Shakespeare62 - v - a NastyBank

[shakespeare62]

Hello folks,

 

I'm hoping to get some opinions on my AQ & Draft Order for Directions.

I'll reveal the name of the Bank later - to deny any snoopers a tactical advantage.

 

In the next 3 posts below I will paste copies of the Claim, My Defence (already submitted), my proposed AQ and Draft Order for Directions (Not Yet submitted).

 

Any comments would be much appreciated.

 

Please note that the right to reproduce any part of any post I make on this forum is restricted under copyright law and litigation privilege

Please see the following copyright statement :-

 

This thread exists exclusively to assist me in preparing litigation against another party. As such it is almost certainly protected by litigation privilege.

 

The legal requirements for claiming litigation privilege are well established and are not in dispute. Communications between a solicitor or the client and a third party will be protected by litigation privilege where the communications are for the dominant purpose of obtaining legal advice in connection with, or conducting, litigation reasonably in prospect: Re Highgate Traders Limited [1984] BCLC 151.

 

Copyright Information: All information contained in this website, associated websites, and forum posts are copyright Reclaim The Right Ltd. If you wish to use the information on this site for publication elsewhere, then please email the administrators for permission.

 

Edited May 6, 2010 by shakespeare62

[shakespeare62]

Contents of the Claim are below :-

 

Particulars of Claim

 

“Money due for Creditcard services supplied (account no xxxxx) to and at the Defendant’s request as detailed in monthly statements rendered culminating XX March 08

 

Sum due at XX March 08

 

5,XXX.xx

 

Add file referral charge 0.00

Less credit 1.00

 

Statutory Interest from 4XX.xx

XX March 08 to date at 8% per annum at 1.29 per day

 

Add subesequent debits 0.00

 

The Claimant claims 6XXX. xx

 

Plus continuing Statutory Interest at 1.29p per day until Judgement or sooner

payment pursuant to section 69 of the County [yes ..it finished like that ..they ran out of room I guess]

Edited March 28, 2009 by shakespeare62

[shakespeare62]

My Defence (already submitted) :-

 

In the XXX COUNTY COURT

Claim number XXXXXXXX

Between:

NASTY BANK - Claimant

and

 

SHAKESPEARE62 - Defendant

 

D E F E N C E

 

1. I, SHAKESPEARE62, am the Defendant in this action and make the following statement as my Defence to the above Claim made by NASTYBANK

 

2. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with Rule 7.3 of the Practice Direction attached to CPR 16 which states quote :-

 

“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, ”

 

In this regard I wish to draw the Court’s attention to the following matters:

 

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

 

(b) A copy of the original written and properly executed Regulated Credit Agreement that appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

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

 

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

3. The Defendant avers that he entered into an agreement with NASTYBANK which was regulated by the Consumer Credit Act 1974 (The Act.). The Defendant avers that the executed agreement was entirely devoid of the prescribed terms as required by Regulation 6 and Schedule 6 of the Consumer Credit (Agreements) regulations 1983, and that consequently a Court is expressly precluded from enforcing the agreement by section 127(3) of the Consumer Credit Act 1974.

 

4. The Defendant avers that that NASTYBANK alternatively the Claimant failed to serve upon the Defendant a default notice pursuant to section 87(1) of the Act which was in the prescribed form and compliant with the provisions of section 88 of the Act.

 

5. The Defendant avers that NASTYBANK alternatively the Claimant terminated the agreement on XX July 2007 and pursuant to termination the Claimant has since made demand of the Defendant for the payment of money the subject of this claim. A copy of the Termination Notice is attached to this defence marked “Exhibit A”.

 

6. Incorporated within the sum demanded by the Claimant are sums claimed for late payment charges and like provisions. It is denied (if it be alleged) that the Claimant or NASTYBANK has incurred any such fees and charges. Alternatively It is denied (if it be alleged) that such fees and charges if incurred accurately represent sums lost by the Claimant or NASTYBANK by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is either penal and unenforceable at law, or is made via an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the Claimant.

 

7. Further and in any event, by reason of the matters set out at paragraph 4 and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 5 were steps which NASTYBANK and / or the Claimant were not entitled to take.

 

8. In the circumstances NASTYBANK alternatively the Claimant’s unlawful termination of the agreement did not give rise to an entitlement to claim any of the relief now sought by the Claimant.

 

9. The Claimant’s claim to be entitled to £6,XXX.XX or any other sum is denied.

 

 

The build up to this action

 

10. On XX August 2008 I wrote to NASTYBANK alternatively the Claimant requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974. (A copy of this correspondence is attached to this defence marked “Exhibit B”)

 

11. On XX September 2008 the Claimant supplied a copy of what appeared to be a microfiche copy of an application form, annexed to this Defence marked “Exhibit C”, which was of extremely poor quality and contained none of the prescribed terms required by the Consumer Credit Agreement Regulations 1983. Accordingly on XX November 2008 I wrote to the Claimants Solicitors setting out the issues.(A copy of this correspondence is attached to this defence marked “Exhibit D”).

 

 

12. THE CLAIMANT’S SOLICITORS (INSERT NAME) FAILED TO REPLY TO MY CORRESPONDENCE DATED XX NOVEMBER 2008, AND THE CLAIMANT HAS NOW BROUGHT THIS ACTION THEREBY GENERATING UNECESSARY COSTS AND COURT FEES.

 

The relevant Act of Parliament in this Case

 

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

 

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

 

“11 The repeal by this Act of-

 

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

of section 127 of the 1974 Act,

 

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

 

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

 

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

15. Therefore, section 15 of the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. Section 127(3) of The Consumer Credit Act 1974 remains in effect for this regulated Agreement.

 

 

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

 

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

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

 

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

Credit Limit

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

Rate of interest

A term stating the rate of any interest on the credit to be provided under the Agreement.

