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

 

save that argument for the day in court- too late then for them to try and provide anything else

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If the general advice is to try another tack at court and to leave the variation in place, I'll start working on a witness statement, but wait until I have [problem]'s, so that I know what to answer.

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If the general advice is to try another tack at court and to leave the variation in place, I'll start working on a witness statement, but wait until I have [problem]'s, so that I know what to answer.

 

**** do normally leave their WS till the last minute. so at least get something together so you arent rushing at the last moment.

 

Some information re Witness statements, provided by pt2357 :D

 

 

3. Don't forget to end both your defence & WS with statement of truth or they may not be admitted by the court.

 

4. Each Exhibit has to be numbered & a seperate sheet of paper attached thus:

 

 

Defendant

 

Number: [1st] [2nd]

Exhibits: [“DEF1”]

Date:

IN THE XXX COUNTY COURT

Claim No:

 

 

 

BETWEEN

 

[________]

Claimant

and

 

[________]

Defendant

 

 

EXHIBIT “DEF1”

This is the exhibit marked “DEF1” referred to in the witness statement of Clynite dated

 

------------------------------------------------------------------------

 

Guidance Notes on Witness Statements

 

 

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public and, at any other hearing, by their evidence in writing.

 

CPR r.32 and CPR PD 32 set out the formal requirements for written evidence, including witness statements. These are summarised below.

 

Format of the witness statement

 

The top right hand corner of the first page should contain:

 

·The party on whose behalf the statement is made;

 

·The initials and surname of the witness;

 

·The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

 

·The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

 

·The date the statement was made.

 

The witness statement should be headed with the title of the proceedings.

 

The witness statement should:

 

·Be produced on good quality A4 paper with a 3.5cm margin;

 

·Be fully legible and should normally be typed on one side of the paper only;

 

·Be bound securely in a manner which would not hamper filing;

 

·Have consecutively numbered pages;

 

·Be divided into numbered paragraphs;

 

·Have all numbers, including dates, expressed in figures; and

 

·Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement, for example [at page14 “ABC1”]

 

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

 

Content of the witness statement

 

·The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;

 

·The first paragraph generally sets out the “who, what and why” of the statement maker:

 

oWho the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)

 

oWhat the witness’s connection with the proceedings is

 

oWhy the witness is making the statement;

 

·Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”.It is important to state the source of any matters or information or belief;

 

·Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;

 

·Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;

 

·Witness statements must contain a statement that the witness believes the facts in it are true;

 

·Witness statements should be signed and dated.

 

Please see outline precedent witness statement below.

 

Exhibits

 

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.

 

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.

 

Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited.

 

The top right hand corner of the exhibit sheet should contain:

 

·The party on whose behalf the statement is made;

 

·The initials and surname of the witness;

 

·The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

 

·The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

 

·The date the statement was made.

 

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.

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cymruambyth,

 

have a look at my thread, http://www.consumeractiongroup.co.uk/forum/legal-issues/199465-lloyds-tsb-platinum-hunterandthehunted-19.html

 

i have had some good input regarding WS:)

Edited by hunterandthehunted
  • Haha 1

regards

hunterandthehunted

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It has arrived, please be gentle with me as will be asking lots of questions!

1st question......in ws there is day and month, but no year of when application form signed, isn't this wrong? Also, this date is the date of a counter signature, not the date of the application, which is not legible.

I will post another section later

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Next point, 'claimant does not have to produce the original document (agreement) which is no longer available. The copy is held on the claimant's systems and exhibitedhere is admissible by virtue of sections 8(1) and 9(1) of the Civil Evidence Act 1995. The claimant now certifies for the purpose of section 9(2) of the Civil Evidence Act that the copy acceptance form and agreement is a true copy document which forms part of the records of the claimant's business. + signed certificate.

Does this mean that they do not need the original document and that I have to accept illegible copy?

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.

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I assume that proof of use of cc and compliance with cc are emotional flannel and not a legal argument.

There is a computer print out for issuing of dn, but no amounts, how do I know that it was correctly issued and did not include unlawful charges?

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Next point, 'claimant does not have to produce the original document (agreement) which is no longer available. The copy is held on the claimant's systems and exhibitedhere is admissible by virtue of sections 8(1) and 9(1) of the Civil Evidence Act 1995. The claimant now certifies for the purpose of section 9(2) of the Civil Evidence Act that the copy acceptance form and agreement is a true copy document which forms part of the records of the claimant's business. + signed certificate.

Does this mean that they do not need the original document and that I have to accept illegible copy?

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.

