Court Claim for O/draft from Nthmtn (CCBC)

[RobinWayRobinme]

Hi R&B

Your OK filing SA within 14 days, but you should include your document bundle with Appellants Notice. I know you will not have all documents available, transcript judgment being 1, but insert pages saying, in this example, transcript to follow. Bundle can then be indexed and paginated and when other docs available re-index and re-paginate if necessary, hole punch and sent to court for inclusion in bundle.

 

Document bundle at this stage is just for you and the court. Respondent is only served with a copy of document bundle when you get permission to appeal.

Robin

[RobinWayRobinme]

robin, i take it post 246 (revised in small by cb in 256) in the above thread is ur complete skeleton argument in support of your grounds? Yes correct (assume you mean 247 and 256).

under the guidance, i assumed the grounds had to be a separate sheet, numbering the points at issue? Yes correct and quoting whether CPR 52.11(3) a, b, or c

Robin

[r&b]

mmm i only have a) & b) but i guess its either wrong in law or procedural anyhow:

 

PART 52 - APPEALS - Ministry of Justice

[RobinWayRobinme]

oops yes a or b, mind was into set asides

[r&b]

ok what do we think of this first run? ran to a lot more than i thought, not sure about the inclusion of 12 &13 tho:

 

GROUNDS FOR APPEAL:

 

1. This appeal is made under CPR52.11(a), regarding the Summary Judgment made by District Judge XXXXX at XXXXXX County Court on XX October 2009.

2. The case centres on the lawful termination and enforcement procedures for a bank overdraft between the creditor, Lloyds TSB Bank Plc and the account holder r&b.

3. The District Judge misdirected himself by accepting the lawful termination and enforcement procedures enacted by the Respondent. The Respondent suggested that the issuance of a Default Notice in accordance with s.87 of the Consumer Credit Act 1974 (under which it was common ground, this debt resides) allows them the benefits of enforcement.

4. The Appellant claims that this is incorrect in law and under statute and that the correct procedure to terminate and enforce a debt under a running credit account regulated by the Consumer Credit Act 1974, as set out in s.10 of the Act (see s.16 Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005) at the Court Of Appeal before May LJ, Rix LJ and J. Parker LJ , wont put that in just for ref), should be to issue notices under s.76(1) and s.98(1) of the Act to allow lawful enforcement.

5. The Appellant contends that a Default Notice would be required only in the event that a fully compliant regulated credit agreement under the Act be produced. As the Respondent correctly states, overdrafts are exempt from part V of the Act, thereby releasing overdrafts from this requirement and necessitating the s.78(1) and s.98(1) notices.

6. By the Respondents own admission, we have had before the Court, ALL available documentation. Therefore no such Agreement exists.

7. The District Judge incorrectly took the Respondents suggestion that s.76(6) & s.98(6) overruled s.76(1)& s.98(1) in this case regarding the breach of an agreement regulated under the Act. The Respondent has failed to produce any such agreement, as none is required under part V of the Act, and has admitted that no further documentation is available, thereby invalidating this judgment.

8. Should the points in 3. to 7. inclusive above be upheld, this would be fatal to the Respondents case.

9. Should the Default Notice be deemed as the correct method for termination and enforcement in this case, the DJ has misdirected himself in taking the Respondents claim that CPR6, in particular CPR6.26, be taken as the authority for service of these documents.

10. The Civil Procedure Rules are designed for Court documentation and have no bearing on documentation under statute and show no provision for such.

11. The Interpretation Act 1978 is the correct authority s.7 expressly states that this is the case. It states that it is for any Act that requires any document to be served. This is further backed by the 1985 amendment of the relevant Practice Direction regarding the different methods of postage and service, something which is omitted in the Civil Procedure Rules, which only allow for first class or next business day delivery, as required for court related documents.

12. The Appellant suggests that as the Respondent is unable to provide proof of service as required under the Interpretation Act 1978 s.7 Practice Direction - Service of Documents, service must be deemed as second class, thereby not allowing the required date of rectification to be 14 clear days notice required under s.88(1)&(2) of the Act.

