OH v BLS/LTSB

[cymruambyth]

My latest draft

 

1. I xxxx of xxxx make this statement in support of my defence and as a rebuttal to the statement of xxxxx

2. On xxxx I sent a request for a copy of my CCA to BLS, exhibit xxxx

3. On xxx I received a letter BLS in reply to my request which stated that they didn’t have this document, exhibit xxx

4. On xxxx BLS/[problem] sent an illegible application form, exhibit xxxx.

5. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

6. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

7. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)].

 

8. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible. It is denied that the ‘Application Form’ Exhibit xx produced by the Claimant is an agreement within the terms of the Act.

 

9. The document states clearly that it is an Application Form. Most of the document is not easily legible and does not appear to contain the prescribed terms.

10. On dd I sent a Cpr 31.14 request to [problem], exhibit XXX; a follow up reminder exhibit xxxx was sent on dd. On xxxx exhibit [problem] xxxx was supplied. This is the same Application Form that had been supplied on several previous occasions. This document is illegible and therefore cannot be admissible as evidence.

11. Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from xxxx on xx October 2009 in response to my DSAR made on xxxx which stated ‘don’t have a copy’. This SAR is the subject of a complaint to the Information Commissioners Office as LTSB have failed to supply documentary evidence within the statutory 40 day period.

In addition, on examining the documents supplied as part of this s.10 data request, I have found entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'. I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

 

12. As directed by the court order of xxx I received the trial bundle from [problem]. In the witness statement of xxxx it is alleged that on the 21st September, but not which year, that on a document headed ‘Application Form’ that I applied for a Credit Token, namely a Lloyds TSB Trustcard. There is no evidence on the illegible document that has been supplied, (See Exhibit xx) that this date corresponds with my signature.

13. It is alleged by Mr xxxxx in his witness statement that the new account was processed on the computer system used by the Bank to operate credit card accounts. This document is not a primary source, but hearsay evidence

In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows:

 

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

14. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

15. The certificate Exhibit [problem] and witness statement only relate to the discovery of the record. This is not the evidence of the truth of the record or that it is a faithful and true replica of the original document of which the record is said to be a copy. There is no explanation of the circumstances leading to the destruction of the original. The claimants have stated that they did not wish to call upon a witness to corroborate this information. I therefore put it to the court that this evidence is not admissible.

16. Lloyds Bank has failed to demonstrate that it has complied with the directives of the Legal Admissibility of information. The British Standards Institution (BSI) BIP 0008 and the Code of Practice on Legal Admissibility and Evidential Weight of Information Stored Electronically directs:

‘that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.’

17. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

18. It is not denied that I have used the credit card; it is questioned whether the Bank had adhered to the legal requirements that enabled it to offer and to administer this account.

19. Lloyds Bank have supplied a copy of the terms and conditions which they state were on the back of the agreement and are a true copy of said conditions. In their Particulars of Claims [problem] state that payments should be made in accordance with clauses 8 & 9 of the agreement. Clause 9 of the conditions supplied states:

‘9. A CHANGE OF NAME AND ADDRESS

You must tell us at once if you change your name or address or if any additional card holder changes their name. If you contact us by phone, we may ask you to confirm what you have told us in writing.’

I do not consider this as a prerequisite for the repayment of any credit agreement and therefore suggest to the court that the terms and conditions supplied as a separate document due to the illegible nature of the Application Form are not the actual conditions on the form.

21. The claimant states that a default notice was issued on xxxx 2003 and refers to a computer printout as evidence. This does not state what the amount on the default notice is or how this sum is reached. Statements included in their trial bundle marked exhibit XXXX show that charges totalling £xx were added to the account between xx and xx. According to a report in April 2006 by the Office of Fair Trading (OFT) these charges are unlawful and should not be included in the Default Notice. Exhibit xx3 is the original Default Notice. The amount shown on this document is the same as that of the statement dated xxx which includes unlawful charges. The statement that the account was terminated on xxxx means that this was an unlawful rescission of the contract and that another Default Notice may not be issued.

(23. The Defendant denies that the Notice upon which the Claimant seeks to rely was a notice complying with the Act in that it contained inaccurate information as to the precise amount claimed. The Defendant therefore avers that the Notice was fatally flawed and therefore invalid.

 

9. The Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.)

 

I believe that [problem] tried to exert undue pressure on me and that there was an abuse of process in that a letter stating that they had applied for and would receive Summary Judgement see exhibit xx

'Following our Clients instructions in this matter, you advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course.

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves enduring that there are sufficient funds in your account to honour the Standing Order arrangements.

Please ensure payments are made in accordance with the Judgement Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.'.

Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from xxxx on xx October 2009 in response to my DSAR made on xxxx which stated ‘don’t have a copy’. This SAR is the subject of a complaint to the Information Commissioners Office as LTSB have failed to supply documentary evidence within the statutory 40 day perio

Edited December 3, 2009 by cymruambyth
fonts, fonts, fonts

[cymruambyth]

Hi does anyone have any comments or suggestions please? DJ gave less than a week to reply to [problem]

[citizenB]

The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

Just a thought..... The paragraph above is one that x20 has used in the past..

I cant see anything missing in your draft:)

[cymruambyth]

Thank you. Just had an amail to say that they failed in their SAR:eek:, better print it off:D

[citizenB]

Thank you. Just had an amail to say that they failed in their SAR:eek:, better print it off:D

 

:-D

 

 

Just read this in your draft...

 

 

In addition, on examining the documents supplied as part of this s.10 data request, I have found entries confirming that they do not have a copy of the agreement and an entry that says...

 

 

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'. I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

 

They really are taking the micky arent they

[diddydicky]

bloody hell- how stupid can these people get

[cymruambyth]

That's what I'm hoping the DJ will think. Also have a letter from OCTOBER, after the action was started

'Unfortunately, we have not yet been able to locate a copy of your signed agreement.........If you take this matter further,we are confident in our ability to prove (we had seen agreement before opened account)'

[cymruambyth]

I would be grateful for any comments

 

1. I make this statement in support of my defence and as a rebuttal to the statement of xxxxx

2. On xxxx I sent a request for a copy of my Consumer Credit Agreement to BLS, exhibit 1

3. On xxx I received a letter from BLS in reply to my request which stated that they didn’t have this document, exhibit 2

4. On xxxx BLS/[problem] sent an illegible application form, exhibit 3.

5. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

6. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

7. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)].

 

8. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible. It is denied that the ‘Application Form’ Exhibit xx produced by the Claimant is an agreement within the terms of the Act.

 

9. The document states clearly that it is an Application Form. Most of the document is not easily legible and does not appear to contain the prescribed terms.

10. On dd I sent a request under Civil Procedure Rule 31.14 to [problem], exhibit XXX; a follow up reminder exhibit xxxx was sent on dd. On xxxx exhibit [problem] xxxx was supplied. This is the same Application Form that had been supplied on several previous occasions. This document is illegible and therefore cannot be admissible as evidence.

11. Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from Geraldine Hutchinson on xx October 2009 in response to my request under s.10 Data Protection Act 1998 made on xxxx which stated ‘Unfortunately, we have not yet been able to locate a copy of your signed agreement’. This SAR is the subject of a complaint to the Information Commissioners Office as Lloyds TSB have failed to supply documentary evidence within the statutory 40 day period. Exhibit xxx is a reply by email from the Information Commissioner’s Office stating that ‘it seems unlikely that Lloyds TSB have complied with their obligations under the Data Protection Act on this occasion’.

12. In addition, on examining the documents supplied as part of this s.10 data request, (see exhibit xxx) I have found entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'. I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

13. As directed by the court order of xxx I received the trial bundle from [problem]. In the witness statement of xxxx it is alleged that on the 21st September, but not which year, that on a document headed ‘Application Form’ that I applied for a Credit Token, namely a Lloyds TSB Trustcard. There is no evidence on the illegible document that has been supplied, (See Exhibit xx) that this date corresponds with my signature.

14. It is alleged by Mr xxxxx in his witness statement that the new account was processed on the computer system used by the Bank to operate credit card accounts. This document is not a primary source, but hearsay evidence

In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows:

 

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

15. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

16. The certificate Exhibit [problem] and witness statement only relate to the discovery of the record. This is not the evidence of the truth of the record or that it is a faithful and true replica of the original document of which the record is said to be a copy. There is no explanation of the circumstances leading to the destruction of the original. The claimants have stated that they did not wish to call upon a witness to corroborate this information. I therefore put it to the court that this evidence is not admissible.

17. Lloyds Bank has failed to demonstrate that it has complied with the directives of the Legal Admissibility of information. The British Standards Institution (BSI) BIP 0008 and the Code of Practice on Legal Admissibility and Evidential Weight of Information Stored Electronically directs:

‘that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.’

18. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

19. It is not denied that I have used the credit card; it is questioned whether the Bank had adhered to the legal requirements that enabled it to offer and to administer this account. I admit entering into an agreement with Lloyds TSB which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the I may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

20. Lloyds Bank have supplied a copy of the terms and conditions which they state were on the back of the agreement and are a true copy of said conditions. In their Particulars of Claims [problem] state that payments should be made in accordance with clauses 8 & 9 of the agreement. Clause 9 of the conditions supplied states:

‘9. A CHANGE OF NAME AND ADDRESS

You must tell us at once if you change your name or address or if any additional card holder changes their name. If you contact us by phone, we may ask you to confirm what you have told us in writing.’