 

 

Repayments

A term stating how the Debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable

 

19. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

20. I refer to an extract from the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 quote :

 

“[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

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

 

I agree.”

 

21. In Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003), the House of Lords explained that the Consumer Credit Act 1974 was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls from the above case – quote :

 

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

 

The Court’s Power of Enforcement

 

22. Section 127(3) Consumer Credit Act 1974 expressly precludes a Court from making an enforcement order under section 65(1) for improperly executed agreements if certain requirements have not been met. To quote from section 127(3) :-

 

“The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

23. Furthermore the Courts attention is also drawn to the authority of the House of Lords in Wilson & Ors v. Secretary of State for Trade and Industry[2003] UKHL 40 (10 July 2003)which confirms that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

24. With regards to the Authority cited in point 23, I refer to the following extracts from LORD NICHOLLS OF BIRKENHEAD in that case [2003] UKHL 40 :

 

“6... The court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable....”

 

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

 

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. ...”

 

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

 

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

 

“71. I turn to the statutory setting of section 127(3). The Consumer Credit Act contains many requirements about the form and contents of regulated agreements. Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4).”

 

25. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD HOPE OF CRAIGHEAD in that case [2003] UKHL 40 :

 

“100 ...Section 61(1) provides that a regulated agreement is not properly executed unless it satisfies certain requirements. It must include a statement of all the prescribed terms, which include a term stating the amount of the credit: paragraph 2 of Schedule 6 to the Consumer Credit (Agreements) Regulations 1983. Section 65(1) provides that an improperly executed agreement is enforceable against the debtor or the hirer on an order of the court only. The amount of the credit in this agreement was incorrectly stated, so Mrs Wilson became entitled to the protection of section 65(1) as soon as it was entered into. What this right meant in her case was spelled out in section 127(3), which provides:

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

26. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD SCOTT OF FOSCOTE in that case [2003] UKHL 40 :

 

“164. Section 65(1) of the 1974 Act says that an "improperly executed regulated agreement is enforceable against the debtor … on an order of the court only". It is to be noted that the agreement is not void or unlawful. It is merely unenforceable except on an order of the court. Section 127(1) of the Act says, inter alia, that in the case of an application for an enforcement order under section 65(1) the court "shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so …." Subsection (3) bars the court from making an enforcement order under section 65(1) in a case where there is no document containing all the prescribed terms that has been signed by the debtor. So, in the present case, the court was barred by section 127(3) from making an enforcement order in favour of FCT. Its discretionary power to make an enforcement order which otherwise would have been conferred by subsection (1) had been excluded by subsection (3).”

 

27. With regards to the Authority cited in point 23, I also refer to the following extracts from LORD RODGER OF EARLSFERRY in that case [2003] UKHL 40 :

 

“175. ...Under section 61(1)(a), if the debtor has not signed a document in the prescribed form containing all the prescribed terms, the agreement is "not properly executed", with the result that it "is enforceable against the debtor or hirer on an order of the court only": section 65(1). More particularly, in terms of section 127(3), if an agreement does not contain all the prescribed terms, the court is not to make an enforcement order unless the debtor has signed a document which does contain all the prescribed terms.”

 

28. The Courts attention is also drawn to the authority of the House of Lords in Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000) which confirms that where a credit hire company's agreement failed to stipulate the prescribed terms, it was rendered , as LORD HOFFMAN put it, "irredeemably unenforceable" quote:-

 

“© Order of the court

 

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable.”

 

29. The Defendant will further refer to extracts from the following Court of Appeal case which confirmed that where a Consumer Credit Agreement does not comply with the Act regarding prescribed terms it is unenforceable : London North Securities Ltd v Tony James Meadows & Anor [2005] EWCA Civ 956 (27 July 2005). To quote from LORD JUSTICE LLOYD :-

 

“69...It follows that we dismiss the appeal because, if the insurance premium was part of the total charge for credit, as we hold, then the amount of credit under the agreement was incorrectly stated. It should have been stated as £5,000, not £5,750. It is agreed that this is a breach of the Act which cannot be overcome.”

 

“71...Accordingly, we dismiss this appeal on the sole ground that, although the amount paid to discharge the arrears was part of the credit, the amount paid by way of the insurance premium was part of the total charge for credit, not of the credit itself, and therefore the amount of credit was incorrectly stated in the credit agreement and the credit agreement is unenforceable. ”

 

30.The Defendant would also bring to the Court’s attention that the Claimant is required by The Money Laundering Regulations 1993, 2003 and 2007 to keep key documents and credit agreements for 5 years after a business relationship has ended.

 

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

 

32. Therefore I respectfully request that the Court order the Claimant produce the original signed agreement before the Court to show the form and content of it and that it complies with the regulations referred to in this Defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

33. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked “Exhibit C”) unenforceable.

The need for a Default Notice

 

34. Notwithstanding the matters pleaded above, for a Creditor to be entitled to lawfully terminate a Regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, the Creditor must must under section 87(1) Consumer Credit Act 1974 serve a default notice compliant with the provisions of section 88 of the Act. To quote from section 87(1) of the Act :-

“87. Need for default notice.

 

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

 

(a) to terminate the agreement, or

 

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

 

© to recover possession of any goods or land, or

 

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

 

(e)to enforce any security.”

 

 

35. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, quote :-

 

 

“88. Contents and effect of default notice.

 

• (1) The default notice must be in the prescribed form and specify—
  

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2)A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

(3)....

 

 

Annotations:

Amendments (Textual)

F1 Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(1) ,

71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(2) , Sch. 2

F2 Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(2) , 71(2)

(with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1) , Sch. 1”

 

 

36. The word “must” in section 88(1) of the act quoted above, makes it clear that no variation to the prescribed form is acceptable, nor can it be dispensed with as a De Minimus issue.

