Lloyds TSB Platinum Card - Court Claim

[iOiO]

Should the date also be 10 Nov 2009 (not the 12 Nov as you state) as the order states "at least five working days before the trial " ?

[foolishgirl]

With regards the costs, I presume we are talking about all my costs in the case thus far, if so, is there any specific format they should be in?

 

Yes, all costs. That includes the usual photocopying, postage etc. but also LIP's hourly rate of £9.25 & don't forget your research time. If you have a lot, look at this thread (Post 44 8 for how to set it out:

http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman-23.html

BRW had some recent good advice on this thread too:

http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank-15.html

 

Should the date also be 10 Nov 2009 (not the 12 Nov as you state) as the order states "at least five working days before the trial " ?

 

Sorry IOIO didn't note the 'working days' bit - yes, it's 10 December 2009

Edited December 14, 2009 by foolishgirl
typo

[iOiO]

Thanks so, so much for your time foolish girl you've been awesome.

[iOiO]

OK still nothing received today even, not by post, special delivery or courier, so I've just filed the letter with the court.

 

I decided, primarily because of time restraints to leave out the request for "costs as per attached", but instead asked the judge to consider issuing a wasted cost order.

 

Bearing in mind that this is in the small claims track and claims for costs are limited, what costs am I entitled to claim?

 

Would CPR 27.14 2(g) now apply and if so, does this then mean that I can claim all of my costs as the Claimant has acted unreasonably?

 

CPR 27.14

2(g)such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

[foolishgirl]

I decided, primarily because of time restraints to leave out the request for "costs as per attached", but instead asked the judge to consider issuing a wasted cost order.

 

Wasted costs are usually applied for as a seperate claim submitted after you get judgment (or strike out). See these:

http://www.consumeractiongroup.co.uk/forum/show-post/post-1701510.html

http://www.consumerforums.com/resources/templates-library/48-bank-templates/143-wasted-costs-order-

Bearing in mind that this is in the small claims track and claims for costs are limited, what costs am I entitled to claim?

 

Small claims costs are limited in as much as all parties are deemed to have been reasonable & basically allow for expenses under pre-set scales eg. time off work to attend hearing, expenses in getting there etc. However as you say below, if the claimant has been unreasonable in bringing the action eg. if they did so without the necessary docs, no LBA etc. no opportunity allowed for you to settle before going legal, then you can submit a full claim as dictated by CPR27. See this post here:

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/65921-application-costs.html

 

Would CPR 27.14 2(g) now apply and if so, does this then mean that I can claim all of my costs as the Claimant has acted unreasonably?

 

FG

[iOiO]

Thanks once again FG for the links, I will certainly take time later to read through them.

 

Been speaking this afternoon to the Court Manager and my file is before the Judge, but it hadn't come back down at that point, so its a waiting game at the moment.

 

She said that given the lateness in the day that the Judge may want to deal with this on the day.

 

Just supposing this is how things proceed, what do you think would be the best way to handle it?

[foolishgirl]

Yes, I guessed this might be how it would be handled.

 

How you present depends on if the other side turn up at the hearing.

If they do, I suspect they may try & settle with you before court as they haven't complied with court directions & don't want to look stupid. Whether you listen to them or not is your choice but if you do agree anything, make sure it is still put before the DJ & you get court approval of it. As I said before, I've not really followed your case so I am not aware of how strong your case is. However if you think you have a good case, you would prob. be better going for a full hearing & hope for a judgment in your favour but it's your call & a lot depends on the judge lottery too.

 

The DJ should have read your file prior to the hearing & be aware that the claimant has not supplied a bundle. If he doesn't draw attention to that fact, you need to point it out pretty smartly before the other side has chance to present their case. If they seek an adjournment to produce the docs, oppose it strongly on the grounds that they have had more than adequate time to prepare for this etc. & all the other stuff you put in your letter.

 

If they don't turn up, you request either a strike out or a judgment, preferably the latter. If they have not produced an enforceable/any agreement, you could ask the DJ to declare the agreement unenforceable under S127(3) if that applies to your CCA (i.e. prior 2006 amendments). He may decline to do so as that is not what the POC was about but you could try.

 

Once you have your decision, if it's not in your favour you can appeal if you think you have grounds & if it's in your favour, the other side have 7 days in which to apply for set aside so don't count your chickens too soon.

 

Whatever happens, just remain calm & polite but firm. Have all your own notes labelled so you can easily find them, take an extra copy of all the docs you intend to use in case the court has lost the originals (it happens!!) & you have to give the DJ a copy. Take notes all the time the other side is speaking so you know what you need to refer to when if's your turn. If you don't understand any legal jargon that may be exchanged between DJ & sol. ask the DJ to explain. You are a LIP & he should make allowance.