13. The Respondent suggests in the Witness Statement submitted by XXXX (page.x), that they always use first class postage for these documents. The distinction between postage and service is marked. The postage may not have been enacted for several days subsequent to the Default Notice having been printed for example.

14. Further, the Witness Statement does not elucidate as to the date of postage, nor to which postal service they subscribe for any postage. I have received mail from the Respondent in the past, labelled as UK MAIL which according to their website (www.ukmail.biz/UKDeliveries) has a Business Class service of two day definite delivery, which would again see the Default Notice invalidated.

15. These issues cast doubt on the validity of the Default Notice which were not taken into account by the District Judge.

16.The District Judge incorrectly took it, that Respondent did not need to produce a copy of the Default Notice and that they would have produced a fully compliant Default Notice under the Consumer Credit Agreement 1974 for this debt.

17. The Act requires very strict requirements under s.88 in order for creditors to be able to enforce debts and enjoy the benefits of s.87 of the Act.

18. Without sight of a copy of the Default Notice the District Judge allowed the hearsay evidence of the Witness Statement of XX to influence his decision. At no point did the District Judge question whether the requirements under the Act had been met on the actual document. A simple, blank template of a current Default Notice was produced and the Respondent has admitted that no copy of an original is available. No relevance was attached to the need for an original as the District Judge simply took the Respondents word that this supposedly vital piece of documentation would have been exactly as required, simply because the Respondent was a large financial institution who issued many of these notices and must therefore get every single one correct.

19. The Appellant suggests that as the Act is very specific on these points, the burden of proof lies with the Respondent, not as the Respondent and therefore the District Judge suggests, with the Appellant. By the Respondents own admission no original copy of the Default Notice is kept on file, merely a computer record of when it was printed.

20. The District Judge further misdirected himself regarding the content of said Default Notice. In particular, the sums claimed which must be accurate according to the Act. The District Judge upheld the Respondent’s contention that any unlawful sums claimed under the current unlawful bank charges case in the House of Lords, could not possibly be calculated by the Respondent, as they had no idea what sums would be claimed. This led to there being unlawful charges included in any sums claimed within the Default Notice, making the sums inaccurate and invalidating the Default Notice.

21. As counsel for the Respondent admitted he was actually dealing with the unlawful charges case directly, it can be assumed that the Respondent is very well versed in this case and can easily calculate what sums are unlawful. Indeed the Respondent provided a calculation of these sums, referred to in the judgment as the amount stayed pending the outcome of the aforementioned case.

22. The above reasons show that the termination and subsequent efforts to enforce this debt are fundamentally flawed and that the District Judge misdirected himself on several points.

The Respondent unlawfully terminated and enforced this debt in the first instance by issuing a Default Notice and Final Demand, where the correct method for termination should have been notices under s.76(1)&s98(1) of the Consumer Credit Act 1974, due to the omission of these type of debts from the obligation of agreements under Part V of the Act.

In any event, the Respondent is unable to prove that a fully compliant Default Notice was ever issued and further, that it was ever correctly served allowing the required time for rectification.

23. The Respondent admits that all the available evidence has been before the Court and that no copies of any further documentation are available to prove their claims. The Appellant suggests that this is fatal to their case and it should be struck out as having no chance of success.

 

 

any thoughts welcome

Edited October 19, 2009 by r&b
numbering

[AndyOrch]

First class R&B

 

I could not improve on that in anyway;)

 

 

Regards

 

Andy

[r&b]

thanks Andy

i take that as praise indeed.

[RobinWayRobinme]

Hi R&B

The argument sounds good to me. However, and I would appreciate andys opinion, it comes across as both your grounds of appeal and your skeleton argument in one. IMO your grounds of appeal are just your grounds and you should focus on what you are challenging at the hearing of the lower court ie DJ wrong/ misled or otherwise or unjust because abc.

 

Your skeleton argument then deals with each ground and it is there that you would introduce all your arguments backed by authorities etc.

As previuosly said, would appreciate others opinion on this.