I do not consider this as a prerequisite for the repayment of any credit agreement and therefore suggest to the court that the terms and conditions supplied as a separate document due to the illegible nature of the Application Form are not the actual conditions on the form.

21. The claimant states that a default notice was issued on xxxx 2003 and refers to a computer printout as evidence. This does not state what the amount on the default notice is or how this sum is reached. Statements included in their trial bundle marked exhibit XXXX show that charges totalling £xx were added to the account between xx and xx. According to a report in April 2006 by the Office of Fair Trading (OFT) these charges are unlawful and should not be included in the Default Notice. Exhibit xx3 is the original Default Notice. The amount shown on this document is the same as that of the statement dated xxx which includes unlawful charges. The statement that the account was terminated on xxxx means that this was an unlawful rescission of the contract and that another Default Notice may not be issued.

22. I believe that [problem] tried to exert undue pressure on me and that there was an abuse of process in that a letter stating that they had applied for and would receive Summary Judgement see exhibit xx

'Following our Clients instructions in this matter, you advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course.

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves enduring that there are sufficient funds in your account to honour the Standing Order arrangements.

Please ensure payments are made in accordance with the Judgement Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.'.

[Docman]

I would be grateful for any comments

 

1. I make this statement in support of my defence and as a rebuttal to the statement of xxxxx

2. On xxxx I sent a request for a copy of my Consumer Credit Agreement to BLS, exhibit 1

3. On xxx I received a letter from BLS in reply to my request which stated that they didn’t have this document, exhibit 2

4. On xxxx BLS/[problem] sent an illegible application form, exhibit 3.

5. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

6. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

7. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)].

 

8. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible. It is denied that the ‘Application Form’ Exhibit xx produced by the Claimant is an agreement within the terms of the Act.

 

9. The document states clearly that it is an Application Form. Most of the document is not easily legible and does not appear to contain the prescribed terms.

10. On dd I sent a request under Civil Procedure Rule 31.14 to [problem], exhibit XXX; a follow up reminder exhibit xxxx was sent on dd. On xxxx exhibit [problem] xxxx was supplied. This is the same Application Form that had been supplied on several previous occasions. This document is illegible and therefore cannot be admissible as evidence.

11. Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from Geraldine Hutchinson on xx October 2009 in response to my request under s.10 Data Protection Act 1998 made on xxxx which stated ‘Unfortunately, we have not yet been able to locate a copy of your signed agreement’. This SAR is the subject of a complaint to the Information Commissioners Office as Lloyds TSB have failed to supply documentary evidence within the statutory 40 day period. Exhibit xxx is a reply by email from the Information Commissioner’s Office stating that ‘it seems unlikely that Lloyds TSB have complied with their obligations under the Data Protection Act on this occasion’.

12. In addition, on examining the documents supplied as part of this s.10 data request, (see exhibit xxx) I have found entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'. I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

13. As directed by the court order of xxx I received the trial bundle from [problem]. In the witness statement of xxxx it is alleged that on the 21st September, but not which year, that on a document headed ‘Application Form’ that I applied for a Credit Token, namely a Lloyds TSB Trustcard. There is no evidence on the illegible document that has been supplied, (See Exhibit xx) that this date corresponds with my signature.

14. It is alleged by Mr xxxxx in his witness statement that the new account was processed on the computer system used by the Bank to operate credit card accounts. This document is not a primary source, but hearsay evidence

In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows:

 

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

15. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

16. The certificate Exhibit [problem] and witness statement only relate to the discovery of the record. This is not the evidence of the truth of the record or that it is a faithful and true replica of the original document of which the record is said to be a copy. There is no explanation of the circumstances leading to the destruction of the original. The claimants have stated that they did not wish to call upon a witness to corroborate this information. I therefore put it to the court that this evidence is not admissible.

17. Lloyds Bank has failed to demonstrate that it has complied with the directives of the Legal Admissibility of information. The British Standards Institution (BSI) BIP 0008 and the Code of Practice on Legal Admissibility and Evidential Weight of Information Stored Electronically directs:

‘that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.’

18. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

19. It is not denied that I have used the credit card; it is questioned whether the Bank had adhered to the legal requirements that enabled it to offer and to administer this account. I admit entering into an agreement with Lloyds TSB which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the I may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

20. Lloyds Bank have supplied a copy of the terms and conditions which they state were on the back of the agreement and are a true copy of said conditions. In their Particulars of Claims [problem] state that payments should be made in accordance with clauses 8 & 9 of the agreement. Clause 9 of the conditions supplied states:

‘9. A CHANGE OF NAME AND ADDRESS

You must tell us at once if you change your name or address or if any additional card holder changes their name. If you contact us by phone, we may ask you to confirm what you have told us in writing.’

I do not consider this as a prerequisite for the repayment of any credit agreement and therefore suggest to the court that the terms and conditions supplied as a separate document due to the illegible nature of the Application Form are not the actual conditions on the form.

21. The claimant states that a default notice was issued on xxxx 2003 and refers to a computer printout as evidence. This does not state what the amount on the default notice is or how this sum is reached. Statements included in their trial bundle marked exhibit XXXX show that charges totalling £xx were added to the account between xx and xx. According to a report in April 2006 by the Office of Fair Trading (OFT) these charges are unlawful and should not be included in the Default Notice. Exhibit xx3 is the original Default Notice. The amount shown on this document is the same as that of the statement dated xxx which includes unlawful charges. The statement that the account was terminated on xxxx means that this was an unlawful rescission of the contract and that another Default Notice may not be issued.

22. I believe that [problem] tried to exert undue pressure on me and that there was an abuse of process in that a letter stating that they had applied for and would receive Summary Judgement see exhibit xx

'Following our Clients instructions in this matter, you advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course.

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves enduring that there are sufficient funds in your account to honour the Standing Order arrangements.

Please ensure payments are made in accordance with the Judgement Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.'.

 

cymruambyth,

 

It almost beggars belief that any claimant could make the comments the bank has on is system and carry on with the case. You must ask for costs on an indemnity basis when (not if) you win.

As for your defence, when you make reference to hearsay evidence, have you considered the Civil Evidence Act 1995? The statute will have more weight that a case from the Privy Council, which may only be persuasive in an English court.

[cymruambyth]

Thank you for that Act, i'll look it up and amend accordingly.

I guess we ask for costs at the court case, so I'll look them up.

[cymruambyth]

I had looked at the Act earlier, but wasn't sure if s. 9 nullified s.5 and s.1

Civil Evidence Act 1995 (c. 38)

9 Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

 

(4) In this section—

• “records” means records in whatever form;
  
• “business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
  
• “officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
  
• “public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.
  

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

Legislation

1 Admissibility of hearsay evidence

 

(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

(2) In this Act—

(a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and

(b) references to hearsay include hearsay of whatever degree.

(3) Nothing in this Act affects the admissibility of evidence admissible apart from this section.

(4) The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section.

 

Supplementary provisions as to hearsay evidence

 

5 Competence and credibility

 

(1) Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is shown to consist of, or to be proved by means of, a statement made by a person who at the time he made the statement was not competent as a witness.

For this purpose “not competent as a witness” means suffering from such mental or physical infirmity, or lack of understanding, as would render a person incompetent as a witness in civil proceedings; but a child shall be treated as competent as a witness if he satisfies the requirements of section 96(2)(a) and (b) of the [1989 c. 41.] Children Act 1989 (conditions for reception of unsworn evidence of child).

(2) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness—

(a) evidence which if he had been so called would be admissible for the purpose of attacking or supporting his credibility as a witness is admissible for that purpose in the proceedings; and

(b) evidence tending to prove that, whether before or after he made the statement, he made any other statement inconsistent with it is admissible for the purpose of showing that he had contradicted himself.

Provided that evidence may not be given of any matter of which, if he had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.

[Docman]

I don't think S9 applies. The government may have a large shareholding in Lloyds but it is still a limited company and IMO therefore doesn't fall into the public utility exemption.

 

You will need to summarise your costs and send this summary to the claimant a few days before the hearing. You ask for costs immediately after winning but before you leave the judge in the courtroom. Normally, the judge may award you about 2/3rds of what you are seeking but on an indemnity basis, you can have the full amount. In effect, it a penalty imposed by the court because of the claimant's behaviour in bringing the case at all.

[cymruambyth]

Thank you

[cymruambyth]

Hi, should I include more legal references as this WS is also my defence?

Thank you

[cymruambyth]

Bump please,this has to be posted on Tuesday

[iOiO]

Hi Cymru

 

Take a look at this rather excellent defence (which can be adapted for your witness statement) penned by the very eloquent and knowledgeable BRW... I'm sure you will find lots of useful extras in there

 

In the XXX COURT

Claim number XXXXXXXX

 

Between:

 

NASTY BANK

Claimant

 

and

 

CAGGER

Defendant

 

D E F E N C E

 

1. I XXXXXX am the Defendant in this action and make the following statement as my Defence to the above Claim made by NASTY BANK.

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present because, amongst other things:

 

4. The Claim Form was not addressed correctly. Please see my Letter to the Court Manager dated 06/10/2008 that accompanied my Acknowledgement of Service. This inexplicable error on the part of the Claimant’s Solicitors (who had thus far not had any problem addressing letters correctly), has left me with less time than normally allowed to prepare my Defence and Counter-Claim. Indeed, were it not for an unknown good Samaritan, the Claim Form may not have reached me in time to submit my Acknowledgement within the 14 days from legal Date of Service (based on the outbound franked postal date).