 

Good luck....

[iOiO]

I am deeply indebted to you once again FD, excellent thank you.

 

I will update the thread with any breaking news as it happens

 

Anyone else have any comments/advice?

[iOiO]

Still no court bundle arrived here

 

Just rang the court for an update, they got SCM's court bundle late yesterday afternoon..... begs the question how can they get one into court and not to me (I only live about 3 miles from the court) scheming cheating SCuMbags!!

 

Judge has said re my letter, that any order could be considered at the hearing tomorrow.

 

So iOiO its off to court we go.

 

Any comments and advice gratefully accepted!!

[Craftygirl42]

No advice to offer, but wishing you all the best for tomorrow

[underdog13]

Very best of luck to you, IOIO:)

[popeye1]

All the best ,stick to your main points ,do not let the other side sway you.be polite and you should be fine

[lilly white]

Good Luck:-)

 

 

Lilly

[iOiO]

Thanks ever so much guys and girls, your support is much appreciated

[iOiO]

One question

 

If I take some paperwork with me to support me, am I allowed to use a highlighter to highlight relevant wording in the copies of documents I intend to give to the judge or is this a no no ?

[foolishgirl]

Still no court bundle arrived here

 

Just rang the court for an update, they got SCM's court bundle late yesterday afternoon..... begs the question how can they get one into court and not to me (I only live about 3 miles from the court) scheming cheating SCuMbags!!

 

Judge has said re my letter, that any order could be considered at the hearing tomorrow.

 

 

Suspect the DJ will allow late admission of bundle, direct you receive a copy & will adjourn hearing to another date to allow your assessment . I would object strongly to this & still go for a strike out but be prepared for an adjournment.

 

One question

 

If I take some paperwork with me to support me, am I allowed to use a highlighter to highlight relevant wording in the copies of documents I intend to give to the judge or is this a no no ?

 

All court copies have already been filed so anything you give to the DJ tomorrow will be 'extra' copies you just happen to have with you & you can therefore hand over highlighted copies.

[cymruambyth]

Good luck

[foolishgirl]

Any news iOiO?

[NGEddie]

Bump

[underdog13]

Hope you're busy celebrating, IOIO:)

[iOiO]

Hi Guys and Girls

 

So sorry I have been so late in updating you all on this but as you can appreciate it was all going on during the run up to Christmas and I had to set to one side so much Christmassy stuff that I should have been doing prior to the hearing so it was all to do after it!

 

Hope you all had a great Christmas and here's hoping for a better New Year than last!

 

Well all didn't go exactly to plan, but eventually got the case adjourned until early February.

 

Surprise, surprise (not) neither the Trial Bundle or the Claimants Witness Statement arrived before the trial.

 

Got a different Judge this time, a Deputy District Judge at that, and he wasn't interested in hearing my argument for a strike out. I refused to go ahead with the trial as I was obviously at a significant disadvantage as I had not had sight of the Trial Bundle or the Claimants Witness Statement, and after some deliberation the Judge "in the interest of justice" agreed to an adjournment.

 

After the case was adjourned SCaMs Barrister made a sly attempt to make the judge aware of a mistake he had noticed in the claimants witness statement in that the CCA agreement had been signed by virtue of a machine printed strip near the signature box. I retorted that this was ridiculous as it was merely a date stamp, and the judge smiled and said this was a matter for the later trial. Any comments on the validity of such a "signature" gratefully received.

 

For the record the strip says "RCVD 25 AUG 04 09:07 BTN CMU"

 

I have changed the date and time for obvious reasons, but I presume the above means "RECEIVED 25-AUG-04 at 09:07 BRIGHTON CENTRAL MAILING UNIT" but perhaps someone knows how to decipher it more accurately?

 

The Trial Bundle and the Claimants Witness Statement magically appeared in the post the following day

 

Also on the same day (18 Dec 2009) under separate cover I received a Statement of Costs (dated 14 December 2009) from **** for the sum of £3010.00 together with a covering letter stating that they were seeking these costs as the directions made by the judge were “clearly not standard Small Claims Track directions”.

 

At an earlier Allocation Hearing, the case was agreed to be progressed through the Small Claims Track primarily at the specific request of the Claimants Barrister. Directions for the trial were made there and then, and were specifically agreed between the Judge and Barrister at that time, and at no time since the directions were issued has this been drawn attention to or complained about.

 

Surely this is just a poor attempt at scare tactics on their behalf?

