Lowell/HFO claimform - old barclaycard debt **WON***

[DonkeyB]

In fast track, the level of disclosure is much higher - they'd have to give you everything you ask for unless it's commercially sensitive and they get the court's permission to redact documents. Fast track means different bits of CPR apply I think - a legal bod hopefully will clarify. Small claims is, by its nature, limited in scope. And yes, I think HFO bottle fast track because it costs them proper legal representation rather than using their own paralegal dummies, as well as opening all their documentation and systems to very full scrutiny.

[rich2568]

The hearing isn't listed until June is it...

 

What I suggest is that now I've been through the documents and am clear about the issues that over the weekend - probably Sunday I'll draft a skeleton and a new amended defence and also an application to strike out the claim - I'll post it on here - and see what comments anybody has - then if its' OK you can file it all with the court by the middle of next week

 

But again - anybody any comments on applying to strike out the claim

 

 

Well IGNM- the only DN she received was a made up copy by HFO- which is clearly invlaid. What they do state is because the assignment from Barclays give them the rights of the account and everything that goes with it- they can then re-issue a revised DN- what a load of tosh!!

 

Striking out a claim because of the invalid DN has to be a route to go down. The only issue would be if Barclays could provide the original DN to HFO- or a printed copy of their archives. The reason I`m saying this is because I had seen a post (sorry- cant specify which one)in the Barclays section where there was a Court Hearing and the claimant brought to trial a DN from Barclays- however this wasn`t presented to the Defendant before the hearing!! The reason they told the Judge it hadn`t been presented prior to the hearing was barclays told them there would be a delay due to their archive system! Eventually, the Judge stated that the printed copy of the DN would be sufficient ?????

[rich2568]

In fast track, the level of disclosure is much higher - they'd have to give you everything you ask for unless it's commercially sensitive and they get the court's permission to redact documents. Fast track means different bits of CPR apply I think - a legal bod hopefully will clarify. Small claims is, by its nature, limited in scope. And yes, I think HFO bottle fast track because it costs them proper legal representation rather than using their own paralegal dummies, as well as opening all their documentation and systems to very full scrutiny.

 

 

So what you`re saying Donkey is- if you receive such a claim with fast track- you will need a Barrister/lawyer- or do we have the legal minded caggers here to help out if needed? Just checking and being prepared!!!

[DonkeyB]

You can still be a litigant in person. The court must give you some leeway in respect of this fact. You haven't been assigned a track yet have you? And didn't HFO amend the claim to below £5k? Convenient for them!

[Pank]

I am prety sure they amended my amount to just under £5K for that reason!!

[rich2568]

I am prety sure they amended my amount to just under £5K for that reason!!

 

How convenient of them....

 

Well I`ve no claim at present- but I`m waiting with eager!!!

[I've got no money]

Well IGNM- the only DN she received was a made up copy by HFO- which is clearly invlaid. What they do state is because the assignment from Barclays give them the rights of the account and everything that goes with it- they can then re-issue a revised DN- what a load of tosh!!

 

Striking out a claim because of the invalid DN has to be a route to go down. The only issue would be if Barclays could provide the original DN to HFO- or a printed copy of their archives. The reason I`m saying this is because I had seen a post (sorry- cant specify which one)in the Barclays section where there was a Court Hearing and the claimant brought to trial a DN from Barclays- however this wasn`t presented to the Defendant before the hearing!! The reason they told the Judge it hadn`t been presented prior to the hearing was barclays told them there would be a delay due to their archive system! Eventually, the Judge stated that the printed copy of the DN would be sufficient ?????

 

The thing in Panks case is that they have filed a witness statement to which they have exhibited the default notice...which is invalid - so if the app to strike out the claim is heard at the same time as the app to strike out the defence - they're gonna have a problem. Here its' not really a question of have they got a copy of the DN - they've exhibited and its' defective

[I've got no money]

So what you`re saying Donkey is- if you receive such a claim with fast track- you will need a Barrister/lawyer- or do we have the legal minded caggers here to help out if needed? Just checking and being prepared!!!

 

If you are in the fast track and you can either afford to pay for lawyers OR you qualify for legal aid you should ALWAYS instruct Solicitors HOWEVER if you can't afford them or you don't get qualify for legal aid then it you can do it yourself.

 

The advantage to the fast track is that there is not only much more scope to get the other side struck out - TR never seem to comply with court orders AND the disclosure provisions are better - it is hard to know how to defend a claim when you don't have all the evidence - you have a better chance to get the evidence in the fast track.

 

There are a number of people on CAG who can help you through the various stages

 

On the flip side the final hearing (if it gets that far) is in open court and is more formal than the SCT but in my view its' worth it.