 

5. The Claimant’s particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to, or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written Agreement referred to, nor the method by which the Claimant calculated any outstanding sums due, nor any other matters necessary to substantiate the Claimant's claim.

 

(b) A copy of the purported original written and properly executed Regulated Credit Agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, does not appear to have been served attached to the claim form.

 

© A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

(d) A copy of the required valid Default Notice does not appear to have been served attached to the claim form.

 

(e) Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

 

The Build Up to this Action

 

6. In mid 2007, my family suffered a near calamitous series of health problems, resulting in the hospitalisation of my Mother (Mrs XXX Senior), my Daughter (Miss XXX) and then my Wife (Mrs XXX). Our lives were turned upside down in the space of a few weeks, and matters have been hard ever since owing to the requirement that I remain close to home instead of seeking a higher income away from home as would normally be the case. Witness statements will be provided, as required, to verify all that I say. Our small business suffered as a consequence, and cash flow became very hard indeed. Nevertheless, we are adapting to the new situation, and most payments to Creditors were still made, albeit slightly later than usual. Please see NASTY BANK 1997-2008 Card Payment History (XXX-001). This confirms in the 3 Years leading up to these events, virtually all Payments were Paid before the due date. All were presented for Payment on-line via Debit Card, and instantly Authorised on-line and in real time.

 

7. The Claimant’s on-line system, however, elects to register an instant Payment only 24 hours after Authorisation. That is slower than some of my Paper Cheques used to take to Write, Post and be opened at the Claimant’s Address and still be added to the Account manually. See the above Payment History, as it shows that many Cheques took just 1 Day to be sent and Registered against the Account. This is backed up by my Statements that were all stamped by Date of actual Payment. These Statements and Payment Stamps are all readily available as Evidence, should they be needed.

 

8. However, the Claimant elected to penalise me for the above short period of minor Payment delays, despite the fact that I made it clear the delays were not without reason, and could be explained. Please see my letter to a Nasty Banker dated 22/11/2007 (XXX-002), in which I advised her of the background to events.

 

9. On 19/11/2007, the Claimant decided to cut the Credit Limit on the Card, and raise Interest Rates to help the situation. However, the Claimant neglected to allow sufficient time for the proper notification of the lower Credit Limit to reach me, with the result that on 21/11/2007, a key Payment to XXX, was declined at a very difficult time in our Cash Flow. Please see the email from XXX in the Accounts Department dated 21/11/2007 (XXX-003).

 

10. This Payment rejection caused acute financial embarrassment, for no obvious reason that I could see. I immediately checked the Account on-line and it confirmed the Credit Limit was still £6,700.00, leaving more than sufficient Credit to settle the Bill of just £235.00. I telephoned the Claimant, and was informed that my Credit had been cut to £6,100.00, despite the £6,700.00 Limit that their on-line system was showing on my Computer Monitor as the Call was in progress. During the Call, the Claimant’s employee refused to allow the Payment to be Authorised, confirmed by the Claimant’s own Call Log (from Data Subject Access Request).

 

11. With already tight Cash Flow, the money for the above Bill had to come from somewhere, because that Key Business facility could not be allowed to go off-line. This caused a further Cash Flow restriction that ultimately delayed my December Payment to the Claimant. That Payment went overdue by 19 Days, although the Claimant maintains it was 20 Days, despite the fact that I have an Original Screen Shot of the Instant Debit Card Payment Transaction that is clearly dated 03/01/2008 (XXX-004).

 

12. During this difficult time, some Creditors were considerably less sympathetic than others. From July 2007 until the present day, we have received what can only be described as a flood of harassment telephone calls from a number of groups. Initially the main bulk of the Calls seemed to originate from the Claimant or their Agent’s Call Centres. Both were active until at least April this year (that we are aware of). Actual numbers are hard to quantify, as many inbound Callers deliberately withhold their Telephone Numbers, the Claimant included. Hidden number Calls from the Claimant and their Agents have been positively confirmed via their own Call Logs supplied in response to my partial response Data Subject Access Request.

 

13. Please also refer to our own Telephone Harassment Call Log (XXX-005), to cross-check how the Claimant’s Calls were matched to otherwise unknown calls detailed in our own records. This logs only some of the Calls known to have been made, or suspected to have been made, by the Claimant and their agents. Many of the Harassment Calls received during 2007 were not fully logged, although all Calls from the start of 2008 have been very carefully logged.

 

14. The above Account Payment History and Harassment Call Logs show the Family Health Events in context. It can be seen that 11 Years of Payment History was let down by a short period when events were out of my control. Once those issues were over, it can be seen that my Payments went quickly back to normal.

 

15. On, or just before, 31/12/2007, the Claimant passed my details to a third Party group called Power2Annoy, who wrote to me implying that I was a “hard to locate” individual and that the Claimant had assigned my Account to them. That accusation was totally without foundation. I later realised this Letter was just part of the harassment campaign that the Claimant had elected to deploy against me. I can only assume this was in the misguided hope that it would somehow smooth the flow of Payments to them. Nevertheless, the upset this caused was significant, as it meant I could not stray far from the Home, as I could not allow a Doorstep Caller to visit in my absence. The potential distress this might cause could have had a major impact on my Mother’s fragile health, let alone my Wife’s already strained nerves.

 

16. Unfortunately, the Claimant continued to penalise me, with the result that over a 6 Month period, they steadily increased the Interest Rate on the Card from the long standing 15.39% (1.20%pcm), to 16.49% (1.28%pcm) then to 20.41% (1.56%pcm). The Claimant admits that they would also have cut my Credit Limit still further, had they only had sufficient space in the Balance to allow it (from Data Subject Access Request).

 

17. Despite quickly making a second Payment in January 2008, well before that Month’s Payment was Due, the Claimant nevertheless elected to raise my Interest Rates once again, this time to the final Rate of 28.02% (2.08%pcm). This escalation was the straw that broke the camel’s back, and I could see that it would become impossible to revert to making Payments on time if this Penalty Rate was allowed to continue for the likely 12 Months that I had been advised would be the minimum period before review and possible reduction. Please see the earlier Letter from Another Nasty Banker dated 03/12/2007, when it was stated that once Rates were increased, they would stay at the new level and could not be reviewed again for 12 Months, and only then if I made contact to request a review.

 

18. By this time, Harassment Telephone calls had escalated yet again. In an effort to put a stop to this, on 26/03/2008, I sent the Claimant a formal warning that I required all communication from them to be in writing only. Harassment Telephone Calls had to stop. This Warning was delivered at 14:12 on 27/03/2008 to their Registered Office when it was signed by “Nobby” (XXX-006).

 

19. The Claimant later apologised for these above Calls, in a letter from Another Nasty Banker dated 04/04/2008.

 

20. Interest Rates at the highest level of 28.02% were quite simply unaffordable. I therefore had no option but to investigate the validity of the Agreement to which I thought I had been bound for the last 11 Years. It was vital that I established if the Claimant had a right to impose such harsh increases in the cost of this finance.

 

 

Original Consumer Credit Act Section 78(1) Request

 

21. I therefore raised a formal Dispute with the Claimant on 16/04/2008, when I submitted a request to receive a true copy of the properly executed Regulated Credit Agreement, as is my Statutory Right pursuant to Section 78(1) of the Consumer Credit Act 1974. This request was received by “Bell-end” at 11:58 on the 17/04/2008 at their Registered Office in XXXX (XXX-007).

 

 

Consumer Credit Act Section 78(1) Response invalid

 

22. On 30/04/2008 the Claimant sent me a poor Copy of what looked like an Application Form, together with some Terms that were neither current at the time the Agreement was allegedly taken out, and nor were they a copy of Current Terms and Conditions. Specifically, the Penalty Charge Rate was set at £20.00, which is no longer current, and the Terms mention the Data Protection Act 1998, which could not have been correct for Terms dating from 1997. Furthermore, the Cash Advance limit was also stated as being £200.00, when the Card started with a Cash Advance limit of £100. The Claimant had therefore failed to comply with my Section 78(1) Request.

 

23. The Application Form had no sign of any Prescribed Terms, and it did not appear to have been signed by the Claimant, at least not where their Signature was required. No attempt had been made to hide this area, suggesting it had never been signed. This Document was not the true copy of the properly executed Regulated Credit Agreement that I had requested, and the Terms supplied were wholly irrelevant to a Section 78(1) Request.

 

24. The Claimant remained in default of my Section 78(1) Request thereafter. The now alleged Account became unenforceable at law on 06/05/2008, until such time as this default on their part is corrected. I stopped Payments as is my right when a Creditor is unable to demonstrate that an Agreement exists within the Statutory time.

 

25. Despite the fact that Section 78(6) that makes it clear that if a Creditor fails to comply with Section 78(1), then they are not entitled, while the default continues, to enforce the agreement, I was dismayed to find that demands for Payment simply escalated. The Claimant also continued to add Interest and Penalty Charges to the alleged Account.