 

Robin

[r&b]

see post 295 for final version

Edited October 21, 2009 by r&b
tidying up thread

[AndyOrch]

Valid comments Robin

 

I agree that they should be seperate, never the less excellent argument coming together.

 

Regards

 

Andy

[RobinWayRobinme]

I agree andy, excellent argument. Will read through GoA in a bit. My understanding from research was that each individual ground needs to be brief and included in( were possible) 1 paragraph so that each ground can be looked at and determined by the appeal court as a ground or not.

It just appears that p3&4 are 1 ground and p5-7 is another & p8 to be included in SA.

 

I'll look in a little later and try to elaborate on what I'm saying.

Robin

[r&b]

andy thanks for the continued help.

 

robin,ditto.

i think i cud prob lose pts.6 & 8 in all honesty. im very keen to get pt 7. across. so i think pt5. builds/explains that case. pts 17/18 are arguably for the SA but im thinking its a fine line between keeping the appeal judges eye on the ball and complying fully to the letter of the rules? (bit of LIP license maybe?)

pt19 prob doesnt belong on there either....but on the other directions of the N161.

id still appreciate ur further elaboration

thanks r&b

[RobinWayRobinme]

Hi R&B, just made some comments re my last post.

 

thanks robin i take your point....ive amended accordingly:

 

GROUNDS FOR APPEAL:

 

1. This appeal is made under CPR52.11(a), regarding the errors made in the Summary Judgment made by District Judge XXXXX at XXXXXX County Court on XX October 2009.

2. The case centres on the lawful termination and enforcement procedures for a bank overdraft between the creditor, Lloyds TSB Bank Plc and the account holder r&b.

3. The District Judge misdirected himself by accepting the lawful termination and enforcement procedures enacted by the Respondent. The Respondent suggested that the issuance of a Default Notice in accordance with s.87 of the Consumer Credit Act 1974 (under which it was common ground, this debt resides) allows them the benefits of enforcement.

 

3. The DJ misdirected himself by accepting the argument of the Respondent that a DN in accordance with s.87 of CCA allows them the benefits of enforcement, when the correct procedure to terminate & enforce a debt under a running credit account regulated by CCA s10 should be to issue notices under s.76(1) & s.98(1) to allow lawfull enforcement.

 

4. The Appellant claims that this is incorrect in law and under statute and that the correct procedure to terminate and enforce a debt under a running credit account regulated by the Consumer Credit Act 1974, as set out in s.10 of the Act (see s.16 Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005) at the Court Of Appeal before May LJ, Rix LJ and J. Parker LJ , wont put that in just for ref), should be to issue notices under s.76(1) and s.98(1) of the Act to allow lawful enforcement.

 

5. The Appellant contends that the District Judge was wrong in that a Default Notice would be required only in the event that a fully compliant regulated credit agreement under the Act be produced. As the Respondent correctly states, overdrafts are exempt from part V of the Act, thereby releasing overdrafts from this requirement and necessitating the s.78(1) and s.98(1) notices.

 

5. The DJ misdirected himself in that a DN is not required as there is no Agreement and overdrafts are exempt from part V of the Act and that being the case wrongly accepted the Respondents suggestion that s.76(6) & s.98(6) overruled s.76(1) & s.98(1) when it does not.

 

6. By the Respondents own admission, we have had before the Court, ALL available documentation. Therefore no such Agreement exists.

7. The District Judge incorrectly took the Respondents suggestion that s.76(6) & s.98(6) overruled s.76(1)& s.98(1) in this case regarding the breach of an agreement regulated under the Act. The Respondent has failed to produce any such agreement, as none is required under part V of the Act, and has admitted that no further documentation is available, thereby invalidating this judgment.

8. Should the points in 3. to 7. inclusive above be upheld, nothing further would be required as this would be fatal to the Respondents case. Skeleton Argument

9. Should the Default Notice be deemed as the correct method for termination and enforcement in this case, the following applies:

10. The District Judge misdirected himself in taking the Respondents claim that CPR6, in particular CPR6.26, be taken as the authority for service of these documents. The Civil Procedure Rules are designed for Court documentation and have no bearing on documentation under statute and show no provision for such.