 

Can they do this?

[foolishgirl]

Hi iOiO, was wondering what had happened to you, glad it was only pressie wrapping.

 

Looks as though SCM are playing true to form

 

 

After the case was adjourned SCaMs Barrister made a sly attempt to make the judge aware of a mistake he had noticed in the claimants witness statement in that the CCA agreement had been signed by virtue of a machine printed strip near the signature box. I retorted that this was ridiculous as it was merely a date stamp, and the judge smiled and said this was a matter for the later trial. Any comments on the validity of such a "signature" gratefully received.

 

For the record the strip says "RCVD 25 AUG 04 09:07 BTN CMU"

 

The missing signature is not an essential part of your case - it means the agreement wasn't executed properly & it is worth bringing it to the court's attention but IMO, the claimant would just be told to go & get it signed i.e. it wouldn't of itself make your agreement unenforceable.

The Trial Bundle and the Claimants Witness Statement magically appeared in the post the following day

 

Oh surprise, surprise!

 

Also on the same day (18 Dec 2009) under separate cover I received a Statement of Costs (dated 14 December 2009) from **** for the sum of £3010.00 together with a covering letter stating that they were seeking these costs as the directions made by the judge were “clearly not standard Small Claims Track directions”.

 

At an earlier Allocation Hearing, the case was agreed to be progressed through the Small Claims Track primarily at the specific request of the Claimants Barrister. Directions for the trial were made there and then, and were specifically agreed between the Judge and Barrister at that time, and at no time since the directions were issued has this been drawn attention to or complained about.

 

Firstly, “clearly not standard Small Claims Track directions” - load of rubbish!

Haven't reread your thread but if it was allocated to small claims, they are limited to the costs they can claim by CPR27.14 unless they can demonstrate you have behaved unreasonably which, as a defendant, is unlikely.

(http://www.justice.gov.uk/civil/procrules_fin/pdf/parts/part27.pdf)

They would only be allowed costs if they won & I suggest you wait until after the judgment (which may well be in your favour ) before objecting to their costs.

 

[iOiO]

Thanks FG for sticking with me on this.

 

The fact that their signature is missing bears a lot more weight that it normally would in that the lack of it means that the contract between the two parties was never agreed.

 

In the Application Form that the Claimant has produced I note that a key clause in section 5 of the Application Form states “If your application is accepted by our signature and we send you a card, then this will form the agreement made between you, the Principal Cardholder, and us Lloyds TSB Bank plc…” This document has therefore not been fully executed, and as a direct consequence no valid contract or agreement has been formed.

 

Am I correct in my thinking on this?

 

With regards the Order for Costs, I was considering writing to the court to make the judge aware of this, as they are clearly calling into question his abilities.

[foolishgirl]

 

In the Application Form that the Claimant has produced I note that a key clause in section 5 of the Application Form states “If your application is accepted by our signature and we send you a card, then this will form the agreement made between you, the Principal Cardholder, and us Lloyds TSB Bank plc…” This document has therefore not been fully executed, and as a direct consequence no valid contract or agreement has been formed.

 

Am I correct in my thinking on this?

 

Correct in saying it has been improperly executed, but that doesn't prevent it being enforced by order of the court. IMO, as I said before, I think the court would take the stance 'OK, get it signed, now it's OK providing it fulfils S60 (prescribed terms)' so this & the DN is where the crux of your arguments should lie.

 

With regards the Order for Costs, I was considering writing to the court to make the judge aware of this, as they are clearly calling into question his abilities.

 

As I understand it, they've not asked for an order for costs - yet. It's merely a statement of what they would be asking a court to order if they won & IMO designed to scare you into submission. Don't be deterred! And so you shouldn't write to court, just get your arguments together re. a strong objection post judgment if they win & then try it on.

 

 

FG

[iOiO]

Correct in saying it has been improperly executed, but that doesn't prevent it being enforced by order of the court. IMO, as I said before, I think the court would take the stance 'OK, get it signed, now it's OK providing it fulfils S60 (prescribed terms)' so this & the DN is where the crux of your arguments should lie.

 

But surely no contract has been formed until the exact point in time that the document was countersigned (and I would presume that would have to be the actual document with my actual signature on it, and not some unreadable copy), so everything that had happened prior to that point in time was without agreement or contract?

 

Another question if I may...

 

Within the Order for Costs they list the Court Fees they have paid which I understand I may be ordered to pay if I should loose.

 

I have long term health problems and am in receipt of Income Support and as a consequence of this I am exempt from court fees, would this exemption also apply to any court fees claimed in this event?

 

 

 

 

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