 

26. On 04/06/2008, I received a letter purporting to be a Default Notice, itself dated 01/06/2008 (a Sunday), stating that I owed Arrears of £313.00. It is averred that the document is not compliant with the Consumer Credit Act 1974 nor Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. The reasons of which will be set out below from 60 onwards. Nevertheless, this Notice was issued whilst the Claimant was restrained from doing so by virtue of Section 78(6). The consequences are clear, insofar that the Claimant would not have a right of action while their Section 78(1) default continues.

 

27. The above is also not in keeping with their obligations under the Office of Fair Trading (OFT) Debt Collection Guidelines. As a holder of a United Kingdom Credit Licence, the Claimant is duty bound to honour the OFT guidelines. The Claimant was guilty of several breaches of these guidelines, specifically:

 

2 Unfair Business Practices

 

Physical/psychological harassment

 

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

 

2.6 Examples of unfair practices are as follows:

 

a. contacting debtors at unreasonable times and at unreasonable intervals (i.e Telephone Harassment).

 

b. using more than one debt collection business at the same time resulting in repetitive and/or frequent contact by different parties (i.e. Power2Annoy and NASTYSCUM DCA).

 

h. ignoring and/or disregarding claims that debts have been settled or are Disputed and continuing to make unjustified demands for payment.

 

28. On 10/06/2008, I again wrote to the Claimant, to remind them of their duty to supply me with a true copy of the properly executed Regulated Credit Agreement (XXX-008 ), together with the terms applicable. I also reminded them of the constraint this imposed in terms of being able to issue a Default Notice. I also warned them that their Default Notice was invalid in any event. I also ensured that it reached them in sufficient time to allow them to reconsider their proposed actions. This letter was delivered at 10:01 on 11/06/2008 to their Registered Office, and signed for by “A Bloke with a Syrup”.

 

29. In view of the Default Notice, my above letter also included a request under CPR for a range of information to help me defend myself in the event that the Claimant intended to press ahead with vexatious legal action despite my warnings.

 

30. On 18/06/2008 I received a letter from a Nicer Nasty Banker, advising me that they had received my above letter and had escalated the issue as they were again aware that I was dissatisfied, and I was assured that I would receive a response as soon as possible. However, I now feel this letter simply procured my inactivity whilst behind the scenes they were pressing ahead to Terminate the alleged Account, albeit on the back of an invalid Default Notice thus denying them any Section 87 benefits.

 

31. On 24/06/2008 I received a Notice of Cancellation letter, itself dated 22/06/2008. This confirmed that they had, indeed, gone ahead to Terminate the alleged Account. This was despite my timely warning on the validity of the above Default Notice, and despite their own constraint by virtue of Section 78(6). The actual date of Termination appears to have been the 18th of June, as I later received a standard Card Statement dated 19/06/2008 that had already marked the alleged Account as being Cancelled. The final balance on that Statement was £6,408.95, although that total included earlier unlawful Penalty Charges, and additional Charges and Penalty Interest added whilst the alleged Account was in Dispute.

 

32. Also on 24/06/2008 I received a letter from NASTYSCUM Debt Collecting Agency (DCA), followed shortly by a new campaign of Telephone Harassment (BRW-005). This letter indicated that the alleged Debt matched the £6,408.95 suggested by my final Card Statement, but NASTYSCUM DCA had inflated that by an additional £1,025.43 making a new alleged Total of £7,434.38. I believe such a fee goes against the OFT Debt Collection Guidelines:

 

2.10 Charging for debt collection

 

a claiming collection costs from a debtor in the absence of express contractual or other legal provision.

 

33. NASTYSCUM DCA were also asking for the full Payment of the alleged Debt, which was not an option now open to either them or the Claimant, given that the alleged Account had been Terminated in circumstances which then prohibited anyone from enjoying the benefits of section 87.

 

34. On 30/06/2008 NASTYSCUM DCA threatened Legal Action.

 

35. On 01/07/2008 I sent NASTYSCUM DCA a Section 78(1) Request to see a true copy of the properly executed Regulated Credit Agreement that entitled them to enforce this alleged Debt.

 

36. On 05/07/2008 I received from NASTYSCUM DCA a further copy of the same Application Form that the Claimant had originally sent me. Again with no Prescribed Terms, and this time with no Terms at all either current, original or somewhere in between (as the Claimant had sent).

 

37. On 09/07/2008 the Claimant sent a very strange letter drafted by a Really Hostile Banker, that seemed to be saying a simple 1997 Application Form with no Prescribed Terms was capable of being a properly executed Regulated Credit Agreement. This totally ignored Section 127(3) and the considerable weight of Case History that confirms that is not the case at all. The Claimant also made it clear they would not be responding to my CPR Request.

 

38. On 12/07/2008 NASTYSCUM DCA sent a further demand for Payment, despite the fact that they were also now in default of a s78(1) Request and constrained by Section 78(6) as well.

 

39. On 15/07/2008 I sent a final letter to the Claimant, pointing out the error of their ways, and submitting a Data Subject Access Request together with the Statutory Fee of £10.00. This was sent because the Claimant had refused my CPR Request, leaving me only one way to obtain the Data I may need to Defend myself in the now likely event the Claimant wished to embark upon vexatious and unlawful legal action.

 

40. On 19/07/2008 I received yet another letter from NASTYSCUM DCA, demanding full payment despite their Section 78(6) constraint, and threatening that they would soon instruct their Lawyers, namely Grabbit and Runne, to issue me with a Statutory Bankruptcy Demand. This is another blatant disregard to the OFT Guidelines, specifically:

 

2.4 False representation of authority and/or legal position

 

b falsely implying or stating that action can or will be taken when it legally cannot…

 

41. There was no evidence to suggest that NASTYSCUM DCA had been given the absolute Assignment that was required to proceed with such action in isolation. The Claimant was still the Creditor as far as I was aware at the time.

 

42. On 30/07/2008 I received a brief letter from the Claimant’s Solicitors, namely BigFatFees. My Address appeared correctly, and the letter arrived in good time. However, the Solicitor claimed a letter from me dated 15/07/2008 did not reach the Claimant until 21/07/2008. This is not correct, as I have positive proof that signed Delivery took place at the Claimant’s Registered Office on 16/07/2008, thus arriving in good time to allow the Claimant time to avoid Terminating the Account unlawfully (XXX-009).

 

43. On 07/08/2008 I received a more detailed letter from the Claimant’s Solicitors, this time going to great lengths to explain how an Application Form with no Prescribed Terms could be enforceable. Again, totally ignoring Section 127(3) and Case Law that set a precedent far higher than the High Court ruling to which they referred. Furthermore, the Solicitor appeared to be confusing what I had actually said to the Claimant, and so much of their letter did not merit a response. They specifically quoted paragraphs from a recent Court Case, however, the paragraphs they quoted themselves mis-quoted Legislation, and therefore had absolutely no legal meaning that I could fathom. The Solicitors again made it clear that they would not be responding to the CPR Request made to their Client in my letter of 10/06/2008 (XXX-008 ).

 

44. I noted that the Claim Total had by then reduced to a new lower figure of £6,538.75. That figure appeared to confirm that the unlawful Debt Collection Costs imposed by NASTYSCUM DCA had been removed. However, the Claim total was now higher than the final 19/06/2008 Statement showing a balance of £6,408.98. The difference appears to relate to an unexpected 19/07/2008 Statement disclosed via Data Subject Access Request that appeared to have added additional Interest post Termination, despite the fact that the Account had been Terminated on 18/06/2008.

 

45. The above Letter also claimed that the Claimant had no obligation to retain Original Copies of Statutory Documents such as live Regulated Credit Agreements, despite the ample Case History and CPR Practice Directions that require Original Copies to be available in Court. This claim also goes against the Claimant’s anti-Money Laundering obligations, and goes against plain common sense when dealing with any Contract that is based upon a Written Agreement. Furthermore, it would be hard to get by in life without Original Copies of Birth Certificates, Marriage Certificates, Exam Certificates, Premium Bond Certificates, Contracts of Employment, Landlord Rental Agreements or Winning Lottery Tickets. It is only reasonable to require large Financial Institutions to retain Original Copies of written Regulated Credit Agreements and key Documents such as Default Notices that must be set out in a prescribed form.

 

46. On 08/08/2008 I received an incomplete response to my Data Subject Access Request. The Claimant had neglected to include a complete Account, namely a 2005 £20,000.00 NASTY BANK Personal Loan with PPI. As that Account is the subject of a Counter-Claim outlined below, the omission of this key Data is going to make it much harder to submit the detailed Counter-Claim necessary to present my case effectively.

 

47. The above Subject Access Request response also included a further copy of the Application Form mentioned above, again with no sign of any Prescribed Terms. That now made three copies of the same Application Form, one in response to my original Section 78(1) Request to the Claimant, a 2nd Copy in response to my Section 78(1) Request to NASTYSCUM DCA, and finally a 3rd Copy now in response to my Data Subject Access Request to the Claimant. None of these three copies included any Prescribed Terms, nor did they include any sign of Terms and Conditions applicable to when the Application Form was signed in 1997.

 

48. Right up until the Termination of the Account on 18/06/2008, the Claimant had completely failed to produce any evidence that a properly executed Regulated Credit Agreement either existed, or had ever existed. My reasonable conclusion was that no actual Agreement had therefore ever existed. It appeared that the Claimant had gone ahead without obtaining the very document they needed to bind me to their Terms. Until 2008, I was wholly unaware of this apparent fact.