 

37. I therefore note that, to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 (SI 2006/3094).

 

38. To quote from schedule 2 Para 3 of the Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as Amended, regarding the required notice period for remedy :-

 

“Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

 

3

A specification of:--

 

 

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

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters

complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date,

being a date [not less than fourteen days] after the date of service of the notice, before

which that action is to be taken; or

 

(d) ....

 

NOTES

Amendment

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

Date in force: 19 December 2006: see SI 2006/3094, reg 1.”

 

39. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages in the sum of the amount of the Default, plus £1,000 in substantial damages caused to credit reputation as confirmed by the Court of Appeal in Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

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

 

41. It is averred that the Claimant alternatively NASTYBANK issued a Default Notice dated XX June 2007 and subsequently served it on the defendant, by ordinary post. A copy of this Default Notice is attached to this defence marked “Exhibit E”.

 

42. It is submitted that the above Default Notice failed to comply with the provisions of section 88(2) of the Act (as amended by the Consumer Credit Act 2006) and those in the associated Regulations [Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as Amended]. Fourteen days were not allowed between the Date of Service of the Default Notice and the time laid out where the alleged breach needed to be remedied. I therefore put the Claimant to strict proof as to the Date of Service of said document.

 

43. The Default Notice stated that the purported breach was to be remedied within 14 days from the date of the Default Notice. From this evidence it is quite clear that absolutely no allowance had been made for postal delivery. If the Default Notice was posted on the Date it was issued, Deemed service by 1st class post would have occurred on the second day after posting. This is also known as the Date of Service. The 14 day notice period, required by the regulations would then have commenced on the the day following the Date of Service. By allowing insufficient time for service by post, the Claimant gave the Defendant effectively only 12 days notice for remedy following Date of Service, thus breaching section 88(2) of the Act (as amended) and accompanying regulations and rendering the Default Notice invalid.

 

 

Deemed Date of Service

 

44. It should be noted that under CPR 6.26 Service of Documents, the deemed date of service by first class post occurs quote :

 

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

45. I also refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on 8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting. The quoted practice direction is copied directly from the Valuation Office Agency (an agency of HMRC) website, Council Tax manual, at :-

 

http://www.voa.gov.uk/instructions/chapters/council_tax/council_tax_man_s3/Frame.htm

 

quote :-

“Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

 

• 
  
  • 
    
    • 
      
      • 
        
        • 1. Interpretation Act 1978, Section 7
          

         

       

    This states:-

  "7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

   

  • 
    
    • 
      
      • 
        
        • 2. Practice Direction
           
          Service of Documents - First and Second Class Mail
          

         

       

     

  "With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1.

Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2.

To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a)

in the case of first class mail, on the second working day after posting;

 

(b)

in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any band holiday.

3.

Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4.

This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8 March 1985

J R BICKFORD SMITH Senior Master Queen's Bench Division”

 

 

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

 

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

 

48. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

49. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX July 2007. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

Conclusion

 

50. The Claimant's case should not succeed as matters stand.

 

51. Having instigated these proceedings without any legal basis for doing so, having utterly disregarded the following matters the Defendant raised in correspondence prior to their commencement of proceedings including (see “Exhibit D” attached to this defence) :-

 

 

• The relevance of section 127(3) of the Consumer Credit Act 1974
  
• The Authority of the House of Lords on the importance of prescribed terms in a credit agreement and the consequent effect of section 127(3) of the Act.
  
• A Ruling from the Court of Appeal on the importance of prescribed terms within “the four corners” of a credit agreement and the consequent effect of section 127(3) of the Act.
  

 

 

• The fact that the application form copy the Claimant produced is entirely devoid of the prescribed terms within “the four corners” of the agreement,as required by the Regulations (SI 1983/1553).
  

 

• I believe the Claimant’s conduct and that of [iNSERT NAME] Solicitors amounts to unlawful harassment. Furthermore I believe the Claimant’s behaviour, and that of [iNSERT NAME] Solicitors is entirely vexatious and wholly unreasonable.
  

52. It is requested that the Court order the Claimant to produce the Original Credit Agreement mentioned in my Defence before the Court. Without production of the requested document the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

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

 

54. I respectfully ask the permission of the Court to amend this Defence when

the Claimant provides full disclosure of the requested documentation.

 

55. May I please insist on this case being transferred to XXX County Court which is in the jurisdiction in which I reside, as the Claimant is a well sourced financial institution whereas I am a Litigant in Person on very limited means.

 

Statement of Truth

 

I SHAKESPEARE62 , believe the above Defence Statement to be true and factual

 

 

Signed: ___SHAKESPEARE62_____________________ _______

 

Date: ____XX March 2009____________________ _______

Edited March 28, 2009 by shakespeare62

[shakespeare62]

My proposed AQ and Draft Order for Directions (not yet submitted) :-

 

1. N150 Allocation Questionnaire
   

Have you sent a copy of this completed form to the other party(ies)?

 

[X] Yes

[-] No

 

A......Settlement

 

Under the Civil Procedure Rules parties should make every effort to settle their case before the hearing. This could be by discussion or negotiation (such as a roundtable meeting or settlement conference) or by a more formal process such as mediation. The court will want to know what steps have been taken. Settling the case early can save costs, including court hearing fees.

 

For legal representatives only

 

I confirm that I have explained to my client the need to try to settle; the options available; and the possibility of costs sanctions if they refuse to try to settle.

 

[-] Have left that blank.

 

For all

 

Your answers to these questions may be considered by the court when it deals with the questions of costs: see Civil Procedure Rules Part 44.3 (4).

 

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

[-] Yes

[X] No

 

2. If Yes, do you want a one month stay?

 

[-] Yes

[X] No

 

3. Would you like the court to arrange a mediation appointment?

 

[-] Yes

[X] No

 

(A fee will be payable to the mediation provider appointed by the National Mediation Helpline.)

 

4. If you answered ‘No’ to question 1, please state below the reasons why you consider it inappropriate to try to settle the claim at this stage.