11. The District Judge misdirected himself in agreeing with the Respondent’s suggestion that the Interpretation Act 1978 and amended Practice Direction (1985) was superseded by the Civil Procedure Rules as the correct authority for postage of any document under statute.

12. The District Judge agreed with the Respondent’s suggestion in the Witness Statement, submitted by XXXX (page.x), that they always use first class postage for these documents. No distinction was entertained between postage and service. The Appellant suggests this difference is marked. The postage may not have been enacted for several days subsequent to the Default Notice having been issued/printed for example.

13. Further, the District Judge took no account of the date of postage, which the aforementioned Witness Statement does not elucidate upon, merely the date of issue from the computer system, nor which postal service was used for any postage. This casts further doubt on the validity of the Default Notice, which requires the adherence to strict timelines under statute.

 

14. The Appellant suggests that without sight of a copy of the Default Notice the District Judge incorrectly allowed the hearsay evidence of the Witness Statement of XX to influence his decision. At no point did the District Judge question the Respondent’s claim that they simply had too many Default Notices to keep these supposedly vital documents on file, nor whether the requirements under the Act had been met on the actual document. A simple, blank template of a current Default Notice was produced and the Respondent has admitted that no copy of an original is available. No relevance was attached to the need for an original to prove the validity of the Default Notice, as the District Judge simply took the Respondents word that this vital piece of documentation would have been exactly as required, purely because the Respondent was a large financial institution who issued many of these notices and must therefore get every single one correct. The Appellant suggests the District Judge erred on this point.

15. The Appellant suggests that as the Act is very specific on the form and content of such notices, the burden of proof lies with the Respondent, not as the District Judge and the Respondent suggest, with the Appellant. By the Respondent’s own admission no original copy of the Default Notice is kept on file, merely a computer record of when it was printed, not posted nor served.

16. The District Judge further misdirected himself regarding the content of said Default Notice. In particular, the sums claimed which must be accurate according to the Act. The District Judge upheld the Respondent’s contention that any unlawful sums claimed under the current unlawful bank charges case in the House of Lords, could not possibly be calculated by the Respondent, as they had no idea what sums would be claimed. The Appellant suggests that this led to there being unlawful charges included in any sums claimed within the Default Notice, making the sums inaccurate and invalidating the Default Notice.

17. The District Judge failed to acknowledge the fact that, as counsel for the Respondent admitted he was actually dealing with the unlawful charges case directly, it can be assumed that the Respondent is very well versed in the case regarding unlawful charges, and can easily calculate what sums are unlawful. Indeed the Respondent provided a calculation of these sums, referred to in the judgment as the amount stayed pending the outcome of the aforementioned case.

18. The above reasons show that the termination and subsequent efforts to enforce this debt are fundamentally flawed and that the District Judge misdirected himself on several points.

The Respondent unlawfully terminated and enforced this debt in the first instance by issuing a Default Notice, where the correct method for termination should have been notices under s.76(1) & s98(1) of the Consumer Credit Act 1974, due to the omission of these type of debts from the obligation of agreements under Part V of the Act.

In any event, the Respondent is unable to prove that a fully compliant Default Notice was ever issued and further, that it was ever correctly served allowing the required time for rectification. The District Judge made error in accounting these facts to the judgment.

19. The Respondent admits that all the available evidence has been before the Court and that no copies of any further documentation are available to prove their claims. The Appellant suggests that this is fatal to their case and it should be struck out as having no chance of success

 

any further thoughts

thanks r&b

 

Must point out R&B that any suggestions I have made are from research I have carried out and help from other caggers in preperation of my GoA and SA. Your argument appears sound and plausible. I can only speak on basis of how I presented my grounds of appeal and skeleton argument. I am still awaiting my permission to appeal so I have no other basis in making any suggestions apart from my own interpretation of all my research. I have only gone down to p8 to give an idea of how my mind has dealt with this and keeping the grounds and argument seperate. Comments from anyone else with experience of appeals may be helpful.