 

49. Sadly, on 07/09/2008, owing to a heavy workload and difficult economic conditions requiring that I needed to avoid employing a Roofing Specialist, I suffered a nasty fall from some Scaffolding whilst trying to effect repairs to our Home’s roof ready for Winter. Most of the injuries are relatively minor, but I am left with a broken right arm that is adding to our present difficulties. I have been signed off work for 3 Months by a Doctor. However, being Self-Employed, taking time off is not a practical proposition. In addition to this, my Mother is in need of 24x7 Care, and that care is currently being provided by my Wife. My Mother is in receipt of 24x7 DWP Attendance Allowance, and my Wife is in receipt of 24x7 DWP Carer’s Allowance. DWP references will be provided in our Witness Statements.

 

 

The relevant Act of Parliament in this Case

 

50. Firstly I will address the issue of which Act is relevant in this case, to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

51. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1)

of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

 

52. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

 

 

The Request for Disclosure

 

53. Further to the above, I have tried via Letter and Data Subject Access Request to obtain all the information that I feel I will need to present a well crafted Defence. I did request from the Claimant disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any Default or Termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on.

 

54. To Date the Claimant has ignored my request under the CPR and I have only received a partial response via Data Subject Access Request. As a result, it has proved difficult to compose this Defence without disclosure of the information requested, especially given that I am a Litigant in Person.

 

 

Document Retention and the Claimant’s failures

 

55. The Claimant would be aware of the fact that they would need to be able to produce a copy of the original Agreement should they ever need to take legal action to enforce the Agreement. The Claimant would also need to be able to produce a true copy of the properly executed Regulated Agreement upon request pursuant to Section 78 (1) Consumer Credit Act 1974. It therefore stands to reason that the Claimant must surely hold such document, and yet has either chosen not to disclose it despite many requests, or has lost this document, or never had it in the first place.

 

56. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b)). As a Running Credit Agreement remains active until the Agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the Agreement/application) would be "live" until the account is paid, or terminated. Thus, the full file should be retained for at least six years after that.

 

57. This interpretation fits in with Inland Revenue legislation that requires prime documents are to be retained for a period of six years, after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5) (a) and (5) (b)."

 

58. Finally, key documents and Application Forms must also be kept until 5 years after that business relationship has ended, if the Claimant is to comply with the requirements of The Money Laundering Regulations 1993, 2003 and 2007.

 

 

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

59. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

60. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

61. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the Agreement and a term stating how the Debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

62. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

63. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

“33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

64. If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

65. Notwithstanding point 64, The Agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible.

 

66. I now wish to make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch).

 

67. In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach…

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…"

 

68. The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence.

 

69. Therefore, the Claimant must provide an original copy of the Agreement compliant with the regulations as laid out in points 59 to 69 of this Defence to have any right of enforcement. This is the Document that I requested many times, all to no avail.

 

 

The Court’s Power of Enforcement

 

70. The Court’s powers of enforcement where Agreements are improperly executed by way of Section 65 are themselves subject to certain qualifying factors. Under Section 127(3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the Court to be able to enforce the Agreement where Section 65(1) has not been complied with. Section 127(3) The Court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of Agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the Prescribed Terms of the Agreement was signed by the Debtor or hirer (whether or not in the prescribed manner).

 

71. Furthermore the Courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the Agreement cannot be enforced.

 

72. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

“28. I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated Agreement is an Agreement between an individual Debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated Agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the Agreement must be in a prescribed form containing all the Prescribed Terms. The Prescribed Terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the Agreement is not enforceable against the Debtor save by an order of the Court: Section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under Section 65. The Court 'shall dismiss' the application if, but only if, the Court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The Court may reduce the amount payable by the Debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the Agreement or security.

 

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 and 63, Section 127(4) precludes the Court from making an enforcement order.

 

30. These restrictions on enforcement of a Regulated Agreement cannot be sidestepped... In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated Agreement is not enforceable unless a document containing all the Prescribed Terms is signed by the Debtor.

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a Court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a Debtor might be enriched consequential upon non-enforcement of an Agreement pursuant to the statutory provisions. It was not open to the Court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

73. The judgment of Lord Nicholls of Birkenhead clearly sets out that without a Credit Agreement the Claimant's case cannot succeed.

 

74. I therefore respectfully request that the Court order the Claimant produce the Original signed Agreement before the Court to show the form and content of it and that it complies with the Regulations referred to in this Defence, otherwise the Court’s powers of enforcement are surely limited in these circumstances.

 

75. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32.

 

76. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

77. The Defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss of the original, or destruction of the original Credit Agreement was central to the case and the Defendant is under the belief that the outcome of the case was that where the original Agreement could not be produced the claim could not succeed and that the appeal was successful.

 

78. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 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

 

79. Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

80. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

81. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the Defendant.

 

82. Notwithstanding point 81, I put the Claimant to strict proof that any Default Notice sent to me was valid. I 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).

 

83. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In view of this, one of my Counter-Claim below is based on this case history.

 

84. It is submitted that the above Default Notice served under s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

85. I note that the Claimant’s Particulars of Claim fail to even acknowledge service of a Default Notice as required by section 87(1) of the Consumer Credit Act 1974 before the Claimant can even consider terminating the Agreement or demanding early repayment in full.

 

86. I refer to the date of the Default Notice in my possession as being Sunday 01/06/2008. It is therefore denied that the Default Notice was received on the 01/06/2008, as the Notice was not Served in person, but was instead sent via Post. We do not receive Post on a Sunday, and I do not believe the Claimant has Post collected on a Sunday. The Notice could not therefore have been Posted on the day that it was created, thus it could not have allowed the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) Schedule 2 details of breach of Agreement and action required to remedy, or pay compensation for, the breach:

 

3 A specification of:--

 

(a) the provision of the Agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the Agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

87. Fourteen days were not allowed between the Date of Service of the Default Notice and the time laid out where the alleged breach needed to be remedied. I therefore put the Claimant to strict proof as to the Date of Service of said document.

 

88. In addition to the failure of the Default Notice to allow the prescribed time frame, I note the Default is also deficient in the following areas: Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following:

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the Agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the Agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

89. The notice fails to include the following statement in the prescribed form as shown below (note the correct use of Bold Text):

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”

 

90. The Default Notice also fails to include the additional statement in the prescribed form as shown below:

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

91. The statements referred to in points 89 and 90 are laid out in Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561).

 

92. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

93. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

94. The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

95. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

96. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

97. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

98. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges (that are now the subject of a Counter-Claim outlined below), plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

99. For the avoidance of any doubt, in the event of an alleged breach by the Debtor, Clause 10 mentioned in 2(b) of the Claimant’s Particulars of Claim has to be completely disregarded. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

100. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on 18/06/2008. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

Conclusion

 

101. The Claimant's case should not succeed as matters stand. It is averred that the Claimant and its representatives have acted unreasonably when dealing with this Dispute. The Claimant and its representatives have subjected my family and I to a wholly unacceptable level of unwarranted Harassment Telephone Calls and additional Harassment by Letter. It is averred that such actions amount to clear Harassment, and Witness Statements will be made available should they be required to verify the often severe adverse effect this has caused. Their actions have caused an unacceptable level of distress for my family. This is especially valid since they completely ignored the fact that I had raised a genuine Dispute. The Claimant’s response failed in its entirety to comply with the Consumer Credit Act 1974.

 

102. In view of matters pleaded, I respectfully request the Court give consideration to striking out the Claimant’s case pursuant to CPR part 3.4.

 

103. If the Court considers it inappropriate to use its case management powers, it is requested that the Court order the Claimant to produce all the Original documents mentioned in my Defence before the Court. Without production of all the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

104. The Defendant requires that the Claimant provide the requested information and proofs and authenticities. The Defendant requests that the Court order that the Claimant supply the information requested.

 

105. I respectfully ask the permission of the Court to amend this Defence when the Claimant provides full disclosure of the requested documents.

 

 

Harassment

 

106. Having chased payment whilst in clear Dispute and whilst in default of my Section 78(1) request, having added additional penalty interest and unlawful charges whilst in clear Dispute, having issued a Default Notice whilst restrained from doing so by virtue of Section 78(6), having ignored my written protestations and warnings that the Default Notice was invalid, having terminated the Account unlawfully on the back of an invalid Default Notice and Default, having instructed Debt Collection Agencies whilst in clear Dispute, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this Claim, or indeed to provide a reasonable time period to investigate this matter, having totally failed to properly investigate a Dispute as required by the Office of Fair Trading (OFT) Debt collection Guidelines, and having then instigated these proceedings without any legal basis for doing so, I believe the Claimant's conduct amounts to unlawful Harassment under Section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable under the circumstances.

 

Statement of Truth

 

I XXX, believe the above Defence Statement to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

 

 

 

C O U N T E R – C L A I M

 

 

Harassment

 

107. The Defendant submits that the Claimant’s conduct outlined above amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970.

 

108. The Defendant would also like to draw the Court’s Attention the following sections from the Protection from Harassment Act 1997:

 

1 Prohibition of harassment

 

(1) A person must not pursue a course of conduct—

 

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

 

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

 

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

 

(a) that it was pursued for the purpose of preventing or detecting crime,

 

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

 

© that in the particular circumstances the pursuit of the course of conduct was reasonable.