 

they can refer to as many documents as they wish which might form "part" of their records, but what they NEED is a document, signed by you which contains all of the prescribed terms within the signature document

 

they may NOT be contained in , or referred to in another document

 

certificates- load of hogwash- i presume that they are trying to mislead you here, the fact that an officer of the company or anyone else for that matter signs a declaration certificate or an oath does not mean that the contents of that certificate declaration or oath are taken as the truth.

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I assume that proof of use of cc and compliance with cc are emotional flannel and not a legal argument.

There is a computer print out for issuing of dn, but no amounts, how do I know that it was correctly issued and did not include unlawful charges?

 

most creditors do NOT keep a hard copy of the DN , so all they have is details of when the "puter printed it out and any figures they may have entered into the computer

 

you however have the original DN so what that says is gospel

 

they must provide you with FULL details of how the amount in the claim is arrived at including any arrears, interest charges added to the account

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Next point, 'claimant does not have to produce the original document (agreement) which is no longer available. The copy is held on the claimant's systems and exhibitedhere is admissible by virtue of sections 8(1) and 9(1) of the Civil Evidence Act 1995. The claimant now certifies for the purpose of section 9(2) of the Civil Evidence Act that the copy acceptance form and agreement is a true copy document which forms part of the records of the claimant's business. + signed certificate.

Does this mean that they do not need the original document and that I have to accept illegible copy?

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.

Hi dd, thanks for your comments. The quote in blue is one that I have taken from the Civil Evidence Act 1995. Does this not cover this instance as they have supplied 'a certificate'?

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they need the original credit card agreement signed by you and containing all of the prescribed terms,

 

ANY document that is unreadable would not cut the mustard anyway since it could for all intents and purposes be a shopping list

 

i suspect that what they are trying to do is bullsh*t you into believing that a microfiche copy of the agreement (usually taken when they destroyed the original)

 

You should therefore demand a statement from the person that entered the document onto microfiche together with a copy of the company procedures at the time it was microfiched why it was microfiched, what happened to the original, who disposed of it and why etc etc

 

you will also need a witness who has produced this new copy from the microfiche.

 

you need to check that these people were indeed employed by the company at the time and that they were in that particular department

 

statements from third parties as to what was microfihced are no more than hearesay witnesses

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Thank you, I had a feeling I had seen that argument somewhere and did think they were trying to bamboozle with bullsh**.

I'll carry on with my research for ws that has to be in early next week.

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Thank you, I had a feeling I had seen that argument somewhere and did think they were trying to bamboozle with bullsh**.

I'll carry on with my research for ws that has to be in early next week.

 

if you search on surfaceagent x20's threads there is some useful information in this respect and he is legally qualified so well worth making a note of his comments

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Is this a witness statement from THEM ?.

 

I am sure BRW has posted something somewhere in respect of "interrogating a witness" as to audit trails.. I will try and track it down for you.

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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this may be of interest

 

In the time I have been a member of the site I have seeen a number of examples where a member is being forced along with a legal case in a situation where the creditor is unwilling from the outset to provide a legible copy of the agreement sued upon.*

 

Sometimes they produce fuzzy copies. Sometimes they produce only part of the agreement, not all of it. Sometimes they don't produce it all and claim that owing to the decision in Rankine, they can proceed with the case regardless of whether they can bring the agreement into court.

 

The ability of the Defendant to know how best to deal with the claim they are required to meet is impaired where a legible copy of the entire agreement is unavailable from the outset. For example, they will not know whether to plead that the agreement is unenforceable. Pleading that it is unenforceable without actually having an opinion on whether it is or is not enforcerable could be dangerous. Pleading that it is unenforceable will place the onus of proving that fact upon the debtor. That may place an insurmountable obstacle in circumstances where later on in the case, something less than full disclosure of the agreement occurs, or where the creditor serves witness statements which are designed to present to the court a re-construction or version interpretation of the agreement.

 

I have seen a number of situations where the Defendant has been encouraged to deliver what is termed a CPR Request or CPR*Part 18*request. Versions of the request I have seen often demand disclosure of documentary material akin to the kind of information sought in a Data Protection Act S.A.R - (Subject Access Request). Rarely do they genuinely seek Further Information by way of clarification of an issue raised in the case and which could not be dealt with during standard disclosure. As such, these requests have the habit of being refused as not being reasonable and proportionate. In cases where the sum involved is not more than £5,000.00, the Claimant answers by reference to CPR 27.2(f), saying that*Part 18*does not apply.

 

Besides wishing to take an opinion on the agreeent, the Defendant will want to know whether to plead the default notice was ineffective, whether the Claimant's claim to have a right to sue as assignee of the debt is valid. If the agreement is unenforceable, the default notice is defective or the assigment is invalid, any one of these features will operate as a complete defence to the alleged liability.