 

Reasons:

 

==========

The Claimant has been given every opportunity to to resolve this amicably, as outlined in sections 11, 12 and 51 of my defence, yet the Claimant has elected to proceed to and continue with litigation despite repeated and timely warnings that they were straying from their requirements under the Consumer Credit Act 1974 , associated Regulations and their duties under the Data Protection Act 1998, THEREBY GENERATING UNECESSARY COSTS AND COURT FEES

==========

 

B......Location of trial

Is there any reason why your claim needs to be heard at a particular court?

 

[X] Yes

[-] No

 

If Yes, say which court and why?

 

==========

The Claim should be heard at XXXX County Court (where the case has now been transferred) in accordance with the provisions of the CPR. I am a Litigant In Person on very limited means and this is my local Court, whereas the Claimant is a well sourced financial institution.

==========

 

C......Pre-action protocols

 

You are expected to comply with the relevant pre-action protocol.

 

[-] Yes

[X] No

 

If No, explain why?

 

==========

I am the Defendant and also a Litigant in Person.

==========

 

D......Case management information

 

What amount of the claim is in dispute?

 

==========

£6,XXX.XX

==========

Applications

 

Have you made any application(s) in this claim?

 

[-] Yes

[X] No

 

If Yes, what for? (e.g. summary judgment, add another party)

 

==========

Have left this blank

==========

 

For hearing on

 

==========

Have left this blank

==========

 

Witnesses

 

So far as you know at this stage, what witnesses of fact do you intend to call at the trial or final hearing including, if appropriate, yourself?

==========

 

Witness name

Shakespeare62

 

Witness to which facts

Witness to All the facts

 

==========

Experts

Do you wish to use expert evidence at the trial or final hearing?

 

[-] Yes

[X] No

 

Have you already copied any experts’ report(s) to the other party(ies)?

 

[-] None yet obtain Have left this blank

[-] Yes Have left this blank

[-] No Have left this blank

 

Do you consider the case suitable for a single joint expert in any field?

 

[-] Yes

[X] No

 

Please list any single joint experts you propose to use and any other experts you wish to rely on. Identify single joint experts with the initials ‘SJ’ after their name(s).

 

==========

Expert's Name

Have left this blank

 

Field of expertise (eg. orthopaedic surgeon, surveyor, engineer)

Have left this blank

==========

 

Do you want your expert(s) to give evidence orally at the trial or final hearing?

 

[-] Yes Have left this blank

[-] No Have left this blank

 

If Yes, give the reasons why you think oral evidence is necessary:

 

==========

Have left this blank

==========

 

Track

 

Which track do you consider is most suitable for your claim? Tick one box

 

[-] Small claims track

[X] fast track

[-] multi-track

 

If you have indicated a track which would not be the normal track for the claim, please give brief reasons for your choice

 

==========

It is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required original documentation by the claimant (CPR PD 16 7.3), should the claimant not have the original documentation required to progress this case I suggest that there will be no case to answer.

==========

 

E......Trial or final hearing

 

How long do you estimate the trial or final hearing will take?

 

[--] days Have left this blank

[4] hours

[--] minutes Have left this blank

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or final hearing?

 

[-] Yes

[X] No

 

If Yes, please give details

==========

Name

Have left this blank

 

Dates not available

Have left this blank

==========

 

 

F......Proposed directions

(Parties should agree directions wherever possible)

 

Have you attached a list of the directions you think appropriate for the management of the claim?

 

[X] Yes See Proposed Draft Directions below.

[-] No

 

If Yes, have they been agreed with the other party(ies)?

 

[-] Yes

[X] No

 

 

G......Costs

 

Do not complete this section if you have suggested your case is suitable for the small claims track or you have suggested one of the other tracks and you do not have a solicitor acting for you.

 

What is your estimate of your costs incurred to date?

[£----] Have left this blank

 

What do you estimate your overall costs are likely to be?

[£----] Have left this blank

 

In substantial cases these questions should be answered in compliance with CPR Part 43

 

H......Fee

 

Have you attached the fee for filing this allocation questionnaire?

 

[-] Yes

[X] No

 

An allocation fee is payable if your claim or counterclaim exceeds £1,500.

 

Additional fees will be payable at further stages of the court process.

 

I......Other information

 

Have you attached documents to this questionnaire?

[X] Yes See the additional Page Section-I Other Information below.

[-] No

 

Have you sent these documents to the other party(ies)?

[X] Yes

[-] No

 

If Yes, when did they receive them?

==========

Posted Today (tracked) which will be the date I sign this AQ - 2nd April

==========

 

Do you intend to make any applications in the immediate future?

 

[-] Yes

[X] No

 

If Yes, what for?

==========

Have left this blank

==========

 

In the space below, set out any other information you consider will help the judge to manage the claim.

==========

Have left this blank

==========

 

Signed

==========

Shakespeare62 [unsigned copy to solicitors]

==========

[Defendant]

 

Date

==========

2nd April 2009

==========

 

To the above N150 I added the following Sheet:

Quote:

 

_____________________________________________________________________________________

 

In the XXXX County Court

Claim number XXXX

 

Between:

 

NASTYBANK

Claimant

 

and

 

Shakespeare62

Defendant

 

N150 Allocation Questionnaire

Section I Other Information

 

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached Draft Order For Directions.

 

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;

 

Further, the Particulars of Claim provided by the Claimant are inadequate in order to fully appreciate the case I have to meet, in particular the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated and the Claimant's alleged entitlement to interest.

 

Failure of the Claimant to supply the Original Written Documentation in Court will inhibit the Court's ability to deal with the case (CPR PD 16 7.3). I refer to the authority of the House of Lords in the case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) where LORD NICHOLLS OF BIRKENHEAD made clear the following in paragraph 29 of his judgement :

 

“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. ...”

 

Without the Claimant filing with the Court and serving upon the Defendant fully particularised Particulars of Claim I am at a disadvantage and am unable to

serve a proper defence.