 

2 Offence of harassment

 

(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

 

(3) In section 24(2) of the [1984 c. 60.] Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (m) there is inserted—

“(n) an offence under section 2 of the Protection from Harassment Act 1997 (harassment).”.

 

3 Civil remedy

 

(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

 

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

 

109. The Defendant would like the Court to consider the wide range of harassment issues raised above in my Defence, and consider the award of suitable Compensation as the Court sees fit.

 

 

Serious Damage to Financial Reputation and Unlawful Rescission of Contract

 

110. The Defendant would like the Court to consider the damage caused to my financial reputation caused by the reduction in my Credit Limit that was made on or before 21/11/2007, i.e. without first allowing time to properly notify me of the reduction. As outlined above (9) this event caused a key Payment to be declined when funds otherwise appeared to be available, whereupon I was forced to apologise to XXX and find alternative funds at very short notice.

 

111. On 21/11/2007, the Claimants on-line Web Site was still showing my Credit Limit at the original level of £6,700.00, confirming that the reduction had been made behind the scenes without updating either their Web Site or their client. The Claimant was, however, all too keen to upload adverse Data to the Credit Reference Agencies. On 03/06/2008, my Wife and I were turned down for a new Business Bank Account by The XXX Bank, because of adverse Data held by Experian Limited. On 06/06/2008 I obtained a Credit Report from Experian, that confirmed that the Claimant had made three Credit Checks against my name, one on 28/12/2007 and two on 16/04/2008. More seriously, the Claimant had also recorded late Payment Markers for Payments that were not due whilst in default of my Section 78(1) Request. More recently, I was also turned down for a simple Top-Up Card, which is a pre-Payment Debit Card that should be available to almost anyone.

 

112. Furthermore, the failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

113. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4 All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth substantially more.

 

114. The Defendant requests Damages to a value set by the Court.

 

 

Refund of Unlawful Penalty Charges

 

115. The Defendant would like to seek recovery of the Unlawful Charges that the Claimant has levied onto the above Account for the Defendant’s alleged failure to make the minimum payment on the due date and or for exceeding the credit limit. These Unlawful Charges total £243.00 and are outlined in the enclosed list entitled NASTY BANK Penalty Charges (XXX-010).

 

116. These default charges were applied in accordance with the standard terms of The Agreement which were:

 

(a) A penalty payable on breach of contract and thus unenforceable: and or

 

(b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (The Regulations) and therefore not binding on the Claimant.

 

117. The Defendant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

 

The Charges

 

118. The standard Terms of the Agreement in substance provided as follows:

 

(a) The Claimant would provide the Defendant with the Card. The Defendant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (The Limit) set by the Claimant. The Claimant could unilaterally change the Limit by giving the Defendant notice in writing.

 

(b) The Claimant was entitled to charge interest on the purchases and cash advances at the published rate.

 

© The Defendant was to pay the minimum payment of 2.5% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

 

(d) In addition the Claimant was entitled to charge default fees (The Charges) where the Defendant exceeded the Limit, did not pay on the due date, had a credit cheque returned or had a payment returned. The Charges are currently £8-£10. Prior to 2006 the Charges varied and were as high as £25.

 

 

The Penalty

 

119. The Charges were payable on breach of contract by the Defendant.

 

120. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Claimant in relation to the Defendant’s transgressions.

 

121. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

122. At all material times the Defendant was a consumer within the Regulations.

 

123. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

 

124. Without prejudice to the burden of proof, the Defendant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(2) The Charges were a penalty for breach of contract.

 

(3) The Charges exceeded the costs which the Claimant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

 

(4) Accordingly the Charges were a disproportionate charge incurred by the Defendant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(5) As the Claimant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

 

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Claimant in a way which was inequitable.

 

125. Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

 

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

(3) The Charges are correctly described as default charges by the Claimant in the published tariff of charges.

 

126. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

127. The Claimant wrongly applied Charges to the Account totalling some £243.00 between 15/11/2002 and 20/05/2008, as outlined in the attached NASTY BANK Penalty Charges (XXX-010), and Key extracts from the Claimants Terms and Conditions from July 2007 can be viewed within NASTY BANK Schedule One (XXX-011).

 

128. The Claimant wrongly reported the Account status to third-party data controllers including, but not limited to: Experian, Equifax and Callcredit.

 

129. The Defendant wishes to claim Contractual Interest in restitution, at the final rate charged on my Account, namely 2.02%pcm (28.02% annual) as shown on the last Statement dated 19/06/2008:

 

Unlawful Charges £243.00

Interest 28.02% £218.42

 

Total 28.02% Claim £461.42 on 24/10/2008

 

Daily Rate £0.35 To be added until Claim Settled

 

130. In addition, the Defendant wishes to Claim Interest under Section 69 of the County Courts Act 1984 at the rate of 8% per annum:

 

Unlawful Charges £243.00

Interest 8.00% £62.60

 

Total 8% Claim £62.60 on 24/10/2008

 

Daily Rate £0.07 To be added until Claim Settled

 

 

Repayment of 2005 Mis-Sold NASTY BANK Loan Personal Protection Insurance (PPI)

 

131. The Defendant regrets that I have only limited information to present at this stage, owing to the Claimants extreme reluctance to disclose any information in relation to the NASTY BANK Loan Account in question.

 

132. The Defendant therefore respectfully asks permission of the Court to amend this Counter-Claim when the Claimant provides full disclosure of all the relevant details and documentation.

 

133. The Regulated Loan in question, namely NASTY BANK Reference 12345678, involved a £20,000.00 personal loan that was offered to me sometime in March or April 2005. What I was unaware of at the time, was the wide-spread mis-selling of Payment Protection Insurance (PPI), and the fact that this Loan was specifically promoted with a lump sum PPI policy payable up front, that generated a very significant profit for the Claimant for very little outlay.

 

134. The Defendant now believes that the Loan Offer was specifically created and crafted as a vehicle to sell PPI. In effect, PPI was mandatory for the Loan to be accepted. The Claimant exploited their position as my agent, and abused their fiduciary duty by not declaring a clear Conflict of Interest: their desire for significant and easy profit overcame their duty to act responsibly when underwriting a policy of insurance. Their Client’s actual insurance requirements were never considered at any stage.

 

135. The Claimant was always made aware that I was Self-Employed. Thus, even before offering me the Loan, they would have been quite aware that the PPI Policy in question was wholly worthless and totally unsuitable for my needs.

 

136. The Defendant is now quite convinced that I was mis-sold this PPI policy for the following reasons:

 

(a) Underwriting a Policy of Insurance: the Claimant obviously made no attempt to consider my needs before offering me this Loan with PPI. Nor were any attempts made to consider my needs on the occasion when the details of the loan were discussed. The Claimant’s employees failed to check my personal circumstances at the time of the sale, which they were under an obligation to do when underwriting a Policy of Insurance. If they had done so, they would have quickly realised that the PPI policy was wholly useless to me. At no time was any attempt made to ascertain if the product provided was fit for purpose, suitable for my needs or if indeed it was required at all. Any simple check would’ve shown that I have always been Self-Employed during my entire time dealing with NASTY BANK.

 

(b) Alternative Insurance Cover: the Claimant’s Sales Advisor did not ask me if I had any alternative arrangements for insurance cover. At the time, I already had ample Life and Critical Life Cover with the XXXX so this PPI cover was both very expensive and entirely redundant.

 

© Significant Policy Exclusions: I was most definitely not informed that the PPI policies could contain certain exclusions which could affect me and my ability to claim on the policies if I should need to. Additionally I was never told that Pre Existing Medical Conditions could invalidate my policy and I was never asked if I had any Pre Existing Medical Conditions. I do in fact have a considerable number of ailments from motorcycle accidents and injuries sustained whilst Serving as a member of HM Forces, ranging from broken legs, badly damaged knees, elbows, hips, ribs and shoulders, plus at least two skull fractures. I now believe that I would have been excluded from Policy Cover by virtue of at least one of the above existing conditions.

 

(d) Widespread PPI Mis-Selling: I have since become aware of the widespread mis- selling of PPI by many financial institutions, following recent media coverage and recent OFT and FSA investigations regarding the mis-selling of PPI. I believe this is borne out by the points raised above. I am also aware that the question of PPI cover is the subject of an ongoing inquiry by the Competition Commissioner.

 

(e) Wholly Inappropriate PPI Selling Bonuses: I also now understand that some employees are paid higher bonuses if they get prospective Consumers to take out PPI with loans. How can the best interests of the customer possibly be met, if there is a clear conflict of interest between their responsibilities to me, and the drive of their employees to sell PPI whether it is suitable or not in order to receive bonuses?

 

(f) True Nature of Single Premium PPI Not Explained: No explanation was forthcoming from any advisor on any occasion on the full extent of single premium PPI policies, or the fact that they would offer little or no refund if the loan was settled early or if the insurance was cancelled. There was also no explanation that the cost of the PPI premium would be added to the total cost of credit and interest added for the full term of the agreement. I believe this practice is unlawful. I now believe that the single premium PPI policies attached to loan accounts were extremely unfair, totally unreasonable and of very limited protection value. I am therefore requesting a full refund of all costs including the full single PPI premium that has been paid, plus any interest added to this premium if this can be established.