 

In my view the proper thing for the debtor to do in those circumstances is to strike as quickly as possible; to go on the offensive and wrestle control of the case away from the Claimant by asserting rights which the Claimant must comply with before the Defendant becomes obliged to elect how to plead the Defence.

 

Such a right is found in CPR 31.14 and is concerned with the disclosure of documents mentioned in pleadings, the very place where the Claimant will refer to the agreement relied upon in even the most sparingly particularised claim.

 

I have therefore drawn up a draft of such a letter which I would recommend delivering to Claimants in a proper case so soon as possible after receipt of the Claim Form. It looks like this:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.*

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

I hope this draft will prove useful to site members experiencing uncertainty as to how best to deal with the claim where they do not have what are highly relevant documents.

 

Next time, I will produce a draft*application notice*for when the Claimant fails to comply with a CPR 31.14 Request.

 

 

X20 on claimant submitting dodgy related docs ( terms and conds that were not with the agreement)

 

FF,*

Ok understand the question and what a good one it is.

 

The first thing I want to say is that being in a situation where there is a need for a CPR 32.19 notice is just the sort of situation the CPR 31.14 letter is designed to avoid. Demanding production in the way the draft letter does, with all its breadth and so forth, has the double edge of also raising the spectre of the admissability or inadmissability of what documentary evidence the Claimant may or may not have. By doing so early on in the proceedings, before you've made an election about how to craft your Defence (and so the Claimant doesn't know what that Defence will be by the time the CPR 31.14 letter hits his doormat), will cause the Claimant to examine what documentary material he has. If it's poor or challengeable he may feel he is on his backfoot and give in before the costs of the exercise begin to mount and render the claim uneconomic to him. If it is poor or challengeable and he elects to comply and does so properly, he has already been warned an application to the court will follow. He may not want that either. Keep his bsackfoot where it's meant to be.

 

Back to your question; the difficulty for the Defendant now faced with having to deal with the issue of admissable or inadmissable documentary evidence in the context of whatever may be pleaded in the Defence and the theatre of a trial, is that he is unable to promote a positive case. He is unable to say in your example, that 'the two separate microfiche documents are unconnected because ..' and then go on to advance a credible reason. The Defendant's success is dependant upon sowing the seeds of doubt.

 

How to deal in those circumstances would be the subject of a mammoth treaty. But trying to be as brief as I can, the evidence reveals two distinct events. [1] the making of the microfiche copies by the copying of the original and [2] the subsequent destruction of the original.*

 

I would be inclined to demand documentary evidence, a paper trail if you like, surrounding both events in order to then interrogate whoever is brought along for the Claimant as a witness on the point.*

 

Things like:

[1] the Claimants contemporaneous policy document dealing with [a] the microfiching and the destruction of documents.

 

[2] The instruction to microfiche. Does it identify the agreement? Who gave the instruction and when? Did that person have the authority to give the instruction? Was the instruction in accordance with the policy? Who was the instruction to? Did that person directed to do it carry out the microfiching? Where is the document which records it was done and does it identify the particualr agreement in question and the person who did it? Is the person who did it in court and ready to be cross-examined? If not, which witness for the Claimant will be able to come into court and prove the microfiche is indeed a true copy of the original?*

 

[3] Likewise the destruction. It's all very well being able to say the original was microfiched but that is not the same as saying the original was also and in fact destroyed. May be it wasn't. Ask the same or similar questions designed to yield that paper trail I went through with [2] above.

 

If you arrive at a situation where although a witness may appear on behalf of the Claimant to prove authenticity and to answer your questions on the subject, if you are able to demonstrate that in fact this witness is insufficiently connected to one or both the two events I spoke of, to such an extent that the evidence is mere supposition and conjecture, the court will be unable to attach any great weight to that evidence and doubt will remain.

 

I doin't know whether that's of any great help, but do you see where I am coming from in terms of tactical litigation techniques?

 

X20 on authenticity of docs producec by claimant

 

Ok, on to this question. Admision of authenticity is deemed without the other party to the case having to do anything. Only where the other party acts positively by serving a CPR 32.19 notice will the parties be joined on the question of authenticity of one or more documents. CPR 32.19 is permissive. The other party doesn't have to serve the notice in all cases, only where he intends to challenge authenticity.

 

Thus the delivery of a notice is the throwing down of the challenge. It will be a case of 'may the best man win.'*

 

The rule can be legitimately read in the way that you report it. But you must remember that litigation costs money. If you exercise your right to require an opponent to prove a document in court in circumstances which subsequently appear unnecessary and wasteful (because you opted out of the 'deeming' provisions but were unable to challenge or demonstrate a good reason for opting out), whilst the proving of the document will be over in 2 minutes, a lot of time and expense may have been incurred in preparing the proof and arranging for the witness(es) to be in attendance.*

 

A requirement to prove and which is subsequerntly found to have been unnecessary or wasteful, may result in an adverse costs order.