Robin

[shakespeare62]

I think points 12, 13 & 14 look good and provide a powerful argument why the letter is deemed to have been sent by 2nd class post - according to the 1985 Practice Direction on the Interpretation Act 1978.

 

I think you need some more experienced opinion on this. Seeing as you're short of time -what about hitting the red triangle and asking the site team to look in ? This is concerning an appeal and you're fighting back.

[r&b]

thanks for the input guys.

 

robin i understand fully and appreciate its your own thoughts but i have been keeping up with ur thread (tho no input as it was beyond my experience) and your methodology seems sound to me so im happy to trust your input.

 

shakey thanks, as usual your input is welcomed and trusted. i think a few of the site team have been looking in and i dont think im that far off, bit of simplification perhaps as robin suggests. dont like to bother them but if i find any probs i ll do as u suggest.

 

many thanks r&b

[RobinWayRobinme]

Thanks R&B

Only other thing I'd point out at this stage is that it is more likely than not that just on application permission to appeal will be turned down (understand happens most times) however when you attend hearing for permission to appeal you will be armed with your skeleton argument.

Robin

[r&b]

Thanks R&B

Only other thing I'd point out at this stage is that it is more likely than not that just on application permission to appeal will be turned down (understand happens most times) however when you attend hearing for permission to appeal you will be armed with your skeleton argument.

Robin

 

oh rite..wasnt expecting that....i assumed there was no hearing for permission to appeal!!! im pretty sure i could have got that from the DJ but he said it would be better to use this route, which is odd?

so is the hearing automatic, or do i need to press for that in another application should it be turned down?

[RobinWayRobinme]

It would be best to expect a hearing for permission to appeal, but it will just be between you and judge. Respondent does not normally attend, but can do so if they choose but cannot get costs. What I have seen happen before is that hearing for permission to appeal just before appeal hearing proper. Sounds daft doesn't it because if they do that they must be assuming that permission will be given in order to list the appeal imediately after so why have 1st hearing?.

Robin

[RobinWayRobinme]

oh rite..wasnt expecting that....i assumed there was no hearing for permission to appeal!!! im pretty sure i could have got that from the DJ but he said it would be better to use this route Assume said to give you time to think about your actual grounds, as it did in my case, which is odd?

so is the hearing automatic, or do i need to press for that in another application should it be turned down?

Robin

[r&b]

ok wot abt 3rd time lucky...lol:

 

GROUNDS FOR APPEAL:

 

1. This appeal is made under CPR52.11(a), regarding the errors made in the Summary Judgment made by District Judge xxxx at xxxxx County Court on xx October 2009.

2. The case centres on the lawful termination and enforcement procedures for a bank overdraft between the creditor, Lloyds TSB Bank Plc and the account holder r&b, it was common ground that this debt is a running credit agreement defined under s.10 of the Consumer Credit Act 1974 but exempt from PartV agreement restrictions.

3. The District Judge misdirected himself in accepting the argument of the Respondent, that a Default Notice in accordance with s.87 of the Consumer Credit Act 1974, allows the Respondent the benefit of enforcement, when the correct procedure to terminate and enforce a debt under a running credit account, defined by s.10 of the Act but exempt from PartV agreement restrictions, should be to issue compliant notices under s.76(1) & s.98(1) of the Act, in order to allow lawful enforcement.

4. The District Judge misdirected himself in accepting that a Default Notice was required, as there is no credit agreement due to the exemption under PartV of the Act, as admitted by the Respondent, on which to issue one, and wrongly accepted the Respondent’s suggestion that s.76(6) & s.98(6) overruled s.76(1) & s.98(1), which would require such an agreement.

5. Should the Default Notice be deemed as the correct method for termination and enforcement in this case, the following applies:

6. The District Judge misdirected himself in agreeing with the Respondent’s claim that CPR6, in particular CPR6.26 which is designed for Court documentation and has no bearing on documentation under statute and show no provision for such, be taken as the authority for postage and service of documents required under statute and that they have superseded the Interpretation Act 1978 and amended Practice Direction (1985) as such authority.