[I've got no money]

That sounds like a good plan.

Q: The application to strike out the claim would that be brought up at the actual hearing, or could it be striked out earlier?

What happens with our responses? Are they looked at before the hearing or is it all just put together and gone through then?

 

Cheers

 

No - they would deal with our (sorry your) strike out application at the same time as theirs...

 

The case will be allocated to a DJ who will look through the papers but usually only just before the hearing - depends how busy s/he is - all of the stuff then gets looked at properly at the hearing...

[DonkeyB]

The thing in Panks case is that they have filed a witness statement to which they have exhibited the default notice...which is invalid - so if the app to strike out the claim is heard at the same time as the app to strike out the defence - they're gonna have a problem. Here its' not really a question of have they got a copy of the DN - they've exhibited and its' defective

 

It's a well-known fact in the HFO fan club that no two DNs have the same layout, wording, dates... they make them up as they go along.

[I've got no money]

It's a well-known fact in the HFO fan club that no two DNs have the same layout, wording, dates... they make them up as they go along.

 

This is very true...but here they've produced one that is invalid - lets be real if I was going to produce one I'd produce a valid one...

[rich2568]

I see your point IGNM- they`re exhibiting a duff DN- simple as that and that in the eyes of the Court is a non starter- am i correct?

[DonkeyB]

This is very true...but here they've produced one that is invalid - lets be real if I was going to produce one I'd produce a valid one...

 

Maybe the next one they produce will have the right bits on it

[Pank]

well even if they now produced a "right" one I still have the duff ones in my possession and proof that they where issued incorrectly.

 

Q, What happens if one of the parties does not turn up to the hearing?

If they do not turn up do they automaticaly loose or will the DJ still look at their paper work?

Equally if I do not turn up to I automatically loose or does the DJ still look at all the papers?

[I've got no money]

If a party doesn't turn up - what happens depends on the DJ - depending on who didn't show usually the DJ would make the Order (if the respondent didn't turn up) or dismiss the the application (if the applicant didn't turn up) - there, however, are no hard and fast rules it does depend on the DJ.

 

That's why its' alweays best to turn up - if there is a compelling reason why you can't get there then you would need to apply to adjourn the hearing

[I've got no money]

Pank - I've prepared a skeleton argument - there some gaps where you need to insert information and where you need to make decisions - e.g. if you are going to apply strike out the claim.

 

I've highlighted those points in bold, underlined etc.

 

I'm gonna have a go at an amended defence and counterclaim in a minute

PankSkeleton.doc

[I've got no money]

Pank,

 

I've drafted an amended defence.

 

I haven't included a counterclaim for injury to credit. It's up to you whether or not you include it

 

If you decide that you want to apply to strike out the claim then let me know and I'll draft up what I think needs to go in the application

 

I should re-itterate that I am not giving professional advice but merely opinion - you should of course take your own legal advice from a practising Solicitor

PankDefence.doc

Edited May 10, 2009 by I've got no money

[I've got no money]

Has anybody got any thoughts on either the skeleton, amended defence or suggestion that Pank applies to strike them out on the basis of the defective DN

[I've got no money]

Bump

[Pank]

IGNM, I am so greatful this is great! I would like to go for the strike out I think but I will wait for some more experienced people to have an opinion.

 

What do I do now? Amend all the bits and then forward copies of this to the court and TS.

 

I know you are not a professional and only expressing opinion. I like your opinion.

 

Thanks again, hows "school" getting any work done with all these people you are helping?

[Pank]

I take it I send both the skeleton and the defence?

[pt2537]

i have been wondering if its worth refering to the case of Anglo Leasing v Pascoe on the issue of proof of service in the skele

 

the case held it is for the creditor to prove documents were sent rather than the debtor to prove they werent

[I've got no money]

I take it I send both the skeleton and the defence?

 

We need to make a decision on strike out before we finally amend and before we serve the court and the other side.

 

Then it goes to the court and the other side.

 

The letter that goes to the other side needs to invite them to withdraw their application to strike out but we can sort that out in the next couple of days.

 

Remind me - when is the hearing

 

Uni is fine - tho' I've got three assignments to do in the next ten days...so I'm gonnna be a bit busy - then we break up around the 21st of May for the Summer...

[I've got no money]

i have been wondering if its worth refering to the case of Anglo Leasing v Pascoe on the issue of proof of service in the skele

 

the case held it is for the creditor to prove documents were sent rather than the debtor to prove they werent

 

Yes - is the short answer - I hadn't included it as I sort of thought that it was taken as read but with hindsight it won't do any harm.

[I've got no money]

Does PT have a view on a counter attack of an application to strike out on the basis that the DN is fatally flawed