 

Both litigants have the benefit of using the CPR armoury. But that armoury is only there for use in a proper case. How many time have you seen the phrase 'abuse of process'? Avoid selecting what you might think is a weapon if in truth it will bite you back.

 

Hope this helps.

 

x20

 

X20 on what to do if claimant ignores 31.14

 

PV,

A Defendant faced with a Claimant who declines to deal with his CPR 31.14 obligations promptly (ie within 7 days of the request) may file an application with the court in Form*N244*for an appropriate order.

 

The following text is fom a post I made in wakeywakey's thread entitled: 'Marlins/Arrow Global have no CCA-Now what?' and deals with the completion of theN244*for an appropriate order folowing a Claimant's failure to comply with a CPR 31.14 request.

 

In box [3] of the*N244*write:

 

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

'On (date), following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

 

The following is the text taken from my wakeywakey post but hopefully will assist with a gist of the sort of thing to say:

 

[The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

 

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

 

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

 

On a separate piece of paper to be attached to your application notice, write this:

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.*

 

2 In the event that the Claimant shall comply with this order,*

*the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

The fee payable to the court on filing this application is presently £75.00.

 

Hope this helps.

 

 

X20 whena reply to defence is insufficient (docs not verified)

 

Here's a CPR 31.14 letter modified for use in relation to a DN mentioned in a Reply.

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

I am in receipt of your Reply dated (date). Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each default notice delivered to each of the Defendants and mentioned in your Reply.

 

You must comply with this request notwithstanding the case has been allocated to the small claims track since the default notice is an integral feature of both your case and mine. You must ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Since I maintain I have not received a default notice, your CPR 31 duties extend to making a reasonable and proportionate search for the original default notices, the better for you to be able to verify your case and mine and the authenticity of the notices. Further, if you possess only a copy of the default notice, the original of which is now in the possession of a non-party, you will have a right to possession of that original and you must take immediate steps to recover and preserve it for the purpose of this case.

 

Where there is in your possession more than one version of either of the default notices owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.*

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request or fail to request more time, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.*

 

I look forward to hearing from you.

 

yours faithfully

X20 and the case of the dodgy DN

 

Palomino,

The contention advanced by ABC's lawyers was that if the DN was ineffective, the termination which ABC subsequently brought about in reliance upon that ineffective DN, was itself ineffective. In support, ABC said that since the law did not permit a creditor to terminate an agreement unless there had been serivce upon a debtor of an effective DN, by extension therefore, rather than having been terminated, the agreement endured.*

 

The law in support of this proposition was Consumer Credit Act 1974 section 87(1)(a) which says:

 

(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

 

ABC went on to say that owing to the agreement enduring, ABC were therefore at liberty to serve a second DN.

 

At first blush, that looks quite a convincing argument. The Act itself forbids the creditor the right to terminate save in certain circumstances. So if the required circumstances were not present, how could the law regard the agreement as having terminated?

 

[1] Termination of a Contract and General Principles

A good place to start would be to dispel the myth that the law will not tolerate contract breaking. On the contrary whilst not actively ncouraging it, the law will tolerate it. The courts will rarely impose upon one party an obligation to perform under a contract against its will, to do what it failed to do or redo what it tried and failed to do. Instead, what the law will do is on the one hand restrain the contract breaker from procuring the benefits it would have enjoyed had it fulfilled its contractual obligations and on the other, enable the injured party to recover damages flowing from the breach.

 

In*Golden Strait Corporation v Nippon Yusen Kubishka Kaisha*[2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

 

The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'

 

What's more, the law will not merrily award whatever loss the injured party says he suffered. The court will require the injured party to prove his loss and further, will expect the injured party to take steps to mitigate the loss.*

 

'An injured party such as the owners may not, generally speaking, recover damages against a repudiator such as the charterers for loss which he could reasonably have avoided by taking reasonable commercial steps to mitigate his loss.'*[Lord Bingham in Golden Strait Corporation.]

 

Further still, in assessing damages the law will not even award what the parties may at formation of the agreement have agreed should be payable as liquidated damages in the event of breach. The court will not permit the recovery of liquidated damages unless the damages represent a fair pre-estimate of what loss might flow from the breach. If the liquidated damages are shown to be excessive and unrepresentative of the sactual loss suffered the law will readily declare the liquidated damages as a penalty and unenforceable.