7. The District Judge misdirected himself in not making the distinction of required proof of postage and service, which the Appellant suggests is marked, by taking the suggestion of the Respondent in the Witness Statement submitted by xxxx dated xx September (section4.) that they always use Royal Mail First Class Postage for these documents and that it would have necessitated postage on the day of manufacture in order to have been compliant to the Act, having previously admitted that no proof of postage was available.

8. The District Judge misdirected himself in allowing the Respondent’s hearsay evidence of the witness statement by xxxx that the Default Notice would have been compliant, the witness cannot possibly have first-hand experience of the original and the Respondent admits that no copy of the original is or will become available, merely producing a blank template copy of a current Default Notice which has no link to this debt.

9. The District Judge misdirected himself in agreeing with the Respondent that it could only have taken a catastrophic failure within the Bank’s systems for this Default Notice to have been non-compliant to the Act and that as a large financial institution who commonly issue Default Notices, there could be no mistakes made and that because of the amount issued they could not possibly keep copies.

10 The District Judge misdirected himself in his agreement that the burden of proof lies with the Appellant in regard to the very specific requirements of the form and content of a Default Notice.

11. The District Judge further misdirected himself regarding the content of the Default Notice by agreeing with the Respondent that the sums claimed, which must be accurate according to the Act, could include unlawful sums claimed under the current Office of Fair Trading case regarding unlawful bank charges in the House of Lords, as these could not be calculated by the Respondent due to them not knowing the sums that would be claimed by the Appellant, and failing to acknowledge that the Respondent provided a calculation of unlawfully charged sums, referred to in the judgment as the amount stayed pending the outcome of the aforementioned case, invalidating the Default Notice with inaccurate sums claimed..

12. The above reasons show that the termination and subsequent efforts to enforce this debt are fundamentally flawed and that the District Judge misdirected himself on several points.

The Respondent unlawfully terminated and enforced this debt in the first instance by issuing a Default Notice, where the correct method for termination should have been notices under s.76(1) & s98(1) of the Consumer Credit Act 1974, due to the omission of these type of debts from the obligation of agreements under Part V of the Act.

In any event, the Respondent is unable to prove that a fully compliant Default Notice was ever issued and further, that it was ever correctly served allowing the required time for rectification. The District Judge made error in accounting these facts to the judgment.

13. The District Judge was wrong to find the Appellant's defence had no chance of success and find for the Respondent in this case.

edited several times, this is the final version going in.

Edited October 21, 2009 by r&b
edited: changed to final version

[r&b]

one quest....how do i put a sealed copy of the appellant's notice in the bundle? ask the court to do so?

[RobinWayRobinme]

Hi R&B. Looks to me like you are just about there. Just 2 small points. p6 & 7 appear to be the same ground and just wondering if they could be combined. Also same with 8&9 (I assume witness statement only confirmed system to produce DN's refering to their template, but didn't make a statement confirming that DN had been posted and when. Therefore assume not included as witness didn't want to sign statement of truth when it may not be true!).

 

When do you need to file appellants notice R&B?

Robin

[RobinWayRobinme]

one quest....how do i put a sealed copy of the appellant's notice in the bundle? ask the court to do so?

 

Leave a space for it in your bundle and when you get yours copy it, hole punch it and send to court. Yes, they like everything done for them. Obviuosly list it as to follow on last page of AN.

[r&b]

hi robin,

going in tomorrow, last day....everything been a bit hectic last 2 weeks...always the way i guess....thanks for all the help saved me a lot of time and effort. by the way, how much is the application?

[RobinWayRobinme]

hi robin,

going in tomorrow, last day....everything been a bit hectic last 2 weeks...always the way i guess....thanks for all the help saved me a lot of time and effort. by the way, how much is the application?

 

Thats the bad news £200.

If you are going to leave it to the court to serve copy on respondent, remind them that it must be done within 7 days as mine didn't know & I had to chase and remind court. Once in, on to the skeleton argument.

Robin