 2008 I requested a copy of the credit agreement from the claimant – I had no response to this request and I sent another letter on 6th October 2008 advising that the account was in dispute.

On the 22nd October 2008 I received a letter from the claimant’s solicitor requesting full payment of the alleged balance within 7 days. I replied on the 23rd October 2008 by letter advising that the account was in dispute with the claimant and enclosed a copy of a letter from the claimant advising they were investigating.

On the 7th November 2008 I received a small blurred and therefore illegible copy of the alleged agreement. As the document reproduction was so poor I was unable to verify if the agreement conformed to the regulations and contained the necessary prescribed terms and conditions.

On the 15th November 2008 I received the county court claim form dated 14th November 2008. The particulars of claim state that a default notice was issued.

 

4. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

5. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

The claimant has already admitted in a letter dated 4th June 2009 that they are unable to produce a copy of the default notice.

I put the claimant to strict proof that a default notice was issued, the method of service and proof of postage.

Moreover I put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. On 18th November 2009 in response to the county court claim papers received I sent a request under CPR 31.14 to the claimant for a valid copy of the agreement, the default notice and a full set of statements. This request was not responded to.

On 28th May 2009 I sent a letter to the claimant’s solicitor giving 7 days to comply with CPR 31.14 and received the same small, illegible copy of the alleged agreement and a few statements dating back to July 2007 and not the full set from the start of the agreement. As the total claimed contains unlawful penalty charges the full set of statements is required in order for me to ascertain the proportion of the penalty charges in the claim. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

 

7. . The claimants disclosure list states that the original signed copy of the agreement no longer exists

8. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: xx July 2009

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signiture

 

Exceleent Perd couldnt have done better myself:D

 

Regards

 

Andy

[Perdita]

Thanks Andy

where ive quoted consumer credit act, unfairness of charges, case studies etc am i liable to be questioned on that?? Im not entirely sure what is supposed to be on the agreement.

 

P

[AndyOrch]

Only on the contents of your WS you are not expected to know the CCA and case studies inside out being LiP,but as you have refered to them you need to have this information available if you are cross examined.

We are jumping the gun a tad here Perd lets see what the Claimants response is to your WS first and if in fact it does proceed to trial.

 

Regards

 

Andy

[Perdita]

Also I have to compile a pre trial checklist and send to the court by 30th july - the hearing is set to go ahead between 14th sept and 2nd october.

The diredtions state that :

the parties shall exchange skeleton arguments at least 3 working days before the hearing

 

Not more than 7 nor less than 3 clear working days before the trial the claimant shall file at court an indexed and pagianted bundle of documents which complies with rule 39.5 of CPR and the practice directions thereto and shall serve a copy on the defendant. The parties shall endeavour to agree the contents of the bundle before it is filed. The bundle shall include

a a case summary of not more than 250 words

b. a chronology

c. a statement of the issues to be decided by the court

d. a skeleton argument of all parties

 

Im a bit confused as to the timings given - if i have to exchange a skeleton argument at least 3 days before hearing and they have to file a bundle between 7 and 3 days before hearing in which that argument is in how is it o going to work ??

P:confused:

[AndyOrch]

Not a problem Perdita

 

One step at a time dont think too far ahead

 

We can do the pre trial checklist first then I will go through the rest nearer the time

 

Andy

Edited July 15, 2009 by Andyorch

[Perdita]

Thanks Andy, you're a star )

Can you point me inthe direction of the necessary cca and case studies so i can read up - thanks

P

[AndyOrch]

Hi perdita

 

Just google CCA1974 and amendments and also CPR.Print a set off to put in your file.

Familiarise yourself with the points you have raised in your WS,by hilighting the sections i have mentioned in your WS.

 

Regards

Andy

[Perdita]

Quick question, the directions say that both parties should serve on each other the witness statements - do i need to send a copy to the court also as well as scm

 

P