 

Finally I also attached additional Sheets to cover the Proposed Draft Order for Directions:

Quote :-

 

________________________________________________________________________ In the XXXX County Court

Claim number XXXX

 

Between:

 

NASTYBANK

Claimant

 

and

 

Shakespeare62

Defendant

 

Draft Order for Directions

 

1. Unless the Claimant shall have by 4.00 pm on 24th April 2009 filed in Court and served upon the Defendant fully particularised Particulars of Claim comprising but not limited to particulars of the agreement relied upon, the date on which it was made, the terms thereof and whether regulated and if so by what statutory provision, the means by which it was terminated, the manner by which the claim is calculated, the Claimant's alleged entitlement to interest, the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

2. In the event of compliance with paragraph 1 of this order, The following questions (a) to (d) shall be determined by a District Judge or Circuit Judge of this Court as preliminary issues on or after 19th June 2009 with a time estimate of 4 hours in advance of the main Hearing:

 

(a)Whether the Original Agreement made between the Claimant and Defendant was a properly executed Regulated Credit Card Agreement within the meaning of Part V of the Consumer Credit Act 1974 (the Act). In particular , with reference to sections 61 (1) (a),(b),© and 127(3) of the Act whether it contained the prescribed terms required by Regulation 6 and Schedule 6 of the Consumer Credit (Agreements) regulations 1983 (as amended).

 

(b)Whether the Claimant was, on or after XX June 2007, entitled to Serve upon the Defendant a Default Notice under the Consumer Credit Act 1974 Section 87.

 

©Whether the Claimant Served upon the Defendant a Default Notice which was in accordance with the Consumer Credit Act 1974 Section 88 and in the prescribed form.

 

(d)Whether the Claimant on, XX July 2007, was entitled to Terminate the agreement.

 

 

3. For the purpose of paragraph 2. above, Directions (a) to (d) below shall apply:

 

(a) Each party shall by 4/5/2009 give standard Disclosure of Documents by Lists limited to the Standard Disclosure of Documents on the preliminary issues to be determined.

 

(b) Any request for inspection or Copies of disclosed documents shall be made within 21 Days of the service of the Lists.

 

© There shall on 8/06/2009 be mutual and simultaneous exchange of Witness Statements limited to Statements on the preliminary issues to be determined.

 

(d) Not more than 7 and not less than 3 days before the start of the Hearing of the preliminary issues:

 

(i) The Claimant shall file a bundle of documents for the use of the Judge determining the preliminary issues which shall be agreed with the Defendant if possible.

 

(ii) Each party shall exchange and file their Skeleton Argument and chronologies.

 

4. Not later than 7 days after the delivery of Judgement at or following the hearing of the preliminary issues, the Claimant shall apply to the Court for a Case Management Conference.

 

5. If the Claim shall be settled the Claimant must immediately notify the Court whether or not it is then possible to file a Consent Order to give effect to the settlement.

 

6. Such further or other Directions as may be necessary.

 

7. Costs in the case.

Edited March 28, 2009 by shakespeare62

[shakespeare62]

Questions :

 

In response to my CPR 18 request, the claimants solicitors sent me a copy of the application form (which lacked prescribed terms) and a copy of the defective default notice.

 

However, no reference to these was made in the Particulars of Claim, consequently in my Embarrassed Defence I was obliged to state things like “the defendant denies (if it be alleged) that a valid default notice was served ...etc.), as I cannot defend against something not alleged in the Claim.

 

In the Allocation Questionnaire and the Draft Order for Directions I request the Court to order the Claimant to File and submit a fully particularised Particulars of Claim in accordance with CPR 16 PD 7.3, to allow me to defend against it.

 

I suspect the claimant will plead that they’ve already sent me a copy of the agreement in response to my CPR 18 request – but the point is that they must surely refer to the agreement etc. in the Particulars of Claim, specifically, also including references to default and termination of the Account .... as I pleaded in my embarrassed defence that their POC was insufficiently stated.

Edited March 28, 2009 by shakespeare62

[shakespeare62]

Particular thanks to andyorch, pt2537, surfaceagentx20, BRW, pandoranini and others upon whose experience I have drawn upon so far, in knocking together the above.

Edited March 29, 2009 by shakespeare62

[car2403]

Blimey! You've been busy!

 

Not sure why you'd want Fast Track - did you mean to tick Small Claims? The reasoning you've given for allocation to Fast Track lends itself more to SCT, IMHO.

 

Also not sure why you'd defend against insufficiently particularised POC in that way anyway, (although I can see where you've got it from looking at other threads, etc) as it seems more appropriate to request a Court Order to the effect of your Draft Order for Directions before allocation to track takes place?

 

In response to my CPR 18 request, the claimants solicitors sent me a copy of the application form (which lacked prescribed terms) and a copy of the defective default notice.

 

However, no reference to these was made in the Particulars of Claim, consequently in my Embarrassed Defence I was obliged to state things like “the defendant denies (if it be alleged) that a valid default notice was served ...etc.), as I cannot defend against something not alleged in the Claim.

In the Allocation Questionnaire and the Draft Order for Directions I request the Court to order the Claimant to File and submit a fully particularised Particulars of Claim in accordance with CPR 16 PD 7.3, to allow me to defend against it.

 

I suspect the claimant will plead that they’ve already sent me a copy of the agreement in response to my CPR 18 request – but the point is that they must surely refer to the agreement etc. in the Particulars of Claim, specifically, also including references to default and termination of the Account .... as I pleaded in my embarrassed defence that their POC was insufficiently stated.

This agreement should have been attached to the POC, but they must have used the Mass Production Centre, so they will probably get away with that at this stage. (Lends more support to seeking a Court Order for Directions / amended POC, by the way - you can't defend without seeing the agreement, disclosed correctly!)