 

In short, not only does the law tolerate contract breaking, but also, it will not tolerate the injured party taking advantage of the wrongdoer. The law does not pounce on the contract breaker to teach him a lesson. The court only awards the innocent party what damages truly flow from the breach. That admits of the possibility that a contract breaker can get away with it. If the injured party is unable to show resulting loss, the injured party may get nothing.

 

'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.'*[Edmund Davies LJ in*'The Mihalis Angelos'*(1971)]

 

[2] Termination in Non-Conformity with section 87.

The contention I advance is that an ineffective DN does not prohibit the creditor from terminating the agreement. Termination after service of an effective default notice is lawful termination, but as we have seen, a party may still terminate an agreement and be in the wrong for doing so. The law operates on a wrongful termination to offer to the injured party the choice of accepting the termination or to hold the contract breaker to his promise.

 

In the world of consumer credit, I contend a termination of the agreement by a creditor in terms whereby he announced he would no longer permit the debtor time to repay the credit, was a creditor in repudiatory breach of the agreement, unless in leading up to termination, the creditor complied with the requirements of the Act in circumstances where the debtor was in first breach of the agreement.

 

Further, and it is worth remembering, the Act is an Act for the purpose of consumer protection. The purpose of the Act is not to preserve the rights of creditors in contracts and to protect them from misadventure where for example, they terminated an agreement where it subsequently transpired the termination had not been in their interests. If that were so, the Act would have been an Act for the better protection of financiers.*

 

In a proper case, the law will come to the aid of the vulnerable to protect them from the consequences of their contracts (for example the unsound in mind, children, those under duress or undue influence). To suggest financiers fell into that bracket and the Consumer Credit Act*

operated to protect them and not the consumer, was absurd. The civil law does not come to rescue the misadentures of the sain and the savvy.

 

The clue to the position of the creditor on termination is in the use of the word 'entitled' in section 87(1). 'Entitled' connotes a right or a benefit. The Act therefore confers rights, conditional upon the provisions of section 87(1) being fuilfilled. Fail to fulfill the condition and the entitlements do not become available.*

 

In the case of a contract entered into by a person under duress and who then breaks the contract the law will come to that person's aid by recognising that person's plea that the contract was made under duress. If that person seeks a declaration of the court that the contract was made under duress the court wil readily declare the contract void.

 

If the Act had intended that a creditor's termination in circumstances where section 87(1) had not been fulfilled by the creditor and was to be of no effect, the Act would have declared that termination void. It doesn't. The termination is voidable at the option of the debtor.

 

[3] The Debtor's Point of View

Third, let us look at the position from the ordinary man as debtor's point of view in a consumer credit situation.*

 

The DN is defective for failing to conform to the prescribed terms, or gives misleading information or at worse is plain nonsense so that the debtor does not know precisely what he has to do in order to comply with it and is consequently disadvantaged. Should the law disregard the fact that the creditor put the debtor at a disadvantage and thereby at risk the creditor might lawfully terminate the agreement?*

 

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".*[per Kennedy LJ in Woodchester v Swayne [1998]]

 

Moving on, if the debtor receives a notice from the creditor in which the creditor expressly states the contract is terminated, what is the debtor supposed to think? Would the law regard him as likely to think the creditor had terminated the contract or would the law regard him as thinking it had not terminated because strictly speaking, the creditor had served a default notice which was not in accordance with prescribed terms?

 

Or where perhaps the creditor did not expresly terminate but sent the bully boys over to demand the keys to the car. What was the debtor to think then? Would the debtor think the creditor had terminated?

 

It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions.

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in*Gallie v Lee*(1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in*Norwich & Peterborough Building Society v Steed*(1992)]

 

In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination.

 

[4] The fiction of the Second DN and the Enduring Obligation

The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act.

 

The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides:

 

'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.'

 

In other words, in serving the second DN, the creditor would be suggesting:

 

[a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and

that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure.

 

The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form.

 

The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor.*

 

The net result of [1] to [4] is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice.

 

Damage to Credit

A man's credit is damaged when it is impugned. He learns it is damaged when he seeks credit to fund a transaction and is turned away or when his creditors seek to call in debts. The effect can be simple embarrasment to being totally destabilising. A learned his credit was impugned when he was warned by his bankers. The damaging effect of the adverse reporting could have been a lot worse.

 

I had deliberately tried to keep my first post as simple and straight forward as I could. I hope this expanded version showing the way strands of law can intertwine to build a case is of assistance.

 

 

X20 why the creditor canot re issue the dn after termination

 

The statement of the law referred to by tifo is that advanced by angry cat and which first appeared in*this thread*at post no13025. It was soon doubted by car2403.

