OH v BLS/LTSB

[citizenB]

I think Civil Evidence Act ???? comes into play with a microfiche copy. I will find a link to that.

 

I didnt see that the court has advised no expert witness permitted. Hmmm, I wonder why. I will do some research and pop things I think might be of interest on the thread for you.

 

The only stupid question is the one you DONT ask.

[citizenB]

Once again thank you for your invaluable support.

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

 

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

[citizenB]

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

 

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

 

HTH

[citizenB]

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

 

I like that bit !!

 

 

Absolutely

[citizenB]

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

 

I will try and get some further comment for you.

 

When was the draft order issued ?

[citizenB]

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

 

Small claims track.

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

 

Did LTSB do this ??

 

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

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

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

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

Original documents must be brought to court on day of trial

If yoyu do not comply trial may not proceed

No expert witness evidence permitted

 

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

 

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

 

 

N149 Allocation Questionnaire

 

 

 

Section G - other information

 

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

 

7.3 Where a claim is based upon a written agreement:

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

 

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

 

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

 

 

 

2. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

 

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

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

 

 

 

Draft Order for Directions

 

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

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

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

• Document, contract or deed of assignment

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

• Copies of any statement or other document relied upon

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

 

 

 

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

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

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

 

 

 

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

[citizenB]

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

They state roughly:

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

 

That is my understanding of the above.

 

 

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

[citizenB]

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

[citizenB]

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

[citizenB]

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

 

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

to

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

 

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

 

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

[citizenB]

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

 

 

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.

[citizenB]

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.

[citizenB]

Looking good. So are you doing a Witness statement or amended defence ? or both

 

Thank dd for posting that information. Very useful.

[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:)

[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

[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

[citizenB]

I think you have achieved a nice balance there,

[citizenB]

Hi Cymru

 

I have been following your journey for some time.

This is such an informative thread and a great help to me in my own battle.

 

I think you have really worked hard on your WS . I think it is a masterpiece.

 

I hope you dont mind my asking a question on your thread .

 

I have been informed following a successful application for specific disclosure , part of which was an order to allow physical inspection of the original agreement , that the original has been detroyed and microfiched.

The copy sent to me is legible.

 

I did not receive a copy of the agreement when I signed it. It is post 2007.

 

Do all the same aguments regarding the CEA and Money laundering apply when the copy is legible?

 

In the claimants WS they make no mention of not having the original agreement . It has only shown up following the SD application.

 

So sorry to hijack and wont ask any more questions SB

 

 

SB, it is my understanding that the CEA and Money laundering act would apply whether the "copy" was legible or not.. these acts are about keeping records when an original is destroyed and a microfiche copy replaces it and also about the retention of key information for a period of time AFTER the relationship has ended.

[citizenB]

Great.. you can take a breather for a few moments now...

 

Ok that's it.. back to work:D

 

Hehehe, yes.. **** are a little careless with their witness/statements and exhibits. in my case they referred to an exhibit in their witness statement as one thing... but when I looked it was something totally different.

 

Fortunately I was able to help them out.. as I had the letter they really, really wanted to include (according to their WS), except it helped me more than it helped them :grin:

[citizenB]

I would agree with shadow on this one... have also flagged it for site team as it is an interesting comment.

[citizenB]

Just make sure you have everything in order. Make sure you have tabbed everything so you know where to find it in your own bundle.

 

Have a read of BRW's empty desk trick post

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

Try and remain calm:D

[citizenB]

OH now says case is rubbish and not worth going to court! Any words of inspiration would be greatly appreciated.

Thank you

 

Hmmm, does he now:D Which part of it does OH consider to be rubbish then ??.

 

Seriously, at the end of the day, the decision has to be yours.

 

I dont think anyone can say with 100% certainty that you will win the day. If it were me then I would be going ahead.

 

Either way, you must turn up on the day or judgement will be awarded by default. You never know, perhaps the other side are feeling the same and will offer a last minute deal.

[citizenB]

Thanks, not too late, gosh up to 2 guests now:eek:

 

You will have to start rationing the seating:D

[citizenB]

This doesnt sound right to me at all.

 

Cy, I am bitterly disappointed.

[citizenB]

It will be interesting at the very least to see why the Judge refused you leave to appeal in the first instance.