 

The problem is that your defence won't have even been read - a claim is submitted, sent to the Defendant, the Defendant defends and both parties are sent AQ's to fill in. It isn't until the AQ's are reviewed and Allocation takes place that a Judge will look at the case - and that would just be a cursory glance at the file, too. Judges tend to like Judging, rather than "doing admin", as I'm sure you'll find out at a later date.

 

If you're wanting these issues sorting sharpish, you'd need to make an Application then. If you want the process to take as little time as possible, you can leave all this and deal with it all at the final hearing - the issue there will be that the Court will likely adjourn pending disclosure and amended POC/defence being submitted.

[shakespeare62]

Quote :-

Not sure why you'd want Fast Track - did you mean to tick Small Claims? The reasoning you've given for allocation to Fast Track lends itself more to SCT, IMHO.

 

The claim is for approx 6.5K which I thought placed it outside of the 5K limit for Small Claims Court . Please correct me if I'm wrong.

 

Also not sure why you'd defend against insufficiently particularised POC in that way anyway, (although I can see where you've got it from looking at other threads, etc) as it seems more appropriate to request a Court Order to the effect of your Draft Order for Directions before allocation to track takes place?

 

Apparently the particular claimant's standard procedure is to automatically apply for Summary Judgement on the grounds that the Defendants case 'has no merit'...then to discontinue if unsuccessful. Current Financial constraints would likely prevent me from paying for a Court Order Application at this point in time. The AQ tho' does need to be filed by end of Friday 3rd April.

 

This agreement should have been attached to the POC, but they must have used the Mass Production Centre, so they will probably get away with that at this stage. (Lends more support to seeking a Court Order for Directions / amended POC, by the way - you can't defend without seeing the agreement, disclosed correctly!)

 

The particular Court in Question - confirmed to me that it had issued the claim directly . I called the Court on receiving the claim to find out why I hadn't been issued with a password for MCOL - the answer was - there isn't one. So AoS and defence had to be submitted by post. The claim did not go through the Bulk Center.

 

The problem is that your defence won't have even been read - a claim is submitted, sent to the Defendant, the Defendant defends and both parties are sent AQ's to fill in. It isn't until the AQ's are reviewed and Allocation takes place that a Judge will look at the case - and that would just be a cursory glance at the file, too. Judges tend to like Judging, rather than "doing admin", as I'm sure you'll find out at a later date.

 

understood

 

If you're wanting these issues sorting sharpish, you'd need to make an Application then. If you want the process to take as little time as possible, you can leave all this and deal with it all at the final hearing - the issue there will be that the Court will likely adjourn pending disclosure and amended POC/defence being submitted.

 

In terms of options then - the quickest would be an Application which embodies the Draft Order for Directions but is presented as something else ? How would this affect the requirement to submit an AQ by this Friday (03 April) ? Should I be unable to afford the application - what is the alternative - to submit the AQ and Draft Order for Directions ?

 

Any tips on the above would be much appreciated.

Edited March 29, 2009 by shakespeare62

[havinastella]

Call me a sinic(spelling), but I wonder if the Judges in the SCT are used to defences like that!

 

Its superb, but even I got bored reading it. We have to start to wonder if the Judges give up the will to live as well.

 

JOgs

[42man]

I'd agree with what has been said above, i'd try and keep it short, clear (as can be) and concise....you seem to have learned a lot though Shakes !!!

[shakespeare62]

Thanks 42Man & HavinAStella.

 

So far then, no major caveats have been raised by anyone on my proposed AQ & Draft order (bearing in mind the Defence had already been submitted.).

 

If anyone does spot anything on the AQ / Draft Order which they think should be amended please let me know.

[shakespeare62]

In the meantime Here's some more stuff I've learn't since filing my Defence which may be useful to those following in my footsteps :-

 

1) In the Defence, be brief. Don't go into details about case law. Limit it to denying the Claimants assertions (as appropriate). The detailed defence containing all the case law etc. is effectivley included in the Witness Statement which happens after the AQ Stage (see my Draft Order which proposes a date for exchanging Witness Statements

 

So points 1 - 9 of my Defence were really all that was needed for the initial Defence. In analysis - I don't think any real harm done, this isn't an a defence arguing over circumstantial evidence.

 

A good example of such a defence is here by SurfaceAgentX20 :-

http://www.consumeractiongroup.co.uk/forum/legal-issues/158690-marlins-arrow-global-have.html#post1698889

 

Also here by andyorch - which contains an embarrassed pleading :-

http://www.consumeractiongroup.co.uk/forum/legal-issues/167044-ccj-court-claim-form-5.html#post1850338

[shakespeare62]

In terms of AQ and Draft Order Tactics I've also learnt

 

1) Return the AQ to the Court no earlier than the last day for filing it.

see surfaceAgentX20's (& I'm sure anyorch will confirm the same) at:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/158690-marlins-arrow-global-have-4.html#post1796548

 

2) Don't send the claimant a copy of the AQ / Draft Order. it's nice, but NOT a requirement under CPR 26.3(6) and they almost certainly won't be sending you a copy of theirs. see X20's link below :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/158690-marlins-arrow-global-have-4.html#post1796688

 

I'll need to 'tweak my AQ slightly to accommodate the above changes. I'll repost the amended AQ shortly

Edited March 30, 2009 by shakespeare62

[car2403]

The issue with seeking advice on a forum like this is that you'll get conflicting opinions, some of which are neither right nor wrong.

 

As you're a litigant in person, you'll be given some leeway in adhering to procedure anyway.

 

For me, your Defence should be sufficiently stated so as to respond to the allegations put forward in the claim - that includes stating any reasoning for the issuance of a Defence on those allegations, including the basis (usually caselaw) that you consider you can Defend. (I'd also refer you to CPR Part 16, Practice Direction 10.2 and 10.3)

 

I would also always advise returning documentation to the Court within sufficient time to allow it to be received - any document received late, even if the post is to blame, would be detrimental to the claim should it be dismissed by the Court. I would also suggest that anything that is sent to the Court should be served on the other party - admittedly they don't play ball like this, but we need to take the moral high ground. (Even if that results in altitude sickness!!!)