 

137. The Defendant is aware that the Claimant has since sold their Rights in relation to this Loan to another financial institution. However, that does not alter the fact that the PPI policy was added to the Loan from the very outset and the unlawful act of mis-selling occurred at the very outset. It is only reasonable that the Claimant should repay this sum from the proceeds of their sale of the Loan to another group. The liability for this mis-selling rests with the Claimant, as the PPI Policy, and the profits from that mis-selling, were effectively at least partly received by them from whatever sum they managed to obtain from the sale of the Loan. If there is a shortfall, that is unfortunate, but does not alter where the liability rests.

 

138. Furthermore, it has since come to my attention that the above Cancellable Loan Agreement was itself invalid and wholly unenforceable, owing to a major failure by the Claimant to issue an Executed Copy and Cancellation Rights Notice within the Seven Day time limit, as they were required to do by virtue of Section 63(3) and Section 64(1b) of the Consumer Credit Act 1974.

 

139. The cancellable Agreement concerned was executed upon my Signature, as it was pre-signed by the Creditor. Thus the Section 64 Seven Day time limit for sending out a Cancellation Notice started the moment I put pen to paper and Signed/Dated the Agreement. The Claimant could've avoided this by not pre-signing it. However, they were in such a headlong rush to mis-sell the highly profitable PPI, their Loan Agreement came out to me not just pre-Signed, but pre-Printed with a facsimile Signature and Date.

 

140. Cancellation Rights did not appear to concern the Claimant. Had they sent out an un-signed Agreement for me to Sign first, then it would only have been Executed upon their own Signature on return from me. That simple step would've afforded them at least the full Seven Days to play with in order to post the required Cancellation Rights Notice. Furthermore, the Seven Days would only have started from the Day they had Signed to Execute the Agreement. By pre-Signing the Agreement, they immediately reduced any time available to send out a Cancellation Notice to significantly less than Seven Days, i.e. allowing for Postage from me to them, and then any Cancellation Notice from them to me. However, it is clear that no attempt was even made to send out a Cancellation Notice, as confirmed by their Loan Confirmation letter that followed shortly after the Executed Agreement was received by them. This Letter made absolutely no mention of any Cancellation Notice, confirming that none had been sent out within the required Seven Days.

 

141. The Agreement was therefore not properly executed by virtue of Section 63(5), and so could not be Enforced by virtue of Section 127(4a) and Section 127(4b), as they failed to comply with Section 63(3) and failed to comply with Section 64(1b).

 

142. The PPI Policy amounted to a lump sum amount of £3,991.60. I hereby wish to reclaim that sum, together with Contractual Interest in restitution at 7.9% from 15/04/2006 until the date of repayment.

 

143. The Defendant therefore wishes to claim Contractual Interest in restitution, at the Loan Rate of 7.9%, that being the rate charged on this single sum PPI Premium from the very outset:

 

PPI on 15/04/2005 £3,991.60

Interest 7.9% £1,096.33

 

Total Claim £5,087.93 on 24/10/2008

 

Daily Rate £1.10 To be added until Claim Settled

 

144. In addition, the Defendant wishes to Claim Interest under Section 69 of the County Courts Act 1984 at the rate of 8% per annum:

 

PPI on 15/04/2005 £3,991.60

Interest 8% £1,110.21

 

Total Claim £1,110.21 on 24/10/2008

 

Daily Rate £1.12 To be added until Claim Settled

 

 

Data Protection Act 1998

 

145. Additionally, the Defendant requests an order from the Court under Section 14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this Agreement, that may cause prejudice or further damage, from the Claimant’s internal records and order the Claimant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies.

 

146. Section 14(1) of the Data Protection Act 1998 is reproduced below:

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

Court Fees

 

147. The Defendant further claims the refund of any Court fees that may be applicable. The value cannot be established at this stage, as I am not yet in receipt of the necessary information to establish the full extent of my Counter-Claim.

 

 

Statement of Truth

 

I XXX, believe the above Counter-Claim Statements to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

Edited December 9, 2009 by citizenB

[cymruambyth]

Thank you, I'll have a play when I get home from work.

[citizenB]

I am assuming we are still working on the draft in post 284

 

 

That's what I'm hoping the DJ will think. Also have a letter from OCTOBER, after the action was started

'Unfortunately, we have not yet been able to locate a copy of your signed agreement.........If you take this matter further,we are confident in our ability to prove (we had seen agreement before opened account)'

 

I would be grateful for any comments

 

1. I make this statement in support of my defence and as a rebuttal to the statement of xxxxx

 

2. On xxxx I sent a request for a copy of my Consumer Credit Agreement to BLS, exhibit 1

 

3. On xxx I received a letter from BLS in reply to my request which stated that they didn’t have this document, exhibit 2

 

4. On xxxx BLS/[problem] sent an illegible application form, exhibit 3.

 

5. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

6. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

7. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)].

 

8. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible. It is denied that the ‘Application Form’ Exhibit xx produced by the Claimant is an agreement within the terms of the Act.

 

9. The document states clearly that it is an Application Form. Most of the document is not easily legible and does not appear to contain the prescribed terms.

 

10. On dd I sent a request under Civil Procedure Rule 31.14 to [problem], exhibit XXX; a follow up reminder exhibit xxxx was sent on dd. On xxxx exhibit [problem] xxxx was supplied. This is the same Application Form that had been supplied on several previous occasions. This document is illegible and therefore cannot be admissible as evidence.

 

11. Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from Geraldine Hutchinson on xx October 2009 in response to my request under s.10 Data Protection Act 1998 made on xxxx which stated ‘Unfortunately, we have not yet been able to locate a copy of your signed agreement’. This SAR is the subject of a complaint to the Information Commissioners Office as Lloyds TSB have failed to supply documentary evidence within the statutory 40 day period. Exhibit xxx is a reply by email from the Information Commissioner’s Office stating that ‘it seems unlikely that Lloyds TSB have complied with their obligations under the Data Protection Act on this occasion’.

 

12. In addition, on examining the documents supplied as part of this s.10 data request, (see exhibit xxx) I have found entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'. I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

 

13. As directed by the court order of xxx I received the trial bundle from [problem]. In the witness statement of xxxx it is alleged that on the 21st September, but not which year, that on a document headed ‘Application Form’ that I applied for a Credit Token, namely a Lloyds TSB Trustcard. There is no evidence on the illegible document that has been supplied, (See Exhibit xx) that this date corresponds with my signature.

 

14. It is alleged by Mr xxxxx in his witness statement that the new account was processed on the computer system used by the Bank to operate credit card accounts. This document is not a primary source, but hearsay evidence

 

In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows:

 

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

 

15. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

 

16. The certificate Exhibit [problem] and witness statement only relate to the discovery of the record. This is not the evidence of the truth of the record or that it is a faithful and true replica of the original document of which the record is said to be a copy. There is no explanation of the circumstances leading to the destruction of the original. The claimants have stated that they did not wish to call upon a witness to corroborate this information. I therefore put it to the court that this evidence is not admissible.

 

17. Lloyds Bank has failed to demonstrate that it has complied with the directives of the Legal Admissibility of information. The British Standards Institution (BSI) BIP 0008 and the Code of Practice on Legal Admissibility and Evidential Weight of Information Stored Electronically directs:

‘that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.’

 

18. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

 

19. It is not denied that I have used the credit card; it is questioned whether the Bank had adhered to the legal requirements that enabled it to offer and to administer this account. I admit entering into an agreement with Lloyds TSB which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the I may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part. ( you may want to remove "the" )

 

 

20. Lloyds Bank have supplied a copy of the terms and conditions which they state were on the back of the agreement and are a true copy of said conditions. In their Particulars of Claims [problem] state that payments should be made in accordance with clauses 8 & 9 of the agreement. Clause 9 of the conditions supplied states:

‘9. A CHANGE OF NAME AND ADDRESS

You must tell us at once if you change your name or address or if any additional card holder changes their name. If you contact us by phone, we may ask you to confirm what you have told us in writing.’

I do not consider this as a prerequisite for the repayment of any credit agreement and therefore suggest to the court that the terms and conditions supplied as a separate document due to the illegible nature of the Application Form are not the actual conditions on the form.

 

21. The claimant states that a default notice was issued on xxxx 2003 and refers to a computer printout as evidence. This does not state what the amount on the default notice is or how this sum is reached. Statements included in their trial bundle marked exhibit XXXX show that charges totalling £xx were added to the account between xx and xx. According to a report in April 2006 by the Office of Fair Trading (OFT) these charges are unlawful and should not be included in the Default Notice. Exhibit xx3 is the original Default Notice. The amount shown on this document is the same as that of the statement dated xxx which includes unlawful charges. The statement that the account was terminated on xxxx means that this was an unlawful rescission of the contract and that another Default Notice may not be issued.

 

22. I believe that [problem] tried to exert undue pressure on me and that there was an abuse of process in that a letter stating that they had applied for and would receive Summary Judgement see exhibit xx

'Following our Clients instructions in this matter, you are advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course. (inclusion of word)

 

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves enduring that there are sufficient funds in your account to honour the Standing Order arrangements.

Please ensure payments are made in accordance with the Judgement Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.'.

 

1: You should put that it is a rebuttal of LTSB's/Claimant's statement of XX

 

2: I think it would be a good idea to mention that BLS are "an inhouse collection agent"

 

What other "legal" stuff were you thinking of including ?. This looks ok to me, but you might want to obtain the opinion/input of the following : foolishgirl, the shadow, supasnooper .