 

In my view the statement fails to stand up to scrutiny and as it is, is unsupported by legal authority of any kind. It ignores the basic principle that parties to contracts can break them with the only consequence being that they will be unable to profit further and be required to meet loss caused by doing so.*

 

Discontinuing proceedings begun in reliance upon a defective DN might not necessarily be the right thing to do from the creditors point of view. He would be giving up the arrears aspect in any claim. He would be better to only discontinue the remainder. If he were to wholly discontinue and sue a second time, that aspect of the second action which represented arrears stated on the first DN would very likely constitute re-litigation in which event CPR 38.7 kicks in.

 

In my view the creditor's prospects on discontinuing in order to serve a second DN and bring a second action based upon the second DN would be poor. In the second proceedings the Defendant would be entitled to plead that it was the service of the first DN which lead to termination and the first action and deny the truth of the fact that the agreement had endured or that the creditor terminated following non-compliance with the second DN (the fiction of the enduring agreement). The debtor may also plead that termination of the agreement prior to the service of the second DN amounted to a repudiatory breach by the creditor which repudiatory breach the debtor had accepted and in accordance therewith, had ceased making payments.

 

Further, it would be surprising if the creditor did not seek to set out in his second DN, all those instalments 'in arrear' down to the time of service of the second DN. Such a statement of sums in arrear would, in my opinion, render that second DN ineffective. The creditor can not state in a DN there are sums 'in arrear' where those sums are in truth not representatative of arrears. They would be unrepresentative of arrears where earlier the creditor had claimed a right in the first action, owing to termination (and verified by a statement of truth) to have them paid 'at once'. Were I ever in such a situation I would certainly plead, amongst all the other defences, that the second DN was ineffective for this reason alone.*

 

Indeed, that the creditor might supposedly serve a second DN, which itself might be defective, begs the question how many times can a creditor serve a DN, terminate the agreement, re-instate the agreement (as if!) and then terminate it again? Presumably on the basis of angry cat's understanding, the moment the debtor pleaded the second DN was defective, the creditor would be at liberty to discontinue and serve a third DN, terminate and issue third proceedings. And so the sequence might go on ad infinitum.

 

Were such an arrangement the law, the creditor would be in a win-win situation and he might be as careless with his DNs as he liked in the sure-fire knowledge the law would come and rescue him. The whole basis for supposing a creditor may serve a second DN post-termination is to suppose the Consumer Credit Act 1974 or at least the Default Notice provisions of the Act have the protection of the creditor at their root, to the point where termination following service of the ineffective DN is void. This as we all know is errant nonsense.*

 

As I said some place else, the Act does not declare a termination in breach of compliance with section 87 as void. Neither does the Act avail to the creditor an oportunity to plead 'non est factum' when shown its demand for early payment or other written statement of position based upon its termination of the agreement. Rather than being void, the termination is voidable at the option of the debtor and if the debtor decides to accept the termination, the party's over. That's my opinion at any rate and I would fall off my chair if a Judge with a clear understanding of the Act declared otherwise.*

 

One last point worth stating is that a party on whom a Notice of Discontinuance is served may now object to the action discontinuing under CPR 38.4.

 

X20 bring the judge up to spped in advance

 

I entirely agree with you on the capacity of lower tier Judges to ably deal with such cases. A witness statement and/or skeleton argument filed in advance of any hearing on the topic would be very sensible as it would direct the Judge to the relevant legal authorities and bring him or her up to speed before the hearing got going.

 

x20

 

 

X20 more on repudiatory breach

 

Moving on from where I left off and continuing the line of thought:

 

The repudiatory breach occurs where the debtor fails to pay an instalment. As we know, that repudiatory breach has either to be accepted or rejected by the innocent party (the creditor) at his election. This common law right to elect is modified in the form of The Consumer Credit Act 1974. That Act and Regulations under it introduce a code which regulates the right to elect whether or not to accept or reject the debtor's breach. The Act doesn't simply allow the creditor to say 'you missed a payment and I accept your breach of it'. The Act restrains the creditor from taking this route by directing that before he may claim to be entitled to take any of the steps set out in section 87, including termination, he must first serve an effective DN. To be effective, a DN will give the debtor a minimum of 14 days to remedy the breach, contain acurate particulars of the default and remedy required and be in precribed form etc. Once a valid DN has been served and the minimum 14 days have run out, it is at this point that the restraint is lifted and the creditor is at liberty to then terminate the agreement.

 

Suppose the DN was valid. No one would question that the creditor then had a right to terminate the agreement and seek all that he become entitled to under section 87. The situation we find ourselves in concerns where the creditor fails to serve an effective DN but proceeds to claim section 87 entitlements as if he had served an effective DN.

 

Where there is an ineffective DN,*

 

One school of thought (School 1) says any subsequent notice of termination constitutes the creditor's repudiatory breach of the agreement as for which, no more is required from the debtor for the creditor's termination to stand effective.