[shakespeare62]

1. N150 Allocation Questionnaire
   

Have you sent a copy of this completed form to the other party(ies)?

 

[-] Yes

[X] No

 

A......Settlement

Under the Civil Procedure Rules parties should make every effort to settle their case before the hearing. This could be by discussion or negotiation (such as a roundtable meeting or settlement conference) or by a more formal process such as mediation. The court will want to know what steps have been taken. Settling the case early can save costs, including court hearing fees.

 

 

For legal representatives only

 

I confirm that I have explained to my client the need to try to settle; the options available; and the possibility of costs sanctions if they refuse to try to settle.

[-] Have left that blank.

 

For all

Your answers to these questions may be considered by the court when it deals with the questions of costs: see Civil Procedure Rules Part 44.3 (4).

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?

 

[-] Yes

[X] No

 

 

2. If Yes, do you want a one month stay?

[-] Yes

[X] No

 

 

3. Would you like the court to arrange a mediation appointment?

[-] Yes

[X] No

(A fee will be payable to the mediation provider appointed by the National Mediation Helpline.)

4. If you answered ‘No’ to question 1, please state below the reasons why you consider it inappropriate to try to settle the claim at this stage.

 

 

Reasons:

==========

The Claimant has been given every opportunity to to resolve this amicably, as outlined in sections 11, 12 and 51 of my defence, yet the Claimant has elected to proceed to and continue with litigation despite repeated and timely warnings that they were straying from their requirements under the Consumer Credit Act 1974 , associated Regulations and their duties under the Data Protection Act 1998, THEREBY GENERATING UNECESSARY COSTS AND COURT FEES

==========

 

B......Location of trial

Is there any reason why your claim needs to be heard at a particular court?

 

 

[X] Yes

[-] No

 

 

If Yes, say which court and why?

==========

The Claim should be heard at XXXX County Court (where the case has now been transferred) in accordance with the provisions of the CPR. I am a Litigant In Person on very limited means and this is my local Court, whereas the Claimant is a well sourced financial institution.

==========

C......Pre-action protocols

You are expected to comply with the relevant pre-action protocol.

[-] Yes

[X] No

 

 

If No, explain why?

==========

I am the Defendant and also a Litigant in Person.

==========

 

 

D......Case management information

 

 

What amount of the claim is in dispute?

 

==========

£6,XXX.XX

==========

Applications

Have you made any application(s) in this claim?

[-] Yes

[X] No

 

 

If Yes, what for? (e.g. summary judgment, add another party)

=========

Have left this blank

==========

For hearing on

==========

Have left this blank

==========

 

 

Witnesses

 

 

So far as you know at this stage, what witnesses of fact do you intend to call at the trial or final hearing including, if appropriate, yourself?

==========

Witness name

Shakespeare62

 

 

Witness to which facts

Witness to All the facts

==========

 

Experts

Do you wish to use expert evidence at the trial or final hearing?

[-] Yes

[X] No

Have you already copied any experts’ report(s) to the other party(ies)?

[-] None yet obtain Have left this blank

[-] Yes Have left this blank

[-] No Have left this blank

 

 

Do you consider the case suitable for a single joint expert in any field?

[-] Yes

[X] No

 

 

Please list any single joint experts you propose to use and any other experts you wish to rely on. Identify single joint experts with the initials ‘SJ’ after their name(s).

 

 

==========

Expert's Name

Have left this blank

 

 

Field of expertise (eg. orthopaedic surgeon, surveyor, engineer)

Have left this blank

==========

 

 

Do you want your expert(s) to give evidence orally at the trial or final hearing?

 

 

[-] Yes Have left this blank

[-] No Have left this blank

 

 

If Yes, give the reasons why you think oral evidence is necessary:

==========

Have left this blank

==========

 

 

Track

Which track do you consider is most suitable for your claim? Tick one box

[-] Small claims track

[X] fast track

[-] multi-track

 

 

If you have indicated a track which would not be the normal track for the claim, please give brief reasons for your choice

==========

It is respectfully requested this case be allocated to the Fast Track, it is a straight forward case and is easily resolved on production of the required original documentation by the claimant (CPR PD 16 7.3), should the claimant not have the original documentation required to progress this case I suggest that there will be no case to answer.

 

 

==========

E......Trial or final hearing

 

 

How long do you estimate the trial or final hearing will take?

 

 

[--] days Have left this blank

[4] hours

[--] minutes Have left this blank

 

 

Are there any days when you, an expert or an essential witness will not be able to attend court for the trial or final hearing?

 

 

[-] Yes

[X] No

 

 

If Yes, please give details

==========

Name

Have left this blank

 

 

Dates not available

Have left this blank

==========

 

 

F......Proposed directions

(Parties should agree directions wherever possible)

 

 

Have you attached a list of the directions you think appropriate for the management of the claim?

 

 

[X] Yes See Proposed Draft Directions below.

[-] No

 

 

If Yes, have they been agreed with the other party(ies)?

[-] Yes

[X] No

 

 

G......Costs

 

 

Do not complete this section if you have suggested your case is suitable for the small claims track or you have suggested one of the other tracks and you do not have a solicitor acting for you.

 

 

What is your estimate of your costs incurred to date?

[£----] Have left this blank

 

 

What do you estimate your overall costs are likely to be?

 

 

[£----] Have left this blank

 

 

In substantial cases these questions should be answered in compliance with CPR Part 43

 

 

H......Fee

Have you attached the fee for filing this allocation questionnaire?

 

 

[-] Yes

[X] No

 

 

An allocation fee is payable if your claim or counterclaim exceeds £1,500.

 

 

Additional fees will be payable at further stages of the court process.

 

 

I......Other information

 

 

Have you attached documents to this questionnaire?