 

HTH

[cymruambyth]

I am assuming we are still working on the draft in post 284

 

 

 

 

 

 

1: You should put that it is a rebuttal of LTSB's/Claimant's statement of XX

 

2: I think it would be a good idea to mention that BLS are "an inhouse collection agent"

 

What other "legal" stuff were you thinking of including ?. This looks ok to me, but you might want to obtain the opinion/input of the following : foolishgirl, the shadow, supasnooper .

 

HTH

 

The legal stuff was extra information about requirements for the CCA, legibility, DNs and changing to the Civil Evidence Act.

As this is the 1st WS I've done plus it is combined with a defence I'm not 100% sure how much has to be included. I would hate to help [problem] through my ignorance;)

[the_shadow]

Apologies as I've not had time to read through all the thread but I've picked up the gist of the fact that they have microfiched the agreement and shredded possibly, the following might help if you add it into the w/s in regards the retention of the CCA.

 

Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007 and The Civil Evidence Act 1995.

 

 

S.

[the_shadow]

The requirement for the written agreement:-

 

CPR 16 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, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

 

S.

[cymruambyth]

Hi thanks Shadow. Basically it's an illegible copy of application form, defective DN (charges). This the basics of their WS

Defence/WS

1. Intro

2. Contents are correct

3. Application form became an acceptance and agreement when signed by LTSB

4. Data put onto pc by data company

5. Agreement contained t&c – amount of, frequency etc of payments

6. No need to produce original Civil Evidence Act 1995

7. Used card, see statements

8. Monthly payments complied with agreement

9. Breach by not making payments

10. DN issued

11. Pc records prove dn issued

12. Failed to remedy breach

13. A/C closed

14. Details of payments to BLS via statement

15. [problem] instructed

16. Embarrassed defence

17. CPR 31.14, issued same illeg applicn form

18. Reply to defence

19. How much still outstanding

[diddydicky]

does that defence come complete with a handful of "uppers" for the judge:D

[cymruambyth]

Here is a new draft, I'm not sure what to do about too much legal information, as a directive that I have read states that it is to be a 1st person narrative and not a legal exercise! I've also tried to incorporate stuff from BRW and think I may be going off at tangents in aneffort to include the world. (I can waffle when I speak and when I write)

 

1. I make this statement in support of my defence and as a rebuttal to the statement of xxxxx

2. On xxxx I sent a request (Exhibit xx1) to receive a true copy of the properly executed Regulated Credit Agreement, as is my Statutory Right pursuant to Section 78(1) of the Consumer Credit Act 1974 to BLS, the in-house collection agents for Lloyds TSB Bank.

3. On xxx I received a letter from BLS, in reply to my request which stated that they didn’t have this document, exhibit 2.

4. In response to this letter, on xxxx I informed BLS (Exhibit xx3) that all key documents, such as application forms must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007 and The Civil Evidence Act 1995.

5. On xxxx BLS/[problem] sent an illegible copy of what looked like an Application Form, together with some terms and conditions that were even less legible, exhibit 3. The Claimant had therefore failed to comply with my Section 78(1) Request.

6. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

7.The quality of this Application Form is so poor that it had no sign of any Prescribed Terms. This Document was not the true copy of the properly executed Regulated Credit Agreement that I had requested

8. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

9. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)].

 

10. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible. It is denied that the ‘Application Form’ Exhibit xx produced by the Claimant is an agreement within the terms of the Act.

 

11. The document states clearly that it is an Application Form. Most of the document is not easily legible and does not appear to contain the prescribed terms. This Document was not the true copy of the properly executed Regulated Credit Agreement that I had requested.

On 09/07/2008 the Claimant sent a very strange letter drafted by a Really Hostile Banker, that seemed to be saying a simple 1997 Application Form with no Prescribed Terms was capable of being a properly executed Regulated Credit Agreement. This totally ignored Section 127(3) and the considerable weight of Case History that confirms that is not the case at all. The Claimant also made it clear they would not be responding to my CPR Request.

12. On dd I sent a request under Civil Procedure Rule 31.14 to [problem], exhibit XXX; a follow up reminder exhibit xxxx was sent on dd. On xxxx exhibit [problem] xxxx was supplied. This is the same Application Form that had been supplied on several previous occasions. This document is illegible and therefore cannot be admissible as evidence.

13. Further to the bank’s failure to supply documentary evidence to verify the authenticity of the agreement and the process relating to the storage of documents, I would like to refer to the letter received from Geraldine Hutchinson on xx October 2009 in response to my request under s.10 Data Protection Act 1998 made on xxxx which stated ‘Unfortunately, we have not yet been able to locate a copy of your signed agreement’.

14. This Data Subject Access Request is the subject of a complaint to the Information Commissioners Office as Lloyds TSB have failed to supply documentary evidence within the statutory 40 day period. Exhibit xxx is a reply by email from the Information Commissioner’s Office stating that ‘it seems unlikely that Lloyds TSB have complied with their obligations under the Data Protection Act on this occasion’.

15. In addition, on examining the documents supplied as part of this s.10 data request, (see exhibit xxx) I have found entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'.

I suggest to the court that this is further evidence that this claim is frivolous as Lloyds Bank were aware that their evidence was flawed.

 

16. As directed by the court order of xxx I received the trial bundle from [problem]. In the witness statement of xxxx it is alleged that on the 21st September, but not which year, that on a document headed ‘Application Form’ that I applied for a Credit Token, namely a Lloyds TSB Trustcard. There is no evidence on the illegible document that has been supplied, (See Exhibit xx) that this date corresponds with my signature.

17. It is alleged by Mr xxxxx in his witness statement that the new account was processed on the computer system used by the Bank to operate credit card accounts. This document is not a primary source, but hearsay evidence. According to the Civil Evidence Act 1995

18. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

19. The certificate Exhibit [problem] and witness statement only relate to the discovery of the record. This is not the evidence of the truth of the record or that it is a faithful and true replica of the original document of which the record is said to be a copy. There is no explanation of the circumstances leading to the destruction of the original. The claimants have stated that they did not wish to call upon a witness to corroborate this information. I therefore put it to the court that this evidence is not admissible.

20. Lloyds Bank has failed to demonstrate that it has complied with the directives of the Legal Admissibility of information. The British Standards Institution (BSI) BIP 0008 and the Code of Practice on Legal Admissibility and Evidential Weight of Information Stored Electronically directs:

‘that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.’

21. At no point in his witness statement does Mr xxx indicate that he was employed by Lloyds Bank when this procedure took place or that he is able to authenticate that correct procedures for the copying and storing of documentary evidence were adhered to.

21. It is not denied that I have used the credit card; it is questioned whether the Bank had adhered to the legal requirements that enabled it to offer and to administer this account. I admit entering into an agreement with Lloyds TSB which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which I may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

22. Under the Civil Procedure Rule 16 7.3, it is stated that:

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, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

23. Lloyds Bank have supplied a copy of the terms and conditions which they state were on the back of the agreement and are a true copy of said conditions. In their Particulars of Claims [problem] state that payments should be made in accordance with clauses 8 & 9 of the agreement. Clause 9 of the conditions supplied states:

‘9. A CHANGE OF NAME AND ADDRESS

You must tell us at once if you change your name or address or if any additional card holder changes their name. If you contact us by phone, we may ask you to confirm what you have told us in writing.’

I do not consider this as a prerequisite for the repayment of any credit agreement and therefore suggest to the court that the terms and conditions supplied as a separate document due to the illegible nature of the Application Form are not the actual conditions on the form.

24. The claimant states that a default notice was issued on xxxx 2003 and refers to a computer printout as evidence. This does not state what the amount on the default notice is or how this sum is reached. Statements included in their trial bundle marked exhibit XXXX show that charges totalling £xx were added to the account between xx and xx. According to a report in April 2006 by the Office of Fair Trading (OFT) these charges are unlawful and should not be included in the Default Notice. Exhibit xx3 is the original Default Notice. The amount shown on this document is the same as that of the statement dated xxx which includes unlawful charges. The statement that the account was terminated on xxxx means that this was an unlawful rescission of the contract and that another Default Notice may not be issued.

25. An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future

26. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

27. It is submitted that the above Default Notice served under s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

28. I believe that [problem] tried to exert undue pressure on me and that there was an abuse of process in that a letter stating that they had applied for and would receive Summary Judgement see exhibit xx

'Following our Clients instructions in this matter, you are advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course.

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves ensuring that there are sufficient funds in your account to honour the Standing Order arrangements.

Please ensure payments are made in accordance with the Judgement Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.'.

(In view of matters pleaded, I respectfully request the Court give consideration to striking out the Claimant’s case pursuant to CPR part 3.4.

 

. If the Court considers it inappropriate to use its case management powers, it is requested that the Court order the Claimant to produce all the Original documents mentioned in my Defence before the Court. Without production of all the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.)

Can this be included as it is a WS as well as a defence?

 

29. I require that the Claimant provide the requested information and proofs and authenticities. I request that the Court order that the Claimant supply the information requested.

 

Statement of Truth

 

I xxx, believe the above Witness Statement to be true and factual

 

 

Signed: _________________________ _______

 

Date: _________________________ _______

Edited December 7, 2009 by cymruambyth

[citizenB]

I think you have achieved a nice balance there,