 

Another school of thought (School 2) says any subsequent notice of termination constitutes the creditor's repudiatory breach of the agreement, in which case the debtor is required to communicate an election to accept that repudiatory breach in order to bring the agreement to an end. Otherwise it will endure.

 

A third school of thought (School 3) says any subsequent notice of termination is void and the agreement will endure because section 87 says the creditor has no right to terminate. The agreement will endure until the creditor terminates the agreement after service of a valid DN.

 

My fourth school proposes any subsequent notice of termination constitutes the creditor's breach of the regulation, the effect of which does not require the debtor to signal acceptance though it nonetheless operates to prevent the creditor from claiming section 87 entitlements. As for whether the agreement endures, I say it was terminated on service of the creditor's unequivocal notice of termination. That was the plain meaning and effect and understood to be so by both creditor and debtor. The creditor can't unwind the clock or go back on what he said. The ramifications of being entitled to do so would be unjust in the true sense of proper consumer protection and the framework of the legislation. For example, six months after commencing proceedings, twelve months say after the DN was sent out seeking say two instalments, the penny drops that the creditor's DN is a serious obstacle. So he sends out another after having told the debtor the agreement is over. This time the DN has 14 months arrears to cough up in 14 days or else the agreement is terminated. Is it just that the debtor can be required to pay so much in just 14 days, so long after both the creditor and debtor beleived the agremeent had terminated?

 

Of course x20's propositions are worth nothing unless a court can be persuaded to adopt them. An example of a case in contract becoming unenforceable owing to a breach of regulations is required. One such case may be the case commonly known as*Myatt.

 

Myatt was a case concerned with the ability of a solicitor to recover the costs of a piece of litigation conducted on behalf of an ex-coal miner with the benefit of a conditional fee agreement (CFA agreement) aka a 'no win no fee agreement'.*Wilson v First County Trust (No2)*was considered in the judgment in terms of the harshness of the result as was*Smith v. Bridgend County Borough Council*[2001] for similar reasons.

 

Briefly, at the time Myatt retained the solicitor CFA agreement were regulated by The Conditional Fee Agreements Regulations 2000. The case turned on whether the solicitor had complied with the requirements of the Regulations. The court found there had been a technical breach of the regulations. It was contended the breach was negligible.

 

Lord Justice Dyson said:

 

The principal question that arises on these appeals is whether there is substantial compliance with (or no material departure from) a requirement if a breach does not in fact cause the client to suffer detriment. If it had been intended that a CFA should only be enforceable where the client suffered actual damage, it would have been easy enough so to provide. But the focus of the scheme was on whether the CFA satisfied the applicable conditions, not on the actual consequences of a breach of one of the requirements of the scheme. In our view, it is fallacious to say that a breach is trivial or not material because it does not in fact cause loss to the client in the particular case. The scheme has the wider purpose of providing for client protection (as well as the proper administration of justice).*

 

In Myatt the court was concerned with 'client protection'. In the context of consumer credit agreements, the Act and Regulations are concerned with 'consumer protection'. I see precious little difference in the aim of the legislation.

 

In Myatt the solicitor lost and permission to appeal to the House of Lords was refused. The solicitor's failure to comply with the regulations put a stop to the solicitor's claim for costs and he recovered nothing.

 

Details of put to proof of delivery of copy agreement from creditor and case law

 

out of cash,

 

One thing to consider is s64 CCA. This is duty to give cancellation notices.

 

When you sign the document, if they have not already signed it then they must give you a copy at the same time under s62.

 

If they had already signed it then they would have to give you a cancellation notice either with or before sending the card to you under s63

 

In most cases with credit cards s62 applies

 

Now the interesting bit is s64, this says that a cancellation notice in the prescribed form should also be included in the copy. I've never seen this done (not just on here but also in my previous life working on the other side of the fence as it were).

 

As a result, due to s127(4) it is unenforceable.

 

If you want to use these (or any) arguments in court you really need to understand them before you go:-

 

Failure to Comply with Section 64 CCA

1.The copy of the Credit Agreement disclosed to me under the CPR request states that I have a right to cancel. S64 CCA deals with the duty to give notice of cancellation rights:-

 

64.*Duty to give notice of cancellation rights.

—*(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a)must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b)except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

(2)*In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

(a)it is sent by post to the debtor or hirer before the credit-token is given to him, or

(b)it is sent by post to him together with the credit-token.

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

2.It is denied that s64(1)(a) was complied with and the Claimant is put to strict proof that they did so comply. It is further denied that s64(2) was complied with and the Claimant is put to strict proof.

