OH v BLS/LTSB

[cymruambyth]

Once again thank you for your invaluable support.

I assume the court said no expert witnesses because [problem] hadn't requested any in their AQ. I wonder if this is because less is required in small claims and they know the court.........

[citizenB]

Once again thank you for your invaluable support.

I assume the court said no expert witnesses because [problem] hadn't requested any in their AQ. I wonder if this is because less is required in small claims and they know the court.........

 

Disclosure rules do appear to be limited in small claims, but your DJ appears to be on the ball and seems to have instructed **** to provide the documents you have requested.

[cymruambyth]

Phew

[citizenB]

Civil Evidence Act, not a long thread, but full of valuable information.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

 

HTH

[cymruambyth]

Thank you, a copy printed and saved.

[framboise]

Post 222 Says 'Original Documents must be provided on the day'

 

I like that bit !!

[citizenB]

Post 222 Says 'Original Documents must be provided on the day'

 

I like that bit !!

 

 

Absolutely

[cymruambyth]

[problem] have replied,

'The claimant has now received full clarification of the claim and has not as mentiond in para 4 of defence filed an amended fully particularised defence'.

Have we made a mistake here as we have only received an illegible application form which they are calling a credit agreement. it does say app noXXXX and acc noXXX.

They have also sent t & cs which are obviously not from the back of the form as they run into 7 pages.

No DN which is mentioned in AQ

[cymruambyth]

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations,

• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended and proof of service,

• Copies of any statement or other document relied upon.

 

This was part of Draft Order for Directions on AQ. [problem] have only sent the same illegible application form which is a copy of a microfiche.

Have they complied with the DJs directions?

[problem] also state we should have amended our defence after they sent this in August.

Any suggestions very gratefully received!

Edited November 14, 2009 by cymruambyth
fonts again

[citizenB]

Hmmm, it looks to me as though they are going to rely on the original form they sent you if they have sent the same one. I imagine that you will need to put in a defence to the best of your ability with the inforamation you have.

 

I will try and get some further comment for you.

 

When was the draft order issued ?

[cymruambyth]

Thank you. DJs directions do not mention amended defence. Also, received a letter in October from LTSB re SAR stating they 'have not yet been able to locate a copy of your signed agreement'.

[citizenB]

Hmmm, your defence suggests you will put in an amended defence on receipt of the signed and legible agreement.. you asked for directions

 

Small claims track.

Claimant must clarify the case by filing at court and serving on all other parties a full written reply to the defence (embarrassed) and copies of documents referred to by next week

 

Did LTSB do this ??

 

By early December claimant must send to court and all other parties a undle which must contain all documents you wish court to consider at hearing

Defendant etc must by xxDecember send claimant and court a bundle with docs etc

Defendants bundle to include contracts, letters, invoices, receipts etc; in date order and numbered and own witness statement

DJ will review file after **** have submitted documents and consider whether complied and if further directions

Original documents must be brought to court on day of trial

If yoyu do not comply trial may not proceed

No expert witness evidence permitted

 

The above is the order from the court it doesnt say anything about you putting in an amended defence.. I guess you will cover anything you need to in your Witness statement/amended defence which needs to be with the court and claimant in December.

 

And here are your directions. You do say at the bottom that you will file the amended defence, but only on receipt of the paperwork requested.

 

 

N149 Allocation Questionnaire

 

 

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. If the court is in agreement, the defendant respectfully requests that special 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 judgment

 

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

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations

• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

• Document, contract or deed of assignment

• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order

 

 

 

Fortunately the order from the Judge has not suggested if you DO NOT put in an amended or fully particularised defence that there will be a strike out !!.

[cymruambyth]

Thanks citb. So, I don't need to panic (yet) and need to start prepaing a ws which can try to be an amended defence. As I do not consider that they have complied I do not need to ask for permission to change my defence.

They state roughly:

'the defendant refers to receiving a copy of the CCA in a letter, though he calls it a pre-contractural application form. In response to cpr 31.14 sent CCA (same illeg applicn form etc) & clear copy of t&c which wre on the back of CCA. Agreement was properly executed, contained all the prescribed terms and was signed by Defendant & Claimant.'

[citizenB]

Thanks citb. So, I don't need to panic (yet) and need to start prepaing a ws which can try to be an amended defence. As I do not consider that they have complied I do not need to ask for permission to change my defence.

They state roughly:

'the defendant refers to receiving a copy of the CCA in a letter, though he calls it a pre-contractural application form. In response to cpr 31.14 sent CCA (same illeg applicn form etc) & clear copy of t&c which wre on the back of CCA. Agreement was properly executed, contained all the prescribed terms and was signed by Defendant & Claimant.'

 

That is my understanding of the above.

 

 

Obviously 7 pages of T&Cs cannot possibly have been on the back of an A4 sheet of paper, not unless a spider wrote them on ?

[cymruambyth]

Think a flanker is being pulled ........

DJ has varied 'all original documents must be brought to court on the day of the trial '

to

'where such documents are in the possession or control of the party relying on them'

Advice please on how to deal with this as order states that 'any party affected by this order may apply to have it set aside, varied or stayed within 7 days of service'

[cymruambyth]

Bump please

[citizenB]

Have hit the panic button for you. LTSB are requesting these variation orders quite a lot in order to avoid producing agreements and default notices. I think there is something very dodgy going on.

[cymruambyth]

Thanks. It stinks!

[citizenB]

I agree, and I rather suspect that there is little can be done. But still looking for you.

[cymruambyth]

Thanks, could I not request that the original order is reverted to?

[cymruambyth]

If no-one comes up with any good ideas .......... am I right in assuming that this will now revert back to a battle of witness statements?

[diddydicky]

I miay be wrong but i think this can play into your hands

 

 

 

if they produce a microfiche/not original agreement at court and don't produce witnesses (ie the real person that produced that copy document) that can vouch for when where how they were produced it can work in your favour as whoever submits the document is likely to be a third party to it

 

search through x20's threads as there are a list of searching questions that you can ask the person claiming to submit the microfiche copy as evidence

[cymruambyth]

Thank you. There are definitely no witnesses.

[citizenB]

Think a flanker is being pulled ........

 

DJ has varied 'all original documents must be brought to court on the day of the trial '

to

'where such documents are in the possession or control of the party relying on them'

 

Advice please on how to deal with this as order states that 'any party affected by this order may apply to have it set aside, varied or stayed within 7 days of service'

 

In addition to what dd has said..I have just had a thought.. that statement I have highlighted. If they do not bring them as they are no longer in possession or control.. then surely they will not be able to RELY on them.

[cymruambyth]

Great minds think alike!

I was wondering about incorporating something in my witness statement about needeing possession of relevant documents before bringing a court claim.