[X] Yes See the additional Page Section-I Other Information below.

[-] No

 

 

Have you sent these documents to the other party(ies)?

[-] Yes -

[X] No

 

 

If Yes, when did they receive them?

==========

Have left this blank

 

 

 

Do you intend to make any applications in the immediate future?

 

 

[-] Yes

[X] No

 

 

If Yes, what for?

==========

Have left this blank

==========

In the space below, set out any other information you consider will help the judge to manage the claim.

 

 

==========

Have left this blank.

==========

 

Signed

==========

Shakespeare62 [NO copy to solicitors]

==========

[Defendant]

 

Date

==========

2nd April 2009

==========

[shakespeare62]

Above is my proposed amended AQ (changes in red). Attachments for section I 'Other Information' and the Draft Order for Directions are currently unchanged and are viewable in post #4 above

 

Any thoughts / comments are much appreciated

Edited March 30, 2009 by shakespeare62

[shakespeare62]

bump...

Edited March 30, 2009 by shakespeare62

[shakespeare62]

The issue with seeking advice on a forum like this is that you'll get conflicting opinions, some of which are neither right nor wrong.

 

As you're a litigant in person, you'll be given some leeway in adhering to procedure anyway.

 

For me, your Defence should be sufficiently stated so as to respond to the allegations put forward in the claim - that includes stating any reasoning for the issuance of a Defence on those allegations, including the basis (usually caselaw) that you consider you can Defend. (I'd also refer you to CPR Part 16, Practice Direction 10.2 and 10.3)

 

I would also always advise returning documentation to the Court within sufficient time to allow it to be received - any document received late, even if the post is to blame, would be detrimental to the claim should it be dismissed by the Court. I would also suggest that anything that is sent to the Court should be served on the other party - admittedly they don't play ball like this, but we need to take the moral high ground. (Even if that results in altitude sickness!!!)

 

Thanks for the pointers Chris.... in view of your advice, I'll file my AQ's to the Court, in person, by Hand on the day of the deadline - and I'll make sure I get a receipt as proof it's been filed in time.

[shakespeare62]

Ok, a quick update. It's close to match point.

 

1) I submitted my AQ and Draft Order for Directions, by hand, at the Court Office 5 mins before the 4.00 pm deadline of 3rd April.

 

2) There were some minor amendments I made to them before submission which I'll copy and paste up later for the benefit of others.

 

3) I decided to take X20's advice and not forward a copy of my AQ to the opposition on the basis that they wouldn't doing that for me and that it's not a requirement under CPR. You know wot ? X20 was right. They didn't send me a copy of theirs.

 

4) The District Judge issued an order 10 days ago for the Claimant to file an AQ within 7 days of service or their claim would be struck out. No AQ has apparently been filed to date (I phoned the Court this morning)

5) I've faxed the Court today to request formal confirmation the Claimant has failed to comply with the Court Order, and requested the claim be struck out as per the Court Order. (It's now a month past the required AQ submission Date)

 

I'll keep you posted. Thanks 4 everyone's input to date.

Edited May 1, 2009 by shakespeare62

[42man]

Shakespeare....just in case you hadn't spotted this - A good link where the oppsing side fail to file an AQ - Help needed with a very tight one...thank you!!

[shakespeare62]

Thanks 42Man ...I'll take a look now.

[shakespeare62]

Yes it's a riveting read and v. similar circumstances to my own. Very useful procedures to follow. I'll keep everyone updated.

[shakespeare62]

** UPDATE **

 

Received notification from the Court on Friday that the Claimant's Solicitors have applied for Summary Judgement. (I will post up scan's of the relevant docs later)

 

In the meantime I've acted swiftly to challenge the authenticity of the alleged credit agreement docs filed with the Summary Judgement Application (i.e. a microfiche of an application form - signed but no prescribed terms, and a separate document with prescribed terms but no signature - probably cobbled together from somewhere else)

 

The claimant will receive the Demand for physical Inspection of the original application form - by special delivery today (Monday). Copy of this letter is below:- (Note the Default Notice is defective as mentioned in detail in my original Defence - this will be included in my Defence against the Claimant's Summary Judgement Application)

Edited May 11, 2009 by shakespeare62

[shakespeare62]

[My Address]

 

 

[solicitors Address]

 

 

Your Ref: XXXXXXXX

 

 

Sent by Fax no: XXXX –XXX – XXX and post

 

IMPORTANT

09 May 2009

 

 

Dear Madam

 

Re: [Claimant v Shakepeare62 Claim No xxxx]

 

CPR 31.15 Request

 

On 08 May 09 I received a witness statement from you dated 21 April, in relation to an Application for Summary Judgement which was forwarded to me by [Court Name].

 

With reference to CPR 31.14, Please treat this letter as my request made under CPR 31.15 for the physical inspection of the following document(s) mentioned in paragraphs 3(i) and 3(ii) of your :- Witness Statement :-

 

1.Credit Card Application Form

 

You should ensure compliance with your CPR 31 duties and ensure that the original of the document(s) I have requested is available for inspection by me within 7 days of your receiving this letter.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested Further, where I have requested inspection 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.

 

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 against Summary Judgement. 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 against Summary Judgement, 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

 

 

Shakespeare62

 

cc District Judge, [Court Name]

[shakespeare62]

Here's what X20 had to say on the matter of physical inspection and CPR 31.14 (and CPR 31.15 - which allows it)

 

"Well, for one it's a means of demanding a right to physically inspect the original agreement. And for two, it's a means of pointing out to your creditor faced with a demand for physical inspection of the original but who ain't got the darn thing to show you, that you just launched a torpedo at them and unless they change course, sometime in the next seven days there's gonna be a big hole blast through their armoury.

 

Defendants should make maximum use of the right to physically inspect documents wherever possible. If all Defendants did that it might end the charade of creditors producing paper mock-ups."

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-5.html#post1824144