 

3.The prescribed form for a cancellation notice is given in the*Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) as amended by The Consumer Credit (Agreements and Cancellation Notices and Copies of Documents) (Amendment) Regulations 1988.*

 

4.I note the use of the word*must*in s64(1)(a) CCA which shows that there can be no variation and that the notice therefore must be in the prescribed form. As a result, this cannot be dispensed with as a de minimus issue.

 

5.I note that the burden of proof is upon the Claimant to prove they did send cancellation details and notices as per the ruling of*Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895.

 

Unenforceability of Agreement Under Section 127(4) CCA

6.As a result of this, I aver that the agreement is improperly executed and, due to s127(4) CCA, the court shall not make an enforcement order as s127(4)(b) applies.

 

127(4)The court shall not make an enforcement order under section 65(1) in the case of a

cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought. or

(b)section 64(1) was not complied with

 

 

 

7.I also refer to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 where Lord Nicholls of Birkenhead said:-

 

 

[29] “The court's powers under section 127(1) are subject to significant qualification in two types of cases… 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 side-stepped”

 

hope this is helpful

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Is this a witness statement from THEM ?.

 

I am sure BRW has posted something somewhere in respect of "interrogating a witness" as to audit trails.. I will try and track it down for you.

 

Yes. All we have done is an embarrassed defence because agreement is an application form that is illegible, with even more illegible t&cs. Have just under a week to compose ws/defence. Court less than 4 weeks after.

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Hi I have not included the information that I have been given but am putting together some very rough ideas. Am I going along the right lines? I know that I have missed out loads of stuff but am trying out some of my ideas!

 

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

2. In the 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. At no point on the illegible document that has been supplied, (See Exhibit xx1) is there a date that corresponds with my signature.

3. It is alleged by Mr xxxxx that the new account was processed on the computer system used by the Bank to operate credit card accounts. 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.

 

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.

4. It is not denied that I have used the credit card; it is questioned if the Bank had legitimate grounds to offer and to administer this account.

5. Lloyds Bank have supplied a copy of their 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:

‘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.’

6. The claimant states that a default notice was issued on xxxx 2003. 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 the ruling xxxx these charges are incorrect and should not be included in the DN. The statement that the account was terminated on xxxx means that this was an unlawful recission of the contract and that another DN may not be issued.

Edited by citizenB
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Looking good. So are you doing a Witness statement or amended defence ? or both :lol:

 

Thank dd for posting that information. Very useful.

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2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

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Hello C!

 

Good Post by DD, covers a lot of the ground that you need to get your own head around.

 

CB asked me to drop in WRT The Civil Evidence Act 1995 etc.

 

This link is worth reading, because it covers the steps that any diligent group would need to consider if wishing to store documents electronically that they may later need to use as evidence in Court:

 

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

I must stress that the above is geared to plain old documents, memos, letters, things like that.

 

I maintain that original copies of more important documents should always be retained, such as Written Contracts and/or signed/written Regulated Credit Agreements.

 

Anything less is Hearsay Evidence, and must inevitably be accorded a lower weight in terms of it being used in Court by comparison to presenting the real thing. The real original Agreement is hard Evidence, it cannot be regarded as Hearsay Evidence and it needs no Witness Statements or Witnesses to back it up. It can stand on its own two feet and win the day for the bank if it has your Signature and the Prescribed Terms contained within the four corners of it.

 

Thus, I'm sure we'd all agree that if they pitched up with the original, signed in ink by you, that contained the Prescribed Terms, then you would have to accept that as positive Evidence that they have always had a binding and enforceable Agreement (the Default Notice could rain on that parade however!).

 

Thus, if it's not the original Agreement, then it can only be Hearsay Evidence, because a copy is wholly incapable of standing on its own two feet and winning the day for them (unless the Judge had big pockets on the Golf Course for a big fat brown stuffed envelope)!

 

OK, if it is Hearsay Evidence, then you must make it quite clear to the Court that it is nothing better than second rate evidence.

 

Once you get that point across, then no matter how many Witnesses or Witness Statements they conjure up, these can only ever elevate Hearsay Evidence into slightly better Hearsay Evidence.

 

Your job then is to go on the offensive, and rip their Witness Statements and Witnesses to shreds, based on the Document Management issues, as outlined by X20 and the above link I have provided. Think dates, think procedures, think signatures, think authorisations...pretty soon you will spot where they are trying to baffle you with bank poop, in order to hide the fact that they don't have the Agreement (that's if one ever existed that was properly executed), and they don't have anyone who can actually say what happened to it and when without swearing blind for the bank.

 

I hope this helps.

 

Cheers,

BRW

Edited by banker_rhymes_with
Foooood for thought!
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